Assignments for POL 335, American Constitutional Law I, Fall 2016

HALF THE FINAL DOWN, HALF TO GO

The second half of the final will be given on Friday, December 16th at 3:00pm in BUTLER 132!

The second one-hour segment will contain several fact-pattern questions from which you must answer two: one involving a Dormant Commerce Clause problem (Part One) and one involving a problem based on any of the cases that we studied (Part Two). You will have a choice. The directions will make this clear. You should go back and review the other constitutional rules that we studied this semester to be prepared for a non-Dormant Commerce Clause fact pattern.

For the Week of December 5th:

Friday: The first half of the final exam. Friday's exam will consist of two survey questions on the material on the Commerce Clause. One question will ask you to discuss the power of the national government under the Commerce Clause; one question will ask you to discuss the power of the states under the Commerce Clause. You should be familiar with the issue(s) that each case presented, the rule that the COurt relied upon to decide the issue, and the decision or ruling of the Court in each case— exactly what we have bee stydying and discussing these past two months.

The second half of the exam will be on Friday, December 16th, and will be two fact-pattern questions: one on the Commerce Clause and one on based on the cases that we studied prior to the Commerce Clause.

For Tuesday, Pike v. Bruce Church, Inc., Reeves v. Stake, the manager's choice—City of Philadelphia v. State of New Jersey, and this fact-pattern question.

For the Week of November 28th:

Answers

Here is the schedule for the remaining five classes. As you can see, I decided to move up half of the final to the last class day, December 10th. All of the remaining classes focus on a relatively narrow area of con law—the Commerce Clause—and it will be an advantage to you to test you on it while it is fresh in your minds. This will cut down considerably on your preparation for finals week.

The fact pattern questions for this part of the course focus exclusively on the Dormant Commerce Clause cases, not the national Commerce Clause cases.

For Friday, November 18th:

We turn next to the constitutional authority—the "legitimate end," to use Marshall's language in McCulloch—that Congress uses most in justifying domestic legislation: the Commerce Clause. A huge body of law has been built up over the years interpreting the clause and determining its limits.

Commerce Clause: Powers of the National Government. The Commerce Clause is deceptively simple: "The Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Art. I, Sec. 8, Cl. 3. Practically each word in this clause had to be interpreted and led to significant consequences. The question of whether the power to regulate commerce resided exclusively in the national government or whether the states also possessed authority to regulate commerce was a significant issue debated by nationalists and champions of states' rights. The benchmark case to begin our study is Gibbons v. Ogden, in which the Federalist-nationalist majority on the Court sought to maximize national authority under the Clause. Is the regulatory power exclusively possessed by the national government? The subsequent cases of Willson and Cooley (to be assigned later) reflect the limits to national power that the Court was forced to acknowledge. For Friday, please read Gibbons, Willson v. Black-Bird Creek Marsh Co., & The Daniel Ball, all linked on the Constitutional Law Case List. Gibbons and The Daniel Ball are under "Commerce Clause: Federal Power" and the Willson case is under "Commerce Clause: State Powers."

The nineteenth century witnessed the early attempts by Congress to regulate aspects of commerce in America's still largely agricultural economy. During the latter part of the nineteenth and the early twentieth century, however, Congress attempted to regulate more and more of the increasingly industrial national economy. The Court's interpretation of the Commerce Clause in certain cases was more narrow and restrictive of national power, culminating in several famous decisions that invalidated New Deal legislation intended to deal with the Great Depression. In 1937, President Roosevelt proposed his "court-packing plan" in the form of the Judicial Procedures Reform Bill of 1937, which was not enthusiastically received, even by many Democrats. The bill proposed allowing the President to appoint one new, younger judge for each Supreme Court justice who did not retire or resign within six months after reaching the age of 70 years, up to a limit of fifteen Supreme Court justices. (The bill also allowed up to forty additional lower federal judges to replace older judges.) Fortunately for Roosevelt, one of the nine old men on the Court, Mr. Justice Roberts of Pennsylvania, had a change of heart regarding the scope of the Commerce Clause and thus the federal government's power to regulate the economy, and his "switch-in-time . . . saved nine," namely the nine-member Supreme Court structure that had existed since 1869.

The E.C. Knight, Hammer v. Dagenhart, Bailey v. Drexel Furniture, Adkins v. Children's Hospital, and Carter v. Carter Coal cases, which applied a restrictive interpretation of the Commerce Clause power of the national government, were decided before, during, and after the Court was also upholding a broad Commerce Clause power in other cases. In other words, they do not constitute a particularly distinct "era" of constitutional history. Yet they do distinguish the first third of the Twentieth Century from the rest of American judicial history. Note how the Court in these cases both relied on and departed from the broad principles of Gibbons v. Ogden. Note also how the Court distinguished "commerce" from mining, manufacturing, and production generally. The Court also distinguished activity which had a direct effect on commerce (which activity was regulable by Congress) from that which only had an indirect effect (which was not regulable by Congress).

That the Court, or a majority of its justices, in these national Commerce Clause power cases was approaching them with a particular attitude about the proper relationship between business and government regulation of business is clear when we also consider cases in which state governments tried to enact the same kine of regulations that the federal government was enacting—regulations regarding wages, hours, and working conditions and labor union membership. The argument that often succeeded in persuading the Court to strike down the state legislation was the "freedom of contract" or "liberty to contract" argument (not to be confused with the Contract Clause of Art. I, Sec. 10 of the Constitution) identified with the Lochner v. New York case. The switch in time of 1937 that saw the Court take a fundamentally different approach to the national Commerce Clause power also marked a fundamental change toward the constitutional doctrine of freedom of contract.

For the mid-term:

You are responsible for all of the cases that we studied since the first mid-term. Let's see if we can list them from last to first:

Youngstown Sheet and Tube v. Sawyer (Steel Seizure Case)

Korematsu

Presciat (The Prize Cases)

Curtiss-Wright Export

Guy Capps

Sei Fujii

U.S. v. Belmont

Missouri v. Holland

The Cherokee Tobacco

Morrison v. Olson

Bowsher v. Synar

J.W. Hampton

Springer v. Philippine Islands

Nixon v. Fitzgerald

U.S. v. Nixon

Young v. U.S. ex rel Vuitton et Fils

McGrain v. Daugherty

City of Boerne

South Carolina v. Katzenbach

McCulloch v. Maryland

The categories of cases:

War Powers cases

Treaty Powers cases

Separation of Powers cases

Delegation Doctrine cases

Inherent Powers cases

Incidental or Auxiliary Powers cases

Implied Powers cases

Some cases fit into more than one category, but if you go back over the assignments on this page and the short explanatory commentaries on each set of cases that I provided, you should be able to fit all of the cases that we have studied into one or more of the categories.

As I explained, there will be four essay questions: two survey or overview questions and two fact-pattern or hypothetical questions of the type that we have been doing in class. From the four questions, you must answer one survey question and one fact-pattern question. You thus must answer a total of two questions. I will also expect accurate use of the legal terms that we have studied thus far, particularly such terms as "immunity," "privilege," "treaty," "executive agreement," "executive order," and so on. I emphasized those in class and defined them on this wepage.

The survey questions will typically ask you general questions about the categories of cases that we have studied. You will have to identify a half dozen or so cases that exemplify or represent the different categories, briefly indicate the bare, relevant facts and the legal question that the case presented, and then indicate the rule the Court relied upon for its decision. (Oh yeah, you should know its decision, too.) This amounts to about one paragraph for each case=five or six paragraphs=about four pages of essay. This answer demonstrates how well you understand the rules, distinctions between and among rules or issues that look similar on the surface, and relationships between and among legal norms that we have studied. To guide you in identifying the rule/principle/major premise/ratio decidendi, I urge you to review the explanation I provide in Appendix B of the Primer.

The fact-pattern questions usually come down to just one or two closely relevant cases that might be the controlling precedents for the case. Of course, one party will argue that the case/ruling is or should be controlling precedent; the other party will argue that the cited case is "distinguishable" from the fact-pattern and should not be the controlling precedent. I urge you to use the link entitled "Fact Pattern Questions," which we used in class, to help you here. Let me repeat a couple of tips about legal arguments:

Knowing the rules and using sound logic is the key here. You will get better at it as time goes on, but this is really the kind of pro-and-con argumentation that is at the core of legal disputes.

Bring your pens—no pencils—and your student I.D. numbers with you. See you tomorrow.

For Friday, December 2d, please read the introduction to the Dormant Commerce Clause directly below and the Baldwin v. G.A.F. Seelig, South Carolina State Highway Department v. Barnwell Brothers, Southern Pacific Co. v. Arizona, & Dean Milk Co. v. City of Madison cases. Follow the page assignments for the cases that I have not excerpted.

The Negative or Dormant Commerce Clause. States possess the "police power," the authority to provide for the health, safety, welfare, and morals of their citizens. This broad power is assumed to be part of the very purpose of government and part of what all citizens expect government to exercise on their behalf. The police power was not delegated to the national government in the 1787 constitution and so was retained by the states. It is therefore part of the powers "reserved to the States respectively, or to the people" under the Tenth Amendment. See Brown v. State of Maryland and Mayor, Aldermen, and Commonality of the City of New v. Miln for a discussion of the police power.

Like all state power, if an exercise of the police power by a state conflicts with one of the enumerated powers of the national government, the national power is supreme. Where the enumerated power has in fact been exercised by the national government in the form of a law, the federal law is said to "preempt" (invalidate) the state law. But what happens when the enumerated power has not been exercised—when it is still "dormant"? Does it still invalidate the state regulation? (See a comparable issue in bankruptcy law.)

Presumably it would if the power were possessed solely by the national government so that any exercise of it by a state would be an unconstitutional usurpation by the state. We saw in the Gibbons v. Ogden case that Chief Justice Marshall wanted very much to hold that the power to regulate the nation's commerce under the Commerce Clause was possessed exclusively by the national government, but he was unable to assemble a majority of the Court's justices to concur in that holding. In the Willson v. Black-Bird Creek Marsh case, Willson argued that the state law authorizing the company to place a dam on a navigable waterway and thus impede interstate or international commerce was invalid precisely because the state law effectively regulated commerce and the power to regulate commerce was exclusively possessed by Congress. But Marshall, in his opinion of the Court, did not accept this argument. He said, "We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." If Congress had passed a conflicting law, it would preempt the state law, but in the absence of federal legislation, "under all of the circumstances of the case," the state law was valid even though it was in fact regulating commerce.

The question in later cases became, "What does 'all the circumstances of the case' legally mean? What are the limitations, if any, upon state regulation of commerce in the absence of federal legislation—that is, when the Commerce Clause is dormant or "sleeping"? The Court attempted an answer to that question in a couple of later cases. In Mayor, Aldermen, and Commonality of the City of New York, the Court engaged in a "weighing and balancing" exercise, seeming to literally balance the "weight" of police power to regulate immigration of people into New York against the "weight" of the national power to regulate commerce. This unsatisfactory approach would have left the validity of each exercise of the police power to the case-by-case evaluation of the Court. The Court in Cooley v. Board of Wardens tried to provide a more useful and predictable standard, a standard that came to be known as the doctrine of "selective exclusivity":

"[T]he power to regulate commerce embraces a vast field containing not only many but exceedingly various subjects quite unlike in their nature, some imperatively demanding a single uniform rule operating equally on the commerce of the United States in every port and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation.

"Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress is to lose sight of the nature of the subjects of this power and to assert concerning all of them what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." (Emphasis added.)

As America's state-centered economies developed into a national economy during the latter half of the nineteenth century, the need for uniform plans of regulation grew, and the conflicts between state regulations under the police power and "national subjects" that had not yet been placed under enacted uniform plans increased, giving rise to a huge number of cases in the past eighty years. In the next few classes, we will look at some of these cases and the continuing effort of the Court to articulate reasonable limits on the states' power to regulate subjects that also affect interstate commerce.

The cases for Tuesday are all excerpted on the Constitutional Law Case List page: National Labor Relations Board v. Jones and Laughlin Steel, Wickard v. Filburn, United States v. Lopez & National Federation Independent Businesses v. Sibelius. Especially in the National Labor Relations Case, look for the new rule as to what constitutes the "commerce" among the states that Congress is authorized to regulate under the Commerce Clause. Wickard expands that rule: Lopez and NFIB restrict the rule.

For the Week of November 7th:

We'll finish up the Korematsu and Youngstown Sheet and Tube cases and work on another fact pattern on Friday. Make sure that you zero in on the rules in these tw0 cases and also review Justice Jackson's separate opinions.

I'll keep the number of new cases to three for Tuesday (and maybe one more for Friday): Preciat et al v. United States (The Prize Cases), Korematsu v. United States, Youngstown Sheet and Tube v. Sawyer. In the two latter cases, be sure to read Justice Jackson's separate opinions. Compare them to Justice Black's majority opinions.

War powers. The Youngstown, Preciat (Prize Cases), Hirabayashi, and Korematsu cases, as well as the post 9/11 cases of Hamdi, Hamdan, Rasul, & Boumedienne cases are often referred to as "war powers" cases, even though they present other significant issues as well. The overarching issue running through the older cases is the question of whether the defense of national survival justifies violations of the letter of the Constitution, particularly violations of the constitutional rights of individuals. Questions arising out of disagreements between the Congress and the President are usually treated as non-justiciable political questions (see, for example, Dellums v. Bush). Related to the idea of "war powers" is the idea of "emergency powers," reflected in the Home Building and Loan v. Blaisdell case, also on the constitutional law case list.

We will also go over a couple of sample, fact-pattern questions: the MWAA case that I handed out last week, and one more.

Mid-term on Tuesday, November 15th.

For Halloween Week:

Only one new case for Friday: Curtiss-Wright Export v. United States, a very important case in the eternal discussion of the appropriate roles of the President and Congress in foreign affairs and foreign policy. In addition to this, however, I also want to get into some of the present-day issues relating to the President's role in foreign affairs. Three recent items come to mind: the United Nations Climate Change Convention; the Trans-Pacific Partnership (TPP) or Trans-Pacific Partnership Agreement (TPPA) and fast track trade agreement procedures generally; and the so-called "Iran Nuclear Deal" concluded last year. Our concern:

  1. What is the constitutional-legal status of these agreements?
  2. Are they treaties?
  3. Are they executive agreements?
  4. Conservatives vow to overturn the Climate Change Convention; what legal steps are necessary to do so?
  5. Hillary and the Donald both oppose the TPP and say that they will prevent it fram taking effect or will radically change its provision. Legally, how can they do that?
  6. There is wide dissatisfaction with the Iran nuclear agreement. Is the United States legally bound by it? How can the United States legally alter the agreement or escape its legal commitment?

All these questions depend on its constitutional or legal status, and the cases that we have read are important in analyzing the problems.

If you are unfamiliar with any of these, I suggest that you use Wikipedia or some other site to brief yourself about the main features of each agreement. For class, I want you to read the follosing:

What can we glean from these sources about the legal status of each of the three agreements? What did President Obama do on September 3, 2016, that triggered the Climate Change agreement? What is the present status of the TPP in Congress? What is the legal status of the Iran nuclear deal under American law?

See what progress you can make into these questions. Some additional sources relating to these agreements follows. Check them out if you have time.

Press Release on Iran Nuclear Agreement Review Act

Federation of American Scientists, Collection of CRS Reports

Fast-Track Procedures

Brief CRS report on Climate Change Agreement

H.R. 1191 The Iran Nuclear Agreement Review Act of 2015.

S. 615 Report

S. 615 The Iran Nuclear Agreement Review Act of 2015.

S. 615 Report

Administration Immigration Policy Case

Two new cases for Tuesday: United States v. Guy Capps (on the case list under "Treaty Power: Executive Agreements") and Sei Fujii v. California (under "Treaty Power: Treaties"). Then, I promise, we will turn to some sample fact-pattern/hypothetical questions.

Thank you for the feedback on how to discuss these cases in class. Letting you start the discussions will promote more participation, and I will do anything to promote more discussion.

I do suspect, however, that some of you come to class and, after an often painful discussion, expect me to tell you the rules of the cases so that you can simply jot them down and go into the exam without reading and re-reading the opinions. I believe that you are sadly mistaken and urge you to spend the time studying the assigned cases. Whatever method you use in attempting to identify the rules, it is the rules (principles, major premises, rationes decidendi) that we are looking for and that we will use in the hypotheticals and the exam essays.

For the Week of October 24th:

For Friday, three relatively short cases introducing you to treaties and executive agreements: The Cherokee Tobacco, Missouri v. Holland, U.S. v. Belmont. Excerpts of all three are available on the case list.

As we get into these cases on international agreements, the following material may be of help:

In Missouri v. Holland, one of the most controversial treaty cases ever decided by the Court, what were the relevant norms in the case (this is the key!). According to Justice Holmes, what is the correct relation between the Constitution, treaties, and federal statutes? What norm was being challenged by Missouri? On the relation of the Constitution to treaties, consult the Cherokee Tobacco case, as edited on the Constitutional Law Case List. Did Justice Holmes clearly follow this precedent?

Executive agreements are agreements made between our executive officer—the President—and other countries. From the perspective of international law, executive agreements are treated as treaties; they bind our nation as if we entered into a treaty with a foreign country. From the perspective of domestic law, there are some significant differences between treaties and executive agreements.

Incidentally, executive agreements are not a new phenomenon. George Washington's administration entered into such agreements in the 1790s, and today they far outnumber the treaties to which the United States is a party. Belmont discusses the authority of our government to enter into executive agreements and also their relation to state law.

One of our main concerns in these cases is to determine the relationship between and among treaties, statutes, executive agreements, state laws, and the Constitution. Which trumps which?

Good class on Friday. Keep asking questions and volunteering answers.

For Tuesday, please read J.W. Hampton, Bowsher v. Synar, Morrison v. Olson. The latter two are under the "Separation of Powers" heading on the Constitutional Law Case List. Hampton was already assigned for last time. We must pick up the pace a bit and get through these three cases. PLEASE be prepared to answer the questions listed below. Write them out ahead of time.

As always, check out who won and lost, then proceed to try to determine the following:

  1. the legal norms (statutes or actions) being challenged
  2. the specific constitutional basis or bases of the challenge
  3. the precise issue/question presented for review
  4. the hold or answer to that specific question
  5. the general rule or principle of law that the court relied upon for its holding

I try to include all of the relevant footnotes in the excerpts just for the sake of scholarly completeness. It is not always necessary for you to read them.

For the Week of October 17th:

OK, I prepared excerpts of the four assigned cases for Friday: United States v. Nixon, Nixon v. Fitzgerald, Springer v. Philippine Islands, J.W. Hampton v. United States.I suggest that you read them in that order. The two Nixon cases are on the con law case list under "Privilege and Immunity." I provided a short introduction to the subject under the assignment for last week's class. You should review it. The Springer case is under "Separation of Powers: Appointment and Removal Power" and the J.W. Hampton case is a little above it under "Delegation Doctrine." The very short excerpt from Springer serves as a general introduction to the separation of powers cases that we will be looking at next.

Separation of Powers. We will study one aspect of constitutional law that is usually identified as an issue of separation of powers: the delegation doctrine in the Hampton case. Another aspect appears in the appointment-removal cases, such as the Humphrey's Executor, Bowsher, and Morrison cases. The line-item veto and legislative veto cases—Clinton v. City of New York and Chadha v. INS—are also separation of powers cases. Probably the granddaddy of these cases is the 1928 case of Springer v. Philippine Islands case, often cited in later opinions.

You will notice in the more recent cases that two distinct understandings of the separation of powers and the proper relations between the branches of government are present on the Court. One, represented by Justice Scalia, calls for a strict, literal division of the branches; the other, represented by Justice Byron White, represents an understanding that calls for a more practical, working relationship between the branches. The two justices never agreed on a decision of a separation of powers case while they were both sitting on the bench.

Re: Myers v. United States, Humphrey's Executor v. United States, Bowsher v. Synar, Morrison v. Olson, Mistretta v. United States, Clinton v. City of New New York.

These cases present one of the main issues of separation of powers: the problems relating to the appointment and removal of government officials and, in particular, the nature of the officials' tasks. Myers and Humphrey's Executor set the stage for understanding the constitutional requirements for appointing and removing officials and for understanding the transition to the administrative state in twentieth century American government history. Bowsher and Morrison should be read in light of the two older cases. In each case, ask what the nature of the official's task is and what constitutional appointment and removal requirements regarding such an official are.

Particularly noteworthy are White's dissenting opinion in Bowsher and Scalia's dissent in Morrison. Justices White and Scalia seemed to be in complete dis-agreement regarding the requirements of separation of powers doctrine. Although their respective tenures on the Court overlapped only a few years (Scalia joined the Court in 1986; White left the Court after thirty-one years in 1993), they disagreed on all of the major separation of powers cases decided while they served together, and Scalia's comments about cases decided before he joined the Court indicate that he and White disagreed on those cases as well. Indeed, Scalia's resolute defense of his understanding of the constitutional principle of separation of powers makes his dissent in Clinton v. City of New York, which we shall look at next time, particularly intriguing. The dissents of both justices, in those cases in which they did dissent, provide valuable material for an understanding of the two principal approaches to separation of powers taken by the court in the twentieth century.

Three other cases (Weiss v. United States, Ryder v. United States, Edmond v. United States) examined the constitutional status of the judges on various Courts of Military Review. The Nguyen case similarly examined the status on the territorial United States District Court for the District of Guam.

Three cases for Tuesday: City of Boerne, McGrain v. Daugherty, Young v. U.S. ex rel Vuitton et Fils. The first is a carry-over from Friday and provides a qualification to the implied power/enforcement clause power that we saw in McCulloch and Katzenbach. The second two cases are categorized as incidental or auxiliary powers cases: what un-enumerated powers do the different branches of the national government have simply in order to perform their constitutional function? Review the introductory material below to distinguish implied from incidental powers.

The cases are excerpted on the "Constitutional Law Case List." I strongly suggest downloading and making hard copies. Again, try to identify the rule or major premise or ratio decidendi of each case: what rule or principle does the court ultimately rely upon for its decision?

Regarding the Boerne case:

For McGrain and Vuitton et Fils:

For the Class of October 14th:

We will go over the exams first and then turn to the three cases I indicated in class: McCulloch, South Carolina v. Katzenbach, City of Boerne v. Flores.

The excerpts for these three cases are all linked on the Constitutional Law Case List under "Implied Powers." Historical information on McCulloch and constitutional analyses of the cases are available on the "Constitutional History: John Marshall and American Nationalism" link under the "Third Topic." Read some of that material, too, if you wish. The following material is also helpful and is assigned for the next few weeks:

Implied Powers. The implied powers doctrine is usually identified with the famous passage in McCulloch v. Maryland that begins "Let the end be legitimate . . . ." This tripartite end-means-no prohibition reasoning has also been used in other contexts, for instance, in determining the scope of congressional authority to enforce constitutional amendments under their enforcement clauses (South Carolina v. Katzenbach, but see City of Boerne v. Flores), the scope of state authority to implement their police powers (Jacobson v. Massachusetts), and the authority of the three branches of our national government to engage in un-enumerated actions that are necessary to perform their overall constitutional functions (the so-called "incidental or auxiliary powers" presented in the next assignment).

Incidental or Auxiliary Powers. The three assigned cases discuss what may be called "incidental" or "auxiliary," as opposed to "implied" or "inherent" powers of government institutions—the Congress, the executive, and the courts. The rationale for these powers is similar to the McCulloch rationale for implied powers, but the term "implied powers" is usually applied specifically to the powers of Congress under the Necessary and Proper Clause of the Constitution. "Inherent power" has come to refer to the doctrine of the sovereign powers of our national government and any national government as explained by Justice Sutherland in his majority opinion in Curtiss-Wright. By contrast, incidental powers relate to what the institution (Congress, the President, the courts) can do in order to perform its basic function—legislating, executing the laws, or adjudicating, respectively. It may do that which is necessary and appropriate to perform its constitutional function.

Privilege and Immunity. Privilege is the right to withhold information from a government agency; that is, it is the right of someone who would otherwise have a duty to provide information to a government official (judge, congressional committee, prosecutor) to withhold information from that official. (The official may be said to have a right to obtain the information.) The party with the duty to provide evidence is often a party to, or a witness in, litigation or a witness before a congressional committee or subcommittee. The roots of executive privilege go back to George Washington’s refusal to give the House of Representatives information about his instructions to John Jay that led to the Jay Treaty with England. Privilege excepts one from the duty to testify. Typically, privilege will be asserted when the information is demanded of the witness at trial or in a congressional hearing, or when challenging (moving to quash) a subpoena that requires the witness to appear and be questioned or to appear and bring materials (a subpoena duces tecum—"dukas teekum") on the grounds that the information sought is privileged. Thus, a criminal defendant has the right not to answer questions about whether he committed the crime—the Fifth Amendment privilege against self-incrimination. There are many other forms or rules of privilege as well, but they are all narrowly construed by the courts because they run counter to the adjudication policy of full and open inquiry into the truth.

Privilege at law should not be confused with immunity. Immunity is protection from liability, either criminal or civil, and again, there are a number of different rules of immunity. If someone has immunity, that individual cannot be prosecuted or sued. The breadth of an individual's immunity may vary; that is, an individual may be immune from suit or liability for one or two causes of action arising out of a particular transaction or may be immune from liability for any suit arising out of the transaction.

Having immunity does not entail having privilege, and vice versa. Thus a criminal suspect who does not have to answer questions about whether he committed the crime (5th Amendment privilege) may still be convicted of the crime on the evidence of others (no immunity). Likewise, one might have immunity from suit but still be required to provide information about the underlying transaction.

For the Week of October 3d:

OK. We are now going to start reading cases, and nothing but cases. Let's start with two famous opinions of Chief Justice John Marshall: Marbury v. Madison and McCulloch v. Maryland. For the Marbury case, read at least the material in red.

Note that the rule or principle will never be a clause of the constitution; it will always be a court-made interpretation or "construction" of constitutional language.

Mid-term on Tuesday. There will be forty-five or so short-answer, two-point questions of the various types that you have seen on the quizzes, and there will be four short answer five-point questions on four of the five cases that we have studied—Mount Olive Primitive Baptist Church, West Lewinsville Heights, Ex parte McCardle, International Longshoremen, and City News. This means there will be approximately 115 possible points on the test.

There will be questions from each of the five main chapters of the Primer. A larger proportion of the questions will come from the chapters on justiciability, litigation, and the Supreme Court than from the others, but there will be at least five questions from every chapter. Most of the questions, especially those based on facts and statistics, are based on material that is in the book and was also discussed in class, but some definition questions are based exclusively on material in the book that was not gone over in class. A few of the two-point questions may also be on the cases we have read.

Know the definitions of the bold-face terms in the text and of the terms in the subheadings throughout the chapters. Questions about the cases will be basic questions to see (1) if you have read the case and (2) how well you followed the arguments in the courts' opinions. As always, answer as precisely and concisely as possible.

To give you an idea of what type of five-point questions will be asked about the cases, here is an example. A few years ago we read a justiciability case, Muskrat v. United States. Here is the question that was on the exam:

"In Muskrat v. United States, the Indian land act case, the Supreme Court took the unusual step of rejecting both parties' arguments and decided the case on its own basis. (1) What did both parties want the Court to decide? (2) What was the Court's actual decision? <3> What general principle did the Court rely upon for its decision?"

The question provides some descriptive background so that you can identify the case and then asks a few general questions about it. This is the format for the questions on the Mt. Olive Baptist Church, West Lewinsville, McCardle, City News, or International Longshoremen cases that will be on the exam. Again, only four of these cases will be the subjects of five-point questions.

For the Week of September 26th:

For Friday, we will discuss parts of chapter 5, the Supreme court, that we have not hit already (remember, there was a reading assignment from chapter 5 the first week of the semester). In particular, look at the section of the chapter that discusses the effect of appellate decisions on the American legal system—judges, lawyers, and the general population.

We will finish up the primer this week in preparation for the first mid-term next Tuesday. For Tuesday, please read chapter 4 on federal and state courts.

Chapter 4 is dull as dishwater. Look at the structure of the federal judiciary and at the typical and representative structures of state judicial systems. The concepts ofjurisdiction that we discussed last week make these charts understandable. Look at the major kinds of cases that the federal courts handle and that the state courts handle. Look at the relative number of cases filed in federal courts and in state courts. Look at the flow of cases from filing to final judgment in the judicial systems. The appendix on the funnel effect is valuable here. One last quiz is likely on Tuesday.

For the Week of September 19th:

For Friday, please finish chapter 3 on Litigation. (No quiz.) When we complete it, we will turn to the cases—International Longshoremen and City News. As always, try to identify the question presented to the court, what the court did, and the reason—the rule or principle or major premise—that the court did what it did.

Exam on Tuesday, October 4th.

For Tuesday, please the material on Civil Procedure and Criminal Procedure, pp. 58-72, of chapter three of the Primer. We will finish chapter 3 on Friday. Quiz Tuesday on the assigned reading.

For the Week of September 12th:

For Friday, we will finish the West Lewinsville opinion (see the questions below) and the famous case of Ex parte McCardle. You may use those same questions. In the Primer, chapter three, please read the first few pages on civil and criminal cases. We will spend next week on chapter three, "Litigation."

Please (1) finish chapter two on jurisdiction and (2) the West Lewinsville Heights case. The information on jurisdiction is necessary in order understand any court system. Important stuff.

When reading the West Lewinsville case, ask yourself: (1) what question(s) was presented to the court? (This is "what the case is about.") (2) How did the court answer the question(s)? (This is "what the court decided.") (3) What rule or rules did the court rely upon for its decision? (4) And in this opinion, What were the arguments of the two opposing parties to the appeal? (Unlike the Mount Olive opinion, this opinion gives you a basis to answer this question rather precisely.) You should underline in the text your answers to these questions or write them down separately. Your answers should be based directly on passages from the court's opinion.

Keep working on the vocabulary, especially sub-heading titles and words in bold, in the Primer. Memorize.

For the Week of September 5th:

For Friday, please read pages 37 to 43 (up to "Types of Jurisdiction") in chapter 2 of the Primer. There will be a short quiz at the beginning of class with questions from chapter 1 and pp. 37-43. This will give you an indication of the questions on the first mid-term.

Read more carefully the Mount Olive Primitive Baptist Church opinion. We now know that the Alabama Supreme Court did not decide whether Patrick and the Copelands were improperly expelled; the court decided not to decide. What rule did the court rely on in concluding that it should not decide the case? What did the parties argue on this point? Notice the use of precedent(s) in the court's opinion. We'll look at another case on Friday.

For Monday, please read chapter 1 of the Primer on the history of the common law courts. Pay particular attention to the three medieval institutions of the juries, ordeals, and royal courts upon which the common law system is based and also on the necessary technology developments in the early modern period that made the common law system possible. Probably a quiz.

We will also look at a couple more recent Supreme Court opinions (like last Friday) and begin to analyze the reasoning of the opinions. Enjoy the rest of your holiday!

For Friday, September 2, please read pages 123 to 139 of Chapter Five and review carefully Appendix A of the Primer on American Courts. On my main web page, scroll way down under "Useful Links" to (1) the Supreme Court web site and to (2) Supreme Court Opinions October 2004. On the second link, scroll to the bottom to become familiar with the abbreviations for the charts that we will be looking at on Friday.

The material below is from past semesters.

For the Final:

The final will begin at 11:00am (mid-term make-up exams will be taken after the final). The final will consist of four questions: (1) two essay questions on the Commerce Clause and Incorporation Doctrine material that we have studied since the last mid-term and (2) two fact-pattern questions. Since there is limited material, you will have to answer both essay questions. One fact-pattern question will be based on the Commerce Clause material; this you will have to answer. For the second fact-pattern question, I will give you a choice of several questions that are based on all of the cases that we have studied this semester. Pick the question that seems most familiar to you.

For the Week of December 7th (a week which I hope will not live in infamy):

Study session this afternoon (Wednesday) from 1:00 to 3:00pm. Meet me at my office around 1:00pm. Since the History/Politics conference room is already reserved, we will definitely meet in a classroom. I will post the location on my office door if you get there after 1:00pm.

The cases for Friday are Fourteenth Amendment cases: Barron v. Baltimore, The Civil Rights cases, Gitlow v. New York, and Palko v. Connecticut. The cases are available near the very bottom of the Constitutional Law Case List.

Commentaries on all of the subjects that we have been studying—the power of Congress under the Commerce Clause, the limitations on state powers under the Dormant Commerce Clause, and the incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment—are available in the Materials for the Fifth, Sixth, and Seventh Topics on the link for "Constitutional History: John Marshall and American Nationalism" just below this link ("Constitutional Law I (Fall 2015"). Check it out.

Got four cases for you for Tuesday: Bibb v. Navajo Freight Lines, Pike v. Bruce Church, Raymond Motor Transportation v. Rice, Reeves v. Stake. I know it's a lot, but I think that you will see the cases that we have been reading on the Dormant Commerce Clause come together in these opinions. There is a lot of cross-referencing and commentary on the cases in the opinions. Skim the facts of the case and focus on the Court's rationales for its holdings.

Like we did before the mid-term, I'll be glad to meet with groups of students to go ovedr any questions you may have about the cases on Wednesday afternoon, December 9th, from 1:00 to 3:00pm. Again, we'll meet either in Ireton or, since no classes are scheduled on Wednesdays from 1:00 to 3:30pm, we'll go to an open classroom.

I still need students to enroll for HU 201 (4) and POL 405 (5) to prevent those classes from being canceled. If you can add them to your Spring schedules, I would appreciate it. Some of your classmates need one or the other of these politics electives. I'll remind you again in class.

For the Week of November 30th:

We rushed over the Lopez, Wickard, and NFIB cases last time, but in class we indicated that the Court in Lopez (Gun-Free School Zones case) limited federal Commerce Clause authority to commercial ("trafficking"?) activities, and in NFIB further limited Commerce Clause power to the regulation of activity already in existence. The Wickard case, still very much alive, as evidenced by the California medical marijuana case, Gonzales v. Raich and NFIB v. Sibelius, provides the rule of aggregate activities. Review these cases and find specific passages that reflect these rules in each of the cases. Remember, you cannot argue in generalities: you must base your arguments on a clear statement of a precedent rule.

For Friday, please read the introduction to the Dormant Commerce Clause directly below and the Baldwin v. G.A.F. Seelig, South Carolina State Highway Department v. Barnwell Brothers, Southern Pacific Co. v. Arizona, & Dean Milk Co. v. City of Madison cases. Follow the page assignments for the cases that I have not excerpted.

The Negative or Dormant Commerce Clause. States possess the "police power," the authority to provide for the health, safety, welfare, and morals of their citizens. This broad power is assumed to be part of the very purpose of government and part of what all citizens expect government to exercise on their behalf. The police power was not delegated to the national government in the 1787 constitution and so was retained by the states. It is therefore part of the powers "reserved to the States respectively, or to the people" under the Tenth Amendment. See Brown v. State of Maryland and Mayor, Aldermen, and Commonality of the City of New v. Miln for a discussion of the police power.

Like all state power, if an exercise of the police power by a state conflicts with one of the enumerated powers of the national government, the national power is supreme. Where the enumerated power has in fact been exercised by the national government in the form of a law, the federal law is said to "preempt" (invalidate) the state law. But what happens when the enumerated power has not been exercised—when it is still "dormant"? Does it still invalidate the state regulation? (See a comparable issue in bankruptcy law.)

Presumably it would if the power were possessed solely by the national government so that any exercise of it by a state would be an unconstitutional usurpation by the state. We saw in the Gibbons v. Ogden case that Chief Justice Marshall wanted very much to hold that the power to regulate the nation's commerce under the Commerce Clause was possessed exclusively by the national government, but he was unable to assemble a majority of the Court's justices to concur in that holding. In the Willson v. Black-Bird Creek Marsh case, Willson argued that the state law authorizing the company to place a dam on a navigable waterway and thus impede interstate or international commerce was invalid precisely because the state law effectively regulated commerce and the power to regulate commerce was exclusively possessed by Congress. But Marshall, in his opinion of the Court, did not accept this argument. He said, "We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." If Congress had passed a conflicting law, it would preempt the state law, but in the absence of federal legislation, "under all of the circumstances of the case," the state law was valid even though it was in fact regulating commerce.

The question in later cases became, "What does 'all the circumstances of the case' legally mean? What are the limitations, if any, upon state regulation of commerce in the absence of federal legislation—that is, when the Commerce Clause is dormant or "sleeping"? The Court attempted an answer to that question in a couple of later cases. In Mayor, Aldermen, and Commonality of the City of New York, the Court engaged in a "weighing and balancing" exercise, seeming to literally balance the "weight" of police power to regulate immigration of people into New York against the "weight" of the national power to regulate commerce. This unsatisfactory approach would have left the validity of each exercise of the police power to the case-by-case evaluation of the Court. The Court in Cooley v. Board of Wardens tried to provide a more useful and predictable standard, a standard that came to be known as the doctrine of "selective exclusivity":

"[T]he power to regulate commerce embraces a vast field containing not only many but exceedingly various subjects quite unlike in their nature, some imperatively demanding a single uniform rule operating equally on the commerce of the United States in every port and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation.

"Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress is to lose sight of the nature of the subjects of this power and to assert concerning all of them what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." (Emphasis added.)

As America's state-centered economies developed into a national economy during the latter half of the nineteenth century, the need for uniform plans of regulation grew, and the conflicts between state regulations under the police power and "national subjects" that had not yet been placed under enacted uniform plans increased, giving rise to a huge number of cases in the past eighty years. In the next few classes, we will look at some of these cases and the continuing effort of the Court to articulate reasonable limits on the states' power to regulate subjects that also affect interstate commerce.

The cases for Tuesday are all excerpted on the Constitutional Law Case List page: National Labor Relations Board v. Jones and Laughlin Steel, Wickard v. Filburn, United States v. Lopez & National Federation Independent Businesses v. Sibelius. Especially in the National Labor Relations Case, look for the new rule as to what constitutes the "commerce" among the states that Congress is authorized to regulate under the Commerce Clause. Wickard expands that rule: Lopez and NFIB restrict the rule.

Do your best to identify the rules in the cases before class. After class, go back over the cases and again attempt to identify the rule even more precisely. Do the same for the cases that we discussed last Tuesday (E.C. Knight, Hammer, Stafford). I will not specifically tell you the rules announced by the court, but the class discussion should allow you to identify the rules when you go back and review the cases.

Justice Owen J. Roberts's "switch in time that saved nine" occurred in the West Coast Hotel v. Parrish, a case decided a few weeks before the National Labor Relations Board case, which applied the same rule. Justice Roberts offered an explanation of his switch in a memorandum that you might wish to read. The basic rule has been in effect ever since.

For the Class of November 24th:

For Tuesday, please read United States v. E.C. Knight, Hammer v. Dagenhart, & Stafford v. Wallace.These three cases reflect the approach(es) taken toward the federal Commerce Clause power during the latter nineteenth and early twentieth centuries. The sharp turnaround will be reflected in the cases we look at after Thanksgiving break—National Labor Relations Board v. Jones and Laughlin Steel, Wickard v. Filburn, & National Federation Independent Businesses v. Sibelius. I will try to prepare excerpts of the assigned cases over the weekend, but in the meantime, read only the pages and parts of the Findlaw.com versions of the opinions that are indicated after the case names on the Constitutional Law Case List. Do not read the whole opinions (unless you really want to). The E.C. Knight excerpt is already on the case list.

For the Week of November 16th:

We turn next to the constitutional authority—the "legitimate end," to use Marshall's language in McCulloch—that Congress uses most in justifying domestic legislation: the Commerce Clause. A huge body of law has been built up over the years interpreting the clause and determining its limits.

Commerce Clause: Powers of the National Government. The Commerce Clause is deceptively simple: "The Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Art. I, Sec. 8, Cl. 3. Practically each word in this clause had to be interpreted and led to significant consequences. The question of whether the power to regulate commerce resided exclusively in the national government or whether the states also possessed authority to regulate commerce was a significant issue debated by nationalists and champions of states' rights. The benchmark case to begin our study is Gibbons v. Ogden, in which the Federalist-nationalist majority on the Court sought to maximize national authority under the Clause. Is the regulatory power exclusively possessed by the national government? The subsequent cases of Willson and Cooley (to be assigned later) reflect the limits to national power that the Court was forced to acknowledge. For Friday, please read Gibbons, Willson v. Black-Bird Creek Marsh Co., & The Daniel Ball, all linked on the Constitutional Law Case List. (For the Daniel Ball case, and any other case on the list that I have not excerpted yet, you only have to read the pages and sections of the opinion that I specify on the case list.)

The nineteenth century witnessed the early attempts by Congress to regulate aspects of commerce in America's still largely agricultural economy. During the latter part of the nineteenth and the early twentieth century, however, Congress attempted to regulate more and more of the increasingly industrial national economy. The Court's interpretation of the Commerce Clause in certain cases was more narrow and restrictive of national power, culminating in several famous decisions that invalidated New Deal legislation intended to deal with the Great Depression. In 1937, President Roosevelt proposed his "court-packing plan" in the form of the Judicial Procedures Reform Bill of 1937, which was not enthusiastically received, even by many Democrats. The bill proposed allowing the President to appoint one new, younger judge for each Supreme Court justice who did not retire or resign within six months after reaching the age of 70 years, up to a limit of fifteen Supreme Court justices. (The bill also allowed up to forty additional lower federal judges to replace older judges.) Fortunately for Roosevelt, one of the nine old men on the Court, Mr. Justice Roberts of Pennsylvania, had a change of heart regarding the scope of the Commerce Clause and thus the federal government's power to regulate the economy, and his "switch-in-time . . . saved nine," namely the nine-member Supreme Court structure that had existed since 1869.

The E.C. Knight, Hammer v. Dagenhart, Bailey v. Drexel Furniture, Adkins v. Children's Hospital, and Carter v. Carter Coal cases, which applied a restrictive interpretation of the Commerce Clause power of the national government, were decided before, during, and after the Court was also upholding a broad Commerce Clause power in other cases. In other words, they do not constitute a particularly distinct "era" of constitutional history. Yet they do distinguish the first third of the Twentieth Century from the rest of American judicial history. Note how the Court in these cases both relied on and departed from the broad principles of Gibbons v. Ogden. Note also how the Court distinguished "commerce" from mining, manufacturing, and production generally. The Court also distinguished activity which had a direct effect on commerce (which activity was regulable by Congress) from that which only had an indirect effect (which was not regulable by Congress).

That the Court, or a majority of its justices, in these national Commerce Clause power cases was approaching them with a particular attitude about the proper relationship between business and government regulation of business is clear when we also consider cases in which state governments tried to enact the same kine of regulations that the federal government was enacting—regulations regarding wages, hours, and working conditions and labor union membership. The argument that often succeeded in persuading the Court to strike down the state legislation was the "freedom of contract" or "liberty to contract" argument (not to be confused with the Contract Clause of Art. I, Sec. 10 of the Constitution) identified with the Lochner v. New York case. The switch in time of 1937 that saw the Court take a fundamentally different approach to the national Commerce Clause power also marked a fundamental change toward the constitutional doctrine of freedom of contract.

I have been correcting your exams, and there is an outside chance that I will have them for you on Friday; if not, certainly on Tuesday.

By the way, if you want to know more about the ideas that lead individuals such as the Paris suicide bombers-killers to do what they do, one of the main topics covered in the Ideologies course (POL 405) is the different strains of contemporary Islamic ideology. The course addresses the major ideological movements of the last two centuries—Marxism, fascism, and radical Islamicism—and their connections to revolutionary and terroristic movements.

Mid-term on Tuesday.

As I described in class, there will be four questions—two essay or survey questions and two fact-pattern questions. You must answer three of them. If you feel more comfortable with the fact pattern problems, answer those two and one of the essay questions. If you are more comfortable answering questions about the cases that we have studied since the first mid-term, answer the two essay questions and one of the fact pattern questions.

You are responsible for all of the cases since, and including, the McCardle case. Focus on their rules!! You should know enough about the facts and the issues of the cases to use that material as well, but the emphasis is on the rules. You are also responsible for all of the commentary accompanying the assigned cases that I have written on this assignment page below. This is intended to help you understand the context of the cases, the constitutional or legal categories that the cases fit into, and the organization of the material in this course, POL 335. Know the various labels (i.e., "implied powers," "inherent power") that we have used, and know which cases are examples of which powers.

The essay questions will ask you to refer to and discuss five or six cases each; the fact pattern questions, as we have seen, will typically refer to only one or two relevant cases.

Bring your student ID#s and a couple of pens, not pencils, to the exam. See you Tuesday!

For the Week of November 9th:

We will begin class Friday with a brief discussion of the status of President Obama's Iran and Pacific Rim agreements (review the material on the links below) and also his executive orders on immigration. Fit these issues into the "relationship of legal norms" chart that we worked on last week. We will then turn to the Youngstown, Korematsu, and Prize Cases.

This week we will consider five cases and a couple of fact pattern questions. The cases are J.W. Hampton v. United States, Panama Refining v. Ryan, Youngstown Sheet and Tube v. Sawyer, The Prize Cases (Presciat et al v. United States, The Amy Warwick), Korematsu v. United States. The first two cases deal with delegation doctrine (to put the Curtiss-Wright case in legal context), and the last three deal with the war powers of the national government. Read Hampton, Panama Refining, and Youngstown for Tuesday. We will discuss these and then the Iran Nuclear Deal and the Pacific Rim Trade pact.

H.R. 1191

S. 615 Report

S. 615

Press Release on Iran Nuclear Agreement Review Act

Federation of American Scientists, Collection of CRS Reports

Trade Agreement Fast-Track Procedure

Fast-Track Procedures

Administration Immigration Policy Case

Here's that fact pattern for class. After completing the reading assignment, read over the fact pattern. If you have the time, use the form I handed out in class last time to work through the argument process a bit.

For the Week of November 2d:

Curtiss-Wright, Dames and Moore on Friday. Curtiss-Wright Export v. United States is a "delegation doctrine" case, but it provided Justice Sutherland (who also wrote the majority opinion in the Belmont executive agreement case) with the opportunity to present his doctrine of "inherent power" or Hobbesian sovereignty. One aspect of a nation's inherent power or sovereignty is its capacity to enter into agreements with other countries in the form of treaties or "executive agreements." Examine Sutherland's theory of national sovereignty in Curtiss-Wright.

The Dames and Moore case is quite complicated, but I have included only the excerpts that address the norm-relationship issues that we have been looking at the last few classes. Dames and Moore involved another foreign claims settlement agreement similar in many respects to the Litvinov Assignment in the Belmont and United States v. Pink cases, but with a number of relevant statutes also in the mix.

The new cases for Tuesday are United States v. Guy Capps and Reid v. Covert. These cases should complete our chart of the relationships between the different norms of American domestic law that we were looking at on Friday.

In addition to the cases, please review the memo on "Fact Pattern Questions" that is linked directly below this assignment page link. We will spend a bit of time during the rest of the semester on these hypothetical cases. We will discuss fact pattern questions at some length on Tuesday.

I am planning the second mid-term for Tuesday, November 17th, two weeks from this coming Tuesday.

For the Week of October 26th:

For Friday, we will cover a lot of ground in the area of international agreements. In addition to the Missouri v. Holland and Belmont cases already assigned, read The Cherokee Tobacco, Whitney v. Robertson, Sei Fujii v. State, all linked on the Constitutional Law Case List page. I hope to get through these five cases—not necessarily in the order in which they were assigned—on Friday, so please be prepared to discuss all five cases. Most of these opinions are short and clearly announce basic rules of American treaty law. 2015 Executive Agreement

Look for the rules concerning "self-executing treaties," the relationship(s) between the Constitution, treaties, federal and state statutes, and executive agreements.

For Tuesday, three cases to read: United States v. Nixon, Missouri v. Holland, United States v. Belmont, all on the Constitutional Law Case List (just below where you found the Pierson and Reynolds cases for Friday).

For the Nixon case, the material on executive privilege that we are particularly interested in is in bold print, but I would like you to read the sections on jurisdiction and justiciability, as well. This controversial case presented the Court with a whole range of legal issues to address.

As we get into the cases (Missouri v. Holland and Belmont) on international agreements, the following material may be of help:

In Missouri v. Holland, one of the most controversial treaty cases ever decided by the Court, what were the relevant norms in the case (this is the key!). According to Justice Holmes, what is the correct relation between the Constitution, treaties, and federal statutes? What norm was being challenged by Missouri? On the relation of the Constitution to treaties, consult the Cherokee Tobacco case, as edited on the Constitutional Law Case List. Did Justice Holmes clearly follow this precedent?

Executive agreements are agreements made between our executive officer—the President—and other countries. From the perspective of international law, executive agreements are treated as treaties; they bind our nation as if we entered into a treaty with a foreign country. From the perspective of domestic law, there are some significant differences between treaties and executive agreements. Incidentally, executive agreements are not a new phenomenon. Our first administration entered into them in the 1790s, and they far outnumber the treaties to which the United States is a party. Belmont discusses the authority of our government to enter into executive agreements and also their relation to state law. How is the rationale in Belmont tied to the rationale in Curtiss-Wright?

One of our main concerns in these cases is to determine the relationship between and among treaties, statutes, executive agreements, state laws, and the Constitution. Which trumps which?

And please remember:

    If called on, you should be prepared to tell me:
  1. What norms—state or federal statutes, regulations, treaties, governmental actions, but never clauses of the Constitution—are being challenged?
  2. In this course, the basis of the challenge is always that the "statute is unconstitutional." That is too general. Try to determine the specific provision of the constitution that the statute or other norm is allegedly violating. This is a good indication of the "issue" or "question" in the case. Thus, in the Katzenbach case, South Carolina challenged the Voting Rights Act of 1965 (a federal statute) as exceeding the powers of Congress under the enforcement clause of the Fifteenth Amendment. State this as a question: "Whether Congress exceeded its power under the Enforcement Clause of the Fifteenth Amendment in enacting the Voting Rights Act of 1965?" This is specific enough a statement at this point in the course.
  3. What was the Court's answer to the challenge? This is the Court's "holding." ("The court in Katzenbach held that Congress did not exceed its authority under the Enforcement Clause.")
  4. What rule or principle or test did the Court rely upon as the basis for its holding? This is our ultimate goal in all our cases. The rules/principles/tests are what the exams will focus upon. Thus, in Katzenbach, a statement of the rule may be something like "Congress may use any rational means to effectuate the Fifteenth Amendment's constitutional prohibition of racial discrimination in voting." The Court opinion offers alternative statements of the rule, but this statement is fine. Add to it the minor premise—"The provisions of the Voting Rights Act are reasonable means"—and you have the Court's rationale for its decision.
  5. If you have trouble getting into the Court's argument, you might ask yourself, "Who sued whom in this case?" "Who won the case?" "Why did that party win?" These preliminary questions my help get you oriented to what is going on in the litigation.
  6. Keep working on the cases; you will get better at understanding them. In class, don't try to quietly soak up the information. You have to participate and make a few mistakes to get into material. If there is no class participation in the discussion of a case, I will simply move on, but you can be sure that the case will be on the next exam.

For the Week of October 19th:

For Friday, we will look at three cases that reflect the doctrine of the "auxiliary" or "incidental" powers of government: McGrain v. Daugherty, Pierson v. Ray, Reynolds v. United States. All are available via links on the Constitutional Law Case List page. Please read the following material, also:

Implied Powers. The implied powers doctrine is usually identified with the famous passage in McCulloch v. Maryland that begins "Let the end be legitimate . . . ." This tripartite end-means-no prohibition reasoning has also been used in other contexts, for instance, in determining the scope of congressional authority to enforce constitutional amendments under their enforcement clauses (South Carolina v. Katzenbach, but see City of Boerne v. Flores), the scope of state authority to implement their police powers (Jacobson v. Massachusetts), and the authority of the three branches of our national government to engage in un-enumerated actions that are necessary to perform their overall constitutional functions (the so-called "incidental or auxiliary powers" presented in the next assignment).

Incidental or Auxiliary Powers. The three assigned cases discuss what may be called "incidental" or "auxiliary," as opposed to "implied" or "inherent" powers of government institutions—the Congress, the executive, and the courts. The rationale for these powers is similar to the McCulloch rationale for implied powers, but the term "implied powers" is usually applied specifically to the powers of Congress under the Necessary and Proper Clause of the Constitution. "Inherent power" has come to refer to the doctrine of the sovereign powers of our national government and any national government as explained by Justice Sutherland in his majority opinion in Curtiss-Wright. By contrast, incidental powers relate to what the institution (Congress, the President, the courts) can do in order to perform its basic function—legislating, executing the laws, or adjudicating, respectively. It may do that which is necessary and appropriate to perform its constitutional function.

Privilege and Immunity. Privilege is the right to withhold information from a government agency; that is, it is the right of someone who would otherwise have a duty to provide information to a government official (judge, congressional committee, prosecutor) to withhold information from that official. (The official may be said to have a right to obtain the information.) The party with the duty to provide evidence is often a party to, or a witness in, litigation or a witness before a congressional committee or subcommittee. The roots of executive privilege go back to George Washington’s refusal to give the House of Representatives information about his instructions to John Jay that led to the Jay Treaty with England. Privilege excepts one from the duty to testify. Typically, privilege will be asserted when the information is demanded of the witness at trial or in a congressional hearing, or when challenging (moving to quash) a subpoena that requires the witness to appear and be questioned or to appear and bring materials (a subpoena duces tecum—"dukas teekum") on the grounds that the information sought is privileged. Thus, a criminal defendant has the right not to answer questions about whether he committed the crime—the Fifth Amendment privilege against self-incrimination. There are many other forms or rules of privilege as well, but they are all narrowly construed by the courts because they run counter to the adjudication policy of full and open inquiry into the truth.

Privilege at law should not be confused with immunity. Immunity is protection from liability, either criminal or civil, and again, there are a number of different rules of immunity. If someone has immunity, that individual cannot be prosecuted or sued. The breadth of an individual's immunity may vary; that is, an individual may be immune from suit or liability for one or two causes of action arising out of a particular transaction or may be immune from liability for any suit arising out of the transaction.

Having immunity does not entail having privilege, and vice versa. Thus a criminal suspect who does not have to answer questions about whether he committed the crime (5th Amendment privilege) may still be convicted of the crime on the evidence of others (no immunity). Likewise, one might have immunity from suit but still be required to provide information about the underlying transaction.

Three cases are on the agenda for Tuesday: McCulloch v. Maryland, South Carolina v. Katzenbach, City of Boerne v. Flores. The excerpts for these cases are all linked on the Constitutional Law Case List under "Implied P{owers." Historical information on McCulloch and constitutional analyses of the cases are available on the "Constitutional History: John Marshall and American Nationalism" link under the "Third Topic." Read some of that material, too.

For each case, try to determine the following:

  1. the legal norms (statutes or actions) being challenged
  2. the specific constitutional basis or bases of the challenge
  3. the precise issue/question presented for review
  4. the hold or answer to that specific question
  5. the general rule or principle of law that the court relied upon for its holding

Note that the rule or principle will never be a clause of the constitution; it will always be a court-made interpretation or "construction" of constitutional language.

For the Class of October 16th:

We begin now to look almost exclusively at Supreme Court opinions, and the first general subject of those opinions is the constitutional powers of American governments, both federal and state. Eventually, I would like to cover three or four opinions per class, but we will start a bit slower.

On the link "Constitutional Law Case List," located directly below this link on my main webpage, are links to all of the opinions that will be assigned for the rest of the semester. They are grouped by subject matter, and then listed in rough chronological order in each group.The links are either to edited versions of the opinions that I have prepared for my courses or to the full opinions found on Findlaw.com or Justia.com.

For Friday, we will first analyze the McCardle case that I already handed out last week, and then we will turn to McCulloch v. Maryland and South Carolina v. Katzenbach, both of hwich are listed under the heading "Implied Powers" on the Constitutional Law Case List.

As before, try to determine (1) the precise legal issue/question that the decision rests upon, (2) the general rule that the court relies upon for determining its holding, and (3) the holding of the court, which is the answer to the issue/question that the court is addressing. McCulloch and Katzenbach are longer than the opinions that we have been reading thus far (McCardle is not), but the structure and contents of the opinions are exactly the same as the structure and contents of Mt. Olive and Hopkins, only there is more of it.

The exams have been graded and I will hand them back for discussion at the end of class.

For the Week of October 5th:

Mid-term on Friday. There will be forty-five or so short-answer, two-point questions of the various types that you have seen on the quizzes, and there will be three short answer five-point questions on the cases that we have studied. This means there will be approximately 105-110 possible points on the test. There will be questions from each of the five main chapters of the Primer. A larger proportion of the questions will come from the chapters on justiciability, litigation, and the Supreme Court than from the others, but there will be at least five questions from every chapter. Most of the questions, especially those based on facts and statistics, are based on material that is in the book and was also discussed in class, but some definition questions are based exclusively on material in the book that was not gone over in class. A few of the two-point questions may also be on the cases we have read. Know the definitions of the bold-face terms in the text and of the terms in the subheadings throughout the chapters. Questions about the cases will be basic questions to see (1) if you have read the case and (2) how well you followed the arguments in the courts' opinions. As always, answer as precisely and concisely as possible.

To give you an idea of what type of five-point questions will be asked about the cases, here is an example. A few years ago we read a justiciability case, Muskrat v. United States. Here is the question that was on the exam:

"In Muskrat v. United States, the Indian land act case, the Supreme Court took the unusual step of rejecting both parties' arguments and decided the case on its own basis. (1) What did both parties want the Court to decide? (2) What was the Court's actual decision? <3> What general principle did the Court rely upon for its decision?"

The question provides some descriptive background so that you can identify the case and then asks a few general questions about it. This is the format for the questions on the Mt. Olive Baptist Church, Hopkins, and West Lewinsville cases that will be on the exam.

For Tuesday, please read chapter five of the Primer and the case of Ex parte McCardle. Take a look at the Supreme Court website, too. See how many disparities you can find between chapter 5 and the newer website! The Court formally opens its October 2015 term on Monday.

For the Week of September 28th:

For Friday, please read chapter 5, pp. 115-123. We will finish the discussions of the state court systems and the West Lewinsville case, and also take any questions on chapter 4 that you might have. We will finish chapter 5 on Tuesday. Exam next Friday.

For Tuesday, please read chapter 4 of the Primer on federal and state courts. In this chapter, basic facts about the court systems are as important as definitions, but we have already covered a lot of the material on our court systems in the discussion of the different types of jurisdiction. Use the outline at the beginning of the chapter to navigate through the chapter. Depending on how far we progress on Tuesday, I may assign the first part of chapter 5 for Friday.

For the Week of September 21st:

Please read chapter 3 on Litigation in the Primer. In particular, we will be focussing on the first half of the chapter—civil and criminal cases and the basics of civil procedure. We will finish reviewing the Hopkins case.

As I indicated in class, I will move the mid-term back to the week of October 5th: Friday, October 9th seems the best date.

For the Week of September 14th:

Light reading assignment for Tuesday, but it is important stuff: (1) please read all of chapter two of the Primer and (2) please read the case I handed out in class, extra copies of which are in the rack on my office door. The chapter is your first priority; the case is the second.

Unannounced quizzes are possible at any time.

For the Week of September 7th:

For Friday, the new reading assignment is chapter two, pages 37-47.

We will first complete the discussion of the Mount Olive Baptist Church case, then we will complete the discussio of the history of English and American courts, and finally we will discuss the "Four Js" in chapter two.

For Tuesday, please read chapter one of the Primer on "A Brief History of English and American Courts." Pay close attention to the terms in boldface. Those terms, as well as key facts, will be the subject of the first exam and of the quizzes (no quiz on Tuesday!) leading up to the first exam.

Also, read the Mt. Olive Baptist Church opinion and try to determine (1) what the legal issue or question was that the court was asked to decide in this appeal, (2) what the court's answer to that question (its holding) was, and (3) what rule or principle led the court to its holding. We will be particulary concerned with the syllogistic reasoning that the court employs in applying the rule to the facts of the case in order to come to its conclusion. Chapter one should be your first priority, but you should also underline or highlight three sentences in the opinion—the court's statement of the issue, the court's holding, and the rule upon which the court relied. It is good to get together with fellow students to discuss the court opinions that we will be studying in order to determine these elements of the opinions.

Welcome to the course! Check here before every class to get the exact assignment and to access links that may be part of the assignments.

Because of the size of the class, I have decided to alter a bit the announced assignment for Friday, September 4th. Please read Appendix A (pp.143-155) and the first half of Appendix B (pp.156-160) in the Primer on American Courts. Time permitting, we will analyze an opinion in class. The assignment for next Tuesday (September 8th) will be chapter one of the Primer.

The material below is from past semesters. Take a look if you wish, but the assignments for this semester will always be at or near the top of the page.

For Tuesday, please read Baldwin v. G.A.F. Seelig, Henneford v. Silas Mason, Dean Milk Co. v. City of Madison, and the introduction to the Dormant Commerce Clause directly below.

Here is the milk case fact pattern.

We rushed over the Lopez, Gonzales, and NFIB cases last time, but in class we indicated that the Court in Lopez (Gun-Free School Zones case) indicated the Court limited federal Commerce Clause authority to commercial ("trafficking"?) activities, in Gonzales relied on Wickard, and in NFIB further limited Commerce Clause power to the regulation of activity already in existence. Go to these cases (I have edited NFIB) and find specific passages that reflect these rules in each of the cases. Remember, you cannot argue in generalities: you must base your arguments on a clear statement of a precedent rule. The NFIB v. Sebelius excerpt would be a particularly good study review for the final exam. If you have time over the Break, read the excerpt for a summary of the case law on the federal power to regulate commerce.

The Negative or Dormant Commerce Clause. States possess the "police power," the authority to provide for the health, safety, welfare, and morals of their citizens. This broad power is assumed to be part of the very purpose of government and part of what all citizens expect government to exercise on their behalf. The police power was not delegated to the national government in the 1787 constitution and so was retained by the states. It is therefore part of the powers "reserved to the States respectively, or to the people" under the Tenth Amendment. See Brown v. State of Maryland and Mayor, Aldermen, and Commonality of the City of New v. Miln for a discussion of the police power.

Like all state power, if an exercise of the police power by a state conflicts with one of the enumerated powers of the national government, the national power is supreme. Where the enumerated power has in fact been exercised by the national government in the form of a law, the federal law is said to "preempt" (invalidate) the state law. But what happens when the enumerated power has not been exercised—when it is still "dormant"? Does it still invalidate the state regulation? (See a comparable issue in bankruptcy law.)

Presumably it would if the power were possessed solely by the national government so that any exercise of it by a state would be an unconstitutional usurpation by the state. We saw in the Gibbons v. Ogden case that Chief Justice Marshall wanted very much to hold that the power to regulate the nation's commerce under the Commerce Clause was possessed exclusively by the national government, but he was unable to assemble a majority of the Court's justices to concur in that holding. In the Willson v. Black-Bird Creek Marsh case, Willson argued that the state law authorizing the company to place a dam on a navigable waterway and thus impede interstate or international commerce was invalid precisely because the state law effectively regulated commerce and the power to regulate commerce was exclusively possessed by Congress. But Marshall, in his opinion of the Court, did not accept this argument. He said, "We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." If Congress had passed a conflicting law, it would preempt the state law, but in the absence of federal legislation, "under all of the circumstances of the case," the state law was valid even though it was in fact regulating commerce.

The question in later cases became, "What does 'all the circumstances of the case' legally mean? What are the limitations, if any, upon state regulation of commerce in the absence of federal legislation—that is, when the Commerce Clause is dormant or "sleeping"? The Court attempted an answer to that question in a couple of later cases. In Mayor, Aldermen, and Commonality of the City of New York, the Court engaged in a "weighing and balancing" exercise, seeming to literally balance the "weight" of police power to regulate immigration of people into New York against the "weight" of the national power to regulate commerce. This unsatisfactory approach would have left the validity of each exercise of the police power to the case-by-case evaluation of the Court. The Court in Cooley v. Board of Wardens tried to provide a more useful and predictable standard, a standard that came to be known as the doctrine of "selective exclusivity":

"[T]he power to regulate commerce embraces a vast field containing not only many but exceedingly various subjects quite unlike in their nature, some imperatively demanding a single uniform rule operating equally on the commerce of the United States in every port and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation.

"Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress is to lose sight of the nature of the subjects of this power and to assert concerning all of them what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." (Emphasis added.)

As America's state-centered economies developed into a national economy during the latter half of the nineteenth century, the need for uniform plans of regulation grew, and the conflicts between state regulations under the police power and "national subjects" that had not yet been placed under enacted uniform plans increased, giving rise to a huge number of cases in the past eighty years. In the next few classes, we will look at some of these cases and the continuing effort of the Court to articulate reasonable limits on the states' power to regulate subjects that also affect interstate commerce.

Here's an account of that Geneva-Convention, woman-scorned, Supreme Court case, Bond v. United States, apparently heard by the court on November 5th. (I hope the husband's name was not Jimmy Bond. If it was, I'll have to rewrite the fact-pattern question for next year's exam.)

Take a look, too, at this 2011 Business Week article entitled "The Court Case Haunting Health Care" under "Special Features" on the Yahoo Finance page. This was published before the NFIB decision came down.

For the Week of November 18th:

For Friday, Wickard and Heart of Atlanta carry over from Tuesday; add United States v. Lopez, Gonzales v. Raich, NFIB v. Sebelius (which I will edit).

Three more cases for Tuesday: National Labor Relations Board v. Jones and Laughlin Steel, Wickard v. Filburn, Heart of Atlanta Motel v. United States. Plus we will identify the rules in the cases we discussed on Friday and go over the exams. A full class. Try to identify the rules—some definition of the extent of Congress's authority under the Commerce Clause—for each case, the three for Tuesday and the three we read last Friday.

For the Week of November 11th:

We will look at three more federal Commerce Clause cases in chronological, not topical, order to take us from the 19th to the 20th century: United States v. E.C. Knight, Hammer v. Dagenhart, & Stafford v. Wallace. As you read these cases, again (always!) try to identify the rules that the Court relied upon to decide the cases. Are the rules consistent with one another? Does one case follow from the other(s)? We will also review the Daniel Ball opinion to identify clearly the rule in that case.

I should have your exams back to you by Friday. Based on your responses (and non-responses) in class, several of you are reading the cases closely and picking up some of the details in the opinions. A number of you seem to have difficulty in simply determining the facts of the case—or, you are not reading the cases and relying on class discussion to provide the details you need. Read each case even if it is simply to get the story—the facts—of the case.

For the Week of November 4th:

For the Mid-Term: The exam will consist of two essay questions: one a survey question and one a fact-pattern or hypothetical question. Bring your IDs and blue or black pens.

The survey question will ask you to explain some of the constitutional doctrines that we have studied thus far by citing a half dozen or so relevant cases that we have studied and explaining the rules of those cases. To recap the course so far, we have studied the doctrines of implied powers, incidental or auxiliary powers, inherent power, treaty power, war powers, and separation of powers. Some of these doctrines were broken down further into more specific doctrines and issues: constitutional amendment enforcement powers, immunity, privilege, delegation doctrine, the legal relationships existing among treaties (self-executing and non-self executing), statutes (federal and state), executive agreements, and the constitution, and finally the appointment and removal power. Preparing a list of major doctrines that we have studied, the sub-categories of legal issues or doctrines within those major doctrines, and the particular assigned cases that represent each of the doctrines would be a good way to start preparing for the exam. It will help to prepare you for the survey question.

It will also help to prepare you for the fact-pattern question, which requires you to fit the fact pattern on the exam into one of the categories of cases that we have studied. I will include with the exam a copy of the steps for addressing fact-pattern questions that we went over in class on Tuesday and before. Keep a few things in mind: base your brief arguments on the rules of the cases that you are relying on; support your minor premises (your "Here, . . ." statements) with plausible interpretations of the facts that you are given; and above all, make the arguments of the two parties focus on exactly the same points. Students sometimes make the mistake of thinking that legal argumentation is entirely different from and unrelated to the kinds of arguments that we commonly make in everyday life: it is not. Logic is logic; rational persuasion is rational persuasion. Make sure that your arguments make sense to you, that they seem plausible to you. Don't try to make them sound like some technical jargon that you think lawyers sound like. The facts in the question will make it possible for both parties in the case to make plausible arguments.

Students generally have more than enough time to finish these exams, so you will have time to prepare a few notes or a rough outline of your answers before writing. It is a good idea to do that. For the exam, go over each of the assigned cases to refamiliarize yourself with them and to try to identify the rules of the cases, now that you have the benefit of the class discussions to help you understand the opinions.

A few cases on separation of powers for Tuesday. Try to identify the rules in the cases; we will go right to a fact-pattern question in the class discussion. Please read Humphrey's Executor v. United States, Bowsher v. Synar, and Morrison v. Olson.

Separation of Powers. We have already studied one aspect of constitutional law that is usually identified as an issue of separation of powers: the delegation doctrine, as we saw in the Hampton, Panama Refining and Curtiss-Wright cases. Another aspect appears in the appointment-removal cases, such as the Humphrey's Executor, Bowsher, and Morrison cases. The line-item veto and legislative veto cases—Clinton v. City of New York and Chadha v. INS—are also separation of powers cases. Probably the granddaddy of these cases is the 1928 case of Springer v. Philippine Islands case, often cited in later opinions.

You will notice in the more recent cases that two distinct understandings of the separation of powers and the proper relations between the branches of government are present on the Court. One, represented by Justice Scalia, calls for a strict, literal division of the branches; the other, represented by Justice Byron White, represents an understanding that calls for a more practical, working relationship between the branches. The two justices never agreed on a decision of a separation of powers case while they were both sitting on the bench.

Re: Myers v. United States, Humphrey's Executor v. United States, Bowsher v. Synar, Morrison v. Olson, Mistretta v. United States, Clinton v. City of New New York.

These cases present one of the main issues of separation of powers: the problems relating to the appointment and removal of government officials and, in particular, the nature of the officials' tasks. Myers and Humphrey's Executor set the stage for understanding the constitutional requirements for appointing and removing officials and for understanding the transition to the administrative state in twentieth century American government history. Bowsher and Morrison should be read in light of the two older cases. In each case, ask what the nature of the official's task is and what constitutional appointment and removal requirements regarding such an official are.

Particularly noteworthy are White's dissenting opinion in Bowsher and Scalia's dissent in Morrison. Justices White and Scalia seemed to be in complete dis-agreement regarding the requirements of separation of powers doctrine. Although their respective tenures on the Court overlapped only a few years (Scalia joined the Court in 1986; White left the Court after thirty-one years in 1993), they disagreed on all of the major separation of powers cases decided while they served together, and Scalia's comments about cases decided before he joined the Court indicate that he and White disagreed on those cases as well. Indeed, Scalia's resolute defense of his understanding of the constitutional principle of separation of powers makes his dissent in Clinton v. City of New York, which we shall look at next time, particularly intriguing. The dissents of both justices, in those cases in which they did dissent, provide valuable material for an understanding of the two principal approaches to separation of powers taken by the court in the twentieth century.

Three other cases (Weiss v. United States, Ryder v. United States, Edmond v. United States) examined the constitutional status of the judges on various Courts of Military Review. The Nguyen case similarly examined the status on the territorial United States District Court for the District of Guam.

For the Week of October 28th:

Knowing of the irrepressible intellectual curiosity of my students, past and present, I am sure that you will want to read the amazon.com reviews that I recommended in class. Let me first apologize. The name of the nautical classic that I referred to in class is not Big Boats but How to Avoid Huge Ships, by John W. Trimmer. An embarrassing error, but a very good read. The second recommendation was the reviews of the "Hutzler 571B Banana Slicer." No more need be said about this superb product. I began the day's proceedings with a reference to the Haribo Gummy Candy, Sugarless Gummy Bears, 5-Pound Bag, a somewhat controversial favorite.

The cases for Friday are the "war powers" cases of Youngstown Sheet and Tube, carried over from Tuesday, Korematsu v. United States, and Hamdi v. Rumsfeld.

War powers. The Youngstown, Preciat (Prize Cases), Hirabayashi, and Korematsu cases, as well as the post 9/11 cases of Hamdi, Hamdan, Rasul, & Boumedienne cases are often referred to as "war powers" cases, even though they present other significant issues as well. The overarching issue running through the older cases is the question of whether the defense of national survival justifies violations of the letter of the Constitution, particularly violations of the constitutional rights of individuals. Questions arising out of disagreements between the Congress and the President are usually treated as non-justiciable political questions (see, for example, Dellums v. Bush).

Three cases for Monday: Reid v. Covert, Dames and Moore v. Regan, and Youngstown Sheet and Tube v. Sawyer. The first two are executive agreement cases that will complete our survey of treaties and executive agreements; the third case is one of the most famous cases on the scope of executive war powers. Pay particular attention in the Youngstown Sheet and Tube case to Justice Jackson's concurring opinion.

Take this occasion to review the cases assigned for this past Friday, if you did not get through all of them. You must get clear on the rules of these cases and the distinctions that they make between the various norms of international agreements and domestic law.

On Friday, we will pursue the war powers of the national government in The Prize Cases, Korematsu v. United States, and one of the Bush-era enemy combatant cases.

For the Week of October 21st:

The general question that we will address on Friday is the legal relationship between treaties, federal statutes, exective agreements, and the Constitution. There is a definite hierarchy among these four different norms. We will cover as much ground as possible, but since I can only ask you to read four cases at most, the assignment will leave some gaps. I am going to assign four cases and suggest that you consult a few others. Thus, this assignment is a bit different from the others. It includes some research for you to do.

We must begin with Missouri v. Holland, one of the most controversial treaty cases ever decided. What were the relevant norms in the case (this is the key!). According to Justice Holmes, what is the correct relation between the Constitution, treaties, and federal statutes? What norm was being challenged by Missouri? On the relation of the Constitution to treaties, consult the Cherokee Tobacco case, as edited on the Constitutional Law Case List. Did Justice Holmes clearly follow this precedent?

Staying with treaties, read Cook v. United States, called the Mazel Tov case. What norms were in conflict? What rule was applied to resolve the conflict? The nineteenth century Head Money Cases, and Whitney v. Robertson provide precedent for this rule. You may want to consult them (the edited versions) if you have trouble with the Mazel Tov case.

But wait! Does the rule in Mazel Tov apply to all conflicts between treaties and other norms? Check out the Sei Fujii v. California case. Why didn't the treaty trump the state law? I thought supremacy of treaties over state laws was a no brainer! What distinction did the court rely upon to distinguish the Sei Fujii case from the usual Supremacy Clause cases, such as McCulloch, City of Boerne or even Missouri v. Holland? You might want to consult Foster v. Neilson on this matter, but the language of Foster is that early nineteenth century rhetoric of Chief Justice Marshall and takes a little effort to get through.

Finally, if you are still with me, we get back to executive agreements and the relation of executive agreements to federal statutes in United States v. Guy Capps, a Court of Appeals case that has served as lasting precedent. What norms were in conflict? What rule did the Court use to resolve the conflict? Can we conclude that executive agreements and treaties are functionally equivalent or are there significant legal differences between them?

Get through as much of this as you can. I will expect answers—preferably written, though not to be handed in—to the questions I ask above. Semester schedule constraints will determine how much we can get into this subject and the related subjects of executive power and war power. Maybe we can move the mid-term back one class to accommodate a couple more cases if you are interested. In any event, I will try to cover all four assigned cases in class.

Tuesday: The J.W. Hampton case is a good place to start tracking two lines of cases: "inherent" power cases and separation of powers cases. Within the general category of separation of powers is a subset of cases denominated "delegation doctrine" cases, of which J.W. Hamption, A.L.A. Schechter, and Panama Refining are the three that are usually mentioned. Curtiss-Wright Export v. United States is also a delegation doctrine case, but it provided Justice Sutherland with the opportunity to present his (and the Court's) doctrine of inherent power or [Hobbesian] sovereignty. One aspect of a nation's inherent power or sovereignty is its capacity to enter into agreements with other countries in the form of treaties or "executive agreements." For Tuesday, we will study three cases: Panama Refining Co. v. Ryan, a delegation doctrine case, Curtiss-Wright Export v. United States, a delegation doctrine-inherent power case, and United States v. Belmont, an executive agreement case. On Friday we will look further into executive agreements and treaties.

As you read Panama Refining, try to determine the rule and the reason that the statute in Panama Refining allegedly violated the rule. As you read Curtiss-Wright, ask what the issue was in the case and why the outcome was not the same as the outcome in the Panama Refining case. In the Belmont case, pay particular attention to the issue, the rule applied, and the rationale for that rule, as argued by the good Justice Sutherland (and Chief Justice Stone). Read the versions as edited on the Constitutional Law Case List.

For the Class of Friday, October 18th:

For Friday, we will review the two executive immunity cases, Nixon v. Fitzgerald and Harlow v. Fitzgerald, to round the circle of immunity-privilege cases. We will also study J.W. Hampton v. United States, a case that will help to set us up for the doctrines of inherent power, separation of powers, and the treaty power, which will complete our look at the constitutional powers of federal government. The three cases for Friday are edited and linked in the Constitutional Law Case List.

For the Week of October 7th:

I do apologize for posting this so late. I thought that I had posted the week's cases, but when I just reviewed it, I saw that I had not, so I will keep it to two privileges and immunities cases. In class, we will begin to work on hypothetical or "fact-pattern" questions, such as the ones that will be on the remaining two exams. Please read the assigned cases, because familiarity with the rules of those cases is essential to the fact pattern question.

Please read Gravel v. United Statesand United States v. Nixon, as edited on the Constitutional Law Case List. As an introduction to the issues of privilege and immunity, read the following:

Privilege and Immunity. These cases are about privilege and about immunity. Privilege is the right to withhold information from a government agency; that is, it is the right of someone who would otherwise have a duty to provide information to a government official (judge, congressional committee, prosecutor) to withhold information from that official. (The official may be said to have a right to obtain the information.) The party with the duty to provide evidence is often a party to, or a witness in, litigation or a witness before a congressional committee or subcommittee. The roots of executive privilege go back to George Washington’s refusal to give the House of Representatives information about his instructions to John Jay that led to the Jay Treaty with England. Privilege excepts one from the duty to testify. Typically, privilege will be asserted when the information is demanded of the witness at trial or in a congressional hearing, or when challenging (moving to quash) a subpoena that requires the witness to appear and be questioned or to appear and bring materials (a subpoena duces tecum—"dukas teekum") on the grounds that the information sought is privileged. Thus, a criminal defendant has the right not to answer questions about whether he committed the crime—the Fifth Amendment privilege against self-incrimination. There are many other forms or rules of privilege as well, but they are all narrowly construed by the courts because they run counter to the adjudication policy of full and open inquiry into the truth.

Privilege at law should not be confused with immunity. Immunity is protection from liability, either criminal or civil, and again, there are a number of different rules of immunity. If someone has immunity, that individual cannot be prosecuted or sued. The breadth of an individual's immunity may vary; that is, an individual may be immune from suit or liability for one or two causes of action arising out of a particular transaction or may be immune from liability for any suit arising out of the transaction.

Having immunity does not entail having privilege, and vice versa. Thus a criminal suspect who does not have to answer questions about whether he committed the crime (5th Amendment privilege) may still be convicted of the crime on the evidence of others (no immunity). Likewise, one might have immunity from suit but still be required to provide information about the underlying transaction.

Which of these situations applies to the figures in the assigned cases? That is, which cases involve immunity, which cases involve privilege, and which cases involve both? What are the rules of privilege or immunity that the court relies upon in each case? What is the rationale for each rule? Underline or highlight the rule(s) that you identify for each case.

Three new cases for Tuesday: please read City of Boerne v. Flores, McGrain v. Daugherty, and In re Neagle (also known as Cunningham v. Neagle). Follow the excerpting directions on the Constitutional Law Case List.

As I indicated for City of Boerne, what is the rule in this case? How does it differ from the rule in Katzenbach (or in McCulloch) that we discussed on Friday?

Incidental or Auxiliary Powers. McGrain and Neagle, together with Young v. United States ex rel Vuitton et Fils, discuss what may be called "incidental" or "auxiliary," as opposed to "implied" or "inherent" powers of government institutions—the Congress, the executive, and the courts. The rationale for these powers is similar to the McCulloch rationale for implied powers, but the term "implied powers" is usually applied specifically to the powers of Congress under the Necessary and Proper Clause of the Constitution. "Inherent power" has come to refer to the doctrine of the sovereign powers of our national government and any national government as explained by Justice Sutherland in his majority opinion in Curtiss-Wright. By contrast, incidental powers relate to what the institution (Congress, the President, the courts) can do in order to perform its basic function—legislating, executing the laws, or adjudicating, respectively. It may do that which is necessary and appropriate to perform its constitutional function.

I hope the exam was not too bad. I'll try to get them back to you by next Tuesday at the latest.

We now begin the main part of the course: studying Supreme court opinions that interpret the constitutional language on governmental powers and, in the last month of the course, the Commerce Clause. I am assigning two cases for Friday: McCulloch v. Maryland, and South Carolina v. Katzenbach. All of these cases (and the cases we will read throughout the rest of the semester) are on the Constitutional Law Case List. Some, like the two cases for Friday, are directly linked to excerpts that I have put together. Even for the cases on the Constitutional Law Case List, I have edited many of the cases so that you do not have to read the whole opinion. The pages you must read are indicated in the Constitutional Law Case List citations of the assigned cases. If no particular pages are indicated, then the whole opinion is assigned.

We will work towards briefing the opinions, so please read the Appendix B of the primer on "Analyzing Opinions and Briefing Cases." For now, simply identify in each case what the main issue or question is, what the Court's answer (holding) to the question is, and what rule the Court relies upon to support its holding. In all of the cases, the constitutionality of a governmental law or action is being challenged: we need to identify specifically what the challenge is. That is, (1) identify what laws or actions are being challenged and (2) identify what particular constitutional provision is cited as the basis of the challenge. I will ask you questions about these issues in class, so be prepared to answer. You should be familiar also with the basic facts of each case. As you read the opinions, underline or highlight the passages that you identify as the issue, the holding, and the rule of the case. We will work on this throughout the semester.

In these two cases, ask yourself whether the issue and rule in the South Carolina case is the same or different from the issue and rule in McCulloch. When we study City of Boerne v. Flores next Tuesday, ask how the City of Boerne rule differs from the rules of one or both of these earlier cases?

Implied Powers. The implied powers doctrine is usually identified with the famous passage in McCulloch v. Maryland that begins "Let the end be legitimate . . . ." This tripartite end-means-no prohibition reasoning has also been used in other contexts, for instance, in determining the scope of congressional authority to enforce constitutional amendments under their enforcement clauses (South Carolina v. Katzenbach, but see City of Boerne v. Flores), the scope of state authority to implement their police powers (Jacobson v. Massachusetts), and the authority of the three branches of our national government to engage in un-enumerated actions that are necessary to perform their overall constitutional functions (the so-called "incidental or auxiliary powers" presented in the next assignment).

Mid-term on Tuesday. There will be forty-five or so short-answer, two-point questions of the various types that you have seen on the quizzes, and there will be four short answer five-point questions on the cases that we have studied. This means there will be approximately 110 possible points on the test. There will be questions from each of the five main chapters of the Primer. A larger proportion of the questions will come from the chapters on justiciability, litigation, and the Supreme Court than from the others, but there will be at least five questions from every chapter. Most of the questions, especially those based on facts and statistics, are based on material that is in the book and was also discussed in class, but some definition questions are based exclusively on material in the book that was not gone over in class. A few of the two-point questions will also be on the cases we have read. Know the definitions of the bold-face terms in the text and of the terms in the subheadings throughout the chapters. Questions about the cases will be basic questions to see (1) if you have read the case and (2) how well you followed the arguments in the courts' opinions. As always, answer as precisely and concisely as possible.

To give you an idea of what type of five-point questions will be asked about the cases, here is an example. A few years ago we read a justiciability case, Muskrat v. United States. Here is the question that was on the exam:

"In Muskrat v. United States, the Indian land act case, the Supreme Court took the unusual step of rejecting both parties' arguments and decided the case on its own basis. (1) What did both parties want tothe Court to decide? (2) What was the Court's actual decision? <3> What general principle did the Court rely upon for its decision?"

This question provides some background so that you can identify the case and then asks a few general questions about it. This is the format for the questions on Marbury, McCardle, Cooper, and West Lewinsville that will be on the exam.

For the Week of September 23:

On Friday we will complete discussion of chapter five and Marbury and also discuss Cooper v. Aaron. Exam is Tuesday. Please do yourself and me a favor and study the vocabulary in the primer very closely.

Please read chapter 5 of the primer on the Supreme Court and Marbury v. Madison, via either this link or the link on the Constitutional Law Case List. I'll try to get to Cooper v. Aaron on Friday. Again, ask for each case: who won? why did he win; that is, what was the legal issue that determined the winner of the case? Try to determine the legal question that the Court answer (this answer is the holding of the case) as precisely as possible.

For the Week of September 16th:

On Tuesday, we will finish discussing the litigation chapter, focussing on civil trials and on the appellate process. We will also discuss the case of Ex parte McCardle. In McCardle, ask the usual questions: who won? what was the legal question or issue that determined who won the case? Try to state that issue as precisely and specifically as you can.

On Friday, and only on Friday, we will look at the various courts described in chapter 4 of the text. Next Tuesday, we will look at the chapter on the Supreme Court.

For the Week of September 9th:

Tuesday's class (September 10th) is cancelled. My Western Political Concepts class as 11:00am is NOT cancelled.

We will devote the next two classes (Friday and next Tuesday (September 17th)) to chapter 3 of the primer on the litigation process, particularly the civil litigation process (as opposed to the criminal) because most of our cases this semester will be civil cases. Pay close attention to the discussions on summary judgments and appellate procedure. Appellate procedure is, by the way, the same for criminal as for civil cases. The next case we will read is Ex parte McCardle, but we will not look at that case until we spend one whole class on litigation. You can find Ex parte McCardle on the Constitutional Law Case List link, or better yet, go to the library over the next week or so and find it in the Lawyers' Edition. Good practice.

You should also take a look at the Appendix in the primer on analyzing and briefing cases. We will be focusing on the precise legal issues that the courts address in the cases this Fall. For example, in the soccer field case, what was the precise issue upon which the outcome (the decision) of the rested? Was it whether the 30 period for appealing BZA decisions to circuit court begins to run on the date the decision is made or the date which the Deputy Clerk indicated was the "final decision date"? What was the reasoning of the court in answering this question? What rule did the Court use to answer this issue?

Assignments for the Week of September 2d:

For Tuesday, please read chapter 2 of the primer on the "four Js." I suggest that you outline the chapter. There is a lot of vocabulary to learn in this chapter, so don't simply read it and expect to remember the material.

For Friday, we will finish whatever material we did not cover in chapter 2, perhaps have a quiz, and discuss the Marymount soccer field case, West Lewinsville Heights Citizens Association v. Board of Supervisors, 270 Va. 259, 618 S.E.2d 311 (2005).

This case began when Marymount was looking for a local field on which to play its soccer and lacrosse games. It struck a deal with Fairfax County to partially finance the upgrading of an existing field in the West Lewinsville Heights section of Fairfax County (in McLean). The local neighborhood associations vigorously opposed the plan and challenged it before the Fairfax County zoning authorities. The case went from there to the courts.

Consider the following questions as you read the case:

  1. Did the Virginia Supreme Court specifically decide whether Marymount may or may not play its games on the West Lewinsville field?
  2. What two issues did the Virginia Supreme Court agree to review?
  3. Which issue determined who won the case before the Virginia Supreme Court?
  4. What was the Court's ruling on that issue?
  5. What did the winning party win in the Virginia Supreme Court judgment?
  6. What did the losing party lose?

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For the class of Friday, August 30:

I checked with the bookstore after class on Tuesday and saw that they had received the books. I touched them with my very own hands!! So the assignment for Friday is definitely chapter 1 of the Primer on American Courts.

Just to reconfirm the preceding statement: the books are in the bookstore so chapter one of the primer is the assignment.

Assignments from last semester: Disregard this unless you want to see what the typical assignments are:

For class, please complete the "Truck Case" hypothetical that we were working on at the end of class. We will discuss it, then I will collect them and be able to give you some individual feedback on Friday.

For Tuesday, we will read a couple of milk cases—Baldwin v. Seelig & Dean Milk v. City of Madison—and one of the most cited Dormant Commerce Clause cases, Pike v. Bruce Church.

We will finish out the semester on Friday with Hughes v. Oklahoma, Maine v. Taylor, & Reeves v. Stake, minnows and cement. What better way to end the course. Maryland anti-Spam Statute; West Lynn Creamery fact pattern.

Although the semester is almost over, the cases we discuss this week are very important, so don't let up.

For the Week of November 26th:

Please read South Carolina State Highway Department v. Barnwell Bros., Southern Pacific v. Arizona, Bibb v. Navajo Freightlines for Friday. Read the following, also.

Please read some of the cases that marked the turn to a broader view of the Commerce Clause . . . and its limits: Wickard v. Filburn, Heart of Atlanta Hotel v. United States, United States v. Lopez. (The Katzenbach v. McClung case goes with the Heart of Atlanta Motel and Daniel v. Paul cases to form a nice little trilogy, if only we had the time.)

Please read Hammer v. Dagenhart [Child Labor Case], Bailey v. Drexel Furniture Co. [Child Labor Tax Case], and National Labor Relations Board v. Jones and Laughlin Steel. Try to identify the rules in these cases, as well as the rules in the Stafford and Shreveport Rate cases that we discussed on Friday.

For Friday, November 16th, please read two of the earlier cases that contributed to an expansive view of national power under the Commerce Clause and one case that reflected a much narrower view of the national power to regulate commerce: Houston, East and West Texas Railway Co. [The Shreveport Rate Case], Stafford v. Wallace, and United States v. E.C. Knight.

Commerce Clause: Powers of the National Government. We begin the last third of the semester examining the source of most federal legislation in the United States: the Commerce Clause. The Clause is deceptively simple: "The Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Art. I, Sec. 8, Cl. 3. Practically each word in this clause had to be interpreted and led to significant consequences. The question of whether the power to regulate commerce resided exclusively in the national government or whether the states also possessed authority to regulate commerce was a significant issue debated by nationalists and champions of states' rights. The benchmark case to begin our study on Tuesday is Gibbons v. Ogden, in which the Federalist-nationalist majority on the Court sought to maximize national authority under the Clause. Is the regulatory power exclusively possessed by the national government? The subsequent cases of Willson and The Daniel Ball reflect the limits to national power that the Court was forced to acknowledge. Please read Gibbons, Willson v. Black-Bird Creek Marsh Co., The Daniel Ball.

On Friday and next Tuesday we will follow the meandering course of the development of the national Commerce Clause power. The nineteenth century witnessed the early attempts by Congress to regulate aspects of commerce in America's still largely agricultural economy. During the latter part of the nineteenth and the early twentieth century, however, Congress attempted to regulate more and more of the increasingly industrial national economy. The Court's interpretation of the Commerce Clause in certain cases was more narrow and restrictive of national power, culminating in several famous decisions that invalidated New Deal legislation intended to deal with the Great Depression. In 1937, President Roosevelt proposed his "court-packing plan" in the form of the Judicial Procedures Reform Bill of 1937, which was not enthusiastically received, even by many Democrats. The bill proposed allowing the President to appoint one new, younger judge for each Supreme Court justice who did not retire or resign within six months after reaching the age of 70 years, up to a limit of fifteen Supreme Court justices. (The bill also allowed up to forty additional lower federal judges to replace older judges.) Fortunately for Roosevelt, one of the nine old men on the Court, Mr. Justice Roberts of Pennsylvania, had a change of heart regarding the scope of the Commerce Clause and thus the federal government's power to regulate the economy, and his "switch-in-time . . . saved nine," namely the nine-member Supreme Court structure that had existed since 1869.

On Tuesday, we look at two more of the cases in which the Court applied a narrower view of the national Commerce Clause power and the case that reversed that line of cases once and for all: Hammer v. Dagenhart [Child Labor Case], Bailey v. Drexel Furniture Co. [Child Labor Tax Case], and National Labor Relations Board v. Jones and Laughlin Steel.

The E.C. Knight, Hammer v. Dagenhart, Bailey v. Drexel Furniture, Adkins v. Children's Hospital, and Carter v. Carter Coal cases, which applied a restrictive interpretation of the Commerce Clause power of the national government, were decided before, during, and after the Court was also upholding a broad Commerce Clause power in other cases. In other words, they do not constitute a particularly distinct "era" of constitutional history. Yet they do distinguish the first third of the Twentieth Century from the rest of American judicial history. Note how the Court in these cases both relied on and departed from the broad principles of Gibbons v. Ogden. Note also how the Court distinguished "commerce" from mining, manufacturing, and production generally. The Court also distinguished activity which had a direct effect on commerce (which activity was regulable by Congress) from that which only had an indirect effect (which was not regulable by Congress).

That the Court, or a majority of its justices, in these national Commerce Clause power cases was approaching them with a particular attitude about the proper relationship between business and government regulation of business is clear when we also consider cases in which state governments tried to enact the same kine of regulations that the federal government was enacting—regulations regarding wages, hours, and working conditions and labor union membership. The argument that often succeeded in persuading the Court to strike down the state legislation was the "freedom of contract" or "liberty to contract" argument (not to be confused with the Contract Clause of Art. I, Sec. 10 of the Constitution) identified with the Lochner v. New York case. The switch in time of 1937 that saw the Court take a fundamentally different approach to the national Commerce Clause power also marked a fundamental change toward the constitutional doctrine of freedom of contract.

For the Week of November 5th:

The mid-term is on Friday. For Tuesday, three famous cases: The Prize Cases, Korematsu v. United States, Youngstown Sheet and Tube v. Sawyer. All deal with the "war power." Edited versions of each are on the case list. Another relevvant emergency powers case in light of hte recent economic crisis is Home Building and Loan v. Blaisdell. Again, try to identify the rule in the case, along with the issue/question and the holding (answer to the issue).

For the Week of October 29th, Weather Permitting:

For Tuesday, please read the edited versions of United States v. Belmont, and Reid v. Covert. If Tuesday's class is cancelled, add Missouri v. Holland. We must also look at the war powers and emergency powers of government before the next exam.

For the Week of October 22d:

Three cases for Friday: J.W. Hampton v. United States, Panama Refining v. Ryan, Curtiss-Wright Export Corp. v. United States. In the first two cases, identify the rules in the cases, write/type them, and hand them in. This is a graded assignment. The rules will either be quotes from the opinions, paraphrases, or statements in your own words. All the cases are available, with the edited page numbers, on the Constitutional Law Case List.

Separation of Powers. These cases might seem at first to cover two different topics—delegation doctrine and executive agreements—but, as cases often are, they are tied together in non-obvious ways.

The J.W. Hampton case introduces us to the judicial separation of powers doctrine through one of its aspects: delegation doctrine. What power did Congress delegate to the President in the Tariff Act? What was the challenge? Specifically what is the rule regarding what Congress may and may not delegate to the President?

What was wrong with the delegation in the Panama Refining case? What did Congress do in the statute in the case? What rule did the Court apply?

The famous Curtiss-Wright case is also a delegation doctrine case, but it provided Justice Sutherland with the opportunity to articulate his doctrine of inherent power or sovereignty. The term "inherent power," when used narrowly as a label for a specific constitutional doctrine, apples to this doctrine of sovereignty. Was the delegation by Congress valid in this case? Why or why not?

Much better participation today (Friday)! Let me give you two new cases on privilege and immunity instead of one. These two go together, anyway: Nixon v. Fitzgerald and Harlow v. Fitzgerald, both available with editing notes on the Constitutional Law Case List link. Try to determine if and how the rules for executive branch officials in these cases differ from the rules for legislative branch officials set forth in Gravel. I will bring in a hypothetical that presents a judicial branch fact pattern. Again, review the material on "Fact Pattern Questions" on the link just below the "Constitutional Law Case List" link.

For the Week of October 15th:

On Friday we will begin class by discussing the fact pattern that I handed out on Tuesday. Please review the material on the link, "Fact Pattern Questions," which is immediately below the link to the Constitutional Law Case List. (Each remaining exam will have at least one fact pattern question and one survey question.) The two new cases for Friday are the privilege and immunity cases Gravel v. United States and United States v. Nixon. As I indicated on Tuesday, I will call on individual students—not volunteers—to identify the constitutional issues, the Court's holdings, and the rules or principles relied upon by the Court as we have been doing the past few classes.

Privilege and Immunity. These cases are about privilege and about immunity. Privilege is the right to withhold information from a government agency; that is, it is the right of someone who would otherwise have a duty to provide information to a government official (judge, congressional committee, prosecutor) to withhold information from that official. (The official may be said to have a right to obtain the information.) The party with the duty to provide evidence is often a party to, or a witness in, litigation or a witness before a congressional committee or subcommittee. The roots of executive privilege go back to George Washington’s refusal to give the House of Representatives information about his instructions to John Jay that led to the Jay Treaty with England. Privilege excepts one from the duty to testify. Typically, privilege will be asserted when the information is demanded of the witness at trial or in a congressional hearing, or when challenging (moving to quash) a subpoena that requires the witness to appear and be questioned or to appear and bring materials (a subpoena duces tecum—"dukas teekum") on the grounds that the information sought is privileged. Thus, a criminal defendant has the right not to answer questions about whether he committed the crime—the Fifth Amendment privilege against self-incrimination. There are many other forms or rules of privilege as well, but they are all narrowly construed by the courts because they run counter to the adjudication policy of full and open inquiry into the truth.

Privilege at law should not be confused with immunity. Immunity is protection from liability, either criminal or civil, and again, there are a number of different rules of immunity. If someone has immunity, that individual cannot be prosecuted or sued. The breadth of an individual's immunity may vary; that is, an individual may be immune from suit or liability for one or two causes of action arising out of a particular transaction or may be immune from liability for any suit arising out of the transaction.

Having immunity does not entail having privilege, and vice versa. Thus a criminal suspect who does not have to answer questions about whether he committed the crime (5th Amendment privilege) may still be convicted of the crime on the evidence of others (no immunity). Likewise, one might have immunity from suit but still be required to provide information about the underlying transaction.

Which of these situations applies to the figures in the assigned cases? That is, which cases involve immunity, which cases involve privilege, and which cases involve both? What are the rules of privilege or immunity that the court relies upon in each case? What is the rationale for each rule? Underline or highlight the rule(s) that you identify for each case.

Just two new cases on Incidental Powers for Tuesday: please read McGrain v. Daugherty, and In re Neagle (also known as Cunningham v. Neagle). Follow the excerpting directions on the Constitutional Law Case List.

A couple of reminders from the last class:

    If called on, you should be prepared to tell me:
  1. What norms—state or federal statutes, regulations, treaties, governmental actions, but never clauses of the Constitution—are being challenged?
  2. In this course, the basis of the challenge is always that the "statute is unconstitutional." That is too general. Try to determine the specific provision of the constitution that the statute or other norm is allegedly violating. This is a good indication of the "issue" or "question" in the case. Thus, in the Katzenbach case, South Carolina challenged the Voting Rights Act of 1965 (a federal statute) as exceeding the powers of Congress under the enforcement clause of the Fifteenth Amendment. State this as a question: "Whether Congress exceeded its power under the Enforcement Clause of the Fifteenth Amendment in enacting the Voting Rights Act of 1965?" This is specific enough a statement at this point in the course.
  3. What was the Court's answer to the challenge? This is the Court's "holding." ("The court in Katzenbach held that Congress did not exceed its authority under the Enforcement Clause.")
  4. What rule or principle or test did the Court rely upon as the basis for its holding? This is our ultimate goal in all our cases. The rules/principles/tests are what the exams will focus upon. Thus, in Katzenbach, a statement of the rule may be something like "Congress may use any rational means to effectuate the Fifteenth Amendment's constitutional prohibition of racial discrimination in voting." The Court opinion offers alternative statements of the rule, but this statement is fine. Add to it the minor premise—"The provisions of the Voting Rights Act are reasonable means"—and you have the Court's rationale for its decision.
  5. If you have trouble getting into the Court's argument, you might ask yourself, "Who sued whom in this case?" "Who won the case?" "Why did that party win?" These preliminary questions my help get you oriented to what is going on in the litigation.
  6. Keep working on the cases; you will get better at understanding them. In class, don't try to quietly soak up the information. You have to participate and make a few mistakes to get into material. If there is no class participation in the discussion of a case, I will simply move on, but you can be sure that the case will be on the next exam.

For the Week of October 1st:

Mid-term on Friday. There will be forty-five or so short-answer, two-point questions of the various types that you have seen on the quizzes, and there will be four short answer five-point questions on the cases that we have studied. This means there will be approximately 110 possible points on the test. There will be questions from each of the five main chapters of the Primer. A larger proportion of the questions will come from the chapters on justiciability and litigation (chs. 2 & 3) than from the others, but there will be at least five questions from every chapter. Most of the questions, especially those based on facts and statistics, are based on material that is in the book and was also discussed in class, but some definition questions are based exclusively on material in the book that was not gone over in class. A few of the two-point questions will also be on the cases we have read. Know the definitions of the bold-face terms in the text and of the terms in the subheadings throughout the chapters. Questions about the cases will be basic questions to see (1) if you have read the case and (2) how well you followed the arguments in the courts' opinions. As always, answer as precisely and concisely as possible.

In a previous version of the mid-term from a few years ago, there was this question:

In West Lewinsville Heights v. Board of Supervisors, the Marymount soccer case, (1) why didn't the court determine whether the Board of Zoning Appeals made the right decision about Marymount's right to use the field? (2) What issue did the Virginia Supreme Court decide?

A good answer to the two-part question would be something like this:

The Virginia Supreme Court did not address the correctness of the Board of Zoning Appeals (BZA) decision because the court determined that the appeal was filed too late. The issue that the Virginia Supreme Court did address was whether the Fairfax Circuit Court was correct when it ruled that the 30-day period for appealling a BZA decision to the Circuit Court began to run on the date cited in the BZA notification letter to counsel (the date the appellants followed) rather than on the earlier date of the actual meeting at which the BZA made its decision. The Supreme Court ruled that the Circuit Court erred: the 30-day period runs from the actual meeting date, not the later date in the letter, and the Board of Supervisors had therefore filed their appeal too late.

This is the kind of question that will be asked of four of the other case—not this soccer case—that we read for class.

Study hard and good luck.

Please read chapter five of the Primeron the Supreme Court for Tuesday. Mid-term on Friday.

For the Week of September 24th:

Please read the chapter on "litigation" in the Primer. I will not assign a case for Tuesday, but will assign Marbury v. Madison, 5 U.S. (1 Cranch) 37 (1803), for Friday.

Please finish the chapter on litigation for Friday. We will also review Marbury v. Madison. For next Tuesday please read chapter 5 on the Supreme Court. Mid-term is next Friday, October 5th. At this point in the semester, the vocabulary and facts about the American legal systems that we have been studying in the Primer should be your main priority; the cases are secondary. Tuesday's quiz results were terrible. Re-double your efforts on the assigned readings. "A word to the wise . . . ."

For the Week of September 17th:

Please come to the Constitution Day luncheon in the main cafeteria at noon on Wednesday, September 19th. Free food and a good speaker. Eat a little, learn a lot.

For Friday, please read the rest of chapter 4 of the Primer on state courts. Try your luck at Allen v. Wright. You do not ahve to read the whole opinion: read just the pages indicated after the citation on the "Constitutional Law Case List" link. You must get used to using the edited versions of the cases on the list. Thus, for Allen, read pages 739 to 747, 750 to 762, and so on. The page numbers are in brackets in the body of the text.

Please read pages 85 to 103 of the Primer on federal courts. Also, take this opportunity to review the material that we went over last week in chapter 2. The case I would like you to read is a difficult one: Muskrat v. United States, 219 U.S. 346 (1911). What is the issue in the case? Who won? Who lost? Why? The opinion is not a long one, but you must read it closely to get at the issue, holding, and rule of the case. Again, review Appendix B of the Primer to help you analyze the argument in the opinion.

For the Week of September 10th:

Please read (1) chapter 2 of the Primer and (2) Dayton v. Hanson, 550 U.S. 511 (2007). We will cover the Dayton case and about half the chapter on Tuesday. For Friday, we will cover the rest of the chapter and also Ex parte McCardle, 74 U.S. 506 (1868), so read that one for Friday.

Now that we are all settled in for the semester, I will start giving quizzes to prepare you for the first exam. The quizzes will count, but will also be in the format of many of the questions on the first exam. The quizzes will only be given at the beginning of class and cannot be taken late, so try to get to class on time.

Also, bring hard copies of the cases with you. No case = unexcused absence.

For Friday, September 7th:

We will finish chapter one of the Primer and there will probably be a short quiz. Don't be late!

We will also discuss the Marymount soccer field case, West Lewinsville Heights, linked below. Who won the case? Why? What issue/question/problem led the Court to decide the case? What was the holding or answer to that key legal issue? The Appendix of the Primer discussing the analysis and briefing of court opinions should help you understand the structure of the Court's argument. Take a look at it.

For Tuesday, September 4th:

The assignment is a reading assignment and a written assignment to be handed in:

Find the name of case whose citation is 268 U.S. 562. Write down the name of the case (So-and-so v. So-and-so), when it was decided, and what court decided it and hand this in on Tuesday at the beginning of class.

Please read chapter one of the Primer on the history of the Anglo-American common law court system. You may also look up and read the first case of the year: West Lewinsville Heights Citizens Association, et al v. Board of Supervisors of Fairfax County.

For Friday, August 31st:

To get the course started, please read Appendix A in the Primer on "Finding and Citing Legal Sources." If there is time remaining in class, we will begin on the material in the first chapter of the Primer: the English history of the common law. You may want to start on Chapter One for Friday; the assignment for next Tuesday's class will be all of Chapter One.

The material below is from past semesters. I will clear a lot of it out in the next week or two, but you may want to look over it to see what to expect this semester.

For the 2011 Final:

The first part will be one survey question and one fact-pattern question on the Commerce Clause material that we have studied since the last mid-term. The second part will be one or two questions, fact-pattern and/or survey, on all of the cases that we have studied this year, including the cases on justiciability—standing to sue, jurisdiction, and so on—that we read early on. The questions will not be about the material in the Primer, although you may want to review the material about justiciability if you are rusty on it. I will give you some choice of questions in the second part of the exam.

Assignment for the Week of December 5th:

Please read Edwards v. California, Baldwin v. Fish and Game Commission of Montana, Reeves v. Stake. The first two cases reflect the close connection between Dormant Commerce Clause law and Fourteenth Amendment Privileges and Immunities Clause law. The Baldwin case should be compared with either Hughes v. Oklahoma or Maine v. Taylor. What common features do these three cases have?

Under the Dormant Commerce Clause, some students have drawn a distinction between cases in which a state seeks to discourage export of its products or resources to other states and cases in which the state discourages importation of products or resources into the state. The two minnow cases—Maine v. Taylor and Hughes v. Oklahoma—are examples of this, as are some of the milk regulation cases (contrast Baldwin v. Seelig to Hood v. DuMond, known to you as the "Smith and Smith Co." case).

The third assigned case (not counting either Maine or Hughes, which I am also asking you to review) is a further wrinkle in the Dormant Commerce Clause-State police powers tension that we have been looking at the last two classes. Reeves, following an earlier case—Hughes v. Alexandria Scrap—adds another factor to consider when determining whether a state law violates the Commerce Clause. What is it? Suppose the Smith and Smith Co. milk firm was an agency of the New York government. Different result in the outcome?

Tuesday's class will be based on the handout, "A Milk Case," that I handed out. (Yasin: a copy is in the rack on my office door.) Please read the following cases as background: Baldwin v. Seelig, Dean Milk v. City of Madison, Henneford v. Silas Mason, Great Atlantic and Pacific Tea Co. v. Cottrell. These are all milk cases (there are others cited in the list of cases) that may be relevant to your argument. I also want you to read Pike v. Bruce Church, one of the most cited cases for the general rules applying to Dormant Commerce Clause cases. Though it is not a milk case, it may be useful.

In preparing for next Tuesday's exam, I want to assign the cases that we need for the exam and make sure that each of the topics that we discussed is represented adequately by court opinions; thus, the cases for this week cover a wide area. Please read the following cases for this week at the usual rate of three per class. We will discuss them in the same order. (We will begin on Tuesday with the previously assigned Youngstown or "Steel Seizure" case.

  1. Preciat et al v. United States (war powers).
  2. Korematsu v. United States (war powers).
  3. United States v. Guy Capps (executive agreement).
  4. Sei Fujii v. California (treaty power).
  5. Humphrey's Executor v. United States (removal power).
  6. Bowsher v. Synar (removal power).

We have already studied one aspect of constitutional law that is usually identified as an issue of separation of powers: the delegation doctrine, as we saw in the Hampton, Panama Refining and Curtiss-Wright cases. Another aspect appears in the appointment-removal cases, such as the Humphrey's Executor, Bowsher, and Morrison cases. The line-item veto and legislative veto cases—Clinton v. City of New York and Chadha v. INS—are also separation of powers cases. Probably the granddaddy of these cases is the 1928 case of Springer v. Philippine Islands case, often cited in later opinions.

You will notice in the more recent cases that two distinct understandings of the separation of powers and the proper relations between the branches of government are present on the Court. One, represented by Justice Scalia, calls for a strict, literal division of the branches; the other, represented by Justice Byron White, represents an understanding that calls for a more practical, working relationship between the branches. The two justices never agreed on a decision of a separation of powers case while they were both sitting on the bench.

Re: Myers v. United States, Humphrey's Executor v. United States, Bowsher v. Synar, Morrison v. Olson, Mistretta v. United States, Clinton v. City of New New York.

These cases present one of the main issues of separation of powers: the problems relating to the appointment and removal of government officials and, in particular, the nature of the officials' tasks. Myers and Humphrey's Executor set the stage for understanding the constitutional requirements for appointing and removing officials and for understanding the transition to the administrative state in twentieth century American government history. Bowsher and Morrison should be read in light of the two older cases. In each case, ask what the nature of the official's task is and what constitutional appointment and removal requirements regarding such an official are.

Particularly noteworthy are White's dissenting opinion in Bowsher and Scalia's dissent in Morrison. Justices White and Scalia seemed to be in complete dis-agreement regarding the requirements of separation of powers doctrine. Although their respective tenures on the Court overlapped only a few years (Scalia joined the Court in 1986; White left the Court after thirty-one years in 1993), they disagreed on all of the major separation of powers cases decided while they served together, and Scalia's comments about cases decided before he joined the Court indicate that he and White disagreed on those cases as well. Indeed, Scalia's resolute defense of his understanding of the constitutional principle of separation of powers makes his dissent in Clinton v. City of New York, which we shall look at next time, particularly intriguing. The dissents of both justices, in those cases in which they did dissent, provide valuable material for an understanding of the two principal approaches to separation of powers taken by the court in the twentieth century.

Three other cases (Weiss v. United States, Ryder v. United States, Edmond v. United States) examined the constitutional status of the judges on various Courts of Military Review. The Nguyen case similarly examined the status on the territorial United States District Court for the District of Guam.

Assignment for Friday, October 28th:

The two cases that I would like you to read for Friday are Reid v. Covert and Youngstown Sheet and Tube v. Sawyer. In Youngstown, pay particular attention to the concurring opinion of Justice Jackson. In both cases, identify the rule that the Court relied upon for its holding—that is, its answer to the constitutional issue presented.

Assignment for Tuesday, October 25th:

As I mentioned in class, I am asking you to read four cases for Tuesday: J.W. Hampton v. United States, A.L.A. Schechter v. United States, Curtiss-Wright Export Corp. v. United States, United States v. Belmont. Please read them in that order. Identify the constitutional issues/questions in each case, the holdings, and the rules or principles that the Court apparently relies upon.

These cases might seem at first to cover two different topics—delegation doctrine and executive agreements—but, as cases often are, they are tied together in non-obvious ways.

The J.W. Hampton case introduces us to the judicial separation of powers doctrine through one of its aspects: delegation doctrine. What power did Congress delegate to the President in the Tariff Act? What was the challenge? Specifically what is the rule regarding what Congress may and may not delegate to the President?

In Schechter, what did Congress delegate? How did the delegation in Schechter measure up against the rule in J.W. Hampton? rationale in Curtiss-Wright?

Please complete chapter 4 on state court systems. The two cases that I would like you to look at are Ex parte Yerger and Muskrat v. United States, both listed on the Constitutional Law Case List. Try to figure out why the court, exercising its appellate jurisdiction, granted Yerger a writ of habeas corpus while refusing McCardle the writ under very similar circumstances. What was different in Yerger? The more difficult case is Muskrat. On what issue did the case turn? That is, what question did the Court find crucial to its decision, and what was its holding (its answer)? What rule does it rely upon?

We have been looking at the issues and the holdings of the cases so far, but we must go further and try to determine the rule or principle that the Court relies upon in its holding. In the West Lewinsville Heights case, we said that the issue was, generally, whether the petition for certiorari was timely filed in the Fairfax Circuit Court or, more precisely, "whether a petition for a writ of certiorari from a decision of a board of zoning appeals was timely when it was filed within 30 days after a letter sent from the board’s clerk stating the board’s final decision"? The answers to both are negative: the petition was not timely filed and filing a petition 30 days after the letter was not timely. The reason for both answers is the rule or principle that the Court relied upon: that under the Commonwealth Code Section 15.2-2314, the date of the Board of Zoning Appeals "final decision" is the date of the meeting at which the decision is made and not the date of the formal letter of the decision to the parties. Reliance on this principle explains why the Court answered the questions as it did in this case and, presumably, explains how the Court will decide the question again in future cases if it ever comes up. This is the rule that indirectly affects everyone in the Commonwealth of Virginia, not just the parties to the West Lewinsville Heights case.

So also in the Office of Senator Mark Dayton opinion: the generally significant rule in the case is not that "the Court does not have jurisdiction to decide this case," but that the Court's appellate jurisdiction under the statute extends only to review of rulings on the constitutionality of the statute by a lower court, and the mere application of the statute by a lower court does not amount to an implicit ruling on the statute's constitutionality (that by applying the statute, a lower court is asserting the statute's constitutionality even though neither party explicitly questioned its constitutionality before the lower court). This is the principle that is of value to other litigants and potential litigants in the future: this is what we are interested in.

So, in Muskrat, try to identify the issue or question and the holding or answer of the Court, and also the rule or principle that the Court relied upon to assert its holding-answer. Underline the parts of each of the assigned cases that express these elements—the issue, the holding, and the rule. If you want more information on this, read Appendix B of the Primer on analyzing court opinions.

The material below is from past semesters. You might want to take a look at it to see what to expect this semester before I delete it.

Three more cases examining state powers, though not necessarily under the dormant Commerce Clause: Edwards v. California, Baldwin v. Fish and Game Commission of Montana, Crosby v. National Foreign Trade Council. The are all on the Constitutional Law Case List (just put them there), but you have to hunt a bit for them.

We begin the last part of the course, focusing on first the power of the national government and then the powers of the state governments under the Commerce Clause. We will start with three old cases that addressed the main issues of national v. state power under the Commerce Clause: Gibbons v. Ogden, Willson v. Black-Bird Creek Marsh, The Daniel Ball. All are listed on the Constitutional Law case list. The first is excerpted; the second two are short opinions. Do as much as you can for tomorrow.

Questions:

In Ex parte McCardle: What does "ex parte" mean? We know that the Court ruled that it did not have jurisdiction to decide the case: what rationale did it give for so deciding? What ultimate rule about Supreme Court appellate jurisdiction did the Court give or rely upon in its rationale?

In Allen v. Wright: According to Justice O'Connor, what must a plaintiff show in order to have standing to sue before a United States District Court? Did the plaintiffs in this case meet the standing requirement? Why or why not?

Notes from Previous Semesters

Ex parte Yerger, 75 U.S. 85, 19 L.Ed. 332 (1868).

Virginia's Abusive Driver Fees

Virginia's Drunk Driving Law

Jeremy Jaynes v. Com. of Virginia.

National and State Power under the Commerce Clause

Commerce Clause: Powers of the National Government. We begin the last third of the semester examining the source of most federal legislation in the United States: the Commerce Clause. The Clause is deceptively simple: "The Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Art. I, Sec. 8, Cl. 3. Practically each word in this clause had to be interpreted and led to significant consequences. The question of whether the power to regulate commerce resided exclusively in the national government or whether the states also possessed authority to regulate commerce was a significant issue debated by nationalists and champions of states' rights. The benchmark case to begin our study is Gibbons v. Ogden, in which the Federalist-nationalist majority on the Court sought to maximize national authority under the Clause. Is the regulatory power exclusively possessed by the national government? The subsequent cases of Willson and Cooley reflect the limits to national power that the Court was forced to acknowledge. Please read Gibbons, Willson v. Black-Bird Creek Marsh Co., Cooley v. Board of Wardens.

Commerce Clause: Powers of the National Government. We begin the last third of the semester examining the source of most federal legislation in the United States: the Commerce Clause. The Clause is deceptively simple: "The Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Art. I, Sec. 8, Cl. 3. Practically each word in this clause had to be interpreted and led to significant consequences. The question of whether the power to regulate commerce resided exclusively in the national government or whether the states also possessed authority to regulate commerce was a significant issue debated by nationalists and champions of states' rights. The benchmark case to begin our study on Tuesday is Gibbons v. Ogden, in which the Federalist-nationalist majority on the Court sought to maximize national authority under the Clause. Is the regulatory power exclusively possessed by the national government? The subsequent cases of Willson and The Daniel Ball reflect the limits to national power that the Court was forced to acknowledge. Please read Gibbons, Willson v. Black-Bird Creek Marsh Co., The Daniel Ball.

On Friday and next Tuesday we will follow the meandering course of the development of the national Commerce Clause power. The nineteenth century witnessed the early attempts by Congress to regulate aspects of commerce in America's still largely agricultural economy. During the latter part of the nineteenth and the early twentieth century, however, Congress attempted to regulate more and more of the increasingly industrial national economy. The Court's interpretation of the Commerce Clause in certain cases was more narrow and restrictive of national power, culminating in several famous decisions that invalidated New Deal legislation intended to deal with the Great Depression. In 1937, President Roosevelt proposed his "court-packing plan" in the form of the Judicial Procedures Reform Bill of 1937, which was not enthusiastically received, even by many Democrats. The bill proposed allowing the President to appoint one new, younger judge for each Supreme Court justice who did not retire or resign within six months after reaching the age of 70 years, up to a limit of fifteen Supreme Court justices. (The bill also allowed up to forty additional lower federal judges to replace older judges.) Fortunately for Roosevelt, one of the nine old men on the Court, Mr. Justice Roberts of Pennsylvania, had a change of heart regarding the scope of the Commerce Clause and thus the federal government's power to regulate the economy, and his "switch-in-time . . . saved nine," namely the nine-member Supreme Court structure that had existed since 1869.

On Tuesday, we look at two more of the cases in which the Court applied a narrower view of the national Commerce Clause power and the case that reversed that line of cases once and for all: Hammer v. Dagenhart [Child Labor Case], Bailey v. Drexel Furniture Co. [Child Labor Tax Case], and National Labor Relations Board v. Jones and Laughlin Steel.

The E.C. Knight, Hammer v. Dagenhart, Bailey v. Drexel Furniture, Adkins v. Children's Hospital, and Carter v. Carter Coal cases, which applied a restrictive interpretation of the Commerce Clause power of the national government, were decided before, during, and after the Court was also upholding a broad Commerce Clause power in other cases. In other words, they do not constitute a particularly distinct "era" of constitutional history. Yet they do distinguish the first third of the Twentieth Century from the rest of American judicial history. Note how the Court in these cases both relied on and departed from the broad principles of Gibbons v. Ogden. Note also how the Court distinguished "commerce" from mining, manufacturing, and production generally. The Court also distinguished activity which had a direct effect on commerce (which activity was regulable by Congress) from that which only had an indirect effect (which was not regulable by Congress).

That the Court, or a majority of its justices, in these national Commerce Clause power cases was approaching them with a particular attitude about the proper relationship between business and government regulation of business is clear when we also consider cases in which state governments tried to enact the same kine of regulations that the federal government was enacting—regulations regarding wages, hours, and working conditions and labor union membership. The argument that often succeeded in persuading the Court to strike down the state legislation was the "freedom of contract" or "liberty to contract" argument (not to be confused with the Contract Clause of Art. I, Sec. 10 of the Constitution) identified with the Lochner v. New York case. The switch in time of 1937 that saw the Court take a fundamentally different approach to the national Commerce Clause power also marked a fundamental change toward the constitutional doctrine of freedom of contract.

The Negative or Dormant Commerce Clause.States possess the "police power," the authority to provide for the health, safety, welfare, and morals of their citizens. This broad power is assumed to be part of the very purpose of government and part of what all citizens expect government to exercise on their behalf. The police power was not delegated to the national government in the 1787 constitution and so was retained by the states. It is therefore part of the powers "reserved to the States respectively, or to the people" under the Tenth Amendment. See Brown v. State of Maryland and Mayor, Aldermen, and Commonality of the City of New v. Miln for a discussion of the police power.

Like all state power, if an exercise of the police power by a state conflicts with one of the enumerated powers of the national government, the national power is supreme. Where the enumerated power has in fact been exercised by the national government in the form of a law, the federal law is said to "preempt" (invalidate) the state law. But what happens when the enumerated power has not been exercised—when it is still "dormant"? Does it still invalidate the state regulation? (See a comparable issue in bankruptcy law.)

Presumably it would if the power were possessed solely by the national government so that any exercise of it by a state would be an unconstitutional usurpation by the state. We saw in the Gibbons v. Ogden case that Chief Justice Marshall wanted very much to hold that the power to regulate the nation's commerce under the Commerce Clause was possessed exclusively by the national government, but he was unable to assemble a majority of the Court's justices to concur in that holding. In the Willson v. Black-Bird Creek Marsh case, Willson argued that the state law authorizing the company to place a dam on a navigable waterway and thus impede interstate or international commerce was invalid precisely because the state law effectively regulated commerce and the power to regulate commerce was exclusively possessed by Congress. But Marshall, in his opinion of the Court, did not accept this argument. He said, "We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." If Congress had passed a conflicting law, it would preempt the state law, but in the absence of federal legislation, "under all of the circumstances of the case," the state law was valid even though it was in fact regulating commerce.

The question in later cases became, "What does 'all the circumstances of the case' legally mean? What are the limitations, if any, upon state regulation of commerce in the absence of federal legislation—that is, when the Commerce Clause is dormant or "sleeping"? The Court attempted an answer to that question in a couple of later cases. In Mayor, Aldermen, and Commonality of the City of New York, the Court engaged in a "weighing and balancing" exercise, seeming to literally balance the "weight" of police power to regulate immigration of people into New York against the "weight" of the national power to regulate commerce. This unsatisfactory approach would have left the validity of each exercise of the police power to the case-by-case evaluation of the Court. The Court in Cooley v. Board of Wardens tried to provide a more useful and predictable standard, a standard that came to be known as the doctrine of "selective exclusivity":

"[T]he power to regulate commerce embraces a vast field containing not only many but exceedingly various subjects quite unlike in their nature, some imperatively demanding a single uniform rule operating equally on the commerce of the United States in every port and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation.

"Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress is to lose sight of the nature of the subjects of this power and to assert concerning all of them what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." (Emphasis added.)

As America's state-centered economies developed into a national economy during the latter half of the nineteenth century, the need for uniform plans of regulation grew, and the conflicts between state regulations under the police power and "national subjects" that had not yet been placed under enacted uniform plans increased, giving rise to a huge number of cases in the past eighty years. In the next few classes, we will look at some of these cases and the continuing effort of the Court to articulate reasonable limits on the states' power to regulate subjects that also affect interstate commerce.

Take a look at this 2011 Business Week article from earlier this year entitled "The Court Case Haunting Health Care" under "Special Features" on the Yahoo Finance page.

Another constitutional law issue is discussed in this 2011 January 17, 2011, Washington Post article on how the Speech or Debate Clause inhibits investigations into congressional wrongdoing.

Powers of the National Government

Implied Powers. The assigned cases relate to the doctrine of the implied powers of Congress under the Necessary and Proper Clause and under the enforcement clauses that are part of many constitutional amendments. Our constitution is usually referred to as one of enumerated powers; that is, it is a constitution that enumerates or expressly states the powers that the national government has. According to the doctrine, the national government has only those powers enumerated in the constitution. Only a few years passed under the new constitution before the question arose of the breadth of Congress's discretion to determine the means of exercising its enumerated powers. The Court answered the question in terms of the implied powers doctrine.

We will begin studying the powers of the national government—express, implied, incidental, and others. Please read the following cases (see Constitutional Law Case List link): McCulloch v. Maryland, South Carolina v. Katzenbach, City of Boerne v. Flores.

As always, try to identify the fundamental issue or question of the case and the rule or principle that the Court relied upon to reach the answer to the question—the holding. In these three cases, ask yourself whether the issue and rule in the South Carolina case is the same or different from the issue and rule in McCulloch. How does the City of Boerne rule differ from one or both of the earlier cases?

The implied powers doctrine is usually identified with the famous passage in McCulloch v. Maryland that begins "Let the end be legitimate . . . ." This tripartite end-means-no prohibition reasoning has also been used in other contexts, for instance, in determining the scope of congressional authority to enforce constitutional amendments under their enforcement clauses (South Carolina v. Katzenbach, but see City of Boerne v. Flores), the scope of state authority to implement their police powers (Jacobson v. Massachusetts), and the authority of the three branches of our national government to engage in un-enumerated actions that are necessary to perform their overall constitutional functions (the so-called "incidental or auxiliary powers" presented in the next assignment).

New cases: please read McGrain v. Daugherty, and In re Neagle (also known as Cunningham v. Neagle). Follow the excerpting directions on the Constitutional Law Case List. Come to class prepared to tell me the questions, holdings, and rules of these cases.

Incidental or Auxiliary Powers. These two cases, together with Young v. United States ex rel Vuitton et Fils, discuss what may be called "incidental" or "auxiliary," as opposed to "implied" or "inherent" powers of government institutions—the Congress, the executive, and the courts. The rationale for these powers is similar to the McCulloch rationale for implied powers, but the term "implied powers" is usually applied specifically to the powers of Congress under the Necessary and Proper Clause of the Constitution. "Inherent power" has come to refer to the doctrine of the sovereign powers of our national government and any national government as explained by Justice Sutherland in his majority opinion in Curtiss-Wright. By contrast, incidental powers relate to what the institution (Congress, the President, the courts) can do in order to perform its basic function—legislating, executing the laws, or adjudicating, respectively. It may do that which is necessary and appropriate to perform its constitutional function.

Privilege and Immunity. These cases are about privilege and about immunity. "Privilege" is the right to withhold information from a government agency; that is, it is the right of someone who would otherwise have a duty to provide information to a government official (judge, congressional committee, prosecutor) to withhold information from that official. (The official may be said to have a right to obtain the information.) The party with the duty to provide evidence is often a party to, or a witness in, litigation or a witness before a congressional committee or subcommittee. The roots of executive privilege go back to George Washington’s refusal to give the House of Representatives information about his instructions to John Jay that led to the Jay Treaty with England. Privilege excepts one from the duty to testify. Typically, privilege will be asserted when the information is demanded of the witness at trial or in a congressional hearing, or when challenging (moving to quash) a subpoena that requires the witness to appear and be questioned or to appear and bring materials (a subpoena duces tecum—"dukas teekum") on the grounds that the information sought is privileged. Thus, a criminal defendant has the right not to answer questions about whether he committed the crime—the Fifth Amendment privilege against self-incrimination. There are many other forms or rules of privilege as well, but they are all narrowly construed by the courts because they run counter to the adjudication policy of full and open inquiry into the truth.

Privilege at law should not be confused with immunity. Immunity is protection from liability, either criminal or civil, and again, there are a number of different rules of immunity. If someone has immunity, that individual cannot be prosecuted or sued. The breadth of an individual's immunity may vary; that is, an individual may be immune from suit or liability for one or two causes of action arising out of a particular transaction or may be immune from liability for any suit arising out of the transaction.

Having immunity does not entail having privilege, and vice versa. Thus a criminal suspect who does not have to answer questions about whether he committed the crime (5th Amendment privilege) may still be convicted of the crime on the evidence of others (no immunity). Likewise, one might have immunity from suit but still be required to provide information about the underlying transaction.

Which of these situations applies to the figures in the assigned cases? That is, which cases involve immunity, which cases involve privilege, and which cases involve both? What are the rules of privilege or immunity that the court relies upon in each case? What is the rationale for each rule? Underline or highlight the rule(s) that you identify for each case.

Re: Myers v. United States, Humphrey's Executor v. United States, Bowsher v. Synar, Morrison v. Olson, Mistretta v. United States, Clinton v. City of New York.

These cases present one of the main issues of separation of powers: the problems relating to the appointment and removal of government officials and, in particular, the nature of the officials' tasks. Myers and Humphrey's Executor set the stage for understanding the constitutional requirements for appointing and removing officials and for understanding the transition to the administrative state in twentieth century American government history. Bowsher and Morrison should be read in light of the two older cases. In each case, ask what the nature of the official's task is and what constitutional appointment and removal requirements regarding such an official are.

Particularly noteworthy are White's dissenting opinion in Bowsher and Scalia's dissent in Morrison. Justices White and Scalia seemed to be in complete dis-agreement regarding the requirements of separation of powers doctrine. Although their respective tenures on the Court overlapped only a few years (Scalia joined the Court in 1986; White left the Court after thirty-one years in 1993), they disagreed on all of the major separation of powers cases decided while they served together, and Scalia's comments about cases decided before he joined the Court indicate that he and White disagreed on those cases as well. Indeed, Scalia's resolute defense of his understanding of the constitutional principle of separation of powers makes his dissent in Clinton v. City of New York, which we shall look at next time, particularly intriguing. The dissents of both justices, in those cases in which they did dissent, provide valuable material for an understanding of the two principal approaches to separation of powers taken by the court in the twentieth century.

Re: J.W. Hampton v. United States, Curtiss-Wright Export Corp. v. United States, United States v. Belmont. As always, identify the rules in the cases and be prepared to read them out or hand them in.

These cases might seem at first to cover two different topics—delegation doctrine and executive agreements—but, as cases often are, they are tied together in non-obvious ways.

The J.W. Hampton case introduces us to the judicial separation of powers doctrine through one of its aspects: delegation doctrine. What power did Congress delegate to the President in the Tariff Act? What was the challenge? Specifically what is the rule regarding what Congress may and may not delegate to the President?

The famous Curtiss-Wright case is also a delegation doctrine case, but it provided Justice Sutherland with the opportunity to articulate his doctrine of inherent power or sovereignty. The term "inherent power," when used narrowly as a label for a specific constitutional doctrine, apples to this doctrine of sovereignty. Was the delegation by Congress valid in this case? Why or why not?

Executive agreements are agreements made between our executive officer—the President—and other countries. From the perspective of international law, executive agreements are treated as treaties; they bind our nation as if we entered into a treaty with a foreign country. From the perspective of domestic law, there are some significant differences between treaties and executive agreements. Incidentally, executive agreements are not a new phenomenon. Our first administration entered into them in the 1790s, and they far outnumber the treaties to which the United States is a party. Belmont discusses the authority of our government to enter into executive agreements and also their relation to state law. How is the rationale in Belmont tied to the rationale in Curtiss-Wright?

For Tuesday, we will focus mostly on the Fact Pattern/Sample Question that I handed out on Friday. (As always, extra copies are in the rack on the wall across from my office door.) Try to formulate the arguments for each party as directed on the handout using only the cases that have been assigned so far. The next case to read is Mireles v. Waco, 502 U.S. 9 (1991), linked on the Constitutional Law Case List. How does Mireles also fit the rule of auxiliary or incidental powers?

War powers. The Youngstown, Preciat (Prize Cases), Hirabayashi, and Korematsu cases, as well as the post 9/11 cases of Hamdi, Hamdan, Rasul, & Boumedienne cases are often referred to as "war powers" cases, even though they present other significant issues as well. The overarching issue running through the older cases is the question of whether the defense of national survival justifies violations of the letter of the Constitution, particularly violations of the constitutional rights of individuals. Questions arising out of disagreements between the Congress and the President are usually treated as non-justiciable political questions (see, for example, Dellums v. Bush).

The question of whether the national government has extra-constitutional emergency powers is closely related to the war powers issue. The case of Home Building and Loan v. Blaisdell, arising out of government action to alleviate some of effects of the Great Depression of the 1930s, is the most famous representative of this body of case law. Recent economic conditions in the United States and Europe brought this case and the general issue back into focus.

Implied Powers. The implied powers doctrine is usually identified with the famous passage in McCulloch v. Maryland that begins "Let the end be legitimate . . . ." This tripartite "end-means-no prohibition" reasoning has also been used in other contexts, for instance, in determining the scope of congressional authority to enforce constitutional amendments under their enforcement clauses (South Carolina v. Katzenbach, but see City of Boerne v. Flores), the scope of state authority to implement their police powers (Jacobson v. Massachusetts), and the authority of the three branches of our national government to engage in un-enumerated actions that are necessary to perform their overall constitutional functions (the so-called "incidental or auxiliary powers" presented in the next assignment).

Incidental or Auxiliary Powers. McGrain and Neagle, together with Young v. United States ex rel Vuitton et Fils, discuss what may be called "incidental" or "auxiliary," as opposed to "implied" or "inherent" powers of government institutions—the Congress, the executive, and the courts. The rationale for these powers is similar to the McCulloch rationale for implied powers, but the term "implied powers" is usually applied specifically to the powers of Congress under the Necessary and Proper Clause of the Constitution. "Inherent power" has come to refer to the doctrine of the sovereign powers of our national government and any national government as explained by Justice Sutherland in his majority opinion in Curtiss-Wright. By contrast, incidental powers relate to what the institution (Congress, the President, the courts) can do in order to perform its basic function—legislating, executing the laws, or adjudicating, respectively. It may do that which is necessary and appropriate to perform its constitutional function.

Privilege and Immunity. These cases are about privilege and about immunity. Privilege is the right to withhold information from a government agency; that is, it is the right of someone who would otherwise have a duty to provide information to a government official (judge, congressional committee, prosecutor) to withhold information from that official. (The official may be said to have a right to obtain the information.) The party with the duty to provide evidence is often a party to, or a witness in, litigation or a witness before a congressional committee or subcommittee. The roots of executive privilege go back to George Washington’s refusal to give the House of Representatives information about his instructions to John Jay that led to the Jay Treaty with England. Privilege excepts one from the duty to testify. Typically, privilege will be asserted when the information is demanded of the witness at trial or in a congressional hearing, or when challenging (moving to quash) a subpoena that requires the witness to appear and be questioned or to appear and bring materials (a subpoena duces tecum—"dukas teekum") on the grounds that the information sought is privileged. Thus, a criminal defendant has the right not to answer questions about whether he committed the crime—the Fifth Amendment privilege against self-incrimination. There are many other forms or rules of privilege as well, but they are all narrowly construed by the courts because they run counter to the adjudication policy of full and open inquiry into the truth.

Privilege at law should not be confused with immunity. Immunity is protection from liability, either criminal or civil, and again, there are a number of different rules of immunity. If someone has immunity, that individual cannot be prosecuted or sued. The breadth of an individual's immunity may vary; that is, an individual may be immune from suit or liability for one or two causes of action arising out of a particular transaction or may be immune from liability for any suit arising out of the transaction.

Having immunity does not entail having privilege, and vice versa. Thus a criminal suspect who does not have to answer questions about whether he committed the crime (5th Amendment privilege) may still be convicted of the crime on the evidence of others (no immunity). Likewise, one might have immunity from suit but still be required to provide information about the underlying transaction.

Which of these situations applies to the figures in the assigned cases? That is, which cases involve immunity, which cases involve privilege, and which cases involve both? What are the rules of privilege or immunity that the court relies upon in each case? What is the rationale for each rule? Underline or highlight the rule(s) that you identify for each case.

War powers. The Youngstown, Preciat (Prize Cases), Hirabayashi, and Korematsu cases, as well as the post 9/11 cases of Hamdi, Hamdan, Rasul, & Boumedienne cases are often referred to as "war powers" cases, even though they present other significant issues as well. The overarching issue running through the older cases is the question of whether the defense of national survival justifies violations of the letter of the Constitution, particularly violations of the constitutional rights of individuals. Questions arising out of disagreements between the Congress and the President are usually treated as non-justiciable political questions (see, for example, Dellums v. Bush).

Three cases for Monday: Reid v. Covert, Dames and Moore v. Regan, and Youngstown Sheet and Tube v. Sawyer. The first two are executive agreement cases that will complete our survey of treaties and executive agreements; the third case is one of the most famous cases on the scope of executive war powers. Pay particular attention in the Youngstown Sheet and Tube case to Justice Jackson's concurring opinion.

Inherent power. The J.W. Hampton case is a good place to start tracking two lines of cases: "inherent" power cases and separation of powers cases. Within the general category of separation of powers is a subset of cases denominated "delegation doctrine" cases, of which J.W. Hamption, A.L.A. Schechter, and Panama Refining are the three that are usually mentioned. Curtiss-Wright Export v. United States is also a delegation doctrine case, but it provided Justice Sutherland with the opportunity to present his (and the Court's) doctrine of inherent power or [Hobbesian] sovereignty. One aspect of a nation's inherent power or sovereignty is its capacity to enter into agreements with other countries in the form of treaties or "executive agreements."

The famous Curtiss-Wright case is also a delegation doctrine case, but it provided Justice Sutherland with the opportunity to articulate his doctrine of inherent power or sovereignty. The term "inherent power," when used narrowly as a label for a specific constitutional doctrine, apples to this doctrine of sovereignty. Was the delegation by Congress valid in this case? Why or why not? Was the Hampton rule applied here? Why or why not?

Executive agreements are agreements made between our executive officer—the President—and other countries. From the perspective of international law, executive agreements are treated as treaties; they bind our nation as if we entered into a treaty with a foreign country. From the perspective of domestic law, there are some significant differences between treaties and executive agreements. Incidentally, executive agreements are not a new phenomenon. Our first administration entered into them in the 1790s, and they far outnumber the treaties to which the United States is a party. Belmont discusses the authority of our government to enter into executive agreements and also their relation to state law. How is the rationale in Belmont tied to the

As you read Panama Refining, try to determine the rule and the reason that the statute in Panama Refining allegedly violated the rule. As you read Curtiss-Wright, ask what the issue was in the case and why the outcome was not the same as the outcome in the Panama Refining case. In the Belmont case, pay particular attention to the issue, the rule applied, and the rationale for that rule, as argued by the good Justice Sutherland (and Chief Justice Stone). Read the versions as edited on the Constitutional Law Case List.

Treaty power. The general question that we will address in these cases is the legal relationship between treaties, federal statutes, exective agreements, and the Constitution. There is a definite hierarchy among these four different norms. We will cover as much ground as possible, but since I can only ask you to read four cases at most, the assignment will leave some gaps. I am going to assign four cases and suggest that you consult a few others. Thus, this assignment is a bit different from the others. It includes some research for you to do.

We must begin with Missouri v. Holland, one of the most controversial treaty cases ever decided. What were the relevant norms in the case (this is the key!). According to Justice Holmes, what is the correct relation between the Constitution, treaties, and federal statutes? What norm was being challenged by Missouri? On the relation of the Constitution to treaties, consult the Cherokee Tobacco case, as edited on the Constitutional Law Case List. Did Justice Holmes clearly follow this precedent?

Staying with treaties, read Cook v. United States, called the Mazel Tov case. What norms were in conflict? What rule was applied to resolve the conflict? The nineteenth century Head Money Cases, and Whitney v. Robertson provide precedent for this rule. You may want to consult them (the edited versions) if you have trouble with the Mazel Tov case.

But wait! Does the rule in Mazel Tov apply to all conflicts between treaties and other norms? Check out the Sei Fujii v. California case. Why didn't the treaty trump the state law? I thought supremacy of treaties over state laws was a no brainer! What distinction did the court rely upon to distinguish the Sei Fujii case from the usual Supremacy Clause cases, such as McCulloch, City of Boerne or even Missouri v. Holland? You might want to consult Foster v. Neilson on this matter, but the language of Foster is that early nineteenth century rhetoric of Chief Justice Marshall and takes a little effort to get through.

Finally, if you are still with me, we get back to executive agreements and the relation of executive agreements to federal statutes in United States v. Guy Capps, a Court of Appeals case that has served as lasting precedent. What norms were in conflict? What rule did the Court use to resolve the conflict? Can we conclude that executive agreements and treaties are functionally equivalent or are there significant legal differences between them?

 

The Hurtell case is here.