Historical Introduction to the Constitution of the United States

Colonial experience : revolt against British rule

The first settlement was Jamestown, Virginia in 1607 and it grew slowly to 10,000 residents in 1619.
Women on board of British ships were to be sold for marriages and Dutch ships carried slaves to be sold to farmers creating therefore slavery.
A legislature was also created with one governor, six consellors, two representatives from each plantations who were called burgesses. This legislature was called the house of burgesses.
In January 1620 a second colony was created in Massachussetts by British immigrants known as the pilgrims (calvinists). They were forced to leave Great Britain because of their religion, which they were not free to practise. Half of them died in wintertime, but were successful rapidly thanks to the production of corn (thanksgiving holiday).
Other religious pilgrims came to the newly founded colony : the puritans who wanted to purify the church of England.
In 1636 the colonies of Rhode Island and Connecticut were created.
In 1700, there were up to 13 colonies along the Atlantic coast with mainly British immigrants.
By 1776 75% of the white population was of British decent. The largest non-English group of imigrants came from Germany for religious purposes.
Immigrants also came from Scotland, Ireland, Holland, France, Italy, Sweden.... but they all set up in the British colonies.
The colony of New Amsterdam was the first non English colony to be set up in 1624. In 1664 this land was rented by Charles II to the Duke of York, becoming therefore an English colony known as New York.

These colonies needed a form of self government, which was achieved with the houses of burgesses. They soon asserted a rule according to which a governor could not raise taxes without the consent of the house. Some said that the money was to be spent according to the house's will.
In 1632 the second legislature was established in Massachussetts with one representative for each town.
By 1700 each colony had a system of government with some similarities :
    - one governor appointed by the king
    - consellors also appointed by the king to assist the governor. This position was developped into an upper chamber.
    - a representative assembly chosen by the colonists. This assembly could initiate bills, levy taxes and appropriate funds. It is the power of the purse.
there was also a judicial system with rules based on the British common law.

There is a great value placed on British documents because it is a guarantee of liberties. Each colony was established by a royal charter. It provided that people born and living in American colonies had the same rights as British citizens.
By the mid 1700's the UK and the colonies had arrived to the compromise : there was a control by the UK but with a great form of self-government. Parliament controlled American foreign affairs and international trade, everything else was left to the colonies.
During the 18th century, a great freedom was left to to the colonies compared to others.
But it was not an absolute freedom. The governor had a right to veto. Decisions by the courts could be appealed in London by the Privy council.

Colonies were really separated (great distance with no trade beteween them).
The seven years war between the UK and France changed all that in 1756-1763. France allied with the indians. France lost a lot of land, leaving only one French colony : Louisiana.
The UK were unhappy of the American response to the war and the royal governors had to request funds and men to the legislature. The UK wanted to righten up the situation as the American continued to trade with the French.
The UK tried to control French-American trade by adopting writs of assistance. The colonists had the right to be secured in their home, this writ gave the police the absolute power to search houses and business.
The UK also imposed a tax on the colonies by the Stamp Act of 1764. According to the Americans, olny their legilsature had the power of imposing taxes : no taxation without representation.
In 1765 the colonies confirmed their alliance with the British crown. The Parliament repealed the Stamp Act.
In 1767 the Parliament imposed import duties but the Americans boycotted these goods. The Act was repealed except for tea. The American boycotted tea, leading in 1773 to the Boston tea party. In 1774 the port was closed in Boston, and there was a policy of quarteering troops in home.
Comitees of correspondance were created to express the grievances of the Americans, and were created the sons of liberty who were to hear the complaints against the actions of the British.

In 1774 the Continental Congress met in Philadelphia to discuss British actions. It came up with a statement : the colonies had the right to impose taxes on themselves. It demanded the withdrawal of the troops from Massachussetts. It met again in 1775 but the situation was different. The troops left Boston for the countryside searching for breakers leading to a military confrontation.
It met again in 1776 and they adopted a resolution by which they declared their independence (clearly influenced by Locke).

In the declaration of independence, men are endowed a certain number of inalienable rights.The state of nature in which men are free and equal :
    - life
    - property
    - liberty and pursuit of happiness
The government exercises power over men with their consent. The contrat as one goal : the common welfare.
The purpose of of the government is to protect the welfare of its citizens (natural rights). If it does not do that, there is a violation of the contract.

In 1776 the thirteen colonies are now states who are all preparing their own Constitution.
Between 1776-1778 they will draft the Constitution by a special procedure : a convention in which nominated delegates will work on a Constitution, which shall be presented to the general public at a later time.
The different Constitutions will adopt structures to avoid violations of rights.
The executive did not have a lot of power left compared to the legislative : in 8 states, the chief executive was chosen by the legislature. In 10 states, there was a one-year term for the governor and in only 3 states existed a power of veto given to the governor.
Each Constitution asserted the separation of powers. They all made the military submitted to the civilian authority.
According to the Bill of Rights, certains actions of the government were limited.
Between May 1775 and March 1781 the Continental Congress continued to meet and it eventually waged war against the UK. This Congress had no specific power.

Articles of Confederation

In 1776 a proposition was made to create a permanent confederation. By 1777 the document was prepared. It was called the articles of confederation and was to be approved unanimously. In 1779 12 states had ratified the articles. Maryland was the only state that did not ratify the document.
In 1781 the Continental Congress was replaced by the confederation, which is a loose association of states who retain their sovereignty according to article 2. (cf)
The Congress was the government of the US, but had a power of coordination only, no power to force.
The articles of confederation were a treaty of friendship between the states.
Each 13 states was represented equally, the consent of 9 states was necessary. The document could only be changed with the unanimous approval of all states.
In 1783 a treaty of peace (The Treaty Of Paris) was signed with the UK pointing out the weakness of the government.

Õ Why did the articles failed ?

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the national government had no power to tax, Congress could not request funds from the states.

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there was no executive to direct the government and its actions

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the national government was not given the power to regulate foreign and interstate commerce. States conducted their own commercial policy leading to a great commercial dispute between the different states (under the Articles of Confederation).

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Congress could not enforce directly its decision on the people. It had to rely on the states.

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It was virtually impossible to amend the articles because of the need for unanimous approval. (ex :1782 Amendment to levy a 5% duty on imports. Everybody accepted except Rhode Island).

After the war, there were serious economic problems due to the war which led to a great inflation. Many people were in debt. There was a flow of imports. The national Government wanted to limit imports, so the national government tried to tax imports and the States who were exporting blocked the measure leading to a national bankruptcy. People requested reliefs from their debts but the national government could not do anything and the problem was handed over to the States.

Some States' response was the creation of paper money while others' was to impose moratoria on efforts to collect debts. The state of Massachussetts refused to adopt these policies on the farmers leading to a foreclosure (seizing) of the farms. The farmers revolted in 1786 and Congress requested $530,000 to create an army to deal with the upheavals. Only one State gave the money.

Ù this confederation was impotent. There was a clear need for a government capable to assure order.

There were two alternatives :

- The Confederation should break in three different groups of states

- Revise the Articles of Confederation in order to create a stronger government.

Constitutional Convention

In 1786 the state of Virginia invited the others to come to Annapolis to discuss the articles. Only 5 States sent delegates. No majority came out of the meeting. Another meeting was organized in Philadelphia and the Congress agreed to change the articles of confederation. The sole interest was to modify the Articles of Confederation.

This revision started in May 1787 with only one State missing Rhode Island.

The rebellion of the farmers bring out the fear of anarchy. The need for change was clearly understood by the delegates, so they decided to propose an entirely-new Constitution.

Virginia presented a plan known as « the Virginia plan » which was drafted by James Madison :

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a government divided in three branches

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a bicameral national legislature. The first should be chosen by a popular vote and the second one should be chosen by the first one on a list established by the States.

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representation in the legislature should be according to the proportion of the tax paid or to the free-population of each State.

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the executive remained a problem but a single term was defined (the number was undetermined).

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The executive and the judges would serve as council of revision to review the different actions.

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National law> State law.

Smaller States reacted unfavorably because they feared a domination by the bigger States. New Jersey presented its own plan (alternative plan) :

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unicameral legislature in which each state would have equal representation

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multiperson executive chosen by the legislature, with no veto right given to the legislature.

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National Supreme Court, no inferior Court.

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Law passed by national legislature override law of the States.

this plan failed but compromises were done on the representation in the national legislature.
The Connecticut compromise read as follows :

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a bicameral legislature composed of a House Of Representatives, in which there would be a proportional representation of the people. The Representatives would be elected every two years by the people.The second house would be the Senate. Each State would have two senators who would be selected by the State legislature every six years.

Any measure of raising taxes must originate from the House of the Representatives.
Ô a question remained to be answered : who would be counted in the population?
a compromise was found, known as the 3/5 compromise : the population would be composed of the totality of free people, including women even though they did not have the right to vote, and 3/5 of the slaves.

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the executive would be composed of one person : the president. The fear of troubles lead to one idea, the president should not be elected directly by the people. An electoral college would be created, each State would select a number of voters equal to the number of senators and representatives. They would vote for the president and the vice-president. In 1804, an amendment decided that the two would be from the same party. If no majority could be found, the House Of Representatives would choose a president, each state having one vote. There was no second round.

Overview of the Constitution

è those basic principles would be incorporated in the Constitution :

Republicanism

federalism

checks and balances

separation of powers

republicanism : exercise of power by representation, whereas in a democracy the exercise of power is by the people.

federalism : the power is shared by a central government and a regional one. It grants specific powers to the central government, the rest going automatically to the states. It is the theory of the enumerated powers. Now it results in a strong central government.

separation of powers : One can only serve in one branch at a time. There are three branches of government, each one having no right to interfere with the other's actions. There is a major problem in the USA as different institutions share some powers. cf Montesqieu

checks and balances : Each branch of government has power to scrutinize the actions and control the two other branches. It is for the presidential veto or the judicial review.

This document was signed by the delegates in September 1787 and came into effect after its ratification by nine states.
The federalists wanted a strong federal government and they published a series of 85 articles thru the NY press to convince the American people of the necessity to ratify the Constitution.. Those articles are known as the Federalists Papers (political propaganda). Among the federalists were James MADISON, Alexander HAMILTON and John JAY.
The antifederalists also published articles in which they argued that a strong federal government endangered the existence of the states and could lead to the destruction of the social contract and to tyranny. The Constitution gives to the Gov't specific rights a.k.a. « enumerated powers » ; It does not give them the right to limit rights, therefore a positive Declaration of Rights is superfluous. Alexander Hamilton sais that a list of liberties would be dangerous because limited. G. Washington wanted to ratify the Constitution ; He was heard.
The government has limited powers, but the list of these powers is unnecessary and endangering.
åIn 1791 the Bill of Rights was adopted.
Federalism = Federal law with State Law. It's an intermediate situation between a confederacy and a country like France (one). States kept substantial powers

The US Constitution came into effect on June 1788, but its succes was not assured until two important states, NY and VA, ratified the document in August.
The first presidential election took place in November 1788, 10 states participated in the election, NY did not send delegates and RI and NC had not ratified the Constitution yet.
George WASHINGTON became the first president of the USA in April 1789.

The judicial power : Judicial Review of Congressional Acts

Article III, U.S. Constitution :

section 1 Supreme Court; lower courts; judges :

There is only one supreme court, Congress is given the power to create any inferior courts. It is established in the judiciary Act of 1789. The country is divided into districts. The country is divided in three circuits,each with a circuit court staffed with two SC justices and one judge ( Federal District Judge). But the problem was that the SC justices had to travel to the different circuits, which was called riding circuit. Congress constantly refused to eliminate this until the late nineteenth century. In 1891 each SC justice was still assigned a circuit, the junior justices getting two! This still exists in theory but not in practice.

2.   jurisdiction; trial by jury :

The Supreme Court has jurisdiction on all cases arisen under the Constitution, laws and treaties. In addition it includes cases on admiralty, foreign diplomats, when the USA is a party, when there is a dispute between two States and for matters of citizenship. (original jurisdiction)
Otherwise its jurisdiction is appellate.
There is an exception clause : « …with such exceptions and under such regulations, as the Congress shall make. »

Judicial Review :

It is the right to declare an act invalid to the Constitution. This power is implied becasue it is not mentioned in the Constitution. This principle created a body of decisions which made up the constitutional law of the USA. These cases give the meaning. Judicial review made the Constitution enforceable as a law : public officials must therefore act accordingly to the Constitution.

Marbury v. Madison (summary)
In writing the majority opinion for the court, Chief justice MARSHALL (federalist) neatly sidestepped the central issue of the case and at the same time established the pivotal principle of Judicial Review. Marshall argued that althought Marbury was legally entitled to the commission, the SC lacked the authority to isue the writ of mandamus, because the Judiciary Act of 1789 had unconstitutionally conferred on the court the original jurisdiction to issue writs of mandamus to federal officials. The Constitution explicitly listed those areas in which the court was to exercize original jurisdiction and let to Congress the power to specify only its appellate jurisdiciton.Because the Constitution was the supreme law of the land, binding on judges and all other government officials, Congresss could not pass a law that contradicted it.
å with this decision, the SC assumed the sweeping power of judicial review-the power to overturn laws that the court deemed unconstitutional.
Facts : Marbury was appointed in D.C. in 1801. The judicial commission was signed and sealed but not delivered before the former President left office. The new one refused to give it.
Section 13 of the 1789 Judiciary Act authorized the U.S. Supreme Court to issue writs of mandamus « in case warranted by the principles and usages of law ». Marbury started his case at the Supreme Court level. He asked the Court to deliver a writ of mandamus ordering new Secretary of State Madison to deliver the commission as a ministerial duty of his office.
Issues : 1° Does Marbury have a right to his commission ? Yes, he is entitled to this right.
    2° In that case, does he have a remedy under the U.S. law ?
The problem is : who violated his right ? Marshall's successor. Was it a political or a discretionary act ? It was a discretionary act : can't be forced by another branch. This act of not delivering the paper is not in conflict with the discretionary power of the executive (because it was from the law). Therefore the SC says it has a right to review it. Acts of the executive are to be controlled according to the law.
    3° If the U.S. law does afford him a remedy, is that remedy the issuance of the writ of mandamus ? No the Court has no jurisdiction.
John Marshall should have recused himself but he didn't do it. Powerful dictum : Marshall says in the 3rd issue that it doesn't have jurisdiction (instead of saying it at the beginning, which is the normal procedure).
Achtung : end of section 13 (read the tewt in italices) The SC interprets it as an attempt of Congress to give SC original jurisdiction as far as writs of mandamus are concerned. But the truth is, it's not evident in the text.
    Art. III section2, clause 2 : Cases in which the SC has original jurisdiction.
    Exception clause : the exception made by Congress. The Constitution says that Congress made an exception. S.Court says « no ». Why ? It says that it wouldn't be logical if Congress could change such an important element, the original jurisdiction of the SC, just like that.
The SC gives 5 reasons to explain its judicial review.

The Court establishes the the fundamental law. Would it make sense for a law contrary o the constitution to be enforced ? NO. This is a structural argument.

Judicial power of the U.S. extended to all cases arising under the Constitution.

Clear direction to the Courts (on how to prosecute someone for treason). ; Conviction if certain conditions are met.

The oath of office. Art. VI clause 3. Pb : anybody could therefore have the power of judicial review ( Now…that would be something…)

Why ? Because a lot of people have to pronounce this oath.

Constitution =Supreme law of the land. Art. VI clause 2. Not really in favor of judicial review. Congress unconstitutionally in giving the possibility of writ of mandamus .

It's a strong decision.
Controversy : Is Marshall right ? Is the SC the constitutional policeman ? Isn't it just a guardian of the constitution ? Thus, there will be a uniformity of the law of the land.
There are arguments against Judicial review :

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The government of judges.

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It's anti-democratic (that is the main argument).

Who passes the law ? It's the legislature.
Pb : The expression of popular sovereignty can become null when judges do this judicial review. (There are talks about a « judicial politburo ».
As to the facts : Some States included judicial review in their Constitution before the Constitution saw the appearance of such a notion. This case leaves a question : the role of judicial review and of the SC in this rea ; Is it a constitutional policeman ?Or simply a court that applies the law ? These questions are still effective. The pb is based on politics and the reasoning is quite questionable.

* State of Arkansas 1958 the supreme decidor of what is constitutional are not the States but the SC.

Federalist paper #78.
The judiciary is the less dangerous power because it has no force, no means. The legislative has the power of the purse, the executive has the military power. It is because there is a fear of seeing the judiciary becoming the most powerful branch. No act against the Constitution can be valid, because the representatives of the people can't be more important than the people themselves. The courts are an intermediate body between the legislative and the people. Courts must interpret the law and the Constitution is a fundamental law. They should keep the legislature within the limits assigned to the authority.
Judges must ascertain its meaning and the meaning of any act proceeding from the legislative body. The Constitution is always above (or that's the way it should be, anyway). There is no superiority of the judiciary but the superiority is that of the will of the people. Judges may not express their will (but this argument isn't convincing enough when one argues that the Courts are not superior).
Therefore, it justifies the power of judicial review. It's important because this power wasn't granted to the US by the Constitution and was relatively unknown (the main theory at the time was that of enumerated powers).

The Judicial Power

judicial Review of state court judgments

Until the civil war, there was challenge to the jurisdiction.
Arguments fot it :

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nullification : a state claims it has power to block the enforcement of federal laws until it can amend the Constitution to change the statute

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secession : if the relationship between a state and the federal government becomes so tense that no compromise is possible, the state can leave the USA as there is no contract between the USA and the states.

Those arguments have surfaced in the twentieth century, see Brown v. Board of education 1954. In this case, Louisiana argued it had the right to interpret the SC decision and to do that very freely, as far as education is concerned. The SC said « no ».
When a State court interprets a law by relying on State and federal laws (mixed issues), the state is interpreting its own Constitution. The SC can only review the issues of Federal law, whereas the State-law issues can only be reviewed by the States. Some clauses are similar to the American one, but State Constitution can add more rights that does the American one. In certain situations, the SC decision relies on reasoning based on State law and Federal law. « When a decision of State courts is based on an adequate and independent State ground, the SC will not review it ». The SC will not review a State Court decision if a State law provides « adequate and independent grounds » for that decision.
ÜIf the court has taken its decision by relying only on the State Constitution, there won't be any review
Üif the court has used federal laws, there will be a review in order to have an uniform interpretation of its decision.
If a State law is clearly opposed to federal law, there wil be review.
It is the doctrine of adequate and independent grounds : federal courts have no power to review state courts decisions involving only State laws.
Other point : Normally nobody can say that the SC is wrong. But can Congress reduce the appelate jurisdiction of the Sc oin order to modify the power of the SC ? It can't increase it.

Martin v. Hunter's lessee
this case is described as the most important case with regards to federal jurisdiction.
Can the USSC review a decision of a state court interpreting the US Constitution?
It has an appelate jurisdiction, therefore it can for several reasons :

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if it did not, it would lead to a different interpretation of the Constitution for each State and a uniform interpretation of the Constitution is necessary for the unity of the country.

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In the US Constitution, States gave up some sovereignty

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In the US Constitution, some powers are given to state courts for cases involving federal laws. It gives the SC a power of appeal in federal matters.

Justice Story justifies by saying that the SC has the power to study federal questions. State courts or federal courts have concurrent original jurisdiction over these matters.
The constitution supports this idea (no matter where this matter originates from).
The Virginia court says it limits the sovereignty of Virginia. The SC responds to that saying that there is a limitation of the sovereignty of the States but it's normal (There are no articles of Confederation anymore ! !). Virginia is not an independent State ; It is important to limit the sovereignty of the States, because it's a way of asserting the power of the SC over the States.
Last argument of Story : historical legitimacy vis-a-vis the Framers.

This theory was applied in Cohens v. Virginia 1821 in which the SC had appellate jurisdiction because the case arose under a federal law (cf. « even to cases where a State is a party »).

SC decision generates sometimes a lot of controversy because of the issue at stake (abortion in Roe v. Wade, school desegregation....)
Therefore, what can be done to limit the SC power?
According to the Constitution, the judges are independent and cannot be removed. There is not much to do!
Congress has the power to make exception to the appellate jurisdiction of the SC.

Congressional power over Appellate Jurisdiction

Ex Parte McCardle
Reconstruction Acts (after the Civil War). Criticizing the federal gov't was forbidden. But a person does so and goes to prison. He brings an Habeas Corpus action. New act 1867 : the Parliament doesn't have an appelate jurisdiction as far as the Habeas Corpus is concerned ; Therefore the SC must dismiss the case. The last paragraph is the most important. (read).
Based on this paragraph, several limits have been brought to this outstanding power. Congress has not totally eliminated the case : it is not unconstitutional.
The issue is : Can Congress limit SC jurisdiction?
According to the SC, if Congress has a power to grant, it also has a power to take away but it is a limited repeal of jurisdiction (circuit court appeals only).
McCardle had different remedies in this case.
In Marbury : no modification of the original jurisdiction of the SC.
In Ex Parte Mc Cardle : possibility of modofying its appelate jurisdiction.The SC had occasion to deal with such an issue in 1812 US v. Klein. The 11th Amendment gives the authority to take away jurisdiction from federal courts in cases involving state and citizens of another state or country, and also article III, section 2 the « exception clause » by which Congress can restrain the SC power.
US v. Klein : era of Reconstruction. After Civil War, Congress was aggressive towards the States that seceded. Klein was a resident of the South. After the war, Congress passed a law saying that citizens whose property had been the Union army could get compensation. They were simply required to prove that they were loyal to the government. Then came a presidential pardon for the unloyal. In essence, Klein was disloyal, but now he's « clean ». He brings his claim for just compensation. US appeals this decision to cleanse him to the SC. During this appeal, Congress passes a law : no appelate jurisdiction for cases involving matters of destruction of property being compensated. Anybody who received presidential pardon was disloyal ; What is the effect of this law on the appelate jurisdiction of the Supreme Court ? SC says that the law is unconstitutional ; It is a violation of the separation of powers. Congress may alter the appelate jurisdiction of the SC but not usurp the essential function of the judicial branch (here the usurpation was the power to evaluate the disloyalty of the people).
This caused great discussions and scholars proposed 2 limits to the power of Congress as to modify the appelate jurisdiction.
Congress can restrict the SC jurisdiction only in a neutral fashion.

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internal limitation : (article III only) Those restrictions are purely theoritical and were never applied. article III gives power to Congress to limit SC's jurisdiction if it does not destroy one of its essential roles.

Pb : what is an essential role ? ? (There are no precisions).
- external limitation : (not in article III) Amendments to the constitution ; These modifications can't violate other clauses of the Constitution..

TODAY : Congress has eliminated the appellate jurisdiction in 1988 because the appeals have come to mean that the SC was obligated to hear all the cases. Thus, the burden of cases became intolerable. How ? It changed the definition of appelate jurisdiction. The SC needed more discretion over its work.
1988 : « appelate jurisdiction » was replaced by « discretionary power to hear the appeals ». All cases are coming to the SC via a writ of certiorari, the SC chooses the cases it wants to hear.
It can concern :

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a conflict between two different circuit courts on the interpretation of the Constitution.

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a conflict between a State SC and another State SC or a Federal Court of Appeal.

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a case raising an important point of law that has not yet been settled by the SC.

There is another limitation on the SC power of judicial review (that the SC has imposed on itself) :
   The SC is aware of the fact that, in declaring acts of the executive unconstitutional or acts of the legislative, there is a potential for political clashes, therefore there is a need to act carefully, to avoid constitutional clashes with other branches of gov't.
   Principles based on certain portions of the constitution and prudential considerations (not included in the Constitution). These principles of self-limitation are the principles of justiciability.

The judicial power : judicial self-restraint/justiciability

justiciability rules

The SC found constitutional support for the rules (limiting SC's jurisdiction). It had a prudential effect of the rule : the judicial power is a very significant power but it is also a very dangerous one.
When the SC chooses to address constitutional issues, it must avoid unnecessary conflict with other branches of government.

1. Advisory opinions (self-control):
    It is an old doctrine : the SC established the principle according to which it did not give adisory opinions; see the treaty with France in 1793, the SC refused to give an advisory opinion. First it relied on the separation of powers (the executive branch is charged of carrying out the foreign policy of the US ; If advice is needed, the executive branch can create executive departments for this purpose), then it mentioned article III§2 that specifies that federal judicial power is limited to « cases and controversies » (controversies being claims of conflicting rights). Pb : advisory opinions are neither cases nor controversies.
Congress cannot ask the SC to examine the constitutionality of a law.

2.   standing to sue :
    The SC elaborated this rule : the SC will not hear a case unless the plaintiff has a standing, meaning the plaintiff must have some stake in the controversy.
This results in the elimination of cases brought by litigants who only want to make a point or a policy.
The purpose of a case is to redress an injury, caused by the executive or the legislative branch.
In most civil cases, there is no question of standing. In other cases, the SC has never recognized the right of a citizen to say the act is unconstitutional and harmful to him/her.
The citizen has to prove an individual injury, more direct and individualized than the one suffered by the general public.
According to the SC, the standing to sue is based on this requirement : it only hears cases or controversy.
There is a three-part test to determine if a plaintiff has a standing :

the plaintiff must allege or prove that he/she suffers a personal injury in fact which is either actual or eminent. The injury must be actual or eminent and it has to be personalized.

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the injury must have been caused by the action of the defendant. The injury must be caused by the defendant's conduct.

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it must be an injury that is redressable by the court (the court can solve the pb).

Lujan v. Defenders of wildlife (1992). Endangered Species Act prohibits the gov't from taking actions against these species. The US gov't helped Egypt and Sri Lanka to build dams. Pb : these dams are a threat to Nile crocodiles (un crocrodile, ça mord) and Asian elephants. Therefore, they brought an action against this. They must prove an injury. The Court says that there is no standing to sue (the injury is too abstract).
Sierra Club : agricultural officers were improperly using their to allow logging in forests. Court says there was a standing to sue because you continually use the national forest.
What about the causation ?
The defendant is the cause of the injury (cf. case with the hospital and the IRS).
What about redressability ? The plaintiff must show that in this case, the Court has the power to correct thye injury claimed.
    The American Foreign Assistance that was used to build those dams only paid a portion of those dams ; In other words, even if they stopped the financing, the dams would still be built so there is no redressability.
??
Raines v. ByrdÏ
the SC cannot arbitrate fights between branches of government. There is no standing to sue as the injury is not personal.
There is a distinction made with Coleman v. Miller.
It has a prudential component : a prudent behaviour, normally a plaintiff may not assert the Constitutional right of a third party.
There are exceptions :
    - where the litigant and the third party are in a special relationship so that if he wins the case, it would redress the injury of the third party too.
    - a litigant can argue the right of a third party if there are obstacles preventing the third party from asserting his right himself.
Cf. Powell v. Mc Cormack (they just lose political power ; It differs from the notion of « personal injury ».)
Epilogue : In a federal district court. NY Mayor Rudolf Giuliani and a n Idaho farmer brought an action.
The farmer :he didn't get money because the President crossed out a Bill.
The mayor : he didn't get money for N.Y. because the President crossed out a Bill.
They had standing to sue. Violated the separation of powers and Congress gave legislative powers to the President. The case is now in the SC.

Standing to sue : Can somebody argue the rights of a third-party ? (a.k.a. « Third-Party Standing »). Usually, the Court says No. Exception : If there are legal or practical obstacles preventing this third-party from acting himself + the plaintiff must show that he is an effective proponent (he has reasons for representing the person).
Ex : restrictive covenant : buying a house for « Whites » though the buyer is Black. In such a case, the neighbors sued the sellor. The latter acts as an effective proponent because he wants to sell the house.

3.   political questions :
    Certain types of issues should not be discussed by the court, it is based on the separation of powers principle. Case raising the issue of separation of powers and the Constitution gives the authority to one of the branches to decide the issue (executive or the legislative).

Baker v. Carr
Is it a political question ? If yes, the case is terminated. The guaranty clause (art.IV section 4 of the Constitution) : « Republican form of Gov't ».
The result is the discussion on « when we are facing a political question ». cf. p.41 of the case.
There are six factors listed in this case, that are the key to the case. The court can't physically deal with all cases ; It won't interfere because the Congress or the President has made a political decision.

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the Constitution assigned the issue to a branch of government

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a lack of standards to resolve the issue

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a policy determination by another branch is necessary

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no decision without expressing disrespect to another branch

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need to respect a political decision already made

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avoid confusion of result by differing branches

#5 & #6 are close : The US must speak with one voice.
ÜFactor #1 is the most important (separation of powers). Does the SC have standards to decide equal protection clause ? Yes, it hears the case concerning reapportionement, for the first time.
The dissent : reapportionement is a matter of political philosophy so the judges shouldn't deal with it but the political branch should.
It's an important case : it attempts to come up with standards to know whether we are facing a political questioning. It is a case by case analysis.

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Is it an issue concerning a branch ?

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Is it the idea that the Court lacks judicial competence ?

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Is there a need for personal pronouncement (avoid multiple voices speaking on behalf of the US) ?

These are the 3 main questions ; It is a good time for the Court to use its power of judicial review.
Ex : The Vietnam War. The President is Commander of the Armed Forces and Parl. has the right to declare war. Some soldiers sued the US for unconstitutional war. SC refused to hear the cases, w/o giving any reason.

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we can believe that it was a non-justiciable political question

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Need to maintain that politically-made decision.

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Need for the US to speak of one voice, therefore the SC shouldn't become involved.

Moreover there is a pb of practicality. May the SC say « Stop the War » ?
Other ex : Carter (President) recognizing China.

Federalism and federal power

Can Congress regulate interstate commerce ? The Constitution created a national gov't. Its authority goes throughout the US.
How are the powers allocated?
The national government has enumerated powers listed in the Constitution. The States are considered to have all the other powers (there is no general grant of power). The SC has held that there are some implied powers from the fact that the US are a country, so it needs the powers of a country, in order to have equal powers with the other countries. The tenth amendment provides that the powers not granted to the federal government are reserved to the States.
The powers of the national government are not necessarily exclusive, there can also be an exercize by the States.
It can be exclusive, the power to declare war, to coin money...
It can be concurrent, the power to tax...
Since the Constitution tells what the powers are, it is a problem of judicial review.
There is a debate : one side prefers the nationalist perspective (give more power to the national gov't because it's more efficacious) and the other side wants to strengthen the rights of the States. The role of the SC is to decide when Congress has acetd within the scope of its powers or beyond.
In 1937 the SC became very deferential to Congress (this situation lasted until the mid-90's).
The question whether Congress has exceded its powers was abandoned by the SC in favor of the judicial review.
The issue was resolved by the political process. This is a ground that the SC should stay out of because it could lead to a confrontation between the SC and Congress.
The federal system of today is different from the one imagined in 1790. The national government was supposed to have limited powers, whereas now it has expanded it powers, weakening the States' governments.
Police power : promote health, safety, etc. Congress doesn't have a general police power, but only those stated in the Constitution. Congress has to make sure that the law doesn't violate other portions of the law.
Ex : Bill Of Rights (limitations of power of Congress).

The government has a police power, that is the power to regulate matters not falling within its own federal powers for health, safety and general welfare reasons.
States have also a general police power.
?

Article I § 8

It gives the list of powers given to Congress.
Ex : Power to levy and collect taxes, coin money, defence of the country, Declare war, regulate immigration, regulate commerce with foreign nations, among the several States and in the Indian tribes. Powers given to Congress can also be found in article III, in Article IV and in the 13th, 14th and 15th amendments. « Necessary and proper clause » gives gov't some flexibility ; It doesn't give power to Congress but it lets Congress decide how it's going to use its powers (the means « necessary and proper »).
    Art.3 : judicial branch : Congress can establish inferior Federal Courts.
    Art.4 :Congress can regulate the US territories.
    Art.2 : President's powers
The government should not have implied powers except the power to conduct foreign relations which is not expressly granted to the federal government.
The states have a general police power, that is to say anything that is related to or limited by :
    - the federal constitution
    - by a valid federal legislation preempting over state's regulation in a particular field because the supremacy clause says federal law is the supreme law of the land.
    - by the State's own Constitution which contains clauses protecting the liberties.
Federal limitations of the powers of the States= I§10
Article I§10 contains a list of powers that the States are prohibited from exercising :

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war

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entering into treaties

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coin money

Clause2 :

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maintain military force w/o Congress' approval.

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Make interstate compacts

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Tariffs.

Article VI clause2 : the supremacy clause. The congress passes a law, conflicting with a State law. In that case, federal law reigns supreme.
The Bill of rights « doctrine of incorporation » the SC uses the due process clause to apply the provision contained in the Bill of Rights to the states.

McCulloch v. Maryland 1819

A bank was created to help regulate, etc. in 1816, but it was corrupt.
1818 : depression. The U.S. Bank was considered responsible for it. Some States (ex : Maryland) asked for anti-bank law ; It imposed tax (in general terms) on non-chartered banks like the Bank of the U.S. Maryland said that Congress doesn't have the power of creating a bank (it' s not an enumerated power).
Achtung : Theory of implied powers (first part). About coining money : why not leave the power to Congress ? Read footnote f..
Power of the national government comes from the people and not from the States.
2nd part of the case : The SC had to choose between two different interpretation of the Constitution.
The SC upheld the federal government's right to create a national bank and thus legitimized the concept of implied powers and the supremacy of the national government.
Such a supremacy comes from the « necessary and proper »clause of article I, which charged the Congress to make all laws which shall be necessary and proper for executing its powers.
Congress could exercize a wide range of powers implied in the Constitution.
This is a broad interpretation of the Constitution. Maryland sees this as a limitation to powers in article I section 8. Only the « absolutely necessary » is concerned.
Marshall says that necessary=convenient. If a congressional law is part of the enumerated powers, Congress has the possibility of determining how it will come into effect. « appropriate means »
If the law excedes Congress'ability, it must proclaim its unconstitutionality. The Court must respect the separation of powers and this is still in effect ; « ends and means » is still existing today. The means to enumerated powers must be « rationally related ».
Use of the rational relation test : one must look if the statute is pursuing a constitutionally-protected goal. Congress is free to choose any means to execute this goal if it is rationaly related to it.
If the means is related, the statute would be constitutional. There is no power or use of judicial review in the economic field.
Until 1937, the SC examined this clause very carefully. From then on and until the 1995 case USA v. Lopez, it was assumed that the question was theoritical. The States had no power to repeal a statute passed by Congress : there was no limit to federal authority.

US Term Limits v. Thornton
It illustrates a modern debate : who has the power ? The national gov't or the State gov't ?
Can the states limit the terms of Congressmen?
See the precedent of Powell v. Mc Cormack.
The tenth Amendment provides that the States have power when it is an original one. Here it is not.
The dissent (4 judges) was willing to reargue the understanding of the federal system when the states are dominant actors. Justice Thomas said in the dissent that States had retained a great deal of sovereignty. Nothing is more democratic than letting voters vote for whomever they please.
The issue is still on debate.

The federal commmerce power

introduction

The state of commerce and the number of trade disputes were one of the most important issues of the conventions (cf. the XIXth Congress). 1787 :Delegates of the constitutional convention wanted to deal with this problem.
The aim of a commerce clause is to create a common market and a national economy. It is a large clause. The national gov't is predominant in this field ; It limits what the States can do in foreign commerce. Interstate commerce : there is an affirmative part of the clause and a negative part.
Affirmative component : Congress is given the power to regulate interstate commerce.
Negative component : There is an implicit limitation on the power of the State to adopt regulations which affect interstate commerce.
Interstate commerce is the acivities involving more than one state. Commerce means= commerciale exchange of goods and services.
Congress does not have power to regulate all commerce, it can regulate :

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foreign commerce, a transaction, which is, immediatly or at some stage of their execution, extraterritorial. The SC has never considered that this power is exclusive. The States have a concurrent power. But the States' regulations may not dully interfere with national concerns. In theory, the States have a power to regulate foreign commerce but not in practice.

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indian tribes commerce, this commerce is nowadays irrelevant. The US government has the power to make treaties, which is applicable to the tribes.

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commerce among the states, Congress can regulate commerce among the states. That component is a primary source of authority for national regulation. Congress has a positive source of authority, but there is also a negative side of it as it is taking power away from the states. It is the dormant/negative commerce clause.

3 types of activities :

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Congress can regulate interstate commerce itself.

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Instrumentalities of commerce : trucks, boats,etc.

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Effect of the « necessary and proper » clause on interstate commerce.

The SC has two different analyses. One was applied until 1937, and after a very important case in 1937, the SC changed radicallly its position.
Now, there is a third period thanks to another position taken by the SC in 1995.
The SC used its power of judicial review to scrutinize the legislation and to invalidate it because Congress has exceded its power under the commercial clause. After 1937, the SC became much more deferential.

Gibbons v. Ogden 1824

The SC says Congress has broad power to regulate « commercial intercourse » ; it strikes down a NY law granting streamboat monopoly to a private company operating between NY and NJ.
Navigation is included in commerce. The SC reacts differently regarding what the purpose of the regulation is. One purpose is the regulation of economy. The other is the regulation of morality.
The Interstate Commerce Act 1887 had one purpose : to deal with the issue of railroads by creating a commission to control the rates and services provided by the railroads.
The Sherman Antitrust Act 1890 was designed to end outlaws monopolies in commerce in the different States.

Congress decided to pass two different kinds of regulations :

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economic regulatory laws

The SC adopted a number of different doctrines evaluating this law.
- dual federalism :
The SC considered that the economic life has two components, one that is subjected to state regulations pursuant to the Tenth Amendment an another one which is an appropriate area for federal regulations. The SC applied this theory in US v. Dewitt 1870, in which the SC stikes down a federal law prohibiting intrastate sale of certain inflammable petroleum products; the SC said Congress could not regulate « internal trade » of a State.

Ô what constitutes commerce ?
it was defined in US v. Knight company 1895 which is known as the sugar trust case. The SC said Congress did not have power to regulate manufacturing even if the products later enter interstate commerce. Manufacturing is held subject to state regulation.
Congress can only regulate if there is a direct and logical link between the activity and interstate commerce.
Swift & Co. 1905 (see the Shreveport Case).
Houston, East & West Texas Ry v. US 1914 known as the Shreveport Case. The SC upheld federal regulation of interstate rail rates because of their effect on interstate commerce. Congress can regulate if there is « a close and substantial relation to interstate commerce ».
In theory, there must be a logical and direct connexion between a local activity and interstate commerce so that a federal regulation should be applied. In practice, it is an economic impact.
Until 1937, the SC tend to favor the position developped in in the sugar trust case. The shreveport case position would only apply after 1937.

Another exception was developped by the SC in Swift & Company v. USA 1905. Congress prosecuted the pricefixing by meatpackers. The SC supported this theory because the fact that the decision was made only in one state was just a stage of the selling process. It is a stream of commerce, therefore Congress could act to regulate in this stream of commerce.
Based on this ruling, Congress passed law prohibiting certains actions in stockyard.

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police power regulation

The SC is much more receptive to this power. Congress was here trying to pass regulations under pressure of lobbies to protect health, morality under the commercial clause. It is called the commerce prohibiting technique.
Summary : The SC uses 5 different approachs with regards to Congress regulation. 2 are restrictve (dual federalism + test of what is commerce). 3 are extensive (Congress can regulate interstate activity that has a substantial relation to interstate commerce ; Stream of Commerce ; Commerce-prohibiting technique). Early XXth century, the SC adopts a very restrictive view.

Champion v. Ames (the lottery case)
According to the SC, the power of regulating exercised by Congress includes the power to suppress. Therefore, Congress has the power to prohibit the transportation of lottery tickets because it is hurting morality. This is not an absolute power, only items useful or valuables can be subjected to this regulation.
This approach meant that Congress had a power to regulate. Congress had the right to deny transportation of impure food in the Pure Food and Drugs Act of 1906.

Ô Does Congress have a general police power to regulate using it power to regulate interstate commerce?

For economic regulations, the SC was hostile BUT for police power regulations, it is much more indulgent.

What are the limits of this technique ?

Hammer v. Dagenhart 1918
A movement proposed legislation to protect employees ; Many States passed such legislation, Congess too. Does Congress have the power to do that ? This case gives the solution.
This decision took place after the election of Franklin D. Roosevelt in 1932, who had campaigned on a platform demanding more government action. It was the New Deal policy. The SC was hostile to the intervention of Congress in this economic field as there was no direct and logical effect on interstate commerce. The SC stroke down a federal child labor law on the ground that it invaded an area reserved for state regulation. Manufacturing is not commerce. Congress acted upon the power to regulate interstate commerce. The Court said in the Lottery Case that « to regulate » includes « to prohibit ». In this case, it says it doesn't include « to prohibit » except in special cases. In this case, the goods aren't harmful. The pb is on the condition of manufacturing. Moreover, the SC also says that Congress can't regulate manufacture by train ; It says that Congress wants the States to comply with the minimum requirements of child labor. Other restrictive theory of the commerce clause : the power to regulate production belongs to the State. The dissenting opinion is important here because the SC will come back to it later on. Holmes says that the power to regulate includes the ower to prohibit. Here Congress should have the power because the goods are travelling among the States. The lats paragraph is crucial : this will become the standard that the SC will ultimately adopt : If Congress acts within its powers, the Court shouldn't judge the reason of the acts taken. It is a legislative concern, not a judicial one. Holmes' view is a more restrictive view of the Xth Amendment.

Hoover : the Federal gov't doesn't hve the right to act.
Roosevelt : He got elected to fight the Depression. In his first 100 days, many laws were enacted (concerning pensions, labor conditions,…). It was social legislation. On what grounds could this legislation be justified ?
For the SC, Hammer was a bad precedent.
Shreveport : Congress could act if it controled interstate commerce (positive precedent).
The SC answered in the following case :

Railroad retirement board v. Alton RR 1935
The Railroad retirement Act of 1934 was challenged. It obligated interstate railroad carriers to provide retirement plans for their workers. Traditionally, the SC authorized Congress to regulate the interstate commerce (railway).
Here, the SC says « No », because Congress was too far from the Commerce Clause
The law is unconstitutional because it is not a regulation of interstate commerce.
There is a clear distinction between commerce and non commerce.
3 weeks later, the bad news continued for Roosevelt :
Schechter Poultry Company v. US 1935
The law in question was the National Industry Recovery Act, which was designed to promote the economy.
Part of the law authorized the president to establish codes of fair competition for various trades :it set minimum wages, maximum working hours and collective bargaining of employees on an industries-to-industries basis. This company was accused of going past the law. It agreed, but it justified itself by arguing that the law was unconstitutional because the company operates only in NYC.
The company argued its activities were only intrastate, but the government said they were in the stream of commerce and were activities affecting interstate commerce. Schecter can pay its workers cheaper (concurrence déloyale).
The SC rejected both arguments and developed its own theory :

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the activity is not in the stream of commerce (it ends when Schecter Poultry becomes a party).

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it affected commerce in a too remote way. It had to be a direct and logical effect on interstate commerce to justify Congressional intervention.

Next major disaster for Roosevelt :
Carter v. Carter coal co. 1936
An act set up maximum working hours and minimum wages for coal miners.
The SC said it was an unconstitutional of power by Congress. If there is no direct effect on interstate commerce, there is no congressional competence. There is a distinction between commerce and production. Mining is a local activity, to be regulated only by the local government. The effect on commerce is too remote here,though the coal was shipped to other States. Mining isn't commerce.
The court is going to consider almost everything as a matter of State control. The danger is that the SC would destroy the New Deal.

FDR was reelected in a landslide in 1936. He wanted to fix the SC. A bill was proposed, giving the possibility to appoint a federal judge for each judge who was aged at least 70 and had a ten year experience in federal justice. A maximum of 15 judges could be appointed. FDR has therefore the power to appoint six justices.
The court-packing plan did not work and was widely condemned, because it would have made the judiciary subservient to the executive. The bill was rejected in Congress.

the modern view of commerce power

NLRB v. Jones & Laughlin steel corp 1937
This case was heard before the Court-Packing plan was erased. The government proposes that this activity be part of interstate commerce. The Court answers that it's not of the stream of commerce. It narrows its interpretation of the dual ? . It has a more national view.The act was prohibiting unfair labor practices. It established the NLRB to execute the new legislation.
The SC adopted a new position concerning the commerce clause regulation.
The SC said Congress could regulate labor relations at a big steel plant because a work stoppage would have « a most serious effect upon interstate commerce ».
1937 : The SC showed deference to Congress' own evaluation of its power. The SC remodels 2 of the doctrines of interpretation of Congress' power. Opens to consider that interstate activity could have effect on interstate commerce. The dissent agrees on that point, but it mentions that in this case, birth, death, anything else can be considered to have an effect on interstate commerce. Large interpretation of « subsequent » is broadening.
This decision is the starting point of the modern era, in which the SC is much more deferential. This position is the result of three different doctrines ; commerce-prohibiting technique, substantial test and the new cumulative effects doctrine:

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the cumulative effects doctrine :

Congress may regulate activities even if a part of the Act has no effect on interstate commerce because what is important is that it is part of a broader act that has an effect on interstate commerce.

Wickard v. Filburn 1942 (it set the cumulative effect doctrine).
It targeted the law installing quotas to the production of wheat. A farmer produced more than allowed and was therefore fined. His argument : it was not interstate commerce. SC says this law was constitutional The « substantial » requirement was fulfilled according to the Cumulative effect Doctrine.The SC said Congress may control a farmer's production of wheat for home consumption because the cumulative effect of such production by many farmers would influence the national supply and price of wheat.

The activity regulated by Congress has an effect on commerce at some point.
Therefore Congress can regulate individual acts because of their possible effect on interstate commerce.

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A class of activity has a substantial effect on interstate commerce.

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It's okay to regulate individual activities even though they aren't a clear danger.

This theory was applied in Perez v. US 1971. The law was constitutional because the class of activity has a substantial effect on commerce and Perez' activity, while insignificant, could be regulated by Congress because taken together with other people's actions, it has a cumulative effect on commerce.
Is Congress crazy ?
The SC continues to defer this to Congress, who decides if there is a cumulative effect of interstate commerce.

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the commerce prohibiting technique (channels of interstate commerce) :

    Congress has more discretion to regulate commerce. It involves prohibiting the transportation of something from state to state.
        - Congress can regulate the instrumentalities of interstate commerce. The SC has always been in favor of it.
        - Congress can regulate evil goods with one exception seen in Hammer v. Dagenhart. No regulation is possible when the good is useful or valuable.

US v. Darby 1941
Revisiting of the commerce-prohibiting technique.
*First part of the law: The goods were useful and valuable, but the SC will prohibit the shipment of these goods.
The tenth Amendment is considered as a way of limiting States' sovereignty. It's considered as a truism: it just states the obvious. The SC eliminates the tenth Amendment. This is not an area for judicial intervention, Congress has the power to decide. The SC will only look if there is a substantial effect. SC : As long as Congress acts within the commerce clause, it's okay, even if it incidentally infringes on States' competence (that won't be a pb).
This is overruling Hammer v. Dagenhart , taking Holmes' dissent to make the majority ruling.
Ù Congress can prohibit the shipment of very goods, harmful or not, as long as it is done to protect commerce. SC comes back to Gibbons : the power to regulate is also the power to prohibit.
* second part of the law : the validity of the wages and the maximum working hours. There is no use of the commerce prohibiting technique. There is a permissible end, which is regulating interstate commerce. The means used by Congress to achieve this end is the act prohibiting the shipment of goods produced in violation with these standards (« necessary and proper clause ». What about prohibiting the manufacture of these things ?
Congress has found a means to means to regulate a totally local activity, regulating interstate commerce : it is the superbootstrap technique. Congress, by this technique, will be able to reach every local activity. It becomes a federal crime to manufacture these things.

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the substantial effect on interstate commerce :

     There is a great change in the docrtine since the 1937 decision.
In the sixties, this doctrine was used to achieve social purposes. The 1964 Civil Rights Act prohibits social discrimination by private persons in public acccomodations.

Heart of Atlanta motel inc. V. USA 1964
This public accomodation affects commerce.
The racial discrimination should have a substantial effect on commerce because :
    - there is a quantitative effect, by reducing the number of travelers.
    - there is a qualitative effect, by making travel harder and less pleasant for some people.
The motivation (regulation) of congress becomes irrelevant if the activity regulated by Congress has a substantial effect on interstate commerce.

Katzenbach v. McClung 1964 (one step further)
See the dissent in NLRB. There is a local clientele. It's an interstate commerce because the restaurant buys stuff from everywhere.
It deals with racial discrimination in a restaurant.
The SC is not willing to conceide that Congress can regulate everything. The SC reserves a power to say if Congress has gone too far from it power, but if Congress has a rational way to achieve the goal, it is acceptable.
The concurring opinion states that the Fourteenth Amendment, section 5, giving Congress the power to pass laws to implement the Fourteenth Amendment, should be used because it will be more elegant. The fourteenth Amendment section 1 prohibits states' actions.
Any kind of enforcement will be left to states' actions, thereby the fourteenth Amendment will be different.
It gives Congress a very expanded power, leaving to it a broad field of action if it is subjected to another Constitutional provision.
    Should we apply the tenth Amendment ?
    Will the SC always be deferential ?

The SC said Congress has power :
        - if it determines that the Act has a substantial effect on commerce
        - if the Act is actually not in commerce.
THEREFORE :
Congress' rational will be examined to find if the means chosen by Congress to protect commerce are reasonable to protect commerce. If there is this rational basis, the SC will defer.

ÜWhat is the limit of the deference given to Congress by the SC ?
The answer can be found in a 1995 case.

Limitations on federal commerce power

During the nineteenth century, the SC woud regulary find Congress' regulation unconstitutional because it was infringing on States' power according to the tenth Amendment. Congress was concerned with intra-state activity. If it substantially affects commerce or if it augues that there were the cumulative effects theory, we must see if Congress has been rational in considering it. Are there any limitations to Congress' power ? But slowly things began to change ;
   The value of the Xth amendment is increasing.
Before the Darby case, the SC said it didn't limit Congress' power under the Constitution. With the Darby case, the SC regarded the tenth Amendment as a truism, saying there is no real power given to the states. It doesn't mean that it limits the power of the Fed. Gov't. This vision lasted for 30 years.
1976 : the Xth Amendment makes a come-back.

National League of cities v. Usery 1976 in which the SC sets out to protect the sovereignty of the states from Congressional intervention. This is a very surprizing decison because it`s based on he States' Rights under the Xth Amendment .
Congress could not interfere with governmental functions traditionally left to the states. There was a problem in defining what a governmental function left to the States was.
There is no way to distinguish what falls under governmental functions. SC voted 5-4 that this law was unconstitutional. It affected commerce. Congress had violated the sovereignty of the State (here comes the Xth Amendment) by imposing wages, etc. In Darby, The Xth Amendment didn't limit Congress' power. Now it does (or at least, the State sovereignty is violated). Idea of dual sovereignty comes back. But, this decision doesn't last long.

Garcia v. San Antonio Metropolitan transit authority 1985 in which there was problem of stare decisis. the SC overruled the 1976 decision by abandoning judicial review in this area (one judge changed his mind). It was overruled because it proved its impossibility to be practised in life. It would defer to Congressional evaluation to know if the law in question does not infringe on State's sovereignty. In National League Of Cities, the Federal gov't violated the sovereignty of the States if it interfered in a function (iow an activity) traditionally belonging to the States. Now the Xth Amendment still means something but the protection of State sovereignty shouldn't come from the ? but from the political process. It's impossible to determine what an activity traditionally reserved to the States is.
Dissent : It's outrageous. How can we say that Congress will protect States' rights ?
The political process coming from the federal structure of the USA provides adequate safeguards from Congressional intervention.
Congress can now do pretty much what it wants. Only an extraordinary defect of political process will justify an overruling by the SC. Intervention of the Court « if there is a significant defect in the political process ».
The SC said « Congress may not commandeer the legislative process of the states by forcing the states either to enact or to enforce a federal program ».
In a later case of 1991, the Supreme Court fleshed out a doctrine which seems to protect States from Congressional action : Gregory v. Ashcraft.
The law passed was an age-discrimination law (you acn't force people to retire). This law was enforced against State employees. The SC admits that Congress acts pursuant to commerce power. But this law is applicable to State gov'ts and if Congress intends to apply its law to State gov'ts, it must mention it explicitely. This applies to laws that touch essential, sovereign or political powers of the State.
Pb : What is sovereign function ? Here the law clearly affected State gov't, therefore the law didn't stand because it wasn't clear enough.
2nd possible way : Political process would fail if a State is singled out in an unfair manner.
3rd possible way : The political process would prove defective if Congress commandeers (hijacks) State legislation. This is Printz v.US .

Printz v. US 1997
The Xth Amendment comes back.. A law was passed which put restrictions on the sale of handguns. Officials of the State gov't challenge the law. Congress passed the law under its power to regulate interstate commerce. The SC about the commerce clause says: Congress acts within its power.
The law is unconstitutional because by requiring an intervention of local authorities, Congress was commandeering the legislative process of the States ; Sovereignty of the States is used to limit congressional action under the commerce clause. Congress uses State police officers to execute federal law (= it commandeers State's sovereignty). Read the 2 last § on p.103.
The majority cites NY v. US where the SC found a law unconstitutional. The law was regulating the commerce clause but it commandeered the legislative function (the law said that the State had to pass a law for …whatever reason).

After Garcia the tenth Amendment is largely irrelevant but not completely. The SC is deferential on laws passed pursuant to the commerce power even if they infringe on States' sovereignty.
If a law applies to both private individuals and states' governments, the SC will go along with it.

In Printz, Justice Thomas in his concurring opinion said that Congress ha the power to regulate interstate commerce, not to regulate intra-state commerce ; It's not affecting commerce. The dissent : Congress has the power to impose obligations. The best protection for States' rights is the political process. Therefore, the SC shouldn't get involved in this decision. SC hasn't overruled Garcia but the SC starts looking if Congress violates the sovereignty of the States ; In that case, it violates interstate commerce. The general doctrine is still that political process is the best (except when there are strong defects).
Extraordinary defects :

If Congress commandeers State executive.

If a law is interfering with the essential function of a State.

When a State is singled out.

Other possibility to limit Congress : what if the SC became less deferential to Congress ?

USA v. Lopez 1995
A 5-4 decision, opinion written by Rehnquist, who is a big supporter of States'sovereignty. It is the state of the law since. Rehnquist called upon the Federalist Papers and great principles such as that in Gibbons v. Ogden.
The commerce power is very broad but not unlimited. SC talks about Wickard (cumulative effects doctrine). Carrying guns is not an economic activity. The gov't says it affects economy (it affects education + the costs of violent crimes is increasing, therefore the price of insurances will also increase). The SC says it does not. Congress can validly regulate pursuant to the commerce power in two situations :

if the Act regulated is part of interstate commerce, what falls under the instrumentalities and channels of interstate commerce (by using the commerce prohibiting technique).

The Act substantially affects interstate commerce. Congress must have a rational basis for this judgment that the Act has a substantial effect on interstate commerce.

            - If the Act is commercial, the SC will defer even if it has a single effect on commerce because there is a cumulative effect.
            - if the Act is non-commercial, the SC wil not defer easily. If Congress has made findings to support the Act , it will perhaps lead to an agreement of the SC. But if there are no findings, the SC is going to engage independent evaluation whether the act affects commerce. The SC said that it does not affect econom because there is something missing in the congressional statute : the law didn't have any findings. The SC says there is no substantial effect on interstate commerce. SC wants to avoid to have a Congress with a general police power (education is part of the power). The dissent says that the SC should be more deferential.
Ü The means chosen by Congress to achieve its objectives must be reasonable.
What remains after Lopez v. US ?
Congress can regulate channels of interstate commerce, insrtumentalities and substantial effect. If the matter isn't commercial, will the court be less deferential ?
*
In case of intrastate non-commercial activity and if Congress doesn't include findings, then the SC won't accept Congress' opinion and the SC will look at it itself.
Summary :US v. Lopez : the Sc examines Congress' power more strictly in some occasions. It seems that Congress can regulate what is part of interstate commerce, in other words, the instrumentalities the channels of commerce (whether it's regulating or prohibiting), it may regulate intrastate commerce if it has a substantial effect on interstate commerce. One can reach the substantial effect using the cumulative effect technique. The SC will be deferential with Congress if there is a substantial effect, but with the case US v. Lopez, Congress will have to include factual hearings justifying that the intrastate activity has had effect on interstate commerce. If not, the Court will make an independent evaluation : Is Congress rational ? In Lopez, there is no connection between guns and interstate commerce. The other solution would be that there is a connection.
    The question remains ; When Congress includes such justification, will the SC obey without rebelling ? Or may it still go against it ? In that situation, the rationality of Congress must be examined.

Limitation on state power : the commerce clause

How does the commerce clause limit the power of States ?
Background : Article 1 § 10 of the Constitution gives a list of express limitations on the powers of States. The commerce clause is silent.
If the consitution allows power to Congress, is this power exclusive or concurrent with the states ?
The SC decides on a case-by-case basis.
The Constitution grants power to Congress to regulate commerce, but does it deprive impliedly the States of any power on this power?
It is the negative/dormant commerce clause.
First case where this was seen: Cooley v. Board of Wardens.
The SC held that it was not an exclusive federal power, giving therefore to the states some power to act. When the states can act, the commerce power is not exclusive but potentially persuasive.
The act regulating commerce will preempt any conflicting laws. Congress can pass laws prohibiting States' actions in a particular area, but Congress can also authorize States' actions.
When Congress is silent, can the States act ? The SC will evaluate the situation.

rational of the interstate commerce clause : By granting this power to a centralized government, the Articles Of Confederation were trying to create a common market. The basis of the negative commerce clause was to make sure that
Prior to the Constitution, each state was concerned with its own need to the detriment of the others'.
The SC kept this idea in mind when deciding if the States could act.
The SC is an active participant in keeping the channels of commerce free from undue restrictions on interstate commerce.

Cooley v. Board of Wardens 1851
Pennsylvania law of 1803 on pilots ; They safely guide the ships. The ships had to engage a local pilot when coming or levaving Philadelphia. But before that, Congressional act had been voted in 1789 saying that this matter would be dealt with by the States in order to avoid having a conflict : Sate law v. Congress law. Navigation is a part of commerce ; The regulation affects interstate commerce.
The issue : The constitutionality of the 1789 Act delegating Congress' power to the States if it isn't exclusive. In other words : Is the power to regulate commerce exclusive ? The SC says No. When may the States regulate so ? There is a distinction to be made between what needs uniform rules and matters that have local diversity and needing local solutions. This case resolves one issue but it doesn't really tell us when (it depends on factual circumstances). But the States can be prevented from regulating interstate commerce. 2 ways :

Commerce can preclude the States from having that power.

Congress' laws preempt on States' laws ; Thus, Congress' law cancels a State's law in a given area.

Congress can allow the States to regulate an activity even though the State doesn't have this possibility normally. This power (to limit States' power) is dormant.
If the Constitution gives exclusive power to Congress, it cannot leave the issue to the States. But it is not an exclusive power. The State law is valid here because Congress has not passed a law which will preempt on the State law.
The commerce power is not always an exclusive power. Congress has an exclusive federal power in an area where an uniform rule is necessary.
The SC did not differenciate what was local and what was national.

After this decision, the SC focused on the impact on interstate commerce. If it affects directly interstate commerce, the law would generally invalid. If it affects interstate only indirectly, it would be generally permissible.
This test remains that the dormant commerce clause will block some regulations but not all regulations affecting interstate commerce.

There must be a balance of the regulation : can the State's regulation of its own affairs affect the national interest ?
In the twentieth century, the SC had a more sophisticated approach. A direct or indirect impact was also very difficult to decide.
There are three different tests, the State has to comply with each of them :

•

It has to pursue a legitimate purpose. If not, the law is obviously invalid. A legitimate purpose is one protecting the health, the safety and welfare of the citizens. We have to look beyond the label used by the States. Remember : The States have a general police power. Their objectives are to promote the economic interest of the inhabitants, which have an impact on interstate commerce. It is an unlegitimate purpose. The States may not have the purpose of regulating interstate commerce, but the law can have an effect on interstate commerce.

•

The Act must be rationally related to this legitimate purpose. There must be a rational relationship between the Act and the purpose. The SC is very deferential to the means used by the local legislature to pursue its purpose, as long as it is a plausible way to accomplish this purpose.

We have to balance the weight imposed on commerce with the benefits of the states. Fewer restrictive alternatives to the States will lead the court to find the law unconstitutional.

•

The burden imposed by the state on interstate commerce should not be outweighed by the the State's interests in enforcing the regulation. If it is so, the law will be unconstitutional unless the State can justify the discrimination. Could the benefit be reached without placing such a great burden on interstate commerce ?

Dean Milk co. v. Madison 1951
City law passed by Madison. The Wisconsin SC rejected the request of making the statute unconstitutional. Is that law contrary to the constitution ? There is no congressional act in the area : it is therefore the dormant commerce clause.
The SC used the trio of test to determine if the local law is valid.
The local law failed a the third test, invalidating therefore the law. Justice Clark : « undue burden ».
First test : Passed. Protecting the quality of milk.
Second test : The court doesn't even mention it (it's so easy to pass).
Third test : Undue burden ; There are other ways to achieve the same benefits without prohibiting all the milk from outside.

It is a case by case approach.

Despite the fact that there is no Congressional action, can the states regulate the activities within interstate commerce ?
Does the commerce claue prevent the states from acting ?
To what extent can the states intervene ?
Use of the trio of tests :

•

the act must pursue a legitimate purpose, only the police power is legitimate. The protectionnist goal is not legitimate.

•

the means chosen by the legislature to accomplish this goal have to be rationally linked to the purpose.

•

the law must be outweighed with the interest of the state. It is a sort of balancing test between the national impact on interstate commerce and the interest of the state.

These are cumulative requirements.

Economic protectionism causes per se invalidity of the law. There are 3 areas :

regulation of transportation :

The states are regulating the instrumentalities of interstate commerce. It can be the use of roads or railroads for security reasons.
Ü Can the States act when Congress does not ?
Use of the trio of tests to know.
The third test is the most difficult, if the discrimination is on both interstate and local commerce, the Act will be valid, but if the discrimination is only on interstate commerce, the Act will not be valid.

South Carolina state highway dept. v. Barnwell Bros. 1938 trucks used in interstate commerce were wider and heavier than the S.C. law standard. The law was challenged as violating the commerce clause.
By using the trio of tests, the SC said the law is valid because :
    - the regulation does not discriminate only interstate truckers, it applies to intrastate truckers as well. It does burden interstate commerce (but it's not a discrimination). Most important one.
    - the highways are peculiarly a local concern because it is constructed by the States and they vary from state to state. The SC knows what limit should be apply.
    - the court should be deferential with regards to the means chosen by the state legislature to achieve a legitimate goal. The court cannot act as a « super legislature ». Otherwise it would be a violation of the separation of powers. Result of that case : States can impose size and weight restrictions.
In the 1980's Congress is no longer dormant in this area.
1982 : Congress passed a law harmonizing the requirements of trucks for the interstate highway system.

Southern Pacific co. v. Arizona
§4 & §5 of the decision= summary of the dormant commerce clause
The law succeeded at test #1 (safety) and at test #2 (it's rational). Concerning test #3 there is a significant effect on interstate commerce and there is no clear improvement of safety with this law (because this causes an increase in the number of trains ; It's dangerous too). Therefore the national interest must prevail.

In Barnwell the SC said that a state could regulate the size and weight of the trucks but in this decision the law in question is not national as highways are a purely local concern. Highways regulations are more aimed at safety than railroads'. The Acts do not apply to the same people (interstate/intrastate). Burden on commerce : The court says there is a burden on interstate commerce, but as far as discrimination is concerned, there is a discrimination against out-of-state companies.
Dissent : Purpose are legitimate, means are rational ;That is enough. If the law applies to everybody, we must weigh the benefit.
But in the SC case interstate and intrastate commerce carriers are affected equally. In The AZ case the burden falls mainly on interstate carriers.

State barriers to incoming trade :

The State can limit the importations within its borders. The goal is probably economic protectionism. The Act is more likely to be found invalid, no matter how big the discrimination is (that's Wyoming v. Oklahoma 1992).
Per Se invalidity.

Baldwin v. G.Q.F. Seelig inc.
The Act failed at test #1 because the State was concerned with economic protectionism. The Act is per se invalid. Court questions the means by which NY would achieve its goal. The conclusion is that one can't justify these measures of protectionism with the sole argument of health.

Dean milk co. v. Madison
test #1 is ok as the objective was to ensure the quality of the milk
test # 2 is ok
Test #3. The means chosen is to prevent interstate dairy products from coming into the state. Other means could have been chosen such as a control...
The Act is therefore invalid.

Environmental regulation :

Philadelphia v. New Jersey
The Court uses the dormant clause in order to restrict the *.
The law deals with the disposal of hazardous waste.
The plaintiff argues that the purpose of the law is to reduce the cost of disposal but that it also has an economic protectionist purpose.
The SC answers that the 2 goals are legitimate and that the means are rationally linked to the goals. Not an illegitimate State purpose but it's illegitimate because there is no right to tax imports of garbage. Here, the environmental pb is a national pb ; It's not a commercial problem. It requires national solutions so that one State can't say it'll take care of its own garbage and the others do the same. The law is protectionist in its means >< the spirit of the commerce clause.
There is no economic protectionism but there is an environmental protectionism which is not a valid form of protectionism. The means chosen are therefore illegitimate.
BUT sometimes a state can prohibit the diposal of very dangerous hazardous waste .
How can one determine which one is more dangerous than others'? By using a quarantine, which Rehnquist disapproved in his dissent by saying it was pointless. States' rights is what Rehnquist supports.

There is the idea of national solidarity : the diposal of hazardous waste is a national problem, no state shall obtain an advantage and no state shall try to get rid of its own disposal by sending it in another state.

Recap : Dormant commerce clause : commerce hasn't exercized its power. Does that give power to the States ? Negative commerce clause : implied powers.

state barriers to outgoing trade :

The state is trying to restrict the flow of some goods -agricultural goods or national ressources- outside its borders.
NY prohibited NY milk from being sold in Mass. When questioned, it says it wants to make sure there is an adequate supplies of milk for NewYorkers. But the SC says NY can't keep a market for itself and can't prohibit the export.
Hughes v. Oklahoma (1979) : windling population of wild minnows. Oklahoma passes a law pohibiting the exportation of its minnows.
Legitimate purpose : protect the environment.
Means : Rational.
Does the burden imosed on interstate commerce outweigh the benefits ? Who knows ? The Court in that case will look for « less-restrictive alternatives ». The court says that there are less-restrictive alternatives, therefore the statute fails. Here we are talking about total prohibition of export. of commodity. There is also the matter of restricting.
Pike v. Burce Church, Inc. (1970). All cantelopes had to be packed before shipment. The reason of this law was to make sure that the origin of the cantalopes would be clearly mentioned. Bruce Church has a pacing facility in California ; He'd like to pack the melons there. He challenges the statute of Arizona.
Use of the trio of tests :

•

Legitimacy ? Yes. It's not economic protectionism : Arizona isn't hoarding its melons (keeping them for themselves).

•

2nd test : Yes.

•

burden imposed on interstate commerce : There is one. This is weighed against the benefit to the State. The court says there is a restrictive burden on cantalope-producers (everybody must have a processing-factory in Az.), therefore the statute fails.

For the dormant commerce clause, there is an exception : when a State paticipates in a market.

The State as a market participant

Reeves inc. v. Stake
South Dakota built a cement-plant in order to prevent cement shortage. Example of dicrimination : South Dakota horded cement because they didn't have enough. The result is different from that in Hood & Sons v. Dumond (1949 :Where an illegitimate goal is seen as economic protectionism). If there is a shortage and that South Dakota doesn't produce cement, can S.Dak. deal with the shortage by prohibiting sale to out-of-state ? NO. But here, the State acts as a private industry. It is recognized the rights of traders & manufacturers. But most importantly, the financing of this plant comes from the State money, from the S.Dak. tax-payers. South Dakota acts as a trustee.
Dissent : it's discriminatory. Even if a State is a market-participant, it is always concerned by the quality. The States can discriminate when it buys stuff that it needs. But here, the State refuses to sell to out-of-state barriers = it's a way of getting around.
The commerce clause was meant to apply to state regulation and to state taxes. When the State acts as a market participant, there is no application of this principle. Discrimination is OK if Congress doesn't act in this area (Congress' powers are dormant).
The distinction is based on the notion of the commerce clause.
It is an exception to the dormant commerce clause.

It is the use of taxpayers' money to do something. The state will therefore favor its citizens rather than out of state citizens ; financial help to get rid of their old cars instead of abandoning it anywhere.
Hugues v. Alexandra scarp corp. 1976 the SC found that the law had the effect of limiting interstate commerce. But despite the discrimination, the law was valid because the state acted as a market participant.

Exception to the exception :

South central timber devel. v. Wunnicke 1984 The State of Alaska sold timber belonging to it to private companies but included a clause forcing the buyers to process the timber in Alaska before shipment. Alaska is acting as a market participant. Can Alaska impose this limitation ? It said it participates in the market and only puts a small condition. But the SC dissented to that pov. Test : In which market is the State participating in ? A distinction is to be done between the market of producing wood and the market of processing wood. Alaska may only restrict the production of wood.
The provision is a regulation and a sale barrier.
3rd case : It's OK for Boston when hiring contractors to insist that all of the workforce be for at least 50% residents of Boston. Why ? It's not privity of contract anymore (unlike Wunnicke).

If we decide that an activity is outside of State participation, we have to apply the dormant commerce clause. Ex : Montana wants to build, own and operate a dam. The State law authorizing the construction says that bids may only come from Montana companies and workers must be from Montant, even in the subcontracts. Challenge : It goes against interstate commerce.
Are the subcontracts bound to follow this rule ?
*

Limitation on state power : federal preemption :

Ü when Congress is acting, can the States regulate ?
When does Congressional action preempt on the states' ?

Congress has the power to preempt on State law if :

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Congress is acting within the scope of its enumerated powers

•

Congress must intent to preempt State law. It can be expressed or implied.

when it is implied a conflict preemption occurs when there is a conflict between federal law and State law. The federal law will preempt in two cases :

- when in a conflict, it is impossible to comply with both laws. Ex : 1913 The FDA mandated that a certain cough syrup be written in a special way, but Wisconsin law said it had to be written in another way. But this type of situation isn't very common.
- when the State law is an obstacle to the accomplishment of the goal of the federal law, the federal law is preempting. Ex : Congress passes a law to give the right to display the flag in the frontyard. A State X. says the contrary. In that case, it's not impossible to avoid the violation of the law, but federal law preempts.

2. field preemption : The SC decides that Congress has intended to occupy an entire field, there is no area for State regulation in that field ; The SC finds this out by 2 ways:

- When the federal regulation is so pervasive that it must mean that Congress intended to avoid any State law.

- When the federal interest is so dominant that we can conclude that there is no room for a state action in that field.

Sc reviews this in order to avoid a regulatory vacuum or to avoid unduly-restricting the police power of the State.

Pacific Gas & Electric Co. v. State Energy Resources Conservation

Challenge : Californian law has been preempted by federal law. Cf. p.128 of the material last § to top of p.129 = it is a summary about when there is a presumption (conflict preemption and field preemption). The subsection 8 of the case doesn't notice any express preemption State law.
Did Congress intend to preempt to preempt a field ?
Physical impossibility : conflict preemption. The State can't decide to build the plant or not to build it because Federal law has preempted.
Safety issues : field that has been preempted. « Nuclear plant is economically viable ? » ;The field has not been preempted.
Why ?

Had this field been been preempted, there would have been a regulatory vacuum.

The Supreme Court justifies this restriction of preempting only the safety issue also by saying that it wants to avoid to unduly-restrict the power of the State ; Traditionally, the States have regulated the economic field of power generation. Therefore, the Court says there is no field preemption.

(…)
The court places the obstacle in applying the law. Federal law's objective is to develop nuclear energy. Does State Law which refuses to authorize nuke power-plants make an obstacle to this federal objective ? Congress could preempt States' power.

Legislative power : other powers

Power of Congress to tax.
Artcle I section 8 clause 1 :independent power to tax activity, even if Congress doesn't have the power to regulate this activity. What is the limitation between taxation and regulation ?

Congress has two powers :

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taxing power

•

spending power

¬   taxing power : is the basic authority of Congress according to article 1 § 8.
This power is limited to the general welfare of the country.
It is an independent enumerated power. Therefore it can tax even what it cannot regulate.
There are three limitation on Congress' power to tax, which are explicit in the Constitution :
        1. article 1 § 9 : it cannot levy duties on exports.
        2. article 1 § 8 : all duties shall be uniform throughout the USA (the excises, etc…). The percentage must be equal.
        3. article 1 § 2 : direct taxes shall be apportioned according to the % of population.

What is a direct tax? it is on levied on real or personal property and in proportion to the revenues per person.. But in 1894 the US have adopted the income tax law, a year later, the SC found that those portions of the tax were unconstitutional - those concerning real and property tax which are direct taxes - because it violated article 1§2 (disrespect of the % of the population). It was progressive, based on wealth and not on population.
In 1913 the sixteenth Amendment was voted which allows taxes on real and personal properties without regard to population.
The most dangerous implicit limitation on Congress' power to tax is that Congress cannot regulate an action that it has not the power to tax by saying it is taxing. If Congress taxes the interstate shipment of cigarettes (giving for a reason that the goal is to limit the number of smokers) : it has the power to regulate it because of the commerce clause (it can regulate interstate shipment), and therefore there is no issue of taxing power.
But if it has not the power, can it regulate it by taxing ?

Bailey v. Drexel furniture Co.
(see Hammer v. Dagenhart where Congress had infringed on the power of the State, because it was regulating manufacturing).
The tax imposed a 10% tax on child labor. A company employing children challenged the law. Congress says it only uses its tax power.
Do Congress have the power to regulate this matter? The court says no, as it is reserved to the States.It would have been a way to regulate something that is not in its power ; Usually tax is proportional to the activity, but here it is a flat tax.
« Scienter » = The law knew what it was doing. Not only was there a 10% tax, but there was also detailed regulation. This is regulation => Does Congress have the power to regulate this ? No (Hammer v. Dagenhart).
(cf. Commerce-prohibiting technique)
If that case was brought up in the 1940's, it would have been okay as in 1936 the SC abandoned the idea that certain areas were left to the states.
Now Congress can regulate interstate commerce if there is a substantial effect or if it is part of interstate commerce. The SC would say that Congress would have the right to regulate that matter. Now the principle according to which Congress does not have the power to tax an area that it cannot regulate will be very limited.
The power to regulate possessed by Congress is broader now => This distinction isn't that important nowadays.

US v. Kahringer 1953. It gives guidance as to the situations in which an act of Congress is a tax or a regulation.
The SC imposed rules saying when taxes would not be considered to be regulations :
    Ê regulation that accompany a tax. For example, bookmakers have to file tax records including their revenues and put taxes on them. The purpose was to discourage gambling and make it easier to catch them. The SC said it was proper because the regulation was reasonably related to the collection of taxes ;
    Ë the government has collected taxes in an effective manner. If the government makes money on the taxes, the court will presume that it is a tax and will be deferential as long as it collects some revenue and will not enquire the motivation of the tax ; In other words, if the tax raises revenues, it will be considered as a tax.

  spending power : it is an independent power.
there are two main issues :

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what do we mean by general welfare ?

•

when Congress spends, can it attach conditions to the allowance of the funds ? Yes, but what if those conditions lead to a change of policy by the States in order to obtain the funds ?

1. US v. Butler 1936
Butler said Congress can't regulate agricultural production. Congress said it was helping farmers (spending provision isn't regulating). There is a definition of the general welfare. This is not spending, it is regulating. Hamiton's view is taken into account for the decision : Congress can tax, spend for general welfare but cannot regulate.
2nd argument : it's regulating. But can Congress do that ? Court says the act invades the reserved rights of the State. Court mentioned the 10th amendment, where Congress regulates under the commerce clause : commerce v. farming. It's not a spending provision so it's invalid as a regulation. Today the SC wouldn't have reached the same decision because the definition of commerce is broader now : substantial effect on commercial activities.
The solution in this case :Power to tax and spend for general welfare is a congressional power. In this case, what was wrong with this law was that there was an element of coertion :if the farmer didn't do what he was requested to do (sign a contract promising to use the $ to remove the land from production), he wouldn't get the $.
Read Top of p. 127 : « there is an obvious difference between a statute… ».
The law was objectional because it forced in a way farmers to coerce compliance with a regulation by entering into contract with the fameers.

(There were other ways Congress could have regulated. Congress could have imposed conditions on the acceptance of funds but it is not okay if one is coerced by promising to enter into a contract.
å the distinction is absurd!!
The SC quickly backed away from this position as it was not working in practice.)

Chas. C. Steward Machine Co. v. Davis
The court starts to withdraw from the analysis in Butler. The Butler case was not overruled. In this case, Congress makes a deal with the States : « If the States set an unemployment compensation fund, we'll give money to employers ». The court said it was okay (appropriate expenditure). If the condition on expenditure intrudes too far, this may be unconstitutional.

South Dakota v. Dole 1987
Goal :impose a national drinking age.
Each State has its own laws regulating the age when men and women are permitted to drink alcoholic beverages. But Congress, through its budgetary powers, has sharply influenced those States laws.
In the 1970's many States lowered the drinking age to 18.
On one side some argued that drunk driving was the leading cause of death among teenagers. Indeed national statistics showed that teens were more likely to be involved in drunk-driving accidents.
On the other side, opponents to fededral intervention maintained, however, that teens suffered no more casualties than drivers aged 21 to 25.
Congress was called to act. Some members of Congress asserted that national regulation of the drinking age violated the principle of federalism because this was a matter traditionally under state jurisdiction.
But the Congressional legislation that finally emerged did not create a uniform drinking age directly. Instead, it required that 10% of federal highway funds be withheld from any state that failed to raise the drinking age to 21. States could choose to ignore this rule and thereby forfeit some of their highway money.
This issue turned on a compelling national interest in health and safety. Therefore, Congress could legitimately draw the power on the power of the purse to apply leverage to state governments.
Opponents called this federal blackmail.

•

If the Act promote the general welfare (here highways : there is a genral welfare), the SC will defer to Congress.

•

The conditions on the allowance of federal funds must be clearly stated so that the States can weigh the consequences of their local laws. The conditions should be made unambiguous : States should be aware of the possible consequences.

•

Conditions on federal grants might be illegitimate if they are unrelated to the federal interests. The condition related to federal interest in a national project : here it was highway safety. In the dissent, Justice O'Connor doesn't see the relation.

•

There must be no violation of other provisions.

•

Moreover the condition must not be exagerated. There must be no coercive conditions ; The court is concerned with State sovereignty. If States didn't change their law, they lost 5% of the $. That is not coercive.

ÜThe dissent said the act was over- and under-inclusive. Congress can attach conditions on how money is to be spent. The condition has to be supported by an independent enumerated power.

The SC confirmed a very broad notion of the spending power but Congress cannot encourage States to engage themselves in activities opposed to the Constitution.

®    War Power (allocated to legislative and executive powers):
      Article 1§8 gives the power to congress to declare war ; to raise and support armies and a navy.
      Article 2§2 states that the president is the commander in chief of the armed forces and has therefore the power to conduct war.

How does the war power given to Congress affect its power to regulate matters normally reserved to the states ?

Woods v.   Cloyd Miller Co.   1948
This case answers the question.
It concerned a Rent control Act by Congress. But the Rent control is a local matter ;The law is constitutional because Congress acts pursuant to its War power.
The SC said there was use of the police power.
The necessary and proper clause of the Constitution gives Congress the power to regulate when nedded to exercise an independent enumerated power.

¯   Federal Treaty Power

     Both Congress and the president are competent, but it is an exclusively federal power.
Article 1§10 states that the States cannot make treaties without Congressional consent.

Article 2§2 gives the president the power to negotiate treaties but they must ratify by 2/3 of the Senate.
The Supremacy Clause states that a treaty is a congressional statute, therefore it is the supreme law of the land. When there is a conflict between the two, the latest rules.
BUT some treaties are not self-executing and need congressional action (e.g. if it requires money):
    - because the language of the treaty says so
    - because the Constitution requires it.

Ü what kind of laws can Congress pass to impliment a treaty ?

Missouri v. Holland
Treaty between US and GB. A treaty is not self-executing because of its language. It said to the States « You have to pass this law ».
Congress can act using its treaty making power when it has no independent enumerated power to do so.
Can the USA make a treaty on any subject ? Yes only a very few matters are purely local.
The Bricker Amendment in the 1950's was passed by Congress but was never ratified.
A treaty shall become effective in the US if the legislative implementing the treaty is itself valid. The treaty is valid. The same law is valid 3 years. What is changed ? The law is valid under the power of « necessary and proper » to effectuate the treaty.
This decision => problems. Does Congress have unlimited powers to sign treaties ? The solution is in Reid v. Covert

Reid v. Covert 1957

The US negotiated a treaty with states where US troops were stationed. Host countries gave jurisdiction to US military courts over military personnel and their families in criminal matters.
A civilian was convicted of murder by one of these courts, she said she was deprived of her right ot a trial by jury.
The SC said the Act implementing the treaty was not valid, Congress could not pass a law implementing a treaty that was violating Constitutional guaranteed individual rights (Sixth Amendment).

The SC used Missouri v. Holland but it concerns individual rights. It does not deal with federalism.

Can the president negotiate a treaty with another country which will not be ratify by the Senate ?
Yes It is called an executive agreement.
These agreements are Constitutional as long as the president has an independent power to make this agreement, like a diplomatic recognition of another country.
But the agreement does not override statute but does override conflicting State laws because foreing affairs is an exclusively federal concern.

Separation of Powers

There is the possibility of one brach intruding in the powers of the other. When does this go too far ?
To avoid concentration of powers in one branch of government.
There is an horizontal separation : three branches of government
there is a vertical separation : local/federal.

The Constitution :

•

veto power of the president

•

impeachment by Congress

•

Senate approval of federal officials nominations

power to negotiate treaties with Senate's approval.
Structural argument : separation of powers. In favor of one branch.
Functional argument : intrudes the constitution : senior officers are to be nominated by the President and approved by the Senate. If Congress aggrandizes its power to the detriment of the President ? It can happen that a branch intrudes on another branch without aggrandizing its own power.
Ex : Congress passes a law promoting democracy abroad => The President must recognize Corsica as a country (for example). The president could challenge that action as a violation of the separation of powers. The prerogatives of the President in this field are that there is a clause in the Constitution to receive ambassadors and the President has the authority to recognize foreign governments. Pb : The Constit. is implicit on that question =>Need for a structural analysis.
Has Congress agrandized its power ? Yes, possibly.

Ê   Powers of the executive branch :

     It comes from the Constitution and from a Congressional authorization meaning the president will be able to do something he will not have been able to do otherwise.

•

Article 2§1 : the executive power is vested in a president but it does not say how broad this power is.

•

Article 2§2 : the president is the commander in chief of the armed forces (army and navy). He has the power to conduct war and has a civilian power over the armed forces. He has a power to negotiate treaty, to appoint ambassadors.

•

Article 2§3 : the « take care clause » by which the laws have to be faithfully executed. He has the power to execute the law .

•

Article 1§7 : he has a power to sign or veto bills.

But most of his powers are implied (article 2 §1). The only limitation could be a congressional article or an Act of Congress.

Ë Executive/legislative conflicts : domestic policy

A lot of the executive powers are implied in both domestic and international spheres.
The SC requires that a power exercized by the president be considered as an executive power, therefore it will be held consitutional.
Ù There is a major limit : no power to make laws.

Is an unilateral Act by the president an executive Act ?
Some presidents have a very broad interpretation of Article 2§1 saying they have the right to do anything for the good of the Nation as long as it does not violate constitutional provisions.

Youngstown sheet & tube Co. v. Sawyer 1952
Congress had the power to pass such a law. Pb : The president ordered it. Has he usurped a congressional power?
Two statutes authorize the president to order seizures but they do not apply here.
It is a legislative function but does nt explicit why : the SC is dogmatic.
There is a fear of concentration of powers in the president's hands.
Black says that the President had no express grant of power. Is it implicit ? No. Black expresses his underlying philosophy :the original goal of the separation of powers. This approach is too mechanical. Who can say what an executive or a legislative action is ? Nobody can. Therefore, Jackson's opinion is the most important one.
Frankfurter concurring : Justice Black's opinion is too simplistic. A mix of powers is sometimes necessary. Past practice and Congressional acquiescence has to be taken into account. In 1947, the Taft Hartley Act on labor disputes authorized the president to order seizures.
Has Congress afirmatively refused the power to seize ? NO. It is implied in the absence of congressional action, but we can't rely on what the Constitution says because it's too vague. He considers history. Congress hasn't acquiesced in the president's action.
Jackson concurring : Let us analyse the power of the President in relation with the power of Congress. When there is a congressional authorization (expressed or implicit), the president's power is maximum. But when there is no congressional consent, the presidential action is much more questionable ; He only has his own powers.
In the middle, there is an area of twilight.
No Congressional action whatsoever => powers of the President under the Constitution and we must interpret what the lack of athorization means. Jackson interprets the inaction of Congress as a limitation to the powers of the President.
The president argues that there is a war going on, therefore this gives him the power. Jackson answers that we must be sareful ; The president can't do anything just because of war.
p.174 : case in relation with our present case. It is the reference to other seizures ordered by presidents such as in the 1940's and during WW2 aircrafts were necessary to fight back the Japanese attack on the US. But in 1952 there is no direct threat to the US. In these cases, Jackson was the solicitor general and argued at the time that the President could seize it because it was a time of war. Here the SC refused the seizure of steel plants because seizing steel plants is a more important act than seizing an aircraft ; The president can't seize an entire industry.
Emergency powers : Congress can give such powers to the president but it will lead to a serious risk for the democracy.
dissenting opinion : The president must have emergency powers.

Ì Congressional aquiescence :

Congressional action/inaction affect the powers of the executive branch :

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Congress can authorize the president's action.

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Congress can prohibit president's action as long as it does not attempt to remove a presidential power.

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Congress acts implicitly. If Congress fails to pass a law, is it a prohibition on presidential action ?

Justice Frankfurter thinks so.
Interpreting Congress' silence as a prohibition means no possibility of vetoing a law. But interpreting it as an implicit authorization can provide gloss on presidential action.

Dames & Moore v. Regan 1981
An act freezes the Iranian assets in the US. Then these assets are unfrozen but the action of the plaintiff against this freezing is dismissed in between.
There is an executive agreement : an international document which is not to be ratified by the Senate.
Petitioner has to abandon its suit against the government of Iran : the international settlement of disputes.
- The power to nullify the attachments by the president. There is an explicit congressional authorization, the action is therefore valid.
- power to stop US citizens' claims against Iran : no explicit congressional authorization. It is implicit from practice of executive agreements. (it's the twilight zone)
- the acquiescence comes from congressional inaction in this area (in the steel seizure case the aquiescence came from a prohibition). >< Sawyer 1952 (domestic policy).
HERE : it concerns foreign relations. The SC gives great deference to the executive.

It is a political doctrine. The share of powers on a specific area will depend on the situation.
In the area of the separation of powers, there are only a few SC decisions, it does not want involved (non-justiciable questions).

Summary : There are 12 approachs of the the separation of powers.

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A textual approach.

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A structural (functional) analysis.

Does one action agrandize the power of a branch or does it encroach on the prerogatives of another branch of the government ?
Justice Jackson's concurrence in the Steel seizure case is very important :Presidential power is the greatest (and therefore likely to be constitutional) when he acts pursuant to the authorization of Congress and this power is at its minimum when he acts contrary to the will of Congress.
The zone of twilight : Congress is silent. What does this silence mean ? It depends (cf).

Foreign Affairs Powers :

How is the war power shared between the president and Congress ?
In foreign affairs, the president is given more power than in domestic affairs. It is stated in the Constitution. It is logical, based on the notion that when the US is acting on the international scene, it has to speak with one voice. But it's not exclusive.
Congress has some power too, see article 1§8 : it is the power to define offenses against international law...
The Senate's approval is necessary in certains areas (ex : to approve the appointment of ambassadors).
Ù The foreign affairs power is a federal power shared in anunclear manner with the judicial and the legislative.

United States v. Curtiss-Wright Corp. 1936
It was a joint resolution of Congress delegating power to the President => attack on the president's power of embargo. Why ?
The president proclaimed an embargo on the sell of weapons to Bolivia.
Is the law making power given to the president ?
The issue concerned foreign affairs. The court says this power is belonging to the federal government. The constitution doesn't say that the federal power has this power to deal with foreign powers because they don't belong to the enumerated powers : the enumerated powers were given to the States. As far as foreign affairs is concerned, this matter NEVER belonged to the States . The US must have these powers in order to be equal with other countries. How can we be sure that the President had a power to embargo ? We can be sure because the President's power is at its maximum. (We don't know if he could have embargoed by himself).
Other issue : does Congress have the power to delegate its power to the President ?

There is an historical analysis of the international power, which concludes by saying that the federal government has enumerated powers in this field. Congress has delegated some of its foreign affairs powers to the president.

The president has discretion (very broad) because he has his own powers and a power given to him by Congress.

There is no improper delegation of power to the president. It is not a question of law making.
The SC confirms that the federal power has the foreign affairs powers.

War power :

The Constitution clearly indicates it is to be shared between the president and Congress. There was a lot of conflicts.
According to the Constitution, Congress has broader powers.

But the only mention of the president's power is the fact that he is the commander in chief. As head of the executive, he has the power to conduct war because he has the power to execute it. Congress has power to declare it.But what has happened is that the President's power has exceeded that of the legislative.

Can the president commit armed forces without a Congressional authorization ?
Let's start :

With self-defence (US attacked). Can the President attack unilaterally ?

Prize cases 1863 : Attack on Fort Sumpter started the Civil War => Lincoln makes an act of war, blocks ports pursuant to his powers.

The Prize cases 1863
The president has taken warstate step but there was no war according to Congress.
The SC said there was a war, therefore the president's action was valid. Even more : he is bound to act. The president has no power to initiate the war but he has the power to conduct war.

If there is an agression against the USA, the president has a duty to react, it's self defense without having to wait for a congressional authorization. Congress was out of session but the possibility was mentioned in 1807 :the President is authorized to act. The shipowners said that the seizure was not constitutional.

The dissent argued that Lincoln's embargo predated. The Act was void, and so was the seizure. The confirmation Acts of Congress were not valid. The president has the duty to determine which degree of force is necessary. This is congressional acquiescence : Congress has abdicated its power to the president (even though things have changed now).
But the dissent was a correct answer, a legalistic definition of war, not a practical one. For the dissent, no war was possible until Congress declared war.

In case of a preemptive strike the USA attack first before being attacked by another Nation.

Can the president act unilateraly ?

It's okay if there is an imminent menace. That's what happened during the Cold War.

The president sent troops abroad without Congress' consent to protect American properties and nationals (see the Granada crisis in 1983). There was a military coup and disorder. 1000 U.S. students were threatened ; Congress was never asked for its opinion.

The president can send troops abroad without Congress' approval (theory of congressional acquiescence).

But in 1989, with the arrest of General Noriega in his country (president of Panama), the justification was to protect the American properties, but this was criticized. (le Panama était une plaque-tournante du trafic de drogue).

Can the president send troops abroad without Congress' approval if an ally of the USA has been attacked ?

It will depend on the situation. It will depend on the countries and on the time given to respond.
The greatest example is the invasion of Kuwait in August 1990. There was no approval by Congress of the international force. The biggest interest was oil. But there was no combat position until a Congressional authorization. Bush asked Congress to vote a resolution to approve his action in Kuwait. A consitutional scholar says that in a case where an ally is attacked and that the U.S. interests are threatened, the President has a limited power to send troops until Congres approves.

If there is a defense treaty, can the president send troops ? ex : in 1965 leftist rebellion in the Dominican Republic. The government asked the U.S. for help and the President sent troops. No, because the treaty was only ratified by the Senate. If Congress has passed a law authorizing the president's response, the Act will be valid. A constitutional scholar says that perhaps the President could unilaterally send troops for a limited period of time in this case until Congress approves.

When Congress authorizes presidential action without declaring war: ex :Vietnam conflict pursuant to the Gulf Of Tonkin resolution. More recent examples : Kosovo, where Clinton asked for a congressional authorization.

The incident of the Gulf of Tonkin in 1964 is interesting. After this, the president was authorized by Congress to respond to the agression againt US and south Vietnamese troops.
If we look at the continuum, we see that the President can do things. In 1973 War Power Resolution :In the early 70's, there was a will to restore balance between the executive and the legislative.

In 1973 President Nixon vetoed the War Powers Resolution but Congress has overriden this veto by a 2/3 vote.

The purpose is to ensure that the collective judgment of both Congress and the President will apply to the introduction of US troops into hostilities.

Section 3 is important (cf.).

Section 4 then provides some formal procedures that must be followed ; He must give reasons and explain.

Section 5 of the Resolution is the most important.

This Act requires the president to consult with Congress before sending troops into combat. In addition it requires that in the absence of a declaration of war, the president must report to Congress within 48 hours after troops are sent. If Congress does not approve the involvement within 60 days, troops must be withdrawn, except if Congress can't meet ;It extends the 60 day period (60+2 as a matter of fact). The President can have 30 more days if troops are in danger if they retire after 60 days (can't be refused).

Nixon vetoed the Act because he thought it was unconstitutional because it meant Congress was taking powers away from the president as commander in chief of the armed forces.

1983 : « the idea of a legislative veto is unconstitutional » (cf. section 5c.)
The War Power Act didn't restrain presidential power. On the contrary, it gave him more powers. He can do whatever he wants for 90 days. This act was an ineffective attempt to restore balance.

Appointments and Approvals

Article 2§2 of the Constitution clause 2 ; Appointment power of the President.
There is a difference between principal officers and inferior officers.
Inferior officers are not appointed by Congress but it can be delegated to the president, heads of departments or to the courts.
Concerning inferior members, Congress can take this power from the president to give it to the courts or to the heads of departments.
Principal officers, such as SC justices, ambassadors are appointed by the president with the approval of the Senate.
That's all the Constitution says.

Morrison v. Olson 1988
It was an investigation of a high-ranking official, Olson.The judicial branch appoints the independant counsels.
According to the plaintiff, the Act was not valid because the counsel was a principal officer to be appointed by the president.
The SC answered that it is an inferior officer, whose appointment power can be delegated to the court. There are only a very few principal officers in the American government. The case establishes that the independant counsel is inferior. The assumption is that principal officers are only those mentioned in article 2, §2, clause 2. Inferior officials can be a high-ranking official. What power does Congress have to appoint executive officers ? The SC answers « none » in Buckley v. Valeo 1974. It is a post-Watergate decision on the financing of electoral campaign. The members of the FEC were appointed by Congress =>The SC found that the Federal Electoral Commission exercized an executive function. The legislative power could therefore not appoint executive officials.

Who has the power to remove ? It is implied in the power of appointment

À What about the removal by the president ?

The Constitution is silent except for impeachment. The SC : removal power is corollary to the appointment power. 1867 : law over the president veto => The president could not fire his seecretaries without the consent of the Senate. A 1926 case was similar to this law : The SC had to decide on the issue in Myers v. USA 1926. Postmasters are appointed by the president with the consent of the Senate. Their removal had to follow the same procedure.
The SC said that it was unconstitutional because Congress could not limit the power of the president to remove executive officers he had appointed. Violation of the separation of powers.
The president has exclusive power to remove officers he has appointed, even if the appointment needed a confirmation from the Senate.
But the SC starts to narrow it.

Humphrey's Executor v. USA 1935
The case is different from Myers.
According to the Government, the President has the power to remove, therefore a law limiting this power is unconstitutional. The SC says that what is important is the nature of the officers : quasi-judicial (ability to examine if there has been a violation of the rules) or quasi-legislative officials (ability to take regulations).
Here it is an executive officer performing quasi-judicial and quasi-legislative functions : power to assure the respect of competitive laws and to judge their violations. The SC says about the President's power to remove them that he doesn't have it (the power) unilaterally ; Congress could limit the removal power of the president for these officers.
The next step :
Wiener v. USA 1958
The president fires a member of a commission.The law in question was silent on the removal of the war claim commission members. It was a quasi-judicial function that was exercized, because the commission hears claims.
The president could not fire members of the commission without the consent of Congress.

For executive officers with only executive functions, the president had an unilateral power of removal until Morrison v. Olson. (2nd part of the case)
The president cannot fire the independent counsel (executive officer). The Attorney general has this power for good cause only.
This restriction is valid because it does not prevent him from exercizing his constitutional duties. Congress can't interfere with the core functions of the executive but the SC doesn't define which functions these are.
The problem is : What are really the president's powers ?
The issue has not come up yet.
The dissent said the power of removal shall be vested in the president only.

We must examine the function.

We must examine if Congress has limited the power of the President, it is a violation of the separation of powers.

To which officers does the rule apply ?

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inferior officers : Congress can restrict the power of the President to remove them.

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Principal officers : it is not possible but there is no precedent. It may be that the president from the appointment clause has a unilateral removal power. This may be what we call a « core-function ».

Á    Power of removal by Congress

It is usually a violation of the principle of separation of powers.

Bowsher v. Synar    1986
Congress is unable to reduce budget => task is given to comptroller general to take important decisions. The scheme is said to be unconstitutional because of the Comptroller general.
It was a congressional removal of the comptroller general making him a legislative officer, but is functions are executive.
There is a violation of the separation of powers principle because he is a legislative officer, Congress can give him other functions as executive ones and cannot be removed by Congress. Congress can't give him an executive function because he's a legislative agent >< separation of powers.
According to the dissent he was not a legislative officer.
Congress can neither appoint nor remove executive officers but can impose restrictions on the president power to apppoint if they are inferior officers (which compose the overwhelming majority of the officers) if they exercise purely executive functions if it does not interfere with presidential duties under the Constitution.
Important point : the footnote :it's a summary of the concurring opinion of Judge Stevens « He is not an executive agent but it's still unconstitutional because Congress has delegated too much of its lawmaking power to the guy.
Dissent : (J. White) The removal by Congress of the Comptroller General is of such minimum practical significance that it presents no threat to the scheme of separation of powers. The scheme of the Constitution was to separate powers. Here nothing encroaches upon the President's power.

Conclusion : The President's power can be limited by the Constitution depending on how the job of officer can be qualified. If it's quasi-judicial or quasi-legislative, the President can't remove except if Congress approves. On the other side, if the job of the person appointed by Congress is an executive one, Congress can remove him/her as long as it doesn't encroach upon the core-function. Presumably, principal officers can't be touched.
Exception : Congress can remove an executive via impeachment.

Â   Impeachment :

The vice president can be removed from office for treason or other particularly important reasons, see Article 2§4 : vice-president, federal judges,…
It is the first step on the procedure of removal : there will be a trial conducted by the Senate. There must be a 2/3 majority for the impeachment.
It happened twice :

Andrew JOHNSON (he fired the secretary of war) but he was not convicted by one vote.

Richard NIXON. The commitee was to investigate Nixon's actions. It had voted articles of impeachment to be approved by the House Of Representatives, but Nixon resigned before.

Approximately 12 federal judges have dealt with this procedure.
Ü What are the other hard crimes and misdemeanors ?
Abuse of power, neglect of duty, breach of trust…There are no precedents and there never will be because of the doctrine of « political questioning ».
Nixon's articles of impeachment stood for :
    - Obsrtuction of justice
    - Order the IRS( le fisc! ) and the FBI to harass his political enemies, which is an abuse of power
    - refused to comply with subpoenas by the courts.

The impeachment is the removal from office but it does not prevent from criminal prosecutions. The president cannot pardon an impeachment as he can pardon other accused.
Nixon's resignation and pardon does not mean that the impeachment procedure was over. It could have go on.

Legislative encroachment on Executive Power : Legislative veto

Article 1§7 : both the legislative and the executive are involved in the law making process.
The president will sign or veto the bills, in which case he will return the bill to the House Of Representatives with his explanations on his veto.
To override a veto, each house must repass the bill by a two-thirds majority; otherwise the bill is killed for that session of Congress. If the President doesn't do anything, the law will be passed within 10 days.
If Congress has adjourned within the 10-day period (not counting Sundays) allotted for presidential consideration of a bill, the president can exercise what is known as a pocket veto : that is, the chief executive kills the bill by refusing to sign it (by « pocketing it »). If the president does nothing within 10 days AND Congress is in session, the bill will become a law even without his signature.
Each Congress last two years, each one composed of two sessions. Congress adjourns every year for christmas, Easter, holidays,etc.
Congress can be adjourned for shorter reasons like holidays, the SC said in 1938 that the pocket veto was only possible for an adjournement superior to 10 days. An adjournement of less than three days does not give the president the right of pocket veto.

Since the New Deal , the power of federal government has increased as the size of the delegation to administrative agencies have. Congress has therefore delegated some of its powers to the executive and its agencies who will issue regulations.
Principle : Congress may not delegate its powers (violation of the separation of powers). The SC says : Congress may need to delegate if it is specific in what it is delegating and if it provides specific guidelines (« intelligible principles »).
Ü How can the legislative branch give these powers to the executive branch ?

The SC will not permit legislative delegation of power if some conditions are not met.
The general principle is that Congress may not delegate its power to the executive branch.

Executive power tends to expand with the expansion of administrators and complex regulations. This shifts the distribution of shared power. One major tool devised by Congress early in the twentieth century to retain some control under these circumstances is the legislative veto : a technique by which Congress delegates authority to agencies and the agencies have to ask Congress to approve the administrative regulation.
1970 : This mechanism was criticized after the automobile lobby prevented regulation concerning safety standards.
1982 : Federal Trade Agency imposed that used cars sold by entities had to carry a warranty => Used cars lobby made the Congress abandon the legislation (it was a way of turning down progressive measures).
It can take various forms : it can be a regulation submitted to Congressional approval or it can be an approval of regulation before it is adopted by the agency. It can be exercised by one or both houses.
Through the legislative veto, Congressional subcommittees could and often did dictate to executive branch agencies exactly how they wanted particular rules to be applied.
Prior to 1952 any exception to the INS laws were handled by a private bill. Now, every year, there are a lot of private bills => Need to delegate authority to the executive branch.

INS v. Chadha   1983
The SC declared that the legislative veto was unconstitutional because it violated the separation of powers. In the court's view, the veto circumvented the full legislative machinery, requiring bicameral legislative consideration ans subsequent presidential review. Without these procedural safeguards, the SC thought Congress might act too quickly, and unwisely. An Attorney General has legislative power because he can change laws applicable to a person outside the legislative branch (that's the case in Chada). Deficiencies of this law : one House has the power to pass a legislative act and no the whole of Congress. This goes against the principle of bicameralism put in the Constitution. The other problem is that, in that perspective, the President can't say anything ; However this goes against the presentment clause. Justice Burger says Congress has limited possibilities to attribute powers. Congress can't control the delegation of     authority by a legislative veto. A solution is to go by a private bill and to pass another law to take away the power from the Attorney General. Powell says that Congress is performing a judicial function (the problem resides in a clash of the legislative v. the judic. and it's not a clash between the legislative v. the executive). Justice White says it is constitutional because Congress isn't agrandizing its power ; A law has been voted for this, therefore there is no « separation-of-power problem ». J. Burger says the legislative veto doesn't encroach on the executive. The reasoning of the majority is more mechanical, whereas the minority looks more at the general view : « Is the balance kept ? »
In other words :
The dissent said that the legislative veto was a very useful devise. The SC has permitted Congress' delegation of power to the executive, therefore it is logical for Congress to control its exercize. The bicameralism and the presentment clause do not apply here because both houses of Congress have taken action.

Legislative interference with the judicial branch

Congress may create inferior courts. The Constitution protects federal judges, but there are exceptions for legislative courts (like military courts). Congress authorized the creation of administrative courts that aren't so well protected. Congress can control military courts.
Congress may not assign judicial powers to these courts, they deal with private rights. The SC held that it is not an undue interference with judicial public rights. When the courts have made a judgement, can Congress pass a law ordering to reexamine the case ? This situation happened in 1991 : certain violation of securities law had a very limited statute of reservation. For instance, the action for breach of contract is limited within 4 years. But for securities law, it was only of a year. Congress extended this delay and ordered to reopen the cases that had been dismissed.
SC : Although Congress can vote a statute of limitation, there is an undue interference as it orders the courts to reopen the dismissed cases. Final issues with regards to clashes : the delegation of legislative power to the judicial branch.

Can Congress delegate legislative powers to the judicial branch ?

Mistretta v. US 1989
Mistretta was convicted of selling drugs. Congress passed a law. His standing to sue is that the commission had the power to determine the sentencing guidelines (the goal was to make the sentencing more uniform throughout the US).
Was there an unconstitutional interference with the President's power to remove ? No because these people were not exercizing an executive function (cf. Humphrey's executor). We know that Congress has the power to limit the President's power to remove quasi-legislative or quasi-judicial officials. Here the President is authorized to do so.

1st argument in Mistretta is that Congress' power to delegate its legislative authority can't be except if there are specific guidelines. Congress has attributed legislative functions to members of the judicial branch. Blackmun says : Okay, because « this task is not incongruous with the judicial function ». Moreover, this doesn't go against the equilibrium elaborated by the Founding Fathers. This is a general approach (« gestalt approach ») :It's okay ; Nothing is wrong within the general aspect of the equilibrium. This vision goes against Scalia's : The commission is performing a legislative act ; Therefore it should have been done by Congress (mechanical approach) and Congress can't delegate this to somebody else =>Violation of the separation of powers.
Congress can delegate legislative powers to the judicial branch in some cases if it gives the guidelines for the exercise of the delegated authority.
Here it is delegated to an independant commission (judicial branch). It is valid (although the dissent says it is legislative action) because it is a function linked to judicial functions.
Legislative veto is unconstitutional.

Fin du cours 1999-2000.

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