Assignments for the week of January 12: Tuesday, January 13: Required: Please read the Course Policies before the first class. We discussed the material in Section I.A.1. Consider: The purpose of having you look at two other countries’ constitutions, along with that of the U.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 but a different constitutional history. South Africa’s constitution is often cited as a model for modern constitution-drafting. 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. There is no need to do any outside research on the constitutions. In fact you will be better off not doing that. The point of this look at the three constitutions is to start getting skilled at parsing texts and seeing what you can (and cannot) get from them. As you are looking through the texts, think about a few basic questions: Why have a constitution at all? Must it be in writing to function properly as a constitution? Are there any other characteristics something must have in order to be a “constitution”? What distinguishes a constitution from legislation? Are they two completely separately categories, or is it more the case that there is a spectrum with constitutions at one end and legislation at the other? Why should a constitution be binding on subsequent generations? Next think about the constitutions compare on the subjects they cover. 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? 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 (Supp. 3-37) and South African (Supp. 38-122) Constitutions, identify the major divisions of the constitution and what major subject matters they cover. Imagine that you were hired by a newly independent state as an expert in constitutional law, with the aim of providing advice in the drafting of a constitution. What subject areas do you think a constitution should cover? What things do you think do not belong in a constitution? If you were to suggest one of the three as a model, which would you point to? 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). In what respects, if any, does the text of the U.S. Constitution embody, reject, or not address the following values? Human dignity, the achievement of equality and the advancement of human rights and freedoms. Non-racism and non-sexism. Supremacy of the constitution and the rule of law. Universal adult suffrage, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. Note: these values are taken from Section 1 of the South African Constitution, with some modifications. Is it desirable, in your view, to express basic values in a constitutional text? Are there other values you would include? Compare the provisions of each of the three constitutions relating to the following issues: 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. 1 (§§ 1-6) & 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. I § 9 cl. 2 South African Constitution, § 37, Supplement 46-47 Canadian Const. Act, 1982, Sched. B, Part I (Charter of Rights and Freedoms), § 33 (not quite a state of emergency provision but still providing for an “exception” to rights). How do they differ? Which approach do you think is better? Should the U.S. adopt a provision like § 37 of the South African Constitution, Supplement 46-47? The powers of the provinces/states vis-à-vis the federal/national government: U.S. Const. Art. I §§ 8 and 10; Article VI cl. 2; and the Tenth and Fourteenth Amendments; South African Const. chap. 6 (§§ 103-150), Supplement 64-75; see in particular §§ 146 & 148 (Supplement 74-75) and Schedule 4 (concurrent national/provincial powers) and Schedule 5 (exclusive provincial powers), Supplement 102-104. Notice that Chapter 6 also sets out the structure of provincial governments, with a procedure for each to adopt its own provincial constitution, subject to the approval of the Constitutional Court. Canadian Const. Act, 1867, Arts. 91-95, Supplement 14-17. Consider also Const. Act., 1982, § 52 Under each of the constitutions, looking solely at the text, would the federal government have the power to enact a law banning abortion? Protecting access to abortion? Would the state or local governments have that power? If the two conflicted, which would prevail? What are the eligibility provisions for being president of the U.S.? Of South Africa? This is an exercise in parsing constitutional texts, so focus only on what you can get from the texts. “What you can get from the texts” may be answers or it may be questions about questions and other sources you would have to look into to answer the question. See U.S. Const., Art. II § 1 cl. 5, and Amend. XXII; Art. I § 8 cl. 4; Fourteenth Amendment § 3). Const. of South Africa, Arts. 42(3), 46, 47, 49, 86, 87, 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? Rep. Ilhan Omar (D. Minn) or Elon Musk, both of whom are naturalized U.S. citizens born in Somalia and South Africa, respectively. Sen. and Secretary of State Marco Rubio (Florida), born in the U.S. to parents who at the time had Cuban citizenship. The late Sen. John McCain, born in 1936 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 by treaty to full Panamanian control. Sen. Ted Cruz (R. Tex), born in Canada to a Cuban citizen father and U.S. citizen mother, or Sen. Tammy Duckworth (D. Ill.), born in Thailand to a U.S. citizen father and Thai citizen mother. Thursday, January 15: We discussed the material in Section I.A.2 and began our discussion of the material in Section I.A.3. With respect to Section I.A.2 (Adoption of Constitutions): In the case of each of the three constitutions (U.S., Canada, South Africa), just based on the texts 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? What is your view of the South African Constitutional Court’s role in the drafting of the Constitution? See Supplement 123-126. One argument often used against invoking the provision in U.S. Const. Art. V 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? The framing and adoption of the U.S. Constitution: How did the structure of government under the Articles of Confederation differ from that under the Constitution -- in terms of separation of powers and of federalism? What flaws did Madison see in the Articles of Confederation? What problems did Madison see with: the status of the Articles of Confederation as a constitutional text? how states interacted with each other? the relationship between the states and the national government? how states handled issues within their own boundaries? the United States’ relations with other nations? Were the Articles of Confederation adopted by the people of the United States? By the states? Was the Constitution adopted by the people of the United States? By the people of each state? By the states? What difference does this make to constitutional interpretation? What difference does it make to constitutional interpretation that in practice “the people” was a subset of the population, excluding enslaved persons, Native Americans, women, and to a great extent those without property? Was the adoption of the U.S. Constitution an illegal act? Why or why not? Note that Madison’s memo says almost nothing about slavery (even though his memo includes a section on “Injustice of the laws of the states”). There is one reference to it in “Want of Guaranty to the States of Their Constitutions & Laws Against Internal Violence.” (Optional: you can find the entire memorandum here.) Note also that the word “slavery” appeared nowhere in the text as adopted by the Framers in 1787. The debates over whether to ratify the Constitution: In reading Federalist Nos. 10 and 51, pay particular attention to what Madison regards as a “faction”; what are the major sources of faction; what problems he says they cause; and how he proposes to address those problems. In what way does the structure of the Constitution as adopted in 1787 reflect his concerns? 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? 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 in Rhode Island, a state in which abortion is permitted: What would be anti-federalist arguments for employing a town meeting to decide this question? What concerns might you expect Madison to raise against the anti-federalist arguments that the best way to decide it would be through a town meeting? What governmental forms would, in Madison’s view, be best adapted to deciding the question? 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 state constitution to preclude local governments (such as cities and counties) from regulating guns? 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 has traditionally operated with a considerable degree of independence from the President. 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, member of the cabinet 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? Note that Madison’s memo says almost nothing about slavery under the longest section on “Injustice of the laws of the states.” There is one reference to it in “Want of Guaranty to the States of Their Constitutions & Laws Against Internal Violence.” (Optional: you can find the entire memorandum here.) Note also that the word “slavery” appeared nowhere in the text as adopted by the Framers in 1787. With respect to Section I.A.3 (Constitutional Revision): Compare the procedures for amending the constitutions: U.S. Const., Art. V Canadian Const. Act, 1982, Part V (§§ 38-49), Supplement 33-35 and § 52, Supplement 35. See also Const. Act, 1982, § 35.1, Supplement 32. South African Const., § 74, Supplement 56-57. How do the provisions differ in terms of: content drafting style Which of the three do you think is the best? Can all or parts of a Constitution be unamendable? Should that be possible? Is it desirable? In this connection, consider Art. V of the U.S. Constitution, and Section 74 of the South African Constitution. Consider the readings at Supp. 127-136. Would it be consistent with the U.S. Constitution to have a national referendum to adopt an amendment? Why or why not? Is the experience of other countries under their constitutions relevant, in your view? Why or why not? Do you think the U.S. 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: 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? Note that Article V 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?

Assignments for the week of January 19: Tuesday, January 20: We will first complete our discussion of the material in Sections I.A.3 of the Syllabus (questions here) as well as Sections I.A.4 and I.B. We will then move on to Section I.C.1. With respect to Section I.A.4 (Incorporating Constitutional Amendments): Notice how amendments to the U.S. Constitution are incorporated into the constitutional text: they are simply listed in order of adoption at the end of the 1787 text. There is no official version with the amendments incorporated directly into the original text and provisions that have been rendered inoperative deleted. (This led to some controversy in 2011; if you are interested, see NPR, House to read Constitution out loud again on Thursday, Jan. 5, 2017 (optional).) As the article by Hartnett shows (Supp. 137-154), the U.S. came close to adopting a very different approach to amending the Constitution at the time the Bill of Rights was adopted. Do you agree with Madison’s statement that “form is of some consequence” in this respect (Supp. 138)? Note that Madison’s approach -- to interweave amendments into the main text -- was deemed “absurd” by Roger Sherman, whose approach was in turn “ridiculed” by John Vining. Is it irrelevant -- or revealing -- that Sherman was an opponent of adopting a Bill of Rights? What advantage is there to the non-interweaven approach the U.S. ultimately adopted? What difference would the interweaven approach have made to the Thirteenth Amendment? Is it desirable or deplorable that “the scars of history [would be] less immediately visible” under Madison’s approach? Is the “clutter of enactment and repeal” (regarding Prohibition) a serious disadvantage to the U.S. approach? With respect to Section I.B (Why should democratic societies be constrained by a constitution): Consider these basic questions about any constitution: Why have a constitution at all? Why should people today, in a democratic society, be bound by choices made by citizens long ago? Must a constitution be in writing to function properly as a constitution? Are there any other characteristics something must have in order to be a “constitution”? What distinguishes a constitution from legislation? Are they two completely separate categories, or is it more the case that there is a spectrum with the constitution at one end and legislation at the other? With respect to Section I.C.1, consider: Under the Supreme Court Act, R.S.C., 1985, Supp. 165, did the Canadian Supreme 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? What is the relevance of § 101 of the Constitution (Supp. 156? 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, Supp. 156 of the opinion). Should the U.S. Supreme Court take a similar approach to interpreting the U.S. Constitution? What does Curtiss-Wright have to say about the powers of the federal government? Do they derive entirely from the Constitution? Does the President have powers that are not grounded in the Constitution? Make sure you unerstand where, according to the U.S. Supreme Court, the President got the power to prohibit arns sales to the Chaco region in South America; the Court did not ground that power in the 1934 Joint Resolution (i.e., statute) of Congress, or in any provision of the Constitution. Does the reasoning in Curtiss-Wright imply agreement with the assertion in Reference re Secession of Quebec that the text of a constitution may not exhaustively define its content, and may include principles (and powers?) not included within the text? Why or why not? 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 “constitutionalism and 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, consistent with the Constitution, secede from the U.S.? Thursday, January 22: We discusssed the material in Sections I.C.2.a and I.C.2.b.i. With respect to Section I.C.2.a, consider: What accounts do Finkelman (Supp. 167-168) and Wilentz (Supp. 169-170) give of the absence of the word “slavery” from the Constitution? How do they differ? Consider the following possible views of the Constitution (among many possibilities): The Constitution was a pro-slavery document; it “provided enormous protections” (Supp. 168) for the institution of slavery with little or no political compromises by the southern states. The Constitution was not only a pro-slavery document, “an agreement with Hell”: It made political activity by abolitionists under then-existing governmental mechanisms futile. See Supp. 170. The text of the Constitution itself, while hardly antislavery, provided “powerful antislavery potential,” (Supp. 169), though Northern indifference to, tolerance of, or benefits from the institution of slavery over many years left that potential unrealized. The Civil War and Reconstruction marked a fundamental rupture in the Constitution. We have had two Constitutions since 1787. Justice Thurgood Marshall: “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago. ... While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.” From a speech in 1987, at an event marking the Bicentennial of the Constitution. In responding to the position of Garrison and other abolitionists, Douglass sets out two questions: “Does the United States Constitution guarantee to any class or description of people in that country the right to enslave, or hold as property, any other class or description of people in that country?” See Supp. 172 (issue covered at Supp. 172, col. 2 to Supp. 176, col. 2) “Is the dissolution of the union between the slave and free States required by fidelity to the slaves, or by the just demands of conscience?” See Supp. 172 (issue covered at Supp. 176, col. 2 (beginning with “My argument against the dissolution of the Union ...”) to Supp. 177) We will focus mainly on the first question, but will consider also how the second issue might influence one’s position on the first. With respect to the first question, pay close attention to his approach to constitutional interpretation, in several regards: The role of what he calls a “plain and common-sense reading of the Constitution” (Supp. 176, col. 1) What are the specific textual arguments he makes about the following? How does he deal with the absence of the words “slave” or “slavery”? Is his interpretation of them entirely textual or does he rely on additional modes of constitutional interpretation as well: Art. I § 2 cl. 3 (the three-fifths clause) Art. I § 9 cl. 1 (precluding abolition of the transatlantic slave trade before 1808) Art. I § 8 cl. 15 (power to suppress insurrections and repel invasions) Art. IV § 2 cl. 3 (Fugitive Slave Clause) The Preamble to the Constitution It will also be helpful to read Oakes’ analysis of Douglass’s arguments on these points. (Supp. 193, right hand column to Supp. 178-185) The role of the intent of the Framers What does Douglass mean by “intent”? What if any role should intent play in interpreting the Constitution, according to Douglass? What role did the text alone play, according to Douglass? Consider Oakes’ account of the difference in approach to interpretation between mainstream antislavery advocates and Douglass (Supp. 179, right hand column to Supp. 180) Was Douglass entirely consistent in his approach to the proper method of interpreting the constitution? What does Oakes’ have to say on this point? See Supp. 179 (col. 2) to Supp. 181 The role of canons of construction in constitutional interpretation (or “the most beneficent rules of legal interpretation,” (Supp. 176) To which particular canon does he appeal? What makes it relevant to constitutional interpretation? Are canons of construction part of the Constitution? External to it? In his view, are canons of construction consistently deployed by the abolitionists? Consider his criticisms at Supp. 173, col. 2 (last para.) to 176, col. 1 (second para.). The relevance of widespread social, political, and governmental practice in interpreting the Constitution. Note his consistent distinction between “the chart” and “the course of the vessel,” Supp. 172; see also Supp. 173, col. 1 (America’s “laws are one thing, her practice is another thing”). In interpreting the Constitution, how does Douglass deal with the existence of the institution of slavery in the U.S.? With regard to the second question: What response does Douglass have to the position of abolitionists such as Garrison that any participation in electoral politics or government under the Constitution represented an unacceptable accommodation to a Constitution irredeemably corrupted by the institution of slavery? Douglass sets out the first and second questions and addresses them in separate parts of his speech, but clearly regards them as interrelated. In what ways do the moral and political questions of how to counter the institution of slavery potentially bear on constitutional interpretation? Consider again Justice Thurgood Marshall’s view that “[w]hile the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.” Is his understanding consistent with Douglass’s? Different from it? In what ways? With respect to Section I.C.2.b.i (Heller), consider: Whom (and in what context) does the Second Amendment protect? 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 kinds of “arms” are protected under Heller? 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, which if any of the following weapons would you expect the courts to find to be protected by the Second Amendment? Whatever your answer is as of today, are there societal circumstances that might cause it to change in the future? Silencers. Note: A number of proposed bills would make it easier to purchase a silencer; some would preempt state laws regulating or banning silencers. See, e.g., H.R. 3228 (introduced 05/07/2025) (“Constitutional Hearing Protection Act”); David Kopel, The Hearing Protection Act and ‘Silencers’, Washington Post, 6/19/17. Bullet-proof vests. Binary Triggers: A binary trigger is a modification that allows a weapon to fire one round when the trigger is pulled and another when it is released - in essence doubling the firing capacity, firearms experts and weapons manufacturers say. The modifications are relatively inexpensive, running a few hundred dollars depending on the model. They are also a relatively new technology, first released in 2015 partly in response to federal regulators seeking to expand the scope of banning modifications that create automatic weapons. What regulations exist on binary triggers? They are legal in most states and at the federal level. Federal regulations don’t yet cover the sale of binary trigger modifications, said Robert Spitzer, a professor at the College of William & Mary Law School whose research focuses on gun policy and politics. “It’s a matter of technology outrunning regulation, which is not a new thing,” Spitzer said. The Miami Herald, The Fargo shooter used a binary trigger. Here’s what to know about the device that’s worrying police, Miami Herald, July 22, 2023. 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. Optional Note: The National Firearms Act of 1934 banned machine guns. In 2017, a mass shooter in Las Vegas killed 58 people and wounded more than 500. He used semi-automatic weapons equipped with “bump stocks.” A bump stock is a device added to a semi-automatic weapon to allow it to fire continuously without repeatedly pulling the trigger. In 2018, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) classified semi-automatic weapons outfitted with a bump stock as machine guns. In Garland v. Cargill, 602 U.S. 406 (2024), the Supreme Court struck down the regulation. The ruling was not based on the Second Amendment. Instead, after a detailed review of the operation of machine guns, semi-automatic weapons, and bump stocks, the majority concluded that the text of the National Firearms Act of 1934 did not authorize the regulation. Rocket-propelled grenade launchers. Flamethowers What uses or forms of possession are not protected, according to the Heller majority? Suppose, for example, you collect antique guns. They are in working order, but you have no plans ever to use them for self-defense or hunting. Would a law banning the possession of antique guns (out of concern, for example, that might endanger children living in the house where they are stored, or might be stolen and misued) violate the Second Amendment? What uses or forms of possession are not protected, according to the Heller majority? Is Heller right in assuming that someone who commits wire fraud (a felony) can 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? Does Heller set out a standard of review applicable to challenges to particular firearms regulations? What did the respondent (Heller) argue for? What did the majority hold? What did Justice Breyer argue for? Which approach do you think the Court should adopt? How persuasive do you find the case for his approach to the level of scrutiny? 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 53)? How does this question relate to the level of scrutiny applied?

Assignments for the week of January 26: Tuesday, January 27: We completed our discussion of the material in Section I.C.2.b.i of the Syllabus (questions here) and then discussed the material in Sections I.C.2.b.ii (Blaisdell) and I.C.2.b.iiiCFPB v. CFSAA). With respect to Section I.C.2.b.ii (Home Building & Loan Ass’n v. Blaisdell), consider: Note that the statute at issue in Blaisdell was a state statute. States have what is typically called “police power”: a broad power to enact statutes for the general health, welfare, safety, and morals of the population. It is this power to which Chief Justice Hughes makes reference at CB 826 (bottom), where he refers to the legislature acting to postpone foreclosures because having numerous foreclosures would be “hostile to public morals, or public health, safety or welfare.” This police power was, however, subject to limits imposed by the Contracts Clause; the federal constitution is the “supreme Law of the Land” under Article VI (CB xliii). As you can see, the Court found that the state statute did not conflict with the Contracts Clause. The framers’ intent: What was the purpose of the Contracts Clause, as contemplated by the framers? Is the holding in Blaisdell consistent with the reasons the framers included the Contracts Clause? What economic conditions did they confront as they drafted the Constitution? Did the framers have an intent as to whether “original intent” should play a decisive role in interpreting the Constitution? Does the language of the Constitution -- for example, of the Contracts Clause itself -- provide any guidance on this question? Note that Chief Justice Hughes, writing for the majority, takes it as obvious that the framers’ intent is not an adequate guide to interpretation; writing in dissent, Justice Sutherland takes it as obvious that the framers’ intent is decisive. What does it say about constitutional interpretation that members of the Court could regard such opposed positions as obvious? What role, according to the Court, does the fact of a grave emergency like the Depression play in constitutional interpretation? What reasons does it give for its view? Was the presence of emergency conditions relevant in any way to the Court’s holding? If Chief Justice Hughes’ approach to constitutional interpretation is correct, how much difference is there between an unwritten constitution and one embodied in a text? Was Blaisdell correctly decided, in your view? Consider the federal moratorium on certain tenant evictions that was included in section 4024 of the CARES Act of 2020 -- a federal statute. The federal government does not have the broad police power that states have. In theory, at least, the federal government has only those powers that are set out in the Constitution. Look through the text of the Constitution and try to answer this question: What provision(s) of the Constitution would empower the federal government to put a moratorium on evictions? And what basis or bases in the Constitution might a landlord have for challenging the constitutionality of section 4024? Note that it could not be the Contracts Clause, because that section applies to states, not the federal government (see Art. I § 10 cl. 1 (“No State shall ... pass any ... Law impairing the Obligations of Contracts”)). If confronted with these questions, should a court take into account that the country was experiencing a pandemic? Why or why not? With respect to Section I.C.2.b.iii (CFPB v. CFSAA), consider: Why did Congress create the Consumer Protection Financial Bureau (CFPB)? What regulatory powers did it give the CFPB? In what ways did Congress attempt to shield the CFPB from influence by the President and Congress? What were its reasons for doing so? In particular, make sure you understand how the CFPB was funded (set out at Supp. 186). Consider also the current role of Elon Musk, who has been developing a new consumer-oriented payment system (X Money), in the attempted shutdown of the CFPB, and the desire for banking industry executives to reduce federal regulation (Supp. 213-215). The regulation at issue concerned payday lenders (what the Court refers to as “high interest lenders”). Payday loans typically pre-authorize the lender to debit the borrower’s bank account as loan repayments come due. The regulation limited this payment mechanism, providing that the lender could not obtain loan repayments through pre-authorized debiting after two unsuccessful attempts. The CFPB found that successive withdrawal attempts were “abusive because they take advantage of consumers’ lack of understanding of the risk that a lender would attempt to charge the consumer’s account again and again if withdrawal attempts failed” (for the obvious reason that the borrower lacked sufficient funds in his or her account), resulting in huge bank charges to the borrower. The Community Financial Services Ass’n of America (CFSAA) (a trade association of payday lenders) challenged the regulation, asserting that the CFPB’s funding mechanism violates the Appropriations Clause (Art. I § 9 cl. 7) (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”). In your view, did the CFSAA have standing to assert this claim? What conclusions does the majority draw from the following: Its textual analysis (Part II.A.1) Supp. 187-188 Its analysis of pre-founding history (Part II.A.2) Supp. 188-189 Its analysis of early post-ratification practice (Part II.A.3) Supp. 189-190 What, according to the majority, are the two minimum requirements for a law to satisfy the Appropriations Clause? Consider the Court’s response to the CFSA’s arguments in Section III: The CFPB, not Congress, decides its annual funding. There is no annual vote in Congress on the CFPB’s funding. The CFPB’s funding mechanism, if extended to every agency, would Justice Alito’s dissent accuses the majority of making a fundamental mistake in consulting dictionaries from the Framers’ era, saying that “Appropriations” was a term of art with a specialized meaning. Justice Thomas, writing for the majority, accuses the dissent of failing to connect its recounting of history, and failing to offer a different understanding from the majority’s of the term “appropriation.” Who has the better account of history? By what criteria would you make that call? The majority takes the practice of funding customs collectors through import duties they collected, and the post office through user fees, as supporting its conclusion (Supp. 190, 193). The dissent argues that the majority has misconstrued the significance of these practices. (Supp. 207-209). Compare the dissent’s argument about late-Eighteenth Century Massachussets laws (Supp. 201 n.1) with the majority’s response (Supp. 193 (left-hand colum, first full ¶). What approach does Justice Kagan take to history in her concurrence? How might you relate it to Justice Frankfurter’s concurrence in Youngstown (CB 334-335)? Suppose Congress had always provided annual appropriations of specific amounts for government agencies, and had not begun to engage in “sums not exceeding” or non-time-limited approaches until around the time of the Civil War, and then had fairly consistently made use of those practices. How would the Court rule under the majority’s approach? Under Justice Kagan’s approach (joined by Justices Sotomayor, Kavanaugh, and Barrett)? Note that Justice Jackson did not join in Justice Kagan’s concurrence. Is her a textualist approach? How deferential to the judgments of the political branches on how to structure spending is her approach compared to (a) the majority and the dissent’s, and (b) Justice Kagan’s? What is your take on originalism as a methodology to guide interpretation of the constitution? Is it a methodology that works best for the constitution as a whole? Certain parts of it? Why or why not? Are the demands it makes on judges in terms of historical research within the realm of their expertise? The dissent repeatedly characterizes the CFPB’s funding scheme as “novel,” (Supp. 196), “unprecedented,” (Supp. 203, 204), and “with no analog in history” (Supp. 203), It asserts that “nothing like the CFPB’s funding scheme has previously been seen” (Supp. 197), and says that “no other agency -- older or new -- has enjoyed so many layers of insulation from accountability” (Supp. 202). Assume for the sake of argument that these characterizations are correct. What does that mean for the constitutionality of the funding mechanism? The approach taken by Congress in funding the CFPB should be regarded with deep suspicion by the Court in determining whether it comports with the Constitution. The novelty of the funding arrangement, after more than two centuries of constitutional experience, most likely means it is unconstitutional; OR Novelty is a feature of governance; new problems call for new solutions, and unless there is a clear-cut conflict with the constitutional text, the Court should defer to Congress’s decision to act on Chief Justice’s Marshall admonition that the U.S. Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs” (McCulloch, CB 53). Thursday, January 29: We discussed the material in Sections I.C.2.c.1 and I.C.2.c.ii. With regard to Section I.C.2.c.i (McCulloch v. Maryland), consider: The power of the federal government to establish a national bank: 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. If there were a new constitutional convention in the U.S., would you support adding something like Sections 223-225 (Supp. 95 of the South African Constitition to the U.S. Constitution? They provide as follows: 223. The South African Reserve Bank is the central bank of the Republic and is regulated in terms of an Act of Parliament. Primary object 224. (1) The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic. (2) The South African Reserve Bank, in pursuit of its primary object, must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters. Powers and functions 225. The powers and functions of the South African Reserve Bank are those customarily exercised and performed by central banks, which powers and functions must be determined by an Act of Parliament and must be exercised or performed subject to the conditions prescribed in terms of that Act. Note that the goals of the U.S. Federal Reserve System are currently specified by a statute. See 12 U.S.C. § 225a (“promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates”). Could the South African Parliament, consistent with § 224(1), adopt legislation requiring the Reserve Bank to pursue those three goals with equal emphasis? The Supreme Court just heard arguments in Trump v. Cook over whether to stay a lower court’s ruling that President Trump exceeded his powers in attempting to fire Lisa Cook, a Federal Reserve Board member. In ultimately deciding the issues relating to his power to remove Fed members, should the Court take into account concerns about whether undercutting the Fed’s independence would harm the economy? Why or why not? Cf. Justice Barrett’s question about an amicus brief that argued that granting the stay “could trigger a recession.” Supreme Court appears likely to prevent Trump from firing Fed governor, Scotusblog, Jan. 21, 2026. Should it matter that when the U.S. 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 Marshall’s famous phrase, “we must never forget, that it is a constitution we are expounding” (CB 51), tie in to his response? What account of the origin of the Constitution does Marshall give? Why does it matter to his reasoning? Was the Constitution adopted by: The people of the United States? The States? Does Marshall imply a power under Article I § 8 (CB xxxix) 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 xxxix) (Congressional power to punish counterfeiting the Securities and current Coin of the U.S.) superfluous? Keep in mind what Marshall says about the U.S. mail and federal power to prosecute those who interfere with it. Suppose Marshall’s interpretation does make Art. I § 8 cl. 6 superfluous. 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 53 (second paragraph, beginning “So, with respect to the whole penal code ...”) and his remarks at CB 53-54 (last paragraph, beginning with “In ascertaining the sense ...”) about the phrase “necessary and proper.” Consider the standard of review Marshall sets out for judicial determination of whether Congress has acted within its Article I § 8 powers: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. (CB 54) Would you call this minimal (or rational basis) scrutiny? Strict scrutiny? Something else? Marshall cautions that Congress cannot constitutionally make pretextual use of its powers. CB 55 (first 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 54) 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 49-50 and in the “Background” note at CB 57-58. With regard to the meaning of the word “necessary,” is the European Court of Human Rights’s decision in Dudgeon v. United Kingdom (Supp. 200-202) 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? 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)? The power of a state to tax the national bank (regarding the second portion of the McCulloch opinion, at CB 55-57) (we will not get to this portion until Thursday): 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 xliii)? What is Marshall’s structural argument regarding Maryland’s attempt to tax the bank? Why apply the label “representation reinforcement” (CB 60) to it? Even if one accepts Marshall’s contention that the power is the power to destroy (see CB 55 -- the two paragraphs beginning with “This great principle ...” and “That the power of taxing ...”), does it follow that it is the Court’s job to preserve the Bank from destruction by Maryland? With respect to Section I.C.2.c.ii (Putting a Constitution into Practice): 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” (from a plan drafted by James Madison and proposed by Edmund Randolph of Virginia)? ; or make laws for the Peace, Order, and good government of the United States, in relation to all matters not exclusively reserved for the states (a phrase similar to that in Section 91 of the Canadian Constitution (“It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces”)? What role did the Necessary and Proper Clause play in early post-ratification debates about the meaning of the Constitution? How and why, for example, was it thought to be relevant to the question of whether the President could fire federal officials? What practical implications might there be to grounding the President’s power to remove on (a) implied executive powers under Article II, versus (b) the Necessary and Proper Clause in Article I? What, if anything, does the Lynch reading suggest about original intent as a guide to interpretation? Does the history of post-ratification debates, set out by Lynch, show that once they were in government, some of the framers were willing to ignore or distort the text in order to pursue goals they thought beneficial to the nation? Or that they respected the generality of the language in the Constitution, and took it to encompass the exercise of powers (such as the creation of a national bank) that were not contemplated by the framers as they drafted the constitution or the people as they ratified it? Are the approaches taken by President Washington, members of cabinet, and members of the first Congress relevant to constitutional interpretation under the majority’s approach in Heller and CFPB v. CFSAA? Does Lynch accurately characterize the role that the Necessary and Proper clause played in McCulloch?

Assignments for the week of February 2: Tuesday, February 3: We will first complete our discussion of the material in Sections (questions here) . We will then move on to Section II.A.1 (Marbury). Consider: What criticisms could you make of Justice Marshall’s reasoning on the following issues: Is Marbury entitled to his commission? If so, is he entitled to a remedy? If so, does the Judiciary Act § 13 (CB 25, note*) give the Supreme Court original jurisdiction to grant him the remedy? Make sure you understand exactly what specific language in the Judiciary Act gave the Supreme Court jurisdiction, according to Marbury. Section 13 provided: And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. What criticisms could you make of the Court’s reasoning on the following issues: If the Judiciary Act § 13 (CB 25, 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 (Art. III)? Was Madison a “public Minister” under Art. III § 2 cl. 2? (“In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the upreme Court shall have original Jurisdiction.”)? Who is encompassed by that phrase? Note that the phrase “other public Ministers and Consuls” also appears in Art. II § 2 cl. 2 (power of the president to appoint “Ambassadors, other public Ministers and Consuls”), and in Art. II § 3 (Power of president to “receive Ambassadors and other public Ministers”). Does it usage in these two parts of Art. II tell us anything about its meaning in Art. III? Why would the framers have given the Supreme Court original jurisdiction in cases affecting ambassadors, other public ministers, and consuls? If the term “public ministers” does not include U.S. cabinet officials, is Section 13 of the Judiciary Act consistent with Article III? Consider how the following hypotheticals would come out under § 13 of the Judiciary Act (CB 25, 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 29-30, note 2.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 Concurrent Supreme Court’s Original Jurisdiction Is Not Concurrent Listing of jurisdiction in Art. III, § 2 cl. 2 is exhaustive Marbury + Ames Marbury + opposite of Ames Listing of jurisdiction in Art. III, § 2 cl. 2 is nonexhaustive Opposite of Marbury + Ames Opposite of Marbury + opposite of Ames If Section 13 of the Judiciary Act is not consistent with Article III, what should the Supreme Court do? 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. 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 26, last full paragraph). Do you agree that it is fairly straightforward? Compare how judicial review of federal legislation is handled in the South African Constitution. How does judicial review in South African courts other than the Constitutional Court (the highest court with respect to constitutional matters) work? See § 172 (Supp. 80). How is this different from the U.S. model? Would you favor the addition to the U.S. Constitution of a route to rulings on the consitututionality of federal legislation prior to full enactment as found in §§ 167 (Supp. 79), 79 (Supp. 60), 80 (Supp. 60), and 84(2)(c) (Supp. 61)? Thursday, February 5: We completed the material in Section II.A.1 (Marbury) and then discussed the material in Sections II.A.2 (Martin v. Hunter’s Lessee) and II.B (Judicial Exclusivity in Constitutional Interpretation). With respect to Section II.A.2 (Martin v. Hunter’s Lessee): 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. Note: Learning to read statutes is important. You will do the most to improve your skills if you first parse the statute on your own -- which you will find at Supp. 224 -- before you look at the color-coded version at Supp. 225. Suppose the case had gone in Martin’s favor. Would the Supreme Court have had jurisdiction under § 25 (Supp. 228) to hear an appeal by Hunter? What is the argument that § 25 (Supp. 224) violates the Constitution by providing for Supreme Court review of decisions by a state’s highest court where the state courts have adjudicated an issue that falls within the federal judicial power (Art III §2 cl. 1)? What arguments does the Court marshal to refute those arguments? Focus on these issues in particular: The Supremacy Clause (in Art. VI): to what extent does it support the power of Supreme Court to review the final judgments of state supreme courts? The Judicial Power of the United States (Art. III § 2 cl. 1): consider that under Hunter’s argument (supporting the Virginia supreme court’s position), if matters within the federal judicial power were presented and resolved in state courts, and if there were no possibility of Supreme Court review of those holdings, those matters would never be presented in federal court. Would that be consistent with Art. III §. 2 cl. 1? Uniformity: should it matter that if the Supreme Court had no power to review state supreme court judgments, there might be different interpretations of the U.S. Constitution in different states? State sovereignty: Why does Justice Story observe that the Constitution is “crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives”? What examples does he give? With respect to Section II.B (Judicial Exclusivity in Constitutional Interpretation), 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 40) Rep. Nancy Pelosi spoke against proposals to try to undo the Supreme Court’s decision in Kelo v. New London Connecticut (a takings clause decision [which we are not reading]): “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.’” Do you agree as to the finality of the Supreme Court’s rulings? President Jackson’s veto message (Supp. 226-227) 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).

Assignments for the week of February 9: Tuesday, February 10: We will discuss the material in Sections II.C.1.a (Political Control/Criticisms, Amendments, Appointments, Impeachment), Section II.C.1.b (Control of Jurisdiction), and II.C.2.a (Advisory Opinions). With respect to Section II.C.1.a (Political Control/Criticisms, Amendments, Appointments, Impeachment), consider: In general, what tools do the political branches have to limit or push back against the Supreme Court’s power? How effective are they? What tools should be available to Congress? Would it be consistent with the role of the Court under the Constitution to expand the size of the Court, allowing a president to nominate more members? What about a bill decreasing the size of the Court, providing that as Justices retired or passed away, no seats would be filled until the Court reached a smaller size, in order to prevent a president from making appointments? 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. See Supp. 228-232. 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 about a president suggesting that a Justice should be impeached because of his or her vote and/or opinion in a controversial case? 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.... 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, ... which would require fewer votes in the Senate. ... Congress can [also] create specific statutory measures that govern the impeachment of federal judges. [Examples of impeachable offenses include] ... the issuing of unconstitutional opinions, asserting arbitrary power, and otherwise usurping the authority of the legislature. [This] will send an unmistakable signal to all federal judges .... [Note Speaker Mike Johnson’s recent statement that “I’m for it” when asked about impeaching judges who have ruled against the Trump administration, saying that “some of these judges have gotten so far outside the bounds of where they’re supposed to operate [that] it would not be, in my view, a bad thing for Congress to lay down the law, so to speak, and ... make an example of some of the egregious abuses.” Supp. 233] 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.... 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.... 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.... Leonhardt remarks that “During periods of intense political debate in the U.S., the Supreme Court often becomes a target of harsh criticism.” Supp. 230. Is that worrying? A problem, but not major? A good feature of the system? What factors contribute to or detract from the legitimacy of the Court? Of Congress? Of the Presidency? What constitutes a crisis in the legitimacy of the Court? Is what makes the Court “legitimate” different from what makes (say) Congress “legitimate”? If there is a present or looming legitimacy crisis with respect to the Court, what is the best response? Are some responses themselves either illegitimate or ill-advised? How does the question of political control over the Supreme Court relate to this question about a legitimacy crisis? Is it appropriate under the Constitution, in your view, for members of the Court to engage in the kinds of activities described in the Zeitz article (See Supp. 234-237)? Why or why not? Does the long history of such activities have any bearing on your answer? What are the arguments for and against the following propositions: The 27th Amendment was adopted, but by a process that makes no sense as a way of adopting an amendment to any constitution. The 27th Amendment was not adopted; even if the process is one that could be valid, it is not a process that the U.S. Constitution permits. Whether or not the 27th Amendment is part of the Constitution, the matter it addresses is not the kind of matter that belongs in the Constitution, because (a) it is too specific and not sufficiently weighty, and/or (b) it is unnecessary, given what Art. I § 6 cl. 1 (first sentence) provides. What are the arguments for and against the following proposition: “The ERA has been adopted and is now part of the Constitution.” What are the arguments for and against the following propositions: Since there are more than 34 states with outstanding requests to call a constitutional convention, Congress has an obligation under Article V to call a constitutional convention. Under Article V, such a convention may propose amendments on any matters it deems appropriate. With respect to Section II.C.1.b (Control of Jurisdiction), consider: How freely (or not) should Congress use its power to control the federal courts’ jurisdiction? To what ends? Would either of these bills be a constitutional exercise of Congress’s power under Article III? You may assume that the underlying substantive issues under the First Amendment’s religion clauses are substantial but not open and shut. In answering this question, 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. The Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute, ordinance, rule, regulation, or any part thereof, or arising out of any act interpreting, applying, or enforcing a State statute, ordinance, rule, or regulation, which relates to restrictions on group religious worship enacted in response to a pandemic. No court created by Act of Congress shall have any jurisdiction to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any State statute, ordinance, rule, regulation, or any part thereof, or arising out of any act interpreting, applying, or enforcing a State statute, ordinance, rule, or regulation, which relates to restrictions on group religious worship enacted in response to a pandemic. Assume simply for the sake of argument that statutes a and b, considered separately, were constitutional. Would the following bill be a constitutional exercise of Congress’s power under Article III? No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any case arising out of any State statute, ordinance, rule, regulation, or any part thereof, or arising out of any act interpreting, applying, or enforcing a State statute, ordinance, rule, or regulation, which relates to restrictions on group religious worship enacted in response to a pandemic. Consider this bill: § 1. Any state or local public school system receiving federal education funds shall require a daily moment of silence in classrooms, presided over by a minister, priest, rabbi, or imam. § 2. 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, and the court shall dismiss for want of jurisdiction any case in which such a claim is asserted. Assume that Section 1 of the bill is incompatible with the First Amendment under Supreme Court caselaw on the Establishment Clause. Is Section 2 constitutional? Should the Supreme Court exercise great caution in the face of potential cutbacks to its jurisdiction? Consider H.R. 2028 (2004), which proposed a new statute, 28 U.S.C. § 1632, as follows: No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution, of the Pledge of Allegiance ... or its recitation. By way of background, the Pledge of Allegiance is as follows: I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all. For a brief history of the Pledge, you might look at Bomboy, The History of Legal Challenges to the Pledge of Allegiance, National Constitution Center, June 14, 2023 (Optional). In 2003, a challenge to having students collectively recite the Pledge in public school classrooms (a common practice) was brought before the Supreme Court. It asserted that because of the phrase “under God,” the practice violated the First Amendment’s Establishment Clause (prohibiting states or the federal government from establishing a religion). While the case was pending before the Court, Congress approved a resolution that expressly reaffirmed the reference to God in the Pledge. The Supreme Court dismissed the appeal on the ground of lack of standing in 2004. Later that year, the House approved the above bill. The bill failed in the Senate. Does this sequence of events show the danger of Congress’s power to limit jurisdiction? Or does it show why that power is a useful corrective to the Court’s power? Note that Newt Gingrich proposed using Congress’s power to control federal courts’ jurisdiction over various issues, and would also add in the statute “that any federal judge that refused to adhere to the legislative limitations on jurisdiction would be subject to impeachment and removal from office.” 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. With respect to Section II.C.2.a (Advisory Opinions), consider: 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 77)? 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. These materials are entirely optional. Does the U.S. Constitution forbid state courts from giving advisory opinions? Why or why not? Is it consistent with the Constitution for the federal courts to grant declaratory judgments? What does the Fordham Law Review comment (Supp. 257) indicate about whether the ban on advisory opinions is necessarily a part of the Constitution? Thursday, February 12: We will discuss the material in Sections II.C.2.b.i (Allen v. Wright and related cases) and Sections II.C.2.b.ii.a (Lujan v. Defenders of Wildlife). With respect to Section II.C.2.b.i (Allen v. Wright and related cases), consider: How desirable is judicial self-restraint through standing doctrine? As to Allen v. Wright: What exactly is the claimed violation of the law: 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? Why do those problems lead it to conclude that Art. III standing is absent? If the link between the injury asserted and the responsibility of the IRS for the injury, and the link between the injury asserted and the prospect of relief that meainingfully addresses the injury, are both as weak as the majority concludes, why do you think plaintiffs brought the lawsuit? 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 does Justice Brennan’s dissent suggest? What are the policies or constitutional considerations the Court needs to take into account in deciding standing, according to the majority? What criticism of the majority’s approach does Justice Stevens make? Who has the better of the argument on this point, in your view? Is Department of Commerce v. New York consistent with Allen v. Wright? What kinds of injuries did the plaintiffs allege in FDA v. Alliance for Hippocratic Medicine? Consider what the Court ruled for each of the injuries alleged, and whether the problem was lack of injury, lack of causation, or lack of redressibility (or some combination of them): Injuries to individual plaintiffs Conscience injury Diverting resources and time to treat patients with mifepristone complications Injury to the medical association (Alliance) What is the Court’s response to the plaintiffs’ argument that if none of them have standing, there is no way for the validity of the FDA regulations to brought before a court for judicial determination? Is the Court’s response consistent with Marbury v. Madison, in your view? Why or why not? Note that the ruling in Alliance for Hippocratic Medicine was unanimous, and that Justice Kavanaugh’s opinion reads something like a primer on standing, treating its points as obvious. Yet the district court found standing and ordered mifeprestone off the market, and the Fifth Circuit affirmed the standing ruling (and partially affirmed the district court’s holding on the merits). How could this happen? Consider these two possible explanations for the divergence between the lower courts and the Supreme Court: The law of standing is too uncertain for lower courts to administer consistently. The law of standing is easily manipulated, so that a court that wants to decide an issue can do so. Are there other explanations you can think of? If you believe the first explanation is correct, does the opinion in Alliance adequately address the problem? With respect to Section II.C.2.b.ii.a (Lujan v. Defenders of Wildlife), 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? Consider the following statements. Do you agree with any of these statements? Why or why not? Standing is a constitutional requirement. Accordingly, it is the job of the Court, not Congress, to determine what satisfies the standing requirement. Any other approach would make a mockery of Marbury v. Madison’s statement that “It is emphatically the province and duty of the judicial department to say what the law is.” Congress has the power, through legislation, to create new rights. Violation of those rights causes injury. Thus, while standing is a constitutional requirement, Congress has a critical role in recognizing or creating new kinds of injuries. The Court should respect that role by according deference to Congress’s recognition of a new kind of injury. Failure to do so would be a “bold and daring usurpation” (McCulloch) by the Court of Congress’s power. The requirement of standing should never operate to entirely preclude the Court from construing any part of the Constitution. A complete lack of the possibility of judicial construction of any given part of the Constitution renders that part a nullity as a practical matter. The framers couldn’t have intended Article III to have that effect. In Lujan, what was the holding of the Court on redressability? What was Justice Scalia’s opinion on the matter?

Assignments for the week of February 16: Tuesday, February 17: We will complete our discussion of the material in Section II.C.2.b.ii.a (Lujan v. Defenders of Wildlife) (questions here), and then move on to Sections II.C.2.b.ii.b (Mass. v. EPA), II.C.2.b.ii.c (Clapper), II.C.2.b.iii.a (Historical Development), and II.C.2.b.iii.b (Nexus/Conceptualizing Injury). With respect to Section II.C.2.b.ii.b (Mass. v. EPA), 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? 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? After the Court’s ruling, the EPA made two findings in 2009, which became effective in 2010: (1) that “greenhouse gases ... in the atmosphere threaten the public health and welfare of current and future generations, ” and (2) that “the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution that threatens public health and welfare.” See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act. These findings were overturned by the Trump administraton on February 12, 2026, along with all federal greenhouse gas regulations of vehicles and engines. See President Trump and Administrator Zeldin Deliver Single Largest Deregulatory Action in U.S. History. With respect to Section II.C.2.b.ii.c (Clapper v. Amnesty International USA): 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? What does Justice Breyer say about whether Clapper is consistent with the Court’s earlier holdings? Do you agree or disagree with his assertions? 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 Bill Chappell, Clapper Apologizes for Answer on NSA’s Data Collection, NPR, July 2, 2013. 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 96, ¶ 3 in Section B). 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. The DOJ then announced that it would do so in the future. After the Edward Snowden revelations, Congress ended the bulk metadata collection of telephone information, though the NSA continues to collect data in other forms. See POGO, The History and Future of Mass Metadata Surveillance, June 11, 2019. With respect to Sections II.C.2.b.iii.a (Historical Development) and II.C.2.b.iii.b (Nexus/Conceptualizing Injury), consider: What was a “legal injury” in the earlier era of standing doctrine? How did the requirement of a legal injury help reduce the occasions for judicial review of New Deal legislation (from around 1937 on)? In considering this, note the difference between a challenge by someone who is the object of government regulation versus a challenge by someone who is intended beneficiary of government regulation. How was the understanding of “legal injury” first expanded in the 1960s and 1970s? Was the replacement of “legal injury” with “injury in fact” intended by the Court to constrict standing, or expand it? Was Association of Data Processing Services Organizations v. Camp (CB 116) grounded in the Constitution? Or statute? Are Sierra Club and SCRAP consistent? What is your view as to whether they were correctly decided? Section II.C.2.b.iii.b (The Nexus Requirement/Conceptualizing Injury): Consider the differing ways in which injury is conceptualized in (a) Bakke (CB 113), Northeastern Florida Chapter of Associated General Contractors (CB 113), and Gratz (CB 114), on the one hand, and (b) Linda R.S. (CB 112), EKWRO (CB 112), on the other hand, and between Steel Company and Laidlaw (CB 114). To get a sense of how these cases differ, suppose that the standing issue in Linda R.S or EKWRO 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? Thursday, February 19: We will discuss the material in Sections II.C.2.b.iii.c through II.C.2.b.iii.g. Section II.C.2.b.iii.c (Procedural Violations): Spokeo is often described as a case involving a “procedural” injury, which is not a very enlightening description. Make sure you understand in very concrete terms how the private credit reporting agency’s (CRA) failure to ensure that the information it had compiled on him (and which it made available to others) harmed him. Conider the following ways that someone might might claim injury: The CRA has his zip code wrong. The CRA has his zip code wrong, and some mail sent to him is misdirected, and sometimes is never delivered. The CRA lists him as having educational degrees he never earned; or leaves out educational degrees he did learn. Or it lists his income as higher (or lower) than it really is. As a result, he isn’t hired for a job he applied for. Suppose Equifax, a major CRA, suffers a massive breach of security. Its files contain lots of sensitive financial information pertaining to individuals’ finances. Would A have standing? Would B? Could Congress, by statute, define the kind of harm claimed by B to be an injury for standing purposes? A brings suit against Equifax, alleging that she has suffered identify theft as a result of the breach, with the result that her bank account was emptied out by the group that breached Equifax’s security. B brings suit against Equifax, alleging that the breach puts him at significant risk of identify theft. Section II.C.2.b.iii.d (Threatened Injury): As Lyons shows, a plaintiff may have standing to assert a claim for damages, but no standing to seek an injunction against future injury of the same sort. Assume that an individual has been subject to a police chokehold, brings an action for damages, and the chokehold is ruled a violation of his rights under the constitution. What reasons might such a plaintiff have for seeking such an injunction? For optional background on chokeholds and why they are typically banned by police departments, see Monika Evstatieva & Tim Mak, How Decades of Bans on Police Chokeholds Have Fallen Short, NPR, June 16, 2020. Lyons says that an injunction would have been warranted only if all police officers always use a chokehold against any citizen in any circumstance, or if the City had ordered or authorized the use of unconstitutional chokeholds. What about a third possible circumstance: the City did not permit police chokeholds, but did little or nothing to enforce the ban? In this third possibility, would it matter if there had been a number of instances of the use of chokeholds? If there was a widespread pattern of such instances? Is Lyons a case best explained as (a) the injury being too speculative, or (b) the Supreme Court being concerned about federal courts being too intrusive into the affairs of local police departments? Section II.C.2.b.iii.e (Widely diffused harms): Assume the following facts: Senator Frantz Anani is elected to a six-year term as Senator from the state of Florida in November 2026. In March 2027, Congress votes to approve an increase in the pay of the Supreme Court justices. Anani votes against the pay increase. It takes effect June 1, 2027.      On August 1, 2027, one of the current Justices resigns. On September 1, President Trump nominates Anani to be an Associate Justice to fill a vacancy, and the Senate confirms him on September 15. He is set to resign his Senate seat and take the oath on September 25. Mira Flores, a citizen of Florida, brings an action against Harley seeking to bar him from taking office as an Associate Justice of the Supreme Court. What constitutional provision(s) might pose a problem for Anani’s attempt to take office as Associate Justice? Does Flores have standing to bring the action? Why or why not? If not, is there anyone who would have standing? 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 108) suggest? Are Schlesinger v. Reservists to Stop the War (CB 109) and United States v. Richardson (CB 109-110) consistent with Marbury v. Madison?

Assignments for the week of February 23: Tuesday, February 24: We will complete our discussion of the material in Section II.C.2.b.iii.e (Widely diffused harms) (questions here), and then move on to Sections II.C.2.b.iii.f (de minimis harms), II.C.2.b.iii.g (Prudential Limits on Standing), II.C.3.a (Baker v. Carr, Luther v. Borden), and II.C.3.b (Powell and other cases) Section II.C.2.b.iii.f (de minimis harms) (de minimis harms): Is California v. Texas consistent with Uzuegbunam v. Preczewski, in your view? Why or why not? Section II.C.2.b.iii.g (Prudential Limits on Standing): 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?” The effect of prudential standing doctrine is to allow the federal courts (not just the Supreme Court) to decline to hear a case even though it falls within their Article III jurisdiction and there is no question of any exception to it having been made by Congress. Is it desirable, in your view, that the courts should have that power? Why or why not? Does Lexmark (CB 119) (decided in 2014, ten years after Newdow) mean that there is no long any such thing as prudential limits on standing? With regard to the material in Section II.C.3.a (Baker v. Carr; Luther v. Borden), consider: For Baker v. Carr, be particularly familiar with the paragraph at CB 120-121 (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 140)? How does Luther v. Borden relate to Baker v. Carr? In light of Luther v. Borden, is the Guaranty Clause a meaningless, sham provision in the Constitution? Why or why not? Optional PowerPoints: Note: These PowerPoints are optional. You might find them helpful in understanding the historical context of Luther v. Borden, cited in Baker. Luther v. Borden and the Dorr Rebellion (pdf) With respect to Section II.C.3.b (Powell v. McCormack, Nixon v. United States, Goldwater v. Carter, Zivotofsky, and Constitutional Amendments), consider: What was Powell’s claim (CB 133) 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 uncertainty about whether he was 25 because he had no birth certificate in his possession and all the birth certificates in the county where he was born had been destroyed in a fire. Suppose someone were elected to Congress, and there was a question 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 Gov. Tim Walz (D-Minn.) runs for Senate in 2026, and is elected, but the Senate refuses to seat him on the ground that he is 29 years old. Was Nixon v. United States (CB 131) correctly decided? Is it consistent with Powell? “Pretty much any case that touches on important or controversial foreign relations issues is going to get shown the door under the political question doctrine.” Comment on whether you agree or disagree with this statement, and why. (Consider Goldwater (CB 134) and Zivotofsky (CB 137).) [Note: this is one kind of question you might get on an exam.] How many amendments to the U.S. Constitution are there? Why is this not a simple question of counting? Is Article V a meaningless in light of Coleman (CB 138)? Why or why not? Would Coleman preclude judicial determination of these questions: Does Congress have the power to set a deadline for states to ratify a proposed amendment? Where Congress has set a deadline, does it have the power to extend it? Does Article V require a constitutional convention to be called if there are 34 state Applications, but they raise different subject matters? Note that the constitutional amendment at issue in Coleman would have banned child labor. It took a long and complex struggle in the 20th century to ban it. 1916: Congress approves the Keating-Owen Child Labor Act, which banned the shipment across state lines of goods made with child labor. 1918: The Supreme Court declares the Keating-Owen Act unconstitutional. 1919: Congress approves the Child Labor Tax Law, imposing a 10 percent tax on the profits of companies that employed child labor in industries such as mining or manufacturing. 1922: The Supreme Court declares the Child Labor Tax Law unconstitutional. 1924: Congress approves an amendment to the Constitution giving it power to regulate or ban child labor, and submits it to the states, with no limited period for ratification. As of today, 28 states have ratified it. 1937: In the famous “switch in time that saved nine,” the Court begins to take a more deferential approach to Congress’ views of the scope of federal regulatory power. 1938: Congress approves the Fair Labor Standards Act (FLSA), which, among other things, bans child labor. 1939: Coleman rejects, on political question grounds, a challenge by Kansas state senators to the state’s ratification of the Child Labor Amendment. 1941: The Supreme Court upholds the constitutionality of the FLSA. Thursday, February 26: We will discuss the material in Sections II.D.1 through II.D.2. With regard to Section II.D.1, consider: Make sure you understand the distinction between Supreme Court review by appeal and certiorari. Is the distinction consistent with Article III? Is it consistent with Article III for Congress to draw this distinction? What is the process by which the Court decides whether to grant cert in a particular case? Is the Court bound by the criteria for certiorari set out in Note 2 (CB 151)? What is the purpose of those criteria? What is the precedential significance of a denial of certiorari? Would you support making more categories of cases fall within the Court’s appellate jurisdiction? What effects might such a change have? With regard to Section II.D.2, consider: Consider the various terms used to label what is often called the Court’s “shadow docket”: “shadow docket” “emergency docket” “applications docket” Which term do you think is best to use? Does any one term adequately cover it? Make sure you are familiar with these kinds of applications: Application for a stay of a lower court’s order How, procedurally, are these handled? What is the standard for reviewing such applications? Does the standard in Nken v. Holder apply? What is the source of that standard? Note that some of these applications relate to stays of execution in capital cases. What trends does Goelzhauser see in the disposition of such applications? In the relationship between numbers of such applications and applications in non-capital cases? Applications related to the management of the cert. process (such as an application for an extension of time within which to file a petition for certiorari) “Referred applications” -- i.e., referred to the full Court Substantively, what kinds of matters come before the Court on such applications? In a case where the Court rules on a stay of a lower court order, does its ruling constitute binding precedent? Should it? What criticisms have been made of the Court’s “shadow docket” rulings? What defenses have been made? Does the “shadow docket” put the Court’s legitimacy into question? Why or why not? What is meant by “legitimacy” in this context? With respect to National Institutes of Health v. American Public Health Association: How did the matter come before the Court? Read Justice Jackson’s opinion concurring in part and dissenting in part for an explanation of the Trump Administration action that was challenged; who the plaintiffs were; and what statutory and constitutional provisions the plaintiffs asserted were violated by the government’s actions. In addition, in what lower court was the complaint filed? Where did the government say it should have been filed -- and on what case did it rely? How did the lower court respond to the government’s assertion? What was the lower court’s ruling on the merits of plaintiffs’ complaint? What relief did it order with respect to the grant terminations? How did the lower court and appellate court rule on the government’s request for a stay of the lower court order? Exactly what did the Supreme Court rule on the application for a stay? Keep in mind that four Justices voted to grant the application in full. What would have been the impact of such a determination? Three Justices voted to deny the application in full. What would have been the impact of such a determination? Two Justices voted to grant the application in part and deny it in part. Which part of the lower court’s order was stayed? Which part was not? In what position did this leave the plaintiffs? What criticisms does Justice Jackson make of the substance of the Court’s ruling, including its consistency with the Court’s relevant prior rulings? the manner by which it reached that ruling? What criticism do Justices Gorsuch and Kavanaugh make of the lower courts’ handling of Supreme Court precedent? How did the federal district court judge whose ruling was partially stayed respond? Is this a case where the Supreme Court acted properly to prevent irreparable harm to the government by a lower court order that failed to follow binding precedent, or a case where the Court rushed to decide an issue on the merits without adequate consideration, resulting in an unworkable procedure for handling challenges to termination of government grants? What reforms to the “shadow docket” have been proposed? What defenses have been made to the Court’s practices? What is the significance of Congress’s expansion of the Court’s discretionary docket in 1925 for the current controversy over its “shadow docket,” according to Schmidt? Do you agree with his diagnosis of the underlying problem? Why or why not?

Assignments for the week of February 23: Tuesday, February 24: We will complete our discussion of the material in Section II.C.2.b.iii.e (Widely diffused harms) (questions here), and then move on to Sections II.C.2.b.iii.f (de minimis harms), II.C.2.b.iii.g (Prudential Limits on Standing), II.C.3.a (Baker v. Carr, Luther v. Borden), and II.C.3.b (Powell and other cases) Section II.C.2.b.iii.f (de minimis harms) (de minimis harms): Is California v. Texas consistent with Uzuegbunam v. Preczewski, in your view? Why or why not? Section II.C.2.b.iii.g (Prudential Limits on Standing): 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?” The effect of prudential standing doctrine is to allow the federal courts (not just the Supreme Court) to decline to hear a case even though it falls within their Article III jurisdiction and there is no question of any exception to it having been made by Congress. Is it desirable, in your view, that the courts should have that power? Why or why not? Does Lexmark (CB 119) (decided in 2014, ten years after Newdow) mean that there is no long any such thing as prudential limits on standing? With regard to the material in Section II.C.3.a (Baker v. Carr; Luther v. Borden), consider: For Baker v. Carr, be particularly familiar with the paragraph at CB 120-121 (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 140)? How does Luther v. Borden relate to Baker v. Carr? In light of Luther v. Borden, is the Guaranty Clause a meaningless, sham provision in the Constitution? Why or why not? Optional PowerPoints: Note: These PowerPoints are optional. You might find them helpful in understanding the historical context of Luther v. Borden, cited in Baker. Luther v. Borden and the Dorr Rebellion (pdf) With respect to Section II.C.3.b (Powell v. McCormack, Nixon v. United States, Goldwater v. Carter, Zivotofsky, and Constitutional Amendments), consider: What was Powell’s claim (CB 133) 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 uncertainty about whether he was 25 because he had no birth certificate in his possession and all the birth certificates in the county where he was born had been destroyed in a fire. Suppose someone were elected to Congress, and there was a question 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 Gov. Tim Walz (D-Minn.) runs for Senate in 2026, and is elected, but the Senate refuses to seat him on the ground that he is 29 years old. Was Nixon v. United States (CB 131) correctly decided? Is it consistent with Powell? “Pretty much any case that touches on important or controversial foreign relations issues is going to get shown the door under the political question doctrine.” Comment on whether you agree or disagree with this statement, and why. (Consider Goldwater (CB 134) and Zivotofsky (CB 137).) [Note: this is one kind of question you might get on an exam.] How many amendments to the U.S. Constitution are there? Why is this not a simple question of counting? Is Article V a meaningless in light of Coleman (CB 138)? Why or why not? Would Coleman preclude judicial determination of these questions: Does Congress have the power to set a deadline for states to ratify a proposed amendment? Where Congress has set a deadline, does it have the power to extend it? Does Article V require a constitutional convention to be called if there are 34 state Applications, but they raise different subject matters? Note that the constitutional amendment at issue in Coleman would have banned child labor. It took a long and complex struggle in the 20th century to ban it. 1916: Congress approves the Keating-Owen Child Labor Act, which banned the shipment across state lines of goods made with child labor. 1918: The Supreme Court declares the Keating-Owen Act unconstitutional. 1919: Congress approves the Child Labor Tax Law, imposing a 10 percent tax on the profits of companies that employed child labor in industries such as mining or manufacturing. 1922: The Supreme Court declares the Child Labor Tax Law unconstitutional. 1924: Congress approves an amendment to the Constitution giving it power to regulate or ban child labor, and submits it to the states, with no limited period for ratification. As of today, 28 states have ratified it. 1937: In the famous “switch in time that saved nine,” the Court begins to take a more deferential approach to Congress’ views of the scope of federal regulatory power. 1938: Congress approves the Fair Labor Standards Act (FLSA), which, among other things, bans child labor. 1939: Coleman rejects, on political question grounds, a challenge by Kansas state senators to the state’s ratification of the Child Labor Amendment. 1941: The Supreme Court upholds the constitutionality of the FLSA. Thursday, February 26: We will discuss the material in Sections II.D.1 through II.D.2. With regard to Section II.D.1, consider: Make sure you understand the distinction between Supreme Court review by appeal and certiorari. Is the distinction consistent with Article III? Is it consistent with Article III for Congress to draw this distinction? What is the process by which the Court decides whether to grant cert in a particular case? Is the Court bound by the criteria for certiorari set out in Note 2 (CB 151)? What is the purpose of those criteria? What is the precedential significance of a denial of certiorari? Would you support making more categories of cases fall within the Court’s appellate jurisdiction? What effects might such a change have? With regard to Section II.D.2, consider: Consider the various terms used to label what is often called the Court’s “shadow docket”: “shadow docket” “emergency docket” “applications docket” Which term do you think is best to use? Does any one term adequately cover it? Make sure you are familiar with these kinds of applications: Application for a stay of a lower court’s order How, procedurally, are these handled? What is the standard for reviewing such applications? Does the standard in Nken v. Holder apply? What is the source of that standard? Note that some of these applications relate to stays of execution in capital cases. What trends does Goelzhauser see in the disposition of such applications? In the relationship between numbers of such applications and applications in non-capital cases? Applications related to the management of the cert. process (such as an application for an extension of time within which to file a petition for certiorari) “Referred applications” -- i.e., referred to the full Court Substantively, what kinds of matters come before the Court on such applications? In a case where the Court rules on a stay of a lower court order, does its ruling constitute binding precedent? Should it? What criticisms have been made of the Court’s “shadow docket” rulings? What defenses have been made? Does the “shadow docket” put the Court’s legitimacy into question? Why or why not? What is meant by “legitimacy” in this context? With respect to National Institutes of Health v. American Public Health Association: How did the matter come before the Court? Read Justice Jackson’s opinion concurring in part and dissenting in part for an explanation of the Trump Administration action that was challenged; who the plaintiffs were; and what statutory and constitutional provisions the plaintiffs asserted were violated by the government’s actions. In addition, in what lower court was the complaint filed? Where did the government say it should have been filed -- and on what case did it rely? How did the lower court respond to the government’s assertion? What was the lower court’s ruling on the merits of plaintiffs’ complaint? What relief did it order with respect to the grant terminations? How did the lower court and appellate court rule on the government’s request for a stay of the lower court order? Exactly what did the Supreme Court rule on the application for a stay? Keep in mind that four Justices voted to grant the application in full. What would have been the impact of such a determination? Three Justices voted to deny the application in full. What would have been the impact of such a determination? Two Justices voted to grant the application in part and deny it in part. Which part of the lower court’s order was stayed? Which part was not? In what position did this leave the plaintiffs? What criticisms does Justice Jackson make of the substance of the Court’s ruling, including its consistency with the Court’s relevant prior rulings? the manner by which it reached that ruling? What criticism do Justices Gorsuch and Kavanaugh make of the lower courts’ handling of Supreme Court precedent? How did the federal district court judge whose ruling was partially stayed respond? Is this a case where the Supreme Court acted properly to prevent irreparable harm to the government by a lower court order that failed to follow binding precedent, or a case where the Court rushed to decide an issue on the merits without adequate consideration, resulting in an unworkable procedure for handling challenges to termination of government grants? What reforms to the “shadow docket” have been proposed? What defenses have been made to the Court’s practices? What is the significance of Congress’s expansion of the Court’s discretionary docket in 1925 for the current controversy over its “shadow docket,” according to Schmidt? Do you agree with his diagnosis of the underlying problem? Why or why not?

Assignments for the week of March 2: Tuesday, March 3: We will complete our discussion of the material in Section II.D.2 (questions here) and then move on to Sections III.A (Introduction) III.B (Youngstown). With respect to Section III.A (Introduction), consider: Note: We will read Section III of Levinson & Pildes (Supp. 312-318) later. What did separation of powers mean to the Framers? Consider both the excerpts from the Federalist Nos. 47 & 48 and Levinson & Pildes’ description of what Madison and Hamilton envisioned. Is what they had in mind better described as “separation of powers” or “checks and balances”? Madison thought the legislature was the branch that posed the biggest threat of tyranny. 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? Why, according to Levinson & Pildes, is the conception of separation of powers the framers had in 1787 now “clearly anachronistic” -- in other words, unsuited for today? On the other hand, do Levinson & Pildes believe that there was ever anything realistic to the Framers’ vision? What do they mean when they say “government institutions do not have wills or interests of their own”? What specific factors, according to Levinson & Pildes, made the Framers optimistic? Consider (a) their understanding of how elections would work and (b) the importance of civic republicanism. What, according to Levinson & Pildes, was the fall-back vision in the event that democracy didn’t work out? What critique did Woodrow Wilson make of the U.S. system of government in his academic political science writings? What, according to his critique, made a parliamentary system preferable? In what ways, according to Levinson & Pildes, did the rise of partisan politics “work[] a revolution in the American system of separation of powers”? Consider their analysis of: The first forty years of the constitution Andrew Jackson’s presidency and related changes in how the Electoral College worked in practice Subsequent experience with party separated and party unseparated governments from 1832 to today Were parties themselves always internally unified? What effect did it have on government in periods when one or the other was not? What factors, according to Levinson & Pildes, have contributed to a “revival of strong, unified parties“ today? Consider: the dismantling of the legal regime of Jim Crow segregation in the South; gerrymandering; changes in internal procedures and structures in the House and Senate What functional differences does the presence of divided party government versus unified party government make, according to Levinson & Pildes, in terms of: the efficacy of government the accountability of government to the electorate the willingness of Congress to delegate power to the executive branch executive power How, according to Levinson & Pildes, do these differences show up with respect to: impeachment executive privilege the War Powers Resolution other separation of powers issues With respect to the material in Section III.B (Youngstown): Note: the more extended excerpts from Chief Justice Vinson’s dissent are included because they will also be useful as we go through separation of powers. There is no need to read the much shorter excerpts of his dissent in the casebook. 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? In this respect, consider his rejection of interpretation “based on isolated clauses or even single Articles [of the Constitution] torn from context.” (CB 335, last ¶) Keep this in mind in considering the “unitary executive theory” in connection with Congressional power to limit the President’s power to remove executive officials in cases such as Morrison v. Olsen and Seila Law (in Part III.D (Domestic Affairs) of the Syllabus). Consider also his remark that the Constitution “must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is” (CB 338, 5th full ¶). What does this imply about interpretation of the Constitution? How might this approach relate to the approach taken in Reference re Secession of Quebec? 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? Consider also this remark by Justice Jackson: “We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers” (CB 338, last ¶). What may this imply about the Court’s role in the maintenance of separation of powers in the sense of a balance of powers between Congress and the President? What may it imply about the Court’s role in the balance of powers today? Is foreign constitutional law or international law relevant to the interpretation of the Constitution, in your view? Why or why not? How does Chief Justice Vinson’s approach to detemrining whether the President had the power to seize the steel mills differ from Justice Jackson’s? What, for Chief Justice Vinson, is the significance of Art. II § 1? What, according to him, was the key characteristic the Framers wanted in the presidency? Is his analysis based on a methodology of original intent, or on the notion of a constitution that is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs”? What structural limit does Chief Justice Vinson see to the president’s powers? Note his rejection of what he dismissively describes as the majority’s relegation of the president to a mere messenger. How much better is his characterization of the President’s role in this case as “faithfully execut[ing] the laws by acting in an emergency to maintain the status quo, thereby preventing collapse of the legislative programs until Congress could act” -- an action he says “served the same purpsoses as a judicial stay entered to maintain the status quo”? Thursday, March 5: We completed our discussion of the material in Section III.B (above) and then discussed the material in Sections III.C.1.a (Curtiss-Wright) and III.C.1.b (Dames & Moore; Zivotofsky). With respect to Section III.C.1.a (Curtiss-Wright): What is the separation of powers issue that Justice Sutherland raises at the beginning of his opinion -- an issue he says it is “unnecessary to determine” in this case? According to Justice Sutherland’s opinion, is the Constitution the sole source of the federal government’s power? If it is not, what is the alternate source of power he identifies, with respect to foreign relations? Which branch of the federal government does he say is authorized to exercise those non-constitutional powers? What is the reason he gives for his position? Do you agree with his position? Was it necessary to the holding? With respect to Section III.C.1.b (Dames & Moore; Zivotofsky), consider: 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? As to Zivotofsky: Recall that in 2012, the Court ruled that the question there was not a political question. (CB 137). What is at CB 347 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? 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 March 16: NOTE: For the last part of the course we will use a panel system as indicated below. The members are randomly chosen. Panel members are responsible for the material as designated. If we do not finish discussion of the material you are responsible for on a given day, you will be responsible for that material in the carryover class as well. In addition to those on call for panels, I will take (and am very happy to have) questions or comments from other class members. The aim is simply to broaden class participation while giving class members knowledge of what material they will be called on for. Tuesday, March 17: We discussed the material in Sections III.C.2.a (The Constitution, The War Powers Resolution, and pre-2026 Conflicts) and III.C.2.b (The U.S.-Iran Conflict), and briefly began our discussion of Section III.D.1.b (Immunity from Civil Process, Civil Suit, and Damages). With respect to Section III.C.2.a (The Constitution, The War Powers Resolution, and pre-2026 Conflicts), consider: Panel 1 Material: Please be prepared to discuss the Questions on Section III.C.2.a (The Constitution, The War Powers Resolution, and pre-2026 Conflicts) below. Cercos Guerrero, Sofia Aurora Ciccero, Jonny Diaz, Jillian Marie Folkman, Ethan Craig Jacobsen, Eden M Leyva, Alec M Melwani, Liana V Olin, Joshua Thomas Stevens, Inga J Varanasi, Nagasai M 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 350), constitute a declaration of war under the Constitution (Art. I § 8 cl. 11 (CB xxxix)? What about the authorization for the Second Gulf War (CB 351)? Does it matter? Why or why not? Consider Art. I § 8 cl. 11 (CB xxxix) (the power to declare war). Does the President have the power to veto a declaration of war? Consider these two views: “Presidents have signed declarations of war in the past, but it seems clear from the language of the Constitution that the President cannot veto a declaration, Congress alone having the power to declare war. But obviously the President can veto a statutory authorization.” Philip Bobbit, War Powers: An Essay on John Hart Ely’s War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath, 92 Mich. L. Rev. 1364, 1385 n.69 (1994). “Whether it is a bill, a joint resolution, other legislative action, or a vote, a declaration of war must be presented to the president for consideration and approval.” Andrea L.R. Pillai, Hawks and Doves: Evaluating Presidential Powers and Duties against Congress’s Power to Declare War, 73 Duke L.J. 389, 422 (2023). Suppose for the sake of argument that a president has such power, and vetoed a declaration of war. (Note that in 1896, President Grover Cleveland threatened to veto any declaration of war against Spain. Clinton Rossiter, The Supreme Court and the Commander in Chief 66 n.1 (Richard P. Longaker ed. 1976)). Could Congress, consistent with the Constitution, compel the President to wage war? Impeach the President if he or she did not? (Optional: Clark H. Campbell, Congress-in-Chief: Congessional Options to Compel Presidential War-Making, 9 Am. U. Nat’l Sec. L. Rev. 223 (2019)). What restrictions does the War Powers Resolution (CB 360-362; Supp. 323-327) place on the president’s use of force? In what ways does it bolster presidential claims to use of force without congressional authorization? Make sure you go through the text of thw War Powers Resolution itself; don’t rely just on the description of it in the Casebook. Consider the following sequence of events in the Persian Gulf Crisis (1990) in light of the War Powers Resolution. Significant dates: Aug. 2, 1990: Iraq invades Kuwait 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 (the name given to the U.S. military operation in Kuwait and Iraq to expel Iraqi troops from Kuwait) 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? Is the War Powers Resolution constitutional? Suppose President Bush had refused to seek Congressional authorization for the Second Gulf War (described at CB 350-351). Would that have been an impeachable offense? Why, as a practical matter, did Congress draft the War Powers Resolution § 1544(c) to provide for a concurrent rather than a joint resolution? (See CB 361) Make sure you understand this terminology: 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 xxxviii). Is the proposed Bill “To Prohibit the Conduct of a First-Use Nuclear Strike Absent a Declaration of War by Congress,” Supp. 328-329, 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; or 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? With respect to Section III.C.2.b (The US-Iran Conflict) (discussion by class as a whole), consider: Are the President’s action in conformity with: The Constitution? The War Powers Resolution? What role, if any, does the question of the legality of the U.S. use of force in the US-Iran conflict play in determining the legality of that use of force under US law (constitutional and statutory)? What role should it play, in your view? Thursday, March 19: We will discuss the material in Sections III.D.1.b (Immunity from Civil Process, Civil Suit, and Damages), III.D.1.a (Executive Privilege), and III.D.1.c (Impeachment), and III.D.1.d (Prosecution). Revised! With respect to Section III.D.1.b (Immunity from Civil Process, Civil Suit, and Damages): Panel 2 Material: Please be prepared to discuss the Questions on Section III.D.1.b (Immunity from Civil Process, Civil Suit, and Damages) below. Azel, Joe Alexander Bier, Matthew Reid Cedeno, Mailon Colin, Kyla T Cooper, Amanda Koval, Mia A Renard, Kayla L What significance, if any, should be placed on the fact that the U.S. Constitution expressly addresses immunity with respect to members of Congress, but is silent on that question as to the president? See U.S. Const. Art. I § 6 cl. 1 (CB xxxviii). Compare how immunity issues are handled in the Canadian Constitution (Supp. 5 [Constitution Act, 1867 (Canada), § 18]) and the South African Constitution (Supp. 53 [South African Constitution, § 58]). 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? Suppose a president allegedly commits repeated instances of sexual harassment against a White House employee. The employee resigns, and brings a lawsuit seeking damages against the president for gender discrimination. Would the president have immunity to such a suit? Some civil lawsuits were filed against then former President Trump for damages for inciting the January 6 attack on the Capitol. The D.C. Circuit ruled the acts unofficial, treating them as part of his campaign to win re-election. Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023). Under Harlow v. Fitzgerald (CB 365), lower-level aides to the President enjoy some immunity, but to a lesser extent than the President (i.e., “qualified immunity”) against damages suits for official actions. Why shouldn’t they have the same immunity as the President? Could Congress by statute provide a definition of what is official versus unofficial conduct for purposes of deciding the president’s immunity from civil suit for official actions? Could Congress by statute provide for waiver of or exceptions to the president’s immunity from civil suit for official actions? Trump v. Vance (CB 369): Who was the subject of the Manhattan (New York County) District Attorney Vance’s investigation? For what possible crimes? What arguments would the Manhattan DA give for enforcement of the subpoena? Consider the state law standard for when grand jury subpoenas are warranted, the public interest in grand jury investigations, and the state law safeguards against abuse of the grand jury’s powers (see CB 372). What claim of immunity did President Trump make? What reasons did he give for his position? How did his argument relate to federalism? What reasons did the Court give for rejecting the President’s position? What claim did the federal goverment (as represented by the Solicitor General) make regarding the standard for a state grand jury subpoena of the President’s private papers to be upheld? What reasons did the Court give for rejecting the federal government’s argument? What is the relevance of the history the Court discusses at CB 369-370? With respect to Section III.D.1.a (Executive Privilege), consider: Panel 3 Material: Please be prepared to discuss the Questions on Section III.D.1.a (Executive Privilege) below. Alley, Jackson K Greenip, Jonathan H Harmon, Jolie Innes, Amy Katherine Novo, Sabina A Shore, Max J Srinivasan, Divya 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 United State v. Nixon? Did the Court persuasively distinguish United State v. Nixon in Cheney v. United States District Court (CB 368), or did it significantly expand the scope of executive privilege in Cheney? With respect to Section III.D.1.c (Impeachment) (class; no panel), consider: What are impeachable offenses? Should the standards for impeaching judges and presidents be the same? As an alternative to impeachment, would Congress have the power under the Constitution to censure the president? Is the President subject to indictment? Why or why not? Should the president be immune from prosecution? During his time in office? What about prosecution for crimes alleged to have been committed while in office, after the president leaves office? If the president were impeached by the House and convicted by the Senate, would it be double jeopardy to prosecute him for criminal offenses arising out of the same conduct? What provisions of the constitution in addition to Amendment V (CB xliv) would be relevant? What about the opposite sequence: a sitting president is indicted and tried, and is acquitted. Would he then be immune from impeachment? Consider the following three cases. Did their actions warrant impeachment and removal? Why or why not? President Nixon (not impeached, but resigned in the face of almost certain impeachment) President Clinton (impeached; acquitted in Senate) President Trump (impeached twice, acquitted both times) With respect to Section III.D.1.d (Prosecution), consider: Panel 4 Material: Please be prepared to discuss the Questions on Section III.D.1.d (Prosecution) below. Blemur, Vanessa Carmona, Tomas Foley, Erin E Frankfort, Julia Rachel Gonzalez-Barrera, Ihara Alejandra Gruenwald, Ingeborg Knee, Marlowe Georgia Knyazeva, Kamilla Miller, Kalisia Beth Ann Montero, Nicolas A Schepmans, Melanie E Thomas, Nathan Jay Because there has been no trial, the allegations in the indictment are not proven. The opinions therefore treat the allegations as true in addressing the question whether, and to what extent, a former president has immunity from prosecution. After reading the whole opinion, make sure you know the Court’s rulings on each of the following, as to (a) whether the conduct was official or unofficial, (b) if the former, whether and in what way the president has immunity, and (c) whether there would be a remand to the District Court, and if so, what issues the District Court would need to consider (see Supp. 345-349 (Parts IIIB1-4)): Abuse of federal investigative and prosecutorial powers in relation to State electors: Leveraging the Justice Department’s power to investigate and prosecute to pressure and convince some states to replace legitimate electors with fraudulent slates of electors Threatening to remove the Acting Attorney General for refusing to cooperate in those efforts The January 6 certification and the Vice president Pressuring the Vice President to fraudulently alter the election results Election results for state electors Conspiring to convince state officials that the presidential election results were tainted with fraudulent Conspiring to marshal individuals to assert fraudently to be state electors and sending false certifications to Congress, in order to interfere with the January 6 certification Urging his followers to converge in Washington to press the Vice President to reject certain states’ certifications as part of an effort to be fraudulently certified the winner, and uring the crowd that assembled on January 6 to go to the Capitol and pressure the Vice President to do so Who has the stronger argument -- the majority (Supp. 342-344 (Part IIB1&2)) or Justice Sotomayor (Supp. 358-361 (Parts IVB&C)) -- with regard to the threat to the presidency from the potential for criminal prosecution and the public interest in the potential for criminal prosecution of a former president? Which branch, in your view -- the Court or Congress -- in the best position to determine how to deal with that threat? In this regard, consider the approach taken by the Canadian and South African constitutions (above). Consider the approach the majority takes to immunity, and the dissents’ responses: First, the majority states that there is no immunity for unofficial acts (Supp. 344). How much does this narrow the immunity accorded to former presidents? Note that in differentiating official from unofficial acts, the majority holds that motive is irrelevant (Supp. 345). Justice Sotomayor replies that given this ruling, “even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent[] remains official and immune” (, and asserts that this narrows the division between official and unofficial acts “almost to a nullity” Supp. 358). Who has the better argument, in your view? Second, the president has absolute immunity as to “the exercise of his core constitutional powers” (Supp. 341) What criticisms does Justice Sotomayor make of the “core constitutional powers” concept in general -- and of its relevance to the case before the Court? (Supp. 361-363) (Part V)? What is Justice Jackson’s critique of this concept? (Supp. 366-367). Are the core constitutional powers a relatively broad set or a narrow one? How do they relate to the actions covered by the indictment? Third, the president has “presumptive immunity” if his acts fall “within the outer perimeter” of his official powers. Where this is such presumptive immunity, it is up to the prosecution to “show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch’ (Supp. 344) Sotomayor (Supp. 357-361 (Part IV)) responds that the majority’s approach “replace[s] a presumption of equality before the law with a presumption that the President is above the law for all his official acts” and assumes that the President is “incapable of navigating the difficult decisions his job requires while staying within the bounds of the law” (Supp. 358). What reasons does she give for this criticism? Who has the better argument, in your view? Fourth, in prosecutions for acts as to which there is no immunity, evidence of official conduct as to which there is immunity may not be introduced in support of the prosecution. (Supp. 349 (Majority, Part IIIC)). What reasons does the majority give for this limitation? What do you make of Justice Sotomayor’s criticism, including the hypothetical she poses Supp. 363 (Sotomayor dissent, Part VI))? Note that Justice Barrett does not join in Part III.C (Supp. 352-344). Does this mean that this section is not a majority opinion? Consider also her reasons for not joining it. In what ways is there overlap with Justice Jackson’s approach? In what ways is there a difference? Consider the approaches to constitutional interpretation taken by the majority and the dissents: Both the majority (Supp. 341-342 (Part IIA), and Supp. 351-352 (Part IVC) and Justice Sotomayor (Supp. 355) begin with the text, but they look at entirely different sets of provisions and draw different conclusions. Justice Sotomayor denies that the majority even considers the text (Supp. 355) (“For the majority, that ‘careful assessment’ [of the Constitution] does not involve the Constitution’s text”). What do you make of these differences? Is the majority or Justice Sotomayor more on point, in your view? Both the majority (Supp. 342-343 (Part IIBI)) and Justice Sotomayor (Supp. 356-358) also look at historical and contempory practice and established understandings or Court rulings in related areas. Here, too, what they see as relevant differs significantly. What do you make of these differences? Is the majority or Justice Sotomayor more on point, in your view? The majority (Supp. 342-344 (Part IIB1&2)) relies heavily on a structural approach to reach its conclusion that “an Act of Congress -- either a specific one targeted at the President or a generally applicable one -- may not ciminalize the President’s action within his exclusive constitutional power” (Supp. 342). What is Justice Sotomayor’s critique of that approach (Supp. 358-361 (Parts IVB&C))? Justice Jackson takes an approach analogous to that taken by the Canadian Supreme Court in the Reference re Secession of Quebec case, beginning with what she calls “foundational presuppositions” that “are reflected in ... an individual accountability model” (Supp. 365), and drawing inferences from it. Notice, too, that in both cases something immensely important was at stake, and that just as there was nothing expressly regarding provincial secession in the Canadian constitution, there is nothing expressly regarding presidential immunity in the U.S. constitution. Does this context make her approach (and the Canadian Supreme Court’s) more important? Misguided? Does the majority’s invocation of a president’s “core constitutional powers” (Supp. 341), as to which there is absolute immunity, and “separation of powers principles” (Supp. 344), which dictate presumptive immunity for acts within the “outer perimeter” of the president’s official responsibilities, amount to a similar approach to the Canadian Supreme Court’s? Why or why not? What was the status quo before the Court’s decision? The majority treats the prospect of former presidential indictment and prosecution as virtually nil, with a long solidified practice of no prosecution (Supp. 342-343) Justice Sotomayor argues that because of long-standing Executive branch interpretations, “every sitting Presidnt has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office.” (Supp. 357, 360) Which do you think better describes the status quo before the Court’s decision? Note that in response to the dissents’ concerns that presidential immunity will seriously undermine the rule of law and democracy (for example, Justice Sotomayor’s concern about “a law-free zone around the President, upsetting the status quo that has existed since the Founding,” (Supp. 364) the majority posits the prospect of an “enfeebling of the Presidency and our Government” that would result from a lack of presidential immunity: “an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.” (Supp. 351); see Justice Sotomayor’s response at Supp. 358-360 (Part IVB1). Underlying each scenarios are broad concerns about the nature of politics and democracy, and about political incentives or disincentives that might shape the behavior of presidents. Suppose you thought it were unclear which of those two scenarios is the more likely. Is this a matter determined by the Constitution? Is this a matter that the Court is better suited to decide, or Congress? Why? Recall the idea that every separation of powers case is also a case about the Supreme Court’s own powers. How, according to Justice Jackson, does the Court’s holding significantly enhance its own powers, replacing “the Rule of Law” with “the rule of judges”? See Supp. 366-367. Do you agree with concern that it is the Court that decides what conduct is off limits to the President, whereas it is Congress (through federal criminal law) that decides it for everyone else? Why or why not? After the election, Special Counsel Jack Smith sought dismissal of two indictments (the one at issue in Trump v. United States and a separate one regarding Trump’s retention of classified documents after Biden became president). The basis for the request was a long-standing Justice Department policy that it would not bring charges against a sitting president. See Special Counsel’s Last Criminal Case against Trump Dismissed, BBC, Nov. 26, 2024. Suppose Justice Sotomayor’s opinion were the majority opinion. Would that mean a sitting president could also be indicted? How significant is the Court’s rejection of the position that a failure to be convicted in the Senate on impeachment charges immunizes a former president from indictment and prosecution on the matters covered by the impeachment? (Supp. 350 (Part IVA) (majority)); (Supp. 361 (Part IVC) (dissent)).

Assignments for the week of March 23: Tuesday, March 24: We will comlete our discussion of the material in Section III.D.1.d (Prosecution) and then go on to Sections III.D.2.a (Nondelegation Doctrine), III.D.2.b (Independent Agencies), III.D.3.a (Chadha), and III.D.3.b (Morrison v. Olson). III.D.1.d (Prosecution): You can find the questions here. Panel 4 Material: Please be prepared to discuss the Questions on Section III.D.1.d (Prosecution). Blemur, Vanessa Carmona, Tomas Foley, Erin E Frankfort, Julia Rachel Gonzalez-Barrera, Ihara Alejandra Gruenwald, Ingeborg Knee, Marlowe Georgia Knyazeva, Kamilla Miller, Kalisia Beth Ann Montero, Nicolas A Schepmans, Melanie E Thomas, Nathan Jay With respect to III.D.2.a (Nondelegation Doctrine): Panel 5 Material: Please be prepared to discuss the Questions on Section III.D.2.a (Nondelegation Doctrine) below. Bonjawo, Joseph E Fernandez, Andy Golbarg, Nikki M Kaminsky, Ella B Riancho, Yaneli Stevens, Inga You may find these PowerPoint slides on Non-delegation (pdf) helpful in understanding the material, particularly as to what is at stake in terms of separation of powers. Suppose Congress authorized the federal Securities and Exchange Commission (SEC) to “regulate cryptocurrency futures 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 342-343)? Would it be a serious issue today? What was the non-delegation issue in Gundy (CB 378)? How did the Court interpret SORNA as to the question of whether the sex offender registration requirements would apply to persons convicted of sex offenses before SORNA came into effect? As empowering the U.S. Attorney General to make that decision? or -- As giving the U.S. Attorney General some discretion as to how quickly to make SORNA’s registration requirements applicable to persons convicted of sex offenses before S Do you agree or disagree with Justice Gorsuch’s proposed test for revitalizing the non-delegation doctrine propose? Revisit the questions above about the SEC and Curtiss-Wright above. How would they come out if Justice Gorsuch’s dissenting opinion had been the majority opinion? Consider this cautionary note about Justice Gorsuch’s dissent in Gundy: Combined with the sheer number of statutes that use a general standard, the lack of clarity in the doctrine could open the floodgates to thousands of lawsuits. Additionally, litigants may raise a nondelegation issue more frequently. Criminals convicted under administrative rules established under now-suspect laws might hurriedly challenge their sentences. Companies seeking to avoid liability or regulation could preemptively dispute the ability of regulatory bodies, such as the Securities and Exchange Commission, the Federal Reserve, and the Consumer Financial Protection Bureau. Alternatively, they may delay litigation for years, raising challenges to each of the statutory provisions that governs the case. Agency actions might be chilled. Unable to know if their regulations will be upheld, bound by a test without clarity, and without the financial resources to fight every lawsuit, administrative bodies may forgo issuing major regulations altogether. Hall, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 205-206 (2020) In his dissent in Gundy, Justice Justice Gorsuch sets out a vision of the proper role of federal regulation. He says that laws should: Be few in number Be the product of widespread social consensus Be likely to protect minority interests Provide stability Provide fair notice To what extent do you agree or disagree with this vision as an ideal form of governance? To what extent do you agree or disagree with an assertion that the vision of governance Justice Gorsuch expounds is mandated by the Constitution? Compare Madison’s 1787 memorandum setting out what he saw as the defects of the Articles of Confederation (CB 3-5) -- in particular the “evils” of the “Multiplicity of the Laws in the Several States” (¶ 9). Does this provide compelling evidence for Justice Gorsuch’s vision under an originalist approach to constitutional interpretation? Why or why not? With respect to Section III.D.2.b (Independent Agencies) (discussion by class as a whole), consider: If you are not generally familiar with independent agencies in the federal government, in addition to the links on the Syllabus page you should consult the optional materials listed in the Introduction to Part III of the Syllabus. Limitations on the president’s power to remove executive officials as a means of controlling the effects of delegation of legislative power to the president: 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 386) 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 387) with Myers (CB 386)? 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. Note: The following table may be helpful in thinking through the different ways to reconcile Humphrey’s Executor and Myers:   Limitation on Removal Is ...   Constitutional     Unconstitutional Test 1: Is the position is “purely executive?” Humphrey’s Executor Myers Test 2: Is Congress involved in removal? Humphrey’s Executor Myers Suppose Congress passed a law providing that the President can fire the Attorney General or the Secretary of Agriculture only for cause. What arguments would there be for and against the constitutionality of such a provision, considering only Myers and Humphrey’s Executor? Consider the Court’s remarks about the removal power in Trump v. United States (Supp. 341-342 (Part II.A.) and Supp. 345-346 (Part III.B.1)) -- for example, “the President’s power to remove ‘executive officers of the United States whom he has appointed’ may not be regulated by Congress or reviewed by the Courts” (Supp. 346). What implications might these parts of the Court’s opinion in Trump v. United States have for the continued viability of Humphrey’s Executor? Suppose you are the district court judge to whom the lawsuit brought by the fired NLRB Board member, Wilcox v. Trump, has been assigned (see Supp. 282-283). Attorneys for the President move to dismiss the complaint, arguing that under Article II, “the President’s power to remove ‘executive officers of the United States whom he has appointed’ may not be regulated by Congress or reviewed by the Courts.” Assuming all procedural requirements for the motion have been met, how do you rule? On what basis? With respect to Sections III.D.3.a (Chadha) and III.D.3.b (Morrison v. Olson), consider: Panel 6 Material: Please be prepared to discuss the Questions on Sections III.D.3.a (Chadha) and III.D.3.b (Morrison v. Olson) below. Bishop, Monty Houvardas, Emmanuel Trifon Ivanova, Ekaterina R Kovacs, Kendall A Laguerre, Garaudy Pedroza, Valeria Rasco, Stephan Loys Watts, Chelsea Monique 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? 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? Thursday, March 26: We will discuss the material in Sections III.D.4.a (Administrative Agency Structure) and III.D.4.b (Non-Delegation Doctrine; Major Questions Doctrine). Note that Section III.D.4.c (The End of Chevron Deference) is Optional. With respect to Section III.D.4.a (Administrative Agency Structure), consider: Panel 7 Material: Please be prepared to discuss the Questions on Section III.D.4.a (Administrative Agency Structure) below. Barreiro, Sofia V Chernawsky, Sami Ryann Ilter, Cumhur Jenkins, Katarina Eloise Menne, Devyn E Sharma, Ambika Devi West, Heather Grayson Zacher, Liesl M. Note that the Seila Law case was brought during the Obama Administration, with the Ninth Circuit rendering its decision shortly before President Trump’s first inauguration. The Ninth Circuit rejected Seila Law’s challenge to the constitutionality of the CFPB’s structure. Before the Supreme Court, the Trump Administration did not defend its constitutionality. The Court then appointed Paul Clement, a former U.S. Solicitor General, to defend the Ninth Circuit ruling -- rejecting a request by lawyers representing the House of Representatives that they be appointed to defend the Ninth Circuit’s judgment. Is it proper for a President to refuse to defend the constitutionality of a federal statute before a court? Why or why not, in your view? Optional. Was there a standing problem in Seila Law? Seila Law claimed that the civil investigation demand directed to it in 2017 was illegal, because the demand was initiated by an agency that was unconstitutionally structured; that was because (Seila Law said) Congress had unconstitutionally limited the President’s power to remove the head of the CFPB. The head of the CFPB, an Obama appointee, resigned in November 2017, and President Trump appointed a new head. The new head of the CFPB took the position that President Trump had the power to remove her at will; she also continued with the investigation into Seila Law. Is there a redressability issue here? On what does the Court base its ruling that the president’s power to remove executive power cannot, subject to very limited exceptions, be limited by Congress? Why, according to the Court, did Humphrey’s Executor and Morrison v. Olson (as well as a case we are not covering, United States v. Perkins) not suffice to support the constitutionality of Congress’s determination that the head of the CFPB be removable only for cause? Should it count against the constitutionality of Congress’s limitation that it was (according to the Court) unprecedented, a “historical anomaly”? Recall that in Youngstown, Justice Frankfurter argued that a long practice could create a historical “gloss” on the Constitution. Can an absence of practice create a negative gloss? Should it? What about the Constitution’s structure in general, according to the Court, weighs against the for-cause limitation? Consider the majority’s remark that the “Framers deemed an energetic executive essential” to national security, the administation of the laws, protection of property, and personal liberty. CB 401. If we take this as an invocation of original intent: Does it square with Madison’s description of the presidency in Federalist No. 47 as an “ executive magistracy ... carefully limited, both in the extent and the duration of its power”? (CB 332) Assuming the correctness of the majority’s view that the Framers intended an energetic presidency, how energetic did they want it to be? Consider that the status quo they were seeking to change was a government completely lacking in an executive. Why should it matter whether the agency in question is headed by a single director rather than by a commission? Considering both the majority opinion and the dissents, would you see them as indicating that Humphrey’s Executor will be overruled in the next few years? Why or why not? Should the Court overrule Humphrey’s Executor ? Why or why not? What would be the impact of overruling that case? On what does Justice Kagan, in dissent, base her charge that the “Court today fails to respect its proper role” (CB 403)? Is Collins a “straightforward application” of Seila Law (as the majority states, CB 403)? Or is it an “extension of Seila Law’s holding” (as Justice Kagan’s opinion states, CB 403)? Why does this matter? With respect to III.D.4.b (Non-Delegation Doctrine; Major Questions Doctrine), consider: Panel 8 Material: Please be prepared to discuss the Questions on Section III.D.4.b (Non-Delegation Doctrine; Major Questions Doctrine) below. Cabrera, Amelie Michelle Furtado, Paula De Almeida Lemos Grogins, Michael Alexander Kitchin, Natalya A Mandell, Riley Nyvlt, Alexander Jean Quevedo, Vivi Isabel Rayburn, Mary Beth F Sellers, Alexandria Fawn Sokol, Jonathan D Making your way through the opinion: Note that the Court, reflecting its general practice, issues the justices’ opinions in this order: The opinion announcing the judgment of the Court and (as to some parts of that opinion), the opinion of the Court: Chief Justice Roberts Concurrences in the opinion of the Court, by seniority Justice Gorsuch Justice Barrett Concurrences in part in the opinion of the Court and concurrence in the judgment, by seniority Justice Kagan Justice Jackson Dissents, by seniority Justice Thomas Justice Kavanaugh This order does not make for the easiest reading, because -- to take one example -- Justice Gorsuch’s responses to Justice Barrett come before her opinion. The following questions are intended to help you make your way through the opinions: What foreign threats did President Trump identify as the basis for his imposition of tariffs? What effect did he say those threats had had on the U.S.? What steps was he statutorily required to follow in order to invoke IEEPA? What is the Court’s holding as to whether or not IEEPA authorized the president’s imposition of tariffs and as to the rationale for its holding? What does the opinion of the Court hold as to whether IEEPA authorized the president’s imposition of tariffs? What is the basis of that opinion? What disagreement do Justices Kagan, Sotomayor, and Jackson have with the Chief Justice Robert’s opinion? What separate point does Justice Jackson make? What reasons might Justices Kagan and Sotomayor have for not joining in her separate concurrence? Precisely what points of disagreement does the principal dissent (Justices Kavanaugh, Thomas, and Alito) have with Chief Justice Robert’s opinion? With Justice Kagan’s opinion? Note that six members of the Court (which six?) believe that as a matter of statutory interpretation, IEEPA does not authorize the president’s imposition of the tariffs he imposed, saying that tariffs are not a means to “regulate ... importation.” Three members (which three?) conclude that the IEEPA “clearly” does authorize the tariffs. Note that six members of the Court assert that the major questions doctrine is justified in general (or perhaps it is more accurate to say that five take this position, with Justice Barrett agreeing so long as the MQD does not become a Court-imposed “’clarity tax‘ on Congress” (see Supp. 423). (See also Justice Gorsuch’s response that the MQD “is a ‘dice-loading’ rule, plain and simple,” Supp. 419.) Note further that six members decline to apply the MQD in this case; these six are divided into two three-member blocks with different reasons for declining to apply it. Make sure you can identify who is in what group. Note: you need not memorize which justice joined which opinion. The point of identifying them is to help you understand the different issues raised in the course of the Court’s decision and the reasons why the Court is divided over the basis of its rejection of IEEPA as a ground for the imposition of tariffs. What are the arguments for the view that, as a matter of statutory interpretation, IEEPA authorized the imposition of tariffs? What are the arguments against the position? Which view is correct, in your view? What is the Major Questions Doctrine? In what ways are the MQD and Non-Delegation Doctrine related? In what ways are they different? If the Court were to revive non-delegation doctrine, would the MQD have any role? How is applying the MQD to decide whether the president had the authority under IEEPA to impose the tariffs different from deciding as a matter of statutory interpretation that the president did not have the authority under IEEPA to impose the tariffs? What criticisms of the MQD does Justice Kagan make of the MQD? What concerns does Justice Barrett express about it? What responses to Justice Kagan’s reasons for not applying MQD do Chief Justice Roberts and Justice Gorsuch make? Who has the better argument, in your view? On what bases does Justice Kavanaugh, in dissent, argue that the MQD is inapplicable? What does he mean in charging the majority with imposing a “magic words” test? In addition, what is, for him, the significance of considering the imposition of tariffs to involve foreign affairs? What responses do the majority and Justice Kavanaugh make? Who has the better argument, in your view? How does Justice Thomas’s analysis of the issues differ from Justice Kavanaugh’s?

Assignments for the week of March 30: Tuesday, March 31: We completed our discussion of the material in Section III.D.4.b (Non-Delegation Doctrine; Major Questions Doctrine) (questions and Panel 8 assignments here), and then begin our look at federalism with Sections IV.A.1 (Functions of Federalism), and IV.A.2 (Styles of Constitutional Drafting). With regard to Section IV.A.1 (Functions of Federalism), consider: Panel 9 Material: Sections IV.A.1 (Functions of Federalism) and IV.A.2 (Styles of Constitutional Drafting) Koval, Mia A Gruenwald, Ingeborg Montero, Nicholas A Knee, Marlowe Georgia Houvardas, Emmanuel Trifon Kovacs, Kendall A Ivanova, Ekaterina R Pedroza, Valeria What values does federalism promote? Do these values mandate any particular balance between state and federal power? Is federalism in tension with other values important under the constitution? How does the idea of enumeration of powers (i.e., that the federal government has only those powers enumerated in the Constitution, whereas the states each have all the general powers of government that governments can have, except as limited by the U.S. Constitution) fit in with federalism? To what extent should the federal-state balance be handled largely by Congress? To what extent should the Supreme Court take an active role in enforcing its own conception of the proper constitutional balance? Note Madison’s view in Federalist Nos. 45 & 46 (CB 155, 166-167) that the political process will largely protect the role of the states from being overwhelmed by the federal government. On what does he base this claim? What significance does this have for contemporary questions about the proper scope of federal versus state regulatory authority? Consider Madison’s remark in Federalist No. 46 (CB 155): If, therefore, [the] people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due...” This might suggest that he believed that the apprpropriate balance should be politically determined anew by each generation. Should that matter in the courts’ approach to federalism issues? Consider the remainder of Madison’s remark in Federalist No. 46 (CB 155): “[B]ut even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.” Does this suggest that he contemplated some unchanging limits on federal power vis-a-vis the states? Should that matter in the courts’ approach to federalism issues? Consider that originally, the Constitution provided that each state would have two Senators, and that the Senators from each state would be “chosen by the Legislature” of the state. Art. I § 3 cl. 1. The election of the Senators by the state legislatures might be thought to make the Senate more responsive to state interests. The 17th Amendment, adopted in 1913, provided for direct election of Senators. It is possible that this change might weaken political support within Congress for protection of states’ interests. (One not uncommon conservative proposal is to repeal the 17th Amendment as a way of strengthening states’ role in governance.) Should we regard the 17th Amendment: As calling for a stronger judicial role in protecting federalism? As a sign that the people (and the states as well, since they ratified the amendment) regard protection of federalism as secondary to democracy? As a sign that in adopting the 17th amendment, the people believed that federalism would be adequately protected by the Senate even after direct election was instituted? With respect to Section IV.A.2 (Styles of Constitutional Drafting): Review the assigned provisions of the U.S., South African, and Canadian constitutions: CB xxxix (Art. I § 8 cl. 3 (commerce clause)); CB xlvi (Art. VI § 2 (supremacy clause)) South African Constitution, § 44, Supp. 49-50; Schedules 4 & 5; Supp. 102-104; §§ 146-150, Supp. 74-75 Constitution Act, 1867 (Canada), Art. VI (with main focus on §§ 91, 92), Supp. 14-17; Constitution Act, 1982, § 52, Supp. 35 What differences in approaches to constitutional drafting do you see in each of the three constitutions with respect to (a) the question of federal versus state or provincial authority, and (b) the supremacy of the constitution and federal law? Which approach to drafting do you think is the best? Suppose during a pandemic the national legislature in each of the three countries (U.S., South Africa, and Canada) enacts a statute providing, during the period of the pandemic, that employers with at least 100 employees must require those employees either to be vaccinated against COVID-19, or to take a weekly COVID-19 test and wear a mask at work. Looking solely at the text of the three constitutions, would the national government have the power to enact such a statute? Suppose the statute in question is enacted not by the national legislature, but by the legislature of a particular state or province? Would the state or provincial government have the power to do so? If there was both a nationwide statute and provincial/state statute, and the two conflicted, which would prevail under the text of each of the three constitutions? Thursday, April 2: We discussed the material in Sections IV.B.1 (The Commerce Clause: First Era) and IV.B.2.a (Commerce Clause: Second Period). With respect to Section IV.B.1 (Commerce Clause: First Period): Panel 10 Material: Please be prepared to discuss the Questions on Section IV.B.1 (Commerce Clause: First Period) below. Chernawsky, Sami Ryann Sharma, Ambika Devi West, Heather Grayson Menne, Devyn E Pocock, Emily C Sutnick, Matthew S Smit, Gabriela 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 154-155)? Is the Seventeenth Amendment a reason to reconsider Marshall’s view? What about the Fourteenth Amendment? Where does Gibbons stand in terms of the forms of federalism (Note 9, CB 158-159)? 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 166-167) suggest? The excerpt of The Federalist No. 46 (CB 167-168)? 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 49)? How does its approach relate to Madison’s arguments in the Federalist Nos. 45 & 46 (CB 166-168)? With respect to the relationship between personal liberty and federalism, take note of Question (b) in Note 6 (CB 157), asking whether it makes sense to be concerned that federal legislation in excess of delegated power might threaten individual liberty if the same legislation could be constitutionally enacted by states. It will be important in our look at NFIB v. Sebelius (Section IV.B.4.a.ii). How does Marshall’s comment about pretext in McCulloch (CB 55, first ¶) relate to Congress’s commerce clause power? With respect to Section IV.B.2.a (Commerce Clause; Second Period): Panel 11 Material: Section IV.B.2.a (Commerce Clause: Second Period) Robbins, Alec Lerner Carrasco, Melanie M Harris, Audrey T Lorenzo-Luaces III, Lorenzo Lopez, Christopher I Pacia, Francis S Bratter, Maximo P Fischer, Jacob 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 in 1933 (i.e., during the era from the late 19th century up to 1937) Congress had enacted a law requiring dry cleaning stores to dispose of dry cleaning liquids according to federally mandated standards to prevent them from polluting the ground water. Dry cleaning fluids then (as now) typically contained chemical solvents that are hazardous to human health and to the environment. For an example of the environmental hazards of dry cleaning chemicals, see Decades of unfettered pollution from dry cleaners have caused a quiet disaster in California, USC Annenberg Center for Health Journalism, 2/6/24; Cancer-Causing Chemical PCE Contaminates Colorado Soil, Water and Homes, Denver Post, 2/9/14 (both optional). Suppose, further, that a dry cleaning shop in the middle of Texas challenges the statute as unconstitutional. How would the Court have analyzed the issue in this second period? 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: 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: Is what’s being regulated “commerce”? (E.C. Knight, Carter Coal) 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) Is the rule on disposing of the toxic wastes a “regulation” of commerce? (Champion) 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))

Assignments for the week of April 6: Tuesday, April 7: We will complete our discussion of the material in Section IV.B.2.a (Commerce Clause: Second Period) (questions and Panel assignment here), and then move on to Sections IV.B.3.a (Commerce Clause: Third Period: Jones & Laughlin, Darby and Wickard), IV.B.3.b (Later Commerce Clause Cases, Third Period). With respect to the material in Section IV.B.3.a (Commerce Clause: Third Period): Panel 12 Material: Section IV.B.3.a (Commerce Clause, Third Period [Jones & Laughlin, Darby, Wickard]) Tagle, Derek William Kaner, Elizabeth Talarico, Natalie Zoland, Aaron Josefsberg, Ethan H Cabrera, Amelie Michelle Riancho, Yaneli Rayburn, Mary Beth F Foley, Erin E 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? Thursday, April 9: We will complete our discussion of Section IV.B.3.a (Commerce Clause, Third Period [Jones & Laughlin, Darby, Wickard]) (questions and panel above), and then move on to Sections IV.B.3.b (Later Commerce Clause Cases, Third Period), and IV.B.4.a.i (Fourth Era: Lopez). Revised! With regard to Section IV.B.3.b (Later Commerce Clause Cases, Third Period), consider: Panel 13 Material: Section IV.B.3.b (Later Commerce Clause Cases, Third Period) Jacobsen, Eden M Kovacs, Kendall A Harmon, Jolie Miller, Kalisia Beth Ann Josefsberg, Ethan H Bier, Matthew Reid Sharma, Ambika Devi Gruenwald, Ingeborg Shore, Max J Renard, Kayla L Melwani, Liana V Kaminsky, Ella B Lorenzo-Luaces III, Lorenzo 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 184-185). In Perez (CB 190), 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 Section IV.B.4.a.i (Fourth Era: Lopez): Panel 14 Material: Section IV.B.4.a.i (Fourth Period: Lopez) Knyazeva, Kamilla Alley, Jackson K Mandell, Riley Innes, Amy Katherine Houvardas, Emmanuel Trifon Thomas, Nathan Jay Pocock, Emily C Varanasi, Nagasai M Sutnick, Matthew S Smit, Gabriela Lopez, Christopher I Gonzalez-Barrera, Ihara Alejandra Zoland, Aaron Note that with respect to the Court’s summary of “three broad categories of activity that Congress may regulate under its commerce power” (CB 194), the Court cited the following cases, among others, as illustrating the power of Congress to: “regulate the use of the channels of interstate commerce” Darby (CB 187), Heart of Atlanta (CB 190) “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce even though the threat may come only from intrastate activities”: Shreveport Rate Cases (CB 174); Perez (CB 190); “regulate those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce”: Jones & Laughlin (CB 184). For each of the three categories, think about how the facts of the cases cited as precedent relate to the particular category for which they are cited. In banning possession of guns in school zones, what activity was Congress regulating: Possession of a gun? Gang activity in schools? Education? Something else? Are any of these activities economic or commercial activities? Suppose an activity has an economic/commercial dimension and non-economic/non-commercial dimensions. Can it be an economic/commercial activity under Lopez? Does the impact of the possession of guns in school zones 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 eighth paragraph of the opinion (CB 194) (paragraph beginning “Section 922(q) is a criminal statute”) in what is deleted in the ellipsis at the end of the paragraph: “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 196, first full paragraph, what is deleted in the ellipsis at the end of the paragraph 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 196? 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? Process: After Lopez, as CB 201 notes, Congress amended the act to include an express interstate commerce requirement: “It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.” The new version also includes the Congressional findings that “crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs,” “firearms and ammunition move easily in interstate commerce” “even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce” violent crime in schools has harmed the quality of education, and that decline has an adverse impact on interstate and foreign Commerce states find it almost impossible to handle violent crime on their own Does Congress’s inclusion of these findings in the post-Lopez revision amount to defiance of the Court? If these findings had been included in the original statute, would the Court have upheld the act? Should it have?

Assignments for the Week of April 13: Please make sure you fill out the course evaluation form for this course. It is very helpful to have your thoughts and comments. The evaluations are on an anonymous basis. In addition, I don’t get them until after final grades are turned in. The deadline for filling them out is 11:59 pm Friday, April 17. Tuesday, April 14: We will complete our discussion of the material in Section IV.B.4.a.ii (Fourth Era: Lopez) (questions and panel here), and then discuss the material in Sections IV.B.4.a.ii (Morrison and Raich & Comstock), and IV.B.4.a.iii (Health Care) and begin our discussion IV.B.4.b. (Commandeering). With respect to the material in Section IV.B.4.a.ii (Morrison, Raich & Comstock), consider: (no panel; class as a whole) How would Morrison come out under: The Court’s case law from the New Deal era to 1995 (when Lopez was decided)? 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 in Morrison, Chief Justice Rehnquist rejects Congress’s findings in part because they rest on a “but-for causal chain” (CB 200) 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” -- rather than “mediate,” “remote,” or “collateral” -- effect on commerce? How, if at all, is the test in Morrison different from the Court”s notion of a “direct” rather than “indirect” relation in Carter Coal (see top of CB 181-182)? To what extent do Morrison and Lopez potentially undermine Heart of Atlanta and Katzenbach v. McClung? Does it require piling inference upon inference to see a connection between refusals to serve African-Americans at Ollie’s Barbecue 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? With respect to Section IV.B.4.a.iii (Health Care): Panel 15 Material: Section IV.B.4.a.iii (Health Care) Grogins, Michael Alexander Frankfort, Julia Rachel Harris, Audrey T Watts, Chelsea Monique Blemur, Vanessa Cooper, Amanda Kaner, Elizabeth Robbins, Alec Lerner Rasco, Stephan Loys Sellers, Alexandria Fawn Ivanova, Ekaterina R Sokol, Jonathan D Diaz, Jillian Marie By way of background, the ACA enacted the following regulations and provisions: Insurers could no longer refuse to sell health insurance to someone with a pre-existing medical condition (e.g., diabetes) Community rating: premiums must be based on the average risk of the population in a given area; insurers are not allowed to charge higher premiums to individuals based on their specific health condition Insurers must allow parents to include their children up to age 26 on their family health care insurance Mandates: Employers above a certain size (50 full-time employees) must make group health insurance plans available to their employees Subject to certain exceptions, individuals must have health insurance. For individuals below a certain income, but not eligible for Medicaid, the federal government provides subsidies to cover or help cover the cost of the insurance policy. On-line exchanges were set up -- either by the state, or if a state chose not to, the federal government -- where individuals could purchase health insurance. Medicaid, a federal program that provides funds to states to create a health insurance for low-income persons, was expanded to include single individuals without children, and income-level eligibility was expanded to include more people. 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 do any of the following? Could a state? Purchase broccoli? Eat broccoli? Sell land she owned to a developer (as in Kelo v. City of New London)? Note: There is no requirement that you read Kelo. It is an example of the use of eminent domain, by which the government can force an individual to sell their property, either to the government or to another private individual. Chief Justice Roberts remarks (CB 208, fourth full ¶) 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? Thursday, April 16: We will complete our discussion of the material in Section IV.B.4.a.iii (Health Care: The Individual Mandate), and then move on to Sections IV.B.4.b (Commandeering), IV.C.1.a (Butler, Steward Machine, Dole) and IV.C.1.b (Health Care: Medicaid Expansion). Note that the material in Section IV.C.2 (The Taxing Power) is marked optional on the Syllabus. I will say a few words about it, but it will not be covered on the final exam. With respect to the material in Section IV.B.4.b (Commandeering): Panel 16 Material: Section IV.B.4.b (Commandeering) Bishop, Monty Fernandez, Andy Azel, Joe Alexander Cedeno, Mailon Koval, Mia A Bonjawo, Joseph E Tagle, Derek William Srinivasan, Divya Knee, Marlowe Georgia Golbarg, Nikki M Jenkins, Katarina Eloise Bratter, Maximo P Kitchin, Natalya A 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’ criticism of the majority in Printz (CB 324) 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 xl). 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 set out at the top of CB 365 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 xliii). 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 (CB 322) 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? In Comstock (CB 328), 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? What is your response to the questions at CB 326 (“Is the action/inaction distinction really meaningless with respect to commandeering? Does Murphy significantly expand the doctrine?”) With respect to the material in Section IV.C.1.a (Butler, Steward Machine, Dole): Panel 17 Material: Section IV.C.1.a (Butler, Steward Machine, Dole). Ilter, Cumhur Greenip, Jonathan H West, Heather Grayson Schepmans, Melanie E Nyvlt, Alexander Jean Leyva, Alec M Colin, Kyla T Barreiro, Sofia V Novo, Sabina A Folkman, Ethan Craig Talarico, Natalie Furtado, Paula De Almeida Lemos Note that Butler was decided in 1936. This was during the second period of commerce clause regulation (which was from around 1890 through 1936; the third period commenced with Jones & Laughlin, decided in 1937. Suppose the Agricultural Adjustment Act (AAA), enacted in 1933, had simply adopted a regulation limiting how much cotton farmers could grow. (As you can see from the description in the opinion, this is not what Congress actually did in the statute.) Would such a statute have likely been constitutional in the second era? How is the actual statute different from this hypothetical statute? Did the statute as actually drafted regulate cotton production or coerce farmers? What is Justice Roberts’ description of how judicial review works in the first paragraph of Butler (CB 277)? Is it an accurate description, in your view? Why or why not? Which approach to the “general welfare” clause of Art. I § 8 does Butler 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? The AAA 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 278, middle: “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 278, middle.) 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 278, last full paragraph)? 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? In interpreting the general welfare clause of Art. I § 8, how might a court make the distinction Justice Stone draws in his dissent in Butler 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”? Consider the following hypotheticals in light of Butler (CB 277), Steward Machine Co. (CB 281), and Lopez (CB 194) (and assume that in general, Congress has the power to tax commercial transactions it has the power to regulate under the Commerce Clause): 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. (CB 281)? Consider this hypothetical in light of Dole (CB 290): Congress provides funds to states to build highways, but also provides that no state shall receive funds under the program unless it requires all state employees involved in administering federal highway funds or any other federally funded program to take mandatory training on federal anti-corruption laws. What if Congress made the training requirement applicable only to state employees involved in administering federal highway funds? Would either be within Congress’s power? How crucial is the percentage involved in Dole? (Percentage of what?) Under Dole, how closely must the condition imposed be related to the activity for which there is federal funding? (In this regard note that Steward (CB 281) laid out cautionary note not included in the excerpts in the casebook: A federal condition laid on a state might be invalid if “unrelated in subject matter to activities fairly within the scope of national power,” or if the condition was “unrelated to the fiscal need subserved by the [federal] tax in its normal operation, or to any other end legitimately national.”) With respect to the material in Section IV.C.1.b (Health Care: Medicaid Expansion): Panel 18 Material: IV.C.1.b (Health Care: Medicaid Expansion) Ciccero, Jonny Laguerre, Garaudy Fischer, Jacob Chernawsky, Sami Ryann Quevedo, Vivi Isabel Zacher, Liesl M. Stevens, Inga J Carrasco, Melanie M Pedroza, Valeria Menne, Devyn E Carmona, Tomas Pacia, Francis S Olin, Joshua Thomas Montero, Nicolas A 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 285). Is this distinction the same as that drawn by Justice Sutherland in Carter Coal to explain the old direct/indirect distinction (see CB 181) (the “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 187, carryover paragraph). 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 all of the costs of the expansion (for the first 6 years, to be reduced in 2020 to 90%) 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?

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