Discussion of week 11/12 hypo:
The idea of the category 1 argument is that congress
in fact authorized spending by appropriating,
notwithstanding the risk that appropriations would
exceed refenues and thus that the debt limit might
have to be breached
Class notes 4/18/16
The debt limit hypo can basically fall into categories 1 or 3 of Jackson’s concurrence in
Youngstown. Under the category 1 view, we can argue that the debt limit has been around a long
time. Congress sets the debt limit lower this year, but that’s all they did- they passed
appropriations, those appropriations are just less than in the past. The President can still spend
them. Under the category 3 view, which seems to be the more likely view, Congress is exercising
its spending power and is expressly limiting what the President can do. The President can spend
up to the debt limit but cannot exceed it.
Alternatively, there may be an emergency argument. However, in the face of the Youngstown
verdict, it seems unlikely that failure to raise the debt ceiling could ever be determined to be a
national crisis.
As far as justiciability, it seems that a party who was owed money be the United States could sue
if the President refused to overspend. However, it is unclear who would have more than a
generalized grievance if the President did chose to spend over the debt limit.
Woods v. Cloud Miller Co.
Facts:
Congress continues to control the housing market after the end of World War II under the claim
that the effect of the war is still playing out in the market.
Holding:
The court holds that Congress has the power to regulate even after the war.
Discussion:
Congress is justifying its regulation under the necessary and proper clause in conjunction with its
war powers. This seems consistent with another case in which the court allowed Congress to
regulate practices of dealing with sexual predators because they created a federal cause of action
which upset the current system, just as war upset the housing market. However, this is a very
broad power in modern warfare, which the court recognizes. The court brushes this argument
under the rug because it is not an issue in the current case, but it leaves open the question of
whether this holding might be different in the aftermath of different wars and how much the
court is comfortable with letting Congress regulate domestically.
4/18 Outline - Group work and War and Treaty Powers
A. GroupActivity
a. Group#1-
i.
Jackson's3categories->Yes:wouldwanttoarguethatthereissomeauthority,
authoritytoexecutethelawsandConghasauthorizedthespending,soPrezhassome
choiceabouthowtodothat
ii.
Justiciability->No:Peoplenotreceiving
b. Group#2-
i.
Yes;becauseofconflictingordersonPrez,sohisjobtoexecutelawsandhisjobto
decidewhatisbestforthenation;foreignaffairspower,needstokeepgoodrelations
withforeigncountriessoheshouldbeabletokeepupwithaid/loans
ii.
No;moneyissue,noonehasexperiencedadirectharm,notripe
c. Group#3-
i.
Twoseparatestages,sofollowmostreasonableone;category3;stillthoughthecould
doitbecausetakecareclauseandwardofthreatstoeconomicsystem;dutytostop
collapseofeconomy;ensurecontinuationoffulfillingfederalobligations
ii.
CouldsueSpeakerfordamagetoPrez'sreputation;wouldn'tbeblockedbyPQ
doctrine;ifnotPrez,peoplewhohaveentitlementsmayhavestanding(pension,SS,
etc.)
d. Group#4-
i.
Separationofpowersissue,soCongupsettingthebalanceofpowerbecausetheir
decisionwrecksthegovandeconomy,soPrezwouldberectifyingthelackofbalance;
RefusingtopassthelegisisnotregulardiscretionaryCongpower,butisamassive
upsetoftraditionalpractice
ii.
Notlikely;politicalquestionisvagueenoughcourtcouldchoosenotto;hardtoprove
injuryinfact
e. Group#5-
i.
YesbecauseCongsaidhecanspendonwhathewantsto,sotakingcaretospend
(category1);foreignpowersobligations,needtospendmoneyandincurdebtinorder
todothis
ii.
OnlyifPrezspentsomuchmoneyonsinglecompanythatallothercompaniesinthat
industrywerenegativelyaffected(ex:spendonDoletoputhealthyfoodinschools,
pizzacompaniesarehurt)
f. Group#6-
i.
Couldnotignoredebtceiling,category3;couldjustcutdiscretionaryspendingandreprioritize;notacrisisbecauseCongwantedthislawandknewthatthismighthappen
ii.
OnlyCongcouldgetthisintocourts,Housev.Burwell;comparableherebecauseitis
abovethelimitConghasset
g. Group#7-
i.
TakecarevsArt.1Sec8,Secs4and5of14thAm.;Yes,necessity
ii.
Windsorcase;mightbeanadvisoryopinionifincourtbeforePrezdoesit
h. Group#8-
i.
Category3,actingindirectconflictwithCong,noexpressbasisforPrezactingbut
Congdoeshaveexpresspowerofpurse;so,no
ii.
No,politicalquestionalsonoindividualtaxpayercouldbringit;maybeCongwithjoint
resolution
i.
Group#9-
i.
Textualargofenumeratedpowersnotstrong;takecarepowertoPrezeventhough
conflictingwithCongheneedstoprotectthepublic
ii.
Politicalquestionsolikelynot
j. Group#10-
i.
Category3question,violationofpowers;nonationalemergencyarg
ii.
Couldbebroughtbysomeonewhothegovowespaymentbutcan'tpayifhedoesn't
spend;ifhedid,wouldbehardtogetaroundpoliticalquestion
k. Maybecouldbejusticiablebecausebondratinggoesdownbecausedefaultondebt,orif
govincurstoomuchdebtratingagenciesmaybeuncertainaboutgovabilitytopayit;Perry
v.US=bondholderscouldn'tbringbecauseinjurywasspeculative,hardtodeterminethe
valueandchangesinvalue;Courtcan'torderCongtoactbecauseitisn'taministerialduty
theCourtcanorder;couldsuePrezforministerialdutyissues;istherearelieftheCourtcan
grantthatwillfixandeconomiccollapse?
l. Gowder-
i.
Thelastenactedstatutewins?
1. Onewaytothinkaboutit=debtlimithasbeenaroundawhileandCongpasses
abudgetthisyearthatmakestheUSbreakthedebtlimit,thereforerepealsthe
debtlimitbecauseitiscontrary,soputsincategory1becauseConghasallowed
it
2. But,intherealworldtherewasabigfightaboutthedebtlimitsothatmayhave
beenthelastwordonthesubject,sohavetolookatwhat"enacted"meansto
determineiflastenactedisreallythestandardtofollow;ifConghasclearly
expressedapolicywillnottospendoverthedebtlimit,morelikelyincategory3
andshouldinterpretauthorizationinappropriationtotellthePreztospend
mandatoryspendingandauthorizehimtospenddiscretionaryspendingupto
thedebtlimit
ii.
Emergencyargument
1. Issueofeconomiccollapseevenifincategory3;doesthatsave?Youngstown=
No,roughlysamelevelofurgency,likelyCourtwouldfindlessemergencypower
indomesticeconomicproblemsbecausewar-fightingpowersarecloserto
inherentpowersofthePrez;thisargumentprobablywouldn'tgetfar
B. StartingWarandTreatyPowers
a. Woodsv.CloydW.MillerCo.
i.
WhetherCongcouldcontrolhousingpricesafterWWIIhadofficialended
ii.
CourtsuggestsyoucandealwithhousingdeficitsundertheWarPowerclause
1. "Thewarpowerdoesnotnecessarilyendwiththecessationofhostilities."
2. NecessaryandProperterritory;allowsacertainamountofdomesticlaw
enactinginpursuanceofthewarpowers(ex:rationing)
3. Raisesquestionofwhatdoeswarpowersimplyafterthewar
a. Canstillfeeltheeffectsofwarafterthewar;lifedoesnotimmediatelygo
backtonormal
b. Congcanresolvetheconsequencesofthewarbecausewarpowersand
N&PC;mayleadtofairlybroadpowersifCongcansolveany
consequencesofanywar(applicabletodomesticconsequencesofIraq
conflict?)
iii.
Concurrence-Jackson
1. Agreedwiththeoutcome,butfeltitnecessarytoexpressworryandskepticism
aboutCongress'suseofthepower
a. WarpowerisvagueanddangerousandisusedbyCongresshastilyand
propelledbyemotion
b. Warpowershouldbecloselyscrutinizedwhenthepowerisinvokedina
waywhichrestrictsliberties
2. Whileacceptingtheuseofthewarpowersinthiscase,herefusedtoaccept
thatthepowerwouldlastaslongastheconsequencesofthewar
OutlineforApril18-20,2016
Case:Woodsv.Cloyd
Facts&ProceduralHistory:TheDistrictCourtheldthatTitleIIoftheHousingandRentActof
1947wasunconstitutional.TheDistrictCourtbelievedthatCongress’warpowersendedafter
theformalterminationofhostilitiesandthatbecausetheactdidnotspecificallymentionthe
warpower,itwasnotactingunderitsauthority.DefendantsappealeddirectlytotheSupreme
Court.
Decision:ReversedforPlaintiffs.
Issue:WhetherCongresshasthepowertoinstitutepricecontrolsonhousingundertheirwar
powers.
Holding:Yes.Congresshasthepowertoregulatethehousingindustryundertheir“war
powers”becausethewarpowersallowCongresstoremedyacurrentconditiondirectlyand
immediatelycausedbywar.
ReasonsforDecision:TheMajorityreliedonthreearguments.1.Caseprecedentofboth
Hamiltonv.KentuckyandRuppertv.CaffeyestablishedthatCongress’warpowerscontinue
afterwarto“remedytheevils”ofwar.ThesecondcasealsoestablishedthatCongressmay
regulatethedemobilizationofthewareffortandincreaselowsupplyindustriesaffectedbythe
war.2.ThelegislativehistoryandN&PClauseallowCongresstoregulatehousingbecauseits
supplyhadbeengreatlyreducedbythewar.3.TheCourtdoesnotneedtoworryabouta
limitingprinciplecurrentlybecauseCongress’actionisclearlywithintheirconstitutional
authority.
Concurrence:JusticeJacksonattemptstoqualifytheMajority’sthirdargumentby
mentionedthatthewarpoweristhemostdangeroustothePeople.Hesuggeststhatwhenthe
warpowerisexercisedtoaffectthePeoples’liberties,thestandardtobeusedisStrictScrutiny.
Healsowishestoqualifyhowlongwarpowerslastafterthe“technical”endofwarandthatit
shouldbeinsubstancewar,andnotinform.
Case:Missouriv.Holland
Facts&ProceduralHistory:EquityActionbyMissouritoenjoinagamewardenfromenforcinga
treatywithBritainprotectingbirdsmigratingonlyinNorthAmerica.Thestatebelievesthis
treatytounconstitutionallyinfringeupontheir“10thamendmentrights”.TheDistrictcourtheld
theActconstitutional.
Decision:Affirmed.
Issue:WhetheranactmadetoeffectuateaTreatyislimitedbythe10thamendmentinthe
10th, or just general principle of limited and
samemannerandActofCongresswouldbelimited.
enumerated powers!
Holding:TreatiesaremadeunderthepoweroftheUnitedStatesandnottheConstitution.
Theremaybenon-nationallimitstothetreatypower,butthecourtdoesnotholdanylimits.
ReasonsforDecision:1.AtextualargumentcombiningthelanguageofArticleII,Section2,
ArticleVI,andtheN&PclauseallowCongresseffectuateatreatysolongasthetreatyisvalid.2.
Structurally,TreatieshavegreaterforceoflawthananactofCongressanditisofnomoment
thataprioractofCongresswasheldtobeunenforceable–SupremacyClause.3.Becausethe
actisprotectinganationalinterest,itcannotbeassumedtobereservedinthestatesorthe
People,andmustliewithinthepowersofthefederalgovernment.4.Thetreatydoesnot
explicitlycontradictwiththeconstitutionandcannotbeattackedonavague10thamendment
claim.Ergo,theactisconstitutional.
Case:Zivotofskyv.Kerry
Facts&ProceduralHistory:IsraelwasrecognizedbyTrumanin1948,buttheUnitedStateshas
neverrecognizedanystateashavingsovereigntyoverJerusalem.In2002Congresspassedthe
FAMActtoallowcitizenstolisttheirbirthplaceasJerusalem,Israelbecausepreviously,State
DepartmentpolicylisttheCityandthesovereignstatewithcontrolofthecityonpassports.
TheU.S.ParentsofachildborninJerusalemwishtohaveIsraellistedaswell.
Decision:AffirmedforDefendants
Issue:WhethertheFAMActinfringesuponthePresident’sPowertorecognizeforeign
governments.
Holding:Yes.ThePresidenthasexclusivepowertorecognizeandthereforeCongress’act
unconstitutionallyinfringesuponhis/herpower.
ReasonsforDecision:Majority:1.QuasitextualbasisfortheRecognitionPowerofthePresident
intheReceptionClause.2.StructureofArticleIIpowersaffirmsthatthePresidenthasthesole
powerofrecognition.3.PublicPolicynecessitatesthatthecountrymustspeakwithonevoice
inForeignAffairs,andthatbelongstothePresident.4.WhilethePresidenthasexclusivepower
torecognize,therearestilllimitstohisForeignAffairspowersaslaidoutinArticleI,Section8.
5.Last,itispracticalforthePresidenttohaveexclusiverecognitionpowerandCongressmay
notcontradicthim/herandmayonlyusetheirArticleIpowerstoexpressdisagreement.
Concurrences:Breyer:Thisisapoliticalquestionthatshouldnothavegottenintocourt.
Thomas:1.Executivehasimpliedinherentpowersnotexpresslymentionedinhe
constitution.2.PhilosophersshowthisUnitaryExecutiveideawaswidespreadandwhatthe
Framersoriginallyintended.3.Passportshavealegaltraditionofbeingcontrolledbythe
executive.
Dissents:CJRoberts:1.UnprecedentedactcontrarytoJackson’sYoungstown
concurrence.2.ToomuchrelianceplacedontheReceptionClause.3.PuttingIsraelona
passportdoesnotimplicaterecognition.
Scalia:1.Thomasiswrong,thatisnotwhattheFramersintended.2.Naturalization
PowerofCongressisatoddswiththeReceptionClause.3.AllowingIsraeltobeplacedonthe
passportwouldhelpforidentificationpurposesanddoesnotimplicatetheReceptionClause.4.
FairreadingofentireconstitutionallowsCongresstohavesomepowerinrelationtoForeign
Affairsaswell.5.Last,Presidentisnotabovethelaw,hemust“TakeCare”thelawisfaithfully
executed.
Case:Bond.v.U.S.
Facts&ProceduralHistory:AtreatyoutlawingChemicalweaponswaseffectuatedbyanactof
Congress.Theactwasbroadandincludedmanychemicalsintothelanguageoftheactallowing
formanyhouseholditemstobeconstruedasfallingundertheAct.Thedefendantattemptedto
giveherex-best-friendarashforsleepingwithherhusband.The”friend”contractedaminor
rashanddefendantwasprosecutedundertheact.
Decision:ReversedforDefendant.
Issue:WhetheradomesticuseoftwochemicalcompoundsfellundertheAct.
Holding:UnlessCongressexplicitlystatesthattheyintendforanActeffectuatingaTreatyto
applytopurelylocalactivity,theAct/TreatycannotbeusedtointrudeontheStates.TheAct
andTreatywereclearlytocurbterrorismandwaranddoesnotapplytodomesticpoisonings.
ReasonsforDecision:Majority:1.IfCongresswishestoradicallychangethebalanceoffederal
andstatepowers,theymustbeexplicitaboutit.2.Weretheacttoapplyinthiscontext,it
wouldcauseabsurdresultsallowinganyonewhopoisonsafishtobeprosecutedundertheact.
Scalia:Wishestostrikedownthetreatyandreachtheconstitutionalquestion.
Thomas:SameasScaliainwishingtolimittheTreatypowerfurther.
Case:U.S.v.Guest
Facts&ProceduralHistory:DefendantsindictedforcriminalconspiracytodepriveAfricanAmericancitizensoftheirConstitutionalrightsaftermurderingareservistofficerreturning
fromactiveduty.Thefederalindictmentwasbroughtafterthedefendantswereacquittedin
statecourt.TheDistrictCourtgranteddefendantsmotiontodismissforfailuretostateaclaim.
TheStateappealed.
Decision:ReversedforPlaintiffs.
Issue:WhethertheStateallegedacomplaintagainstdefendantsbecausetheActdoesnot
allowforactionagainstprivateparties.
Holding:ThecomplaintallegedabroadenoughallegationtoincludePublicactionenoughso
thatamotiontodismissforfailuretostateaclaimwasinappropriate.
ReasonsforDecision:1.TheactionwasnotwhollyPrivate.2.Civilproceduredictatesthat
plaintiffshaveachancetodiscoverwhethertherewasPublicactionenoughtoconvictthe
privatepartiesaswell.
Concurrence:Clark:MajorityshouldhaveaddressedthattheActalsoencompasses
PrivateConspiracies.
Concurrence/Dissent:Brennan:1.Section5ofthe14thAmendmentclearlyprohibitsall
conspiracies.2.Privateactorsprohibitingequaluseofpublicfacilitiesismostdefinitelycovered
bytheAct.3.Mostofthecourtrejectstheideaofnotdecidingontheconstitutionalquestion.
4.ThereisnoprincipleorreasonwhyCongressdoesnothavethepowertoprotectequalrights
fromactionsofbothpublicandprivatepeople.
Case:Jonesv.Alfred
Facts&ProceduralHistory:Plaintiffssuedforaninjunctionunder42U.S.C.Section1982
becauseDefendantwouldnotsellthemahomeforthesolereasonofPlaintiffbeingAfricanAmerican.TheDistrictCourtdismissedthecomplaintstatingthatthecauseofactiononly
appliedtopublicactors.TheSupremeCourtReversed.
Decision:ReversedforPlaintiff.
Issue:WhetherSection1982prohibitsbothpublicandprivatediscrimination.
Holding:Section1982“barsallracialdiscrimination,privateaswellaspublicinthesaleor
rentalofpropertyandthatthestatutethusconstruedisavalidexerciseofthepowerof
Congresstoenforcethe13thAmendment,andCongresshadthepowertoenactthelegislation.
ReasonsforDecision:Majority:1.Theact,bothonitsfaceandlegislativehistory,prohibitsall
discrimination.2.The13thamendmentoutlawedslaveryandallowedCongresstoenactall
legislationN&Ptogetridofslavery.3.SinceCongressmaydeterminewhatremainsofslavery,
discriminationisabadgeandincidenteffectofthateraandCongresshastheauthorityto
eliminateit.4.Congresshadarationalbasisforprotectingthosefundamentalrightsvestedto
Particularly housing discrimination!
allcitizensoftheU.S.
Dissent:Harlan:Theterm“right”asusedinSection1982is“ambiguous”.
NoteCases:
Case:Reidv.Covert
Holding:AnExecutiveAgreementmaynotallowCongresstoprovidemilitaryjurisdictionto
civiliandependentsoverseasforoffensescommittedbyAmericansoverseas.Thisisbecause
theConstitutionallimitstheentireSovereignandmaynotaffectindividualrightslikedue
process.
Case:Downesv.Bidwell
Holding:TheFederalGovernmentisnotboundbyeveryConstitutionalprovisionwhen
operatingoutsidetheU.S.becausetheConstitutionisoperativeonly“throughouttheU.S.and
amongtheseveralstates.”
Case:U.S.v.Price
Holding:Privateactorsworkingwithpublicactorsmaybeindictedforcriminalconspiracy
whenevertheyengagedinprohibitedactionstodenyequalrights.
Case:Screwsv.U.S.
Holding:Tobechargedwithcriminalconspiracytodenyequalrights,thedefendantmusthave
intendedtodenyequalrights.
Case:Griffinv.Breckonridge
Holding:Privateactorsmaybereachedwithacriminalconspiracychargewhentheyintendto
depriveothersofequalprotectionorequalprivilegesfroaraceorclassbasedreason.
Case:UnitedBrotherhoodv.Scott
Holding:Privateactorsmayinfringeonon1stamendmentrightssolongaspublicactorsarenot
involved.
Case:Brayv.AlexandriaWomen’sHealth
Holding:Animustowardsabortionisnotclass-basedcriminalconspiracyagainstwomen.
Case:Sullivanv.LittleHunting
Holding:Privatesocialclubsmaynotdiscriminatesolelyonthebasisofrace.
Case:Runyonv.McCrary
Holding:Privateschoolsmaynotdiscriminatebasedonrace.
Case:Carolinav.Katzenbach
Holding:Forefficiency’ssake,theVotingRightsActof1965wasnecessarytomaintainthe
rightsofAfrican-AmericansintheU.S.withouthavingtolitigateonacasebycasebasis.
Case:Lassiterv.Northhampton
Holding:LiteracytestsareavalidbarriertovotingbecauseitiswithintheStates’policepower
andbecauseliteracyis“neutral”.
Case:S.C.v.Katzenbach
Holding:Everytimeastatediscriminatesusingliteracytestsandotherbarrierstovoting,all
barrierstovotingaresuspendedforfiveyears.Anynewbarrierstovotingwillbeunderscrutiny
bythefederalgovernmenttomakesuretheydonotviolatevotingrights.
In-ClassDiscussion
Hypo:
1. Lastintime,firstineffect=CongressionalStatutes.Thiskindofperspectivemightbe
difficulttoapplytoHypotosaythatweareinJacksonCategory1.Becausethisview
isdifficultifnotimpossibletoapply,wearemostlikelyinCategory3because
Presidentdoesnothavethepowertoincurdebt,Congressdoes.Congresshasnot
giventhePresidentthepowertoincur,onlytospendwithaperhapslimitedbudget
becausehecannotspendpasttherevenues.
a. TheWarPowersargumentisalsobadbecauseofYoungstown.
2. Placeholder
Woods:
1. YourOutlineissufficient.OnN&Pclauseandstuff.
2. Thereistheideathatthefederalgovernmenthastakenthefederalprisonersoutof
thestate’shandsandarenowresponsiblefortheeffects.Congresswenttowar,
nowtheyhavetofixit.–AlitoSexOffenderCase
Missouriv.Holland:
1. Jon:SeemstobeliketheDormantCommerceClauseinthatthereisaNational
Interest.
2. EvenifithadbeenunconstitutionalunderasaCongressionalAct,aTreatyisthe
“supremelawoftheland”andhasgreaterimportance.Congresshasgreaterpower
toeffectuateatreaty.
3. Kendall:Congresshasbroaderauthoritywithregardstoatreaty.
4. Congressseemstohaveanunboundedpowertoeffectuatethecontentsofatreaty.
5. HomesseemstosaythataSovereignNationhasanunboundedinherentpowerto
treatywithotherSovereignsthatdoesnotresideinthepeopleofthenation.
a. Whocares,wearetalkingaboutaTreaty,sonotUnconstitutional.
b. UnlessperhapsitexpresslycontradictstheConstitution.
6. ThetextualargumentmightbebogusontheSupremacyClause,becauseitseemsto
bethetreatyisonlyvalidifitismadeinpursuanceoftheConstitution.
7. HolmesalsosaysthatthegovernmentcannotbelimitedwhentheFramerscould
neverhaveanticipatedcurrentevents.
8. FederalistsmustbeafraidbecausetheredoesnotseemtobealimittotheTreaty
powerotherthanitmighthavetohaveanationalinterest.
Reidv.Covet:
TheSovereignmaynotinfringeupontheindividualrightsguaranteedbythe
ConstitutionthroughTreaties/ExecutiveAgreements.
ForeignAffairs->4Issues:
1. TheMissouriissueontowhatextentmayTreatiesbeusedtoregulatepastthe
enumeratedPowers
2. TheReidIssue:CantheU.S.maketreatiesagainstConstitutionalRights?
3. Note3:Isthereageneralforeignaffairspower?HowextensivelymayCongress
regulateinpursuanceofatreaty?
4. HowmuchdoestheConstitutionlimittheFederalgovernment?Bothinafederalism
perspectiveandinanindividualway.
Particularly outside us territory
Zivotofskyv.Kerry:
1. Majority:
a. Presidentisbosshere&thenationmustspeakwithonevoice;thevoiceof
thepresident.
b. Article2Section3TextualargumentthatthePresidenthasthediscretionto
receiveambassadors,sohethenhasthesolepowerofrecognition.
2. Dissent:
a. Disagreewithtextualandoriginalistargument.Presidentshouldtakecare
Congress’act.
Bond:
1.TheMajorityinterpretsthestatutetoignoreaconstitutionalproblembecause
TerrorismandChemicalWeaponsareclearlydifferentfrommaritalproblems.
2.JusticeScaliaseemedtoalsorejectcompletelyHollandvMissouri.
Day 32 ConLaw Outline: Hypo: ​U.S. and Canada think violence against Women is an international problem, signs Violence Against Women Treaty (that was struck down in Morrison) providing that any victim shall have a private cause of action for violence against them. Constitutionality is challenged because of Morrison. Victim: But this is a treaty Seems more like Missouri v. Holland ­ Would be OK Missouri v. Holland (401) Statute: Prohibits the killing, capturing or selling of any of the migratory birds (affecting interstate commerce, but this was before the expansion of the commerce clause which is why lower courts found the statute unconstitutional) included in the terms of the treaty except as permitted by federal regulations compatible with those terms. Treaty: The President then entered into a treaty with Great Britain regulating the capture, killing, and selling of the protected migratory birds. Missouri Claims → the statute is an unconstitutional interference with the right reserved to the States by the Tenth Amendment and the President did not have authority to make a treaty on such a topic. Procedural History: District Court held the Act constitutional. SCOTUS​: Affirmed. The treaty and statute must be upheld. Reasoning: 1. Looking at the Tenth Amendment is insufficient because Article II Section 2 expressly delegates the power to make ​treaties​, and Article VI states that treaties made under the authority of the United States are declared the supreme law of the land. Treaties are different than statutes; as a treaty the court thinks congress has a more broad power not just limited to enumerated powers constrained at this point in history by the 10th amendment, maybe congress has enumerated powers? a. The treaty is valid because the government is acting as a sovereign (seems like Holmes is getting at a pre­text power) i.
If the power is outside of congress’ enumerated powers, Holmes seems not to care. b. If the treaty is valid, then the statute is valid under Article I Section 8 as a necessary and proper means to execute Government powers. 2. Limits to the treaty making power: a. Cannot infringe on the constitution b. A treaty cannot do what an act of congress cannot do unaided, in derogation of Well, thats the argument M v
powers reserved to the States H rejects
3. Treaties are declared the supreme law of the land when they are made under the authority of the United States. a. Did the U.S. have the authority to make this Treaty? YES i.
The treaty does not violate any prohibitory words found in the Constitution b. Is the treaty forbidden by the 10th Amendment? NO i.
National interest is at stake ­ migratory birds (because if the birds are not protected, there may not be any birds to fight for power over!!) ii.
The birds can only be protected by national power. The birds are not permanently in any one state because they migrate, however, they are in the country at large, therefore, the government has superior power of the states in this matter. iii.
Relying on states to protect the birds, and thus the food supply, forests, and crops is insufficient 4. Textual Argument: Supremacy Clause ­ Acts of Congress v. Treaties a. Constitution is the Supreme law of the land b. Acts of Congress → are supreme law of the land only when made in pursuance to the constitution c. Treaties → declared supreme law of the land when made under the authority of the U.S. (not under the authority of the U.S. ​in pursuance of the Constitution​, Holmes reads this to suggest that treaties do not need to be in pursuance of the Constitution) 5. Living Constitution idea ­ framers could not have thought of all the things the future government would have to deal with Notes. P 403­405 2. Justice Holmes appears to assume that Congress could regulate subjects beyond its enumerated powers under the treaty power. Reid v. Covert​: Executive agreements entered into with other nations provided military jurisdiction to American military courts over civilian dependents of American servicemen overseas. SCOTUS held this to be unconstitutional because: ­ no agreement with a foreign nation can confer power over Congress, or any other branch of government ­ This is ​UNLIKE​ ​Missouri v. Holland​ Because: ­
­
This was an executive agreement versus a treaty The treaty in Missouri was not inconsistent with the constitution, whereas the agreement here is because it deprives civilians of bill of rights protections (i.e. Fifth and Sixth Amendment rights) Consistencies between Reid v. Covert and Missouri v. Holland: 1. The court looks at what type of power was exercised (treaty v. executive agreement) 2. Considers whether there was authority for the exercise of power a. Article I Section 8 ­ Is it necessary and proper for the execution of government powers? b. Article II Section 2 ­ power to make treaties 3. Considers whether it infringes on the Constitution 4. Considers whether it infringes on state rights under the 10th Amendment a. Considering the magnitude of the interest sought to protect b. Is state power sufficient? 3. ​Perez v. Brownell​ ­ Court recognized Congress’ power to regulate foreign affairs by sustaining a statute pertaining to the loss of citizenship Downes v. Bidwell​: Court held the government is not always bound by every provision of the Constitution when operating outside the U.S. Some power is given to Congress to act solely within the United States, and some powers are given to Congress irrespective of time and place. Thus, the Constitution does not necessarily apply to U.S. territories beyond the several states. (i.e. The Revenue Clause of Article I Section 8 does not apply outside of the Unites States. Problem​: Citizens of U.S. territories not apart of the “several states” may not have the full benefits of the Constitution available to them, and could also be subject to laws in which citizens of the United States are not subject to. Why is this a problem? Oppression. Foreign affairs issues: 1. To what extent can treaties be used? 2. Can the U.S. make treaties that are contrary to individual rights? 3. Is there a general foreign affairs power? 4. Does the constitution follow the flag? In territorial bounds of U.S. or completely outside the bounds of the U.S.? Zivotofsky v. Kerry (Supp 19) President Truman recognized Israel in a signed statement of “Recognition”, yet no president has issued an official statement or declaration acknowledging any country’s sovereignty over Jerusalem. State Department Foreign Affairs Manual (FAM) instructs employees to record the place of birth on a passport as the country having present sovereignty over the actual area of birth. Since the U.S. does not recognize any country having sovereignty over Jerusalem, FAM records the place of birth for citizens born there as “Jerusalem”. Congress then passes the Foreign Relations Authorization Act, overriding the FAM, by allowing citizens born in Jerusalem to list their place of birth as “Israel”. Issue: Zivotofsky, born to two U.S. citizens living in Jerusalem, claims the right to have his birthplace recorded as Israel under the Act. Court (Majority): ​The president’s refusal to implement the above section of the Act, he is in Justice Jackson’s 3rd Category (the “lowest ebb” of power). Therefore, his claim must be scrutinized with caution, and must rely solely on the powers granted to him by the Constitution ­ and that’s OK because through textual and structural arguments, we see this power is granted by the Constitution. Textual argument giving President recognition powers: 1. The Constitution does not use the term “recognition” in Article II or anywhere else. 2. The Article II Section 3 Reception Clause directing the president to receive ambassadors could be understood to acknowledge his power to recognize foreign nations 3. Other Article II powers grant President the power to: a. Make treaties with the advice and consent of the senate, provided ⅔ of senators agree. b. nominate , and with the advice and consent of the senate, appoint ambassadors Structural argument: 1. These additional powers give President control over recognition decisions: a. The President has sole power to negotiate treaties b. The Senate may not conclude or ratify a treaty without action by the President c. The President nominates the Nation’s ambassadors d. President can engage in direct diplomacy with the heads of foreign nations, opening up diplomatic channels 2. Therefore, the Constitution assigns the President the power of recognition through his own means 3. It follows, Congress has no Constitutional power to initiate diplomatic relations with a foreign nation Conclusion ​→ The Constitution’s text and structure grants the President the power to recognize foreign nation’s. Question: Is this power exclusive to the President?​ Yes Reasoning: 1. The President has various means to effect unilateral recognition, Congress lacks that power. 2. There must be a single standpoint as to which foreign nations are and are not recognized by the U.S. → The nation must “speak with one voice” regarding recognition a. Why? So foreign nations know whether or not ambassador’s will be received by the U.S. whether officials will have immunity from suit, etc., before entering into diplomatic relations. 3. What is Congress’ role in all this? a. Many decision affecting foreign relations requires congressional action i.
I.e. The President cannot make a treaty or appoint ambassador without Senate’s approval b. President can recognize, but Congress’ powers give the President’s recognition authority (through policy determinations and law making). c. The President’s recognition would be merely symbolic and would have no effect if he could not appoint ambassadors, make treaties, etc. d. Political process: President makes recognition → may require Congress to make laws for the recognition to be effectuated 4. Does the Act infringe the Executives consistent decision to withhold recognition of Jerusalem? a. President makes his own determinations re: recognitions AND may maintain that determination throughout the executive branch; Why? Common sense and necessity. b. Congress cannot command the President to state a recognition inconsistent with his own i.
Why? Because this would contradict the notion that the Nation must ‘speak with one voice’ ii.
Congress CAN express disagreement with the recognition, by for example, declining to confirm an ambassador Good!
Justice Breyer’s Concurrence:​ This is a political question... Justice Thomas concurring in part and dissenting in part: 1. Textual analysis: a. By omitting ‘herein granted’, Article II indicates that the executive power vested in the President is not confined to the powers expressly identified. i.
In contrast to Article I, which states “legislative powers herein granted” to congress 2. Originalist analysis: a. Founding­era evidence reveals “executive power” included foreign affairs powers of a sovereign state. i.
Historical evidence​: John Locke’s writings, Blackstone in analyzing England’s executive powers, James Iredell ­ during ratification period, saying the President would “regulate intercourse with all foreign powers”, Anglo­American legal tradition­ passports consistently controlled by body exercising executive power (In the U.S. ­ since President Washington). Chief Justice Dissent: Response to Textual Argument: 1. President’s power is in it’s lowest ebb when he contravenes the express will of Congress 2. Reception Clause ­ the provision framed as an obligations (rather than an authorization) appears alongside duties imposed on the President by Article II Section 3. 3. The President has power to make treaties and appoint ambassadors but that power is SHARED with Congress. History: 1. Past Presidents have been mixed between views of exclusive recognition and uncertainty about whether that exists. → Even if the President does have exclusive recognition powers, the statute does NOT implicate recognition. Why? Congress has not altered the U.S.’s position on Jerusalem by the statute. Is that convincing?​ Not really, because in recording the birthplace as Israel, it could look as though the U.S. is recognizing Israel as having sovereignty over Jerusalem, which would be contrary to the executive branch (through the State Department) deciding to record the birthplace as Jerusalem since the U.S does not recognize any country as having sovereignty over Jerusalem. Justice Scalia Dissent: 1. The section of the Act in question has nothing to do with recognition, but of citizenship, in which Congress has the power to effectuate grants of citizenship by issuing certificates authenticating them. 2. Congress has the discretion to choose what it deems most beneficial to the people, thus, recording the birthplace as Israel would be better for foreign policy. (​Is this true though? Because it could actually injure foreign policy if other foreign nations perceive the U.S. as stating that Israel has sovereignty over Jerusalem. Wouldn’t that get into executive powers since it could negatively affect foreign relations?) 3. In areas of shared authority between Congress and the President, the Constitution would be turned upside down if the executive authority would preempt the congressional law. Why? Because Congress may make laws deemed necessary and proper v. the President MUST ‘take care’ that Congress’ legislation be faithfully executed. a. Acts of congress = supreme law of the land. Acts of President are not. Bond v. U.S. (supp 27) (briefly discussed) Majority: The court interprets the statute to prevent constitutional trouble. Statute: prohibits chemical warfare. Prosecutor tries use statute to convict a woman for trying to give a rash to her husband’s mistress (not quite the warfare probably intended by Congress) DAY 32 OUTLINE
Missouri v. Holland
Facts: U.S. and Great Britain sign a treaty aimed at protecting certain migratory birds that were
nearing extinction.
Holding: The treaty was constitutional.
Reasoning: Need to look past the 10th Amendment. Treaties are different than statutes and
should not be treated as such. Authority to pass treaties is under Art. II, Sec. 2 and under Art. VI
treaties are supreme law of the land. The Constitution itself says “all treaties made, under the
Authority of the United States” is supreme law. Justice Holmes states that since the words “in
pursuance of the Constitution” are not attached to treaty making, treaties do not need to be
constitutional. The Court finds that Congress has much broader powers under treaty making
than they do under statute making.
The Court in this case make it seem that Congress's treaty making powers may be unlimited.
The Court seems to imply that Congress can go beyond their enumerated powers when creating
treaties.
Hypo: Obama and Canadian Prime Minister get together and sign a treaty banning violence against
women (essentially the same thing that was struck down in Morrison). Constitutional?
– Under Missouri v. Holland, the treaty would be constitutional. Since the Court in Holland
did not seem to place any limitations on the treaty making power, as long as it went through
the constitutional process it is valid.
Reid v. Covert
Facts: There was an executive agreement in place to provide the United States with sole
jurisdiction over American soldiers who are overseas.
Holding: Agreement was unconstitutional.
Reasoning: This case is different than Missouri v. Holland because there was not a treaty in
place. Rather, this was an Executive Agreement and the Court held that Executive Agreements
must be in pursuance of the Constitution. The Court found this agreement to be in violation of
a constitutional right, ergo, unconstitutional.
Distinguish affirmative individual constitutional rights vs mere lack of enumerated power
Four distinct issues related to the scope of the foreign affairs power:
1. Can Congress (or the President! Remember Dane Moore) use it to regulate individual domestic
activity beyond the scope of its Art. I sec. 8 powers?
2. Can Congress (or the President!) use it to regulate notwithstanding Con Law II individual
rights?
3. To what extent does Congress (or the President!) have power to directly regulate Americans’
relationships with and acts toward foreign countries beyond enumerated powers?
4. What can Congress (or the President!) do abroad that it can’t do on U.S. soil?
Zivotofsky v. Kerry
Facts: Congress passed law allowing people born in Jerusalem to list their place of birth as
“Israel”. The President had never recognized Jerusalem as belonging to Israel.
Holding: Congress's law is unconstitutional.
Reasoning: The nation must speak with one voice in regards to foreign recognition. When
Congress and the President are at odds as to “what voice” should be speaking, it has historically
been understood to be the President's voice that carries. Textually, the Court looks to Art. II
which states the President “shall receive Ambassadors and other public Ministers and Consuls”.
The Court reasons that receiving ambassadors is akin to recognizing foreign nations.
CONLAWOUTLINE
DAY36
4/19/16
HYPO:
Asyouremember,U.S.v.MorrisonstruckdownpartoftheViolenceAgainstWomenActas
exceedingCongress’scommercepower.Suppose,however,thefederalgovernmentagreesto
aninternationalprogramofabolishingviolenceagainstwomen,includingacivildamages
provisionlikethatstruckdowninMorrison?Isthatconstitutional:
•ifenactedasan“executiveagreement?”
•ifenactedasa“self-executing”treaty,confirmedbytheSenate(remembertheMedellincase
fromweek11)?
•ifenactedasanon-self-executingtreatythatissubsequentlycarriedoutbyordinary
congressionallegislation?
isthereanysubjectmatter,internationalimpact,orothersubstantivetestthatthecourt
will/shouldusetodecidewhethertheInternationalViolenceAgainstWomen
legislation/agreement/treatyisconstitutional?
AnswerisinMissouriv.Holland…
Missouriv.Holland(1920)
Ideaisthattreatiesaredifferentfromstatutesandimportantlydifferentfromstatutes.Evenif
thiswouldbeunconstitutionalasastatute,asatreaty,thecourtseemstothinkthatcongress
hasbroaderpowerthatisnotjustlimitedtoenumeratedpowersconstrainedbythe10th
amendment.
"itisobviousthattheremaybemattersofthesharpestexigencyforthenationalwellbeing
thatanactcould,anditisnotlightlytobeassumedthat,inmattersrequiringnationalaction,
"apowerwhichmustbelongtoandsomewhereresideineverycivilizedgovernment"isnotto
befound."
• Whocares,wearetalkingaboutatreaty!
"Thetreatyinquestiondoesnotcontraveneanyprohibitorywordstobefoundinthe
constitution.Theonlyquestioniswhetheritisforbiddenbysomeinvisibleradiationfromthe
generaltermsoftheTenthAmendment"
"Actsofcongressarethesupremelawofthelandonlywhenmadeinpursuanceofthe
Constitution,whiletreatiesaredeclaredtobesowhenmadeundertheauthorityoftheUS."
• SUPREMACYCLAUSE
JusticeHolmesreadsthattreatiesdon'thavetobemadeinpursuanceoftheConstitutionor
theCongress.Hereads"undertheauthorityoftheUS"asbroaderthan"inpursuanceofthe
Constitution"intheSupremacyClause.Heisstillsayingthoughthatitcannotviolatethe
Constitution.
Whatdoesitmeantobemade"undertheauthorityoftheUS"?Whoknows….
JusticeHolmeswastoosmartforthecourt.
Livingconstitutionalismtext,oneofthemoreaggressivepassagesthathasalivingconstitution
feeltoit.Theframerscouldnothavethoughtthiswouldhappenandwearenotgoingtoallow
thosethoughtsofpeople100yearsagotodictate.
Reidv.Covert(1957)
UnlikeMissouriv.HollandbecauseReidv.CovertcoveredsomethingthatviolatedaConlaw2
provision.
Thereisadifferencebetweenatreatythatexpresslyviolatesaconstitutionalprovisionvs.a
treatythatismadethattheFramerswouldneverhadthoughtabout.
4distinctissuesinthedomainoftheforeignaffairspowers:
1. MissouriIssue-towhatextentcancongressortheUSusetreatiestoregulatebeyond
Congress'senumeratedpowers
2. Reidv.CovertIssue-cantheUSmaketreatiesthatarecontrarytoindividualrights
specifiedinconstitution
3. Note3Issue-isthereageneralforeignaffairspowerinthecongressorthepresidentor
comboofbothtoregulateournationwithforeignnations
4. Conlaw2question-doestheconstitutionfollowtheflag?HowmuchoftheConstitutional
restraintonthefederalgovernmentapplieswhenthefederalgovernmentthatisinthe
territorialboundsoftheUSorcompletelyoutsidetheboundsoftheUS.
Note how 4 could be a conlaw 1 or conlaw 2 issue---can Congress do
unenumerated stuff abroad, and, can it violate individual rights abroad?
Zivotofskyv.Kerry(2015)
Howdoescourtanswerthestructuralquestionofwhogetstodecide?ExecorCongress?
Basicissue:presidentdidnotwantIsraeltobeputonthepassportsofpeoplefromJerusalem.
Why?BecauseJerusalemisindisputeofwhatcountryitbelongstoandthepresidentdoesnot
wanttogiveUSallegiancetoonecountry.Congressdisagreesandsaysthatifpeoplebornin
Jerusalemcandecidewhatcountrytheywanttohaveontheirpassport.Cancongressforcethe
presidenttoactinsuchawaytoimplytheclaimrecognitionthatIsraelhasauthorityover
Jerusalem.
• Courtsayspresidentwins.
KeyQuestions:
1. Vaguepolicyargument-nationmustspeakwithonevoice!Ifcongressandpresident
disagree,thenwhosevoice?!
2. ArgumentonnotionofreceivingambassadorsinArt2§3.Thissectionbothhascommands
topresidentandwhatpowersofthepresident.Lastthreeclausesareproblematic….
"shall"aretheypowersthatthepresidentmayemploytohisdiscretion?Wehavealready
talkedaboutthetakecareclause..Andnowwehaveasimilarpointonthereceive
ambassadorsclause.Courthasoriginalistargumentthatreceivingambassadorsmeans
recognizingothernations(gameofthronesidea).Courtalsoreadstheshallasamay,
and/orasshallaswhen…readsitasgivingthepresidentthepowertorecognizeanother
countryandthescopeofanothercountry.Therefore,presidenthasdiscretionto
recognizewhetherJerusalemispartofIsrael.Becausethereisadisputebetween
congressandpresident,thepresidentwins.
Dissent:
Disagreeswiththeoriginalistpoint.Disagreementwhetheritisapoweroraduty.
Bondv.US(2014)
Importantfortworeasons:
1. Thecourtinterpretsthestatutetopreventconstitutionaltroubleorproblems.Thecourt
justsaysthatwehavethisestablishedprinciplethatifwethinkitlookslikeastatute,we
maybemessingaroundwithconstitutionalauthority.
2. ScaliawantstocompletelydisregardMissouriv.Holland..
a. Thetreatypowerunderstoodasanaffirmativepowerkindofmakessense.Treaties
canbindgovernmentwithrespecttoforeignpowers,createssomestabilityin
internationalaffairs.
b. Butwhenwegetintotreatiesthathavedomesticeffect,itstartstolooklikethe
powertomakeatreatyisanopenendedsubject.Canbeanendrunaroundtheidea
ofenumeratedandseparationofpowers.
c. WhatisJusticeScalia'svisionofthetreaty?
i.
Somethingthatbindsournationwithforeignnations,butnotbindon
domesticaffairs.
ii.
Treatiesareonsubjectsofforeignconcern
iii.
Treatiesdonotcarrywiththemalawmakingpowerwiththemunderthe
necessaryandproperclause
**B/cGowderisagreeingwithScalia,weknowsomethingcrazyisgoingon!
ItisseriouslyworthconsideringwhetherMissourihasgonetofarandifitegregiously
disregardsseparationofpowers…
APRIL19,2016
CONLAWI
PROFESSORGOWDER
CONGRESSIONALTREATYPOWERANDEXECUTIVEPOWER
- HYPO:SupposetheUnitedStatesandCanadacometogetherandObamaand
Trudeausitdownandconcludethatviolenceagainstwomenisan
internationalproblemandthestategovernmentsarefailingtodoanything
aboutitandit’saffectingbothcountries.Thereisacommonculturebetween
theU.S.andCanada.TheyareworriedthattherapecultureaffectsCanada
andtheU.S.Theydecidetosignatreatyprovidingthatanywomanwhohas
violencecommittedagainstherhasaprivatecauseofaction.President
ObamatakesittotheSenatetogetratifiedandTrudeautakesittohiscouncil
anditisallapproved.ThetreatyreenactsthelawstruckdowninMorrison.A
persondoessomethingthatviolatestheviolenceagainstwomentreatyand
getssuedinCourt.Thedefendantstatesthetreatyisunconstitutional,see
Morrison.Theplaintiffsays,butthisisatreaty.Whatresults?
o UnderMissouriv.Holland,thistreatywouldbeheldtobe
unconstitutional.
o IfyoujusttakeMissouri,weseemtohavethisopenendednearly
unboundedprincipleofCongressionalpower.
§ Ifthepresidentmakesatreatythatlookslikeit’simportant,
thenthepresidentandtheSenatecandoitandthenthatwins.
§ Ifyoulookatpage402¶2,JusticeHolmessays,“Wedonot
meantoimplythattherearenoqualificationstothetreatymakingpower;buttheymustbeascertainedinadifferent
way.”
• Thisisanimportantpassage.
• Whathemeansisdifferentfromreadingthetextofthe
Constitution.
o Thisshouldraisesomeredflags.
• Whatthispassagesuggestsisthatwearetalkingabout
aninherentpowerthatisattachedtosovereignty.
o Basicallyheissayingeverygovernmenthas
broadtreatypowerovercertainthings.By
incidenceofsovereignty,governmentshavethe
powertomaketreatieswithothergovernments.
§ Inaccordancewiththat,thepowerto
settleuponanationalcourseviaatreaty
doesn’tarisefromenumeratedpowers.
§ Itarisesfromthecountrybeinga
sovereign.
• Itstartstofeellikeareallyunboundedandpretextualin
thesenseofarisingbeforethetextkindofpower.A
1
powerlimited,potentially,bycontraveningany
prohibitorywordsintheConstitution.
o JusticeHolmesdistinguishesConLawIversus
ConLawIIobjections:
§ (1)Thisisn’twithinCongress’s
enumeratedpowers.
§ (2)Theconstitutionspecificallyprohibits
that.
§ JusticeHolmesissaying,whocaresabout
objection#1,wearetalkingabouta
treaty.
§ However,objection#2maystillfly.
• WhatJusticeHolmesissayinghere
isthatwemaystillinvalidatea
treatythatcontraveneswith
wordsexpresslyprohibitedbythe
Constitution.
• However,ifitissomethingoutside
ofCongress’senumeratedpowers
Holmessays,that’snicebutso
what?
§ InMissouri,SCOTUSupholdsthetreatybetweentheUnited
StatesandGreatBritainprotectingmigratorybirds,becausea
nationalinterestisinvolvedinregardstothetreatyandcan
onlybeprotectedbynationalaction.Thestatesareaffected
onlytemporarily.
• TheConstitutionexpresslygrantsthefederal
governmentthepowertomaketreaties.
• Thistreatydoesn’tcontraveneanyprohibitorywordsin
theConstitution.
• Treatiesareimportantlydifferentthanstatutes.
o Evenifthe10thAmendmentwouldbesufficient
tostriketheordinarystatutedown,asatreaty
thecourtseemstothinkthatCongresshas
broaderpowerandisnotjustlimitedto
enumeratedpower.
§ MaybeCongresshasevenunenumerated
powers.
• TreatypowerisbroaderthantheauthorityCongress
possessestoenact.
o Isitwhenthetreatyinvolvesgenuineinternationalissuesthat
treatiesareallowedtobeconstitutionalandnotinvalidated?
§ Ifwearedealingwithawarwithanothercountry,the
PresidentandtheSenateneedtobeabletoactintheinterest
ofthecountryanditsconstituents.
2
However,ifatreatiespurposeistoforexampleprotectchild
laborthenitmaybeharderfortheCourt’stofindit
constitutional.
• Bearinmind,therearethingslikehumanrightsissue
thatmaybepurelydomesticandhavebeenheldvalid.
SothereareinstanceswheretheCourtmayfindthe
treaty,likeintheHYPO,constitutional.
o IsthereatextualargumentthatJusticeHolmesalsomakes?
§ HeiscontrastingActsofCongresstotreaties.“ActsofCongress
arethesupremelawofthelandonlywhenmadeinpursuance
oftheConstitution,whiletreatiesaredeclaredtobesowhen
madeundertheauthorityoftheUnitedStates:”
§ HeismakingadirectreferencetotheSupremacyclause.There
arethreecategories:
• (1)Theconstitutionisthesupremelawoftheland
• (2)ThelawsoftheUnitesStates,whichshallbemadein
pursuanceoftheConstitution,wherethereofrefersto
theConstitution.
• (3)AlltreatiesmadeundertheauthorityoftheUnited
States.
o Thelackofthewordpursuanceofthe
Constitutionclausegrammaticallyattachedto
treatieswherethereisonegrammatically
attachedtotheConstitution,JusticeHolmes
meansthattreatiesdon’thavetobeenactedin
pursuanceoftheConstitutionandreadsthatto
meanundertheenumeratedpowers.
o Thisishistextualhookforsayingthatthetreaty
powerisbroaderthanthelawmakingpower.
§ Heexplicitlyreads,undertheauthorityof
theUnitedStatesasabroaderideathanin
pursuanceoftheConstitution.
• AnargumentyoucanmakeagainstJusticeHolmesis,
thattheonlythingsthatcanbedoneunderthe
authorityoftheUnitedStatesarethingsinpursuanceof
theConstitution.
o Therealsoseemstobealivingconstitutionalargumentonpage402
¶2.JusticeHolmessays,thecasemustbeconsideredinlightofour
wholeexperienceandnotmerelywhatwassaidover100yearsago
bytheFramers.
§ TheLivingConstitutionargumentisnotnew.
§ “Wemustconsiderwhatthiscountryhasbecomeindeciding
whatthatAmendmenthasreserved.”
§
Very good
3
-
-
-
Reidv.Covert
o Thiscasedealswithcongressionalpowertoprovideformilitary
jurisdictionoverciviliandependentsofAmericanservicemen
overseas.Executiveagreementsenteredwithothernationspermitted
Americanmilitarycourtstohaveexclusivejurisdictionoveroffenses
byAmericanservicemenortheirdependentsoverseas.
o TheCourtheld,“noagreementwithaforeignnationcanconferpower
ontheCongress,oronanyotherbranchofGovernment,whichisfree
fromtherestraintsintheConstitution.”
§ Inotherwords,individualrightscannotbecontractedawayby
anexecutiveagreementthatisinconflictwiththeConstitution.
§ ThiscaseisdistinguishedfromMissouribecausethelawin
ReidviolatedtheConstitution(ConLawIIprovisions)because
youcan’tsubjectpeopletojurisdictionwithoutdueprocess,
youcan’tdeprivepeopleofjurytrial,etc.
• TheConstitutionexplicitlysaysyoucannotdothose
things.
§ ThetreatyviolatedanexpressprohibitionintheConstitution.
o ThetheoryisthatthelimitingwordsintheConstitutionarelimits
onsortoftheentirefederalpower.
§ NotjustlimitsonArticle1§8enumeratedpowers.
§ Theyaresortoflimitsonthewholemassofsovereigntyitself.
Youshouldbeabletoseehowthereisadifferencebetweenatreatythat
violatesanexpressConstitutionalprohibition(Reid);asopposedtoatreaty
thatjustdoessomethingthattheframersdidn’tsaythatyoucoulddo
(Missouri).
Fourdistinctissuesinthedomainoftheforeignaffairspower:
o (1)TheMissouriissue,towhatextentcantheU.S.usetreatiesto
regulatebeyondCongress’senumeratedpowers?
o (2)TheReidv.Covertissue,cantheU.S.maketreatiesthatare
contrarytoindividualrightsspecifiedintheConstitution?
o (3)Isthereageneralforeignaffairspower?Wehaveafewspecific
foreignaffairspowerswrittenintheConstitution.
§ Treatymakingpower,thepowertoregulateinternationalas
wellasinterstatecommerce,andthelawofnations.
• Beyondthatisthereageneralforeignaffairspowerin
theCongressorthePresidentorsomecombinationofthe
two,toregulateourrelationswithforeigncountries?
o (4)DoestheConstitutionfollowtheflag?Howmuchofthe
Constitutionalrestraintonthefederalgovernment,intermsofCon
LawIenumeratedpowers,applieswhenthefederalgovernmentis
engaginginactivity?(MoreofaConLawIIquestion) Both really
4
a.withintheterritorialboundsoftheUnitedStatesbutnotina
statelikePuertoRicoorGuam.
§ b.completelyoutsidetheboundsoftheUnitedStates.How
muchdueprocessneedstobeprovidedfirst,ifitisnotwithin
theUnitedStates?
Zivotofskyv.Kerry
o Sawthiscasewhenweweredealingwithpoliticalquestionsbecause
itisafightbetweenrecognitionofIsraelandJerusalem.
§ TheCourtwouldnotresolvethat.
o Theywillresolvethestructuralquestionaboutwhichpoliticalbranch
getstoresolvethisquestion.
o ThebasicissueisthatthepresidentdidnotwantIsraeltobeputin
thepassportsofpeopleborninJerusalembecauseJerusalemisa
contestedarea.ThepresidentdidnotrecognizeIsrael’ssole
sovereigntyoverJerusalemeventhoughtheU.S.recognizesIsraelas
such.
o SomecitizensborninJerusalemwanttohaveIsraellistedastheir
countryofbirthontheirpassports.
o CongresspassedtheForeignRelationsAuthorizationAct,which
allowedcitizensborninJerusalemtolisttheirplaceofbirthasIsrael
iftheysochoose.
o ThecourttreatsthisdisputeonwhetherthePresidentorCongress
hastheauthoritytodeterminetheextentoftheUnitedStates
recognitionofIsrael’ssovereignauthorityoverJerusalem.
o CanCongressforcethepresidenttorelyontheclaimedrecognition
thatIsraelhassovereignauthorityoverJerusalem?
o Themajority’sargumenthastwomainpoints:
§ (1)Thevaguepolicyargument.Thatistheclassicforeign
affairsargument.Thenationmustspeakwithonevoice.
• IfCongressandthePresidentdisagreeonquestionsof
foreignrecognition,thenthePresidentmustresolveit.
o TypicallythatvoiceisthePresident.
o It’snotreallyobviouswhythePresidentversus
theCongress,atleastnotunproblematically,
mustresolveit.
§ (2)Atextualargumentaboutthenotionofreceiving
ambassadors.
• Thereisanambiguityinthetext.ArticleII
• OneproblemwithArticleII§3unlike§2,whichisalist
ofthingsthepresidenthaspowertodo,isthatithas
bothcommandstothepresident,notsomethingthe
presidenthasachoiceabout,andpowersofthe
president.
• Thelastthreeclausesareproblematic.Theyareall
phrasedintermsofshalls.
§
-
5
-
o Aretheyobligations?
o Aretheythingsthepresidentmustcarryoutasa
functionaryofCongress?
o Oraretheypowersthepresidentmayexercisein
discretion?
• Wehaveonlyseenthedebateaboutthetakecare
clause,whichmeansthepresidentshallobeyCongress’s
laws.
• Themajorityhasanoriginalistargumentaboutthe
meaningofreceivingambassadorstomeanrecognizing
foreignnations.
• Thecourtreadsthe“receivetheambassadors”clausein
thatway,asareyouaplayerorareyounotaplayer?
• Alsoreadstheshallasamayandreadsitasgivingthe
presidentthepowertodecidewhenanothercountryis
recognizedasalegitimateothercountry.
o Recognitionofwhatanothercountries
boundariesareandthescopeofanother
countriessovereigntythattheUnitedStateswill
recognize.
o ThatentailsthepowertodecidewhetherIsrael
hasasovereigntyclaimoverJerusalemornot.
• TheCourtheld,thePresidenthasthediscretionto
recognizewhetherornotIsrael’sclaimstosovereignty
toJerusalemaretobeaccepted,andsinceCongress’s
statuteallowsthoseborninJerusalemtoputIsraelas
theircountryofbirth,seemstosendadifferentmessage
thanthePresidenthaschosen,thenitfollowsthat
CongressandthePresidentaremakinginconsistent
statementsontherecognitionofforeigngovernments,
theUnitedStatesmustspeakwithonevoiceand
accordingtotheAmbassadorvoicethatvoiceisthe
Presidents,therefore,thestatuteisunconstitutional.
§ ThinkofitnotasCongresshavinganindependentpowerover
recognition,butashavingthatcheck.
• Thesamecouldbesaidaboutthewarpower.The
Presidenthasthepowertocommandthetroops,but
CongressstillgetstocheckthattheSenateultimately
confirmstheSecretaryofDefense.
Bondv.UnitedStates
o Isimportantfortworeasons:
§ (1)Inthemajorityopinion,thecourtinterpretsthestatuteto
preventconstitutionaltrouble.Theirstrategyistointerpret
thestatutetonotraiseconstitutionalproblems.Atthevery
leastitwouldhavetobeahardconstitutionalquestion
6
§
becauseoflingeringissuesleftbyMissouri.Ratherthan
addressthequestion,theCourtsaidwehavethisestablished
principlewheretheymakesureifastatutelookstobemessing
withtheconstitutionalbalanceofstateandnationalauthority,
thentheyaregoingtomakesurethereisnootherreadingthat
works.
(2)JusticeScaliawantstocompletelyrejectMissouriv.Holland.
7
Class Outline 4-20-16
Bond v. United States (2014)
Facts: D charged with violating Chemical Weapons Convention Implementation Act which
prohibits people from producing chemical weapons (defined broadly) when she used gasses to
try giving a rash to her former best friend who was having a child with her husband. Court of
appeals upheld decision of District Court that Congress had power to issue to uphold Chemical
Weapons Convention, an international treaty.
Holding: Decision reversed. Clear indication Congress meant to reach purely local crimes but
that its expansive language in determining chemical weapons resulted in intrusion on police
Well, is it a clear indication? Justices dont seem to agree
power of states in violation of 10th Amendment.
on that
Scalia- Necessary and proper clause does not give Congress the ability to create laws to execute
treaties, even treaties that do not execute themselves. If it did, too much power to override court
decisions and create otherwise unconstitutional legislation. Majority analysis anti-textual.
Thomas- Treaty power limited.
-----------------------------------Civil Rights Powers----------------------------------US v. Guest (1966)
Facts: Six Ds part of a conspiracy to kill Lemuel Penn, black reserve officer, who was returning
to Washington. Ds were acquitted in Georgia then charged federally. District Court dismissed
indictment on grounds it did not charge offense under laws of US.
Issue: Does Fourteenth Amendment allow USC 241 to reach private actors who discriminated
against Constitutional rights of victims?
Holding: Allegation of state involvement in conspiracy enough to overrule motion to dismiss
because that discrimination is protected by Fourteenth Amendment. Unclear if Fourteenth
And this is the really
Amendment via Congressional statute can reach and punish private actors.
controversial part that later
cases have not followed, to be
Brennan: Sec. 5 of Fourteenth Amendment allows Congress to interpret the meaning of clear
discrimination in the Constitution. It also allows Congress to create laws to punish private
conspirators for interfering with constitutional rights.
US v. Price- Three officers let three black men out of jail in Mississippi where 15 other Ds
contributed in killing them. State officials jointly contributed with private actors during all steps,
making private actors chargeable under USC 241 and 242 for violating Vs Fourteenth
Amendment right not to be punished without due process.
Screws v. United States- Local law enforcement arrested man for theft and beat him to death
claiming he reached for a gun- evidence of grudge against V. Court read 242 narrowly defining
willful as purposely depriving someone of Constitutional right (right not to be deprived of life
under 14th) and found that D could not have lack of warning in that context. Specific intent
needed.
Griffin v. Breckenridge- USC 1985 (civil remedies) applicable to certain (torts motivated by
discrimination based on race or class) purely private conspiracies to deprive persons of civil
rights under Thirteenth Amendment. Ps claimed Ds thought they were civil rights workers and
threatened and beat them- wrongful because prevented them from seeking equal protection, of
laws and from enjoying equal rights, privileges, and immunities of citizens.
Jones v. Alfred H. Mayer Co. (1968)
Facts: P claims D refused to sell them a home for sole reason that P is black. P sought injunctive
and other relief. Lower federal courts dismissed complaint concluding it only applied to state
action and not private refusals to sell.
Issue: Does USC 1982 apply to private actors and is it Constitutional?
Holding: USC 1982 bars all racial discrimination, private as well as public, in sale or rental of
property and that statute thus construed is valid exercise of power of Congress to enforce in
Thirteenth Amendment- Thirteenth includes power to eliminate all racial barriers.
Reasons: USC 1982 on its face prohibits all discrimination against people of color in sale or
rental of property- including private owners and public authorities. Legislative intent for that
interpretation- part of Civil Rights Act originally. Thirteenth Amendment includes power to
eliminate all racial barriers to acquisition of real and personal property. Thirteenth gives
Congress ability to abolish all badges and incidents of slavery, which includes right to purchase
property.
Sullivan v. Little Hunting Park- P could sue under USC 1982 for residents association refusing
to assign home to black man and being expelled for it.
Runyon v. McCrary- USC 1981 prohibits private schools from denying admission to
prospective students because they are black.
-------------------------------------------In Class Discussion-----------------------------------------The first person who comes in the door from Professor Hughes’ Criminal Law class is going to
be asked all the questions today. That person is Kevin Protzmann.
Scalia Concurrence in Bond
Shape of treaties now is different from the type of treaties at the founding. Treaties then were
based mostly on foreign affairs related issues. Treaty power with President and Congress in that
scenario made sense to bind the nation. Treaties now have domestic effect and concern; power to
make a treaty now can be an end around enumerated powers. Functionalist argument should
return treaty power to that focusing only on foreign affairs so that they are limited. Treaties
should not have the power to make domestic law under Necessary and Proper Clause.
Civil Rights Enforcement
Thirteenth, Fourteenth, Fifteenth Amendments from Civil War era. Arguments build towards
Con Law II and individual rights. Each Amendment gives Congress the power to enforce them in
an empowering clause at the end of each. Purpose to put Southern States in line after Civil War.
Thirteenth- Abolishes slavery.
Fourteenth- Equalize legal protections between freed slaves and other people.
Fifteenth- Voting Rights.
Interpretations of Congress’ Power Under Amendments
1. Directly allow Congress to regulate states to enforce Constitutional rights. – Made Bill of
Rights Apply to States. Might allow ability to create private right of action. Narrow conception
of power. A. Limited to rights already recognized as Constitutional by Supreme Court. B.
Limited to rights against the states.
2. Congress also has power to come up with own interpretation of rights along with everything in
#1.
3. Congress power is not limited to acting against state actors; can regulate private discrimination
too. Grounds that the private actions are continuation of state actions. Can be with #2 or
independent of #2 along with incorporating #1.
Question Answer- Interpretation of Amendments has gone beyond original interpretations based
on modern applications but are still limited.
Guest
Racial lynching done by both private and state actors. Can Congress criminalize killing African
American citizens on basis of due process right to life?
Holding: State was involved throughout the process, so it can be criminalized.
Brennan Concurrence- Not just trying to make states do something. Trying to bring about
conduct in all society. Congress can interpret what is racial discrimination and can criminalize
private actions under Section 5 of Fourteenth Amendment.
Note Cases
Unlike Brennan’s concurrence, Guest shows state still needs to be involved in some way to reach
private actors who are discriminating. Sue individual person, but person who acted with state
power. Private actor not subject to suit under Fourteenth Amendment. Unclear if he/she would be
under enforcement power after Morrison.
Jones
USC 1982 bars racial discrimination in housing for both public and private actors. Argument that
housing and property ownership is essential for society meaning discrimination based on race for
it would be a badge and incident of slavery. Badges and incidents of slavery banned by Civil
Rights Amendments.
Premise that slavery is more than ownership of a person. Violence and other discrimination is
very much apart of slavery too. Textual argument- Thirteenth Amendment directed at a state of
affairs. It says that slavery should not exist. If we assume discrimination and violence are apart
of slavery, than those things on the basis of race cannot exist. Empowerment clauses would then
allow Congress to regulate to make sure a world where these things exist is not possible within
the United States.
Thirteenth is aimed at a state of affairs while the Fourteenth is aimed at state action. Thirteenth
gives Congress power to abolish, over private actors too.
Model Outline for Day #33 (April 20)
Bond v. United States—
Facts:
Bond attempts to poison her husband’s mistress by applying chemicals to the mistress’s
doorknob, and is convicted under the Chemical Warfare Act (CWA).
Issue:
Is the CWA appropriately interpreted to apply to ordinary poisoning cases which have been
traditionally handled by state and local authorities?
Holding:
No, the CWA is not appropriately interpreted to apply to ordinary poisoning cases which
have been traditionally handled by state and local authorities. If Congress is not explicit that
it intends a particular enactment of legislation to radically readjust the balance of power
between Federal and State Governments, then it is properly interpreted as not a radical
departure from the present balance of power.
Concurrence (Scalia):
1. The necessary and proper clause does not apply to treaties. He says the doctrine of
Missouri v. Holland is “ipse dixit,” i.e. it is based on nothing more than arbitrary dogma
based only on the “say so” of the Supreme Court justices that decided Missouri v.
Holland.
2. This is a purely domestic crime, and it is inappropriate to apply the CWA to purely local
crimes when a treaty does not authorize the President and the Senate by themselves
(without the House) to enact domestic legislation; enacting domestic legislation without
the House violates their enumerated powers and is therefore unconstitutional.
United States v. Guest—
Facts:
Shortly after the passage of the U.S. Civil Rights Act of 1964, a black man was shot and
killed. After a federal indictment, the defendants successfully moved to dismiss the case in a
U.S. District court on grounds that it did not charge an offense under the laws of the United
States.
Issue:
Does 18 U.S.C. §241 of the Criminal Code apply to protect the rights of equal protection and
due process secured by the 14th Amendment to the United States Constitution?
Holding:
Yes, 18 U.S.C. §241 of the Criminal Code applies to protect the rights of equal protection
and due process secured by the 14th Amendment to the United States Constitution because
the indictment includes “an express allegation of state involvement sufficient at least to
require the denial of a motion to dismiss.” If there is some kind of involvement of
discriminatory state action, then private parties may be prosecuted under federal law.
Concurrence (Brennan):
We’re not just trying to keep the States from doing things; we are attempting to bring about a
certain state of affairs, namely, securing individuals’ rights to use public facilities. Therefore,
under Section 5 of the 14th Amendment, Congress’s power to enact laws to punish race
discrimination is not limited by whether or not there has been state involvement. Rather
Section 5 of the 14th Amendment empowers Congress to enact laws to punish all race
discrimination.
Jones v. Alfred H. Mayer Co.
Facts:
Defendant refused to sell a house to the Plaintiffs for the sole reason that the Plaintiffs were
black.
Issue:
1. Does 42 U.S. §1982 apply beyond state actions of race discrimination?
2. Does 42 U.S. §1982 prohibit all racial discrimination in the sale and rental of property?
Holding:
1. Yes, 42 U.S. §1982 applies to all public and private actions of race discrimination.
2. Yes, 42 U.S. §1982 prohibits all racial discrimination in the sale and rental of property
because, under the Empowerment Clause of the 13th Amendment, Congress is
empowered to enact legislation that is necessary and proper for abolishing “all badges
and incidents of slavery,” and Congress has determined that this includes the right to
purchase and rent property. (Quoted phrase comes from the Civil Rights Cases in 1883.)
What is the scope of Congress’s power? In the absence of the reconstruction amendments, it
is not obvious that Congress can do policing.
Three Conceptions of Congress’s Scope of Power Under the Reconstruction Amendments:
1. Congress’s power to enact legislation only extends to regulate the States and enforce their
protection of individuals’ constitutional rights. (narrow interpretation)
2. Congress’s power to enact legislation may extend to regulate the State and State-actors,
as well as any in collusion with them.
3. Congress’s power to enact legislation extends broadly to regulate the State and Stateactors, as well as to enforce against discrimination carried out by private individuals.
Pay close attention to the way Congress determines “the badges and incidents of slavery.”