con law: feb 8 2010

recap.
taxation - spending lever on supply production of AAA
the roberts opinion starts with a broad view of "general welfare power": the correct position is the hamilton view

general welfare is not just descriptive, it's an end given by nat'l gov't but stops at the states under federalism: can these things co-exist?

butler illustrates that the statute is designed to have buying power to coerce and compel behavior beyond any other power given to the fed gov't. this extends the spending power of

south dakota v. dole
under 23 U.S.C. s. 158, the sec. o ftrans. can withhold 5% of federal highway funds under the commerce clause.
road construction is a big thing. and so is lower drinking age.
south dakota's argument: there must be a relationship between the act (taking road construction monies) and the measure (19 - 21 year olds who
the relatedness test: o'connor says this is the doctrine - so long as there's a connection between what the federal gov't may do and the exercised power, its OK.
the point of federal highway expenditures is to create safe roads: buying concrete, rebar, guard rails, etc.
does the physical have to do with the operators on the road? no -- the spending doesn't effect the human element
o'connor says that this statute would not have a target class: it's over reaching (good kids 19-21 are hampered) and under inclusive (drunks over and under 21 are left out of the class)
does connor explain if there's a way to read this? "the error in butler was not the court's conclusion that the act was regulatory but it's crabbed view of Congress's regulatory power under the Commerce Clause."
AND gov't can't do this because of the 21st amd't...

21st amd't is really what this case is about.
consumption of alcohol is to be monitored at the state level. is o'connor right about this interpretation?
what's the difference between butler and dole?

treaty implementation.
how does a treaty come to be under art.II?
ratification by the senate
legislative power to implement treaties - does Congress have the power to implement via the ratification?
according to missouri v. holland, the trajectory follows that if it's

missouri v. holland
constitutional argument that this oversteps the 10th amd't bounds. but holmes recognizes that the way the nation has developed, the federal government and state governments have evolved such that
scholarly article on missouri v. holland's second holding

congress' power to make and regulate war
war powers. jackson says that "they are the most dangerous to free gov't. vacations of war power should be scrutinized with special care.... tying the war power to war effects is not sufficient (i.e., the world's never gonna be the same after the war) note that roberts was a justice at nurenburg and has changed his views from aggregation because of studies in nazi war power.

woods v. cloyd w. miller 
fall of 1946 it was a good time to be a landlord until the legislation is passed for rent control.

"war does not end with cessation of hostility"
necessary and proper clause
recital requirement: must congress state what it is doing? no, because the court said so...
that sounds pretty dangerous as far as a lack of a limit
but the court says that its clear that the congress is responding to post-war dangers

in a modern war complex, where our wars involve general global authorizations of force and related war powers, where do powers bloom and where do they end?

civil rights. 14th amd't.
ending of the civil war did many things: emancipation, insulation of armed forces, etc.
black codes become invested in southern states.
the federal response are federal civil rights laws.
embedded in art. I
1866 civil rights act, and 1870 civil rights act and 1875 civil rights act: the federal gov't is trying to drive the south to the equality agreements agreed to after the war.

what's at challenge to the 1875 statute?

what's rejected is the plenary power -- this statute is discreet and limited to state actions.