Con Law Flashcards

Question

* Article 1, section 8 of constitution o The Congress shall have power to

Answer 1

to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; * To borrow money on the credit of the United States; * To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; * To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; * To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; * To provide for the punishment of counterfeiting the securities and current coin of the United States; * To establish post offices and post roads; * To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; * To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; * To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; * To provide and maintain a navy; * To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Answer 2

the “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people o The states are not governments of enumerated powers. They get whatever is reserved

Answer 3

o This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land

Answer 4

o Horizontal separation of powers * Among the legislative, judicial, and executive branches of government o Vertical separation of powers * Federal and state governments

Answer 5

o Unanimous decision, opinion by Marshall o Facts * In 1816, Congress passed an act that incorporated the Bank of the United States. * In 1817, the Bank opened up a branch in the state of Maryland (plaintiff). * In 1818, the Maryland state legislature passed an act to impose a tax on all out-of-state banks operating in the state of Maryland. * Although the act was general in nature, the Bank of the United States was the only such bank in Maryland at that time and was thus the only establishment affected by the tax. * James McCulloch (defendant), head of the Maryland branch of the Bank of the United States (Bank), refused to pay the tax. * This lawsuit ensued and the case was appealed to the Maryland Court of Appeals. o Rule * The Constitution specifically delegates to Congress the power to tax and spend for the general welfare, and to make such other laws as it deems necessary and proper to carry out this enumerated power. Additionally, federal laws are supreme and states may not make laws that interfere with the federal government’s exercise of its constitutional powers. o Application * (1) Does Congress have implied constitutional power to create a bank?  (1) Yes. Congress has the constitutional power to charter the Bank of the United States.  Congress created a bank to deal with its money problems.  The Constitution derives its authority from the conventions and the federal government proceeds directly from the people.  The constitution shall be the supreme law of the land  This power is ultimately derived from the Constitution’s grant to Congress of the general power to “tax and spend” for the general welfare.  Among the enumerated powers, we do not find that of establishing a bank or creating a corporation  We must never forget that it is a constitution we are expounding.  However, in addition to its enumerated powers, Congress is also given general powers under the Constitution’s Necessary and Proper Clause, which states that Congress may create laws it deems necessary and proper to help carry out its enumerated powers.  The Necessary and Proper Clause functions to expand, not limit, Congress’s enumerated powers. * To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable  Congress decided that chartering the Bank of the United States was a necessary and proper method of raising revenue to carry out its overall taxing and spending powers.  the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is a part of the supreme law of the land. * (2) If so, may individual states tax a federally created bank?  (2) No. The Bank was created by federal statute.  Maryland may not tax the Bank as a federal institution because federal laws are supreme to state laws. * Supremacy clause  A federally created institution may not be inhibited by a state law.  The Bank of the United States functions to serve the entire nation. It is thus inappropriate for it to be controlled by one part of the nation (i.e. Maryland) through a tax. * That the power of taxing it by the States may be exercised so as to destroy it is too obvious to be denied * The power to tax involves the power to destroy * If we apply the principle for which the State of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States * This would transfer the power of supremacy to the states  This is not a case of confidence of the states in other states  We don't want a state to tax the operations of the federal government. * A state can only tax institutions that its own constituents created, but not a federal government institution. That's because otherwise, a state would exercise control over people that it does not represent. o Conclusion * Maryland's law is unconstitutional and void.

Answer 6

o Textual * But, judicial review is not from the text. o Structural * The structure of the constitution might give us an answer o Historical

Answer 7

- Roberts + Barret with libs - Conservatives minority o Federal government has the border patrol for the Texas-Mexico border o Texas is unhappy with U.S. immigration policy so it has been putting up wires to stop aliens from entering the U.S. o Federal border patrol wants to go cut the wires because it needs freedom around the border. o What does McCulloch contribute to this case? o Fifth circuit ruled for Texas-- gave TX the injunction stopping the US from cutting the wires o Supreme court reversed and ruled for the U.S.-- 5-4. You can't have an injunction stopping the U.S. from cutting the wires. o But still, Texas is not complying with the supreme court's order

Answer 8

o Powers of Congress * The power to lay and collect taxes * To pay the debts and provide for the common defense and general welfare of the US

Answer 9

o The powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people

Answer 10

o Section 2: the transportation of importation into any state, territory, or possession of the U.S. for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited

Answer 11

o Gibbons (1824) o 1887-1937 * Court got more restrictive about what the commerce clause could be used for * Court packing? Parrish, NLRB o 1937-1995 (Darby, Wickard) * New era where the legislation is upheld o 1995-2011 (Lopez) o 2012 to today (Affordable Care Act) * Congress legitimately used its tax power to pass the ACA (Roberts) * But see Dole  Spending case

Answer 12

o Facts * Ogden (plaintiff) received a license under New York state law that purported to give him the exclusive right to operate steamboats in New York waters. * Gibbons (defendant) sought and obtained a similar license from the federal government, which Gibbons used to compete with Ogden in the same water route that Ogden was using. * To protect his monopoly license, Ogden filed suit in the New York Court of Chancery to enjoin Gibbons from operating his boats in New York waters.  Gibbons argued that he was operating his boats pursuant to an order of Congress, and that Congress has exclusive power under Article I, Section 8 of the Constitution to regulate interstate commerce. o Procedure * The New York Court of Chancery found in favor of Ogden and issued an injunction to restrict Gibbons from operating his boats. * Gibbons appealed the case to the Court of Errors of New York, which affirmed the decision.  Gibbons appealed to the United States Supreme Court. o Rule * If a state and Congress both pass conflicting laws regulating interstate commerce, the federal law governs pursuant to Congress’s constitutional grant of power to regulate interstate commerce. o Application – Marshall * Congress is granted the power to regulate interstate commerce in Article I, Section 8 of the Constitution. * The word “commerce” includes traffic, intercourse, and navigation, as well as commodities associated with interstate commerce.  Congress includes operating steamboats * Congress may regulate all commercial activities occurring between states but not activities occurring solely within one state’s borders.  The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with the Indian tribes * When both the federal and a state government exercise the power of taxation, neither is exercising the power of the other. But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do * In this case, Congress has the power to regulate the interstate commercial activity of steamboats on navigable waters within the state of New York.  Because Congress has the power to regulate this activity, and New York passed conflicting regulations of the same activity, federal supremacy principles dictate that the federal regulation trumps the state regulation. o Conclusion * The decision of the Court of Errors prohibiting Gibbons from operating steamboats in New York is reversed. o Johnson concurrence * The grant of power by the framers to Congress to regulate interstate commerce is absolute. * Additionally, when the framers gave Congress the power to regulate commerce, they gave it the power to regulate all subsidiary activities that accompany it, such as shipbuilding, carrying trade, and the propagation of seamen.

Answer 13

* In Hammer v. Dagenhart, 247 U.S. 251 (1918), which is often referred to as “The Child Labor Case,” the federal law barred the transportation in interstate commerce of items produced by employers who employed workers under age 14 or children between 14 and 16 who worked more than 8 hours a day, 6 days a week, or at night o Court ruled that the case was not about transportation but instead regulated the working hours of children. o According to the Court, the commerce power did not give Congress power over children’s labor. That issue belonged to the states

Answer 14

o the Court found unconstitutional the Railroad Requirement Act of 1934, which was the first compulsory retirement and pension plan for non-governmental employees administered by the federal government. It was not sufficiently related to commerce as the Court had been defining it.

Answer 15

* Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), invalidated the National Industrial Recovery Act of 1933, which regulated wages, hours, unfair trade practices, and collective bargaining for private sector workers o Sick chicken case o Court found that the wages and hours were local and could not be subject to federal control

Answer 16

o One new justice for each justice who reached 70 years old, up to 15 justices total o while the court-packing discussion was continuing, the Court changed its approach to the commerce power * West Coast Hotel v. Parrish, 300 U.S. 379 (1937), a 5–4 Court upheld a minimum wage law for women. Scholars have debated whether the first Justice Roberts’s “switch in time that saved the Nine” in this opinion really kept Roosevelt from expanding the Court.

Answer 17

* Supreme Court then upheld Congress’s commerce power in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), which ruled that the National Labor Relations Board’s actions regulating unfair labor practices were constitutional

Answer 18

* United States v. Darby, 312 U.S. 100 (1941), the Court overruled Hammer v. Dagenhart and unanimously upheld Congress’s Fair Labor Standards Act, which regulated child labor and working wages and hours

Answer 19

o Facts * During the Great Depression of the 1930s, President Franklin Roosevelt and the Democratic-controlled Congress passed many “New Deal” programs designed to improve the poor economic climate in the United States.  One such program was the Agricultural Adjustment Act of 1938, which limited the area that farmers could devote to wheat production in an effort to stabilize the national price of wheat. * Filburn (plaintiff), a small farmer, was penalized pursuant to the Act for producing wheat in excess of the Act's quotas. * Filburn filed suit against Secretary of Agriculture Wickard (defendant), seeking to enjoin enforcement against himself of the penalties. * Filburn argued that because the excess wheat was produced for his own private consumption and never entered the stream of commerce, his activities could not be regulated by Congress under the Commerce Clause. o Rule * Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce. o Application -- Justice Jackson * Older cases talked about production, consumption, and mining to determine whether activities were direct (interstate) or indirect (intrastate). Court here said these categories don't matter anymore. * Court sites Gibbons v. Ogden because it had a broad sense of the commerce power. * Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us * By growing his own wheat, Filburn decreases the amount of wheat purchased in the market and negatively impacts the price of wheat grown for interstate commerce. o Conclusion * The decision of the circuit court is reversed. Congress's commerce power authorizes this.

Answer 20

Whiskey, my bold spirit, pours smoothly. o Facts * A South Dakota law permitted persons age nineteen or older to buy beer containing up to 3.2% alcohol. * In 1984, Congress passed 23 U.S.C. §158, which directed the Secretary of Transportation, Dole (defendant), to withhold up to five percent of federal highway funds otherwise available to states in which state laws permitted persons under the age of twenty-one to purchase alcohol. * South Dakota (plaintiff) sued Dole and the United States government in federal district court seeking a declaratory judgment that Section 158 violated constitutional limits on Congress’s spending power and the Twenty-First Amendment of the United States Constitution. o Rule * The receipt of federal funds may be conditional if the exercise of the spending power is for the general welfare, the conditions are unambiguous, the conditions are related to a federal interest in a particular national project or program, and the conditions do not violate any other constitutional provisions such as the Tenth Amendment. o Application -- Rehnquist (+ White, Marshall, Blackmun, Powell, Stevens, Scalia) * Congress has specific constitutional power to tax and spend for the general welfare of the United States.  In exercising this spending power, Congress may condition the receipt of federal funds by states subject to the following four limitations: * the exercise of the spending power must be for the “general welfare;” * the conditions on the receipt of funds must be unambiguous; * conditions must be related to a federal interest in a particular national project or program; and * Independent constitutional bar -- conditions must not violate any other constitutional provisions such as the Tenth Amendment. * Section 158 clearly meets the first three limitations on Congress’s exercise of spending power as it is designed to promote the general welfare, an unambiguous condition, and related to the significant federal interest in promoting safe transportation on federal highways. * While the Tenth Amendment operates to limit Congress’s imposition of conditions on states’ receipt of federal funds, when the effect of those conditions are coercive, that is not the case in Section 158.  Noncompliance only results in a loss of five percent of what states would otherwise receive. The potential loss is not so great as to force states to comply with federal standards. o Conclusion * The decision of the court of appeals is affirmed. Congress did not violate the constitution here. o O'Connor dissent * Section 158 is not a condition on Congress’s spending power that is reasonably related to an expenditure of federal funds.  Instead, Section 158 is an attempt by Congress to regulate the sale of liquor, and is thus a power reserved expressly to the states by Section 2 of the Twenty-First Amendment of the Constitution. * Setting the drinking age at twenty-one is not reasonably related to the identified purpose of safe highway construction. o Brennan dissent * The ability to regulate the minimum age to purchase alcohol falls completely within the powers reserved to the states by the Twenty-First Amendment of the Constitution. * Congress improperly attempted to regulate a power that the Constitution reserved to the states and the states constitutionally exercised.

Answer 21

* Facts o Congress's power of the purse -- congress decides who gets money o There is no appropriation clause funding for the federal reserve, and the CFPB gets its money from the federal reserve. o In response to the financial crisis around 2007, Congress passed the Dodd–Frank Wall Street Reform and Consumer Protection Act, which, among other things, authorized the creation of the Consumer Financial Protection Bureau (CFPB) as an independent agency within the Federal Reserve. * The CFPB was tasked with writing and enforcing rules for financial institutions, examining financial institutions, monitoring and reporting on markets, and tracking consumer complaints. o In 2017, the CFPB adopted a rule that prohibited lenders from further attempting to withdraw funds from borrowers’ bank accounts after two consecutive attempts failed for lack of funds. o A group of lenders sued the CFPB over that rule, arguing that the agency’s funding scheme was unconstitutional. * Instead of receiving money allocated to it each year by Congress, as most agencies do, the CFPB receives funding directly from the Federal Reserve, which collects fees from member banks. * Procedure o The district court concluded the funding scheme was not unconstitutional, but the U.S. Court of Appeals for the Fifth Circuit reversed. * Appropriations clause: article 9, section 1 of the constitution * Article I, section 9, clause 7: o No money shall be drawn from the treasury, but in consequence of appropriations made by law * Congress has power of: o Tax o Spend o Commerce * Prelogar -- CFPB/petitioners: historical argument that Congress has consistently funded agencies through standing appropriations that aren’t time-limited * Francisco -- CFS/Respondents o Unification of Sword and Purse: Francisco argues that the case is about checks and balances, emphasizing that one of Congress's crucial checks on executive power is its power of the purse. He contends that the case reflects a feared unification of sword and purse, as Congress has effectively authorized the Consumer Financial Protection Bureau (CFPB) to spend whatever it deems necessary in perpetuity.

Answer 22

1. Trump relies on Marbury to say you can't prosecute a president. * Court says president has misread Marbury to say that it frees him from trial. Marbury distinguished between discretionary presidential acts (we don't prosecute for discretionary) and ministerial presidential acts (where the president must follow the law, he can be prosecuted for it). Marbury never says that president does not have to follow the law-- so he can be prosecuted for ministerial acts. 2. Trump mentions Youngstown, Nixon, and Clinton for his argument that the separation of powers means he shouldn’t be prosecuted. Court says none of these cases give the president immunity from trial. The minute that Biden became president, Trump became subject to the criminal law like everyone else. * Other branches can be held to the law, so the executive can too. * Presidents have always known that they would be held to the law. That hasn't kept presidents from doing what they need to do, and indicting presidents is not common. So, holding Trump liable does not undermine the president's job. 3. Impeachment clause * Trump argued that, if you were not convicted by the senate, you cannot be prosecuted. * Clause says that penalty for impeachment is losing your job, and that if you are convicted, you will be liable or held to criminal liability. So, President said that only penalty for impeachment is losing the job. * Court said the impeachment clause doesn't say what happens if you're not convicted. Trump's reading rests on a logical fallacy--stating that if president is convicted then he can be prosecuted, does not mean if he is not convicted, he cannot be prosecuted. 4. Double jeopardy-- Court says these are not two criminal prosecutions for the same thing. o Court says Trump is not immune and should go back to trial

Answer 23

K. O? The Shit Smells Bad Girl! o 5-4 decision * Yes: Rehnquist, O'Connor, Scalia, Kennedy, Thomas * No: Stevens, Souter, Ginsburg, Breyer * Majority: Rehnquist o Facts * In 1990, Congress passed the Gun-Free School Zones Act (GFSZA), making it a federal offense "for any individual knowingly to possess a firearm in a place that the individual knows, or has reasonable cause to believe, is a school zone." * Lopez (defendant), a student who brought a gun to his high school, was confronted by school authorities, arrested, and charged with violating the GFSZA. o Rule * Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the possession of a gun near a school. o Application -- Rehnquist * While Congress has broad lawmaking authority under the Commerce Clause, this power does not extend so far as to authorize the regulation of the carrying of handguns, particularly when doing so has no clear effect on the economy overall. * Congress may regulate only three broad categories of activities:  the channels of interstate commerce; 1. Locations-- highways, waters, roads, etc.. EX: the waters from Gibbons v. Ogden  the instrumentalities of, or persons or things in, interstate commerce; and 1. EX: trucks, boats, transportation  activities that substantially affect or substantially relate to interstate commerce. * Here, the GFSZA does not regulate the channels or instrumentalities of interstate commerce.  Therefore the analysis must focus on the third category: whether the activity at issue substantially affects interstate commerce. * The mere carrying of handguns (not the buying or selling) in a school zone in no way affects commerce, either substantially or otherwise. * The GFSZA is a criminal statute having nothing to do with “commerce” or any economic enterprise. * The United States argues that the presence of guns in school zones affects commerce because crime in schools affects education, which in turn affects job prospects and productivity. * If this argument were accepted, Congress could regulate virtually any activity. * Although Justice BREYER argues that acceptance of the Government’s rationales would not authorize a general federal police power, he is unable to identify any activity that the States may regulate but Congress may not o Conclusion * The court of appeals’ decision is affirmed. o Kennedy concurrence (joined by O'Connor) * The GFSZA upsets the balance of power between the federal and state governments.  Education is a traditional concern of the states.  It is for states to determine whether harsh criminal sanctions are necessary to deter students from carrying guns on school premises.  The GFSZA prevents states from exercising their own judgment and experimenting with their own gun prevention programs. o Thomas concurrence * The new “substantial effects” test is problematic because it makes the Commerce clause “surplusage.”  Congress is not meant to regulate commercial activity to the full extent suggested by the majority’s holding. * The majority’s three-part definition of commerce is misguided.  Instead the word “commerce” should be limited only to encompass the buying and selling, and possibly the transportation of goods. The Court’s expansion of the term in Gibbons v. Ogden, 22 U.S. 1 (1824), was wrong. A narrow construction of the term should be applied. o Stevens dissent * Congress should be able to regulate the possession of guns at any location because guns relate to commercial activity and have such a potentially harmful use. o Souter dissent * Congressional regulations promulgated under the Commerce Clause are reviewed under a rational basis standard. A deferential view of congressional actions is important to preserving the separation of powers.  However, the majority’s decision harkens back to a time when the judiciary gave less respect to Congress (narrower commerce clause era). The majority’s invalidation of a congressional act unwisely goes against important principles of judicial restraint. o Breyer dissent (joined by Ginsburg) * Majority on Breyer's dissent: Justice BREYER focuses, for the most part, on the threat that firearm possession in and near schools poses to the educational process and the potential economic consequences flowing from that threat. Specifically, the dissent reasons that  (1) gun-related violence is a serious problem;  (2) that problem, in turn, has an adverse effect on classroom learning; and  (3) that adverse effect on classroom learning, in turn, represents a substantial threat to trade and commerce * Likes the cumulative effect test on commerce, which comes out of Wickard v. Filburn, and asks about the cumulative effect of one activity on commerce, taken as a whole  Secondly, the Court must consider not the effect of an individual act, but rather the cumulative effect of all similar instances when determining whether an activity affects interstate commerce. * Based on these principles, the proper inquiry should have been whether Congress rationally could have found that violent crime in school zones, through its effect on the quality of education, substantially affects interstate commerce. * When all practical realities surrounding the problems of guns near schools are considered, the answer could not be anything other than in the affirmative. * A significant logical connection exists between gun regulations and promoting interstate commerce, especially in today's world. o Oral argument * David H. Souter:  Court's reliance on a rationality review leads to too much instability. * Rehnquist  Case law says that commerce power is not limitless * Justice Sandra Day O'Connor: PRO-STATES RIGHTS  Questions whether the simple possession of something at or near a school is commerce.  Asks if possession at or near a school is interstate and raises concerns about the scope of Congress's power. If congress can regulate possessing an item near something, then they can regulate anything * Justice Antonin Scalia: PRO-STATES RIGHTS  Raises concerns about regulating non-commercial activities like the mere possession of an item. * Breyer: Wheat (Wickard v. Filburn) has less to do with commerce than guns.

Answer 24

o Unanimous decision: Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan o Opinion by Roberts o Facts * In 2010, Congress passed the Patient Protection and Affordable Care Act.  The individual mandate requires most Americans to maintain “minimum essential” health insurance coverage.  Medicaid expansion requires states to expand medicaid eligibility or else they lose all federal medicaid funds * If a State does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds * Shortly afterward, multiple parties, including business organizations, individuals, and 26 states, filed suit in district courts across the country to challenge the Act’s constitutionality.  The results were fractured: some courts upheld some or all of the ACA, others declared part or all unconstitutional, some concluded offending provisions could be severed, and others argued that the Act couldn’t be challenged until someone was forced to pay the penalty. o Rule * (1) The individual mandate contained in the Patient Protection and Affordable Care Act of 2010 is a valid use of Congress’s power to tax.  The commerce clause does not empower congress to legislate the individual mandate * (2) The Medicaid expansion provision of the Patient Protection and Affordable Care Act of 2010 is an unconstitutional use of Congress’s spending powers. o Application -- Roberts * (1) The individual mandate contained in the Act is a valid use of Congress’s power to tax.  The individual mandate cannot be justified as a valid exercise of commerce power, because the Commerce Clause does not empower Congress to compel individuals to engage in commercial activity. * the Government argues that Congress had the power to enact the mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health insurance because the failure to do so affects inter-state commerce * The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce  Further, the possibility that people could participate in the healthcare market at some point in the future is not enough. This is a slippery slope that could open the door to congressional regulation of all sorts of activity or inactivity not contemplated by the Framers. * For example, obesity is more responsible for increased healthcare costs than uninsured people, but under the government’s theory, the federal government could mandate that people buy vegetables.  Next, the Necessary and Proper Clause only gives Congress the power to do things that are incidental to the valid exercise of some enumerated power, and therefore the individual mandate cannot be justified on this ground either.  However, the individual mandate’s penalty provision operates more like a tax imposed on those opting against purchasing coverage. * Because the tax is assessed just like other taxes, based on income, and collected by the IRS, the fact that Congress calls it a penalty is irrelevant. The Court interprets legislation as constitutional if possible, and the individual mandate can be saved by interpreting the penalty provision as a valid exercise of Congress's power to tax. * (2) The Medicaid expansion provision of the Patient Protection and Affordable Care Act of 2010 is an unconstitutional use of Congress’s spending powers.  With respect to the Medicaid extension, the federal government cannot withhold existing Medicaid funding from states that choose not to participate.  Congress can offer grants to states and condition the funds on compliance with certain requirements, as happens frequently with highway and infrastructure funding. * However, the Act does not offer the states a genuine choice, because they need to accept a basic change in the nature of Medicaid or risk losing all Medicaid funding. o Ginsburg concurrence/dissent (+Sotomayor, Breyer & Kagan) * The individual mandate should be upheld under the Commerce Clause because there was a rational basis for Congress to believe the large uninsured population substantially affected interstate commerce and the mandate bore a reasonable connection to addressing the problem. * The Federal Government, therefore, is not, as THE CHIEF JUSTICE charges, threatening States with the loss of “existing” funds from one spending program in order to induce them to opt into another program. Congress is simply requiring States to do what States have long been required to do to receive Medicaid funding: comply with the conditions Congress prescribes for participation o Sotomayor thinks congress can use its taxing power to justify the constitutionality of the ACA. Sotomayor and Ginsburg agree. They're the only two saying that the law is permitted under the spending clause and that the medicaid provision is not coercive. o Scalia dissent (+ Kennedy, Thomas, Alito) * The entire Act should be struck down as unconstitutional. Neither the Commerce Clause nor the power to tax and spend grants Congress the authority to require the individual mandate. * To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity * We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjusting by rule or method * We can't allow congress to politically maneuver between "tax" and "penalty." If they label it a penalty, we cannot call it a tax instead. o Thomas dissent * I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases * the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. o Breyer is for the commerce clause. Joined Ginsburg's opinion. o Kagan said it should be made more voluntary.

Answer 25

o 7-2 decision * Yes: Roberts, Thomas, Breyer, Sotomayor, Kagan, Kavanaugh, Barrett * No: Alito, Gorsuch o Opinion by Breyer o Facts * In 2010, Congress passed the Affordable Care Act (the act), which required individuals to obtain health insurance or face a tax penalty (the individual mandate). * In 2018, Congress repealed the provision of the act that imposed the penalty for violating the individual mandate’s requirement for minimum essential coverage. To be clear, the act still contained language requiring individuals to obtain insurance, but the mandate no longer had any enforceable penalty. o Rule * If a plaintiff fails to show an injury that is fairly traceable to a defendant’s allegedly unlawful conduct, the plaintiff lacks Article III standing. o Application -- Breyer * Article III of the United States Constitution requires that a plaintiff seeking judicial review of a matter show an injury in fact, causation, and redressability.  To show causation, a plaintiff must show that some government action has caused or will cause a concrete, particularized injury. * there is no possible Government action that is causally connected to the plaintiffs’ injury—the costs of purchasing health insurance. Or to put the matter conversely, that injury is not “fairly traceable” to any “allegedly unlawful conduct” of which the plaintiffs complain.  Essentially, a plaintiff must demonstrate how an action led or will lead to an injury. * Here, the fact that Congress has repealed the penalty for violating the individual mandate is dispositive to the issue of standing for both the individual plaintiffs and the state plaintiffs.  The government has no power to enforce the mandate against individuals, so there is no way to trace any injury suffered by the individual plaintiffs to § 5000A(a). * With respect to the state plaintiffs, again, the individual mandate no longer has a penalty attached to it, so it is not fair to say, without providing any evidence, that an unenforceable statutory provision caused or will cause state residents to enroll in state benefit programs. o Conclusion * The judgment of the court of appeals regarding standing is reversed. o Thomas concurrence * there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them o Alito dissent (+Gorsuch) * When the tax or penalty was collected, costs were shifted from individuals previously denied coverage due to their medical conditions and placed on others who purchased insurance only because the failure to do so was taxed or penalized.  The repeal of the tax or penalty has not made the costs of the guaranteed-issue and community-rating requirements disappear. o Oral argument * Alito focuses more on the merits of the case. * Barrett said they didn't have standing.

Answer 26

* Facts o The 1977 Amendments to the Clean Air Act (CAA) required polluters in certain areas to obtain a permit from a state regulator before building any new or modified stationary sources of air pollution. * The state regulator could only grant the permit if the polluter met specific requirements regarding the abatement of new pollution. o The Environmental Protection Agency (EPA) promulgated a rule interpreting the term “stationary source” to include what the agency called a “bubble policy.” * Under this policy, an existing plant containing several pollution-emitting devices could install or modify one piece of equipment without a permit if the alteration did not increase the total emissions from the plant. o The Natural Resources Defense Council (NRDC) (plaintiff) challenged the EPA’s interpretation of the word “source.” * Specifically, the NRDC argued that the word referred to each individual pollution-emitting piece of equipment, which meant that a plant would need to obtain a permit any time it created a new source of pollution or modified an existing source if the effect were to increase the pollution from the source.  Finding that this interpretation best served the goals of the CAA, the court of appeals agreed with the NRDC. * In reaching this decision, the court recognized that Congress had not expressed an intent regarding the applicability of the bubble concept to the permit program. The United States Supreme Court granted certiorari to review the appellate court’s decision. * Rule -- Justice Stevens (+ Burger, Brennan, White, Blackmun, Powell, Stevens) o courts should defer to a federal agency’s interpretation of an ambiguous statute if its interpretation is reasonable * Chevron deference's hierarchy of interpretation:  Congress  Agency  Executive  Court * Some argue that this gives too much power to agencies rather than courts, although courts are better interpreters of what the law is. * Application -- Stevens o If a statute administered by an agency is silent or ambiguous with respect to a specific issue, a reviewing court may not simply impose its own construction on the statute. o When a court reviews an agency’s construction of a statute, it faces two questions. -- Chevron two-step test! * First, the court must consider whether Congress directly addressed the precise question at issue.  If Congress has made its intent explicit in the statutory language, then both the court and the agency must give effect to that unambiguous congressional intent. * Second, however, if the court finds that the statute is silent or ambiguous regarding the specific issue, the court must consider whether the agency’s action was based on a permissible construction of the statute. * Conclusion o Accordingly, the appellate court's judgment is reversed.

Answer 27

* Facts o Magnuson-Stevens Fishery Conservation & Management Act (MSA) regulates the Atlantic herring fishery * MSA is aimed at preventing overfishing and promoting conservation * MSA sets up regional councils, which create fishery management plans (FMPs) to set conservation measures, which must align with National Standards and other laws o Secretary of Commerce, through the National Marine Fisheries Service (NMFS) reviews and publishes the FMPs for public comment o In 2000, New England Council established an FMP for Atlantic herring, updated with an industry-funded monitoring program in 2020 * Program partially shifts the cost of at-sea monitoring to vessel owners, but aims for a 50% target of monitored herring trips, which will cause reduced profits for the fishing industry and communities  AKA, herring industry must bear the costs of observers on fishing boats o Relentless, Huntress, and Seafreeze are owners of two fishing vessels * They challenged the Rule, arguing that the monitoring requirement disproportionately burdens them because of their longer trips and inability to qualify for exemptions * Oral argument o Jackson: * Chevron helps courts stay away from policymaking  This is a policy question, not a legal question * EX: Definition of "stationary source" is not a legal question * In Chevron, congress gave the policy choice to the agency. If we take Chevron away, the court will become a policymaker. * For example, here, the question is whether or not monitors on the boats have to be paid for by the owner of the boat. I see that as a policy question. * It's not easy to distinguish between policy & law.  This creates a potential issue with separation of powers * When you're a hammer, everything looks like a nail  Judges will look at questions related to a statute and call them legal unless Chevron deference requires them to really think about their role * Roman Martinez says every decision about a statutory interpretation is a question of law. Jackson disagrees. * Problems with courts deciding statutory interpretations:  It takes years  Different courts from different jurisdictions could have different views o Conservatives call for the Chevron deference to be overruled o The court’s three liberal justices expressed support for keeping the doctrine in place. * Justice Elena Kagan repeatedly suggested that federal agencies, with their scientific and technical expertise, are better suited than courts to resolve ambiguities in a federal statute.  Kagan cited as one example a hypothetical bill to regulate artificial intelligence. Congress, she said, “knows there are going to be gaps because Congress can hardly see a week in the future.” So it would want people “who actually know about AI and are accountable to the political process to make decisions” about artificial intelligence. Courts, she emphasized, “don’t even know what the questions are about AI,” much less the answers. * Justice Sonia Sotomayor agreed with Kagan. She doubted whether there can be a “best” interpretation of a law when the justices “routinely disagree” about a law’s meaning. The real question, she said, is who makes the choice about what an ambiguous law means. And if the court needs a “tie-breaker,” she continued, why shouldn’t it defer to the agency, with its expertise? * Justice Ketanji Brown Jackson posited that the Chevron doctrine serves an important purpose. Under Chevron, she suggested, Congress gives federal agencies the power to make policy choices – such as filling gaps or defining terms in the statute. But if Chevron is overturned and agencies no longer have that power, she predicted, then courts will have to make those kinds of policy decisions. o But Justice Brett Kavanaugh saw Chevron’s deference to agencies differently. Chevron, he complained, “ushers in shocks to the system every four or eight years when a new administration comes in” and implements “massive change” in areas like securities law, communications law, and environmental law. * Justices Brett Kavanaugh and Amy Coney Barrett, for their part, both seemed open to narrowing Chevron to apply only in cases where Congress has affirmatively delegated interpretive authority to an agency * Justice Brett Kavanaugh — another moderate conservative on the court — criticized the “internal inconsistency” of Chevron. o Justice Neil Gorsuch told Prelogar that he was less concerned about businesses subject to changing regulations, observing that the companies “can take care of themselves” and seek relief through the political process. Instead, Gorsuch pointed to less powerful individuals who may be affected by the actions of federal agencies, such as immigrants, veterans seeking benefits, and Social Security claimants. In those cases, Gorsuch stressed, Chevron virtually always works for the agencies and against the “little guy.” o Justice Samuel Alito pressed Prelogar to explain when a statute would be ambiguous, triggering the application of the Chevron doctrine. He observed that “in cases that don’t involve an agency,” courts do not simply throw up their hands and declare that they cannot determine what the statute means. “So that would seem to suggest that you never get to step two” of the Chevron test, requiring courts to defer to the agency’s interpretation. o Prelogar suggested that the court could follow the path that it chose five years ago in Kisor v. Wilkie, in which the justices declined to overrule a long line of cases instructing courts to defer to an agency’s interpretation of its own regulation, a doctrine sometimes known as Auer deference. Instead, a splintered court put limits on when Auer deference should apply going forward.

Answer 28

* Facts o A group of commercial fishermen who regularly participate in the Atlantic herring fishery sued the National Marine Fisheries Service after the Service promulgated a rule that required industry to fund at-sea monitoring programs at an estimated cost of $710 per day. * The fisherman argued that the Magnuson-Stevens Fishery Conservation and Management Act of 1976 did not authorize the Service to create industry-funded monitoring requirements and that the Service failed to follow proper rulemaking procedure. * Oral argument o Justice Ketanji Brown Jackson recused herself from the Loper Bright argument, as she was on the D.C. Circuit panel that originally heard the case o Skidmore deference -- the persuasiveness of the government's interpretation depends on the circumstances * The court also appeared ready to return to the Skidmore v. Swift & Co. doctrine, which preceded Chevron and, ultimately, would give federal courts more power to implement their policy preferences and ignore agency expertise

Answer 29

o 6-3 decision o Facts * decision by President Harry Truman to seize the steel mills after they threatened to go on strike. * In late 1951, steel mill owners and their employees had disagreements over the terms of collective bargaining agreements. Unable to reach an agreement, the steel mill employees’ representative gave notice of intent to strike after the expiration of their current agreement. * The federal government unsuccessfully entered the negotiations, and on April 4, 1952, the steel mill employees’ union gave notice of its intent to strike on April 9, 1952. * The importance of steel as a component in weapons and war materials led President Truman to believe that a reduction in steel production from a nationwide strike would jeopardize the nation’s security.  The President issued Executive Order 10340 directing Sawyer (defendant), the Secretary of Commerce, to take control of and continue operating most of the nation’s steel mills. * Sawyer carried out the order, and Youngstown Sheet & Tube Co. (plaintiff), along with other steel mill operators, brought suit in district court alleging that the President’s order amounted to an exercise of lawmaking, a legislative function reserved expressly for Congress. Therefore, the President’s exercise of lawmaking was unconstitutional. o Rule * The President of the United States may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution. o Application -- Black (+ Douglas, Clark) * The President’s power to issue executive orders must come from either an act of Congress or the Constitution.  Congress expressly rejected the use of seizure to solve labor disputes as unconstitutional when it considered the drafting of the Taft-Hartley Act in 1947. * Here, the President does not rely on any statutory authority to seize real property.  Since Congress has not acted to grant seizure powers to the President in labor disputes, the President’s authority must come from the Constitution. * Sawyer admitted that there is no express authority in the Constitution that justifies the President’s actions, but argues that the President’s power to do so should still be implied from powers granted to the President in Article II of the Constitution.  Particular reliance is placed on provisions in Article II which say that “the executive Power shall be vested in a President * * *”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.”  This argument is not constitutionally supported since the link between the power to make war decisions and the power to seize private property for the resolution of labor disputes is attenuated.  Additionally, the President’s actions cannot be supported by his general executive powers, as the Constitution charges the Executive with “faithfully executing the laws,” not making the laws themselves. * In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker * The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President * Justice Black's view: Two sources of authority:  Acts of Congress * Express or Implied -- none here  Constitution * Express authority -- none here * Implied authority 1. Executive power Cl. a. No; categorical distinction between lawmakers/executors at law-- text limit 2. Take Care Clause a. No, no law extant that he is "taking care of" 3. Commander in chief a. No; seizure for lawmakers, not military * Justice Black doesn't really believe in emergency presidential powers. o Conclusion * The decision of the district court is affirmed. o Jackson concurrence * The President and Congress have distinct powers, but the Constitution allows for some overlap of authority in different scenarios.  The President may act pursuant to executive powers, congressionally-granted powers, or a combination of both. * When the President acts under an express or implied grant of power, he can rely on both his own powers and Congress’s. (Article II authority + all power congress can delegate) * When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate * When the President acts without an express grant or denial of Congress’s powers, he acts under the aggregate of his own independent powers. (Article II authority in absence of Congress's grant or denial) * When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain * When the President acts in a way that is incompatible with the express or implied will of Congress, he may rely only on the powers expressly granted to him by the Constitution. (Article II authority minus the express or implied will of congress) * When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter * Since Congress denied power to the President in the present case under the Taft-Hartley Act, the third scenario is implicated. * The President may be deemed to have acted constitutionally only if he is acting based on an express grant of power from the Constitution. * The Constitution does not grant the President such powers, and the President's power to “faithfully execute the laws” does not cross into the function of lawmaking. * The President is checked by the Fifth Amendment’s prohibition on depriving citizens of life, liberty, or property without due process of law. o Douglas concurrence * Congress is the only branch of government that can appropriate money to pay for a program involving a nationwide seizure of property. Hence, Congress is the only branch that may authorize such actions. * It is important to keep this power within Congress to avoid the possibility of a future President abusing the power. o Frankfurter concurrence * “it is a constitution we are expounding.” McCulloch v. Mary-land * The President has been given powers to seize production, transportation, communication, or storage facilities on sixteen separate occasions since 1916.  However, the difference between these occurrences and the present case was that, in all prior instances, Congress granted temporary powers to the President to act in times of war or national crisis. * Additionally, the powers were only granted for a specific, limited time frame. * In the present case, the President was acting to remedy only an industrial problem that was not connected with wartime or a national emergency.  Additionally, Congress specifically withheld this type of power from the President, in labor relations settings, when it passed the Taft-Hartley Act in 1947. * The President acted unconstitutionally because the facts surrounding the present case are different than prior instances of presidential grants of power and because Congress could have given the President power but chose instead to withhold it. * More willing to say that because presidents have done this in the past, they can do it again. o Vinson dissent * The President acted in a necessary way to prevent a crisis of national defense that could result from a lack of steel production. * The Constitution delegates to the President the duty to execute legislative programs.  The implementation of a steel seizure program designed to preserve production and promote the national defense qualifies as a legislative program. * Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situations. But we are not called upon today to expand the Constitution to meet a new situation. * The President is uniquely qualified to step in and implement this program, as no other branch of government has the ability to act so quickly by releasing an Executive Order. * The President is both authorized and uniquely qualified to perform this function.

Answer 30

a. Clerked for justice jackson b. Later wrote the games & war book c. Asked if Carter had authority to transfer Iranian funds and to nullify legal claims against Iran? a. Court said Yes. 8-1 decision by Rehnquist. International Emergency Economic Powers Act constituted a specific congressional authorization for the president to order the transfer of the assets. Even though the act did not explicitly authorize it, it had been used in the past so it could implicitly approve this kind of settlement. b. Rehnquist here was doing what Justice Jackson did. d. Rehnquist's analysis a. Explicit Congressional Authorization <-----------> Congressional prohibition i. There was an explicit authorization here, so president had this power.

Answer 31

* President tried to use Property Act to compel federal agencies and contractors to have employees vaxxed and masked. * Court cited Youngstown again and said president did not have the authority because purpose of the Property Act was to provide the federal government with an economical and efficient system. The purpose of the statute is not what you apply when looking at whether a statute is constitutional or not. Look at the text of the statute. Court said the text of the statute did not support the mask/vax mandate.

Answer 32

o Facts * Alien picked up in Afghanistan * Held at Guantanamo o Holding: Habeas corpus applies * A non citizen picked up in Afghanistan and held at Guantanamo could apply for habeas (applying for the government to review your detention) o 6-3 decision for Rasul

Answer 33

o 6-3 decision for Hamdi o Facts * In 2001, in response to attacks against the United States by the al Qaeda terrorist network on September 11, 2001, Congress passed the Authorization for Use of Military Force (AUMF), authorizing the President to use all appropriate and necessary force against persons suspected of engaging in terrorist activity against the United States.  The President shortly thereafter ordered United States military forces into Afghanistan. * This case arises out of the detention of Yaser Hamdi (defendant), a U.S. citizen, who was seized in Afghanistan on suspicion that he was actively working with the Taliban regime. He was turned over to the United States military.  The United States interrogated Hamdi in Afghanistan before transferring him to the Guantanamo Bay Naval Base in 2002.  After learning he was an American citizen, authorities transferred him to Norfolk, Virginia, and then Charleston, South Carolina. * The Government contended that because Hamdi was an “enemy combatant” it could hold him indefinitely in the United States without formal charges or proceedings until it determined that access to counsel or further process was warranted. o Procedure * The government (plaintiff) filed a motion to dismiss, which included an outline of the evidence against Hamdi, called the Mobbs Report.  The district court found that the Mobbs Report did not contain enough evidence to hold Hamdi without trial. Requested in camera review. Government appealed. * The Fourth Circuit reversed, holding that the United States acted constitutionally in detaining Hamdi, and Hamdi petitioned for certiorari to the United States Supreme Court. The United States Supreme Court granted certiorari. o Rule * Due process guarantees that United States citizens held in the United States as enemy combatants must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker. o Application -- O'Connor (+ Rehnquist, Kennedy, Souter, Ginsburg, Breyer) * Is Hamdi appropriately detained?  The government must provide basic procedures for the citizen-detainee to challenge his detention.  18 U.S.C. § 4001(a). Section 4001(a) states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” (this comes from the Korematsu case) * we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe * In passing the Authorization for Use of Military Force (AUMF) resolution, Congress authorized the President to exercise the “necessary and proper force” to combat terrorist activity. * Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. * However, the Fourteenth Amendment of the Constitution guarantees the right to due process under the law.  Furthermore, absent suspension, all persons detained in the United States have the right to habeas corpus. * This means that an individual accused of criminal activity cannot be detained indefinitely, with no trial, no counsel, and no ability to petition for freedom if he is wrongfully imprisoned. * Both parties concede that Hamdi is entitled to the writ of habeas corpus as a United States citizen, and that Congress has not suspended the writ.  The government argues that Hamdi’s writ of habeas corpus should be denied because the facts surrounding his seizure are still in dispute. * In order to determine the due process issues in this case, the private interest affected by the official action must be weighed against the government’s asserted interest, including the function involved and the burdens the government would face in providing greater process.  Hence, Hamdi’s interest in being free from involuntary detention must be weighed against the government’s interest in ensuring that those who have fought with the enemy in armed conflict do not return. These interests must be carefully balanced. * The constitutional guarantees of liberty are best served if a citizen-detainee seeking to challenge his classification as an enemy combatant receives notice of the factual basis for his classification and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.  However, this holding is qualified. * As long as the government provides these core elements, it can tailor other aspects of proceedings to help reduce the burden on the executive of conducting enemy combatant proceedings during times of military conflict.  Under these criteria, Hamdi has been denied due process, and therefore is entitled to a hearing that contains the protections of the Constitution. o Conclusion * The ruling of the court of appeals is vacated and remanded. o Souter (+ Ginsburg) concurrence/dissent * The AUMF does not authorize detention of classified enemy combatants in light of the Non-Detention Act, which strictly prohibits the detention of a United States citizen without an explicit act of Congress.  Congress has not explicitly acted to permit the detention of Hamdi, but has instead granted general war powers to the President.  The power to make determinations affecting citizen-detainees’ liberty interests is inappropriate for the President, since the President is entrusted with protecting national security interests. Liberty and security interests are necessarily at odds with each other, creating a conflict of interest. * Since Hamdi’s detention is unlawful, the question of what procedure is due to challenge a classification as an enemy combatant is unnecessary. o Scalia & Stevens dissent * As usual, the major effect of its constitutional improvisation is to increase the power of the Court * The due process protections available to citizens are distinguishable from those available to non-citizens.  Non-citizens accused of aiding the enemy and captured during times of war can be held until the end of the conflict.  In contrast, citizens accused of aiding the enemy, like Hamdi, were regarded as traitors and processed through the criminal justice system. * The plurality has ignored this tradition and formulated a new system for citizen enemy combatants to be processed.  The Due Process Clause of the Fourteenth Amendment guarantees the right to a fair hearing, absent invocation of the Suspension Clause; the Constitution does not afford a third option.  The executive branch cannot unilaterally relax constitutional due process protections unless Congress suspends those protections.  Only Congress may suspend this criminal process for citizens, and the executive can only bring about this result by asking Congress to act. * Because both parties agree that the Suspension Clause was not invoked here, Hamdi should be afforded his due process right to a fair hearing in front of a judge, like any other criminal citizen. * Where the courts are open, you're supposed to use them. * Citizen is entitled either to criminal trial or judicial decree. o Thomas dissent * It is not the role of the courts to define the federal government’s war powers. Congress, not the courts, should have considered this issue. * The plurality does not properly consider the Government’s compelling interests at stake and the judiciary’s limited role in balancing this and private interests. * The interest of the government of protecting the country overrides Hamdi’s individual liberty interest, and therefore the judgment of the Fourth Circuit Court of Appeals should be affirmed. o Oral argument * Souter -- made no sense for president to have indefinite power to detain someone for however long you want without them having any recourse. * Ginsburg -- emphasized importance of a neutral decision maker * Scalia -- Hamdi's interest doesn't trump the government's interest here

Answer 34

o 5-4 decision for Boumediene o Facts * In 2005, Congress passed the Detainee Treatment Act (DTA) to provide certain procedures for Guantanamo Bay detainees to challenge their classification as unlawful alien enemy combatants. * In 2006, Congress passed the Military Commissions Act (MCA).  Section 7(a) of the MCA prevented detainees classified as unlawful alien enemy combatants from challenging the conditions of their confinement and detentions through a writ of habeas corpus. * Boumediene (plaintiff) and several detainees classified as unlawful alien enemy combatants at Guantanamo Bay brought actions against the United States government (defendant) to challenge their detentions through writs of habeas corpus. o Rule * Courts must provide detainees held as unlawful alien enemy combatants a writ of habeas corpus to challenge their detention, or, if a writ of habeas corpus is not available, provide an adequate substitute process to detainees that includes the same procedural protections and opportunities that would be provided in a writ of habeas corpus. o Application -- Kennedy (+ Stevens, Souter, Ginsburg, Breyer) * We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay  it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation,  Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay  the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory * The Suspension Clause states that the writ of habeas corpus may be suspended only in cases of rebellion or invasion when public safety requires it. * Therefore, MCA §7 is unconstitutional; however this holding does not affect the DTA and CSRT process.  The President is entitled to a reasonable period of time to determine a detainee’s status before a court may entertain that detainee’s habeas corpus petition. * The court has the power to say what the law is (Marbury v. Madison) o Conclusion * Accordingly, the decision of the court of appeals is reversed. o Souter concurrence * Congress has the right to suspend habeas corpus, so the only way petitioners could get the writ of habeas corpus is to go past the statute and look at constitutional habeas corpus. * In Rasul v. Bush, 542 U.S. 466 (2004), the Court held that statutory claims of habeas corpus jurisdiction extend to foreign nationals imprisoned by the United States at Guantanamo Bay. * Later, Congress eliminated the statutory right to bring a writ of habeas corpus. Although the writ is no longer allowed by statute, the Court is not required to disallow the right of foreign nationals to bring a writ of habeas corpus under the Constitution.  Many detainees have been held without formal charges for up to six years. The detainees deserve a procedure to challenge their confinement in light of the relatively long length of their detentions. o Roberts dissent (w/ Scalia, Thomas, Alito) * Invalidating §7 of the MCA eliminates the most generous set of procedural protections ever afforded to foreign citizens.  Additionally, the set of vague procedures in place of the MCA provides little direction to federal courts tasked with adjudicating the claims of detainees. * The CSRT hearings afforded to detainees are not part of the initial process used to classify detainees as unlawful alien enemy combatants, but are instead procedures for detainees to challenge their classification. CSRT hearings provide the same procedural protections as a writ of habeas corpus. * Thus a writ of habeas corpus for detainees is unnecessary. o Scalia dissent (w/ Roberts, Thomas, Alito) * The writ of habeas corpus has never been applied to foreign persons detained outside the jurisdiction of the United States. Thus, the Suspension Clause of the Constitution does not apply to Guantanamo Bay detainees and the detainees are not entitled to the same legal protections afforded to United States citizens.  The security of the United States will be ultimately weakened by the increase of releases of detainees to their home countries, where many historically have returned to terrorist activities.  The legislative and executive branches have unequivocally stated their opposition to extending the writ of habeas corpus to detainees.  The judiciary oversteps its bounds in making a ruling that goes against the will of the other branches of government and exposes the United States to a security threat.

Answer 35

establish a uniform rule of naturalization," which gives it the authority to determine when and how people becomes citizens of the U.S.

Answer 36

o Facts * President Donald Trump (defendant) signed an executive order suspending the entry of foreign nationals from seven countries for 90 days. Each country had been previously identified by Congress or prior administrations as posing heightened terrorism risks. * A federal district court entered a temporary restraining order blocking the restrictions.  In response, the President signed a similar executive order, which was also challenged in court.  Several district courts issued preliminary injunctions barring enforcement of the entry suspension. The appeals courts upheld the injunctions.  The Supreme Court granted certiorari. * Certain people can apply for exemptions and case-by-case waivers if they can show that they've faced undue hardship and that their entry does not pose a threat * The temporary restrictions expired before the Court could act, so the Court vacated the lower decisions as moot.  President Trump then ordered federal agencies to conduct a comprehensive evaluation of every country’s compliance with the United States’ risk-assessment baseline. * Based on this evaluation, the President issued a proclamation seeking to improve vetting procedures by identifying deficiencies in the information needed to assess whether nationals from particular countries presented public-safety threats. The proclamation placed entry restrictions on the nationals of eight foreign countries. * The countries were selected by the President because their systems for managing and sharing information about their nationals were deemed inadequate. * The State of Hawaii (plaintiff) brought suit, arguing that the proclamation violated provisions in the Immigration and Nationality Act (the act). Hawaii also argued that the proclamation violated the Establishment Clause of the First Amendment because it was motivated by animus toward Islam. o Rule * A presidential proclamation placing entry restrictions on foreign nationals of particular countries is sufficiently justified by national-security concerns to survive rational-basis review. * Proclamation is within the scope of the presidential authority under the Immigration & Nationality Act o Application -- Roberts (+ Kennedy, Thomas, Alito, Gorsuch) * Under 8 U.S.C. § 1182(f) (Immigration and Nationality Act), the president may suspend the entry of foreign nationals if the president deems such entry to be detrimental to the interests of the United States. * The Establishment Clause of the First Amendment prohibits the government from discriminating based on religion. * Although 8 U.S.C. § 1152(a)(1)(A) prevents discrimination regarding visa applications, that section does not act as a constraint on the president's authority under § 1182(f).  The proclamation serves a legitimate state interest in preventing entry of nationals who cannot be adequately vetted.  The text of the proclamation makes no mention of religion, and other facts do not support an inference of religious hostility. * 5 out of the 7 nations were Muslim * Policy covers just 8% of the world's Muslim proclamation * Korematsu has nothing to do with this case. Japanese internment camps based on race were objectively unlawful. Korematsu is overruled. Unlike Korematsu, this order is based on a neutral policy denying admission to certain foreign nationals. o Conclusion * Thus, the lower court’s ruling is reversed and the case is remanded. o Thomas concurrence * Universal injunctions imposed by district courts are growing in popularity, but appear to be inconsistent with the Constitution. * universal injunctions are legally and historically dubious o Kennedy concurrence * Religious freedom is important. This is not just about Muslim bias because this is about protecting the constitution. * The world must know that the United States government remains committed to liberty. o Sotomayor dissent (joined by Ginsburg) * Based on the evidence, a reasonable observer would conclude that the proclamation was motivated by religious bias.  President Trump previously called for a complete shutdown of Muslims entering the country, among numerous other statements indicating religious animus.  The proclamation targets majority-Muslim countries. * Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” (citing Korematsu, (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laudable and long overdue  By blindly accepting government's decision to discriminate (in the name of a superficial claim of national security), court applies the same dangerous logic in Korematsu and replaces one wrong decision with another. o Breyer dissent (joined by Kagan) * Evidence supports the possibility that the government is not enforcing the proclamation as written.  Instead, it appears that the government may be discriminating against individuals seeking entry based on religion. * There is enough evidence that, on balance, creates a sufficient basis to set the proclamation aside. * Wanted the injunction to remain in place

Answer 37

* Japanese relocation camps during WWII through an executive order * President and congress had the war powers to imprison the Japanese-- the relocation camps were constitutional o Majority by Justice Black o Dissent by Justice Jackson * The relocation camps were racist and violate Equal Protection Clause of 14th Amendment o This wasn't racial prejudice-- it was an executive order relating to national security.

Answer 38

* Justiciability -- involves the case's procedural history o Court could hear this case because it involved claims that president was overreaching his power * Nationwide injunction -- relates to the power of lower courts to issue broad injunctions

Answer 39

o President, VP, and all civil officers shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors

Answer 40

o House of reps has sole power of impeachment

Answer 41

o The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Answer 42

Despite bogus statements, we must believe president. o Facts * President Nixon (defendant) was named as a co-conspirator in various charges including conspiracy to defraud the United States. * Case is reviewing denial of motion to quash for a subpoena that precedent was served in US v. Mitchell (watergate case)  Watergate-- prosecuting the people that trespassed and went to the watergate building * Nixon was involved in a break-in into the DNC headquarters in DC at the Watergate building. It was to rig the election. * Nixon tapes revealed that he conspired to cover up activities after the burglary and later tried to use federal officials to deflect attention * Attorney general Mitchell was involved in wiretapping the DNC headquarters  US v. Mitchell is not against the president, but the subpoena was served upon the president. He claimed that he doesn't want to comply with the subpoena because he has confidential information with his aides. * Nixon makes a justiciability saying the court can't hear this because it is an intrabranch dispute-- it's about two branches of the executive: State official issued the subpoena and so it's him arguing with Nixon. o Rule * A presidential claim of privilege asserting only a generalized interest in confidentiality is not sufficient to overcome the judicial interest in producing all relevant evidence in a criminal case. o Application -- Burger (+ Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell) * Government contends that the dispute does not present a ‘case’ or ‘controversy’ which can be adjudicated in the federal courts.  In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. * Government's first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President’s claim of privilege.  Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.  neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances * courts reaffirm the ruling in Marbury: It is emphatically the duty of the courts to say what the law is. * Nixon v. Sirica -- rebuttable presumption of presidential privilege for his confidential communications  We agree with Mr. Chief Justice Marshall’s observation, therefore, that ‘(i)n no case of this kind would a court be required to proceed against the president as against an ordinary individual * Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality * we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution * Although there is a presumptive presidential privilege for his confidential communications, when the communications do not concern military, diplomatic, or sensitive national security secrets, that presumption may be rebutted due to the constitutional need to produce all relevant evidence in a criminal case.  Thus there is no absolute, unqualified presidential privilege. * A generalized claim of presidential privilege based on a claim of public interest in confidentiality does not overcome the interest in producing all relevant evidence consistent with the fair administration of justice. * President Nixon does not base his claim of privilege on military, diplomatic, or sensitive national security secrets.  The President’s claim is of a generalized presidential privilege of confidentiality.  Such a claim cannot be upheld in a criminal proceeding as the interests of justice outweigh Nixon’s general need for confidentiality. * Powell v. McCormack -- House has the power to expel members of the executive, but not to exclude them. * It is separation of powers and checks and balances that gives the court the ability to decide this questions. * Separation of powers requires the court to hear this case-- when it's a question of law, the court can step in and check the other branches. o Conclusion * As a result, the order of the United States District Court for the District of Columbia denying Nixon’s motion to quash the subpoena is affirmed. o Oral argument * Burger  Perhaps it would further narrow the area if, as I take it from your briefs, you do emphasize there is no claim here of typical military secrets or diplomatic secrets or what, in the Burr case, were referred to as state secretes.  None of those things are in this case.  Is that right?

Answer 43

o Judge was impeached by house and convicted by senate. Sued to invalidate Senate conviction. o The Supreme Court unanimously held that the claim was nonjusticiable, i.e., could not be heard by the courts o The Court also observed that impeachment is the “only check on the Judicial Branch by the legislature,” o Justice Souter concurred, but noted, “If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply ‘a bad guy,’ judicial interference might well be appropriate.”

Answer 44

* House adopted one article of impeachment against Trump: incitement of insurrection * Senate voted 57-43 for impeachment, not meeting the constitutional requirement (you need 2/3rds). * Can a former president be impeached and convicted?

Answer 45

* Private bills (Bills that name somebody) o Each time you have a private bill, 2 houses vote on it and president vetoes/signs o Private bills were the big way to do things in the past, but they are still there for congress to take care of individuals * Now, the government is much bigger. * Public bills o Congressional authority or executive discretion? * Needs a proper balance o 1934-1940 * They were arguing about the balance between congressional authority and executive discretion  What should be the way to get immigration status? Who should be deported? o Executive gets final authority * Congress passes the law saying the executive branch can decide who should be deported or not  Then, congress thought this gave the executive too much power * So, Congress said executive can suspend deportation, but then Congress can cancel it by voting to deport. o Executive authority for clergy and veterans * Under Eisenhower, there was a discussion about having final executive authority for some people-- clergy and veterans-- so that the executive only gets the last word for these groups. o Congressional authority * Some say that it should all only be congressional authority, no executive say. o Hybrid approach * The law at stake here is section 244 of the INA. Allows executive determination with a cancellation by one house of congress.

Answer 46

o Congress has two houses. Every bill which passes house and senate will be presented to president, who can sign or veto. If he vetoes, house can overrule veto.

Answer 47

Border measures block people, stirring outrage. o Facts * Congress passed § 244(c)(2) of the Immigration and Nationality Act (INA) authorizing one house of Congress, by resolution, to invalidate an executive determination that allowed a deportable person to remain in the United States. * Jagdish Rai Chadha (plaintiff), a Kenyan citizen, lawfully came to the United States on a student visa, but he remained after the visa expired.  The Immigration and Naturalization Service (INS) (defendant) ordered Chadha to show cause why he should not be deported.  Chadha applied for a suspension of deportation.  After a deportation hearing, an immigration judge suspended Chadha's deportation under § 244(a)(1) of the INA, which allows the Attorney General to exercise his discretion to suspend a deportation.  The suspension was reported to Congress pursuant to § 244(a)(1). * However, after considering 340 cases, the House of Representatives passed a resolution vetoing Chadha's suspension and the suspension of five other individuals pursuant to § 244(c)(2). * The immigration judge reopened the deportation proceeding and eventually ordered that Chadha be deported.  Although Chadha argued that § 244(c)(2) was unconstitutional, the immigration judge concluded that he did not have the power to rule on the statute's constitutionality.  Chadha appealed the decision to the Board of Immigration Appeals, which dismissed his action and also held that it had no power to rule that the statute was unconstitutional. o Rule * Legislation providing Congress with a one-house veto over an action of the executive branch is unconstitutional because it does not meet the constitutional requirements of presentment and bicameralism. o Application -- Burger (textualist argument) (+ Brennan, Marshall, Blackmun, Powell, Stevens, O'connor) * Presentment Clause -- Article I of the Constitution requires that all legislation be presented to the president before becoming law.  The Framers carefully crafted this requirement into the Constitution. * Additionally, the Framers required bicameralism in the enactment of any law, i.e., a law could not be passed without gaining support from a majority of both houses.  The Great Compromise established this provision, requiring the approval of both houses to accommodate representation concerns by smaller states. * The requirements of presentment and bicameralism under Article I do not apply to every action taken by either house of Congress; rather, they apply only to an exercise of legislative power.  To be an exercise of legislative power, an action must be legislative in its purpose and effect. * In this case, § 244(c)(2) is legislative in purpose and effect because it altered the legal rights, duties and relations of people, including the Attorney General, executive branch officials, and Chadha. * This extensive type of action is historically only permitted by a legislative act of Congress. * The fact that a given law or procedure is efficient, convenient, or useful will not save it if it is contrary to the constitution. * Framer's decision that the legislative power of the federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure. * Moreover, the Constitution includes specific enumerated instances granting one house of Congress the unilateral power to act, such as the power of the House of Representatives to initiate impeachment proceedings, the senate's power to convict, the power of the Senate to ratify treaties and approve or disapprove of presidential appointments.  Section 244(c)(2) is not included in one of these express authorizations of unilateral power, and Congressional power in this area cannot be implied. * Accordingly, § 244(c)(2) of the INA is unconstitutional and is severable from the remainder of the statute. o Conclusion * The decision of the court of appeals is affirmed. o Powell concurrence * This was a violation of the separation of powers. When Congress finds that an act does not satisfy statutory criteria, it is assuming a judicial function. * Allowing the House to assume this role would create a state of unchecked power for Congress—a system of governmental tyranny the Framers sought to avoid. Congress exceeded its prescribed authority under the Constitution. o Rehnquist dissent * Section 244(c)(2) of the INA is not severable-- this was not Congress's intent. * The INA should not be expanded without a clear indication that Congress intended for its expansion. The legislative history of the INA demonstrates that Congress has consistently rejected the executive branch's requests for complete discretion to suspend deportation and that Congress has repeatedly insisted on retaining control over the suspension process either through concurrent resolutions or the one-house veto. o White dissent (more moderate-- thinks the Constitution is flexible) * Congress already has legislative veto power over presidential actions; allowing them to exercise it in this way is not unconstitutional. * The Court approved the modern administrative state before-- this is how the modern government works. You've approved a government where congress gives some stuff to the executive to do, and then keeps some things for itself. * The Constitution does permit Congress to delegate legislative power to the executive without fulfilling presentment and bicameralism concerns. These elements of the Constitution need not always be met in all legislative actions. o Scalia -- filed an amicus brief wanting the affirmance of the lower court's decision. He wanted discretion for the executive branch. o Oral Re-argument: 12/07/1982 * Justice Rehnquist raises that not everything needs to be in the constitution to be allowable and constitutional-- for example, there is nothing in the constitution about executive orders, but President still issues them. You won't find an explicit provision for everything Congress can do in the constitution.  Response: The difference is that the constitution is explicit on this one point.  Coincides with Justice Rehnquist's dissent, which discusses the history where these actions were done and were allowed.

Answer 48

the executive shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Answer 49

BOB SWM o Facts * Congress passed the Ethics in Government Act of 1978 (the Act).  If attorney general wants to prosecute someone, he can request the special division to appoint someone. * The special division is a court under the judicial branch, made up of three judges that the chief justice picks. * Special Division can appoint the independent counsel, who then goes and works in the executive branch to investigate/prosecute government officials for violations of federal criminal laws.  Special Division can set the jurisdiction of the independent counsel.  Independent counsel must report to congress, and he operates within the bounds of the department of justice.  Additionally, the Act gave the Attorney General sole removal power of an independent counsel “for good cause.”  The independent counsel could terminate the position when the investigation and/or prosecution was complete. * Independent Counsel Alexia Morrison (plaintiff) was appointed to investigate possible obstruction of congressional investigations by Department of Justice officials (defendants), including allegations of misconduct and providing false or misleading testimony to a congressional subcommittee by Solicitor General Ted Olson (defendant). o Rule * A law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and prohibiting the Attorney General from removing the officer without good cause does not violate separation-of-powers principles. o Application -- Rehnquist (+ Brennan, White, Marshall, Blackmun, Stevens, O'Connor) * Article 2, section 2, clause 2:  and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law * Article 2, section 2, clause 2: Appointments clause: Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. * The Constitution divides federal officers into “principal” and “inferior” officers.  The Appointments Clause requires principal officers to be appointed by the President and approved by the Senate, but allows inferior officers to be appointed by the President, department heads, or the judiciary.  There is not a precise line separating principal and inferior officers, but some factors affecting an officer's characterization include whether the officer is subject to removal by a higher department official and whether the scope of the officer's duties and jurisdiction is limited. * In this case, the independent counsel is an inferior officer.  First, the independent counsel is subject to removal by a higher executive officer, the Attorney General.  Second, the independent counsel’s powers are limited to investigation and prosecution, which do not impact executive policy.  In addition, the independent counsel has limited jurisdiction and tenure. * Thus, Congress may authorize the interbranch appointment of independent counsels by the judiciary, as permitted by the Excepting Clause of the Constitution. * While Congress has the power for the appointment, does the special division have the power to set the jurisdiction?  Rehnquist says it derives from the appointment clause, independent from article 3. * Next, the Act is consistent with separation-of-powers principles.  We now turn to consider whether the Act is invalid under the constitutional principle of separation of powers. Two related issues must be addressed: * The first is whether the provision of the Act restricting the Attorney General’s power to remove the independent counsel to only those instances in which he can show “good cause,” taken by itself, impermissibly interferes with the President’s exercise of his constitutionally appointed functions. * This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act * The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President’s ability to control the prosecutorial powers wielded by the independent counsel * Congress vested appointment power in the judiciary and removal authority in the Attorney General; thus, Congress did not usurp executive authority for itself. * The branches of government are separate but interdependent, and the Act does not violate the separation of powers by usurping executive authority or upsetting the balance of power between the branches.  Further, limiting presidential authority to remove officials without cause has been upheld in the past. Humphrey’s Executor v. U.S., 295 U.S. 602 (1935). * The good-cause requirement is not a burden on the president's ability, through the Attorney General, to execute his constitutional authority. This is because the president’s need to fully control these types of inferior officers is not central to the functioning of the executive branch. o Conclusion * Accordingly, the act is constitutional, and the decision of the court of appeals is reversed. o Scalia dissent -- textualist argument ? Structural argument? * Article II of the Constitution specifically states that “all” (not some) executive powers of the United States shall be vested in the president, just as “all” legislative power is vested in Congress, and “all” judicial power is vested in the Supreme Court. * Further, the characterization of the independent counsel as an inferior officer is wrong; the term “inferior” at the time of the Constitutional Convention meant subordinate, and the independent counsel is subordinate to no one.

Answer 50

o In the oral argument, everyone was talking about whether the president was an officer of the US, and whether Trump was an insurrectionist. o Unanimous opinion saying Colorado does not have the power to take a federal candidate off a federal ballot * States have power over state officials, but they don't have power under the 14th amendment to remove a federal candidate from a federal office o Sotomayor, Kagan, and Jackson wrote a concurrence. * Colorado didn't have the power to take Trump off the ballot. * Court should go no farther than it can go.  Cited Roberts' concurrence in Dobbs -- You don't need to overturn Roe, we can do something more narrow.  You don't need to reach what Congress can do under the 14th amendment because this issue is only about whether the State of Colorado can remove somebody from the ballot. o Justice Barrett concurred in the judgment, but not in the opinion. She too thought the five had gone too far. * Barrett is kind of in the middle saying we unanimously resolve this opinion that Colorado can't do that. You don't have to worry about anything else. o Five justices wrote a per curiam decision-- nobody's name are on the decision. It is for the court.

Answer 51

o The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Answer 52

o he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper

Answer 53

o Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Answer 54

o Facts * In 2011, the president of the United States nominated three individuals to positions on the National Labor Relations Board (NLRB) (defendant). * However, all three nominees were still awaiting Senate confirmation a year later. * In January 2012, the Senate was taking a three-day break between pro forma sessions.  Pro forma sessions are when the Senate goes into recess but holds these weekly sessions where they can still act. * The Senate resolved to conduct no business during the pro forma sessions, but retained the power to conduct business by passing a unanimous consent agreement. * During the three-day break, the president used the Recess Appointments Clause (Recess Clause), Art. II, § 2, cl. 3, to appoint all three individuals to the NLRB without the advice and consent of the Senate. * Subsequently, the NLRB ordered a Pepsi-Cola distribution company, Noel Canning (Canning) (plaintiff), to enter into a collective-bargaining agreement. o Procedure * Canning sought to have the NLRB’s order set aside by the federal court of appeals.  Canning challenged the NLRB’s authority to issue the order, arguing that the three new NLRB members had not been validly appointed, because the Recess Clause did not apply to a three-day break between pro forma sessions of the Senate. o Rule * The president of the United States may invoke the Recess Appointments Clause to fill a vacancy that exists during any sufficiently long Senate recess. o Application -- Breyer -- pragmatic argument * Unanimous decision: Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan * The Appointments Clause, Art. II, §2, cl. 2, provides the primary mechanism for the appointment of high-level public officials and requires the president to obtain the Senate’s advice and consent before appointments. * The Recess Clause creates a backup mechanism to ensure that the president can temporarily fill vacancies during “the Recess of the Senate.” * This case presents the first opportunity to interpret the language of the Recess Clause, although the long history of congressional acquiescence to presidential recess appointments is entitled to considerable deference. * The first concerns the scope of the words “recess of the Senate.”  Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? * We conclude that the Clause applies to both kinds of recess.  The phrase “the Recess of the Senate” may be interpreted to apply to both the annual inter-session break between formal congressional sessions, as well as the various shorter intra-session breaks, based on * (1) the ordinary meaning of the words, * (2) the purpose of permitting the president to keep the government running when Congress is not available, and * (3) historical use. * No instance of recess appointments being used for recesses shorter than 10 days * A recess lasting less than 10 days is presumptively too short.  Adjournment clause says 3 days is too short. Houses need consent to adjourn for more than 3 days.  In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause * The second question concerns the scope of the words “vacancies that may happen.”  Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? * We conclude that the Clause applies to both kinds of vacancy * The third question concerns calculation of the length of a “recess.”  In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess? * We conclude that we cannot ignore these pro forma sessions. * Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3–day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue.  In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here  we conclude that we must give great weight to the Senate’s own determination of when it is and when it is not in session. But our deference to the Senate cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares  the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business  By way of contrast, we do not see how the Senate could conduct business during a recess. It could terminate the recess and then, when in session, pass a bill. But in that case, of course, the Senate would no longer be in recess * The Recess Appointments Clause responds to a structural difference between the Executive and Legislative Branches: The Executive Branch is perpetually in operation, while the Legislature only acts in intervals separated by recesses. The purpose of the Clause is to allow the Executive to continue operating while the Senate is unavailable * Justice SCALIA would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an “anachronism,” he would basically read it out of the Constitution  Breyer thinks Clause's text, alone, is ambiguous. o Conclusion * Accordingly, the judgment of the court of appeals is affirmed. o Scalia concurrence with Roberts, Thomas, Alito -- formalist/textualist argument * The majority correctly concludes that the NLRB recess appointments are not valid, but incorrectly interprets the Recess Clause to apply to intra-session recesses. * The fact that presidents and Congress have long permitted the practice does not make it constitutional. * The Recess Clause should be of little relevance, because modern forms of communication and modes of transportation mean that Congress can easily convene or communicate during a break to vote. * The majority fails to appreciate that recess appointments are meant to serve only as a backup mechanism. * The first question presented is whether “the Recess of the Senate,” during which the President’s recess-appointment power is active, is (a) the period between two of the Senate’s formal sessions, or (b) any break in the Senate’s proceedings.  I would hold that “the Recess” is the gap between sessions and that the appointments at issue here are invalid because they undisputedly were made during the Senate’s session * Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional * The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments * the Senate can avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted * Even if the Executive could accumulate power through adverse possession by engaging in a consistent and unchallenged practice over a long period of time, the oft-disputed practices at issue here would not meet that standard o Denniston's analysis of the opinion: * Despite whatever the framers intended, the Court majority said the clues to the constitution's meaning were in centuries of compromises and working arrangements.  This is an example of constitutional pragmatism (prioritizes present and future needs) winning over constitutional formalism (stability & continuity of analysis). This illustrates how the constitution gets some of its most basic meaning from experience rather than from logic or hard-and-fast legal rules. * It thus was absolutely no surprise that the majority opinion would have been written by Justice Stephen G. Breyer, who has established himself as the most pragmatic of the Justices, and that the separate opinion (a concurrence but reading much like a dissent) would have been written by Justice Antonin Scalia, long recognized as the devotee of a Constitution of rules rooted in Founding era understandings (formalist) o Oral argument * Ginsburg -- balancing pragmatic approach with procedural safeguards  This is more of a policy decision rather than a constitutional question. * Scalia: So if you ignore the constitution often enough, it's meaning changes? * Kennedy: Well, of course, Justice Ginsburg's question points out that your argument is, it seems to me, in search of a limiting principle. A lunch break, a one-day break -- you've -- you've thought about this -- a 3-day break, a 1-week break, a 1-month break; how do you resolve that problem for us? * Alito: Suppose we think that the language in the Constitution is perfectly clear in some respect, but that there is a 200-year-old consistent practice, agreement by the President, going back to Washington and by the Senate that the language actually means something else. What would we do in that situation?

Answer 55

law said that postmasters could be fired only by the president with the advice and consent of the senate. Court there said this was unconstitutional because it put too much burden on the executive to need the advice/consent of the senate.

Answer 56

o One exception is the case you read about above, Morrison, which upheld the independent counsel provision of the Ethics in Government Act (which only allowed AG to fire independent counsel for cause.) o The second exemption is an older case from 1935, Humphrey’s Executor v. United States. * Humphrey was appointed head of the Federal Trade Commission (FTC) by the President and confirmed by the Senate. * President Franklin Roosevelt later asked Humphrey to resign, but he did not. Therefore, Roosevelt fired Humphrey. * The Court unanimously upheld the FTC Act, which limited the President’s power to fire Humphrey to “inefficiency, neglect of duty, or malfeasance in office.”

Answer 57

o Facts * After the 2008 financial crisis, Congress passed the Dodd-Frank Act, which established the Consumer Financial Protection Bureau (CFPB) (plaintiff).  Unlike other independent agencies, which were typically headed by multimember boards, the CFPB had a single director appointed by the president with the Senate’s consent.  Once appointed, a director had a five-year term and could be removed by the president only for cause (inefficiency, neglect, or malfeasance) * The CFPB issued law firm Seila Law (defendant) a demand to produce certain evidence for a CFPB investigation.  Seila Law refused to comply, claiming that the CFPB did not have authority because the agency’s structure violated the Constitution’s separation-of-powers doctrine. o Rule * It is a violation of the separation-of-powers doctrine for an administrative agency to be headed by a single director not removable by the president at will. o Application -- Roberts * + Thomas, Alito, Gorsuch, Kavanaugh * Minus Ginsburg, Breyer, Sotomayor, Kagan * If an administrative agency possesses significant governmental power and is headed by a single director not subject to removal by the president at will, then the director may act unilaterally, without oversight.  Such an agency structure, placing extensive power in a single person, violates the Constitution’s vision for government.  Additionally, such an agency structure violates the president’s removal power. * Here, the CFPB is an independent agency headed by only one director. The director has a five-year term and may be removed by the president only for cause.  The agency structure vests broad power in one person, something the Constitution generally prohibits.  The problem is exacerbated by the agency’s receipt of funding from the Federal Reserve, which further insulates the director from oversight.  The agency’s structure also violates the president’s removal power by preventing removal at the president’s will. * Neither of the recognized exceptions to unfettered removal power applies.  The director is not an inferior officer with only limited duties, nor is the director part of a multimember board.  The logic of Morrison also does not apply. Everyone agrees the CFPB Director is not an inferior officer, and her duties are far from limited. Unlike the independent counsel, who lacked policymaking or administrative authority, the Director has the sole responsibility to administer 19 separate consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student loans * The CFPB’s structure violates the separation-of-powers doctrine and is not permissible under the Constitution. However, the provision restricting the president’s removal power is severable from the rest of the Dodd-Frank Act. o Conclusion * The Ninth Circuit’s judgment is vacated, and the case is remanded for further proceedings. * This opinion got rid of the 5 year terms for the director. He can stay as long as the president wants him to stay, then the president can remove and replace him. o Thomas concurrence/dissent (with Gorsuch) * Congress is increasingly shifting executive power to independent agencies, creating a de facto fourth branch of government.  Such agencies exercise significant executive power without oversight by the president, in whom such power is constitutionally vested. * Additionally, under Humphrey’s Executor v. United States, 295 U.S. 602 (1935), Congress may effectively confer for-cause protection for the removal of the heads of such agencies provided an agency is headed by a multimember board.  That precedent creates a clear threat to the separation of powers intended by the Constitution and should be overruled.  However, the majority takes a step in the right direction by restricting Congress’s ability to implement for-cause removal to situations in which an agency does not possess substantial executive power.  Although the removal restriction in the Dodd-Frank Act is unconstitutional, it is not appropriate for the Court to sever it, effectively rewriting legislation. Instead, the CFPB’s petition to enforce its investigative demand should simply be denied. o Kagan concurring with respect to severability and dissenting in part (with Ginsburg, Breyer, Sotomayor) * Throughout the Nation’s history, this Court has left most decisions about how to structure the Executive Branch to Congress and the President, acting through legislation they both agree to * Court should not be deciding this-- Congress and the President can sort it out themselves. * the premise of the majority’s argument—that the CFPB head is a mini-dictator, not subject to meaningful presidential control—is wrong. As this Court has seen in the past, independent agencies are not fully independent * “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” Youngstown Sheet & Tube Co. v. Sawyer, (Jackson, J., concurring). * As Chief Justice Marshall wrote: Rather than prescribing “immutable rules,” it enables Congress to choose “the means by which government should, in all future time, execute its powers.” McCulloch o Oral argument * Sotomayor: In history, there were other agencies structured like this before. And those agencies were even more powerful than this one. So, we should allow this. * Gorsuch: If we allow this, what will stop Congress from subjecting the president's cabinet to at-will removal. It's congress's job to write laws and not the judiciary's job to play with them. * Alito: DOJ has refused to defend constitutionality of other federal statutes, even when president's removal power is not at issue. Here, solicitor general is not defending the act because he is defending the general. Under Obama, administration did not defend the "defense of marriage act" saying same-sex marriage was illegal. * Ginsburg: Doesn't see why this matters to the case because Seila is still going to have to answer to the CFPB. * Kagan: President's power to remove is not in the constitution. * Kavanaugh: Concerned about when a new president has to deal with the official from the last presidency and will not be able to fire them. Wants to limit executive power. * Roberts: Concerned with how much power a leader can have over the budget.

Answer 58

o Presidential immunity is a defense that stems from “the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history,” and entitles the President to “absolute ... immunity from damages liability for acts within the outer perimeter of his official responsibilities. o Carroll v. Trump (2023) * Carroll alleged that Trump defamed her by claiming she fabricated her claim of him sexually assaulting her in the 1990s.  In the first case, jury said it wasn't rape but it was sexual assault. So, Trump tried to go after her for every time she said he raped her. * In Nixon v. Fitzgerald, presidential immunity protected Nixon from a lawsuit about his work as president * Clinton v. Jones -- presidential immunity did not shield Clinton from civil liability for actions before he was president * This case asks whether presidential immunity is waivable  The answer is yes.  Trump waived the defense of presidential immunity by failing to raise it as an affirmative defense * If it had been raised in time, would the president have been immune from the lawsuit? * Would there be punitive damages? * SCOTUS said punitive damages require due process and states cannot violate due process by giving exceptionally big punitive damages. * Damages awarded to Jean Carroll o Jury awarded her $5M in first case o Second case: 7.3M in compensatory, 11M to repair reputation, 65M for punitive damages

Answer 59

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Answer 60

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Answer 61

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. o It may only be president Trump and president Washington who had not taken a prior oath. o Amendment 14, section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Answer 62

o Section Three of the Fourteenth Amendment Is Self-Executing Without Congressional Action and Applies to the President. * Section 3 says insurrectionist cannot be president, Trump is an insurrectionist, so he can't be on the ballot.

Answer 63

* Trump is disqualified from holding the office of President under Section Three o B.5: * We perceive no logical distinction between a disqualification from office and a qualification to assume office.  It bars him from running for office, being elected for office, and holding office. o C. The Disqualification provision of section three attaches without congressional action * Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress * The only mention of congressional power in Section Three is that “Congress may by a vote of two-thirds of each House, remove” the disqualification of a former officer who had “engaged in insurrection * The Supreme Court has said that the Fourteenth Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” … o E. section three applies to the president * Section Three applies to President Trump only if  (1) the Presidency is an “office, civil or military, under the United States”;  (2) the President is an “officer of the United States”; and  (3) the presidential oath set forth in Article II constitutes an oath “to support the Constitution of the United States.” * The presidency is an office under the US * The president is an officer of the US * The presidential oath is to support the constitution  President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three  Presidential oath qualified as an oath to uphold the constitution. o G. Trump engaged in insurrection o H. Trump's speech on Jan 6 was not protected by 1st amendment * When President Trump told his supporters that they were “allowed to go by very different rules” and that if they did not “fight like hell,” they would not “have a country anymore,” it was likely that his supporters would heed his encouragement and act violently. We therefore hold that this final prong of the Brandenburg test has been met.  Brandenburg test -- most speech enjoys freedom, but if speech is directed at inciting or inducing an imminent lawless action and it is likely to induce that lawless action, then the speech is not protected by the first amendment.

Answer 64

* It is a “‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ‘the people should choose whom they please to govern them * The question of eligibility to serve as President of the United States is properly reserved for Congress, not the state courts, to consider and decide * Court grants cert. on the Colorado case o Trump v. Anderson Oral argument * CHIEF JUSTICE ROBERTS: Counsel, what if somebody came into a state secretary of state's office and said, I took the oath specified in Section 3, I participated in an insurrection, and I want to be on the ballot? Can the -- does the secretary of state have the authority in that situation to say, no, you're disqualified? * JUSTICE SOTOMAYOR: And I think, logically, those are two separate issues in my mind: Can states enforce the Insurrection Clause against their own officeholders, or can they enforce it against federal officials, or can they enforce it against the president? Those are all three different questions in my mind. * JUSTICE JACKSON: So your point is that a chaotic effort to overthrow the government is not an insurrection? o Griffin's case -- (circuit court case) Section 3 did not have any meaning unless congress enforced it. o Colorado arguments * JUSTICE KAGAN: ... Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?  MR. MURRAY: Because Article II gives them the power to -- to appoint their own electors as they see fit. * CHIEF JUSTICE ROBERTS: -- I would expect that, you know, a goodly number of states will say, whoever the Democratic candidate is, you're off the ballot, and others for the Republican candidate, you're off the ballot. It'll come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence… * JUSTICE JACKSON: ... I guess my question is why the Framers would have designed a system that would -- could result in interim disuniformity in this way, where we have elections pending and different states suddenly saying you're eligible, you're not, on the basis of this kind of thing? o Colorado case is decided -- per curiam opinion * Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse. * The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. * Term Limits case -- states cannot limit the terms of federal officeholders. This is beyond the powers of the states. * 18 USC 2383 -- anybody that engages in insurrection/rebellion against the US is a criminal * This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency * But state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President ... represent[s] all the voters in the Nation. * Barrett concurrence:  I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that.  All nine Justices agree on the outcome of this case. That is the message Americans should take home. * Sotomayor, Kagan, and Jackson concurrence  If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more -- Dobbs v. Jackson  The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement.

Answer 65

o Some academics say the origin of this statute was before the 14th amendment. Now, we don't need the statute because it is now in the 14th amendment, which supports that section 3 is self-executing.

Answer 66

o Executive Immunity * Former President Trump claims absolute immunity from criminal prosecution for all “official acts” undertaken as President, a category, he contends, that includes all of the conduct alleged in the Indictment. * He advances three grounds for establishing this expansive immunity for former Presidents:  (1) Article III courts lack the power to review the President's official acts under the separation of powers doctrine;  (2) functional policy considerations rooted in the separation of powers require immunity to avoid intruding on Executive Branch functions; and  (3) the Impeachment Judgment Clause does not permit the criminal prosecution of a former President in the absence of the Congress impeaching and convicting him. …  we reject all three potential bases for immunity both as a categorical defense to federal criminal prosecutions of former Presidents and as applied to this case in particular. * Separation of powers doctrine  Separation of powers does not require immunity for the president.  Separation of powers does not give the president immunity in this case * Marbury makes it clear that the courts can review what the other branches do and declare them unconstitutional * Youngstown -- stopped Truman from seizing steel mills is another example where courts intervened and said what the president could do. * Functional policy considerations  Categorical immunity defense * Former President Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome “the public interest in fair and accurate judicial proceedings,” which “is at its height in the criminal setting. * When president is charged with crimes, immunity does not protect him because presidents, like everyone, have to obey the law.  Immunity from the indictment's charges * We cannot accept former President Trump's claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. * The impeachment judgment clause  Trump said that this clause means president can only be tried criminally if he was impeached by house and convicted by senate.  Court says, if the framers only wanted the president to be criminally tried if he was impeached and convicted, they would have said that. But they didn't. * The Impeachment Judgment Clause contains no words that limit criminal liability — and, to the contrary, it uses “nevertheless” to ensure that liability will not be limited (i.e., “hindered or obstructed”), even after an official is impeached, convicted and removed from office. … o Double Jeopardy Principles * Former President Trump alternatively argues that the Impeachment Judgment Clause and “principles of double jeopardy” bar his prosecution because he was impeached by the House of Representatives for the same or closely related conduct but acquitted by the Senate. We disagree. * Court says: Impeachment is not criminal, so this is not two crimes, so it isn't double jeopardy. * Blockburger test  Under the Blockburger test, none of the four offenses alleged in the Indictment is the same as the sole offense charged in the article of impeachment. So, Trump is not being charged for the same things twice. o Trump's argument from his brief: * From 1979-2023, no president has faced criminal charges. Criminal prosecution undermines the presidency. * Denial of criminal immunity would incapacitate every future president because every future president will face prosecution for everything he does. * Criminal immunity arises from the Executive Vesting Clause & the separation of powers. * From Marbury to Nixon v. Fitzgerald (civil immunity case), there was an unbroken tradition of not prosecuting presidents. There is no way to prosecute the official acts of a president. * A former president enjoys absolute immunity from prosecution for his official acts. * Only a president convicted by the senate after impeachment can be criminally prosecuted. * Criminal immunity is co-extensive with a president's civil immunity. That's why Nixon v. Fitzgerald matters to Trump so much. * Courts lack any authority to take any judgment about what the president does. * There are cases that allow subordinate officers to be prosecuted, but the president is not a subordinate officer. * The president cannot be criminally prosecuted unless he has first been impeached and convicted by the senate. * Past presidents:  Roosevelt imprisoned Japanese  Clinton bombed the middle east mid-Lewinski scandal to deflect  George W Bush lied to Congress about Hussein's WMDs  Obama killed US citizens abroad by drone strike  Biden funded pro-Hamas groups  All of these presidents have committed crimes but they weren't prosecuted. If we eliminate presidential immunity, every president will be prosecuted.  Counterargument that the other side will likely argue: Trump didn't cite U.S. v. Nixon. In that case, Nixon resigned and clearly he would have been prosecuted. The only reason he wasn't is because Ford pardoned him.

Answer 67

* Plaintiffs are capitol police officers and members of congress that were at the capitol that day. They seek civil damages for what happened on Jan 6. * The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints  We answer no * When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act.  He is acting as office-seeker, not office-holder—no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office.

Answer 68

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Answer 69

the states cannot interfere with Congress’s interstate commerce powers

Answer 70

o Congress wanted to include schools and hospitals operated by the state. o Court said it doesn’t violate the constitution to expand the FLSA to state schools and hospitals. It is constitutional.

Answer 71

Rehnquist majority (+ Burger, Stewart, Blackmun, Powell) o This case “ruled that the Commerce Clause does not empower Congress to enforce the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA) against the States ‘in areas of traditional governmental functions o 5–4 decision. Justice Blackmun was the fifth vote in the majority, joining Justices Burger, Stewart, Powell, and Rehnquist o Congress has now extended the FLSA standards to nearly all government employees. Court said congress cannot regulate state employees as to their wages because states have constitutional protections. o This case overruled Maryland v. Wirtz, the case that said it was okay to expand. The court said this expansion to state employees went too far. This legislation interferes too much with traditional state functions. This power is for the states and the federal government cannot take it away. o It's unconstitutional for the federal government to expand the FLSA to state employees. o Federal government cannot interfere with states' traditional government functions. (This gives more power to the states.) o Justice Blackmun's concurrence: I won't read this opinion as despairingly as justice Brennan (who wrote the dissent) does. o Justice Brennan wrote a lengthy dissent + White, Marshall. Court has thrown away all principles by which we interpret the constitution. The power for this issue lies with the political process, not the judicial process. The political branches should be deciding this instead of the courts. There are many famous old cases (Gibbons, Wickard v. Filburn) that contradict this. Brennan calls this a "novel state sovereignty doctrine." Court is going back to the era where they are taking away congress's commerce power. o Justice Stevens dissent -- Congress does have the power to say something about state employees' wages.

Answer 72

o 5-4, majority by Blackmun (+ Brennan, White, Marshall, Blackmun, Stevens) o Facts * Congress passed the Fair Labor Standards Act (FLSA) in 1938, but ruled in National League of Cities v. Usery, 426 U.S. 833 (1976), that the FLSA did not grant authority to Congress to regulate the wages, overtime pay, and hours of state government employees. * The San Antonio Metro Transit Authority (SAMTA) (defendant) had previously paid its state employees according to the federal standards established in the FLSA, but ceased doing so after the Supreme Court’s decision in National League of Cities. * In 1979, the Wage and Hour Administration of the United States Department of Labor ruled that SAMTA could be regulated by the FLSA because its actions were not a traditional government function reserved for the states under National League of Cities. * SAMTA then filed suit against the United States Department of Labor in the United States District Court for the Western District of Texas seeking a declaratory judgment that its actions were not subject to congressional regulation. Garcia (plaintiff) and other employees of SAMTA also filed suit at the same time against SAMTA claiming overtime back-pay. o Procedure * The district court ruled for SAMTA.  In the present cases, a Federal District Court concluded that municipal ownership and operation of a mass-transit system is a traditional governmental function and thus, under National League of Cities, is exempt from the obligations imposed by the FLSA * Here, Justice Blackmun was assigned to write the majority opinion for the Court. Blackmun, however, changed his mind and decided he could not vote to uphold National League. So, a second oral argument was heard o Rule * Congress has the constitutional authority to regulate the wages and hours of state employees under the Commerce Clause. o Application -- Blackmun * National League is overruled. * Lower courts have argued about National League due to confusion over what a traditional government function is or isn't. It's too confusing, so we have to get rid of it. * There are places where the constitution takes away state sovereignty. * Supremacy clause means congress is supreme and federal law can rule over the states here. * It is important, under true principles of state sovereignty, that states be free to engage in any activities its citizens deem appropriate, not just those approved on the grounds that they constitute “traditional government functions.” o Conclusion * The decision of the district court is reversed. o Oral argument 1 o O'Connor dissent (+ Rehnquist, powell) * National League of Cities was an attempt to define the limits of federal regulation on the states and overruling it leads to a decisive victory for Congress’s ever-growing Commerce Clause powers. * The federal government can't be interfering with the states this way. o Powell dissent (+ Burger, Rehnquist, oconnor) * The Court’s decision substantially alters the federal system designed by the framers and embodied in the Constitution to protect states’ rights. * State sovereignty is in the constitution. * At least since Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), it has been the settled province of the federal judiciary “to say what the law is” with respect to the constitutionality of Acts of Congress. In rejecting the role of the judiciary in protecting the States from federal overreaching, the Court’s opinion offers no explanation for ignoring the teaching of the most famous case in our history. o Rehnquist dissent * I don't like how everyone is talking about the test, but I am with the dissenters. o Justice's conference * Blackmun  It's disappointing that the traditional government function test doesn't work. o Oral re-argument (argument 2) * It is hard to identify what is a traditional governmental function. * O'Connor: Do you think the framers would have envisioned that they were authorizing the federal government to tell the states how much they can pay their employees to carry out their national functions.  Justice O'Connor always had her eye on the states.

Answer 73

U.S. shall guarantee to every state a republican form of government o Court has said those are political questions that other branches should resolve, so courts don't really do cases about the guarantee clause

Answer 74

Risks To Black WaSt o Majority: O'Connor, Rehnquist, Scalia, Kennedy, Souter, Thomas o Facts * In 1985, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act (the Act) to help address issues of low-level radioactive waste disposal among the states. * The Act encouraged states to adopt programs to dispose of their own waste by creating three incentives:  a monetary incentive to encourage states to open waste sites,  an access incentive to allow states without sites to be denied access to other states’ sites, and  a take-title provision which required a state, upon request of a waste-generator within its borders, to take title to the waste and pay damages to the generator for any harm caused by the state’s failure to take title. o Rule * Congress may not compel states to enact or administer a federal regulatory program. o Application -- O'Connor * Congress may not pass regulations that have the effect of “commandeering” states’ legislative processes. * There are two ways Congress may urge a state to adopt a legislative program consistent with federal interests:  (1) as part of its spending powers, Congress may attach conditions on states’ receipt of federal funds, or  (2) where Congress has the authority to regulate private activity under the Commerce Clause, Congress may offer states the choice of regulating that same activity according to federal regulations or having state law preempted by federal regulations.  These options allow states to decline compliance with federal regulatory standards if state citizens decide a federal policy is contrary to local interests. * However, the take title provision deprives states of such a choice by requiring them to adopt federal regulations or take title to their waste.  Hence, the take title provision does not present states with any option other than implementing the Act. * Under the Supremacy Clause, Congress could preempt state radioactive waste regulation. However, Congress violates the Tenth Amendment where it directs states to regulate in that field. * even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts * The Act’s first set of incentives (monetary), in which Congress has conditioned grants to the States upon the States’ attainment of a series of milestones, is thus well within the authority of Congress under the Commerce and Spending Clauses. * The Act’s second set of incentives (access) thus represents a conditional exercise of Congress’ commerce power, along the lines of those we have held to be within Congress’ authority * The take title provision is the only unconstitutional one.  Congress has crossed the line distinguishing encouragement from coercion  The take title provision is unique. No other federal statute offers states no option other than that of implementing Congressional legislation * Because an instruction to state governments to take title to waste, standing alone, would be beyond the authority of Congress, and because a direct order to regulate, standing alone, would also be beyond the authority of Congress, it follows that Congress lacks the power to offer the States a choice between the two * The Federal Government may not compel the States to enact or administer a federal regulatory program o Conclusion * Does the Tenth Amendment set limits on Congress’s powers?  The majority here says yes, that under the Tenth Amendment the federal government cannot “commandeer” the state governments. o White Concurrence/dissent * The Act is a constitutional exercise of Congress’s Commerce Clause powers. * The Act does not violate the Tenth Amendment because it represents a compromise worked out between and among the states with Congress as a referee. * In invalidating the Act, there is a lack of respect for the lengthy negotiation process among the states. * Though I disagree with the Court’s conclusion that the take title provision is unconstitutional, I do not read its opinion to preclude Congress from adopting a similar measure through its powers under the Spending or Commerce Clauses  the spending power offers a means of enacting a take title provision under the Court’s standards. Congress could, in other words, condition the payment of funds on the State’s willingness to take title if it has not already provided a waste disposal facility * The ultimate irony of the decision today is that in its formalistically rigid obeisance to “federalism,” the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems. o Stevens concurrence/dissent * The Act is a constitutional exercise of Congress’s Commerce Clause powers. * The federal government already regulates state actions in the administration of various environmental programs, public services, military drafts, and a host of other state functions. * No distinction exists between Congress’s ability to regulate these programs according to federal standards and its ability to enforce federal standards for the disposition of low-level radioactive waste. * The notion that Congress does not have the power to issue “a simple command to state governments to implement legislation enacted by Congress,” is incorrect and unsound * 10th Amendment doesn't limit Congress's exercise of powers

Answer 75

(supremacy clause) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Answer 76

o Majority: Scalia, Rehnquist, O'Connor, Kennedy, Thomas o Facts * Congress enacted the Brady Handgun Violence Prevention Act (Brady Act) in 1993 as an amendment to its Gun Control Act of 1968.  The Brady Act was a federal gun-control provision that required the United States attorney general to implement a nationwide handgun background check system.  While moving towards a national system, in the interim, state and local officials were required to conduct background checks of prospective firearm purchasers.  Under the Brady Act, sellers of firearms would report sales to their county Chief Law Enforcement Officers (CLEOs). * The CLEOs would then conduct background checks and confirm the lawfulness of the sales. * Printz and Mack (plaintiffs) were CLEOs in Montana and Arizona, respectively. o Procedure * Printz brought suit in federal district court against the United States government alleging that the Brady Act was an unconstitutional exercise of Congressional power because it compelled state officers to participate in federal service. o Rule * Congress may not compel state officials to participate in the administration of federal programs. o Application -- Scalia * These early laws establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power * Firstly, no clear evidence exists that historical Congresses believed they had the power to compel state executives into federal service.  there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years * Secondly, the Constitution creates a system of dual sovereignty whereby the states and the federal government are independent entities with different governmental functions.  Thus, the Constitution’s structure suggests that it is inappropriate for the federal government to violate states’ status as separate entities by compelling their officials to perform federal roles. * Structural argument: Not a lot in the text of the constitution says the states are protected from the fed government. Rather, it draws from the structure of government that we want to protect states' rights from the federal government.  Marbury is a structuralist argument. Judicial review comes from the structure of the constitution. * Finally, the present case is governed by New York v. United States, 505 U.S. 144 (1992), which held Congress may not require states to legislate according to federal standards because doing so constitutes a commandeering of traditional state policy making functions.  We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. * The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program * Thus the provision of the Brady Act allowing the federal government to directly control state officers conflicts with the New York decision and is unconstitutional. o Conclusion * The decision of the court of appeals is reversed. o O'Connor concurrence * The provisions in the Brady Act compelling state officials to carry out federal objectives are unconstitutional. * “the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid. See, e.g., 42 U.S.C. § 5779(a) (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice).” o Thomas concurrence * In my “revisionist” view, the Federal Government’s authority under the Commerce Clause, which merely allocates to Congress the power “to regulate Commerce ... among the several States,” does not extend to the regulation of wholly intra state, point-of-sale transactions * Under the Commerce Clause, Congress has the power only to regulate commerce among the several states, a power that does not extend to regulating wholly intrastate, point-of-sale transactions. o Stevens dissent (+ Souter, Ginsburg, Breyer) * When Congress exercises powers delegated to it by the Constitution, it may impose obligations to act on state and local officials, and even ordinary citizens. There are no constitutional restrictions in this area explicitly placed on Congress’s ability to regulate firearms. * Nothing in the Tenth Amendment grants the ability to state and local officials to ignore a command from Congress given pursuant to its Article I, Section 8 enumerated powers. * Additionally, the framers envisioned a system in which the national government has the power to make demands on local officials and individual citizens.  The framers’ goal of empowering the national government does not mean that states must surrender their sovereignty under the Tenth Amendment; the national government is simply authorized to act for the benefit of the union as a whole. o Souter dissent * The Supremacy Clause of the Constitution and state officer oath requirements of the Constitution combine to stand for the proposition that state governments are incorporated into the national government, and that state officials, because of their oath, are also incorporated into national government service.  This and other provisions from the Federalist Papers suggest that Congress, when acting pursuant to its constitutional powers, may require state government or state officials to act in furtherance of those constitutional powers. o Breyer dissent (+ Ginsburg) * Other nations have successfully implemented a system whereby local authorities are commissioned to carry out regulations created by a national, federal body.  The success of other nations with this model could be instructive in upholding the constitutionality of a similar model in the United States.

Answer 77

o Facts * The Indian Child Welfare Act (ICWA), a federal law enacted in 1978, restricts the removal of Native American children from their families and establishes a preference that Native children who are removed from their families be placed with extended family members or Native foster homes.  (There is an argument that when the U.S. is dealing with native americans, it is dealing with sovereign states.)  Individuals and states challenged the law, arguing that it commandeered the states by requiring them to place children in homes in violation of the Tenth Amendment o Procedure * Several individuals and states filed a lawsuit challenging the law as violating constitutional anti-commandeering principles of the Tenth Amendment.  The plaintiffs include several couples who wished to adopt or foster Native children, a woman who wished for her Native biological child to be adopted by non-Natives, and the states of Texas, Louisiana, and Indiana. o Rule * Congress had the power to pass the ICWA and the act is constitutional. o Application -- Barrett * + Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson * The challenge here is whether congress had the authority to pass the ICWA. States complain that this federal law is telling state courts who gets the child, so state courts have to enforce this law. States are saying the federal government cannot make them enforce this law. Fed government cannot tell state courts who to give kids to. * The Court has consistently recognized the “plenary (full) and exclusive”—though not absolute (unbounded)—power of Congress to legislate with respect to Indian tribes.  There could be limits on Congress's power to deal with the Indian tribes * The challengers claim that ICWA infringes on the states’ authority over family law, which belongs to the states. But, the Constitution and Court precedent establishes that when Congress validly exercises its Article I powers, federal law preempts conflicting state family laws. * The commerce clause gives the federal government not just a power over commerce, it is also power over Indian affairs.  While the Constitution does not expressly grant Congress the power to regulate custody proceedings of Indian children, the Court has interpreted the Constitution to authorize Congress to regulate “Indian affairs,” which is broadly inclusive. * The anti-commandeering arguments similarly fail.  They are putting requirements to place a child in a certain place.  This is not the same as the anti-commandeering decision in Printz because two of the challenged provisions apply not only to government entities, but also to private parties. * A demand that public or private actors can satisfy does not require the use of sovereign power and thus does not violate anti-commandeering principles.  A third challenged provision requires the states to maintain certain records related to child placement and provide them upon request to the Secretary or the Indian child’s tribe. * This provision also does not violate anti-commandeering principles, which apply “distinctively” to a state court’s adjudicative responsibilities. * Congress may impose ancillary recordkeeping requirements related to state-court proceedings without violating the Tenth Amendment. Rather, they are a logical consequence of our system of dual sovereignty in which state courts are required to apply federal law. It's like the naturalization laws where state courts have to transmit information. * States complain that they had to search for alternative placements for kids, but this is a misreading of the law. Law does not require searching for alternative placements. * The argument that states decide where the kids go runs headlong into the constitution, which doesn't give the states the last word. You can't say the states aren't getting to do their job here. That conflicts with the Constitution, which gives the federal government authority over Indian affairs. o Gorsuch concurrence, with Sotomayor and Jackson * Gorsuch cares a lot about Native Americans and the whole history of US relationship with natives. * He writes about the background and history behind Congress's power over the Indian tribes, which is in the constitution.  There has been a long history of removing Indian children from the tribes.  Part of the ICWA might have been to fix some of the U.S. history with Indians. * Congress did not lack the authority to enact this. * We need to ask what power the tribes have under the Constitution?  Under the constitution, the Indian tribes are sovereigns. When the US deals with the Indian tribes, it is dealing with another set of sovereigns-- not the states.  Members of Indian tribes (native Americans) are individuals. So, when congress regulates under its power over Indians, it is regulating individuals, and it has the power to do that.  Tribes are sovereigns, responsible of governing their own affairs. o Thomas dissent * The commerce clause is about commerce, it is not about children. Commerce is commerce.  Commerce clause gives fed gov power to regulate commerce with the indian tribes, not anything to do with kids.  The federal government does not get power over children from the commerce clause in the constitution. * Foreign affairs are things like war and peace. They are not domestic affairs like raising kids. * This act regulates child custody proceedings brought in state courts. That is for the states, not the federal government. o Alito dissent * You can talk all you want about protecting tribes, but congress does not have the power to protect tribes more than it protects vulnerable children. These cases are about childrens' lives and what is best for the child. The states get to protect children. Commerce is not children. You can't say that the commerce clause gives the fed gov the power over children. * Congress can't displace the long-exercised state authority over children.

Answer 78

* Dormant commerce clause is not in the constitution o If congress has power over interstate commerce (commerce clause), then the states can't undermine interstate commerce because that belongs to congress (this is the dormant commerce clause) o Dormant commerce clause -- states can't do certain things that interfere with interstate commerce clause * Sometimes the states aren't acting as states-- they are acting as market participants. The dormant commerce clause doesn't apply to market participants. It only applies to states.

Answer 79

o Facts * In 1974, New Jersey passed a law that prohibited other states from shipping their waste across its borders and depositing the waste in New Jersey landfills. * New Jersey stated that the purpose for the regulation was to preserve its environment, as well as not overburden its landfills and thus increase the costs of waste disposal for New Jersey residents. o Rule * A state may not discriminate against other states’ articles of commerce on the basis of origin. o Application -- Stewart (+ Brennan, White, Marshall, Blackmun, Powell, Stevens) * Under the Commerce Clause of the Constitution, if Congress has not acted to regulate an area of interstate commerce, states are presumably free to regulate that area.  Any state regulation is subject only to Commerce Clause restrictions and may not burden interstate commerce. * In this case, New Jersey passed its law for legitimate environmental and economic purposes.  However, New Jersey acted improperly when it sought to remedy its environmental and economic problems by targeting solely out-of-state waste producers with its regulations. * whatever New Jersey’s ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently * Economic protectionism -- laws that block the flow of interstate commerce through a state's borders.  the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade. * certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce.  But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils.  Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin. * The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all. * New Jersey’s refusal to let waste into its landfills simply because the waste originated from outside New Jersey violates the Commerce Clause. o Conclusion * The decision of the New Jersey Supreme Court is reversed. o Rehnquist dissent (+ Burger) * these [quarantine] cases are dispositive of the present one.  Under them, New Jersey may require germ-infected rags or diseased meat to be disposed of as best as possible within the State, but at the same time prohibit the importation of such items for disposal at the facilities that are set up within New Jersey for disposal of such material generated within the State * Landfills cause significant health and safety problems. * Solid waste which is a health hazard when it reaches its destination may in all likelihood be an equally great health hazard in transit.

Answer 80

o Facts * The City of Madison, Wisconsin (defendant) passed an ordinance making it unlawful to sell milk as pasteurized unless it had been processed and bottled at an approved pasteurization plant within five miles of Madison’s central square.  Another section of the ordinance prohibits the sale of milk, or the importation, receipt, or storage of milk for sale in Madison unless from a source of supply processing a permit issued after inspection by Madison officials * Dean Milk (plaintiff) was an Illinois corporation engaged in distributing milk in Wisconsin that had been pasteurized at plants about 65 and 85 miles away from central Madison. o Rule * A state statute that discriminates against interstate commerce will be held invalid if there are other less-discriminatory means by which the state legislature can accomplish its objective. o Application -- Clark * The practical effect of the statute is the exclusion of milk pasteurized in Illinois from the Madison, Wisconsin market, which burdens interstate commerce and benefits local milk producers.  This is plainly discriminatory against interstate commerce and is thus not permitted by the Commerce Clause.  Additionally, this discriminatory scheme is unnecessary because less discriminatory alternatives exist that would allow Madison to achieve its same health and safety goals relating to the quality of milk sold within its borders. * For example, Madison could enact stricter inspection methods to screen out bad milk before it is sold to Madison retailers, thus eliminating the need to discriminate against all milk from outside sources. * In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce.  This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable non-discriminatory alternatives, adequate to conserve legitimate local interests, are available * the regulation must yield to the principle that ‘one state in its dealings with another may not place itself in a position of economic isolation.' * The statute is invalid because the statute burdens interstate commerce and less discriminatory alternatives exist. o Conclusion * The decision of the lower courts is reversed. o Black dissent * The Madison ordinance should be upheld as a valid exercise of state regulatory power. * Firstly, the ordinance does not completely exclude Illinois milk from Madison markets because of the pasteurization location requirement, as nothing in the facts suggest it would be overly burdensome for Dean Milk to gather milk elsewhere and pasteurize it at Madison plants. * Secondly, the statute does not discriminate against intrastate and interstate producers, as it prohibits milk from being sold in Madison that is not pasteurized within five miles of the city regardless of whether the milk is produced by intrastate or interstate businesses. * Finally, the majority erred in concluding that other reasonable alternatives are available to the Madison legislature in choosing how to regulate milk for health and safety purposes. * The majority discounts the significant burden the statute imposes on Madison inspectors in requiring the inspectors to strictly inspect all out-of-state milk, relative to the small burden the statute imposes on interstate commerce merely to prohibit interstate milk from being sold in Madison.

Answer 81

o Facts * Arizona passed the Arizona Fruit and Vegetable Standardization Act (AFVSA), which required all cantaloupes grown and offered for sale in Arizona to be packed compactly in standard closed containers. * Bruce Church, Inc. (plaintiff) was a cantaloupe grower in Arizona that routinely shipped its fruits to California in uncrated containers. * Loren J. Pike (defendant) was the Arizona official tasked with enforcing the AFVSA. * In 1968, Pike prohibited Bruce Church, Inc. from shipping its cantaloupes in violation of the AFVSA. o Rule * States can't discriminate against interstate commerce. But even where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits * Even if a law does not discriminate on its face against interstate commerce, it can still violate the Dormant Commerce Clause o Application -- Stewart (unanimous) * Since the AFVSA regulates even-handedly and does not facially discriminate against interstate commerce, a balancing test will determine whether the burden on interstate commerce outweighs the local benefits to the state. * While Arizona has a legitimate state interest in having all cantaloupes shipped from its borders packed uniformly and labeled with their point of origin, this interest is only incidental in comparison to the extreme burden faced by Bruce Church, Inc. on its interstate commerce. * Bruce Church, Inc. would effectively lose its entire 1968 cantaloupe crop and be required to build an extra $200,000 plant in Arizona to comply with the AFVSA.  This financial burden is clearly excessive in relation to the putative local benefits Arizona would receive from enforcement of the AFVSA. * The disproportionate burden on interstate commerce means that the AFVSA is unconstitutional. o Conclusion * The decision of the district court is affirmed.

Answer 82

o Facts * California’s voters passed Proposition 12, a law that banned the in-state sale of certain pork products derived from breeding pigs confined to “cruel,” small stalls. A handful of other states had similar laws in place.  California’s Proposition 12 requires pork meat sold in California to be born of an adult female pig housed within 24 square feet and with room for that sow to turn around without touching her surroundings. * California was interested in the humane treatment of breeding pigs and wanted the pigs to have sufficient space to lie down, stand up, and freely turn around. * California imported most, but not all, of its pork products from out-of-state producers. * Two organizations representing pork producers (collectively, the council) (plaintiffs) sued specified California officials (defendants), claiming that Proposition 12 impermissibly burdened interstate commerce in violation of the dormant Commerce Clause.  The council conceded that California had no intent to economically discriminate against out-of-state pork producers or protect in-state producers, which were equally required to comply with the new law. o Procedure * The district court held that the council’s complaint failed to state a claim as a matter of law and dismissed the case. The Ninth Circuit affirmed. The United States Supreme Court agreed to review the matter. o Rule * Under the dormant Commerce Clause, a state may generally ban the in-state sale of certain consumer products if the state lacks discriminatory intent. o Application -- Gorsuch (+ Thomas, Sotomayor, Kagan, Barrett) * Majority: Gorsuch + Thomas + Barrett want to get rid of the dormant commerce clause  Others joining majority that CA wins, but they don't want to get ride of the dormant commerce clause: Sotomayor, Kagan + Barrett  Minority: Roberts, Alito, Kavanaugh, Jackson ] * Justice Thomas does not believe in the dormant commerce clause because it's not in the constitution. * This law doesn't discriminate against other states because it applies whether you are in/outside of California. * Under the dormant Commerce Clause, a state may generally ban the in-state sale of certain consumer products if the state lacks discriminatory intent. * Congress may regulate the sale of interstate goods under the Commerce Clause. If Congress chooses not to do so, states still may not engage in economic protectionism—that is, impose regulations designed to benefit in-state economic interests by burdening out-of-state competitors. * This court’s dormant Commerce Clause jurisprudence, including the Pike balancing test (from Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)) derives from the antidiscrimination principle.  There is no per se rule that, in the absence of discriminatory intent, an in-state ban of a consumer product is disallowed if the practical effect of the law is to control out-of-state commerce. * Here, the council concedes that Proposition 12 was not passed by California as a form of economic protectionism and that the law imposes the same burdens on both in-state and out-of-state producers.  Although a majority of this court’s justices do not concur, the Pike test cannot be applied in this case because California’s interests in the humane treatment of breeding pigs cannot be properly balanced against the financial burden on out-of-state pork producers and, further, the council has failed to plausibly plead that Proposition 12 substantially burdens interstate commerce, because, after all, many producers have already converted to group housing. * Question: Can you count a state's moral opposition to something as part of the balance? How much weight does it get?  Challengers also made an argument about extraterritoriality -- people of CA are setting the law for people in other states. 99% of the pigs are outside of CA. Through its state laws, CA is passing a law that governs everybody. o Conclusion * The decision below is affirmed. o Justice Sotomayor concurrence, joined by Kagan: * I vote to affirm the judgment because petitioners fail to allege a substantial burden on interstate commerce as required by Pike, not because of any fundamental reworking of that doctrine * I agree with THE CHIEF JUSTICE that courts generally are able to weigh disparate burdens and benefits against each other, and that they are called on to do so in other areas of the law with some frequency o Barrett concurrence * California's interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents * I disagree with my colleagues who would hold that petitioners have failed to allege a substantial burden on interstate commerce * If the burdens and benefits were capable of judicial balancing, I would permit petitioners to proceed with their Pike claim o Roberts concurrence/dissent, joined by Alito, Kavanaugh, & Jackson * petitioners’ have plausibly alleged a substantial burden against interstate commerce * Pike extends beyond laws either concerning discrimination or governing interstate transportation * it is possible to balance benefits and burdens under the approach set forth in Pike * Petitioners identify broader, market-wide consequences of compliance—economic harms that our precedents have recognized can amount to a burden on interstate commerce o Kavanaugh concurrence/dissent * plaintiffs’ complaint did not sufficiently allege that the California law at issue here imposed a substantial burden on interstate commerce under Pike. I respectfully disagree with that conclusion for the reasons well stated in THE CHIEF JUSTICE's separate opinion * I add this opinion to point out that state economic regulations like California's Proposition 12 may raise questions not only under the Commerce Clause, but also under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause  the Import-Export Clause prohibits any State, absent “the Consent of the Congress,” from imposing “any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing” its “inspection Laws.” * This Court has limited that Clause to imports from foreign countries. Properly interpreted, the Import-Export Clause may also prevent States “from imposing certain especially burdensome” taxes and duties on imports from other States—not just on imports from foreign countries  the Privileges and Immunities Clause provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” * one State's efforts to effectively regulate farming, manufacturing, or production in other States could raise significant questions under that Clause  the Full Faith and Credit Clause requires each State to afford “Full Faith and Credit” to the “public Acts” of “every other State * through Proposition 12, California is forcing massive changes to pig-farming and pork-production practices throughout the United States. Proposition 12 therefore substantially burdens the interstate pork market.

Answer 83

o Facts * In September 1980, the Commissioner of the Department of Natural Resources of Alaska (defendant) announced that the department would sell approximately forty-nine million board-feet of timber in Icy Cape, Alaska in October, 1980. * However, the contract for sale required that all timber sold must be processed within the State of Alaska before being shipped outside the state.  Congress did not authorize this * South-Central Timber Development, Inc. (plaintiff) was an Alaska-based timber retailer that did not operate an Alaska mill and sold primarily unprocessed timber to exclusively out-of-state clients. o Rule * A state may impose burdens on commercial transactions within the market in which it is a participant, but may not go further and impose conditions that have a substantial regulatory effect outside of that particular market. o Application -- White (+ Burger, Brennan, Blackmun, Powell, Stevens) * Commerce Clause has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce * whether Alaska’s restrictions on export of unprocessed timber from state-owned lands are exempt from Commerce Clause scrutiny under the “market-participant doctrine.” * a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities  Hughes v. Alexandria Scrap Corp., * The Court concluded the Dormant Commerce Clause did not prevent the state “from participating in the market and exercising the right to favor its own citizens over others.”  The Court reaffirmed Hughes in Reeves, Inc. v. Stake * ruling that South Dakota could participate in the market and favor its own citizens over citizens of other states.  White v. Massachusetts Council of Construction Employers, Inc * The Court rejected the argument that the city was not entitled to the protection of the doctrine because the order had the effect of regulating employment contracts between public contractors and their employees * the mayor of Boston’s executive order required that construction projects funded by the city be performed by a workplace made up of at least half the residents of the city. Boston was also a market participant and, therefore, not subject to the Dormant Commerce Clause  The limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market.  Alaska contends that it is participating in the processed timber market, although it acknowledges that it participates in no way in the actual processing. South–Central argues, on the other hand, that although the State may be a participant in the timber market, it is using its leverage in that market to exert a regulatory effect in the processing market, in which it is not a participant. We agree with the latter position. * downstream restrictions have a greater regulatory effect than do limitations on the immediate transaction. Instead of merely choosing its own trading partners, the State is attempting to govern the private, separate economic relationships of its trading partners; that is, it restricts the post-purchase activity of the purchaser, rather than merely the purchasing activity. * Alaska is a market participant in the timber market and thus can impose whatever conditions it wishes on commercial transactions relating to the sale of timber, but it is acting as more than merely a seller of timber in attempting to regulate timber processing. * However, because the Alaska regulations leave buyers no choice of where to process their timber, Alaska’s actions exceed the narrow scope of the market participant exception to the dormant commerce clause. o Conclusion * Alaska’s actions exceed the narrow scope of the market participant exception to the dormant commerce clause. * Court of appeals decision is reversed o Brennan concurrence * However, Justice White’s opinion and Justice Rehnquist’s dissent illustrate the inherent weaknesses in the market participant exception to the dormant Commerce Clause. o Powell concurrence (+ Burger) * This case should be remanded to the court of appeals to determine whether Alaska is acting as a market participant, and whether Alaska’s condition impermissibly burdens interstate commerce according to test established in Pike v. Bruce Church , 397 U.S. 137 (1970). o Rehnquist dissent (+ O'Connor) * Justice Rehnquist and O'Connor were more sympathetic to states' rights than other Justices. * The line drawn between the state as a market participant and the state as a market regulator is artificial and not supported by a coherent distinction. * Alaska is merely paying the buyer of timber directly, by means of a reduced price, to hire Alaska residents to process its timber.  This is a legitimate state purpose that could have been constitutionally accomplished by many other ways. * Justices Scalia and Thomas argued that the Constitution does not contain a “negative Commerce Clause.” It contains a Commerce Clause. “The Clause says nothing about prohibiting state laws that burden commerce."

Answer 84

I. Does the state law discriminate against out-of-state? A. NO. The law does not discriminate. 1. Privileges and immunities of Article IV does not apply. 2. A law can still violate the dormant commerce clause if the law burdens interstate commerce, and its burdens exceed the benefits. B. YES. The law does discriminate against out-of-state. [Facial, Purpose, Impact] 1. If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. Unavailability of nondiscriminatory alternatives = “no other means.”  EXCEPTIONS: a. Congressional approval b. Market participant (if the state is a market participant) 2. If the law discriminates against out-of-state with regard to important economic activities or civil liberties, it violates P and I unless it is necessary to achieve an important government purpose. 3. P and I does not apply to corporations and aliens.

Answer 85

o P&I: citizens only; 14A = all persons o Some, like Thomas, say 14A is only procedural—no such thing as substantive rights. P&I is for substantive rights. o Justice Black – P&I totally incorporates entire bill of rights. o The Court took the selective incorporation approach—one by one.

Answer 86

o Thomas opinion (+ Roberts, Alito, Gorsuch, Kavanaugh, Barrett): NY law that required people to show a special need to get a gun is unconstitutional because it is too restrictive under 2nd amendment. (- Breyer, Sotomayor, Kagan)  To understand meaning of 2nd amendment, look at history/tradition.

Answer 87

Justice Harlan said the due process clause stands on its own bottom and incorporates something if it is a “basic value implicit in the concept of ordered liberty.”

Answer 88

o Scalia (+ Roberts, Alito, Thomas): 2nd amendment protected individual right to bear arms. (Not incorporation because DC is not a state.)

Answer 89

o Facts: Chicago banned handguns. o Alito (+ Roberts, Scalia, Kennedy, Thomas): Bill of rights guarantee applies to states if it is fundamental to nation’s scheme of ordered liberty or deeply rooted in nation’s history and tradition.  Minority: Sotomayor, ginsburg, Breyer, Stevens  Due process of 14A incorporates 2nd amendment.  Right to bear arms is fundamental and necessary to scheme of ordered liberty, and deeply rooted. o Thomas concur: 2nd amendment is fundamental to liberty and rooted in history, but incorporation is through P&I, not 14A. 14A is only about process and doesn’t include substantive rights. o Scalia concur: Just because guns can injure doesn’t mean they shouldn’t be incorporated. o Breyer dissent (+ Sotomayor, Ginsburg): Nothing in the Constitution’s text or US’s history supports that a right of self-defense is fundamental or that 2nd amendment is incorporated. Authority over guns should remain with State legislatures. o Stevens dissent: right to bear arms is unlike other rights incorporated because it is not necessary. State regulation of guns is also deeply rooted in history. State/local governments should regulate guns. History is not dispositive.

Answer 90

o 3rd amendment quartering o 5th amendment grand jury indictment o 7th amendment right to jury trial in civil cases o 8th amendment prohibition on excessive fines

Answer 91

o Facts: Timbs charged with dealing drugs. Police took $42K car. o Ginsburg (+ Roberts, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh): 14A incorporates to states the constitutional protections fundamental to ordered liberty and deeply rooted in history and tradition.  Unanimous. Current court + Breyer and Ginsburg instead of Jackson and Barrett  8th amendment is rooted in history. All 50 states constitutions prohibit excessive fines. It is fundamental to ordered liberty. o Gorsuch concur: Incorporation should be through P OR I, not 14A. o Thomas concur: 14A doesn’t incorporate substantive rights. P OR I incorporates.

Answer 92

o Majority: Court didn’t incorporate requirement for jury verdict to be unanimous.  States don’t have to use the same elements as federal government. States are laboratories of democracy.

Answer 93

o Facts: Louisiana & Oregon allowed non-unanimous jury verdicts. Ramos convicted. o Gorsuch (+ Thomas, Breyer, Sotomayor, kavanaugh, Ginsburg, ): Criminal conviction based on non-unanimous jury verdict violates constitution.  Minority: Roberts, Alito, Kagan  6th amendment applies to states through incorporation. o Thomas concur: P&I is for incorporation, not 14A. o Kavanaugh concur: It is time to overrule Apodaca.  Stare decisis factors: * 1. Is prior decision not just wrong, but grievously or egregiously wrong? * 2. Has prior decision caused significant negative jurisprudential or real-world consequences? * 3. Would overruling prior decision unduly upset reliance interests? o Sotomayor concur: Overruling precedent is compelled here. Racial origin of LA and OR laws. o Alito dissent (+ Roberts & Kagan): Should not overrule Apocada because it elicited enormous reliance by states.

Answer 94

o Kavanaugh: Inmates whose (non-unanimous) convictions occurred before Ramos was decided cannot challenge convictions.  Joined by: Roberts, Alito, Gorsuch, Barrett, Thomas o Kagan dissent (+ Breyer, Sotomayor): Ramos was watershed rule that should’ve been applied retroactively. Court undermined precedent.

Answer 95

o Facts: New Orleans had outbreaks due to slaughterhouses contaminating water. State law created a company that had monopoly over slaughterhouse business and butchers had to rent space from company.  Butchers said law unconstitutional because of involuntary servitude (13A) and violates privileges & immunities, equal protection, and due process (14A) o Miller (textual argument): 13A is only about black slavery before civil war. P&I only protects rights guaranteed by US (federal).  P&I of the several states are the P&Is that are fundamental.  Two requirements for P&I: * Citizens of the U.S. (federal gov is violating, not state) * Privilege is covered by P&I.  This is about Louisiana law and this is not a P&I that is covered by 14A anyway. o Field dissent: P&I applies to states AND federal. 14A is not just about slavery. Right to pursue employment is a P&I. o Bradley dissent: Employment is a P&I. P&Is apply to state and federal. o Swayne dissent: 14A is for federal and state citizens.

Answer 96

KOSS GB o Facts: CA said that new residents for their first year can only get welfare benefits that they would get in their original states. o Stevens (+ O'Connor, Scalia, Kennedy, Souter, Ginsburg, Breyer): A state violates 14A’s P OR I by limiting welfare benefits based on a person’s status as a new resident.  There is a right to travel between states.  There is a right to be treated as welcome visitor. Article IV P&I prohibits state govs from discriminating against out of state residents without sufficient justification.  There is a right to be treated like other citizens of a state upon choosing to be a permanent resident of a state. 14A P&I.  Congress cannot authorize states to violate constitutional provisions, so doesn’t matter if federal law authorizes the statute.  Statute violates P&I unless necessary to serve a compelling government interest. * Preventing poor migration is not compelling gov interest. o Thomas (+ Rehnquist) dissent: Original intention of P&I was to encompass fundamental rights, not rights to state benefits.  P&I will become a tool for inventing new rights. We should construe narrowly. o Rehnquist (+ Thomas) dissent: P&I has only been used once in last 130 years. States have valid interest in ensuring that only bona fide new residents get benefits.

Answer 97

o Facts: NH said only state residents can be admitted to bar. Piper needed home address in NH to get into bar. o Powell (+Burger, Brennan, White, Marshall, Blackmun, Stevens, O'Connor): States can discriminate against rights of out-of-state residents if there is a substantial reason for the difference in treatment and the discrimination practiced against non-residents bears a substantial relationship to the state’s objective.  Practice of law is a privilege.  Here, reason for discrimination is not substantial. o White concur: This case was decided about requiring residence. Business ownership is different than residence—we are not deciding whether a state can require business ownership in the state for law practice. o Rehnquist dissent: Law is different because it requires a local presence.

Answer 98

states cannot prohibit out of staters from receiving abortions in their state (fundamental).

Answer 99

access to public records is not fundamental.

Answer 100

charging different rates for commercial shipping boat is not fundamental.

Answer 101

hunting not fundamental.

Answer 102

o Facts: NY law limited hours for bakers. Lochner (employer) fined. o Peckham: State may not regulate the working hours mutually agreed upon by employers and employees because this violates their 14A right to contract freely under the due process clause.  States have police powers, but here, it was exceeded.  Right to contract is a liberty protected by 14A. o Holmes dissent: States can regulate peoples’ lives and can make their own judgments about what is best for their people. o Harlan (+ White) dissent: Right to contract is limited by police power and related to promoting health, safety, and general welfare.

Answer 103

o Facts: OK law said only optometrist/ophthalmologists can fit lenses. o Douglas (+ Clark): State can regulate a business if legislature determines there is a particular health and safety problem at hand and regulation is rational way to correct problem.  If there is a health/safety problem at hand and the law is a rational way to correct it, it is sufficient. § Challengers argued that there was an equal protection violation because it subjects opticians to this law but exempts sellers of ready-to-wear glasses. But, the law is just moving one step at a time. That doesn't violate equal protection.

Answer 104

o All persons similarly situated should be treated alike. o Strict Scrutiny  Fundamental rights, race/ethnicity, alienage, national origin  Gov: Law is narrowly tailored (necessary) to achieve a compelling interest * No other alternative to achieve the interest o Intermediate Scrutiny  Gender  Gov: Law is substantially related to an important government interest o Rational Basis  Age, education, poverty, & everything else  Plaintiff: Law is not rationally related to a legitimate government interest

Answer 105

Be positive regarding saving old o Facts: Center applied for City permit to build facility for mentally disabled. City denied. o White (+ Burger, Powell, Rehnquist, Stevens, O'Connor): Mentally disabled are not a quasi-suspect class and thus any legislative regulations affecting their rights are subject to rational basis review. o Stevens (+ Burger) concur: We should use rational basis test for all cases. o Marshall (+ Brennan, Blackmun) concur/dissent: We should use heightened scrutiny for this case.

Answer 106

o Facts: Gore’s car was repainted before he bought it. o Stevens’ majority (+ O'Connor, Kennedy, Souter, Breyer)  Three factors: * Defendant’s degree of reprehensibility * Ratio of compensatory to punitive * Difference between this remedy and state sanctions in comparable cases.  $4K actual and $2M punitive were grossly excessive. o Breyer (+ O’Connor & Souter) concur: lack of proportionality between compensatory and punitive shows excessiveness. o Scalia (+ Thomas) dissent: Court interfering with state government powers o Ginsburg (+ Rehnquist) dissent: Court ventures into states’ domain.

Answer 107

o Automobile insurance case. o Court used Gore test. o $1M compensatory with $145M punitive was too high. o Rare for award over 9:1 punitive:compensatory ratio to be allowed.

Answer 108

o Oil spill case o 1:1 ratio only for compensatory:punitive. $500M compensatory and $2.5B punitive was too much.

Answer 109

o Plaintiffs’ names accidentally matched to government criminal list. Sued over inaccurate filed. o Jury awarded about $900 per class member and about $6K punitive. Ninth Circuit reduced to about $4k per class member (4X the compensatory).

Answer 110

o Facts: Sexual assault by police officer but no injury. o Jury awarded $1 nominal and $500K punitive. 3rd circuit reduced to $5K punitive.

Answer 111

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Answer 112

o Free exercise – if it’s neutral, then it’s fine. Not neutral = strict scrutiny. o RFRA – strict scrutiny even for neutral laws. * In response to Smith, Congress passed the Religious Freedom Restoration Act, RFRA, which was intended to deliver to religious litigants what Smith did not: strict scrutiny for neutral and generally applicable laws that burden religion * Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person * (1) is in furtherance of a compelling governmental interest and * (2) is the least restrictive means of furthering that compelling governmental interest * The Court ruled in City of Boerne v. Flores, 521 U.S. 507 (1997) that Congress did not have the power to apply RFRA to all the state governments because it was so far removed from the actual constitutional standard announced in Smith * RFRA was re-enacted in 2000 to apply to federal law.

Answer 113

o Facts: Oregon law prohibits drugs. Smith is Native American and uses peyote for religious purposes. Jobs fired them for this use. Applied for unemployment with Employment Division but were denied because of work-related misconduct. o Scalia (+ Rehnquist, White, Stevens, Kennedy): The right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” If the law isn’t neutral, then we evaluate it under strict scrutiny. * First amendment protects beliefs absolutely, but not actions absolutely. * First amendment is not violated if the incidental effect of a generally applicable law prohibits/burdens a religious activity. * Hybrid test: The only decisions where the 1st amendment bars the application of a neutral, generally applicable law to religiously motivated action have involved the Free Exercise clause along with another constitutional provision. This is the only way around the neutral test. * Balancing test from Sherbert v. Verner is for employment compensation arena, not religious exemptions from generally applicable criminal law. * Oregon can make an exception, but it is not the role of the courts. o O’Connor concur (+ Brennen, Marshall, Blackmun): Sherbert’s “compelling state interest” test applies here. State did display a compelling state interest, so ultimate upholding of the law is correct. Religious freedom should always be evaluated under strict scrutiny. Disagrees with neutral test. o Blackmun dissent (+ Brennan, Marshall): All cases involving a law that burdens free exercise should be evaluated under strict scrutiny (compelling state interest, no less restrictive means to serve it)

Answer 114

o Holding: employers passed the RFRA test and did not have to provide contraceptive insurance due to their religious reasons. o Alito majority (+ Roberts, Scalia, Kennedy, Thomas): Congress intended for RFRA to apply to corporations. It is a compelling interest but it is not the least restrictive means--there were exemptions for nonprofits for religious reasons, so these exemptions can apply here too. o Ginsburg dissent (+ Sotomayor, Breyer, Kagan): Under Smith, the contraceptive mandate did not violate Free Exercise.

Answer 115

o Facts: PA contracted with CCS to secure foster families. PA had nondiscrimination policy and no longer wanted to work with CCS because it refused to certify gay couples. Policy said agency could not reject foster family based on sexual orientation unless city’s commissioner granted an exception. o Roberts (unanimous + Breyer): The government’s creation of a formal mechanism allowing it to grant exceptions to a policy based on discretion renders the policy unneutral, so it will be evaluated under strict scrutiny. * This case falls outside Smith because it is not neutral/generally applicable because it allows individual exemptions. So, it must pass strict scrutiny. * Does not pass strict scrutiny. Not narrowly tailored to a compelling government interest. The interests are insufficient because the interest in promoting equality, though important, is not compelling enough to deny CCS ability to secure foster parents and act against its religious beliefs. o Gorsuch concur (+ Thomas, Alito): Smith was wrong for allowing restrictions on religion to bypass strict scrutiny if they were neutral/generally applicable. o Alito concur (+ Thomas, Gorsuch): In Smith, Court pushed aside precedent. Smith should be replaced by strict scrutiny in all cases. o Barrett concur (+Kavanaugh, Breyer): A law burdening religious exercise must satisfy strict scrutiny if it gives power of exemption. City cannot satisfy strict scrutiny. No need to decide if Smith should be overruled. Smith should be replaced.

Answer 116

o Baker refused to bake for gay couple. CO had anti-discrimination laws. o Kennedy: Ruled for the baker. CCR said negative things about religion and thus violated Free Exercise.

Answer 117

o Facts: State law limited attendance to 25% of building capacity or 100 attendees. o Ginsburg, Breyer, Kagan, Sotomayor, & Roberts (no particular order): law did not violate 1A. o Roberts concur: Law applied to secular gatherings too, so did not violate.

Answer 118

o Court upheld Nevada’s COVID policy allowing only 50 people to attend religious services. o No majority opinion. o Dissents: Alito, Gorsuch, Kavanaugh

Answer 119

o Court ruled in favor of the New York churches’ and synagogues’ challenges to Gov. Cuomo’s COVID restrictions of 10-25 people max. o Per curiam o Concurrences: Gorsuch and Kavanaugh o Dissents: Roberts; Breyer with Sotomayor and Kagan; Sotomayor with Kagan.

Answer 120

o Court ruled that California must open the churches that had been closed for indoor worship due to COVID-19. Court allowed the state’s bans on singing and chanting to continue. o The state can still hold the churches to 25% of capacity attendance. Justices Gorsuch and Thomas would have given the churches freedom in all these areas. * Alito joined those two but would have given the state 30 days before the injunction against it could take effect. o In her first opinion for the Court, Justice Barrett, joined by Kavanaugh, argued that the churches had not yet shown that the singing and chanting bans were too strong but that they could litigate that in the future. o Chief Justice Roberts deferred to the state’s wishes on singing and chanting and size of attendance but ruled that there should not be deference to the closing of the churches. o Justice Kagan dissented, joined by Breyer and Sotomayor, concluding that science had been abandoned in favor of judicial edict

Answer 121

o California could not restrict at-home religious exercise due to COVID. o The per curiam decision was for Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. o Chief Justice Roberts would not have granted the injunction against the state’s practices. o Justice Kagan dissented, joined by Breyer and Sotomayor. o Justice Kagan dissents, “California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment

Answer 122

o Unanimous decision from the Court o Court said they didn't overrule Hardison, but they clarify what title 7 requires. o Facts: Groff was a Christian working for USPS. USPS didn’t deliver on Sundays. USPS contracted with Amazon, which delivers on Sundays. Groff received progressive discipline for not working Sundays and resigned and sued under Title VII of Civil Rights Act. o Alito: Title VII requires employer to reasonably accommodate a religious practice unless doing so will result in increased costs that are substantial in the overall context of the employer’s business. * Title VII prohibits employers from discriminating against employees/applicants on basis of protected characteristics, including religion. Title VII requires employers to accommodate religious practices unless it imposes an undue hardship on conduct of employer’s business. * Hardison: Employer has undue hardship if they incur more than a de minimis cost to accommodate a religious practice. We change this standard from de minimis to “increased costs that are substantial in the overall context of an employer’s business.” o Sotomayor concurrence: Agrees with not overruling Hardison. Believes in stare decisis and that it promotes the separation of powers because Congress could change the statute if they wanted to, but they didn't, so the court should respect that.

Answer 123

allows Congress to enforce amendment 14

Answer 124

imposed strict scrutiny on all laws that substantially burden religion. Applied to federal gov, state govs, local govs. Restores compelling interest test of Sherbert—gov must prove that law serves compelling interest in the least restrictive means

Answer 125

* Facts: Flores applied for his church to get a building permit to expand. City denied due to law preventing expansion of historic landmarks. * Kennedy (+ Rehnquist, Stevens, Thomas, Ginsburg, Scalia): * To use section 5 of 14A, two requirements: * Congress must be exercising its power to remedy a condition, not creating substantive law. * Congress’s legislation must utilize congruent and proportional means to achieve that legislative purpose. * Here, Congress is not doing something remedial—it enacted something substantive by telling the states what to do—that strict scrutiny would be used for laws with religious restrictions. * Congress has power to enforce 14A, not to determine what is constitutional (Marbury problem) * And, it is not proportional or congruent means because of the litigation costs compared to the federal interest. RFRA for states is unconstitutional. Federal RFRA is good. * Stevens concur: RFRA is a law respecting the establishment of religion. Violates establishment clause. * Scalia (+ Stevens) concur: We shouldn’t overturn Smith here. Disagrees with O’Connor’s dissent. * O’Connor (+ Breyer) dissent: History doesn’t support Smith. Founding fathers were concerned with religious liberty. We should use strict scrutiny for everything. * Souter dissent: Smith should not be followed here and has little value as precedent. * Breyer dissent: Court should direct parties to brief if Smith was correctly decided. No need to consider if section 5 would authorize RFRA.

Answer 126

○ Facts: Clinton SA'd someone before pres. ○ Rule: Stevens § The United States Constitution does not grant the President of the United States immunity from civil litigation involving actions committed before entering office. ○ Application -- Stevens: Official actions different. This was before President, not official. Would not burden future pres. Fitz: suits from official conduct are immune. ○ Breyer concurrence: If pres has good reason for burden, it's different.

Con Law Flashcards

(152 cards)