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Файл:-sfpif-members-outlines-Con_Law_Koppelman_huge.doc
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- •Constitutional Law – Spring 1999
- •Federalism - Vertical distribution of government power a government of enumerated powers - Why does federalism matter?
- •Implied powers - McCulloch V. Maryland – Bank of the u.S.
- •“Substantially affecting” commerce
- •Pre New Deal Gibbons V. Ogden – New York steamboat monopoly
- •United States V. E.C. Knight - Manufacture vs. Commerce – Sugar monopoly
- •Substantial economic effects and stream of commerce
- •The Shreveport Rate Cases – Substantial economic effects – Railroad rates
- •Police power
- •Champion V. Ames - The Lottery Case
- •Hammer V. Dagenhart - Child labor
- •Stafford V. Wallace - Stream of commerce
- •Summary of pre-New Deal law on commerce clause
- •The New Deal Crisis and the Rise of the Welfare State
- •Schechter Poultry Corp. V. United States
- •Carter V. Carter Coal Co.
- •Modern Trend
- •Nlrb V. Jones & Laughlin Steel Corp. - Expanded “substantial economic effect”
- •Wickard V. Filburn - The “cumulative effect” theory
- •United States V. Darby - police power regulations - Minimum wage
- •Civil rights cases and the commerce clause Heart of Atlanta Motel V. United States – Local incident of interstate commerce
- •Katzenbach V. McClung – Ollie’s bbq
- •Effect of Lopez
- •Judicial abdication during New Deal
- •United States V. Lopez – Latest word – Guns and schools do mix
- •Reconciling Lopez with New Deal
- •Current status of commerce clause
- •Does Lopez provide workable rule of law?
- •Spending power United States V. Butler - Beyond enumerated powers
- •Steward Machine Co. V. Davis
- •South Dakota V. Dole - National drinking age
- •Pennhurst State School & Hospital V. Halderman
- •Dormant commerce clause (dcc) – Protection against facial discrimination
- •Gibbons V. Ogden – New York steamboat monopoly
- •Willson V. Black Bird Creek Marsh Co.
- •Cooley V. Board of Port Wardens (1851) – “Cooley test” – That which is by nature national
- •Modern dcc doctrine
- •City of Philadelphia V. New Jersey – dcc – No solid waste
- •West Lynn Creamery, Inc. V. Healy – Milk tax subsidizes in-state farmers
- •Bobbitt’s modalities and the dcc?
- •Garcia V. San Antonio mta - Overruled National League of Cities – Minimum wage
- •Use of state’s lawmaking mechanisms
- •New York V. United States - Waste disposal
- •Printz V. United States – Brady Bill – Don’t No commandeer state executive
- •Possible McCulloch theory underlying New York and Printz
- •U.S. Term Limits V. Thornton
- •Other Federalism premises The treaty and war powers Missouri V. Holland – Migratory birds
- •Woods V. Cloyd w. Miller Co.
- •The taxing power Bailey V. Drexel Furniture Co.
- •The guarantee clause and the reconstruction amendments
- •Texas V. White
- •Validity of 13th and 14th Amendments
- •The power to enforce the reconstruction amendments
- •Katzenbach V. Morgan – Spanish speaking voters
- •City of Boerne V. Flores – rfra Unconstitutional
- •Limitations on state regulation
- •Typology of Powers
- •Preemption
- •The Privileges and Immunities Clause of Article IV
- •United Building Council V. Camden - No market participant exception for pic
- •Metropolitan Life Insurance Co. V. Ward
- •Facially neutral statutes with significant effects on interstate commerce
- •Exxon Corp. V. Governor of Maryland
- •Hunt V. Washington State Apple Advertising Comm’n
- •Separation of powers - Horizontal distribution of national power Distribution of national power - Why does separation of powers matter?
- •Formalism vs. Functionalism
- •Judicial review Marbury V. Madison – Supreme Court review of congressional statutes
- •Theoretical foundation of judicial review
- •Martin V. Hunter’s Lessee – Supreme Court review of state court decisions
- •Judicial exclusivity Cooper V. Aaron - Federal judiciary is supreme – sCt binds states
- •Does judicial review imply judicial supremacy?
- •Departmentalism
- •Jurisdiction and standing
- •Ex Parte McCardle - Congressional control of appellate jurisdiction
- •United States V. Klein
- •Good confusion
- •Case or Controversy Requirement
- •Standing
- •Allen V. Wright - irs tax-exempt status for segregated private school
- •Lujan V. Defenders of the Wildlife – Endangered Species Act
- •Raines V. Byrd - Line item veto
- •Perspective on cases
- •Political question doctrine
- •Baker V. Carr - Apportionment of the Tennessee Assembly
- •Luther V. Borden - Guaranty clause non-justiciable
- •Why is there a political question doctrine?
- •Davis V. Bandemer - Unconstitutional gerrymandering justiciable
- •Nixon V. United States - Impeachment non-justiciable
- •Coleman V. Miller - Congress gets to say whether usc has been amended
- •Dames & Moore V. Regan - Iran hostage settlement
- •Executive privilege United States V. Nixon – Watergate tapes
- •Reviewability of executive privilege decisions
- •Scope of executive privilege
- •Presidential immunity
- •Mississippi V. Johnson
- •Nixon V. Fitzgerald
- •Harlow V. Fitzgerald
- •Clinton V. Jones
- •Law versus politics
- •Nixon V. Administrator of General Services
- •Law as politics
- •Impeachment
- •Law and politics
- •Bicameralism and presentment
- •Ins V. Chadha - One house veto provision stricken
- •General critique by Koppelman
- •Single-house actions approved by usc
- •Chadha in context - Legislative control of the bureaucracy
- •Future directions
- •Administrative agencies and the separation of powers
- •Meyers V. United States
- •The rise of independent agencies
- •Humphrey’s Executor V. United States - ftc member removal
- •Wiener V. United States - War Claims Commission removal
- •Buckley V. Valeo - Appointments Clause and fec – Officer of the u.S.
- •Various assessments of Myers, Humphrey’s Executor, and Buckley.
- •Bowsher V. Synar - Good-bye Gramm-Rudman
- •Commitment and the budget
- •Appointments power - Congressional control over administrative officials Chadha and Bowsher
- •Morrison and Bowsher
- •Koppelman on Morrison and Mistretta
- •Freytag V. Commissioner of Internal Revenue
- •Weiss V. United States
- •Edmond V. United States
- •Justice Scalia’s Bowsher and Mistretta dissents
- •Congressional control of administrative agencies after Chadha and Bowsher
- •Metropolitan Washington Airports Authority
- •Non delegation doctrine and “quasi-constitutional” statutes
- •Introduction
- •Panama Refining Co. V. Ryan
- •Schechter Poultry Corp. V. United States
- •Demise of non-delegation doctrine
- •Amalgamated Meat Cutters V. Connally
- •Touby V. United States
- •Loving V. United States
- •Arguments in favor of reviving non-delegation doctrine d. Schoenbrod
- •Industrial Union V. American Petroleum Institute – Rehnquist dissent
- •Ely (Democracy and Distrust)
- •Stewart – against non delegation doctrine
- •Lowi’s assessment of the “new” Constitution
- •Structural statutes
- •Executive authority – foreign Control of foreign affairs
- •United States V. Curtiss-Wright Corp. – Foreign arms sales embargo
- •Text, history, and presidential power
- •Functionalism and the autonomy of constitutional interpretation
- •Allocation of war making authority
- •Approaches toward reconciling these provisions
- •Prize Cases - President’s power to use armed forces
- •Orlando V. Laird – Vietnam non-justiciable
- •Dellums V. Bush – The Persian Gulf War
- •Un “peacekeeping” or “peace enforcement”
- •Legislative authority - foreign The War Powers Resolution
- •War Powers Resolution is unconstitutional
- •The War Powers Resolution is constitutional
- •Practice under the Resolution
- •The Constitution without courts – War Powers and Boland
- •Other separation of powers premises Treaties
- •Executive Agreements
- •Dames & Moore V. Regan - Constitutional limits on scope of executive agreements
- •United States V. Belmont
- •Congressional-executive agreements
- •Impoundment
- •Line item vetoes
- •Unfunded mandates
- •New York V. United States – No unfunded mandates – 10th Amendment
- •Unfunded Mandate Reform Act of 1995.
- •Contract with America
- •Constitutional amendment to balance the budget
- •Morrison V. Olson – Special prosecutor laws
- •Mistretta V. United States – u.S. Sentencing Commission
- •Final thoughts on separation of powers
- •Individual rights Overview
- •Equal protection Utility of equal protection analysis
- •Race and the Constitution
- •Slavery and the Constitution
- •State V. Post
- •Dred Scott V. Sanford
- •Reconstruction and retreat Strauder V. West Virginia – Invalidated law barring blacks from juries
- •Plessy V. Ferguson – Separate but equal – Railroad cars
- •Equal protection methodology - strict scrutiny Korematsu V. United States (Black 1944) – Japanese wwii interment
- •Overview of equal protection doctrine
- •The attack on Jim Crow Brown V. Board of Education of Topeka (Brown I) – School desegregation
- •Bolling V. Sharpe - 14th Amendment equal protection federal via 5th Amendment
- •Brown II
- •Facially neutral laws that disadvantage minorities Washington V. Davis
- •Privileges or immunities – 14th Amendment
- •The Slaughter-House Cases – New Orleans slaughtering monopoly
- •Slaugheter-House remains good law
- •Incorporation
- •Barron V. Mayor & City Council of Baltimore
- •Murray V. Hoboken Land & Improvement Co.
- •Twining V. New Jersey
- •Palko V. Connecticut – Double jeopardy
- •Adamson V. California – Black dissent - Total incorporation
- •Duncan V. Louisiana
- •Contracts clause - Protecting economic liberties - Textual Fletcher V. Peck – Corrupt land sale contract not voidable by State
- •Ogden V. Saunders – State bankruptcy law valid prospectively
- •Calder V. Bull – Ex post facto - Historical Modality – Criminal only
- •Home Building and Loan Assn. V. Blaisdell
- •Modern contracts clause law and ak analysis
- •Substantive due process - Protecting economic interests - “Redistribution”
- •Lochner V. New York – Time to make the donuts – No maximum hours for bakers
- •Ak’s lecture on Lochner
- •Civil War makes Lochner look less crazy
- •Structural and ethical basis for Lochner holding
- •Dissent - Harlan
- •Dissent - Holmes
- •Forming an opinion of Lochner
- •Lochner Era - most significant judicial interventions in American history
- •Munn V. Illinois - Escape hatch from Lochner – “Public interest”
- •Muller V. Oregon – Another escape hatch – Women “special class”
- •Bailey V. Alabama – Personal service contracts enforced by jail time no more
- •Nebbia V. New York
- •West Coast Hotel Co. V. Parrish – The death of Lochner – Female minimum wage
- •United States V. Carolene Products Co. – Filled milk
- •Williamson V. Lee Optical - Full employment for ophthalmologists
- •Ferguson V. Skrupa
- •Summary of substantive due process - Economic rights
- •Privacy, personhood, and family - Modern Substantive due process West Virginia State Board of Education V. Barnette - Overview
- •The right of privacy
- •Individual rights after the New Deal
- •Meyer V. Nebraska – Okay to teach foreign language to school children
- •Pierce V. Society of Sisters
- •Griswold V. Connecticut - Condommania
- •Eisenstadt V. Baird
- •Abortion
- •Roe V. Wade
- •Roe and Griswold
- •Planned Parenthood V. Casey – Abortion waiting period and other restrictions
- •Ak’s approach to abortion question
- •Bowers V. Hardwick - Sodomy
- •Washington V. Glucksberg - Physician-assisted suicide
- •Sex and sexual orientation Reed V. Reed
- •Frontiero V. Richardson – Classification based on sex inherently suspect
- •Craig V. Boren – Beer sales to 18 – 20 year-old women only, not men
- •United States V. Virginia – vmi gender integration
- •Other Candidates for heightened scrutiny Romer V. Evans – Special rights for gays
- •Brown V. Board of Education (1954): 14th Amendment, Equal Protection
- •Bolling V. Sharpe (1954): 5th Amendment, Equal Protection, Due Process
- •Marbury V. Madison (1803): Judicial Review, Interpret Constitution
- •Cooper V. Aaron (1958): Judicial Review, Interpret Constitution
- •Swann V. Charlotte-Mecklenburg Bd. Ed. (1971): 14th Amendment, Segregation
- •Freeman V. Pitts (1992): 14th Amendment, School Desegregation
- •Martin V. Hunter’s Lessee (1816): Supremacy Clause, Judicial Review
- •McCulloch V. Maryland (1819): Implied Power, 10th Amendment
- •Us Term Limits V. Thornton (1995): 10th Amendment, Term Limits
- •Gibbons V. Ogden (1824): Commerce Clause, Federal V. States
- •Us V. E.C. Knight (1895): Commerce, Anti-Trust
- •Champion V. Ames [lottery case] (1903): Commerce
- •Swift & Co. V. Us (1905): Commerce, “Current of Commerce”
- •The Shreveport Rate Case (1914): Commerce, “close and substantial relation”
- •Hammer V. Dagenhart (1918): Commerce, 10th Amendment
- •Nlrb V. Jones & Laughlin (1937) Commerce Clause, New Deal legislation
- •Us V. Darby (1941): Commerce Clause, Child Labor, Manufacturing
- •Heart of Atlanta Motel (1964): Commerce Clause, Civil Rights Act 1964
- •Katzenbach V. McClung (1964): Commerce Clause, Civil Rights Act 1964
- •Us V. Lopez (1995): Commerce Clause, Guns in school zone
- •South Dakota V. Dole (1987): Commerce Clause, 21st Amendment
- •Missouri V. Holland (1920): 10th Amendment
- •Katzenbach V. Morgan (s.Car.) (1966): 14th a., Due Process, Literacy to Vote
- •Boerne City V. Flores (1997): 1st a. Free exercise V. 14th a. Legislative authority
- •Jones V. Mayer Co. (1968): 13th Amendment, Equal Housing
- •Garcia V. San Antonio Metro Transit Auth. (1985) 10th a., Federalism
- •New York V. United States (1992): 10th Amendment, Supremacy Clause
- •Printz V. United States (1997): 10th a., Commerce Clause, Original Intent
- •Cooley V. Board of Wardens (1852): Federalism, Concurrent Powers
- •City of Philadelphia V. New Jersey (1978): Dormant Commerce Clause
- •Kassel V. Consolidated Freightways Corp. (1981): Safety V. Commerce
- •West Lynn Creamery, Inc. V. Healy (1994): Interstate Commerce
- •Corfield V. Coryell (1823): Privilege and Immunity Clause
- •United Bldg. V. Camden (1984) Privilege & Immunity V. Commerce Clause
- •Youngstown Co. V. Sawyer (1952): Separation of Powers, Emergency power
- •Us V. Curtiss-Wright Corp. (1936) Separation of Power, External V. Internal
- •Dames & Moore V. Regan (1981): Implicit powers
- •Korematsu V. United States (1944): Emergency Executive Order
- •United States V. Nixon (1974): Executive Privilege
- •Clinton V. Jones (1997): Separation of Powers, Presidential Immunity
- •Mistretta V. United States (1989) “Non delegation” of Congressional Power
- •Ins V. Chadha (1983): Legislative Veto
- •Clinton V. City of New York (1998): Separation of Powers, Line Item Veto
- •Bowsher V. Synar: (1986): Separation of Powers
- •Morrison V. Olson (1988): Separation of Powers, Independent Counsel
- •Northern Pipeline Co. V. Marathon (1982): Separation of powers, delegation
- •Commodity Futures t.C. V. Schor (1986): Separation of Power, delegation
- •Ex Parte McCardle (1869) Separation of Powers, Exceptions clause
- •Baker V. Carr (1962): Limits on Judicial Power, Political Questions
- •Nixon V. United States (1993): Limits, Political Question
- •Raines V. Byrd (1997): Limits, Standing
- •Allen V. Wright (1984): Limits, Standing
- •Lujan V. Defenders of Wildlife (1975): Limits, Standing
- •Missouri V. Jenkins (II) (1990): Limit, Scope of remedy
- •Missouri V Jenkins (III) (1995): Limits Jurisdiction
- •Fletcher V. Peck (1810): Economic Liberties, Property Rights
- •Ogden V. Saunders (1827): Economic Liberties, Contracts Clause
- •Calder V. Bull: (1798): Economic Liberties, Ex post facto
- •The Slaughter House Cases (1873): Economic Liberties, 13th, 14th a, Monopolies
- •Palko V. Connecticut (1937): Double Jeopardy, Due Process (14th a.)
- •Adamson V. California (1947): 5th a. Not part of Due Process (14th a.)
- •Skinner V. Oklahoma (1942): Due Process, Sterilization
- •Lochner V. New York (1905): Substantive Due Process, Freedom to Contract
- •Bailey V. Alabama (1910): 13th a., Race Discrimination
- •West Coast Hotel V. Parrish (1937): 5th, 14th a., Freedom to Contract
- •Williamson V. Lee Optical (1955): 14th a., Due Process, Judicial Power
- •Meyer V. Nebraska (1923): 14th a., Due Process, Privacy
- •Poe V. Ullman (1961): 14th a., Due Process, Individual Rights, “Ripeness”
- •Griswold V. Connecticut (1965): 14th, 1st, 3rd, 4th, 5th, 9th a., Privacy
- •Roe V. Wade (1973): Privacy, Abortion (9th, 14th a.)
- •Planned Parenthood V. Casey (1992): Privacy, Abortion
- •Bowers V. Hardwick (1986): Fundamental Rights, Sodomy, 8th a.
- •Washington V. Glucksberg (1997): Privacy, Right to Die, 14th a.
- •Railway Express Agency V. New York (1949): 14th a., Rational Basis review
- •Fcc V. Beach Communications (1993): 5th, 14th a, Rational Basis Review
- •Bradwell V. Illinois (1873): 14th a., Gender Discrimination
- •Frontiero V. Richardson (1973): 5th a., Gender Discrimination
- •Craig V. Boren (1976): 14th a., Gender Discrimination
- •U.S. V. Virginia (1996): 14th a., Gender Discrimination
- •Watkins V. U.S. Army (1989): 14th a, Gay Discrimination, Status V. Conduct
- •Romer V. Evans (1996): 14th a., Gay Discrimination, political participation
- •Baehr V. Lewin (1993): Gay Marriage, Equal Rights
Impoundment
During 1970s, Nixon claimed the authority under article II powers to impound funds previously authorized by Congress.
Congress responded by passing Congressional Budget and Impoundment Control Act of 1974 governing two kinds of impoundment.
Deferrals of budget authority were permissible only to provide for contingencies, achieve savings made possible by changes in requirements or greater efficiency in operations, or as specifically provided by law.
Rescission of budget authority (decision that all or part of any budget authority will not be required to carry out full objectives/scope of programs) – proposal to rescind will not take effect unless within 45 days after notification, Congress has enacted a rescission bill rescinding all or part of the amount proposed to be rescinded.
Impoundment Control Act of 1974 has little legal effect.
Regarding rescissions, Congress did not need prior legislation to allow it to pass bill mandating expenditure of funds.
Regarding deferral, either Nixon was constitutionally right or wrong to assert deferral authority. If Nixon was right, it was unconstitutional for Congress to invade president’s authority with legislation. If Nixon was wrong, legislation was unnecessary.
If Act has little legal effect, why has it been successful in resolving the problem?
Line item vetoes
For many years, Presidents have sought from Congress the authority to veto specific spending provisions (a specific “line item”) included within comprehensive legislative appropriations.
Argument that line-item legislation would not have legal consequences.
If Congress wanted to subject individual appropriations to a veto, it could do so by passing each appropriations measure as a separate bill.
If Congress wanted to shield individual appropriations from a line-item veto, it could do so by pro tanto repealing the president’s rescission authority as part of the very bill the president wishes to veto.
If line item veto did have legal consequences, is it constitutional for Congress to rewrite the veto procedure outlined in Article I? Would the rescission authority granted to president be sufficiently constrained to avoid a non delegation doctrine attack?
Unfunded mandates
Federal legislation imposing costly requirements on the states without providing funds to pay for them.
New York V. United States – No unfunded mandates – 10th Amendment
1992. SCt held that when unfunded mandates were directed solely to the states and were not part of generally applicable laws, they might under some circumstances violate 10th Amendment.
Unfunded Mandate Reform Act of 1995.
Purports to further limit power of federal government to impose unfunded mandates. Bills imposing more than $50M/year mandate on state governments are subject to a point of order.
Does this Act have any legal effect, in light of the fact that either House could overrule a point of order?
Is the role assigned to the Director of the Congressional Budget Office constitutional after Bowsher?
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