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.

con law: feb 3 2010

where we're at currently...

on one side, legis power (art I) and on the other, judicial power (art III)

doctrines on boundaries and outer limits power can be seen in a chronological sequence, to squeeze down ballooning national power.

1. definition of commerce power limited to interstate marketplaces, but eclipsed by darby and wilburn

2. nat'l league of cities doctrine is abandoned in favor of garcia ruling

3. but with lopez, the US goes back to enforcing the boundaries of nat'l power and raich makes a sort of "stopping point"

4. "commandeering" (see below)

3 and 4 have helpful limiting doctrines in garcia and raich (i.e. renquist on the 10th amd't limiting doctrines "will be back", thomas feels we will return to the "early 20th cent readings")

... anyways, these are a lot of federalism ideas. a helpful consolidation can be found here.

since my head is exploding, i'm gonna take a break and read a saki story ^___^

ny v. us (1992) i.e., the "take title" threat that the low level radioactive waste act exceeds congress' authority...

side note: interesting discussion on the opinion...

the problems with the 1980 and 1985 statute

nat'l legis consenting to state legis in the realm of interstate commerce (keeping in mind that the boundary is plenary, and here the compact statute exercises that)

opinion basically says that 10th amd't limits congress but gives interpretive authority to US...

why's this a problem?

how do we figure out next time what side of the test the court will be on?

printz v. us

and the brady act

why is this a problem? no evidence of an assumption that the fed gov't may command the states' executive power in the absence of a particularized const. authorization.... in fact, the early congresses had the opposite assumption...

this is not a law of general application, but instead is being applied to targeted individuals

what's the area outside the 1oth amd't boundary? general police power

the executive enforcement function at the state level is the police, and this power is being commandeered by the fed gov't -- that's the violation to the state sovereignty

dissent: according to the framers, state powers are empowered to enhance the capacity of the fed gov't "by extending the authority of the federal head to the indiv citizens of the several states, will enable the gov't to... execute its laws"

stevens compares the brady act to the crime control center missing children reports: data at the local level which is necessary and important at the federal level should be reported... though ginsberg thinks that may be a different type of problem than commandeering

taxation and spending

taxation. under art I s.8: "congress may tax things that it may not have the power to regulate"

child labor tax - an intent based, indirect tax revenue stream, to deter certain employment practices

bailey v. drexel furniture co. US says it's not cool to tax child labor...

mccray v. us US says the motive didn't render it invalid, because it's alright to tax look-like margarine butter...

wtf??

taft says it's consistent, barrett says it's not.

tax penalty provisions extraneous to any tax needs are not taxes.

revenue is negligible but it's regulatory purposes... does this work?

health care statute. there's a mandatory purchase requirement, which would be managed under tax structure...

was bailey overruled or does some of it remain? maybe things that are tooooo regulatory are beyond the congress' power, but there hasn't been anything since that presses the boundary

spending. congress may "pay and provide" but there's no actual call out for spending.

us v. butler

why is the court focused on the spending power? because the US is under the lochner era and there's no filburn doctrine available

agricultural adjustment act pays farmers to not grow. the money comes from taxing food processors

why doesn't the gov't defend this as use of taxation power? because it would be a regulatory tax, and this is coming on the heels of bailey. need a new doctrinal argument

"debts and general welfare": what does this mean as far as congress' power? it's an end to the taxing power but not a separate power to itself. and its not strictly limited to the enumerated powers as an end -- hamilton's view of the meaning of the constitution. is the better reading: "while the power to tax is not unlimited, it confines are set in the clause which confer it, and not in those of section 8 which bestow and define the legislative powers of the congress. it results that the power of congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the constitution."

basically, everybody's got a price and this is a structure set up to influence you with a price to coerce you to behave a certain way... but does the opinion really turn on this coercive nature of legis power?

con law: jan 27 2010

declaratory judgments.

when we want the court to give some decree, actions that authorize court to dispositively resolve controversies before it goes further

challenged by nashville v. wallace

more justiciability.

ripeness.

prudential doctrine. the issue hasn't become timely because the events are being anticipated, and may not occur.

mootness.

another prudential/ fact based doctrine. there's nothing more to litigate because the issue is no longer a legal issue.

exceptions to mootness can be shaped by the plaintiff's pleading.

go here for interesting essay on mootness by matthew hall.

back to 10th amendment: why states?

n.b. -- consider the tenth amendment movement and the oklahoma senate plan to not follow no child left behind act...

necessary and proper: a gloss that gives other federal ends clout
if the court is pursuing anything in the constitution, then it just needs to be rational and 
for the exam: talk first about the rule and threshold question of what rule is being used, and then the most updated application from sabri v. US: "

mccullough v. maryland marshall did not see the constitution as a contract between sovereign states

aggressive federalism: mccullough v. maryland

the threshold question: by what power can the nat'l gov't create a bank? what power is being used?

"necessary and proper" art I, s. 8, c. 18 powers, but the power to create a bank is not freestanding.

congress doesn't have total authority, but instead can do what is necessary to regulate interstate commerce.... is this just a redundancy? the us amends the clause to read just "necessary and proper" instead of absolutely

where the constitution is silent on the state's power to act, the state is presumed to have the power to act.

mccullough part II.
can states tax the gov't?
the federal gov't has sovergniety.

why constitution vs a legal code type mechanism? b/c a constitution encourages longevity...

us term limits v. thornton

thorton was a senator and AK had a law of congressional term limits that were different from US congressional term limits. 
thorton and AK get the authority to bring this suit under the 10th amd't.

stevens: (maj.) "the 10th amd't can't preserve what didn't exist before." the states have their original powers and originally ratified powers (before they give the nat'l gov't the federal powers under the constitution), but cannot ratify to add new powers now.

kennedy: (conc.) "uniformity and nat'l character that the framers meant to ensure" by "splitting the atom of sovereignty" between the state and federal for the citizens

thomas and scalia: (diss) the dissent says that there is nothing in the constitution that deprives the people of AK of the power to enact such measures. 

congress regulates interstate commerce too, via the commerce clause, and the dormant commerce clause.

dormant commerce clause help.