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1

Constitutional Interpretation

1) Textualism -- focus on written word
2) Originalism --historical focus, original intent, original meaning
3) Structuralism -- broad focus, interpret words in light of the whole text, uphold integrated whole (maintain federalism, separation of powers)
4) Precedent -- consistent with past, stare decisis
5) Prudential -- practical concers: role of judiciary (restraint, deterrence), Compliance, social effects of rulinh
6) Aspirational -- evolving meaning, Constitution broad has adaptable priinciples
7) living constitution -- contemporary meaning
8) Legal Realism -- judges as poltical actors

2

Legal Realism

1) judges as political actors
2) Attitudinal model: vote = politcal idealogy
3) institutional model: institutional constraints, internalize situational role

3

Marbury v. Madison

1) Background: 1803 (E19) "midnight appointments" Marbury seeks appointment in writ of mandamus asfter rejection of appt by madison
2) Constitutional Questions
Violation of legal rights of Marbury?-- yes commission granted, has right to legal redress
Does SCOTUS have power to grant redress? -- no Judiciary act is unconstitutional, Conggress cannot extend authority of the court
3) Precedent -- JUDICIAL REVIEW -- ability to strike down laws
4) Escapes dilemma, grants Jefferson small victory

4

Alternatives to Judicial Review

1)Eakin v Raub-- Gibson's Dissnet
2) Legislative Supremacy -- e.g. repeal of the alien and sedition acts 1798
3) State Nullification? --> McCulloch v Maryland
4) Departamentalism -- each branch responsible for own domain, co-equal branches, no one supreme

5

Martin v. Hunter's Lessee

1) Background: Conflict over land inheritance with foreign party
2) SCOTUS decide with foreign party based on treaty, VI SC rejects SCOTUS decision
3) Constitutional Questions:
SCOTUS Appellate Power--jurisdiction over state courts?
SCOTUS single highest court in US?
4) Decision: SCOTUS has authority over state courts
a) nature of const, govt of people not states
b) text of the const
-- art III = single court, appellate power
-- art VI = Supremacy Clause. fed > state
5) SIG: makes clear nature of the union and the SCOTUS is the supreme law of the land

6

McCulloch v. Maryland

1) Background: 1819 (E19) National Bank taxed by Maryland
2) Constitutional Questions:
Can Congress charter bank (Const power)?
Can MD tax national bank (can states impede nat govt)?
3) Maryland Claim: Compact Theory -- "sovereign and independent states" narrow reading of implied powers = not expressley granted, then reserved to states
4) Marshall: broad reading of Doctrine of implied powers = const broad outline needs to be applied to different situations
Necessary and proper clause (1.8)
5) Marshall: State cannot tax nat govt: Supremacy clause, govt of the people not states
nature of tax power= no tax without rep
nat power subject to nat limitis

7

Doctrine of Implied Powers

1) Elastic clause = (1.8)
2) McCulloch V Maryland = Marshall's broad reading
3) often cited to justify federal expansion i.e. mculloch v maryland

8

The Taney Court

Doctrines of Justiciability
1) "case and controversy" -- standing, mootness, ripeness
2) Political questions -- Marbury v. Madison
3) Luther v. Borden
Background: Dorr's rebellion -- illegitimate search and seisure? illegit govt?
Const Q: Guarantee Clause: rep for of govt, Which Rhode Island Govt? Can court decide?
Decision: defer to congress (if peaceful) and exec (if insurgency)
Judicial restraint!

9

Judicial Obstruction

1) Court as countermajoritatian institution
2) Four Horsemen of the Apocalypse vs FDR, New Deal Democrats
3) The Civil Rights Cases
4) Lochner v. New York
constitutional questions: can state regulate work hours?
violation of Substative due process? Pol Question?
majority = no, o rational basis for regulation of substantive due process

10

Lochner v. New York

1) constitutional questions: can state regulate work hours?
violation of Substative due process? Pol Question?
2) majority = no, o rational basis for regulation of substantive due process
3) harlan's dissent = Rational basis test
a) defer to minimally reasonable judgement
b) IF law is unwise --> people will correct it
c) Court should not be super-legislative
d) political question?

11

Cooper v Aaron

1) Background: Little Rock desegregation, Brown v Board challenged by Arkansas Gov, Eisenhower send in national gaurd
2) Const Q: State right to refute SCOTUS decision, defy nationalgovernment
3) Court: no 14th amendment
6.2 Supremacy clause
4) cites Marshall in Marbury v Madison

12

Baker vs Carr

1) Background: 1962 (L 20) gross jerrymandering from rural to urban areas on state and national level
2) Constitutional Questions
a) Violation of guarantee clause (rep form of govt)?
b) Violation of Equal Protection Clause (14th Amendment)
c) Is there a judicial remedy?
3) Decision
a) guarantee clause = politcal
b) equal protection clause = judiciable, establsihed via case law
c) Reverse jerrymandering, remand lower courts to address with standard of one person one vote
3) Frankfurter's Concerns
- no fixed standard, court decide philisophical dispute
- judicial authority req. neutrality
- practical concerns: to overturn impacts every state
- see court as sole portector of rights
4) Brennan's Political Question Doctrine -- textual guidance, clear objective standard, prudential

13

Brennan's Political Question Doctrine Test

Baker v Carr
1) Textual guidance
- textually demonstrable constitutional commitment to coordinate pol department
2) Clear, Objective Standards
- lack of judicial standards
- impossible to decide without determining initial policy of a non-judicial discretion
3) Prudential
- No independent resolution without disrespecting other branches
- unusual need for unconstitutional adherence to pol decision already made
- embarassment of court due to lack of enforcement
4) Application to Luther v Borden
-SCOTUS make ruling? not political question?

14

New York v US

1) Background: 1992 (L20) Disposal of nuclear waste
- state agreement, congressional enforcement
- Low Level Radioactive Waste Act
2) Challenged provsions: monetary (surcharge), Access (inc surcharge, deny access), "Take Title"
3) Constitutional Questions:
- Does Congress have Regulation Power over states?
- Does such regulation violate federal separation of powers?
4) Majority Justice O' Connor - FORMALISM
- generally adheres to precedent
-accepts expansive fed powers
- draws limit at "take title" -- fed cant commandeer state govt, order legislation
- cites "residual and inviolable state sov: states forced to act on fed will
- accountability: state officials held responsible for fed program
-div of powers, branches cannot give away authority
5) Justice White: Dissent - FUNCTIONALISM
-national crisis demands flexibility to address
-respect state innovation
6) CONT with McCulloch v Maryland -- state sov beats out fed sov`

15

Printz v US (1997 L20)

1) Background: Gun Regulation, Brady Bill / CLEOs have to temporarily carry out background checks while fed govt
2) Constitutional Questions
- Valid extension of commerce power?
- Requires local law enforcement to enforce federal regulation --> violation of federalism?
3) Scalia (majority)
- violates national separation of powers
- undermines "unitary executive" by giving law enforcement power to officials
Structure: violates dual sovereignty, conccurrent authority of 2 govts
- use NY v US as precedent
4) Stevens: Dissent
-response to nat'l emergency (defer to leg judgement)
-minimal req of local officials, pass on onifo
- states rights not real limit to fed, powers extend as necessary, limits only as real amendment
- national representative elections check fed gov

16

Commerce Clause

1) 1.8.3
2) used to justify federal regulatins

17

Wickard v Fillburn (1942) (M20)

1) Background: Ag. adjustment act -- production limits, fillburn producingexcess wheat for private use
2) Constitutional Question:
-Does commerce clause extend to local level
3) SIG
-transitioned commerce clause from being subject to a categorical test (does act count as commerce/ directly impact commerce)
to
Rational Basis Test -- rational basis for regulation
does act have substantial aggregate effect on econ?
4) deference give to fed govt

18

Heart of Atlanta v US 1964 (L 20)

1) Background: Civil Rights Act of 1964 (L20)
-no racial discrimination in places of public accomadation
- Not 14.5 Enforcement Power but commerce Clause (1.8.3)
2) Unanimous decision
- Wickard standard yes substantial aggregate effect
- rational basis
-moral end does not matter -- defer to Congress
3) Implication: frame regulation as economic = blank check to Congress??

19

US v Lopez

1) Background: Gun Free School Zones Act
2) Constitutional Question:
-Does Commerce clause extend to non-economic activity?
- to posses ion of firearms?
3) Rehnquist Majority:
-upholds precedent in wickard, draws line
-accepts outcome but not rationale = regulating non-econ activity, very indifferent effect on econ
-puts limit on commerce power to protect nation state distinction as seen in federalism
- stricter scrutiny for rational basis test
4) dissent
-rational basis
-subatantial aggregate effect
-defference in light of national emergency

20

South Dakota vs Dole

1) background: National Minimum Drinking Age Act
- not direct regulation of commer = NOT commerce clause
- Condition: lose 5% of Highway funds if refuse to comply = SPENDING POWER
2) DOLE TEST (Limits on Spending Power)
a) must be used in the pursuit of general welfare
b) unambiguous conditions
c) Connection b/t condition and the funding program
d) condition must not be unconstitutional
e) condition must not be coercive (to be used in NY v US)
3) Regulation passed

21

NFIB vs Sebellius

1) Background: ACA
-Individual Mandate - have to buy healthcare
- commerce or tax power?
2) expand Medicaid
-expand who qualifies for and benefits
- administered by states, jointly funded
- states can opt out but lose ALL medicaid funding
3) Constitutional Question:
-individual mandate: justifiable use of commerce clause? justifiable use of tax power?
-medicaid expansion: exceed spending power? violate federalism? = coercive?

22

NFIB v Sebellius -- Individual Mandate

1) commerce
- Roberts (majority) formalism, doctrinalism, must be limit to commerce power (lopez non-econ act)
- Ginsberg (dissent) functionalism, defer for flexibility, national crises
- is econ issue non-participants still in the market
2) tax
-Roberts penalty operates like tax
-Ginsberg no reason to prefer tax
-dissent: Judges writing law

23

NFIB v Sebellius -- Medicaid Expansion

1) Majority (Robertsm w/ Kagan and Breyer)
-coercive, crossed line = no choice for states
- blurred accountability. state officials lose out with either option
2) Dissent (ginsburg and sotomayor)
-defer to congressional judgement
-federal funding is wholly discretionary
-coercion line = no clear standard so non-judiciable
3) SIG
- preserve federalism gains, places limit on spending power
-avoid seeming overly political

24

Morrison v Olsen

1) 1988 - Ethics in government Act 1978
- allows fro creation of independent counsel
- selected by judicial panel
- removal subject to review
2) Constitutional Question: Does creation of independent counsel infringe on executive privilege?
3) Majority: Rhenquist
- Appointment's Clause (Art. II. 2. 2)
Distinguish bt principal and inferior officer
Ind counsel = inferior officer (tem0 and spec)
- Pragmatic Concerns
Congress does this to address conflicts of interest between executive
4) Dissent: Scalia
a)in no way inferior officer
- full prosecutor power with no superior
b) violates "unitary executive"
- vestment clause Art. 2. 1
c) Practical Danger: run amok, witch hunt
- could undermine all executive actions
d) use existing checks instead
- impeachment
- elections
- cut budget, etc.

25

INS v Chadha (1983)

1) background: Immigration and Nationality Act
- attn. general discretion for deportation
- Congress review exemptions
- Chadha denied exemption
2) Const Q: legislatice veto infringe on executive authority?
3) Dissent (White)
- leg veto keeps exec in check
- otherwise too much authority, preserves sep of powers