Constitutional Landmarks: Supreme Court Decisions on Separation of Powers, Federalism, and Economic Rights [1st ed.] 9783030555740, 9783030555757

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Constitutional Landmarks Supreme Court Decisions on Separation of Powers, Federalism, and Economic Rights Charles M. Lamb · Jacob R. Neiheisel

Constitutional Landmarks

Charles M. Lamb · Jacob R. Neiheisel

Constitutional Landmarks Supreme Court Decisions on Separation of Powers, Federalism, and Economic Rights

Charles M. Lamb Department of Political Science University at Buffalo, State University of New York Buffalo, NY, USA

Jacob R. Neiheisel Department of Political Science University at Buffalo, State University of New York Buffalo, NY, USA

ISBN 978-3-030-55574-0 ISBN 978-3-030-55575-7 (eBook) https://doi.org/10.1007/978-3-030-55575-7 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

The American Constitution creates three branches of government, each of which at times has performed admirably and each of which at other times has disappointed the nation’s people. This study of American constitutional law examines major highs and lows of judicial, executive, and legislative branch behavior as seen in the sweep of Supreme Court policymaking and politics. It begins with an overview of federal judicial power in Chapter 1, followed by an analysis of federal executive power in Chapter 2 and federal legislative power in Chapter 3. Chapters 1 through 3 therefore stress how the Supreme Court has interpreted its own powers as well as those of the president and Congress over time. The division of power between the national government and the states is also explored in Chapter 4, whereas Chapter 5 spotlights Americans’ economic rights and how the Court has construed them. This book emphasizes landmark Supreme Court decisions and the justices who made them. Clearly, though, the notion of a “landmark” decision is broad and subjective, and some cases covered in the following pages are obviously more important to American constitutional law and politics than others. In determining which cases to include, we examined leading constitutional law textbooks in political science and law to establish which cases were most often reprinted and discussed in some detail. We also consulted other sources, such as Biskupic and Witt (1997) and Epstein et al. (2015), to supplement our initial list of decisions for inclusion. v

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In addition, this book accentuates the importance of the Supreme Court’s decisions in the larger political context and how the Court’s decisional trends evolved over time. We assume throughout that judicial attitudes, strategies, and role conceptions are critical to a richer, more well-rounded understanding of the Court and what the justices say the Constitution requires. In this sense, we stand on the shoulders of numerous scholars who have studied the Court, its decisions, and the justices’ behavior. Nevertheless, the study of constitutional law is distinguishable from the study of judicial politics, so by necessity we primarily focus on the High Court as a legal institution and the justices’ legal reasoning rather than the equally fascinating nonlegal factors that drive judicial behavior. Some readers may find the study of constitutional law to be challenging, but keeping certain basic ideas in mind should help you to better understand the theories, doctrines, and cases surveyed in the upcoming pages. Thus, especially for novices, we would emphasize some elementary points before you begin this book. • Although there were fluctuations in the number of justices on the Court before 1869, since then it has been composed of nine members—unless a vacancy exists because of illness, retirement, or death—and the voting division, if any, between the justices is provided in each case. • Cases usually come to the Court by means of a writ of certiorari— an order to a lower federal or state court to send the records in a case up to the Supreme Court for review—and at least four justices must agree that a case should be accepted before the Court proceeds further. This is called the rule of four. • The justices announce an opinion after a majority agrees on how to decide a case, and one justice ordinarily writes the final opinion; if no final opinion is handed down, the most recent lower court decision is upheld. On rare occasions, instead of a customary majority opinion, the Court issues a per curiam opinion, which is unsigned or collectively written, as in Bush v. Gore (2000). • A justice can write one of three types of opinions in a case: a majority opinion (which is assigned either by the chief justice, if he or she votes with the majority, or the senior associate justice who votes with the majority); a concurring opinion (which agrees with the majority’s

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basic decision but often for different reasons); or a dissenting opinion (which disagrees with the majority’s basic decision). Increasingly over time justices have chosen to concur in part or dissent in part from other opinions. The only way to know if a “concurring in part, dissenting in part opinion” is primarily a concurrence or a dissent is by reading the opinion carefully. For much of the nation’s history, a system of “dual federalism” was in place whereby the protections afforded to individuals by the Bill of Rights were interpreted by the Court as only safeguarding against encroachments by the national government. With the ratification of the Fourteenth Amendment to the Constitution, however, the freedoms articulated in the Bill of Rights began to be incorporated against the states through the Due Process Clause of the Fourteenth Amendment. This process of selective incorporation would play out over time in a piecemeal fashion until nearly all of the provisions of the first eight amendments to the Constitution would be held by the Court as applying to the governments of the various states as well as to the national government. Decisions that spark your interest can be found online by searching a case’s name. Reading selected opinions by a favorite justice or on a chosen topic provides a far greater understanding of that justice or subject matter. Some areas of constitutional law overlap, so some decisions are mentioned in more than one chapter. A prime example is that many Commerce Clause cases explored in Chapter 3’s treatment of congressional power are also highly relevant to Chapter 4’s discussion of federalism.

In closing we thank Angie, Kelly, and especially Ada for their patience and understanding; our editors, Michelle Chen and Rebecca Roberts, for encouraging our work on the book; Sheldon Goldman, Rachel Hinkle, Nancy Kassop, and David O’Brien for providing constructive suggestions and sage advice; Lee Epstein for generously sharing a needed database; and Josephine Moore for her excellent substantive and editorial assistance. Without this encouragement and assistance, this project would not have

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been completed, though naturally we remain solely responsible for any mistakes that remain. Buffalo, USA

Charles M. Lamb Jacob R. Neiheisel

Contents

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The Supreme Court and Judicial Power

1

2

The Presidency and Presidential Power

49

3

Congress and Congressional Power

109

4

Federalism and Federal-State Relations

181

5

Americans’ Economic Rights

223

Constitutional Landmarks

263

Index

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List of Figures

Fig. 1.1 Fig. 1.2 Fig. 1.3 Fig. 2.1 Fig. 2.2 Fig. 3.1 Fig. 4.1 Fig. 4.2 Fig. 4.3 Fig. 5.1 Fig. 5.2 Fig. 5.3 Fig. 5.4

Ideological direction in judicial power cases, 1791–2018 Ideological direction in judicial power cases in the third constitutional era Ideological direction in judicial power cases across constitutional eras Presidential win rate by term, 1932–2016 Presidential win rate by term in the third constitutional era Number of acts of Congress declared unconstitutional, 1791–2018 Ideological direction in federalism cases across constitutional eras Ideological direction in federalism cases in the third constitutional era Number of state laws declared unconstitutional, 1791–2018 Ideological direction in economic liberty cases, 1791–2018 Ideological direction in economic liberty cases in the third constitutional era Ideological direction in cases involving the contract clause, 1791–2018 Ideological direction in cases involving the takings clause, 1791–2018

10 12 22 52 53 124 184 185 195 224 225 227 236

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List of Tables

Table 1.1 Table 1.2 Table 2.1 Table 3.1 Table 4.1 Table 5.1

Selected decisions on the Supreme Court and judicial power Chief justices of the Supreme Court Selected decisions on the presidency and presidential power Selected decisions on congress and congressional power Selected decisions on federalism and federal-state relations Selected decisions on economic rights

15 20 61 126 197 228

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CHAPTER 1

The Supreme Court and Judicial Power

The U.S. Constitution, the oldest written constitution, gives each branch of the federal government certain distinct powers, apportioned through a system of separation of powers and checks and balances in order to protect any one branch from abusing its authority. The nation is therefore said to have three separate governmental branches sharing power. Let’s take a few examples. Article I assigns all legislative powers to Congress; accordingly, Congress is responsible for passing all federal statutes and presenting them to the president for approval or disapproval. The president, who is ultimately responsible for enforcing the law, can nevertheless veto Congress’s proposed laws, but Congress can override a presidential veto, and the Supreme Court can still rule that the final statute is unconstitutional. The president is likewise assigned all federal executive authority under Article II, including that of commander in chief, but Congress must pass laws appropriating funding for the armed forces and is specifically delegated the power to declare war. As the ultimate check, the House of Representatives can impeach the president for treason, bribery, or other high crimes and misdemeanors, and the Senate can conduct a trial to remove him (or her) from office. As a final illustration, Article II stipulates that the president shall appoint all federal judges and numerous executive branch officials, but those appointments must undergo the advice and consent of the Senate, and the Supreme Court can rule that actions by presidential appointees violate the law.

© The Author(s) 2021 C. M. Lamb and J. R. Neiheisel, Constitutional Landmarks, https://doi.org/10.1007/978-3-030-55575-7_1

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This chapter introduces the Supreme Court and its exercise of power, beginning with five fundamental points. First, the Supreme Court is the final interpreter of the Constitution—not the president or Congress (but see Blackstone 2013; Fisher 2019; Murphy 1986).1 Second, many of the Constitution’s words, phrases, and concepts are ambiguous and undefined, so they frequently permit the justices ample leeway to make major decisions, sometimes unprecedented in nature, affecting the entire nation and millions of people. Third, the Constitution, other sources of law, judicial precedents, legal history, social norms, or a lawsuit’s facts frequently affect how the Supreme Court decides cases. Fourth, though, not only legal but also political considerations influence whether the Court accepts a case and how it is decided, including the justices’ ideologies, strategies, and role conceptions (see, e.g., Epstein and Knight 1998; Gibson 1978; Segal and Spaeth 2002) as well as the possibility of external factors such as public opinion and interest groups (see, e.g., Caldeira and Wright 1988; Giles et al. 2008; Mishler and Sheehan 1993). Fifth, Supreme Court decisions have legal, political, economic, and social impacts on America (see, e.g., Canon and Johnson 1999; Rosenberg 2008). As you read the following pages, the importance of these points will become apparent.

Constitutional Basics The federal courts are the focus of Article III of the Constitution, where Section 1 initially declares, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” So the Supreme Court is the only court that Article III expressly creates; the Constitution leaves it up to Congress to create all inferior federal courts, which are known as the U.S. district courts and the U.S. courts of appeals. These inferior courts are, respectively, the federal courts of original jurisdiction and the initial courts of appellate jurisdiction in the vast majority of cases before an appeal can ordinarily be taken to the High Court. Section 1 continues by stating that federal judges shall hold office during good behavior. Because it is rare for a federal judge to be removed from office (only eight have been impeached and then convicted by the Senate), they often serve into their seventies or their eighties. Justice Oliver Wendell Holmes sat on the Supreme Court from 1902 to 1932—when he finally retired at the ripe old age of ninety.

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Article III, Section 2 indicates that federal judges have the power to decide cases relating to the Constitution, federal law, and federal treaties. In broad terms, it also explains other cases to which the federal judicial power extends—“to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” Finally, Section 2 makes the distinction between the original and appellate jurisdiction of the High Court. Original jurisdiction means that a case can be initiated in the Supreme Court, which is rare, whereas appellate jurisdiction means that the justices may only hear appeals from the lower courts in those cases, which is typical.

Important Legal Concepts Beyond being familiar with Article III’s major provisions, understanding the Supreme Court’s power requires a grasp of other legal concepts, particularly judicial review, stare decisis , jurisdiction, justiciability, political questions, and standing to sue. Judicial review—by far the Court’s most significant form of muscle—concerns its long-standing ability to review legislative or executive actions and to declare them unconstitutional (see, e.g., Whittington 2009). Even so, the power of judicial review is not explicitly mentioned in Article III; rather, it is the creation of Chief Justice John Marshall’s constitutional imagination in Marbury v. Madison (1803), although its use may have been foreseen by Alexander Hamilton in Federalist No. 78. Second, stare decisis stands for the notion that courts should abide by precedents (prior judicial decisions) (see, e.g., Knight and Epstein 1996; Spaeth and Segal 1999). Yet although the justices ordinarily emphasize numerous precedents that arguably support their conclusions, scholars have challenged this assertion. Segal and Spaeth (2002, 81) conclude that precedent “provides virtually no guide to the justices’ decisions. All that one can say is that precedent is a matter of good form, rather than a limit on the operation of judicial policy preferences.”

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Third, the Supreme Court must have jurisdiction to hear and decide a case, and the Court’s jurisdiction is of two types. As noted above, the Court’s original jurisdiction is narrow, but its appellate jurisdiction (which is defined by Congress) includes the much larger number and variety of cases that the Court hears on appeal from federal and state courts. Next, justiciability deals with the question of whether the Court is the proper branch of government to decide an issue. If most justices determine that a case presents a political question, the Court will announce that it is not the proper branch of government for a decision—that is, the case is said to be nonjusticiable (see Luther v. Borden [1849]; Colegrove v. Green [1946]). However, if the justices decide that a case does not involve a political question, then they are likely to rule that it is justiciable (see Baker v. Carr [1962]; Nixon v. United States [1993]). The sixth concept, standing to sue, concerns whether litigants meet the judicial rules that permit them to bring a matter to the Court, such as whether they are directly affected by the issue involved. If they lack standing, their appeal is denied (see, e.g., Flast v. Cohen [1968]; Massachusetts v. Environmental Protection Agency [2007]). Other concepts such as adverseness, advisory opinions, ripeness, and mootness may also be relevant in a case. The Supreme Court requires adverseness (that a case involve genuinely opposing parties) before it will exercise power, so it will not decide friendly suits or hypothetical issues. Likewise, the justices will not issue advisory opinions on questions not raised in lawsuits, even at the request of executive or legislative branch officials. Nor will they decide an appeal unless it is ripe—that is, it cannot be too early or too late for review. Further, if a case is brought too late because the issue has already been authoritatively decided, the justices will hold that it is moot in most circumstances. Yet only the Court decides whether it will exercise judicial power and how much. If the justices find that no case or controversy is presented or that an issue is moot, for instance, they are often choosing not to exercise power. If they say they have jurisdiction and that an issue is justiciable, however, they then routinely exercise their power by accepting the case for review. Cases discussed in this chapter relate to whether the justices can or will exercise power by deciding an appeal. As a result, judicial review is a question in Marbury v. Madison; jurisdiction is a question in several cases, including Chisholm v. Georgia (1793), Barron v. Baltimore (1833), Ex parte McCardle (1869), and Rasul v. Bush (2004); justiciability is at issue

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in Baker v. Carr (1962), Goldwater v. Carter (1979), and United States v. Nixon (1993) (see Chapter 2); and standing is at the forefront in Flast v. Cohen (1968). As we shall see, though, additional legal concepts will emerge in other cases.

The Supreme Court as a Political Institution The High Court relies on one or more of these legal concepts to explain why it accepted a case and decided as it did and, thus, why it exercised judicial clout. From this perspective, the Court is mainly functioning as a legal institution. However, the Court is also a political institution, composed of men and women with assorted backgrounds and political views, appointed by different presidents, who function together in an institutional setting where interactions involve forceful debate and frequent division.2 As Justice Holmes (1920, 292) once wrote, “We are very quiet there, but it is the quiet of a storm center.” Justice Robert H. Jackson (1941, 312) put division on the Court somewhat differently: “The student of our times will nowhere find the deeper conflicts of American political philosophy and economic policy more authentically and intelligently portrayed than in the opinions and dissents of the members of the Supreme Court.” Within this storm center, “‘Politics’ can take many forms, such as the particular ideological views of the justices, the mood of the public, and the political preferences of the executive and legislative branches” (Epstein and Walker 2020a, 22). The growth of divided votes over time especially reveals the Court’s political side, as this division suggests that neutral interpretations of the law are not occurring. According to Miller (1982, 5), “As a governmental organ with a definite political role to play, the Court has had to pick its way through the mine fields of politics.” How, in fact, could political minefields not have been appealed to the Court countless times in over two hundred years? The Electoral College, created in Article II, provides us with an opportunity to better understand how a key constitutional concept intersects with real-world politics, demonstrating that the Court is both a legal and political institution. Relying on the Electoral College for selecting a chief executive has led to heated disputes and hard-hitting criticisms because it can have close, highly divisive effects on election outcomes (see, e.g., Edwards 2019). Consider the 2000 election in which Al Gore (D-TN)

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won the popular vote by roughly five hundred thousand ballots nationwide, but George W. Bush (R-TX) won the Electoral College vote (271 to 266) and, thus, the presidency (on the 2000 election see, e.g., Ackerman 2002; Gibson et al. 2003; Gillman 2001; Nicholson and Howard 2003). Significantly, of course, the High Court’s decision in Bush v. Gore (2000) effectively gave George W. Bush the election, 5–4, with five Republican appointees voting in his favor. Issues of representation in general remain fertile ground for examining the nexus of politics and law. The Court has repeatedly refused to wade into debates over partisan gerrymandering (the drawing of electoral boundaries in such a way that advantages one party over another), declaring the matter to be a fundamentally political question and therefore not justiciable. However, during the brief period prior to the Court’s decision in Rucho v. Common Cause (2019), in which the majority once again reiterated its stance that partisan gerrymandering is an issue that lay beyond the reach of the judiciary, it appeared as though the Court had signaled that a standard upon which determinations of fairness in the redrawing of district boundaries might be created. Social scientists and mathematicians alike seized upon several justices’ suggestions in League of United Latin American Citizens v. Perry (2006) that a legal test rooted in the concept of “partisan symmetry” might be constructed so as to promote fairness in the conversion of votes to seats in the legislature (Stephanopoulos and McGhee 2015). Thus, something of a cottage industry emerged within the scholarly community with respect to the construction and testing of different metrics associated with the concept of partisan symmetry (e.g., Best et al. 2018; Chen and Rodden 2015; Tam Cho and Liu 2016). Hopes that such efforts might yield a usable standard that the Court would be able to apply in future cases involving partisan gerrymandering were dashed with the majority’s outright refusal to engage with what Chief Justice Roberts described as “sociological gobbledygook” during oral arguments in Gill v. Whitford (2018). By deciding not to decide on the constitutionality of partisan gerrymanders, then, the Court has all but assured that, at least for the foreseeable future, one political party will continue to wield an outsized degree of influence in Congress as well as in the legislative bodies of the several states. A similar sequence of events played out in the wake of the Court’s decision in Thornburg v. Gingles (1986), as some states interpreted that ruling as effectively mandating the creation of majority-minority districts. States,

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including most famously North Carolina, proceeded to construct majority African American districts that gave rise to some of the first African American members of Congress from the South since the end of the nineteenth century. Political scientists used the opportunity afforded by the surge in minority legislators to study the effects of descriptive representation on a host of downstream outcomes, finding in many cases that minority interests are given greater voice under such a system (Canon 1999). Nevertheless, the Court would later rule in Shaw v. Reno (1993), by a 5–4 decision, that such districts constituted impermissible racial gerrymanders. So why does the appointment of a new Supreme Court justice often constitute such a controversial decision? One obvious reason is that a new justice helps to make decisions on critical legal and political matters that are heavily influenced by their own personal backgrounds and attitudes. It is also worth underscoring that several of the landmark cases cited above were 5–4 decisions, wherein a single justice determined the direction of national policy. Changes in the makeup of the Court, especially if such changes involve the replacement of the median or “swing” justice, are therefore often of great consequence for the practice of politics in the United States. In the words of Segal and Spaeth (2002, 180), “Given the Supreme Court’s role as a national policy maker, it would boggle the mind if Presidents did not pay careful attention to the ideology and partisanship of potential nominees.” Indeed, the justices frequently have strong political backgrounds, diverse political careers, and, thus, deepseated political views of their own (see, e.g., Epstein et al. 2015; Murphy 1964; Segal and Spaeth 2002; Ulmer 1970). To illustrate, Chief Justice Charles Evans Hughes, appointed by President Herbert Hoover, had previously been governor of New York, an associate justice on the U.S. Supreme Court, the 1916 Republican presidential nominee, and U.S. secretary of state before returning to lead the Court in 1930. Chief Justice William Howard Taft had earlier served as U.S. solicitor general, U.S. secretary of war, and then as U.S. president (1909–1913) before being placed on the Court by President Warren G. Harding. Justice Hugo L. Black, who sat on the Court between 1937 and 1971, had previously been a police court judge, a county prosecuting attorney, and then a U.S. senator for a decade before being promoted to the High Court by President Franklin Roosevelt. Justice Frank Murphy, also a Roosevelt appointee, was elected mayor of Detroit and then governor of Michigan before serving as U.S. attorney general and, after that, being promoted to the High Court. And Chief Justice

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Earl Warren, who was appointed by President Dwight D. Eisenhower and led the Court from 1953 through 1969, was elected as California’s attorney general in 1938, remained in that post until his election as governor of California in 1943, while becoming the Republican vice presidential nominee in 1948. Eisenhower believed that Warren was a man of moderate views when he appointed Warren in 1953, only to learn later that he was wrong, as seen in seminal cases such as Brown v. Board of Education (1954), Reynolds v. Sims (1964), Miranda v. Arizona (1966), and Loving v. Virginia (1967), where Warren spoke for liberal Supreme Court majorities (see O’Brien 2020). More recent examples are noteworthy. Justice Stephen Breyer served as a prosecutor on the Watergate Special Prosecution Force in 1973 and as counsel to the Senate Judiciary Committee throughout much of the 1970s. Justice Elena Kagan worked in Bill Clinton’s White House between 1995 and 1999 as counsel and policy advisor to the president. Justice Sandra Day O’Connor was elected to the Arizona Senate for three terms and served as majority leader for two years. Justices William Rehnquist and Antonin Scalia both worked as assistant attorney generals at the Department of Justice for three years. Justice David Souter was elected as New Hampshire’s attorney general for two years before his appointment to the Court, and Justice Clarence Thomas was chairman of the Equal Employment Opportunity Commission for eight years (Epstein et al. 2015). The appointment of a Supreme Court justice can also lead to controversy because they often serve for such a long period of time, potentially affecting American democracy for decades after an appointing president leaves office. One dozen justices have sat on the Court for over thirty years, including three of its most liberal members—William O. Douglas, Hugo L. Black, and William J. Brennan—as well as Chief Justice John Marshall. Imagine the influence that these four men alone had on the development of American law and politics. Moreover, a total of thirtyfive justices have sat on the High Court for over two decades, including such well-known jurists as Louis D. Brandeis, Felix Frankfurter, Oliver Wendell Holmes, and Harlan Fiske Stone (Abraham 1992; Epstein et al. 2015). One final point on the justices and American politics: even after their appointment s to the Court, many maintained high-level political connections or pursued a variety of political activities. Perhaps surprisingly, a number have been political advisors to sitting presidents.

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Chief Justice John Jay advised George Washington; Chief Justice Roger B. Taney advised Andrew Jackson and Martin Van Buren; Brandeis advised Woodrow Wilson; Stone counseled Herbert Hoover; at least three justices—Douglas, Frankfurter, and Stone—advised Franklin Roosevelt; Chief Justice Fred Vinson advised Harry Truman; and Abe Fortas counseled Lyndon B. Johnson. At one time or another, several justices were also considered as potential presidential or vice presidential candidates. Earlier in the nation’s history a few justices even openly campaigned for presidential candidates or occasionally ran for their home-state governorship. Other justices have held unique quasi-political positions, including Robert Jackson, who was the chief prosecutor at the Nuremberg War Crimes Trial following World War II, and Earl Warren, who headed the commission that investigated President John F. Kennedy’s assassination during the 1960s (Abraham 1992; Epstein et al. 2015).

Attitudes, Strategies, and Role Conceptions Scholars have long known that variables other than law and precedent significantly influence the justices’ votes and decisions (see, e.g., Murphy 1964; Pritchett 1948; Schubert 1965). Although justices virtually never admit that they take a stand on legal issues because of their personal policy views, their attitudes strongly affect how they vote (see, e.g., Segal and Cover 1989; Segal and Spaeth 2002). This realization has led to the attitudinal model, which argues that the justices’ attitudes determine voting patterns, though voting is affected by a case’s facts. In the words of Segal and Spaeth (2002, 312), “The attitudinal model holds that the justices base their decisions on the merits on facts of the case juxtaposed against their personal policy preferences.” If the attitudinal model is generally credible and Supreme Court justices actually vote based on their attitudes, then we should be able to detect liberal or conservative trends in the High Court’s decisions over time in separation of powers, federalism, and economic rights cases. Thus, throughout this book we employ the Supreme Court Database (accessed 2019), which is widely used by scholars to investigate various aspects of Supreme Court decision making, to show how the Court has evolved over time on a variety of issues. Figure 1.1 displays a scatterplot depicting the proportion of the Court’s decisions with liberal outcomes on judicial power (i.e., outcomes that favor the exercise of judicial power), aggregated by term, from 1791 to 2018.3 Superimposed on top of this

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Fig. 1.1 Ideological direction in judicial power cases, 1791–2018

scatterplot are a pair of LOWESS curves. LOWESS stands for Locally Weighted Scatterplot Smoothing and is a technique that is often used to extract a “smoothed” set of values from a “noisy” scatterplot (see Cleveland 1979). The approach fits a series of local linear regressions over a span of data points that are determined by the analyst. Wider spans produce smoother plots, while narrower ones produce plots that can often appear “jumpier.” Wider spans risk smoothing away substantively interesting and informative movement in the data, while narrower ones risk “overfitting” the data and giving too much weight to outliers. It is for this reason that we have chosen to produce two LOWESS curves—one that adopts a wider smoother span (f = 2/3) and one that adopts a far narrower one (f = .1). The former is represented by the dashed horizontal line, while the latter is depicted by the solid horizontal line. The two vertical lines in the figure demarcate the different constitutional eras that we have placed at the center of much of our discussion throughout this book (see the discussion of McCloskey [2016] at the end of this chapter’s introductory essay). This figure allows us to visualize how the Court has occasionally trumpeted its power but has usually been reluctant to do so over time. With reference to the solid LOWESS curve (the one that uses the

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narrower span), moving from left to right, the Court’s judicial power cases begin in a highly liberal position in the first period, reflecting Chief Justice Marshall’s opinions establishing a strong Supreme Court, including Marbury v. Madison. The early years of the Court represent a high-water mark of sorts when it comes to the exercise of judicial power. However, there is a great deal of term-to-term variability in the first period—and, indeed, throughout the time series—so the judicial power trend line quickly slopes downward, rises slightly again in a liberal direction, and then fluctuates until the 1860s. In the second period, from the end of the American Civil War until just before the turn of the century, the trend is fairly flat, then it turns downward during the twilight of the nineteenth century, and it remains steady until the dawning of the third constitutional era. The ideological direction in judicial power cases then briefly rises early in the third period, only to fluctuate down and then back up, leveling off in the 1990s and continuing along that basic path in recent years. An entirely different storyline emerges with reference to the second LOWESS curve that we fitted to the scatterplot, as a wider span (the dashed line) produces a curve that is essentially flat throughout the entire history of the Court, with only a slight downward trend emerging since the energetic exercise of judicial power during the early days of the Court when Chief Justice John Marshall established the judiciary as a co-equal branch of the national government. Figure 1.2 depicts liberal outcomes, aggregated by term, in judicial power cases decided between Chief Justice Charles Evans Hughes (1930– 1941) and Chief Justice John G. Roberts (2005–present). Once more, superimposed on each scatterplot is a linear regression line, the slope of which is relatively flat during the Hughes Court, becomes slightly more liberal under Chief Justice Harlan Fiske Stone, and then quickly declines on a more conservative trajectory under Chief Justice Fred Vinson. With President Eisenhower’s appointment of Earl Warren as chief justice, the trend line flattens, alternates slightly more liberal, then slightly more conservative, and finally in a somewhat more liberal direction under Chief Justices Warren E. Burger, William H. Rehnquist, and Roberts. The decisions handed down under the last two chief justices also appear to have the distinction of exhibiting relatively high levels of variability around the trend line. Judicial strategies and small-group interactions additionally influence how the justices decide cases (see, e.g., Epstein and Knight 2017; Lax and Rader 2015; Maltzman and Wahlbeck 1996; Maltzman et al. 2000;

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Fig. 1.2 Ideological direction in judicial power cases in the third constitutional era

Segal 1997). Scholars using this theory stress that the justices are political actors pursuing certain policy goals while serving on the Court. This rational choice approach does not deny that attitudes or role conceptions influence the justices’ opinions and voting behavior; rather, they emphasize that the justices’ ability to achieve their policy goals “depends on a consideration of the preferences of other relevant actors (such as their colleagues and members of other political institutions), the choices they expect others to make, and the institutional context in which they act” (Epstein and Walker 2020a, 37). Different strategic models vary in their details, but Epstein and Knight (1998, 10–11) boil their model down to three concepts: “justices’ actions are directed toward the attainment of goals; justices are strategic; and institutions structure justices’ interactions.” Although strategic models are an important part of today’s literature on judicial politics, they are not relied on in this volume because we lack the type of documents necessary for this kind of analysis. The role conceptions of judicial activism and restraint are also relevant to understanding how and why justices make their decisions (see, e.g., Halpern and Lamb 1982; Segal and Spaeth 2002; Spaeth 1964; Whittington 2014). Activism is said to be evident when justices overrule

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the decisions of other branches of government, inject new meanings into constitutional language and reasoning, or rely heavily on constitutional interpretation instead of statutory construction. Conversely, restraint suggests that justices defer to the legislative and executive branches, abide by the intent of the Constitution’s framers, or rely on statutory rather than constitutional construction wherever possible. According to these notions, the Court exercises judicial power when it behaves in an activist mode and exercises restraint when it concedes to the determination of the elected branches. However, there are problems with these concepts because even if justices are capable of exercising restraint on the modern Court, they have in fact relied far more on activism than restraint for many decades (see, e.g., Epstein and Landes 2012; Segal and Spaeth 2002). After all, judges are people and, thus, unlikely to be able to set aside their own views and values. Moreover, through the years the growing reach of the federal government into matters that had previously been the domain of the states has simply afforded the Court with more opportunities to come into conflict with the elected branches. Despite this, justices have long given lip service to restraint while emphasizing the importance of expounding the law. In Luther v. Borden, Chief Justice Taney insisted that “it is the province of a court to expound the law, not to make it.” But what exactly does it mean to “expound the law”? In a somewhat related vein, Chief Justice Marshall observed in Osborn v. The Bank of the United States (1824) that “judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it.” Perhaps the simplest explanation of restraint came from Justice Owen Roberts in United States v. Butler (1936), who noted, “When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does or can do is to announce its considered judgment upon the question.” Roberts claimed, “The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy.” This suggests that “[i]ts delicate and difficult office is to ascertain

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and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.” Table 1.1 provides a brief description of selected rulings on the Supreme Court and judicial power, some of which appear to illustrate the concepts of activism or restraint. For instance, Griswold v. Connecticut (1965) is an example of liberal activism because it recognized a right to privacy emanating from the “penumbra” of the First, Third, Fourth, Fifth, and Ninth Amendments, even though the word “privacy” is never explicitly mentioned in the Constitution. Similarly, Baker v. Carr was a liberal activist decision because it originally created the one person, one vote doctrine that was subsequently used to reapportion congressional and state legislative districts throughout the nation, and Roe v. Wade (1973) exhibits liberal activism in that it held for the first time that a woman’s right to privacy is violated by state laws that prohibit all abortions except those undertaken to save a mother’s life. Conversely, Calder v. Bull (1798), the Slaughterhouse Cases (1873), and Bowers v. Hardwick (1986) arguably embody the use of judicial restraint. Calder entailed a deliberately narrow interpretation of an ex post facto law, the Slaughterhouse Cases embraced a restrictive interpretation of the Fourteenth Amendment, and Bowers declared that the Due Process Clauses of the Fifth and Fourteenth Amendments did not guarantee homosexuals a constitutional right to engage in consensual sodomy. Overall, the Court has been much more activist during the past century or more, but during that time some cases also illustrate conservative activism, such as Lochner v. New York (1905), Adair v. United States (1908), and Adkins v. Children’s Hospital (1923) (see Chapter 4). Even so, a litany of others seems to typify liberal activism, including Brown v. Board of Education (1954), New York Times v. Sullivan (1964), Miranda v. Arizona (1966), Brandenburg v. Ohio (1969), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015). With these distinctions in mind, let’s turn to Rucho v. Common Cause (2019), which demonstrates some of the ideas mentioned above while highlighting the nexus between the Supreme Court and American politics. In 1960, the Warren Court announced a new policy by recognizing that gerrymandering—the manipulation of jurisdictional voting boundaries to favor a certain racial group—violated the Constitution. Specifically, in Gomillion v. Lightfoot (1960) the Court unanimously declared that city officials violated the Fifteenth Amendment’s right to vote by racial gerrymandering when they redrew jurisdictional lines

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Table 1.1 Selected decisions on the Supreme Court and judicial power Chisholm v. Georgia (1793). The Supreme Court’s jurisdiction includes lawsuits by a citizen of one state against another state Marbury v. Madison (1803). The Supreme Court may declare a statutory provision passed by Congress null and void because it conflicts with the Constitution Barron v. Baltimore (1833). The Supreme Court does not have appellate jurisdiction to decide whether the Fifth Amendment’s prohibition against the taking of private property for public use is applicable to the states Luther v. Borden (1849). The Supreme Court may not resolve the political question of which of two state governments is in fact the lawfully established one Ex parte McCardle (1869). Congress may deny the Supreme Court appellate jurisdiction in appeals from federal circuit courts if they are taken under the Habeas Corpus Act of 1867 Slaughterhouse Cases (1873). A state may grant a corporate charter to one company to handle the slaughterhouse business for an entire city in order to protect the public health United States v. Butler (1936). Congress may not pass a law imposing a tax on the processing of agricultural products to, in turn, pay farmers not to grow certain crops (see Chapter 5) Brown v. Board of Education (1954). Segregation of public-school children, based solely on race, deprives them of equal educational opportunity and, thus, equal protection of the law Gomillion v. Lightfoot (1960). City officials’ racial gerrymandering violates the Fifteenth Amendment’s right to vote if they redraw jurisdictional lines in order to guarantee that only white political candidates would win city elections Baker v. Carr (1962). The malapportionment of state legislative districts is not a nonjusticiable political question that the Supreme Court should decline to decide Griswold v. Connecticut (1965). A state law that forbids the use or assistance in the use of any drug or medicinal instrument to prevent pregnancy violates the fundamental constitutional right to marital sexual privacy Flast v. Cohen (1968). A taxpayer has standing to challenge a federal statute as violating constitutional provisions that restrict Congress’s taxing and spending powers Roe v. Wade (1973). A state statute that outlaws all abortions except those undertaken to save a mother’s life violates a woman’s right to privacy Goldwater v. Carter (1979). A federal court may not resolve a dispute between members of the Senate and the president involving the abrogation of a treaty Immigration and Naturalization Service v. Chadha (1983). A legislative veto is unconstitutional because it may be exercised by only one house of Congress and result in a congressional action not being presented to the president for approval or disapproval (see Chapter 2) Bowers v. Hardwick (1986). Homosexuals do not have a fundamental right to engage in consensual sodomy

(continued)

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Table 1.1 (continued) Shaw v. Reno (1993). State legislatures may not redraw district lines in a way that is so irregular on their face that they rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without a sufficiently compelling justification Rasul v. Bush (2004). Federal courts have jurisdiction in cases involving habeas corpus requests from aliens detained by the president in a territory over which the United States exercises plenary and exclusive jurisdiction but not ultimate sovereignty Rucho v. Common Cause (2019). Partisan gerrymandering is a political question, and the federal courts cannot decide these issues

in order to guarantee that only white political candidates would win elections. This liberal line of constitutional reasoning increased the likelihood not only that racial minorities could vote but, indeed, that they would vote for more liberal political candidates. Moreover, this line of reasoning, with variations, continued through several leading decisions for over two decades (see, e.g., Miller v. Johnson [1991]; Shaw v. Reno [1993]), although they were constitutionally anchored in the Fourteenth Amendment’s Equal Protection Clause rather than the Fifteenth Amendment. Then the Court adopted an entirely different political and constitutional viewpoint when it handed down Rucho, which ruled that partisan gerrymandering—gerrymandering based on voters’ political party identification rather than race—is a political question and that federal courts had no role in deciding these issues (see, e.g., Engstrom 2020). Political parties that control a state legislature have long used partisan gerrymandering to develop voting lines that assist their own candidates, but the Roberts Court provided no remedy in Rucho for those whose votes were diluted. In the words of Chief Justice John Roberts, “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” So although for decades the Court had exercised liberal activism in racial gerrymandering cases, it drew the line in partisan gerrymandering by declaring it to be a nonjusticiable issue. No matter how egregious the gerrymandering, it would now be beyond the reach of federal judges and must be handled at the state level. To many observers Rucho constituted conservative activism following a long string of liberal gerrymandering decisions—a ruling that

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favored Republican politicians because Republican-controlled state legislatures had usually been more aggressive in partisan gerrymandering than Democratic-controlled state legislatures (Charles and Fuentes-Rohwer 2018). The Court’s outright refusal to enter into the fray over gerrymandering in recent years is likely to have effects that are felt in the political realm, as its inaction all but ensures that the practice of partisan officials picking their voters—rather than the voters choosing their representatives—is destined to continue absent interventions on the part of individual states. What is more, gerrymandering is hardly race-neutral in application, for the partisan coalitions that exist in today’s political moment find most African Americans and members of other minority groups firmly ensconced within the Democratic Party. As a result, partisan gerrymanders that systematically disadvantage Democrats, coupled with the fact that most cities are heavily Democratic and therefore often “waste” Democratic votes, no matter how the maps are drawn (Chen and Rodden 2013), also tend to disadvantage African Americans and other minorities with respect to the translation of votes into seats. The vote-to-seat conversion itself provides yet another reason to bemoan the Court’s reluctance to engage with the issue of partisan gerrymandering, as the practice affords political minorities at the national level with the ability to wield power over numerically superior (partisan) political groups (again on a national scale) and to frustrate efforts at safeguarding the republic against minority tyranny.

Judicial Impact Each chapter of this volume contains an introductory essay like this one that includes a brief description of some of the legal, political, economic, or social impacts that particular rulings had in America (on the study of judicial impact see, e.g., Canon and Johnson 1999; Rosenberg 2008; Wasby 1970). In order to understand the concept of judicial impact, again consider Rucho, which illustrates the effect that only a few new Supreme Court appointees can have on pressing political problems, in this case partisan gerrymandering. President Trump appointed two new justices during his first two years in the White House—Neil M. Gorsuch and Brett M. Kavanaugh. Both Trump appointees in turn voted with the 5–4 Rucho majority, along with Chief Justice Roberts and Justices Samuel A. Alito and Clarence Thomas. All five majority justices were appointed by

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Republican presidents in this decision that contained an obvious conservative spin. As a result, many commentators immediately expected Rucho to have notable short- and long-term political impacts. As Chris Cillizza (2019) of CNN wrote, Rucho “amounts to a massive political victory for Republicans, not just in the moment, but also likely for the next decadeplus.” Still, Rucho’s impact will ultimately cut in both directions, for “by taking the federal courts out of the business of policing extreme partisanship, the message from the Roberts Court to our political leaders, on both the right and the left, is that it is perfectly fine to do whatever you have to do to gain and keep political power” (Charles and Fuentes-Rohwer 2019). Added to Rucho’s political impacts are its legal effects, which alarmed Court liberals. Justice Elena Kagan, a Barack Obama appointee, writing for three other dissenters, complained that partisan gerrymandering “debase[s] and dishonor[s] our democracy, turning upside-down the core American idea that all governmental power derives from the people.” She went on to write, “The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.” Charles Fried (2019), President Ronald Reagan’s solicitor general, found numerous flaws in Roberts’s majority reasoning and agreed with Kagan: “Rucho was indeed an occasion of deep sorrow—for the Court and its chief, for the rational development of doctrine, but most of all for American democracy. Read it and weep.” Several other watershed Supreme Court decisions on judicial power had significant impacts. Marbury v. Madison had the short-term political impact of the Court avoiding a clash with President Thomas Jefferson’s administration, but long-term political and legal impacts of Marbury have been extraordinary because Chief Justice Marshall presented an impressive defense of judicial review that has stood the test of time. Marbury, combined with Marshall’s other decisions, has led scholars to widely proclaim him to be the greatest or most powerful justice in Supreme Court history (see Epstein et al. 2015). In Chisholm v. Georgia, a judicial power case announced before Marshall’s appointment, Justice James Wilson unanimously declared that the High Court’s jurisdiction extends to lawsuits filed by citizens of one state against another state. This ruling had the short-term effect of stimulating more cases being filed against the states as well as the ratification of the Eleventh Amendment five years later. In the long term, Chisholm additionally fortified the power of the Court

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but simultaneously inflamed feelings of cynicism among those favoring states’ rights (Goldman 1991; McCloskey 2016). Baker v. Carr is a more recent decision that stands for the unprecedented principle that under Article III the malapportionment of state legislative districts is a justiciable question that the Supreme Court could decide. True, Baker was disliked in some quarters, but it had a much more lasting impact—giving greater power to suburban and urban neighborhoods by significantly altering the political composition of state legislatures and representation in the U.S. House of Representatives (Goldman 1991; Wasby 1970). Additionally, the doctrine of one person, one vote that was established in Baker had the effect of ensuring a more equitable distribution of state spending because geographic units that had been underrepresented in state legislatures gained parity (Ansolabehere et al. 2002). Other rulings had less of an impact than the above illustrations, though at first glance they appeared to have greater implications. Luther v. Borden (1849) determined that, according to Articles III and IV, the Supreme Court could not resolve the political question of which of two state governments was the lawfully established one. Luther supported judicial supremacy and judicial review (Goldman 1991); however, even though Luther first enunciated the political question principle, the justices only intermittently relied on it in subsequent decades. Or take Flast v. Cohen and Immigration and Naturalization Service v. Chadha (1983). Flast announced that the Taxing and Spending Clause of Article I and the Establishment and Freedom of Religion Clauses of the First Amendment gave taxpayers standing to challenge a federal statute as violating constitutional provisions that restrict Congress’s taxing and spending powers, but ultimately the Court has rarely relied on Flast in its decisions. Likewise, Chadha announced that the legislative veto was unconstitutional because it could be exercised by only one house of Congress and, thus, result in a congressional action not being presented to the president for approval or disapproval. Even so, in the long term, Chadha had little impact because Congress changed its traditional use of legislative vetoes so that in fact they remained (Fisher 2014; Goldman 1991).

Of Time, Theory, and Robert McCloskey This book’s focus is principally on the Supreme Court’s exercise of power. Related to this, we occasionally refer to particular “Courts,” depending on who served as chief justice when the ruling was announced;

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Table 1.2 Chief justices of the Supreme Court

Chief justice

Years of service

Appointing president

John Jay

1789–1795

John Rutledge

1795

Oliver Ellsworth

1796–1800

John Marshall

1801–1835

Roger B. Taney

1836–1864

Salmon P. Chase

1864–1873

Morrison R. Waite

1874–1888

Melville W. Fuller

1888–1910

Edward D. White

1910–1921

William Howard Taft Charles Evans Hughes Harlan Fiske Stone

1921–1930 1930–1941

Fredrick M. Vinson

1946–1953

Earl Warren

1953–1969

Warren Earl Burger

1969–1986

William H. Rehnquist John G. Roberts Jr.

1986–2005

George Washington George Washington George Washington John Adams Andrew Jackson Abraham Lincoln Ulysses S. Grant Grover Cleveland William Howard Taft Warren G. Harding Herbert Hoover Franklin D. Roosevelt Harry Truman Dwight D. Eisenhower Richard M. Nixon Ronald Reagan George W. Bush

1941–1946

2005–present

for example, Rehnquist Court decisions are those handed down while William Rehnquist was chief justice. Table 1.2 shows the men who have served as chief justice and their years of service. (Of course, as of this writing there has never been a female chief justice, although four women have served on the Court—Justices Sandra Day O’Connor, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.) But there is far more to

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understanding the Supreme Court than simply referring to the seventeen chief justices and their colleagues. In this context, we emphasize one of Robert McCloskey’s major contributions to the study of constitutional law, a theory referred to throughout this volume, so we present it early on. McCloskey, a political scientist and constitutional historian, presented a theory in his classic book, The American Supreme Court, of the Court’s three great constitutional eras, each lasting for decades and each dominated by key political and judicial themes.4 McCloskey (2016, 15) concisely summarized his theory early on and then periodically relied on that framework in the remainder of his book. Here is the key part of McCloskey’s summary: “Conceding that there are variations within the framework, we can nevertheless identify three great periods in American constitutional development: 1789 to the close of the Civil War; 1865 to the ‘Court Revolution’ of 1937; and 1937 to the present,” he explained. “The judicial interests and values that characterize each period are sufficiently articulated to be significant; and the Court’s struggle to define its role as great new historical movements alter the backdrop, supplies a further element of dramatic change and uncertainty.” To briefly elaborate, McCloskey argues that during the first constitutional era, spanning the period from the Constitution’s ratification to the Civil War, America regularly confronted forces that threatened to tear it apart.5 That condition produced a Court whose mission was “to champion nationalism against the states’ rights movement” (59), and Marshall led the early Court to ensure that the nation would survive against those who fervently favored increasing the power of the states. During the second constitutional era, lasting from the end of the Civil War to 1937, the Court concentrated far more on the “question of whether the government should control capitalism, and how much it should control it” (68). The constitutional and political struggle over how much the government should control economic activity came to a head as America moved from an agrarian to an industrial nation. McCloskey contends that during this second constitutional era “the major value of the Court … was the protection of the business community against government. The nation-state relationship,” he wrote, “once salient, was now subordinate; the fear that the states would wound or destroy the nation was replaced by the fear that government, state or national, would

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unduly hinder business in its mission to make America wealthy and wise” (69). McCloskey indicates that the Court again adjusted its focus, priorities, and policies in the third constitutional era in order to emphasize individual civil rights and liberties (see McCloskey, chaps. 7–8). This third period he labeled the civil rights era. According to McCloskey, by the end of the 1930s the necessary political and historical conditions existed for the country and the Court to pass into this third constitutional period. If the justices were to play a meaningful role in modern politics and law, though, they needed to evolve a new sphere of interests and a new set of values to guide them. The two principal problems of the past—the nation-state problem and the business-government problem—had largely disappeared. As a result, the Court once more had to reorient its political and policy-making role, concentrating on individual political and legal rights. Figure 1.3 plots the data for all Supreme Court judicial power decisions across McCloskey’s three constitutional eras based on the U.S. Supreme Court Database (2019). During the first era the Marshall Court’s influence is immediately apparent; its pro-judicial power decisions are clearly visible in the upper-left portion of the figure. The trend line declines, though, throughout the remainder of the first constitutional era, despite occasionally fluctuating higher in selected cases. During the second constitutional era the trend line starts at a lower intercept and gradually declines a bit further between the chief justiceships of Salmon P. Chase and Charles Evans Hughes, even as the observations are more tightly clustered around the trend line than they were in the previous

Fig. 1.3 Ideological direction in judicial power cases across constitutional eras

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constitutional era. However, early on during Chief Justice Harlan Fiske Stone’s Court and continuing until the Roberts Court of today, the constellation of data points again open up a bit. Importantly, we also see a slow increase in Supreme Court decisions favoring the exercise of judicial power, as was true during the Warren Court period. We will return to McCloskey’s framework throughout this book, as his tripartite division of the history of the Court into constitutional eras places legitimacy at the center of the Court’s motivations, given that it has “no influence over either the sword or the purse” (Federalist No. 78). The exercise of judicial power, then, often depends on how the Court is seen by the other two branches and in the eyes of the public (see, e.g., Gibson and Nelson 2015, 2016).

Judicial Review Marbury v. Madison, 1 Cranch 137 (1803) Facts: John Marshall was an ardent Federalist, while Thomas Jefferson was the founder of the present-day Democratic Party. Prior to Jefferson’s election as president in 1800, Federalist president John Adams and his secretary of state, John Marshall, concluded that their party’s future power must rest in part in the judicial branch. As a result, before leaving office Adams appointed Marshall as chief justice of the Supreme Court. The Federalist Congress also passed the Judiciary Act of 1801, which created new lower federal court judgeships and new justices of the peace for the District of Columbia. Time was running out before Jefferson’s inauguration, however, and although Adams signed all the justice of the peace commissions, he left seventeen to be delivered by the Jeffersonians. Jefferson refused to allow his secretary of state, James Madison, to deliver them. The stage was set for William Marbury, one of Adams’s appointees, to challenge Madison for his commission as justice of the peace. Relying on Section 13 of the Judiciary Act of 1789, Marbury petitioned the Supreme Court for a writ of mandamus —a court order commanding a public official to carry out his or her official duty. The writ would attempt to compel Madison to deliver the commission. Marshall requested from Madison any reasons why the writ of mandamus should not be issued, but Madison ignored the request. Issue: In light of Article III and Section 13 of the Judiciary Act of 1789, may the Supreme Court declare a statutory provision passed

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by Congress null and void because it expands the Court’s original jurisdiction? Decision: Yes Vote: Unanimous Majority Opinion: Chief Justice Marshall begins by arguing that Marbury had a right to the commission of justice of the peace because the commission was signed by the president and sealed by the secretary of state. Marbury was thus officially appointed and under law had the right to the position of justice of the peace in the District of Columbia. To deny that commission violated the law. Next, Marshall contends that federal law must afford Marbury a remedy because where a legal right exists, there must be a legal remedy. The United States has a government of laws and not of men, the chief justice says, but it will cease to be that unless remedies are provided when legal rights are violated. In this case, the Constitution gave the president certain political powers to carry out his responsibilities, and one of those powers was to appoint a secretary of state. Nevertheless, where Congress has approved judicial appointments, as here, and the secretary of state has refused to deliver the commissions, “the individual who considers himself injured has a right to resort to the laws of this country for a remedy.” One central aspect of Marshall’s reasoning relates to whether a writ of mandamus , issued by the Supreme Court, is the correct remedy in this case, and he says the answer depends on two factors. The first is the nature of the writ applied for—a writ of mandamus is a writ, directed toward a government officer, requiring him or her to carry out some specific legal responsibility. And this is, Marshall argues, “a plain case for a mandamus, and it only remains to be inquired, whether it can issue from this court…. The [Judiciary Act of 1789] to establish the judicial courts of the United States authorizes the supreme court ‘to issue writs of mandamus.” But Marshall writes that “if this court is not authorized to issue a writ of mandamus to such an officer [the Secretary of State], it must be because the law is unconstitutional.” Marshall then begins to determine whether the mandamus provision of the Judiciary Act of 1789 is constitutional given the meaning of the federal judicial power as defined by Article III of the Constitution. As pointed out earlier, Article III, Section 1 reads, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish.” Then Section II, Clause 1 specifically sets out the original jurisdiction

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of the Supreme Court as extending to “all Cases affecting Ambassadors, and other public Ministers and Consuls, and those in which a State shall be a Party.” Otherwise the Court shall have appellate jurisdiction as determined by Congress. Now Marshall says, “it has been insisted, at the bar [that is, before this Court], that the original jurisdiction” of the Court may be expanded by Congress through normal legislation such as Section 13 of the Judiciary Act of 1789. But Marshall disagrees. As he observes, “If Congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared it shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.” As a consequence, he reasons, “To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction” because the Court’s original jurisdiction is spelled out in the Constitution, and it fails to mention mandamus. Marshall continues by arguing that the people established fundamental, permanent principles in the Constitution, and it thus reflects their “original and supreme will.” That Constitution bestows powers on the individual branches of government as well as placing limits on their powers. As a result, obviously “the constitution controls any legislative act repugnant to it.” In other words, Congress cannot change the Constitution by a normal act of Congress. The Constitution is the highest law of the land, and Congress may not alter it without formally amending it. In Marshall’s words, “it is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.” Marshall therefore maintains that “an act of the legislature, repugnant to the constitution, is void” and that it is the task of the Supreme Court to make that determination. In a famous passage he writes, “It is, emphatically, the province and duty of the judicial department, to say what the law is.” And: “If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.” Finally, Marshall asserts that judges must examine some aspects of the Constitution to determine its meaning, and he provides examples.

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Jurisdiction Chisholm v. Georgia, 2 Dallas 419 (1793) Facts: The executor of the estate of a South Carolina merchant sued the state of Georgia in federal court for payment of a debt incurred during the Revolutionary War. The federal court ruled in favor of Georgia, concluding it had no jurisdiction because a sovereign state cannot be sued without its consent, and appeal was taken to the Supreme Court. Issue: In light of Article III, Section 2, does the jurisdiction of the Supreme Court extend to lawsuits by a citizen of one state against another state? Decision: Yes Vote: 4–1 Majority Opinion: Justice Wilson begins by addressing the concept of sovereignty. He notes that it is not mentioned in the Constitution; not even the people are said to be sovereign. Thus, Wilson asserts, a state is subordinate to its people, but everything else is subordinate to the state. As a result, whereas a state may enter contracts, it may be held accountable—just as citizens are—for willfully refusing to abide by a contract. This too suggests that a state is not sovereign and, thus, does not exercise supreme power. To be sovereign, the state must have subjects, but under the Constitution there are only citizens, not subjects. If Georgia has no sovereignty over its own citizens, Wilson argues, certainly Georgia has no sovereignty over citizens of another state. Before joining the issue of whether the Constitution makes a state subject to the jurisdiction of a federal court under these circumstances, Wilson observes that the citizens of the nation as a whole approved the Constitution, and the American people intended the states to be subject to both the legislative and executive powers of the national government. Because of this, logic would dictate that the Supreme Court has jurisdiction in cases where the states are a party. For example, the Court’s jurisdiction would extend to questions dealing with whether the states have ensured justice and domestic tranquility or if they have impaired the obligation of contracts. Wilson contends as well that the literal and explicit language of Article III confirms beyond all doubt his conclusion about the Court’s jurisdiction here: “The judicial power shall extend to all cases, in law and equity … between a State and Citizens of another state.”

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Barron v. Baltimore, 1 Peters 243 (1833) Facts: John Barron claimed that Baltimore denied him of his property without just compensation under the Fifth Amendment when its civic improvements made his wharf unfit for shipping. He lost his case in the lower courts and appealed to the Supreme Court. Issue: In light of Article III, does the Supreme Court have appellate jurisdiction to decide whether the Fifth Amendment’s prohibition against the taking of private property for public use without just compensation is applicable to the states? Decision: No Vote: Unanimous Majority Opinion: Chief Justice Marshall’s reasoning has three basic steps. First, the Constitution was established by the people of the United States, and the states have separate constitutions. Second, therefore, any general limitations on the power of government in the U.S. Constitution are limitations on the power of the federal government and are not applicable to the states. Third, it then follows that the Fifth Amendment is applicable only to the federal government, and by inference the Bill of Rights applies only to the federal government. Marshall deals with one more matter. Barron’s attorney maintained that the Constitution was intended to restrain the power of state governments as well as the federal government, pointing to Article I, Section 10, which prohibits the states from passing bills of attainder or ex post facto laws or impairing the obligation of contracts, among other things. On this final point Marshall says that Article I, Section 9 explicitly outlines various prohibitions against the federal government. Then he seems to concede that Article I, Section 10, is an exception to the general rule that the U.S. Constitution deals only with the federal government. Despite this exception, it is widely understood, Marshall observes, that the Bill of Rights applies to the federal government, not to the states. If state citizens want free speech or the right to counsel, for example, they must provide for them in their own state constitutions. As a result, the Fifth Amendment applies only to the federal government, and the Supreme Court has no jurisdiction in this case.

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Ex Parte McCardle, 7 Wallace 506 (1869) Facts: After the Civil War, Congress’s Reconstruction Acts placed the South, in effect, under military control. William McCardle, a Mississippi journalist who wrote editorials urging resistance to the Reconstruction Acts, was arrested and held for trial before a military court. Based on the Habeas Corpus Act of 1867, McCardle petitioned a federal circuit court in Mississippi for a writ of habeas corpus , an order issued to determine whether authorities are illegally holding a person. He was granted the writ of habeas corpus but lost his case. McCardle then appealed to the Supreme Court under the 1867 Habeas Corpus Act, but because Radical Republicans in Congress did not want the Supreme Court to decide this case, they amended the 1867 act to deny appellate jurisdiction to the Court in all cases arising under the 1867 law that were appealed from the federal circuit courts. All of this is fundamental to understanding the Supreme Court’s jurisdiction and, thus, its power. Article III, Section 2, Clause 2, gives Congress control of the Supreme Court’s appellate jurisdiction, so Congress may change the appellate jurisdiction of the Court, and theoretically Congress might even try to abolish the Court’s appellate jurisdiction in part or even altogether, leaving the Court with only original jurisdiction cases. Issue: In light of Article III, Section 2, Clause 2, may Congress deny the Supreme Court appellate jurisdiction in appeals from federal circuit courts if those appeals are taken under the Habeas Corpus Act of 1867? Decision: Yes Vote: Unanimous Majority Opinion: Chief Justice Chase observes that Congress may make exceptions to the Supreme Court’s appellate jurisdiction, and he recognizes that Congress had exercised this power by repealing the Supreme Court’s appellate jurisdiction under the 1867 Habeas Corpus Act. This being true, he writes, it “is hardly possible to imagine a plainer instance of positive exception.” Moreover, because Congress plainly has the power to control the federal court’s appellate jurisdiction, it is not the Supreme Court’s job to inquire into Congress’s motivations for making exceptions. All the Court could do was admit that it lacks appellate jurisdiction in such a case and dismiss it—that is, to act as if the Court never had jurisdiction in such cases. Chase notes, though, that the 1868 law only applies to habeas corpus cases appealed from the federal circuit courts to the High Court; presumably, habeas corpus cases coming directly from

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a federal district court would in fact fall within the Supreme Court’s appellate jurisdiction. Rasul v. Bush, 542 U.S. 507 (2004) Facts: After the Al Qaeda attack on the World Trade Center and the Pentagon on September 11, 2001, Congress passed a joint resolution known as the Authorization for Use of Military Force. It empowered the president to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons.” President George W. Bush then sent America’s military to Afghanistan to battle Al Qaeda and its supportive Taliban government. During the fighting twelve citizens of Kuwait and two citizens of Australia were captured and later imprisoned at the American naval base at Guantanamo Bay, Cuba, as prisoners of war and enemy combatants. Guantanamo had been leased from Cuba after the Spanish-American War but remained the sovereign territory of Cuba. The foreign nationals captured in Afghanistan were to be held at Guantanamo for an indefinite time. They did not have access to lawyers, and formal charges were not filed against them. They requested writs of habeas corpus from the federal district court in the District of Columbia, insisting they be given access to legal counsel and an independent judge and that they be released. The district court dismissed their request based on the Supreme Court’s ruling in Johnson v. Eisentrager (1950). That case declared that aliens held outside the sovereign territory of the United States did not have the right to petition a federal court for a writ of habeas corpus . After losing in the lower courts, appellants petitioned the Supreme Court, which granted certiorari. Issue: In light of 28 U.S.C. Section 2241(a) and Johnson v. Eisentrager, do federal courts have jurisdiction in cases involving habeas corpus requests from aliens detained by the president in a territory over which the United States exercises plenary and exclusive jurisdiction but not ultimate sovereignty? Decision: Yes Vote: 6–3

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Majority Opinion: Justice Stevens explains that Congress long ago gave the federal district courts the power to hear habeas corpus requests from persons saying they were held in violation of federal law. The right of habeas corpus in America can be traced back to the Judiciary Act of 1789 and, before that, to English common law. It is a right provided for by 28 U.S.C. Section 2241(a) and has been recognized in various Supreme Court decisions. Article I, Section 9, Clause 2 of the Constitution also prohibits the suspension of “The Privilege of the Writ of Habeas Corpus … unless when in Cases of Rebellion or Invasion the public Safety may require it.” Stevens poses the jurisdictional issue in the case in the following terms: “whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction but not ‘ultimate sovereignty.’” The Bush administration relied on Eisentrager, but the Court distinguishes the detainees in that case from those in Rasul. The detainees in Rasul “are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.” Additionally, the Court in Eisentrager delved into the constitutional basis for the right of habeas corpus , not its statutory basis. Yet since then, Stevens argues, the Court has “filled the statutory gap” so that aliens do not have to rely on the Constitution as the grounds for their habeas corpus claims. Statutory law now provides a basis for habeas claims by aliens. The majority relies on statutory law, not the Constitution, in reaching its decision and says that the federal district court has jurisdiction in this case. “What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering the question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims.” Concurring Opinion: Justice Kennedy agrees that the federal courts have jurisdiction in this case but would “follow the framework of Eisentrager.” “The decision in Eisentrager indicates that there is a realm of political authority over military affairs where the judicial power may not

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enter. The existence of this realm acknowledges the power of the President as Commander in Chief, and the joint role of the President and the Congress in the conduct of military affairs.” Dissenting Opinion: Justice Scalia complains that the majority’s decision is “an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.”

Justiciability Baker v. Carr, 369 U.S. 186 (1962) Facts: In the early 1960s Tennessee’s state legislature had not been reapportioned since 1901, so rural areas of the state were overrepresented relative to urban areas. Charles Baker, a Tennessee citizen, sued state officials, claiming that he was denied equal protection under the Fourteenth Amendment because he was an underrepresented urban resident. The district court said that it could provide no remedy because the issue was nonjusticiable. It relied on Colegrove v. Green (1946), where the Supreme Court declared that congressional districts in Illinois did not raise a justiciable issue—that, instead, they presented a political question. Issue: In light of Article III, is the malapportionment of state legislative districts a nonjusticiable political question that the Supreme Court should decline to decide? Decision: No Vote: 6–2 Majority Opinion: Justice Brennan suggests that the district court misconstrued Colegrove v. Green. After all, Colegrove dealt with federal— not state—legislative redistricting. In reaching this conclusion, Brennan makes two vital points about justiciability and political questions. First, because a case deals with a political right does not mean that it presents a political question. Second, reapportionment cases may raise equal protection questions under the Fourteenth Amendment, which are not political questions. Because confusion existed in the lower courts over what constituted a political question, Brennan tries to clarify it by reviewing relevant precedents. He concludes that cases raising issues of foreign relations, the recognition of Indian tribes, and what constitutes a republican form of government are all typically political questions because they concern separation of powers and the fact that the courts need to defer to Congress

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and the president on certain matters. As Brennan indicates, “the nonjusticiability of a political question is primarily a function of the separation of powers.” Political questions deal with the relationship between the federal courts and the two coordinate branches of the federal government, not with the federal courts’ relationship with the states. Consequently, a political question is most likely to deal with the principle of separation of powers and not with the principle of federalism. Brennan adds that it is “a delicate exercise in constitutional interpretation” when federal courts decide “whether a matter has … been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority” it is given by the Constitution. He seems to say that because this is a “delicate exercise in constitutional interpretation,” the federal courts should tread very softly in this area. Brennan sees no characteristics of a political question in Baker v. Carr, which deals with matters of federalism, not separation of powers: “The question here is the consistency of state action [under the Fourteenth Amendment] with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government co-equal with this court.” Dissenting Opinions: Justice Frankfurter maintains that the Court is handing down an activist decision that is contrary to the proper, more restrained role it should play as a major institution in the American system of separated powers. Why? Because the majority is addressing a political question between different political forces in the state of Tennessee. If the Court hands down judgments like this, Frankfurter complains, it is going beyond its constitutional authority. By deciding “political entanglements,” it reduces the legitimacy of the Court in the public’s eyes, and the Court will ultimately be drawn into a “mathematical quagmire,” trying to determine how closely various legislative bodies must be reapportioned. In Frankfurter’s words, “the Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.” Justice Harlan dissents as well. He writes that the majority “strikes deep at the heart of our federal system. Its acceptance would require us to turn our backs on the regard which this Court has always shown for the judgment of state legislatures and courts on matters of basically local

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concern.” This, Harlan insists, is an internal state political conflict into which the national courts should not intervene. Goldwater v. Carter, 444 U.S. 996 (1979) Facts: Barry Goldwater and other members of the U.S. Senate sued President Jimmy Carter for terminating a 1955 defense treaty with Taiwan. Carter wanted to recognize the People’s Republic of China as the sole government of that nation, but Goldwater and other conservatives still firmly backed Taiwan as China’s government. Goldwater claimed that a president could not cancel a treaty with another country without a twothirds vote in the Senate because that was the vote required to authorize the treaty initially. The Court of Appeals upheld Carter’s power to revoke the treaty, and the Supreme Court granted certiorari. Issue: In light of Article III, may a federal court resolve a dispute between members of the U.S. Senate and the president involving the abrogation of a treaty? Decision: No Vote: 8–1 Majority: Eight justices agree that Goldwater’s suit was unfit for judicial resolution but disagree over the reasons why. The Court of Appeals ruling is vacated, and the case is remanded to the District Court. Concurring Opinions: Justice Powell believes that Goldwater’s complaint was not ripe for judicial review and that the Senate should vote to reject Carter’s actions before members of the Senate file suit. Powell does not feel that the case presents a political question, but Justice Rehnquist insists that the issue is nonjusticiable. Rehnquist maintains that a political question is presented because the case “involves the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.” According to Rehnquist, Congress and the president should resolve this issue, not bring it to the courts, especially as it deals with foreign relations, which are outside the scope of judicial power. Dissenting Opinion: Justice Brennan concludes that this case does not present a political question, and he would decide it on the merits in favor of the president.

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Standing to Sue Flast v. Cohen, 392 U.S. 83 (1968) Facts: Florance Flast, a taxpayer, filed suit to contest the Elementary and Secondary Education Act of 1965, which provided financial assistance to religious schools for teaching secular courses and purchasing instructional materials. Flast’s suit claimed this assistance violated the Establishment and Free Exercise Clauses of the First Amendment. The district court said that Flast lacked standing under the Supreme Court’s ruling in Frothingham v. Mellon (1923), which had been interpreted as blocking judicial review by a taxpayer of national spending legislation. The Supreme Court granted certiorari. Issue: In light of the Taxing and Spending Clause of Article I, Section 8, Clause 1, and the Establishment and Freedom of Religion Clauses of the First Amendment, does a taxpayer have standing to challenge a federal statute as violating constitutional provisions that restrict Congress’s taxing and spending powers? Decision: Yes Vote: 8–1 Majority Opinion: Chief Justice Warren recounts the Frothingham case, where the Court ruled that Ms. Frothingham suffered no direct injury from a funding program under the Maternity Act of 1921. Frothingham had caused confusion as reflected in the two opposing arguments in Flast: the government argued that Frothingham prohibited all taxpayer suits against the federal government, and Ms. Flast claimed that Frothingham stood only for the notion that the courts should exercise restraint in taxpayer suits unless a compelling constitutional reason indicated otherwise. After discussing the concepts of jurisdiction and justiciability, Warren speaks to the concept of standing. Standing is an aspect of justiciability. To be granted standing, a plaintiff—the individual bringing suit—must have a personal stake in the outcome of a controversy and adverse parties must be involved. This ensures that a proper party is requesting a court to decide an issue. If the court denies standing, it is saying the petitioner is not a proper party. Whether the taxpayer has standing should be determined by a logical nexus test, according to Warren, which has two aspects: “First, the taxpayer must establish a logical link between that status [as a taxpayer] and the type of legislative enactment attacked. A taxpayer will be a

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proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article I.” Second, “the taxpayer must establish a nexus between that status [as a taxpayer] and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed on the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress in Article I.” When both conditions are met, then the taxpayer has shown a sufficient stake in a case’s outcome to warrant federal court jurisdiction. In this case, both conditions have been met because (1) Flast is a taxpayer who is challenging Congress’s use of the taxing and spending powers to assist religious schools in light of (2) the Constitution’s requirement of separation of church and state and freedom of religion under the First Amendment. That is, Article I, Section 8 permits Congress to tax and spend for the general welfare unless such taxing and spending violates some specific prohibition on Congress, such as the First Amendment’s requirement that Congress shall pass no law respecting an establishment of religion. In Warren’s words, the Establishment Clause was added to the Constitution out of the fear that “the taxing and spending power would be used to favor one religion over another or to support religion in general.” The Establishment Clause, then, “operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Article I, Section 8.” Finally, Warren suggests that future litigation before the Court may discover other specific limitations on the taxing and spending powers besides the Establishment Clause. Concurring Opinions: Justice Douglas joins the majority but agrees with Justice Harlan that the Court’s nexus test contains problems. He would overrule Frothingham. Justice Stewart agrees that the Establishment Clause obviously outlaws taxing and spending to aid religion and that “every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution.” Yet Stewart concludes that Frothingham is still good law in that “a taxpayer may not ‘employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.’” By contrast, Justice Fortas would restrict this ruling to the Establishment Clause, believing only that it places a constitutional restriction on the congressional taxing and spending power.

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Dissenting Opinion: Although Justice Harlan has difficulties with Frothingham, he would uphold it as requiring that a person may have standing to sue only to protect personal rights, not public rights. Unless specific personal rights were involved, there would be no standing.

Judicial Activism Griswold v. Connecticut, 381 U.S. 479 (1965) Facts: Estelle Griswold, of the Planned Parenthood League of Connecticut, challenged an 1879 Connecticut birth control law forbidding the distribution of information about contraceptives. It also prohibited the use of contraceptives or assisting someone else in their use. Griswold lost her case in the state courts, and the Supreme Court granted certiorari. Issue: In light of the First, Third, Fourth, Fifth, and Ninth Amendments, as applied to the states through the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, does a state law that forbids the use or assistance in the use of any drug or medicinal instrument to prevent pregnancy violate the fundamental constitutional right to marital sexual privacy? Decision: Yes Vote: 7–2 Majority Opinion: Justice Douglas’s reasoning is very broad, acknowledging that the Supreme Court does not sit as a super-legislature yet emphasizing that this case deals with intimate relations between spouses. For this reason, the Court is justified in recognizing a constitutional right to marital sexual privacy as a “peripheral First Amendment right.” That is, “the First Amendment has a penumbra where privacy is protected from government intrusion,” much as it is under right-to-association cases. Although the right to association is not expressly mentioned in the First Amendment, “its existence is necessary in making the express guarantees fully meaningful.” Citing several precedents, Douglas argues that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Zones of privacy are found not only in the First Amendment but also in the Third, Fourth, Fifth, and Ninth Amendments. In other words, the prohibition on the quartering of soldiers,

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unreasonable searches and seizures, and self-incrimination provides a basis for a constitutional right to privacy too. Finally, the people retain their right to zones of privacy through the Ninth Amendment. Concurring Opinions: Justice Goldberg relies only on the Ninth and Fourteenth Amendments. The liberties of the people are not restricted to the enumerated rights explicitly written into the Constitution, and the Ninth Amendment is an obvious source of the right to privacy. Indeed, the right to marital privacy is a fundamental constitutional right. Justice Harlan also concurs, relying on the Fourteenth Amendment’s Due Process Clause and the concept in Palko v. Connecticut (1937) of basic values “implicit in the concept of ordered liberty.” Dissenting Opinion: Justice Black contends there is no express right to privacy in the Constitution and that judges should stick to the Constitution’s explicit language. The Ninth Amendment, he asserts, has rarely been used before and should not be used now. Roe v. Wade, 410 U.S. 113 (1973) Facts: Jane Roe, a single woman living in Texas, wanted an abortion. Abortions were illegal in Texas, though, unless performed for the purpose of safeguarding the life of the mother. Most other states in the Union had similar abortion laws. Roe filed suit challenging the constitutionality of the Texas statute, and the district court concluded that it abridged the right of privacy retained by the people in the Ninth Amendment. The Supreme Court granted certiorari. Issue: In light of the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, does a state law that outlaws all abortions except those undertaken to save a mother’s life violate a woman’s right to privacy? Decision: Yes Vote: 7–2 Majority Opinion: Justice Blackmun indicates that most criminal abortion laws were passed in the latter half of the nineteenth century. In the United States, penalties for abortion were usually lenient before the Civil War, but afterward American abortion laws became strict unless they were designed to save the mother’s life. Three reasons were traditionally advanced to justify these abortion laws: they deter forbidden

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sexual conduct, early abortions are increasingly not a hazard to a woman’s health, and they protect prenatal life. The right to an abortion, Blackmun argues, involves the right to privacy, and the Supreme Court has increasingly recognized a right to personal privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Blackmun insists that regardless of where in the Constitution this right to privacy is found, it is sufficiently broad to include a woman’s decision to end a pregnancy. He observes, though, that there is no “unlimited right to do with one’s body as one pleases.” This being so, a state may properly assert “important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” Also, the unborn are not protected by the Constitution, and thus the reference to “person” in the Fourteenth Amendment does not apply to a fetus. Yet the judiciary cannot say when life begins; instead, judges must look to what medical experts conclude, and physicians say that life begins with viability—that is, at twenty-eight weeks. Finally, Blackmun sets out his trimester concept: during the first trimester the state cannot regulate abortion, during the second trimester the state has a compelling interest to protect the mother, and during the third trimester the state has a compelling interest in protecting the fetus. Dissenting Opinions: Justice Rehnquist says that a right to privacy is not involved in this case, that Blackmun’s trimester concept is simply judicial legislation, and that the right to an abortion is not a fundamental constitutional right. Justice White dissents as well, claiming that the majority “simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.” The Court is clearly overstepping its constitutional powers, and any such decision regarding the right to abortion should be left to individual state legislatures, not the Supreme Court. In the end, White says this is a nonjusticiable political question.

Judicial Restraint Calder v. Bull, 3 Dallas 386 (1798) Facts: A Connecticut probate court awarded an inheritance to one Mr. Calder in 1795, even though the deceased had indicated in his will that Mr. and Mrs. Caleb Bull were to be his beneficiaries. Over a year and a

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half later the Bulls decided to appeal the probate judge’s decision only to discover that Connecticut law required such an appeal within eighteen months. The Bulls contacted friends in the state legislature who were able to pass a law changing the eighteen-month rule. On appeal the Bulls won, and Calder appealed to the Supreme Court. Issue: In light of Article I, Section 10, is the Connecticut law an ex post facto law that all states are prohibited from passing? Decision: No Vote: Unanimous Majority Opinion: Justice Chase addresses Article I, Section 10, which specifies limitations on the powers of state governments. In his narrow interpretation of this provision, he makes it clear early on that ex post facto laws are not laws pertaining to property or contracts, as in this case. Chase then continues by providing four examples of ex post facto laws that are prohibited by the Constitution, each of which involves criminal laws, criminal evidence, or punishment for violating criminal statutes. Thus, he writes, “I do not consider any law ex post facto within the prohibition [of Article I, Section 10], that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or increase the punishment, or change the laws of evidence, for purpose of a conviction. As a result, all ex post facto laws are retrospective, but not all retrospective laws are ex post facto laws under Article I, Section 10; only the former are prohibited by the Constitution.” Slaughterhouse Cases, 16 Wallace 36 (1873) Facts: The Louisiana legislature claimed that the Mississippi River was polluted because New Orleans butchers were dumping garbage into it, so the legislature created one private company to slaughter all livestock in New Orleans for twenty-five years. Over a thousand butchers organized and sued, insisting that the law deprived them of their right to pursue their business under the Privileges and Immunities, Due Process, and Equal Protection Clauses of the Fourteenth Amendment and that it violated the prohibition on involuntary servitude under the Thirteenth Amendment. The state courts upheld the statute, and appeal was taken to the Supreme Court. Issue: In light of the Privileges and Immunities, Due Process, and Equal Protection Clauses of the Fourteenth Amendment as well as the prohibition on involuntary servitude of the Thirteenth Amendment, may a state

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grant a corporate charter to one company to handle the slaughterhouse business for an entire city to protect the public health under the Tenth Amendment’s police power? Decision: Yes Vote: 5–4 Majority Opinion: Justice Miller, in the first Supreme Court opinion interpreting the newly ratified Thirteenth and Fourteenth Amendments, observes that these amendments had one principal purpose—to promote the rights of former slaves—but that does not mean that whites have no rights under these amendments. In setting up this argument, Miller distinguishes between being a citizen of the United States and a citizen of a state. The first sentence of the Fourteenth Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” As a result, Miller writes, “Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.” This reasoning is constitutionally critical, the majority contends, because the next sentence provides the three clauses of the Fourteenth Amendment under consideration here: it “speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.” This is the crucial link in the majority’s constitutional reasoning. The two types of citizenship would have been the same, Miller maintains, to decide in favor of the butchers, making the privileges and immunities of U.S. citizens and state citizens the same. The Privileges and Immunities Clause reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Miller therefore notes, “It is a little remarkable … that the word citizen of the State should have been left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence that the change in phraseology was adopted understandingly and with a purpose.” Because the Privileges and Immunities Clause of the Fourteenth Amendment extends only to U.S. citizens, Miller says that the meaning of privileges and immunities of state citizens must lie in the other Privileges and Immunities Clause—the one in Article IV, Section 2, Clause 1.

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It reads, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States.” To endorse the butchers’ argument would shift the protection of individual rights, traditionally the responsibility of the states, to the national government. The Fourteenth Amendment was intended to be narrow in scope, Miller says; otherwise the Supreme Court would become “a perpetual censor upon all legislation of the states.” Miller additionally concludes that no due process or equal protection rights of the butchers were violated. Louisiana did not deprive them of their property within the meaning of the Fourteenth Amendment, and the Equal Protection Clause was intended for the freed slaves and does not apply to the butchers or to whites generally. Dissenting Opinions: Justice Field interprets the Fourteenth Amendment far more broadly than the majority and views the issue as “whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation.” He feels they do—that the Fourteenth Amendment protects all U.S. citizens from state encroachment of privileges and immunities and the denial of due process and equal protection. The butchers, then, have been denied their right to pursue lawful employment under the Fourteenth Amendment. Justice Bradley also dissents. He believes that the Louisiana law prohibiting the butchers from pursuing their form of employment denies them of both liberty and property without due process as well as the equal protection of law.

Political Questions Luther v. Borden, 7 Howard 1 (1849) Facts: In 1841 Rhode Island was still operating under its old colonial charter, which severely restricted the right to vote based on property. In the aftermath of Dorr’s Rebellion two rival governments existed, with the Dorr government adopting a new constitution permitting wide suffrage. The old charter government declared martial law, President John Tyler agreed to send in federal troops, and Dorr’s government collapsed. Luther was a follower of Dorr, while Borden was a member of the Rhode Island militia who broke into Luther’s house to arrest him. To vindicate his rights, Luther appealed to the Supreme Court.

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Issue: In light of Article III and Article IV, Section 4, may the Supreme Court resolve the question of which of two state governments is in fact the lawfully established one? Decision: No Vote: 8–1 Majority Opinion: Chief Justice Taney says the federal courts cannot decide whether a state government is the lawfully established one for a state, writing, “Upon such a question the courts of the United States are bound to follow the decisions of the state tribunals, and must therefore regard the charter government [of Rhode Island] as the lawful and established government during the time of this contest.” In this context, Taney pens a well-known passage on judicial restraint and the limits of federal judicial power: “It is the province of a court to expound the law, not make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given.” The Constitution, he writes, “has treated this subject as political in nature.” Specifically, it is Congress’s responsibility to decide this type of political question. The Constitution guarantees each state a republican form of government, and Congress must decide when the senators and congressmen of a state are the legitimate representatives of that state. The Supreme Court has never unequivocally advanced the meaning of a republican form of government. Basically, it is one that operates through elected representatives rather than through direct democracy, and a state government is thought to have a republican form of government if Congress accepts its elected representatives as legitimate. However, Taney observes that in 1795 Congress gave the chief executive the power to deal with domestic insurrection when it occurs in the states in order to ensure that a republican form of government still exists. That statute stipulates that “in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he my judge sufficient to suppress such an insurrection.” Under these circumstances the president must determine which of the two is the lawful government in the case before he can act, and national courts are not authorized to inquire whether the president made the right decision. Taney adds, “It

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is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe.” Where insurrection occurs, action must be quick, and courts tend to act too slowly. As a result, here is a limitation on the power of the courts—they react with deliberation, and under these circumstances presidents can respond with speed. Taney concludes by advocating judicial restraint: “Much of the argument on the part of the plaintiff turned on political rights and political questions, upon which the court has been urged to express an opinion. We decline to do so.” Indeed, the Supreme Court should avoid “overstep[ping] the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums.”

Notes 1. Several methods of constitutional interpretation have been evident in Supreme Court decision making, including originalism, textualism, stare decisis , structuralism, and pragmatism. See, for example, Gillman et al. (2013), Segal and Spaeth (1996), Whittington (1999). 2. Political scientists have explored Supreme Court politics for decades using empirical as well as nonempirical approaches. Nonempirical research has characterized many definitive studies of the Court and its justices, including the work of Corwin (e.g., 1965) and Mason (e.g., 1946). Then, between the 1940s and the 1960s, a pioneering group of empirical scholars led the way, including Pritchett (e.g., 1948), Schubert (e.g., 1965), Spaeth (e.g., 1964), and Ulmer (e.g., 1965). Continuing in that tradition, a small army of empirical scholars have continued to break ground, some of whom are cited in this book. 3. It is important early on to clarify the use of the concept “liberal” in the U.S. Supreme Court Database. According to Epstein et al. (2015), the usage of liberal “is most appropriate in the areas of civil liberties, criminal procedure, civil rights, First Amendment, due process, privacy and attorneys where it signifies pro-defendant votes in criminal procedure cases, pro-women or -minorities in civil rights cases, pro-individual against the government in First Amendment, due process, and privacy cases, and proattorney in attorneys’ fees and bar membership cases.” Relevant to this

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chapter on judicial power, the authors note that a liberal decision “represents pro-judiciary positions.” Additionally, in Chapter 4 on federalism and federal-state relations, a liberal decision “indicates pro-national government positions.” However, in Chapter 5, specifically with respect to the Takings Clause cases, “a pro-government/anti-owner vote is considered liberal.” 4. McCloskey’s book was originally published in 1960 and has gone through multiple editions by Sandford Levinson, but those updates do not suggest what might trigger a fourth constitutional era. For suggestions, see Halpern and Lamb (1998). 5. The next three paragraphs partly rely on Halpern and Lamb (1998) (copyright by the authors). For variations on McCloskey’s conception of major constitutional eras, see, for example, Epstein and Walker (2020a, b).

References Constitutional Landmarks Abraham, Henry J. 1992. Justices and Presidents: A Political History of Appointments to the Supreme Court. 3rd ed. New York: Oxford University Press. Ackerman, Bruce, ed. 2002. Bush v. Gore: The Question of Legitimacy. New Haven, CT: Yale University Press. Ansolabehere, Stephen, Alan Gerber, and Jim Snyder. 2002. Equal Votes, Equal Money: Court-Ordered Redistricting and Public Expenditures in the American States. American Political Science Review 96(4): 767–777. Best, Robin, E., Shawn J. Donahue, Jonathan Krasno, Daniel B. Magleby, and Michael D. McDonald. 2018. Considering the Prospects for Establishing a Packing Gerrymandering Standard. Election Law Journal 17(1): 1–20. Blackstone, Bethany. 2013. An Analysis of Policy-Based Congressional Responses to the U.S. Supreme Court’s Constitutional Decisions. Law & Society Review 47(1): 199–228. Caldeira, Gregory A., and John R. Wright. 1988. Organized Interests and Agenda Setting in the U.S. Supreme Court. American Political Science Review 82(4): 1109–1127. Canon, David T. 1999. Race, Redistricting, and Representation: The Unintended Consequences of Black Majority Districts. Chicago: University of Chicago Press. Canon, Bradley C., and Charles A. Johnson. 1999. Judicial Policies: Implementation and Impact. 2nd ed. Washington, DC: CQ Press. Charles, Guy-Uriel E., and Luis E. Fuentes-Rohwer. 2018. Judicial Intervention as Judicial Restraint. Harvard Law Review 132(1): 236–275. ———. 2019. SCOTUS’s Ruling on Gerrymandering Endangers U.S. Democracy. Time, July 11.

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Chen, Jowei, and Jonathan Rodden. 2013. Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures. Quarterly Journal of Political Science 8(2): 239–269. ———. 2015. Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders. Election Law Journal 14(4): 331–345. Cillizza, Chris. 2019. The Supreme Court Just Handed Republicans a Huge Political Victory on Partisan Gerrymandering. CNN , June 27. www.cnn.com/2019/06/27/politics/supreme-court-gerrymandering-cit izenship-census/index.html (accessed December 9, 2019). Cleveland, William S. 1979. Robust Locally Weighted Regression and Smoothing Scatterplots. Journal of the American Statistical Association 74(368): 829– 836. Corwin, Edward S. 1965. The President: Office and Powers. 5th rev. ed. New York: New York University Press. Edwards III, George C. 2019. Why the Electoral College Is Bad for America. 3rd ed. New Haven, CT: Yale University Press. Engstrom, Richard L. 2020. Partisan Gerrymandering: Weeds in the Political Thicket. Social Science Quarterly 101(1): 23–36. Epstein, Lee, and Jack Knight. 1998. The Choices Justices Make. Washington, DC: CQ Press. ———. 2017. The Economic Analysis of Judicial Behavior. In Lee Epstein and Stefanie A. Lindquist, eds. The Oxford Handbook of U.S. Judicial Behavior. New York: Oxford University Press. Epstein, Lee, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker. 2015. The Supreme Court Compendium: Data, Decisions, and Developments. 6th ed. Washington, DC: CQ Press. Epstein, Lee, and Thomas G. Walker. 2020a. Constitutional Law for a Changing America: Institutional Powers and Constraints. 10th ed. Washington, DC: CQ Press. ———. 2020b. Constitutional Law for a Changing America: Rights, Liberties, and Justice. 10th ed. Washington, DC: CQ Press. Epstein, Lee, and William M. Landes. 2012. Was There Ever Such a Thing as Judicial Self-Restraint? California Law Review 100: 557–577. Fisher, Louis. 2014. Constitutional Conflicts Between Congress and the President. 6th rev. ed. Lawrence: University Press of Kansas. ———. 2019. Reconsidering Judicial Fluidity: Why the Supreme Court Is Not the Last Word on the Constitution. Lawrence: University Press of Kansas. Fried, Charles. 2019. A Day of Sorrow for American Democracy. The Atlantic, July 3. www.theatlantic.com/ideas/archive/2019/07/rucho-v-com mon-cause-occasion-sorrow/593227/ (accessed December 9, 2019). Gibson, James L. 1978. Judges’ Role Orientations, Attitudes, and Decisions. American Political Science Review 72(3): 911–924.

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Gibson, James L., Gregory A. Caldeira, and Lester Kenyatta Spence. 2003. The Supreme Court and the US Presidential Election of 2000: Wounds, SelfInflicted or Otherwise? British Journal of Political Science 33(4): 535–556. Gibson, James L., and Michael J. Nelson. 2015. Is the U.S. Supreme Court’s Legitimacy Grounded in Performance Satisfaction and Ideology? American Journal of Political Science 59(1): 162–174. ———. 2016. Change in Institutional Support for the U.S. Supreme Court: Is the Court’s Legitimacy Imperiled by the Decisions It Makes? Public Opinion Quarterly 80(3): 622–641. Giles, Michael W., Bethany Blackstone, and Richard L. Vining, Jr. 2008. The Supreme Court in American Democracy: Unraveling the Linkages Between Public Opinion and Judicial Decision Making. Journal of Politics 70(2): 293– 306. Gillman, Howard. 2001. The Votes That Counted: How the Court Decided the 2000 Presidential Election. Chicago: University of Chicago Press. Gillman, Howard, Mark A. Graber, and Keith E. Whittington. 2013. American Constitutionalism: Volume I: Structures of Government. New York: Oxford University Press. Goldman, Sheldon. 1991. Constitutional Law: Cases and Essays. 2nd ed. New York: HarperCollins. Halpern, Stephen C., and Charles M. Lamb, eds. 1982. Supreme Court Activism and Restraint. Lexington, MA: D.C. Heath. ———. 1998. The Supreme Court and New Constitutional Eras. Brooklyn Law Review 64(4): 1183–1220. Holmes, Oliver Wendell, Jr. 1920. Collected Legal Papers. New York: Harcourt. Jackson, Robert H. 1941. The Struggle for Judicial Supremacy: A Study in American Power Politics. New York: Knopf. Knight, Jack, and Lee Epstein. 1996. The Norm of Stare Decisis. American Journal of Political Science 40(4): 1018–1035. Lax, Jeffrey R., and Kelly Rader. 2015. Bargaining Power on the Supreme Court: Evidence from Opinion Assignment and Vote Switching. Journal of Politics 77(2): 635–647. Maltzman, Forrest, and Paul J. Wahlbeck. 1996. Strategic Policy Considerations and Voting Fluidity on the Burger Court. American Political Science Review 90(3): 581–592. Maltzman, Forrest, Paul J. Wahlbeck, and James Spriggs. 2000. Crafting Law on the Supreme Court: The Collegial Game. New York: Cambridge University Press. Mason, Alpheus Thomas. 1946. Brandeis: A Free Man’s Life. New York: Viking. McCloskey, Robert G. 2016. The American Supreme Court. 6th rev. ed. Chicago: University of Chicago Press.

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Miller, Arthur S. 1982. Toward Increased Judicial Activism: The Political Role of the Supreme Court. Westport, CT: Greenwood Press. Mishler, William, and Reginald S. Sheehan. 1993. The Supreme Court as a Counter-Majoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions. American Political Science Review 87(1): 87–101. Murphy, Walter F. 1964. Elements of Judicial Strategy. Chicago: University of Chicago Press. ———. 1986. Who Shall Interpret the Constitution? Review of Politics 48: 401– 423. Nicholson, Stephen P., and Robert M. Howard. 2003. Framing Support for the Supreme in the Aftermath of Bush v. Gore. Journal of Politics 65(3): 676–695. O’Brien, David M. 2020. Storm Center: The Supreme Court in American Politics. 12th ed. New York: W. W. Norton. Pritchett, C. Herman. 1948. The Roosevelt Court: A Study of Judicial Politics and Values, 1937–1947 . New York: Macmillan. Rosenberg, Gerald N. 2008. The Hollow Hope: Can Courts Bring About Social Change? 2nd ed. Chicago: University of Chicago Press. Schubert, Glendon A. 1965. The Attitudes and Ideologies of Supreme Court Justices. Evanston, IL: Northwestern University Press. Segal, Jeffrey A. 1997. Separation-of-Powers Games in the Positive Theory of Congress and the Courts. American Political Science Review 91(1): 28–44. Segal, Jeffrey A., and Albert D. Cover. 1989. Ideological Values and the Votes of U.S. Supreme Court Justices. American Political Science Review 83(2): 557–565. Segal, Jeffrey A., and Harold J. Spaeth. 1996. The Influence of Stare Decisis on the Votes of Supreme Court Justices. American Journal of Political Science 40(4): 971–1003. ———. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press. Spaeth, Harold J. 1964. The Judicial Restraint of Mr. Justice Frankfurter—Myth or Reality. Midwest Journal of Political Science 8(1): 22–28. Spaeth, Harold J., and Jeffrey A. Segal. 1999. Majority Rule and Minority Will: Adherence to Precedent on the U.S. Supreme Court. New York: Cambridge University Press. Stephanopoulos, Nicholas O., and Eric M. McGhee. 2015. Partisan Gerrymandering and the Efficiency Gap. University of Chicago Law Review 82(2): 831–900. Tam Cho, Wendy K., and Yan Y. Liu. 2016. Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans. Election Law Journal 15(4): 351–366.

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The Supreme Court Database, Washington University Law, http://supremeco urtdatabase.org/index.php [https://perma.cc/FL7B-KSHW] (accessed April 10, 2020). Ulmer, S. Sidney. 1965. Toward a Theory of Sub-Group Formation on the United States Supreme Court. Journal of Politics 27(1): 133–153. ———. 1970. Dissent Behavior and the Social Background of Supreme Court Justices. Journal of Politics 32(3): 580–598. Wasby, Stephen L. 1970. The Impact of the United States Supreme Court: Some Perspectives. Homewood, IL: Dorsey Press. Whittington, Keith E. 1999. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence: University Press of Kansas. ———. 2009. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press. ———. 2014. The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review. Notre Dame Law Review 89(5): 2219– 2252.

CHAPTER 2

The Presidency and Presidential Power

The American president is frequently called the most powerful person in the world, and scholars agree in large part because of the cumulative effects of developments such as World War II, Vietnam, Watergate, and September 11, 2001, all occurring during McCloskey’s third constitutional era. Fisher (2017) argues that the Supreme Court is largely to blame for this presidential ascendency because the justices have accepted presidential assertions of emergencies and matters of national security to the point that American democracy has been substantially affected. At the same time, as Chapter 3 highlights, Congress is also partly responsible, for it has often delegated legislative powers to the president or to bureaucratic leaders who are presidential appointees. This suggests one disturbing possibility: Without the powers that the Constitution gives Congress and the Supreme Court, the United States would not have a democracy as that concept is commonly understood among students of politics and, to a lesser degree, the general public (Carey et al. 2019). Democracy arguably does not exist in a political system in which executive power has increased to the point at which one political figure—in this case the U.S. president—has far more power than the other branches of government, where that power continues to grow on a regular basis, where on occasion the chief executive appears to be above the law, and where the primary focus of the public, the media, and the remainder of the world is on that one individual, looking for leadership and integrity during troubled times. Instead, separation of © The Author(s) 2021 C. M. Lamb and J. R. Neiheisel, Constitutional Landmarks, https://doi.org/10.1007/978-3-030-55575-7_2

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powers and checks and balances must be securely in place and work effectively if our democracy is to function properly and ultimately survive. Still, achieving these goals will not be easy, for Congress must reassert much of its power and the Supreme Court must persistently serve as the final protector of the Constitution and the American system of checks and balances. On these points, strong majorities of both the public and political scientists (roughly 80 percent or better) agree that it is either “important” or “essential” that the legislative and judicial branches of the national government limit the power of the executive in a democracy (Carey et al. 2019). However, only about 60 percent of expert observers agree that the judiciary can act as an effective check on the president (that figure is lower among surveys of the general public). Those figures are lower still when it comes to the degree to which the legislature is able to limit the president’s power. What is more, on both fronts the experts agree that matters have gotten worse in recent years (Carey et al. 2019). Other research has shown that, even in arenas that have traditionally been dominated by Congress, such as spending (Neiheisel and Brady 2017), the legislative branch has increasingly ceded control to the executive (cf. Ritchie and You 2019). We highlight this vital theme later in this chapter, although our general objective is to trace High Court decisions on presidential power from the Civil War period until recent years.

Constitutional Basics Article II addresses the president and the executive branch. Article II, Section 1 conceives of an Electoral College to select the president. Under this concept each state receives the number of electors equal to that state’s total number of members in the Senate and the House of Representatives. After all popular ballots are counted, these electors meet in their respective states and vote, and those votes are then forwarded to the president of the Senate (the sitting vice president), who counts them with Senate and House members present. If no candidate receives a majority, the Twelfth Amendment provides that the House immediately chooses the new president. Section 1 further stipulates that only certain people are qualified to serve as president: They must be a natural-born citizen or a citizen when the Constitution was adopted, at least thirty-five years old, and a U.S. resident for at least fourteen years. However, Article II, Section 2 is far more essential to our understanding here because it states the essence of the chief executive’s

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constitutional clout. First and foremost, he (or she) is commander in chief of the entire U.S. military establishment and serves as the nation’s leader in foreign affairs—two crucial powers. Further, the Constitution empowers the president to make treaties with the concurrence of twothirds of the Senate present plus the power to appoint ambassadors, other ministers and consuls, and all federal judges and other federal officials established by law. Not to be ignored, the president may also grant pardons and reprieves of federal court convictions (see, e.g., Crouch 2009; Fisher 2014). Section 3 is crucial because it directs the president to take care that the laws be faithfully executed. This provision means that the chief executive is the leading federal law enforcement official, but the term “take Care that the Laws be faithfully executed” contains substantial wiggle room for presidents to prioritize their own law enforcement agendas. Finally, Section 4 deals with the impeachment of the president, vice president, and all other civil officials if they are convicted of “Treason, Bribery, or other high Crimes and Misdemeanors.” In the final analysis, the chief executive’s powers are more broadly stated than those for Congress in Article I or the Supreme Court in Article III. Indeed, the powers of the president are written very broadly, which is important for three reasons. First, by their very nature, presidents can act far more quickly than either Congress or the courts during times of emergency. Second, the federal bureaucracy has grown over time, as crises have necessitated that greater state capacity be brought to bear (e.g., to combat the Great Depression or coordinate national defense in response to the 9/11 terror attacks). Third, the president has increasingly asserted political control over the federal bureaucracy and used that control to enhance the power of the office of the president relative to the other coordinate branches (see Marshall 2008). Even so, a serious threat to democracy may arise because the president’s powers are so generally stated. Marshall refers to this lack of specificity as the “constitutional indeterminacy of the presidency” (2008, 509). What if a president interprets Article II in a way that is unconstitutional? This question will be explored later in this chapter.

Military, Foreign, and Domestic Affairs Recent research by Epstein and Posner (2018) reveals a surprising new finding—that the Court’s deference to the president has significantly declined since the Reagan administration. Using their original

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data, we reproduce this finding. Thus, as seen in Fig. 2.1, Supreme Court deference to the chief executive steadily rose from the RooseveltTruman period early in the third constitutional era until the Reagan years but increasingly declined thereafter, hitting a low point during Barack Obama’s two terms in office. Figure 2.2 provides a somewhat different look at the data and assesses the degree to which deference to the president changed over the course of each chief justice’s time on the bench, from the Hughes Court though the most recent data available for the Roberts Court. The regression line’s slope is somewhat positive throughout the Hughes Court, but it remains basically flat during the Stone and Vinson Courts, thereby indicating that little changed across each man’s tenure on the High Court with respect to presidential deference. The slope of the regression line is positive (grows somewhat more liberal) throughout both the Warren and Burger Courts, then slopes down slightly in a conservative direction during the Rehnquist and Roberts Courts. Decisions handed down under the Warren, Burger, and Rehnquist Courts seem to have reasonably low levels of variability around the trend line, whereas the greatest “spread” can be seen during the Hughes and Roberts Courts.1

Fig. 2.1 Presidential win rate by term, 1932–2016

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Fig. 2.2 Presidential win rate by term in the third constitutional era

Regardless of these decisional fluctuations across Supreme Courts, however, the fact remains that American presidents have a remarkable array of powers in military, foreign, and domestic affairs based on how the Court has interpreted presidential power over time. As one case in point, take the president’s powers in military affairs. Although only Congress can declare war, President Abraham Lincoln established a blockade of southern ports during the early days of the Civil War before Congress could act and the Civil War was publicly proclaimed. In the Prize Cases (1863) the justices upheld by a bare majority Lincoln’s action as part of the president’s power to initiate hostilities. Indeed, the Court indicated that the president, as commander in chief, must determine what degree of force is to be used, and the courts cannot sit in judgment of that determination. World Wars I and II were also already underway when the president asked Congress to declare war, and in other cases the justices have been reluctant to restrict the chief executive’s discretionary war powers. At the same time, the Supreme Court often more narrowly interprets civil liberties when war occurs (see, e.g., Ball 2007; Epstein et al. 2005). A good illustration is Duncan v. Kahanamoku (1946). Soon after the Japanese attack on Pearl Harbor, a military government was established

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in Hawaii, and President Franklin Roosevelt suspended the writ of habeas corpus .2 Following the war, though, the justices ruled, 6–2, that the military could not create and operate military tribunals while civilian courts were open and available. Accordingly, Duncan indicates that the justices are unlikely to interfere with presidential actions while a war is in progress but may later conclude that they were illegal. More infamously, when 110,000 Japanese Americans were relocated from the West Coast into internment camps during World War II, the Court refused to strike down that military program of detention for decades after the war. In the landmark case of Korematsu v. United States (1944) the Court majority, by a 6–3 vote, concluded that the president’s evacuation program was constitutional, with the majority opinion written by Justice Hugo Black, widely known as a civil libertarian (see, e.g., Epstein et al. 2015). Not until 1983 was Korematsu’s conviction overturned by a federal district court, and in 1988 Congress passed a law apologizing to surviving Japanese Americans who were placed in camps and provided them with reparations (O’Brien and Silverstein 2020). Thus, although the justices declined to correct these stark civil liberties violations during the World War II era and its aftermath, a full generation later the Roberts Court seemingly overruled Korematsu in Trump v. Hawaii (2018). In the words of Chief Justice John Roberts, “Korematsu was gravely wrong the day it was decided, has been overruled by the Court of history, and—to be clear—‘has no place in law under the Constitution.’” Nonetheless, according to the attorney who argued the Trump case for Hawaii, “Despite overturning Korematsu, the Court’s decision in Trump v. Hawaii perpetuates the very-near-blind deference to the executive branch that led the Korematsu Court astray” (Katyal 2019, 641). The chief executive similarly has far-reaching powers in foreign affairs (see, e.g., Henkin 1997). Indeed, the president is the “sole organ” of the United States in international relations, according to United States v. Curtiss-Wright Export Corporation (1936), meaning that foreign affairs is an exclusive or plenary power. In Curtiss-Wright, by a vote of 7–1, the justices first established the principle that the national government’s power to conduct foreign relations is basically without constitutional limitation and that when Congress delegates some of its powers in this field to the president, the conduct of foreign affairs in that area is completely assigned to the chief executive. The essence of the ruling was, in the words of Justice George Sutherland, that the president is “the sole organ of

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the Federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” As a result, “Curtiss-Wright is used to justify not only broad grants of legislative authority to the President but also the exercise of inherent and extra-constitutional executive power” (Fisher 2014, 107). This suggests that the Supreme Court has deferred to the president in foreign affairs much as it has in military affairs. As one case in point, President Jimmy Carter issued an executive order that nullified the seizure of Iranian assets in U.S. courts in return for the release of fifty-two American hostages by Iran. In Dames & Moore v. Regan (1981) the justices determined, by an 8–1 vote, that Carter’s executive order was implicitly authorized by Congress.3 The Court concluded that Congress invited the exercise of presidential intervention in this case, even though it was not provided for by the Constitution, and that the national government surely possessed the power that Carter exercised. Deference to the chief executive in foreign affairs was recently apparent in Trump v. Hawaii (2018). There the Court held, 5–4, that President Trump’s proclamation limiting travel to the United States by foreign nationals from eight predominantly Muslim countries in order to establish whether they might present a terrorist threat was within the power delegated by Congress to the chief executive under the Immigration and Nationality Act and that his proclamation did not violate the First Amendment’s Establishment of Religion Clause, even though his public statements demonstrated hostility and animus toward Muslims. On another front the Court broadly interpreted the president’s treaty-making power much earlier in Missouri v. Holland (1920), where the justices took the position that a treaty between the United States and Great Britain to protect migratory birds did not infringe on any Tenth Amendment powers reserved for the states. The president additionally has powers and responsibilities in domestic affairs. The Constitution directs him to provide a State of the Union address to Congress to speak about vital issues and recommend legislation. Likewise, the president is given the power to veto proposed laws passed by Congress and to convene both houses of Congress when necessary. Occasionally the Supreme Court has also ruled that the president has certain inherent powers that are not stated in the Constitution or legislation, as in the cases of In re Debs (1895) and In re Neagle (1890).

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The Court has similarly gone beyond the Constitution’s literal language in order to clarify and build upon modern-day presidential domestic powers relating to appointments and removals. Myers v. United States (1926) asserted, 6–3, that all presidential appointees in the executive branch can be removed at the president’s discretion, although Humphrey’s Executor v. United States (1935) unanimously ruled that a president could not dismiss a member of an independent regulatory agency with quasilegislative and quasi-judicial powers. And as emphasized in Chapter 3, Congress has delegated important domestic legislative powers to the president, including overseeing a sprawling federal bureaucracy that constantly issues regulations affecting Americans’ lives (see, e.g., Fisher 2013; Meier and Bohte 2007). The Court has also announced key separation of powers decisions relating to domestic affairs, including Buckley v. Valeo (1976), Panama Refining Company v. Ryan (1935), and Schechter Poultry Corporation v. United States (1935). For instance, in Immigration and Naturalization Service v. Chadha (1983) the Court concluded, 7–2, that the legislative veto is unconstitutional because it may be exercised by only one house of Congress and result in congressional action not being presented to the president for approval or disapproval. In Bowsher v. Synar (1986) the 7–2 majority held that Congress could not pass a law assigning the comptroller general certain executive functions without violating the doctrine of separation of powers if only Congress could remove the comptroller general. Nonetheless, in Morrison v. Olson (1988) the Court declared, by a 7–1 vote, that Congress did not violate the principle of separation of powers by passing a law permitting the appointment of a special prosecutor by a federal three-judge panel to investigate and prosecute government officials for violating federal criminal statutes.

Limitations on Presidential Power Some scholars argue that the Constitution’s framers would find it difficult to recognize the American presidency and its power in the twenty-first century because they envisioned a chief executive with far less authority. According to Epstein and Walker (2020, 181), “the framers would be amazed at the far-reaching domestic and foreign powers wielded by modern presidents, to say nothing of the hundreds of departments, agencies, and bureaus that constitute the executive branch.” Indeed, one of the most dramatic and controversial trends in modern constitutional law is

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the immense growth of presidential muscle (see, e.g., Fisher 2015). Presidents exercise it, whereas Congress and the Supreme Court frequently defer to it (but see Epstein and Posner 2018). In the words of O’Brien and Silverstein (2020, 234), presidential clout has “grown enormously with the emergence of the United States as a world power and is due to the acquiescence of Congress, the courts, and the American people.” Yet even though the Court often defers to the chief executive, in several cases the justices have ruled that presidents exceeded their constitutional powers. The Court announced, for example, that President Lincoln surpassed his Article II powers in Ex parte Milligan (1866), where Lincoln had suspended the writ of habeas corpus during the Civil War. As a result, Milligan, a Confederate sympathizer, was tried by a military commission while the civil courts were functioning in Indiana and was thus denied the rights to an indictment by a grand jury and to a trial by jury. A 5–4 majority in Milligan concluded that under of Articles I and II, as well as the Fifth and Sixth Amendments, a president and Congress may not suspend the writ of habeas corpus during times of war. The justices again struck down a presidential action in Youngstown Sheet & Tube Company v. Sawyer (1952), 6–3, where a nationwide steel strike had been called during the Korean War. When mediation efforts to avoid the strike failed, President Harry Truman directed Secretary of Commerce Charles Sawyer to seize and operate the mills. The High Court, rejecting Truman’s assertion of inherent powers, ruled that the seizure exceeded the constitutional powers of the chief executive. Specifically, the president’s aggregate powers under Article II and the general law-making powers of Congress under Article I do not permit a president to seize private steel mills during wartime. The Court’s unprecedented executive privilege case, United States v. Nixon (1974), similarly told the president that he had acted illegally. There, the Court unanimously announced that President Richard Nixon must turn over the Watergate tapes because his claim of executive privilege must yield to a demonstrated need for evidence in the criminal proceeding against the Watergate burglars. The justices concluded that the right to executive privilege does exist, but it is not absolute—that a claim of executive privilege, exercised in the public interest, does not outweigh the need for information relevant to the fair administration of criminal justice as guaranteed by the Fifth and Sixth Amendments. Various other decisions have gone against the president, especially where he claimed an inherent power not stated in law, as in United States v. United States District Court (1972) and Hamdan v. Rumsfeld (2006).

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Presidential Power and Donald Trump Much of the extensive literature on presidential politics emphasizes either the president’s power, persuasiveness, or both (see, e.g., Belco and Rottinghaus 2017; Chiou and Rothenberg 2014; Christenson and Kriner 2017; Edwards 2009; Howell 2003; Neustadt 1990; Rudalevige 2012). Changes are occurring, however, as new issues have emerged during President Trump’s administration (see, e.g., Lamb and Neiheisel 2020). Consider Trump-era politics as background for the Roberts Court landmark decision in Trump v. Hawaii (2018).4 As noted above, this case concerned Donald Trump’s presidential proclamation curbing travel to the United States by aliens from eight predominantly Muslim countries. The proclamation’s stated intent was to curtail immigration in order to determine whether foreign nationals from these countries could present terrorist threats, but Hawaii, the Muslim Association of Hawaii, and other plaintiffs sued to stop enforcement of the president’s policy based on provisions of the Immigration and Naturalization Act (INA) as well as the bedrock principles underlying the First Amendment’s Establishment of Religion Clause. Among other things, plaintiffs claimed that Trump had made numerous public statements before and after his election that revealed his anti-Muslim views. By a 5–4 vote, with the justices divided along ideological lines, Chief Justice Roberts’s majority opinion upheld President Trump’s policy. Roberts explained that under the INA, Congress had delegated the power to the president to control the entry of foreign nationals by, first, creating a vetting process in order to ensure that foreign nationals met numerous requirements before they could enter the United States and, second, by giving the president the power to bar entry of those who “would be detrimental to the interests of the United States.” According to Roberts, Trump legally used the discretion given to him by Congress “based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.” So Roberts believed that the “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.” With respect to the Establishment of Religion Clause issue, the plaintiffs argued that President Trump’s proclamation was specifically meant to thwart Muslims from coming to the United States, but Roberts finds

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no First Amendment violation when he applies the rational basis test. The rational basis test asks the question: Is there a rational relationship between the adoption of a governmental policy and a legitimate governmental interest? Roberts says the Court has rarely struck down a presidential action as unconstitutional when applying the rational basis test, and the facts do not warrant it here. “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’” In fact, “because there is pervasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.” The Court is not responsible, Roberts notes, for sitting in judgment of the “effectiveness and wisdom” of presidential decisions. Nor is this case, he states, related in any meaningful way to Korematsu v. United States (1944), which was “gravely wrong” and now is finally overruled by the Court. In a nutshell, Roberts concludes that there was a rational basis for Trump’s travel ban and “that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.” The Court’s four dissenters expressed apprehension mirroring the entrenched political divisions that plagued America during the Trump years. Justice Sonia Sotomayor’s forceful dissent sharply criticizes Roberts’s application of the rational basis test, substituting instead the reasonable observer standard—“whether a reasonable observer, presented with all ‘openly available data,’ the text and ‘historical context’ of the Proclamation, and the ‘specific sequence of events’ leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country.” Her conclusion is that Trump’s statements openly demonstrated “hostility and animus toward the Muslim faith,” thus violating the First Amendment. Roberts turns his back, she says, on the Establishment Clause and “upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty.” In fact, Sotomayor draws parallels between the majority opinion and Korematsu because in both “the Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion.” In particular, in both cases “the exclusion order was rooted in dangerous stereotypes, … the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens

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it purported to protect, … [and] there was strong evidence that impermissible hostility and animus motivated the Government policy.” So even though the majority overruled Korematsu, “the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

Judicial Impact Table 2.1 highlights some major Supreme Court decisions treated in this chapter. Beyond that, as in Chapter 1, we present illustrations in this section of cases that had memorable impacts. We initially consider a few decisions that had crucial long-term effects on presidential power. First, United States v. Curtiss-Wright Export Corporation clearly had long-term legal and political consequence for treaty-making powers. In the words of the 7–1 majority, the president is the “sole organ of foreign affairs” in the United States. How much broader language could have been used in this historic decision, and how much more important could the long-term impact of the opinion have been in the field of foreign affairs? Probably none. To this point, we would note that it was not long after the decision in the Curtiss-Wright case was handed down that some within the executive branch, buoyed not only by Curtiss-Wright but also subsequent cases such as United States v. Belmont (1937), that dealt with the limits of executive power in the international arena, would begin to argue that executive agreements could be used to sidestep any need to secure the support of the U.S. Senate (Borchard 1946). Although other factors undoubtedly played a role as well, the Court’s decisions surrounding executive power in the realm of foreign policy effectively gave rise to the use of executive agreements—unilateral agreements between the president and other world leaders that serve as a stand-in for formal treaties (Krutz and Peake 2009). Similar questions could be posed about the impacts of Korematsu v. United States —and with similar responses. Bear in mind that Korematsu in effect said that the president has the power to place Americans in concentration camps because they constituted a vaguely defined threat to national security.5 In the words of Justice Black’s majority opinion, the West Coast faced “the gravest imminent danger to the public safety” and there was a “definite and close relationship” between the exclusion of Japanese Americans and the prevention of espionage and sabotage. Black assumed there were disloyal Japanese Americans, even though no

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Table 2.1 Selected decisions on the presidency and presidential power Prize Cases (1863). As commander in chief, a president determines what degree of force must be used during war times, and the courts cannot sit in judgment of that determination Ex parte Milligan (1866). A president may not suspend the writ of habeas corpus during times of war, thereby permitting a trial by a military commission and denying a person the right to an indictment by a grand jury and a trial by jury Mississippi v. Johnson (1867). An injunction cannot restrain a president from carrying out an act of Congress that is alleged to be unconstitutional Missouri v. Holland (1920). A president has far-reaching treaty-making powers that do not infringe on any Tenth Amendment rights of the states to regulate wildlife Myers v. United States (1926). A president has the exclusive power to remove politically appointed executive branch officers without the Senate’s advice and consent United States v. Curtiss-Wright Export Corporation (1936). A president is the sole organ of foreign affairs, and Congress may delegate to the president the power to prohibit the sale of arms to foreign nations engaged in war Korematsu v. United States (1944). A president may exclude Americans of Japanese ancestry from the West Coast and to place them in relocation camps if there is grave, imminent danger to the public safety Youngstown Sheet & Tube Company v. Sawyer (1952). A president’s aggregate powers under Article II do not permit him to seize private steel mills during times of war New York Times Company v. United States (1971). A federal court may not issue a restraining order to prevent publication of classified government documents even if a president contends that their publication would be harmful to the national interest and national security United States v. United States District Court (1972). Without receiving prior judicial approval, a president’s power to protect national security does not justify federal law enforcement officials tapping the telephones of individuals suspected of domestic subversion United States v. Nixon (1974). A claim of executive privilege by a president, based on the public interest, does not outweigh the need for information relevant to the fair administration of criminal justice Dames & Moore v. Regan (1981). A president may freeze the assets of another country in the United States to deal with an emergency in foreign affairs as well as suspend claims pending in American courts against that country if Congress has given the president broad discretion to deal with national emergencies in foreign affairs and has not disapproved of subsequent presidential actions Nixon v. Fitzgerald (1982). A president is entitled to absolute immunity from damages liability in civil suits based on his official acts Immigration and Naturalization Service v. Chadha (1983). The legislative veto is unconstitutional because it may be exercised by only one house of Congress and result in a congressional action not being presented to the president for approval or disapproval

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Table 2.1 (continued) Clinton v. City of New York (1998). Congress may not give the president unilateral authority to repeal or amend parts of duly enacted statutes Sale v. Haitian Centers Council, Incorporated (1993). A president may direct the interception and immediate return of undocumented aliens to the nation from which they came, irrespective of whether their life or freedom would be in danger Clinton v. Jones (1997). A president is not entitled to temporary immunity until he leaves office from civil lawsuits growing out of unofficial conduct before he became president Bush v. Gore (2000). Uniform standards must be used throughout a state in counting votes cast for presidential electors in order to avoid arbitrary and disparate treatment of members of the electorate Rasul v. Bush (2004). Federal courts have jurisdiction in cases involving habeas corpus requests from aliens detained by the president in a territory over which the United States exercises plenary and exclusive jurisdiction but not ultimate sovereignty (see Chapter 1) Hamdi v. Rumsfeld (2004). Although the president may detain U.S. citizens as enemy combatants, those detainees have due process rights and may oppose their enemy combatant status before an impartial body Hamdan v. Rumsfeld (2006). The structures and procedures used by military commissions established during the George W. Bush administration to try prisoners at Guantanamo Bay violate the Uniform Code of Military Justice and Geneva Conventions Boumediene v. Bush (2008). The right to a writ of habeas corpus is unconstitutionally suspended if a law permits enemy combatants to be detained at Guantanamo Bay National Labor Relations Board v. Noel Canning (2014). A president cannot make recess appointments if the Senate is in recess but is still able to conduct business Zivotofsky v. Kerry (2015). The president has the exclusive power to recognize other nations, and the Foreign Relations Authorization Act therefore encroaches on the president’s decision to deny the recognition of Jerusalem Trump v. Hawaii (2018). A president has the statutory authority to delay the entry of foreign nationals from countries identified by Congress or the executive branch as potentially posing an increased terrorist risk Trump v. Sierra Club (2019). A president may use congressional appropriations for the military to build a wall between the United States and Mexico while litigation in the case continues in the lower courts

evidence of criminal activity was presented in the case; indeed, Black admitted that the Court had no knowledge of the number and strength of Japanese Americans who might be practicing espionage and sabotage. Under the circumstances of “military imperative,” he opined, it was impossible to separate loyal Japanese Americans from those who were not. Furthermore, no racial or ancestral prejudice was involved in the Japanese internment. In Black’s words, “we are dealing specifically with nothing

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but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.” Finally, again recall United States v. Nixon, where the long-term effect of the Court’s unanimous opinion established that “the President is subject to the rule of law and the rulings of the Supreme Court” (Goldman 1991, 226). We might therefore ask: How many concepts lie at the heart of a democratic theory more than that no one is above the rule of law? Our answer is probably none; even the president cannot be above the law. Logically this suggests that Nixon should have been a softball for the High Court—President Nixon did not have an executive privilege to refuse to provide evidence to the courts or Congress in a criminal case that did not pertain to national security or the public safety. No other decision would have made legal or political sense. Now let’s briefly turn to some other cases in this chapter. According to Goldman (1991, 224), the Prize Cases upheld the “exercise of broad presidential powers in an emergency,” whereas Mississippi v. Johnson is “precedent for [the] exercise of broad presidential powers unchecked by the judicial system.” Missouri v. Holland establishes “broad treaty-making powers of the executive branch,” while another case from the 1920s, Myers v. United States , confirms the president’s broad removal power of executive branch appointees. On presidential power and civil liberties during times of war, Korematsu was not the only presidential power precedent arising during the World War II period. Thus, Hirabayashi v. United States, decided the year before Korematsu, “stands as precedent for exercise of military discretion to maintain internal security even at the expense of civil liberties of minority groups” (226). Finally, various decisions have involved separation of powers questions (see, e.g., Fisher 2014), so Goldman (226) points out that Bowsher v. Synar provided “precedent for [the] strict interpretation” of separation of powers.

War and Military Affairs The Prize Cases, 2 Black 635 (1863) Facts: President Abraham Lincoln established a naval blockade of southern ports before Congress declared the Civil War. The blockade resulted in the seizure of items as prizes from English and American ships trying to trade with the Confederacy. The owners of the captured ships

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sued to recover their property, claiming that Lincoln had no authority to institute a blockade in the absence of a congressional declaration of war and that the seizures were illegal under international law. The Lincoln administration argued, by contrast, that war need not be declared prior to a blockade because, in this instance, this was a rebellion, not a war. Issue: In light of Article I, Section 8, Clause 11, and Article II, Section 2, did a state of war exist when this blockade of southern ports was instituted that justified the president’s resort to these means? Decision: Yes Vote: 5–4 Majority Opinion: Justice Grier emphasizes that the president, as commander in chief and chief executive, is the proper government official to institute a blockade. Although the president cannot initiate or declare a war, in 1795 and in 1807 Congress gave the president the power to call out military and naval forces to suppress an insurrection against a state government or the national government. A state of war exists “whether the hostile party be a foreign invader, or a state organized in rebellion,” and the president, in turn, needs to act to defend the nation. The president should decide on the degree of force to be used, and the chief executive’s decision governs the Supreme Court: “Whether the President in fulfilling his duties, as Commander-in-Chief … is a question to be decided by him, and this court must be governed by the decisions and acts of the Political Department of the government to which this power is intrusted,” Grier writes. Additionally, Congress approved of a blockade as an appropriate means in 1861. Dissenting Opinion: Justice Nelson concludes that Lincoln acted illegally because only Congress can declare war and because Congress cannot delegate this power to the president, as the laws of 1795 and 1807 suggest. Ex Parte Milligan, 4 Wallace 2 (1866) Facts: Lambdin Milligan, a Confederate sympathizer, was arrested in his Indiana home in 1864 for having “conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection.” He was tried by a military commission and sentenced to death because President Abraham Lincoln had suspended the writ of habeas corpus in 1862 and Congress had authorized Lincoln’s suspension the following year. Milligan filed suit in federal circuit court, requesting a

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writ of habeas corpus and arguing that he should have been tried in a civil court because he was a civilian in a state where the civil courts were functioning. The circuit court judges were unsure how to decide the issues presented and certified them to the Supreme Court. Issue: In light of Articles I and II as well as the Fifth and Sixth Amendments, may a president and Congress suspend the writ of habeas corpus during times of war, thereby permitting a trial by a military commission and denying a person the right to an indictment by a grand jury and a trial by jury? Decision: No Vote: 5–4 Majority Opinion: Justice Davis asserts that the Constitution is binding during times of peace and war. In his words, “the Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Beyond that, a military commission is not a court, and neither the president nor Congress has the authority to give judicial powers to the military—even during times of war. Because the civil courts were open and functioning in Indiana and Milligan was not in the military, he should have been presented to a grand jury according to the Fifth Amendment and be given a trial by jury as required by the Sixth Amendment. Nor, according to Davis, does martial law justify such a disregard for individual rights: “Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the ‘military independent of and superior to the civil power.’” Conversely, a writ of habeas corpus is not guaranteed by the Constitution and may be suspended during an emergency, such as when an actual invasion occurs. Because Indiana was not invaded by Confederate troops, however, the suspension of a writ of habeas corpus was not warranted here. Dissenting Opinion: Justice Chase maintains that Congress has the power to authorize a military commission to conduct the civilian trial in this case. That authority derives from Congress’s power in Article I to declare war and to raise and support armies. Mississippi v. Johnson, 4 Wallace 475 (1867) Facts: Mississippi tried to obstruct the beginning of Reconstruction and prevent the implementation of the Reconstruction Acts of 1867 by requesting an injunction against President Andrew Johnson from

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enforcing them. Mississippi argued the Reconstruction statutes were unconstitutional, that they would inflict grave injury on the state, and appealed to the Supreme Court. Issue: In light of Articles I, II, and III, may a president be restrained by injunction from carrying out an act of Congress alleged to be unconstitutional? Decision: No Vote: Unanimous Majority Opinion: Justice Chase emphasizes the distinction between the president’s ministerial duties and executive duties, but Chase’s principal point is that the judiciary cannot review discretionary acts by the president. The president possesses discretion in carrying out the Reconstruction laws and is required to take care that laws be faithfully executed. Presumably, if the president illegally carried out his discretionary duties, he would be answerable to the electorate or to the impeachment process, but not to the courts. As a general matter, the Supreme Court cannot enforce the performance of presidential duties nor restrain the chief executive from carrying out these duties where executive discretion is involved. Court orders compelling or enjoining the performance of an act by an officer of government are applicable only to ministerial duties. Narrowly construing judicial power, Chase stresses that the Court cannot restrain either the president or Congress: “The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.” Chase then presents a few separation-of-powers hypotheticals to show why the Court cannot issue an injunction against the president or Congress. In the end this ruling is therefore a narrow interpretation of the Court’s power to restrain a president via an injunction should a chief executive act illegally in carrying out his discretionary duties. Korematsu v. United States, 323 U.S. 214 (1944) Facts: Toyosaburo Korematsu, a California citizen of Japanese ancestry, was convicted in federal court of violating a military exclusion order to leave his home and report to a relocation camp. The military commander’s legal authority to evacuate Japanese Americans from the West Coast came from both the chief executive and Congress. President Franklin

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Roosevelt issued an executive order that created military zones within the United States and authorized military commanders to impose curfews and exclude people to avert espionage and sabotage. Congress then endorsed the president’s policy through legislation and established criminal penalties for persons violating the orders of military commanders. The Supreme Court granted certiorari after Korematsu’s conviction. Issue: In light of Articles I and II and Hirabayashi v. United States (1943), is it beyond the war powers of the president and Congress to exclude Americans of Japanese ancestry from the West Coast and to place them in relocation camps if there is grave, imminent danger to the public safety? Decision: No Vote: 6–3 Majority Opinion: Justice Black notes that in Hirabayashi the Court upheld a curfew order on the West Coast as essential to averting espionage and sabotage. Likewise, the Court concludes in Korematsu that it was not beyond the war powers of the president and Congress to exclude Japanese Americans from the West Coast. The basic ruling in both cases was anchored in the fact that the West Coast faced “the gravest imminent danger to the public safety.” In this case there was a “definite and close relationship” between the exclusion of Japanese Americans and the prevention of espionage and sabotage, and the military commander acted based on the legitimate exercise of presidential and congressional power. Black assumes there were disloyal Japanese Americans on the West Coast, although he admits that their number and strength were unknown. Under the circumstances of military imperative, it was impossible to separate loyal Japanese Americans from those who were not. Furthermore, no racial or ancestral prejudice was involved in the relocation. In Black’s words, “it is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.” However, Black insists that “to cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded because of hostility to him or his race.” Why, then, was Korematsu excluded from the West Coast? “He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and

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felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably they must—determined that they should have the power to do just this.” Black therefore concludes that “we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue.” Concurring Opinion: Justice Frankfurter maintains that the Court’s role is simply to ensure that the president and Congress did not act unconstitutionally in this case—not to approve or disapprove of what they did. Dissenting Opinions: Justice Roberts contends that this case deals with an undeniable violation of constitutional rights. As he writes, “It is a case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.” Justice Murphy concludes that the exclusion from the West Coast violated the concept of equal protection inherent in the Fifth Amendment and deprived Japanese Americans “of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely.” An entire group is punished based on the disloyalty of a much smaller number of people. The majority opinion thus constitutes the “legalization of racism.” Justice Jackson also argues that Korematsu’s constitutional rights were abridged. He was “convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.” This is clearly racial discrimination, and Korematsu is being unconstitutionally denied his liberty.

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Foreign Affairs United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936) Facts: Congress enacted a joint resolution in 1934 that gave the president the power to forbid the sale of arms to the warring nations of Bolivia and Paraguay, and President Franklin Roosevelt issued an order implementing Congress’s resolution without delay. The Curtiss-Wright Export Corporation was subsequently charged with selling machine guns to Bolivia after the president’s order was issued, but it claimed that Roosevelt’s order was illegal because Congress had unconstitutionally delegated legislative powers to the president. Curtiss-Wright won its case in the district court, and the United States appealed to the Supreme Court. Issue: In light of Articles I and II, may Congress delegate to the president, by means of a joint resolution, the power to prohibit the sale of arms to foreign nations engaged in war? Decision: Yes Vote: 7–1 Majority Opinion: Justice Sutherland contrasts the powers of the national government in domestic and foreign affairs, showing that the two differ both in their nature and origin. The enumerated and implied powers in the Constitution apply only to domestic affairs, and the federal government may not exceed those powers. In domestic affairs, Sutherland states, “the primary purpose of the Constitution is to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states.” He goes on to argue, “And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source.” As a result, only the national government deals with foreign affairs, and the country’s history underscores this fact. The colonies were a “unit in foreign affairs” even before the Declaration of Independence, when they acted through the Continental Congress. The Continental Congress, “composed of delegates from the thirteen colonies … exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. Rulers come and go; governments end … and forms of government change; but sovereignty survives.”

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Moreover, powers in foreign affairs would have naturally belonged to the national government even if they were not mentioned in the Constitution; by their very nature they could not have been exercised by the states. Sutherland says that participation in the exercise of foreign affairs was deliberately limited. Because of this, “the president alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; he alone negotiates. Into the field of negotiation, the Senate cannot intrude, and Congress itself is powerless to invade it.” The president, therefore, is the “sole organ” in exercising the “plenary and exclusive” power of foreign affairs, and Congress “must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” This is because the president is in the best position to know what is occurring in other countries; he has confidential sources of international information from executive branch agencies like the Defense Department and the Central Intelligence Agency. In passing this joint resolution, then, Congress essentially recognized the need for the chief executive to act as the sole organ of foreign policy, and the Supreme Court would be unwise to hold otherwise. Dames & Moore v. Regan, 453 U.S. 654 (1981) Facts: President Jimmy Carter declared a national emergency and froze Iranian assets in the United States in November 1979 after the taking of American hostages in Iran. Carter relied on the International Emergency Economic Powers Act (IEEPA) in taking this action. Under this law Congress gave the president the power to “nullify, void, prevent or prohibit any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of … any property in which any foreign country or a national thereof has any interest.” Carter next entered into an executive agreement with Iran to obtain the freedom of the American hostages in exchange for the release of Iranian assets in the United States. Carter issued executive orders that suspended claims pending in American courts against Iran, including those of the Dames & Moore Company. Dames & Moore challenged Carter’s action in federal court, opining that it had not been paid for services provided to the nation of Iran and that the President’s actions exceeded his constitutional and statutory authority. When the federal district court ruled against

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Dames & Moore, the company sued Donald Regan, secretary of the Treasury. The Supreme Court granted certiorari. Issue: In light of Article II, Section I, may a president freeze the assets of another country in the United States to deal with an emergency in foreign affairs as well as suspend claims pending in American courts against that country if Congress has given the president broad discretion to deal with national emergencies in foreign affairs and has not disapproved of subsequent presidential actions? Decision: Yes Vote: 8–1 Majority Opinion: Justice Rehnquist first emphasizes the importance of cases such as this that help to define how America is to be governed. This particular case deals with Carter’s regulations and executive orders that attempted to “[nullify] attachments and liens on Iranian assets in the United States, directed that these assets be transferred to Iran, and suspended claims against Iran that may be presented to an International Claims Tribunal … [in order] to comply with an Executive Agreement between the United States and Iran.” Dames & Moore complained that the IEEPA was not intended to provide the president with such sweeping power over foreign nations’ assets in times of emergency. Rehnquist, however, interprets the IEEPA in a way that fully supports Carter’s use of power. In passing IEEPA, Congress in fact fully meant to give to the president the kind of power that Carter exercised. There was “specific congressional authorization” in support of Carter’s action, according to Rehnquist, and a different ruling by the Court “would mean that the Federal Government as a whole lacked the power exercised by the President, and that we are not prepared to say.” Does this also imply that Carter had the authority to suspend claims pending in American courts? The President allegedly took this action pursuant to both the IEEPA and the Hostage Act of 1868. Rehnquist again defers to Congress’s wide-ranging grant of power to the president and upholds Carter’s action. Although the strict language of these laws did not authorize the chief executive to suspend claims pending in the courts, “we think both statutes highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case.” Congress cannot be expected to pass legislation specifically authorizing all types of action that the president might be required to take during times of national emergency, especially in foreign affairs. “On the contrary, the enactment of

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legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility’. … At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President.” As Justice Frankfurter writes in Youngstown Sheet & Tube Company v. Sawyer (1952), “a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned … may be treated as a gloss on ‘Executive Power’ vested in the President by Section 1 of Art. II.” Sale v. Haitian Centers Council, Incorporated, 509 U.S. 155 (1993) Facts: Presidents George H. W. Bush and Bill Clinton adopted a policy of intercepting and immediately returning Haitian boat people who traveled seven hundred miles to American shores to live in the United States. Between 1981 and 1992, though, the nation’s policy had been to provide asylum hearings for Haitians to ensure they would not be prosecuted if returned and that no refugees would be sent back to Haiti. The legal basis for the old policy was Section 243(h)(1) of the Immigration and Naturalization Act and the UN Protocol Relating to the Status of Refugees. A federal court struck down the new Bush-Clinton policy, and Chris Sale, the acting director of the Immigration and Naturalization Service (INS) appealed to the Supreme Court. Issue: In light of Article II, the Immigration and Naturalization Act, and the UN Protocol Relating to the Status of Refugees, may the president direct the interception and immediate return of undocumented aliens to the nation from which they came, irrespective of whether their life or freedom would be in danger? Decision: Yes Vote: 8–1 Majority Opinion: Justice Stevens examines the language and history of Section 243(h)(1) and Article 33 of the UN Convention, concluding that they do not prohibit the new policy adopted by Presidents Bush and Clinton. In addition, Stevens illustrates how the Court tends to defer to the president in matters of foreign affairs: “Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested. That presumption has special force when we are construing treaty

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and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility.” Dissenting Opinion: Justice Blackmun says that the language of the Immigration and Naturalization Act and the UN Protocol indicates that the Bush-Clinton policy is in fact unlawful. Blackmun refuses to defer to the chief executive in this case because immigration is one policy area where the president and Congress share constitutional authority.

Treaty-Making Power Missouri v. Holland, 252 U.S. 416 (1920) Facts: The Migratory Bird Treaty Act of 1918 was a treaty between the United States and Great Britain. Its purpose was to protect certain species of migratory birds in danger of extinction that traveled between parts of America and Canada. Missouri attempted to restrain the carrying out of the Migratory Bird Act by suing a U.S. game warden. Missouri claimed that Congress was using its treaty power as a vehicle to interfere with powers reserved to the states under the Tenth Amendment. After a federal district court refused to enjoin the implementation of the act, Missouri appealed to the Supreme Court. Issue: In light of the president’s treaty-making powers under Article II, Section 2, Clause 2, does this treaty and the Migratory Bird Act of 1918 infringe on the powers reserved for the states by the Tenth Amendment? Decision: No Vote: 7–2 Majority Opinion: Justice Holmes’s opinion is constitutionally important because it interprets the president’s treaty-making powers broadly. Holmes notes that Article II, Section 2, Clause 2 explicitly gives the president the power to make treaties with the advice and consent of two-thirds of the Senate. Second, the Supremacy Clause of Article VI, Section 2 makes treaties the supreme law of the land. Third, Article I, Section 8, Clause 18 gives Congress the power to pass laws that may be necessary and proper to execute the powers of the national government. Yet Missouri argues there are limits to the treaty-making power because of the Tenth Amendment. In this instance Missouri asserts that migratory birds are “owned by the states in their sovereign capacity for the benefit of their people.” Holmes rejects this argument, observing that if Congress cannot deal with certain matters, they may be handled through treaties,

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as is true in this case. Furthermore, the Constitution’s framers could not foresee all circumstances: “When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of begetters. … The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” Given this, the treaty does not violate “any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.” Weighing Missouri’s Tenth Amendment argument, Holmes concludes that the states may regulate the birds, but they neither own them nor have exclusive regulatory power over them. The birds may be in Missouri one day and another state a week later. Here the national interest is involved, and national action must be to protect the birds. These migratory birds simply cannot be effectively protected by relying on the states, and nothing in the Constitution prohibits the national government from acting in this way.

National Security and Emergencies Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) Facts: President Harry Truman issued an executive order in 1952 to Charles Sawyer, his secretary of commerce, to seize private steel mills because of an impending strike during the Korean War. Although the federal government was seizing private property, Truman assumed that maintaining steel production was essential to the national interest, the war effort, and a healthy economy. The steel mills sued, the district court ruled against the government, but the Court of Appeals stayed the carrying out of the district court ruling. The Supreme Court granted certiorari. Issue: In light of the chief executive’s aggregate powers under Article II and the general law-making powers of Congress under Article I, may a president seize private steel mills during a time of war, even though Congress expressly denied that power to the president in labormanagement relations? Decision: No Vote: 6–3

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Majority Opinion: Justice Black begins by briefly stating the position of the steel mills and the president. The steel mills insist that the chief executive’s seizure amounts to him exercising a function reserved for Congress. The president’s lawyers claim he was acting within his aggregate powers as chief executive and commander in chief. Black then says that if the president’s actions are legal, they must have their sanction in either statutory law or the Constitution. He first concludes that no statute explicitly or implicitly gives the president the power to seize private steel mills. In fact, while debating the Taft-Hartley Act in 1947, Congress expressly rejected a proposal to give the president the power to seize private property during times of emergency. Black next addresses the constitutional argument in the case. He points out that the president’s attorneys place their faith in the aggregate powers of the chief executive under Article II. They emphasize the fact that the executive power of the federal government is vested in the president, that the president is directed to take care that the laws be faithfully executed, and that the president is named commander in chief. Nonetheless, Black stresses that the president’s exercise of executive power cannot extend to the law-making function. “The Constitution limits [the president’s] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.” As a result, Article I gives all legislative powers to Congress. Truman’s executive order read like a statute, according to Black, but only Congress is authorized to take private property for public use. Finally, Black concludes that the president’s role as commander in chief is also inadequate for justifying Truman’s action: “We cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.” Concurring Opinions: Justice Jackson presents his eminent three-part interpretation of presidential power. First, the president’s authority is greatest when the Constitution gives him express or implied powers. Second, the president’s authority is diminished somewhat when he relies on a concurrent power shared with Congress. But third, as in this case, the president’s power is least when he acts in a way that is “incompatible with the expressed or implied will of Congress.” In this case, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

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Justices Burton, Clark, Douglas, and Frankfurter also concur. Burton claims the chief executive violated the doctrine of separation of powers in this case because Congress had retained for itself the power to decide when and where to seize private property during times of emergency. Clark argues that the president went too far in this case because “Congress had prescribed methods to be followed by the President in meeting the emergency at hand.” Douglas says this case deals with the taking of private property, in the constitutional sense, under the Fifth Amendment. It was unconstitutional here, though, because only Congress has the power to condemn private property for public use and provide just compensation to the owners. Finally, Frankfurter highlights the fact that Congress has carefully limited the president’s powers to seize private property when it has given the president some conditional power. With respect to the TaftHartley Act, Congress consciously chose not to give the president the type of power he sought to exert in this case. The act instead directed the chief executive to report to Congress if he needed seizure power. Failing to do this, clearly the president exceeded his powers in this instance. Dissenting Opinion: Chief Justice Vinson defends the president’s actions. The United Nations requested assistance to repeal aggression in Korea, and America responded appropriately. Even so, the president faced the possibility that steel production would be halted completely without government seizure. In times such as these, the Constitution must, in Chief Justice Marshall’s words, “be adapted to the various crises of human affairs.” The Constitution is a living document designed to be flexible enough to meet unanticipated emergencies. Under such grave circumstances the president must act; he cannot be made to report to Congress and receive permission. New York Times Company v. United States, 403 U.S. 713 (1971) Facts: The New York Times and Washington Post published articles in 1971 based on top-secret government reports that examined the history of the Vietnam War and were given to the newspapers by Pentagon official Daniel Ellsberg. The federal government sued both newspapers, asking a federal district court to issue a temporary restraining order to prevent the newspapers from publishing additional articles. The government, speaking for President Richard Nixon, asserted that the publication of the articles would cause irreparable injury to national security. The newspapers

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disagreed, arguing that the material was largely of historical interest. Eighteen days after the suit was filed in district court, the Supreme Court handed down this ruling. Issue: In light of the free press provision of the First Amendment and the president’s Article II powers in foreign affairs and as commander in chief, may a federal court issue a restraining order to prevent publication of classified government documents when the president contends that their publication would be harmful to the national interest and national security? Decision: No Vote: 6–3 Per Curiam Opinion: The Court observes that the federal government has a very heavy burden of proof to justify prior restraint. If it fails to meet that burden, the New York Times must be allowed to publish these government documents, even though they are classified. After that, the government may file suit against the New York Times if it believes the newspaper breached federal law. Concurring Opinions: Justice Black argues that the First Amendment is violated each moment that the New York Times is restrained. The press “must be free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” Further, the president has no inherent power to stop a newspaper from publishing, even when national security is implicated. That would destroy the First Amendment, according to Black. Justice Douglas believes that the First Amendment was designed to prohibit government suppression of embarrassing information. “Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health.” Justice Brennan also concurs, saying that the First Amendment stands as an absolute bar to judicial restraints in circumstances of this kind. Justice Stewart recognizes that matters of national defense require confidentiality and secrecy. Because Article II of the Constitution gives the chief executive a great deal of unshared power in national security and foreign affairs, it follows that the president “must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully.” Nevertheless, Stewart believes that the publication of the Pentagon Papers would not cause irreparable damage to the nation, so he suggests a test for when the Court might rule in favor of the president in these types of cases—namely,

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whether the disclosure of classified documents would cause “direct, immediate, and irreparable damage to our nation or its people.” Justice White believes that some circumstances might warrant prior restraint of the publication of classified government information, but not here. The executive branch has no inherent power to halt publication in such cases, and the claim of grave and irreparable danger is far too vague for the Court to comply with the government’s request. Dissenting Opinions: Chief Justice Burger maintains that the Court knows little about this case because of its hasty disposition. Justice Harlan agrees and says that the Court should think through related matters before reaching a decision on the merits. Justice Harlan emphasizes that the Court’s role in this litigation is very narrow and that the lower courts gave too little deference to the position of the president. Finally, Justice Blackmun agrees that this litigation was handled too quickly. This case requires a careful balancing of the government’s narrow power to prevent publication against the far broader freedom of the press. United States v. United States District Court, 407 U.S. 297 (1972) Facts: Federal officials used wiretapping in a bombing case of a CIA office without a search warrant. The government argued that the surveillance was a lawful exercise of the president’s power to protect national security. It lost in the lower courts, and the Supreme Court granted certiorari. Issue: In light of the Search and Seizure Clause of the Fourth Amendment and the president’s power under Article II, Section 2, Clause 1 to protect national security, may federal law enforcement officials tap the telephone of individuals suspected of domestic subversion without receiving prior judicial approval? Decision: No Vote: Unanimous Majority Opinion: Justice Powell underscores the fact that the essence of the Fourth Amendment is the notion of a neutral and detached magistrate determining whether probable cause exists for a search by government officials. “These Fourth Amendment freedoms cannot properly be guaranteed,” he concludes, “if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates” because they must

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investigate, prosecute, and enforce the laws. Otherwise, privacy and free speech could be placed in serious jeopardy. The government made two other arguments in this case. First, it insisted that domestic security surveillance is an exception to the warrant requirement of the Fourth Amendment. Second, it asserted that prior judicial approval would obstruct the president’s ability to protect national security and might create a danger to the lives of informants and government agents. The Court rejected both arguments. Powell concludes that customary requirements of judicial approval prior to searches and surveillance are necessary under the Fourth Amendment—even when the president is trying to protect national security.

Appointments and Removals Myers v. United States, 272 U.S. 52 (1926) Facts: The appointment and removal of postmasters was made on a partisan basis in the 1920s, but Frank Myers refused to relinquish his postmaster position when a new president was elected. An order from the postmaster general then removed Myers, but Congress did not give its consent to the removal. Myers sued in the U.S. Court of Claims to recover his lost salary. Directly relevant was an 1876 federal statute stipulating that “Postmasters of the first, second, and third classes shall be appointed and may be removed by the president by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.” After losing his case in the Court of Claims, Myers’s brother, the administrator of his estate, appealed to the Supreme Court. Issue: In light of Article II, Section 2, Clause 2, does a president have exclusive power to remove executive branch officers of the United States without the advice and consent of the Senate? Decision: Yes Vote: 6–3 Majority Opinion: Chief Justice Taft agrees with the government’s argument that the president’s removal powers are full and complete and that the Senate has no role in the removal of presidential appointees. Sympathetic as a former president, Taft feels that chief executives need leverage to ensure that their subordinates carry out their responsibilities as the president wishes. His opinion goes back to the Constitutional

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Convention and the first Congress to find evidence of the intent to establish a strong executive. As a case in point, James Madison insisted that Article II be interpreted “to give the President the sole power of removal in his responsibility for the conduct of the executive branch.” The president needed subordinates, of course, in seeing that the laws are faithfully executed, so the chief executive must have the power to remove his appointees to ensure that they do their jobs. After all, the president is in a better position than the Senate to know whether an appointee is carrying out the job faithfully and effectively. “The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment,” Taft maintains. “The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment.” Anyway, if Congress was intended to have the power to regulate or control removals, it would have been expressly mentioned in Article I. Taft considers the argument that executive branch appointees of a president “are not servants to do his will, and that his obligation to care for the faithful execution of the laws does not authorize him to treat them as such.” He rejects this contention as well by noting that the “highest and most important duties which his subordinates perform are those in which they act for him. In such cases they are exercising not their own but his discretion.” This being so, again the president must have the complete and full power to remove them. Presidential appointees in the bureaucracy, whether the heads of departments or lower-ranking appointees, cannot be negligent or inefficient. If they are, the president should dismiss them, and this applies even to inferior appointments such as postmaster. With this reasoning, Taft invalidates the provision of the 1876 law requiring the advice of the Senate for the removal of postmasters. Dissenting Opinions: Justice McReynolds finds little evidence to support the majority’s conclusions beyond Madison’s statements of 1789. Justice Brandeis concludes that Congress has passed many statutes to control the president’s removal of executive branch appointees approved by Congress. However, Brandeis’s dissent is better known for the separation of powers theory he espouses, including the notion that each branch of government is in fact dependent on the others, not completely autonomous. Finally, Justice Holmes asserts that because Congress is given such essential powers with respect to the executive branch, it also

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has a role to play in the removal of executive branch appointees it has approved. Humphrey’s Executor v. United States, 295 U.S. 602 (1935) Facts: President Herbert Hoover appointed William Humphrey to the Federal Trade Commission (FTC) for a second term, and the Senate confirmed the appointment. One year later Franklin Roosevelt was elected president, and he asked Humphrey to resign. Humphrey refused, so Roosevelt removed him. Humphrey challenged his removal, then died, and his executor pursued the lawsuit for Humphrey’s unpaid salary, and the case eventually was appealed to the Supreme Court. Issues: First, in light of the Federal Trade Commission Act, may a president remove an FTC commissioner for reasons other than inefficiency, neglect of duty, or malfeasance in office? Second, in light of Article II, is this restriction on the president’s removal power constitutional? Decision: No, yes Vote: Unanimous Majority Opinion: Justice Sutherland discusses the Federal Trade Commission Act and the Commission it created. Congress intended the Commission to be nonpartisan, so Sutherland writes, “Its duties are neither political nor executive, but predominantly quasi judicial and quasi legislative.” Congress intended the FTC, as a nonpartisan commission, to be free from political domination and not subject to the orders of the president. It was to be “independent of executive authority, except in its selection.” As a result, the Court would be contradicting the will of Congress if it concluded that the president could remove a member of the FTC for reasons other than those stated in the law creating the Commission, namely inefficiency, neglect of duty, or malfeasance in office. Sutherland next addresses the second issue. This restriction on the president’s removal powers is constitutional, and the Court explains how this case differs from Myers v. United States (1926). “A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers Case finds support in the theory that such an officer is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is.”

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By contrast, Sutherland observes that the FTC is an “administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other duties as a legislative or as a judicial aide.” Thus, the FTC must be free of executive control because it is both a quasi-legislative and a quasi-judicial agency: “In making investigations and reports under Section 6 [of the Act] for the information of Congress, in aid of the legislative power, it acts as a legislative agency. Under Section 7 [of the Act], which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary.” Sutherland concludes that the president’s power to remove “depends on the character of the office” involved. The president could remove Myers because he was purely an executive official, but Humphrey could not because he was an official of the legislative and judicial branches. Bowsher v. Synar, 478 U.S. 714 (1986) Facts: The Balanced Budget and Emergency Deficit Act of 1985 established a maximum deficit amount for federal spending for the years 1986 through 1991. If the national budget went beyond that maximum, the 1985 law required across-the-board cuts in federal spending, with an automatic budget-cutting scheme that the comptroller general, whom only Congress could remove, would administer. Section 251 of the 1985 law required this budget-cutting scheme and gave the comptroller general the authority to make final determinations of budget cuts and submit them to the president, who was required to order the cuts. In this case, Congressman Mike Synar sued the comptroller general, Charles Bowsher, challenging the constitutionality of Section 251. The district court struck down Section 251 as unconstitutional, and Bowsher appealed to the Supreme Court. Issue: In light of Articles I and II, may Congress assign the comptroller general certain executive functions under the Balanced Budget and Emergency Deficit Control Act of 1985 without violating the doctrine of separation of powers if only Congress can remove the comptroller general? Decision: No Vote: 7–2

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Majority Opinion: Chief Justice Burger addresses the basic concept of separation of powers. The purpose of separating the powers of government is to better secure liberty. In the words of Montesquieu, “There can be no liberty where the legislative and executive powers are united in the same person.” So, the Constitution’s framers set up a system of separation of powers and checks and balances to check power with power. Burger admits that a system of separation of powers is not always neat and tidy; sometimes it “produces conflicts, confusion, and discordance.” Conversely, it also “assure[s] full, vigorous, and open debate on the great issues” of the nation. Burger next contends that the Constitution does not “contemplate an active role for Congress in the supervision” of the executive branch; that is, Congress cannot control how the executive branch executes the laws that are passed. This means that Congress cannot give powers that rightly belong to the executive branch to an official who Congress controls. It additionally means that Congress may remove executive branch officials only through the impeachment process. Myers v. United States (1926) stood for the principle that only the president could remove executive branch officials and that the Senate need not consent to such a removal, and that doctrine has been reaffirmed in other Supreme Court rulings. Given these precedents, Burger says, “we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” Otherwise, Congress could reserve to itself “control over the execution of the laws.” In terms of this case, the critical factor is who can remove the comptroller general. According to the Balanced Budget Act, the Speaker of the House and the president pro tem of the Senate provide the president with a list of three names, and the president then chooses one of those persons as the comptroller general. However, only Congress can remove the comptroller general, which is why Congress has viewed the comptroller general as a legislative branch official. So, Burger reasons, because only Congress can remove the comptroller, the comptroller general cannot have any executive powers. The next logical question is: Does the comptroller general have executive powers under the 1985 law? Burger’s answer is “yes” because interpreting a congressional statute is the “very essence of execution of that law.” In particular, the comptroller general has the power to establish budget cuts, and the president must abide strictly by the budget cuts mandated by the comptroller. This clearly gives the comptroller general

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executive powers, and this is inconsistent with the Constitution. Although Congress established the Office of the Comptroller General to facilitate Congress performing its own legislative functions involving the budget, that does not mean the comptroller’s job under the Budget Control Act is consistent with the Constitution. As Burger insisted in Immigration and Naturalization Service v. Chadha (1983), “The fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” Concurring Opinion: Justice Stevens would strike down the challenged statutory provision based not on the congressional removal power but on the view that “Congress may not exercise its fundamental power to formulate national policy by delegating that power to one of its two Houses, to a legislative committee, or to an individual agent of the Congress.” Dissenting Opinions: Justice White claims that the majority opinion embraces a “distressingly formalistic view of separation of powers” and that the Balanced Budget Act does not impair separation of powers. The fact that Congress may remove the comptroller general neither makes him subservient to Congress nor increases in a significant way the influence of the legislature over how the executive branch carries out the law. Justice Blackmun dissents as well, concluding that the Court should strike down the removal provision of the law, not all of Section 251. Moreover, Blackmun argues, the comptroller general is not subservient to Congress under Section 251, as the majority suggests. Morrison v. Olson, 487 U.S. 654 (1988) Facts: Congress passed the Ethics in Government Act of 1978 after the Watergate scandal. It permitted the appointment of a special prosecutor or independent counsel to investigate and prosecute government officials for violating federal criminal statutes. If a preliminary investigation by the attorney general indicated the need for a special prosecutor, a three-judge panel of federal judges, known as the Special Division of the U.S. Court of Appeals for the District of Columbia, is to select the special prosecutors. After that, a special prosecutor wielded the power of the Department of Justice, and only the attorney general could dismiss the special prosecutor for good cause or because disabilities prevented the execution of the prosecutor’s duties. In this case, Special Prosecutor Alexia Morrison

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was investigating claims that former Assistant Attorney General Theodore Olson lied to a House subcommittee about withholding Environmental Protection Agency documents from Congress. This led Olson to file a lawsuit that tested the constitutionality of Morrison’s appointment by a panel of judges rather than the president. The district court upheld the Ethics in Government Act, the Court of Appeals reversed, and the Supreme Court granted certiorari. Issue: In light of Article II, Section 2, Clause 2 and Article III, does Congress unconstitutionally infringe on the president’s appointment powers, violate the constitutional limitations placed on the judiciary, or impermissibly interfere with the president’s authority in violation of the principle of separation of powers if it passes a law permitting the appointment of a special prosecutor by a federal three-judge panel to investigate and prosecute government officials for violating federal criminal statutes? Decision: No Vote: 7–1 Majority Opinion: Chief Justice Rehnquist quotes the Appointments Clause of Article II, Section 2, Clause 2. It indicates who the chief executive may appoint for selected positions but states as well that “Congress may by Law vest the Appointment of … inferior officers, as they think proper, in the President alone, in the courts of law, or in the Heads of Departments.” As a result, Rehnquist contends that the Appointments Clause divides federal appointed officials into two groups: principal officers selected by the president and inferior officers who may be appointed either by the president, the heads of executive branch departments, or the courts. Next, Rehnquist maintains that a special prosecutor is clearly an inferior officer for several reasons. First, the attorney general may remove a special prosecutor, thus “indicat[ing] that she is to some degree ‘inferior’ in rank and authority” within the executive branch. Moreover, a special prosecutor only has a temporary job, with limited duties and jurisdiction, and lacks any policy-making powers. Beyond this, Rehnquist addresses the contention that “the [Appointments] Clause does not empower Congress to place the power to appoint such an [inferior] officer outside the executive branch” in the judicial branch; in other words, an officer of one branch cannot be appointed by officers of another branch. Rehnquist dismisses this argument by finding no prohibition on interbranch appointments in the language of the Appointments Clause and because the history of the Clause provides

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no support for the argument. And although Congress’s power to appoint interbranch officials is not unlimited, a court’s general functions and the responsibility to appoint a special prosecutor are not incompatible. It was logical, in fact, for Congress to give the courts this appointment power. It is also claimed that, given Article III, the Special Division cannot select special prosecutors and define their jurisdiction, but Rehnquist rejects this argument as well. He says the use of the Special Division to make such choices is constitutional because the Appointments Clause permits Congress to vest the appointment of inferior officials in the courts. Likewise, Article III does not prevent Congress from giving the Special Division various other miscellaneous powers or the power to terminate the office of the special prosecutor. Rehnquist concludes that the Ethics in Government Act did not violate the principle of separation of powers in the sense that the attorney general could only remove the special prosecutor with good cause because this good cause provision does not “impermissibly interfere with the exercise of a presidential function.” Additionally, the Act does not violate separation of powers in the sense that it “reduces the president’s ability to control the prosecutorial powers wielded by the independent counsel.” Nor does the Act violate “the principle of separation of powers by unduly interfering with the role of the executive branch” because Congress is not seeking to increase its own powers vis-à-vis the executive branch. Nor does the Act “work any judicial usurpation of executive functions” or “disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.” On balance, the majority concludes that the Ethics in Government Act “does not violate the Appointments Clause for Congress to vest the appointment of independent counsels in the Special Division; that the powers exercised by the Special Division under the Act do not violate Article III; and that the Act does not violate the separation of powers principle by impermissibly interfering with the functions of the Executive Branch.” Dissenting Opinion: Justice Scalia believes the issue is whether the Ethics in Government Act disrupts the power equilibrium between the three branches of government and feels it would help to cause a gradual concentration of power in one branch. The law vests a purely executive power—law enforcement in independent executive branch investigations—in the hands of someone other than the president. If Congress can

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compel such an investigation, its power is increased relative to the president’s. Although Congress cannot control the investigation’s conclusions, the power to require an investigation means that the relative power of the branches has been altered. Article II, Section 1, Clause 1 gives all executive power to the president. The Ethics in Government Act, according to Scalia, violates that fundamental principle because “the conduct of a criminal prosecution (and an investigation to decide whether to prosecute) [is] the exercise of purely executive power,” and this deprives the president “of exclusive control over the exercise of that power.” Scalia contends that the majority concedes these points yet insists that no violation of separation of powers has occurred. This cannot be, he protests, because “it is ultimately irrelevant how much the statute reduces presidential control.” Once a reduction of presidential power is established, the “case is over.” Scalia also argues that the independent counsel is not an inferior official under the meaning of the Appointments Clause because the 1978 law gives her the “full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice” and makes her removable only for good cause.

Legislative Powers in the Administrative State Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) Facts: During the twentieth century, Congress included a legislative veto provision in nearly two hundred federal statutes in the process of giving the president broad statutory authority to pursue various objectives. The legislative veto provisions permitted Congress to reject, within a specified time, executive branch rules and regulations issued pursuant to Congress’s stated statutory goals. These veto provisions therefore allowed Congress to bypass an executive branch check on congressional action. In this legislative veto case Jagdish Rai Chadha had come to the United States on a student visa in 1966. He remained illegally after his visa expired, and the Immigration and Naturalization Service (INS) took steps to deport him. In 1974 an INS judge suspended Chadha’s deportation, but the U.S. House of Representatives overrode that suspension with the legislative veto provision of Section 244(c)(2) of the Immigration and Naturalization Act. A Court of Appeals held that this legislative veto provision

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violated the constitutional doctrine of separation of powers. The Supreme Court granted certiorari. Issue: In light of Article I, Section 7, Clauses 2 and 3, is the legislative veto unconstitutional because it may be exercised by only one house of Congress and result in a congressional action not being presented to the president for approval or disapproval? Decision: Yes Vote: 7–2 Majority Opinion: Chief Justice Burger’s reasoning in this separation of powers case is straightforward. He first assumes that the challenged statute is constitutional but adds that just because a “law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it” from being declared unconstitutional. Burger then turns to the meaning of the Presentment Clauses and the bicameral requirement of the Constitution. He observes that the “explicit and unambiguous” language of the Presentment Clauses in Article I, Section 7, Clauses 2 and 3 require that all legislation be presented to the president prior to becoming law. That was the clear intent of the Constitution’s framers. The president was thus given the power to veto the actions of Congress, so the chief executive and Congress both play a role in the law-making process. The theory driving this constitutional requirement is that the president should “check whatever propensity a particular Congress might have to enact oppressive, improvident, or ill-considered measures.” Burger notes that bicameralism requires that “legislation should not be enacted unless it has been carefully and fully considered by the Nation’s elected officials.” There is a need, in other words, to guard against “legislative despotism.” Alexander Hamilton and other framers of the Constitution contended that a two-house legislature would make legislative despotism less likely. One house serves as a check on the other, and the president’s veto power serves to curb the passage of foolhardy laws. Likewise, the check on the president’s veto power is that a two-thirds vote of both houses of Congress may override it. The key assumption in Burger’s reasoning is that the legislative veto in this case “was essentially legislative in purpose and effect.” This is critical because the Presentment Clauses and the principle of bicameralism might not be involved in this case if a legislative veto was something short of legislation. As a result, Burger emphasizes, “the nature of the decision implemented by the one-House veto in this case further manifests its

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legislative character.” He also stresses that there are only four provisions in the Constitution by which one House may act alone, not subject to the president’s veto. “These exceptions are narrow, explicit, and separately justified; none of them authorize the action challenged here.” Burger admits that the legislative veto may be “a convenient shortcut. … It is obviously easier for action to be taken by one House without submission to the President; but it is crystal clear from the records of the [Constitutional] Convention … that the Framers ranked other values higher than efficiency. … Burdens on governmental processes [may] often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental action to go unchecked.” Concurring Opinion: Justice Powell favors a narrow ruling. Dissenting Opinion: Like Powell, Justice White feels the majority’s decision is far too broad. White suggests that the majority exaggerates fears about legislative despotism and that Congress needs the legislative veto; indeed, he argues, changes in the complexity of government since the founding fathers require the legislative veto. Moreover, White asks: If the veto is unconstitutional, then why would Congress have placed them in almost two hundred statutes over a period of fifty years? Clinton v. City of New York, 524 U.S. 417 (1998) Facts: Congress passed the Line Item Veto Act in 1996 which allowed the president to veto three types of provisions in bills passed by Congress: “(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit.” The president, after exercising the line item veto, could then sign the remainder of a bill into law. A year after the passage of the Line Item Veto Act, the Supreme Court announced that six members of Congress lacked standing to challenge the statute. Other plaintiffs tested it when President Bill Clinton vetoed provisions in two 1997 bills. A federal district court said that the law was unconstitutional, and the Supreme Court again granted certiorari. Issue: In light of the Presentment Clause of Article I, Section 7, Clause 2, may Congress give the president unilateral authority to repeal or amend parts of duly enacted statutes? Decision: No Vote: 6–3

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Majority Opinion: Justice Stevens announces the Court’s holding at the outset: The appellees have standing to sue, and the line item veto procedures of the Line Item Veto Act run afoul of the Presentment Clause, which requires that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it.” On the secondary matter of standing, Stevens concludes that both parties in this suit—the City of New York and the Snake River Farmers’ Cooperative—suffered an immediate injury when Clinton exercised the line item veto in two different bills. On the primary issue of the Line Item Veto Act’s constitutionality, Stevens highlights the fact that the Constitution is silent on a line item veto, suggesting that it is not constitutional. The Constitution grew out of extensive debates, indicating that the power to pass national laws may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” The line item vetoes in this case, however, led to “truncated versions of two bills” passed by Congress, so a “finely wrought and exhaustively considered procedure” was not used in their passage. Stevens rejects the government’s two leading arguments: that the vetoes were “merely exercises of discretionary authority” under the Line Item Veto Act and that they amounted to no more authority than the president traditionally had to refuse to spend appropriated funds. That said, Stevens does indicate the possibility that Congress might propose a constitutional amendment, with different procedures for a line item veto, that would not violate the Presentment Clause. Concurring Opinion: Justice Kennedy emphasizes that the Line Item Veto Act potentially threatens individual liberty. The framers did not include a Bill of Rights in the Constitution, of course; the First Congress added that at the insistence of James Madison. The framers believed, instead, that liberty was ensured through a system of separation of powers, that no branch would be able to abuse individual rights as long as the other two branches of government had appropriate checks on that power, and that the original distribution of powers must be maintained to guarantee continued liberty. In Kennedy’s words, Americans must have “regularity in the exercise of governmental power,” and “by increasing the powers of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.”

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Dissenting Opinion: Justice Breyer opposes a literal reading of the Constitution in this case. But if a literal interpretation is used, it means the chief executive “did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact.” After a searching examination, Breyer concludes that the Line Item Veto Act does not violate the principles of separation of powers or threaten individual liberty in America; rather, the Act is “an experiment that may, or may not, help representative government work better,” and the Constitution does not prohibit the use of “novel methods in this way.” Concurring in part, dissenting in part: Justice Scalia sees no violation of the Presentment Clause in this case. He argues that “the Court’s problem with the [Line Item Veto] Act is not that it authorizes the President to veto parts of a bill and sign others into law, but rather that it authorizes him to ‘cancel’—prevent from ‘having legal force or effect’—certain parts of duly enacted statutes.” Scalia then asserts that congressional authorization for the president to cancel spending provisions of bills does not give the president “a power that our history and traditions show must reside exclusively in the Legislative Branch.” There is a long history of presidential impoundment of funds, where presidents have simply refused to spend money that Congress appropriated, and the Court “implicitly confirmed that Congress may confer discretion upon the executive to withhold appropriated funds, even funds appropriated for a specific purpose” in Train v. City of New York (1975). Had the Line Item Veto Act declared that a president could “decline to spend” the funds “canceled” by Clinton, the Court would have upheld the legislation. The difference is purely a technical one—the difference in canceling congressionally approved spending and declining to spend those funds— and “does not relate to the technicalities of the Presentment Clause, which has been fully complied with.”

Accountability and Immunities United States v. Nixon, 418 U.S. 683 (1974) Facts: Workers for the Committee to Re-elect the President were caught breaking into the headquarters of the Democrat National Committee, located in the Watergate apartment complex in Washington, DC, in June 1972 in order to steal information that might assist President Richard

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Nixon’s reelection campaign. Senate hearings into the break-in suggested that the president could have known of these illegal activities and revealed the existence of taped Oval Office conversations that could shed light on the ongoing criminal investigations of the Watergate burglars. The problem was obtaining the tapes, and the president refused to turn them over based on a claim of executive privilege. Special Watergate Prosecutor Archibald Cox subpoenaed some tapes for use in grand jury proceedings and was fired as an executive branch subordinate when he refused to accept summaries of the tapes instead of the originals. However, the new special prosecutor, Leon Jaworski, secured a subpoena in 1974 for other tapes and documents necessary for the trial of the Watergate conspirators. Some two years following the break-in, after being named by the grand jury as an unindicted coconspirator, Nixon once more refused to release the actual tapes, providing edited transcripts instead. His attorney insisted that the issue was nonjusticiable because it was an intra-executive branch dispute between Nixon and the special prosecutor and that the judiciary could not review a chief executive’s assertion of executive privilege. The district court ruled against Nixon, and the Supreme Court granted certiorari. Issue: In light of Article II and the Fifth and Sixth Amendments, does a claim of executive privilege by a president, exercised in the public interest, outweigh the need for information relevant to the fair administration of criminal justice? Decision: No Vote: Unanimous Majority Opinion: Chief Justice Burger addresses the executive privilege assertions of Nixon: first, that the doctrine of separation of powers precludes the Court from reviewing a president’s claim of executive privilege, and second, that even if this is not true, a claim of executive privilege prevails over a request to a court to subpoena presidential documents. On the first assertion, Burger points to Marbury v. Madison (1803) and other precedents establishing that the Supreme Court is the final interpreter of the Constitution; that judicial function cannot be shared with any other branch of government. Nixon’s attorney asserts that executive privilege is absolute because communications between the chief executive and his advisers must be fully protected and because the doctrine of separation of powers protects the “Executive Branch in its own sphere.” Burger responds in two ways.

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He initially concludes that executive privilege does exist: “The privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.” Next, though, Burger rejects both arguments Nixon’s attorneys put forward: “Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Of course, Burger concedes, a president needs to receive candid, objective advice from his aides. “However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises,” he writes. “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.” Burger concludes, then, that executive privilege does exist, derived from the president’s enumerated powers in Article II, but it is not absolute and would normally involve the protection of military, diplomatic, or sensitive national security secrets. In this case an absolute privilege would interfere with the courts’ responsibility to do justice in a criminal prosecution—specifically rights under the Fifth and Sixth Amendments. As Burger argues, it would be rare that presidential advisers would temper their candor because they thought their conversations with a president might be disclosed due to a criminal prosecution. “On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial could cut deeply into the guarantee of due process of law and gravely impair the basic function of courts.” Burger’s conclusions were dictated by the fact that Nixon’s asserted unqualified privilege was based “on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions.”

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Nixon v. Fitzgerald, 457 U.S. 731 (1982) Facts: Ernest Fitzgerald, an employee with the U.S. Air Force, testified before a congressional committee in November 1968, revealing overrun costs and technical difficulties in a government aircraft project. These damaging revelations were given extensive press coverage, and Fitzgerald gained notoriety. In a governmental reorganization in January 1970 Fitzgerald’s position was eliminated, and he was dismissed from government employment. Fitzgerald eventually filed suit, complaining that his dismissal was in retaliation for his disclosures to Congress, and the Supreme Court granted certiorari. President Richard Nixon was named in the case because he had publicly taken responsibility for Fitzgerald’s dismissal. Issue: Given his unique status and duties under Article II, is an American president entitled to absolute immunity from damages liability in civil suits based on his official acts? Decision: Yes Vote: 5–4 Majority Opinion: Justice Powell begins by examining the Court’s ruling in Butz v. Economou (1978). Butz rejected the view that all highlevel federal officers have absolute immunity in civil suits, but the question of a chief executive’s immunity was not raised in that case. So Powell states the guiding principle in Nixon v. Fitzgerald: “Applying the principles of our cases to claims of this kind, we hold that petitioner [Nixon], as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Obviously, Powell observes, “the president’s unique status under the Constitution distinguishes him from other executive branch officials,” and the president must be immune from civil suits that would distract him from carrying out his public duties as chief executive. In executing their duties, presidents stir intense feelings, and it is in the public interest to provide the president with “the maximum ability to deal fearlessly and impartially with the duties of his office.” Concerning this case, Powell says that clearly the chief executive has the constitutional and statutory authority to prescribe governmental reorganizations and reductions in

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force, and he must have absolute immunity from civil suits when he reorganizes government or reduces the number of public employees. Powell rejects, too, the argument that this absolute immunity from civil suits would make the president too powerful because there are other restraints on the president’s power—namely, congressional oversight, the press, and, ultimately, impeachment. “Absolute immunity,” Powell writes, “will not place the president ‘above the law.’ For the president, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance a compelling public ends.” Dissenting Opinion: Justice White maintains that “attaching absolute immunity to the office of the president, rather than to particular activities that the president might perform, places the president above the law.” White prefers that immunity be attached to certain presidential functions, as the Court has done in prior cases. Accordingly, White writes that the majority “abandons the functional approach to immunity that has run through all our [prior] decisions. Indeed, the majority turns this rule on its head by declaring that because the functions of the president’s office are so varied and diverse, and some of them are so profoundly important, the office is unique and must be clothed with officewide, absolute immunity. This is policy, not law, and in my view, very poor policy.” Clinton v. Jones, 520 U.S. 681 (1997) Facts: Paula Jones, a former Arkansas state employee, filed suit against President Bill Clinton in 1994. Jones claimed that Clinton, as governor of Arkansas in 1991, violated federal and state civil rights and sexual harassment laws when he made sexual advances toward her while she was a state employee. Jones asked for actual damages of $75,000 and punitive damages of $100,000, arguing that her superiors had treated her discourteously after she rejected Clinton and relocated her to a different job with little promotion potential. Clinton disavowed Jones’s assertions and contended the case should be dismissed on grounds of presidential immunity. The district court rejected the president’s argument to dismiss but did order the trial to be delayed until after Clinton left office. The Court of Appeals also rejected Clinton’s claim to immunity. It reversed the district court, though, concluding that the president was subject to the laws like any other citizen and that the trial should not be postponed. The Supreme Court granted certiorari.

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Issue: In light of his unique constitutional duties and status under Article II and the doctrine of separation of powers, is the president entitled to temporary immunity until he leaves office from civil lawsuits growing out of unofficial conduct before he became president? Decision: No Vote: Unanimous Majority Opinion: Justice Stevens rejects Clinton’s assertion that the president has temporary immunity from civil damages suits growing out of events that took place before he became president except in the most unusual of circumstances because immunity is not relevant to unofficial conduct. The rationale behind immunity is that it “serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability.” An executive, legislative, or judicial official may then “deal fearlessly and impartially with the public at large” in carrying out their official duties. A government official’s unofficial conduct is not immune from litigation, though, because immunity extends to the “function performed, not to the identity of the actor who performed it.” Clinton’s constitutional argument is that separation of powers requires the courts not to interfere in the president carrying out his critical duties; the courts should therefore postpone judicial proceedings in this case until he leaves office so he will not be distracted. Stevens concedes that the chief executive has critical responsibilities but rejects the notion that allowing judicial proceedings to progress would violate separation of powers. Stevens argues that the courts are not attempting to encroach on the powers of the president; they are merely being asked to deal with a case or controversy. “Whatever the outcome of this case, there is no possibility that the decision will curtail the scope of the official powers of the Executive Branch.” The case deals with unofficial conduct, and it is unlikely that the distractions of this case will engulf the president, so the litigation should be allowed to proceed. Bush v. Gore, 531 U.S. 98 (2000) Facts: In 2000, Florida effectively decided the winner of the presidential election. George W. Bush initially had a slender 1780-vote lead over Al Gore, requiring under state law an automatic machine recount three days later. Bush’s lead narrowed to 250 votes after the recount, and Democrats demanded that undercounted ballots—those not counted

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by voting machines—from a few heavily Democratic counties be hand counted and included in the final tally. Voting machines did not count these votes either because voters failed to completely penetrate the punch card ballot or due to machine failure. Nonetheless, according to Florida law, the Florida secretary of state, Katherine Harris, had to certify the final vote by November 18, eleven days after the election. When Harris declared that she would certify the vote on November 18 irrespective of whether the continuing hand counts were completed, the Gore campaign went to court. The Florida Supreme Court said that the recounts could continue until November 26, at which time Harris could certify the winner. That ruling was appealed to the U.S. Supreme Court, which reversed the certification extension and required the Florida Supreme Court to clarify its reasoning. Gore again appealed to the Florida Supreme Court, which responded by directing a new manual recount of undervotes throughout the state to begin at once. Bush appealed this ruling to the U.S. Supreme Court, which granted certiorari. Issues: First, in light of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, must uniform standards be used throughout a state in counting votes cast for presidential electors so as to avoid arbitrary and disparate treatment of members of the electorate? Second, were the recount procedures adopted by the Florida Supreme Court consistent with this obligation? Decision: Yes, no Vote: 5–4 Per Curiam Opinion: When a state legislature has its presidential electors chosen by statewide election, as is true here, “the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” The Equal Protection Clause of the Fourteenth Amendment protects the vote under these circumstances. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” The issue in this case “is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.” They clearly were not. The Florida Supreme Court failed to provide any uniform rules for Florida’s counties to determine a voter’s intent where a mark, chad, hole, or scratch appeared on uncounted ballots, so

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an “unequal evaluation of ballots” occurred because the standards used from county to county varied widely. The Florida Supreme Court “ratified this uneven treatment” by ordering, for example, that the recounts in Miami-Dade and Palm Beach Counties be included in the certified vote total. Moreover, the Florida Supreme Court ordered the counting of both undervotes and overvotes in three counties, while a partial vote total was permitted in Miami-Dade as time for certification was running out. “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” The Court underscores irregularities and inconsistencies in the way votes were recounted in Florida, all because the state supreme court failed to provide uniform guidelines and minimum procedural safeguards. “When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.” Because those conditions were not met here, equal protection and due process were violated. As a more practical matter, 3 U.S. Code Section 5 stipulates that electors must be selected by December 12, and that date was quickly approaching without a recount procedure that met constitutional requirements. Consequently, the Supreme Court reverses the state supreme court order that the recount continues. The time needed for such a full recount had simply expired. Concurring Opinion: Chief Justice Rehnquist agrees with the per curiam opinion but writes in concurrence to highlight additional reasons for reversing the state supreme court. First, Article II, Section 1, Clause 2 of the Constitution requires that “each State shall appoint, in such a Manner as the Legislature thereof may direct,” electors for president and vice president. Supreme Court precedent has noted that this constitutional provision requires that the state legislature exclusively determine the method in which electors are selected. The Florida legislature decided to choose presidential electors through a statewide election. The secretary of state and the state circuit courts were given the responsibility under Florida law to conduct the elections and oversee election disputes. Accordingly, the Florida Supreme Court must defer to the role given to the state legislature by Article II, Section 1, Clause 2, in the selection of presidential electors. The U.S. Supreme Court ordinarily defers to state courts in their interpretation of state law but not when a case raises certain questions under the U.S. Constitution. That principle applies here, and the Supreme

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Court must “hold that the Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.” This pays proper respect to the role of the state legislature under Article II, not disrespect for state courts. “To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II,” Rehnquist writes. Dissenting Opinions: Justice Stevens believes the Supreme Court should not intervene in this case because it does not present a substantial federal question. The Florida legislature has the responsibility under Article II to determine how presidential electors are chosen, and the Florida Constitution gives the state supreme court the power of judicial review over the state legislature’s laws in this regard. State courts are normally the final interpreters of state laws, including state election laws. The U.S. Constitution and the U.S. Code do not authorize federal judges “to substitute their views for those of the state judiciary on matters of state law.” Stevens cannot agree with the equal protection reasoning of the majority, especially as it reverses the Florida Supreme Court’s order that the recount continues. The majority, Stevens argues, cannot on the one hand conclude that the right to vote for presidential electors is fundamental and recognize that all voters’ intent must be determined and, on the other hand, order that the recount end, thereby denying the franchise to many voters whose intent was not resolved. The majority reaches this conclusion because of the deadlines established by the U.S. Code. However, “those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined,” Stevens insists. In the final analysis, the American people will lose confidence in the Court as a result of this ruling. Justice Souter, who also dissents, maintains that the Court should not have accepted this case or ordered the recount to halt. Nevertheless, because it is before the Court, Souter claims that the Florida Supreme Court’s interpretation of state law was not in conflict with the U.S. Code or Article II. The only issue of merit is whether the state court’s interpretation abridged the Equal Protection or Due Process Clauses of the

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Fourteenth Amendment. To this Souter admits that the different standards used in counting votes in different jurisdictions “appear wholly arbitrary.” Still, he would remand the matter to the state courts, allowing them to institute uniform standards for evaluating any remaining ballots yet to be recounted. The Supreme Court therefore errs by halting the recount itself. Justice Ginsburg dissents next. She highlights the fact that the Supreme Court rarely strikes down a state supreme court’s interpretation of state law and believes the Court is not justified in overruling the Florida Supreme Court’s decision here. Indeed, the majority violates “the ordinary principle that dictates [this case’s] proper resolution: Federal courts defer to state high courts’ interpretations of their state’s own law. This principle reflects the core of federalism, on which we all agree.” Second, Ginsburg asserts that no substantial equal protection issue is presented here, despite the flaws evident in the Florida recount. Third, she maintains that the majority overemphasizes the importance of meeting the December 12 deadline imposed by the U.S. Code. “In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.” Finally, Justice Breyer dissents. He contends that the Florida Supreme Court should be allowed to resolve this case because no substantial federal question is involved. Uniform standards for counting votes in Florida would admittedly contribute to greater fairness, but the majority’s remedy of reversing the state supreme court and terminating the recount is unjustified. The Court should instead remand the case and “permit the Florida Supreme Court to require recounting all undercounted votes in Florida…, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform standard.” Breyer concludes, “By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect.”

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Trump v. Hawaii, 585 U.S. ___ (2018) Facts: Congress delegated the power to the president to control the entry of foreign nationals into the country in the Immigration and Nationality Act (INA). The INA created a vetting process in order to guarantee that aliens met numerous requirements and gave the president the power to bar entry of those who “would be detrimental to the interests of the United States.” Given this authority, President Trump issued Presidential Proclamation 9645 in September 2017, limiting travel to the United States by foreign nationals from eight countries—most of which had Muslim-majority populations—in order to determine whether they could present a terrorist threat after lower federal courts enjoined the enforcement of Trump’s two prior related executive orders. Hawaii, the Muslim Association of Hawaii, and others challenged the president’s proclamation based on INA provisions and the First Amendment’s Establishment of Religion Clause. Based on Trump’s public statements before and after the 2016 presidential election, they claimed his policy was driven by religious animus toward Muslims. The lower federal courts granted preliminary injunctions forbidding enforcement of the proclamation’s restrictions, and the Supreme Court granted certiorari. Issues: In light of the Immigration and Nationality Act, may a president suspend the entry of foreign nationals into the United States? Second, in light of the Establishment of Religion Clause of the First Amendment, does this presidential proclamation violate the Constitution? Decision: Yes, no Vote: 5–4 Majority Opinion: Chief Justice Roberts argues that through INA, Congress delegated far-reaching powers to the president to restrict the entry of foreign nationals. INA “grants the President broad discretion to suspend the entry of aliens,” Roberts writes, and the “President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.” Because the president issued this proclamation only after ordering a thorough investigation to ascertain which countries should be singled out to protect the United States from terrorism and related security concerns, Roberts concludes that “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.”

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On the second issue, the plaintiffs contend that Trump’s proclamation was specifically intended to prevent Muslims from traveling to America. However, after establishing that the plaintiffs had standing, Roberts insists that this case does not involve a violation of the Establishment of Religion Clause, which reads that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Although the plaintiffs interpret Trump’s public statements as being discriminatory, Roberts says “the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a matter within the core executive responsibility.” In other words, the president’s statements must be viewed within the context of his legal authority in this case. After surveying relevant precedents, Roberts applies rational basis review in order to decide the First Amendment issue. The rational basis test normally asks whether there is a rational relationship between the adoption of a governmental policy and a legitimate governmental interest. In Roberts’s words, “That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. … As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” Roberts then decides in favor of Trump’s proclamation: “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’” In fact, “because there is pervasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.” Moreover, the Court cannot question the “effectiveness and wisdom” of presidential decisions because they are the “Executive’s predictive judgments … which ‘are delicate, complex, and involve large elements of prophecy.’” Nor is the Court’s decision here related to Korematsu v. United States (1944), which the Court now apparently overrules. “Korematsu was gravely wrong the day it was decided,” Roberts writes, “has been overruled in the court of history, and—to be clear—has no place in law under the Constitution.” In the final analysis, then, Roberts finds there is a rational basis for Trump’s Proclamation, and the Court does not speak to the “soundness” of the president’s policy. “We simply hold today that plaintiffs have not

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demonstrated a likelihood of success on the merits of their constitutional claim.” Dissenting Opinions: Justice Sotomayor underscores Trump’s statements before and after the 2016 election that reflected “hostility and animus toward the Muslim faith” and that “Christians would be given priority for entry as refugees.” Given this background, she states her issue in the case: “whether a reasonable observer, presented with all ‘openly available data,’ the text and ‘historical context’ of the Proclamation, and the ‘specific sequence of events’ leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country.” Her answer is “yes,” not “the Government’s asserted national-security justifications.” Sotomayor also rejects much of the majority’s constitutional reasoning. She contends that Roberts’s reliance on the rational basis test is a “watered-down legal standard [used] to short circuit plaintiffs’ Establishment Clause claim.” Nevertheless, she writes, “even under rational-basis review, the Proclamation must fall. That is so because the Proclamation is ‘divorced from any factual context from which we could discern a relationship to legitimate state interests,’ and ‘its sheer breadth [is] so discontinuous with the reasons offered for it’ that the policy is ‘inexplicable by anything but animus.’” Beyond that, the majority “offers insufficient support for its view ‘that the entry suspension has a legitimate grounding in [those] national security concerns, quite apart from any religious hostility,’” and “Congress has already erected a statutory scheme [in INA] that fulfills the putative national-security interests the Government now puts forth to justify the Proclamation.” According to Sotomayor, the Establishment Clause “embodies our Nation’s deep commitment to religious plurality and tolerance.” The majority opinion, though, turns its back on that principle and “upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty.” Indeed, even though the majority overrules Korematsu, she draws parallels between this decision and that infamous precedent, for in both “the Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion.” Specifically, in both cases “the exclusion order was rooted in dangerous stereotypes, …the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect, …

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[and] there was strong evidence that impermissible hostility and animus motivated the Government policy.” So despite the fact that Korematsu is now officially null and void, “the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.” Justice Breyer adds a dissent, observing that he would prefer to remand the case to the lower court for more fact finding. Yet because the majority disagrees with that view, Breyer “would on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two executive orders preceding the Proclamation, along with the other statements also set forth in Justice Sotomayor’s opinion, a sufficient basis to set the Proclamation aside.”

Notes 1. While the plot displayed in Fig. 2.1 and the plots detailed in Fig. 2.2 both pick up on the same overall trend in the data, the individual linear regression lines are fitted using only observations from a single chief justice might better be thought of as assessing change over that man’s tenure on the Court. What is more, while it would appear as though deference to the president has been on the decline since the Rehnquist Court, it is worth remembering that the data represent all cases in which the president (or the executive branch more generally) was a party before the Court. Surely some of these cases are more important than others when it comes to the exercise of presidential power, and so we prefer to view these data, helpful though they are, as simply representing the president’s “win rate” over time. Presidential power is a narrower concept that is only partly captured by these data. 2. A writ of habeas corpus is a court writ issued in order to determine whether an individual is being legally detained. 3. Donald Regan, the Treasury Department secretary under President Reagan, was involved in this litigation and reaffirmed Carter’s executive order. 4. Trump advocated not only restricting immigration from majority-Muslim countries but building of a wall between the United States and Mexico in order to block illegal immigration from the south. In a second case, Trump v. Sierra Club (2019), the Roberts Court held, 5–4, that the Trump administration could use funds appropriated by Congress for the Pentagon to work on the wall, although the Court allowed litigation to proceed in the matter.

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5. The dissents in Korematsu are of enduring constitutional value. Justice Roberts contended that the case concerned “imprisonment in a concentration camp, based [solely] on [Korematsu’s] ancestry, … without evidence or inquiry concerning his loyalty and good disposition towards the United States.” Justice Murphy concluded that the exclusion violated equal protection under the Fifth Amendment and constituted the “legalization of racism.” Justice Jackson argued that Korematsu was “convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.” This was clearly racial discrimination.

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O’Brien, David M., and Gordon Silverstein. 2020. Constitutional Law and Politics: Struggles for Power and Governmental Accountability. 11th ed. Vol. 1. New York: Norton. Ritchie, Melinda N., and Hye Young You. 2019. Legislators as Lobbyists. Legislative Studies Quarterly 44(1): 65–95. Rudalevige, Andrew. 2012. Executive Orders and Presidential Unilateralism. Presidential Studies Quarterly 42(1): 138–160.

CHAPTER 3

Congress and Congressional Power

The relationship between American law and American politics is perhaps nowhere more apparent than on Capitol Hill, where the exercise of Congress’s legal powers is often politically charged, leading to contentious debates that pervade the states as well as the nation’s populace. A recent example is instructive. As impeachment cries rang out among congressional Democrats in 2019, subpoenas were issued to various Trump administration officials to testify before House committees. However, Republicans in the House and Senate, though admitting Donald Trump may have acted inappropriately or improperly at times, denied that an impeachment inquiry was warranted. Several administration figures were prosecuted for violating different laws—with a few going to jail—and ultimately Trump became only the third president to ever be impeached, even though the Republican-controlled Senate did not remove him from office. So here American law and politics intersected again. The House and Senate constitute the very heart of the impeachment process, and even if articles of impeachment should be legally grounded at least in part, removal from office is primarily political in nature. Thus, even though a Democrat-controlled House impeached President Trump for abuse of power and obstruction of Congress, a Republican-controlled Senate would not remove him from office absent clear and compelling evidence of treason, bribery, or other high crimes and misdemeanors. This impeachment incident may have ultimately weakened Congress because

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the Senate refused to call any witnesses during Trump’s trial and overwhelmingly voted along partisan lines not to convict him. So for some the question became: What would it theoretically take for the GOP Senate to vote to convict? If Trump was not impeachable based on the evidence produced in the House, what would be necessary for any president to be removed from office? Law and politics were inextricably intertwined in 2019, just as they were with the impeachment proceedings against Richard Nixon in 1974, Bill Clinton in 1998, and, arguably, Andrew Johnson in 1868. However, the Supreme Court was not directly involved in these impeachment cases. In stark contrast, the Court was unquestionably entangled in such historic political developments as President Roosevelt’s Court-packing plan, examined later in this chapter, and passionate Senate controversies over Supreme Court nominees like Robert Bork, Harrold Carswell, Abe Fortas, Douglas Ginsburg, Clement Haynsworth, Clarence Thomas, and, most recently, Brett Kavanaugh (see, e.g., Cameron et al. 1990; Epstein et al. 2006; Epstein and Segal 2005; Segal et al. 1992). The most controversial of these nominations was probably President Reagan’s 1987 choice of Bork, a judge on the Court of Appeals for the District of Columbia Circuit and former U.S. solicitor general and Yale law professor. The contentious battle that ensued in the Senate over his confirmation would serve to bring judicial ideology to the fore in a new way in subsequent confirmation votes (e.g., Epstein et al. 2006). Among other things, Bork’s nomination stirred so much controversy because of his conservative views on civil liberties, civil rights, and reapportionment. For instance, Bork believed that except for explicitly political speech, “there is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.” Similarly, he thought that “within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.” And on landmark reapportionment decisions like Baker v. Carr (1962) and Reynolds v. Sims (1964), Bork felt that the Warren Court was “unsatisfactory precisely because the Court attempted to apply a substantive equal protection approach. Chief Justice Warren’s opinions in this series of cases are remarkable for their inability to muster a single respectable supporting argument” (Bork 1971, 18, 20). Ultimately, the Senate voted 58–42 to defeat Bork’s candidacy, based largely on ideological grounds.

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Constitutional Basics Article I is a number etched in our memory, for it is assigned not to the executive or judicial branches but specifically to the legislature. Because it is first, the legislature’s role in American politics and law was obviously vital to the thinking of the Constitution’s framers, so Congress is entrusted with a wide array of powers, most of which are enumerated in the first seventeen clauses of Article I, Section 8.1 Congress can “lay and collect Taxes” and “provide for the common Defence and general Welfare of the United States.” Congress can “borrow Money on the credit of the United States.” Article I, Section 8, Clause 3 is critically important because, as interpreted by the Supreme Court, it gives Congress sweeping powers to regulate domestic and foreign commerce and because Congress’s authority to regulate interstate commerce has a profound influence on American federalism and the relative power of the federal government versus that of the states. Congress is also responsible for establishing uniform laws regulating naturalization and bankruptcies, coining money and regulating its value, and punishing counterfeiting. Furthermore, Article I, Section 8, Clauses 7 through 10 confirm Congress’s power to “establish Post Offices and post Roads,” “promote the Progress of Science and useful Arts,” create the lower federal courts, and define piracy. Clauses 11 through 16 are then fundamental, as they state that only Congress may declare war, raise an army and navy, and nationalize the militia, topics plainly related to the president’s war and military powers. Clause 17 adds that Congress is responsible for passing laws for the District of Columbia. Finally, Article I, Section 8, Clause 18 contains the Necessary and Proper Clause, Congress’s major implied power, giving Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [i.e., Clauses 1 through 17], and all other Powers vested in this Constitution in the Government of the United States, or in any Department or Officer thereof.” Theoretically, the Necessary and Proper Clause captures the essence of constitutional ambiguity, for it can be interpreted to mean many different things depending on the legal, political, or economic circumstances facing the nation, how

1 Congress is given additional enforcement powers in the Thirteenth, Fourteenth, and Fifteenth Amendments, each of which reads “Congress shall have power to enforce this article by appropriate legislation.”

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broadly it is interpreted by Congress, and the ideological orientation of the Court at any point in time. This chapter first explores Congress’s power to regulate interstate commerce before and since President Roosevelt’s New Deal. Next, it turns to Supreme Court decisions on three distinct constitutional issues: (1) congressional membership, (2) privileges and immunities, and (3) the conduct of investigations. It then analyzes cases pertaining to Congress’s delegation of power to the president and the executive branch bureaucracy, followed by an examination of the Court’s interpretation of Congress’s taxing and spending power. Finally, it examines the extent to which the Court has overruled congressional legislation over time.2

Commercial Regulation Before the New Deal As noted earlier, the Constitution does not define or explain the meaning of myriad words, phrases, and concepts found within its four corners. That includes the Commerce Clause, which provides that Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Nowadays, the power to regulate commerce with Indian tribes is less vital than it was during the country’s fledging years, though Congress’s ability to regulate foreign commerce remains essential. Yet Congress’s regulation of interstate commerce is not only the Article I power seemingly most often addressed by the High Court over time but also one of Congress’s most essential domestic powers. According to Nowak and Rotunda (2000, 152), the Commerce Clause’s “interpretation has played a significant role in shaping the concepts of federalism and the permissible uses of national power throughout our history.” This is indeed true of the Supreme Court’s interpretation of the interstate commerce provision since Gibbons v. Ogden (1824), for a long string of decisions not only shapes some of the basic contours of state power in the American federal system (see Chapter 4) but also essentially allows Congress to regulate the entire U.S. economy— across all fifty states. In Gibbons, Chief Justice John Marshall, writing for a unanimous Court, ruled that a state cannot grant exclusive rights 2 Unlike other chapters, no ideology scatterplots appear in this chapter because no database is currently available on congressional power decisions by the Supreme Court over time.

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to navigate in its waters; if Congress is regulating interstate commerce, the states cannot regulate it. But Marshall did not stop there; he went on to interpret the word “commerce” expansively to mean not only the selling and buying of goods but also all navigation and transportation of goods as well. The power to regulate commerce, in other words, is a complete or plenary power of Congress. Moreover, Marshall’s line of argument is intriguing. He insists it was widely believed that Congress had the authority to regulate all commerce between the United States and foreign nations; accordingly, that power cannot be delegated to individual states because of the need for national uniformity in foreign commercial regulations. If that reasoning is persuasive, he argues, then the idea that Congress completely regulates commercial interactions logically applies to all interstate commerce as well as foreign commerce. Interestingly, though, Marshall does admit in passing that “completely internal commerce of a state … may be reserved to the state itself.” Following Marshall’s death in 1835, the next prominent Commerce Clause case for the Court arose in Cooley v. Board of Wardens (1851), where Chief Justice Roger Taney announced that Congress’s authority to regulate commerce was not entirely exclusive if the commerce was primarily local in nature. Conservative rulings after Cooley recognized the states’ concurrent power to regulate commerce, but those decisions are complicated and seem contradictory, some reflecting Marshall’s nationalism but others displaying Taney’s states’ rights orientation. Cooley and related cases signaled the possibility of major changes in constitutional law and politics as the Court headed into McCloskey’s (2016) second constitutional era. Marshall’s interpretation of the Commerce Clause as a grant of broad positive power, although revived during and after the New Deal, would often take a backseat. As an illustration, United States v. E. C. Knight Company (1895) displayed a preference for states’ rights and dual federalism—that the powers delegated by the Constitution to the national government are limited by the states’ reserved powers under the Tenth Amendment. Nevertheless, other decisions from the second constitutional era, like Swift & Company v. United States (1905), echoed Marshall’s desire for a strong central government.

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The New Deal and Its Aftermath A historic confrontation between the supporters of states’ rights–dual federalism and Marshall’s Commerce Clause interpretation surfaced when a conservative Court presided over by Chief Justice Charles Evans Hughes struck down significant aspects of New Deal legislation in 1935 and 1936 (see also Chapter 4). Schechter Poultry Corporation. v. United States (1935), a leading example, took the position that Congress had illegally delegated authority to President Roosevelt to develop codes of fair competition in the poultry industry under the National Industrial Recovery Act. This decision, as well as Carter v. Carter Coal Company (1936), assumed a stance favoring dual federalism. In response, Roosevelt’s Court-packing plan presented “the most serious crisis in constitutional politics since Dred Scott ” (O’Brien and Silverstein 2020, 988). The president’s extraordinary congressional proposal was to increase the number of justices from nine to fifteen, thereby allowing him to alter the Court’s basic ideological makeup. Given Roosevelt’s threat, the Court’s conservative majority ultimately decided it could no longer stand in the way of the president and his New Deal Congress (see, e.g., Caldeira 1987; Leuchtenburg 1995; Pritchett 1948). The Hughes Court’s ruling in National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) therefore made a great deal of political sense in addition to being perhaps “the most important economic ruling of the twentieth century” (Epstein and Walker 2020, 443). In Jones & Laughlin, at the beginning of McCloskey’s third constitutional era, the justices announced that the National Labor Relations Act, which protected the rights of employees to organize and bargain collectively, was constitutional even though it regulated labor relations under Congress’s commerce power. Dodging the risk of a bitter fight with the president and Congress, five justices concluded that some conservative Commerce Clause precedents were inapplicable and that intrastate work stoppages did markedly affect interstate commerce. Accordingly, even though the Court-packing plan never passed Congress, politics once more moved to the forefront after Jones & Laughlin Steel, as the Court shifted back toward Marshall’s vision of a powerful national government. In fact, in some cases, liberal Roosevelt appointees—including Hugo Black, William O. Douglas, Robert Jackson, and Frank Murphy—arguably moved too far in favor of congressional regulation. An interesting example is Wickard v. Filburn (1942), which

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has had lasting consequences for High Court decisions. In Wickard, the Court unanimously declared that a small farmer’s production of wheat could be regulated by Congress if it had a substantial effect on interstate commerce. Filburn had planted twenty-three acres of wheat instead of the eleven acres he was allotted by Congress, even though he used the grain to feed his livestock and family rather than selling or distributing it through interstate commerce. The Court reasoned that had Filburn not grown more wheat than Congress permitted, he would have probably bought additional wheat, which most likely would have come through and thus substantially affected interstate commerce, especially if other farmers followed the same practice. The virtues of Congress’s quota were understandable during those desperate economic times, but Wickard vividly underscores the difference between the Court’s ideological orientation before and after McCloskey’s third constitutional era was inaugurated in Jones & Laughlin Steel (Goldman 1991). Deep-rooted Supreme Court precedents have resulted from this dramatic ideological change—a change that permitted Congress to regulate virtually any type of commercial activity if an appropriate social need requires it. One key question then became: What constitutes the requisite “social need”? In Heart of Atlanta Motel v. United States (1964), the Commerce Clause was the constitutional peg Congress used to pass the Civil Rights Act of 1964, which prohibits racial discrimination in places of public accommodations because prejudice by privately owned motels and restaurants restricts the flow of interstate commerce by discouraging minorities from traveling state to state. Similarly, in Katzenbach v. McClung (1964), the justices announced that Congress could prohibit a restaurant, not patronized by interstate travelers, from discriminating on grounds of race if a substantial portion of its food came through interstate commerce. The Court has also liberally interpreted the Commerce Clause to justify such things as national anti-age discrimination laws in EEOC v. Wyoming (1983) and comprehensive national coal mining regulations in Hodel v. Virginia Surface Mining Association (1981). This trend led Justice Rehnquist to complain in Hodel, “it is illuminating for purposes of reflection, if not for argument, to note that one of the greatest ‘fictions’ of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people.” During the Burger and Rehnquist Court years, the Court sporadically signaled that Congress’s commercial regulatory clout would be construed

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more narrowly (see, e.g., Graetz and Greenhouse 2016; Yarbrough 2000). In National League of Cities v. Usery (1976), the Burger Court overturned, by a bare majority vote, an act of Congress that applied federal minimum-wage standards to certain state and local government employees. National League of Cities was the first time since 1937 that the Court struck down a federal law enacted under Congress’s Commerce Clause power. Yet nine years later, the Burger Court reverted to a broader Commerce Clause interpretation and again, 5–4, reversed National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority (1985), with Justice Harry Blackmun switching sides on the basic issue.3 Chief Justice Rehnquist led the way during the late twentieth century in attempting to shrink Congress’s power to regulate commerce in two cases, as the Court remained fragmented. In United States v. Lopez (1995), Rehnquist’s 5–4 majority opinion asserted that Congress could not regulate firearms near schools under the Commerce Clause. Then, in United States v. Morrison (2000), Rehnquist once more could persuade only four colleagues to join him, concluding that Congress could not regulate gender violence under its commerce power. However, in another Rehnquist decision, Reno v. Condon (2000), the Court unanimously said that Congress could regulate the disclosure of personal information possessed by state motor vehicle departments and the resale of that information to private parties. Additionally, several years earlier, in New York v. United States (1992), Justice Sandra Day O’Connor wrote for a 6– 3 Court concluding that under the Commerce and Spending Clauses Congress could not require states to implement federal policy by directing them to take title of low-level radioactive waste within their borders and assume liability for all damages triggered by it. Currently, it appears that the Roberts Court will be less likely than its predecessors to hand down milestone Commerce Clause decisions. As discussed later, the principal exception thus far is National Federation

3 The Supreme Court has reversed itself in a fairly large number of cases, most of

which involve civil rights, civil liberties, and criminal procedure, but some of which are explored in this book. See, for example, West Coast Hotel v. Parrish (1937), United States v. Darby (1941), Baker v. Carr (1962), National League of Cities v. Usery (1976), Garcia v. San Antonio Metropolitan Transit Authority (1985), Puerto Rico v. Bransted (1987), and Seminole Tribe of Florida v. Florida (1996).

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of Independent Business v. Sebelius (2012), where the plaintiffs challenged the constitutionality of the Patient Protection and Affordable Care Act (ACA, or “Obamacare”). A sharp ideological divide again emerged among the justices in that case, with Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—all appointed by either Bill Clinton or Barack Obama—dissenting from Chief Justice Roberts’s majority opinion. Not surprisingly, Roberts was joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas—all of whom were appointed either by Ronald Reagan or by George W. Bush.

Membership in Congress The Court has announced relatively few decisions regarding congressional membership, with the two most noteworthy being Powell v. McCormack (1969) and U.S. Term Limits, Incorporated v. Thornton (1995). The first case related to charges that Congressman Adam Clayton Powell (D-NY) had inappropriately spent government funds and misused his official position. As a consequence, House members voted to exclude Powell even though he was reelected, but the Court held, 7–1, that the power of each house of Congress to judge the qualifications of its own members does not permit it to impose qualifications that exceed those expressly stated in the Constitution. U.S. Term Limits dealt with laws passed in about half the states limiting the number of terms that members of Congress could serve. In this case, a 5–4 Court ruled that a state may not amend its constitution to add new qualifications for members of the U.S. Congress beyond age, American citizenship, and state residency, as required by Article I.

Privileges and Immunities Several Supreme Court rulings have explored congressional privileges and immunity under Article I, Section 6, Clause 1, which contains two important provisions. The first requires that members of the Senate and the House “shall in all Cases, except Treason, Felony and Breach of Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” This passage is followed by the Speech or Debate Clause, which states that Senators and Representatives “shall not be questioned in any other place” for any “Speech or Debate in either House.” Of these provisions, the

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one most often faced by the Court is the Speech or Debate Clause, and we examine three of those cases in this chapter—Gravel v. United States (1972), Eastland v. United States Servicemen’s Fund (1975), and Hutchinson v. Proxmire (1979). Gravel involved Senator Mike Gravel (D-AK) who read summaries of the Pentagon Papers into the public record at a subcommittee meeting after the Court announced New York Times v. United States (1971) (see Chapter 2). Gravel also entered forty-seven volumes of the Pentagon Papers into the public record and arranged for their commercial publication. A grand jury investigated Gravel’s release and subpoenaed his aide, Leonard Rodberg, to testify. Here, a 5–4 Court handed down two Speech or Debate Clause principles: a member of Congress may not arrange to have a top-secret government report commercially republished because such a republication is not an integral part of the legislative process, but a grand jury may require the testimony of a congressional aide in a criminal investigation. Eastland appeared three years later when the Senate Subcommittee on Internal Security, chaired by James Eastland (D-MS), subpoenaed the bank records of the U.S. Serviceman’s Fund, an organization being investigated for providing dissent forums for American soldiers during the Vietnam War. There, an 8–1 Court established that a congressman is immune from a lawsuit by an organization after the congressional member issues a subpoena requiring the organization to provide information for a legislative investigation. Third, Hutchinson v. Proxmire dealt with Senator William Proxmire’s (D-WI) practice of exposing wasteful spending by federal agencies through his Golden Fleece of the Month award. A researcher who lost his federal funding as a result of the “award” challenged Proxmire. The Court ruled, 7–2, that the Speech or Debate Clause did not make congressional members immune from libel suits based on statements made in press releases and newsletters, which occurred in this case, because they are not an integral part of the legislative process.

Investigations by Congress Congressional investigations have often been politically divisive. But according to Epstein and Walker (2020, 154), although controversy has swirled around the nature of the informing process and how far it may go, “What has never been controversial … is that Congress has the ability

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to conduct investigations. After all, to legislate effectively Congress must be able to gather information to determine whether new laws are necessary and, if so, how best to construct them.” In this chapter, we probe two congressional investigation decisions by the Warren Court—Watkins v. United States (1957) and Barenblatt v. United States (1959)—both of which grew out of the House Un-American Activities (HUAC) hearings of the 1940s and 1950s and McCarthyism, a right-wing political movement named after Senator Joseph McCarthy (R-WI) (see Fried 1997). Watkins concerned a labor organizer who was subpoenaed to testify before HUAC after two witnesses identified him as a Communist Party member. Watkins answered all HUAC questions except those relating to persons who were thought to be former Communist Party members, arguing that those questions were beyond the proper scope of the Committee’s investigation. In a 6–1 decision the Court agreed, saying a witness subpoenaed to testify before a congressional committee may refuse to answer questions not indisputably pertinent to a legitimate legislative purpose. Writing for the majority, Chief Justice Warren noted that “there is no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress.” He continued by writing, “No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” By contrast, Barenblatt dealt with a professor subpoenaed to testify in an investigation of alleged communist infiltration into American education. Barenblatt refused to answer HUAC’s questions into his political and religious views as well as his private affairs and associations. He also refused to respond to five questions related to whether he was or had ever been a Communist Party member because, he argued, HUAC’s legislative authorization was overly vague, he was not sufficiently informed of the relevance of the questions, and the questions violated his First Amendment rights. Disposing of the case 6–3, the Court went no further than concluding that a congressional investigative committee may inquire into a person’s involvement with the Communist Party.

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Congressional Delegation of Authority Although Congress is entrusted with all legislative authority under Article I, through the years it has ceded some of its power to the president and the executive branch bureaucracy, including independent regulatory agencies (see, e.g., Fisher 2013, 2017; Whittington 2009). Why? Perhaps the most general answer is that Congress may have little choice because politics on Capitol Hill can make it difficult, if not impossible, for both houses to agree on the specifics of proposed legislation; politics simply gets in the way of effective legislative functioning. Pressures to “do something” frequently mean that the Congress is often all-too-happy to offload many of its traditional responsibilities on the president and the executive branch. What is more, delegation often works well with members’ own goals and the reelection imperative, as decisions that have the potential to generate political backlash, such as charges that they have engaged in wasteful spending through the appropriations process in the form of earmarks or pork-barrel legislation, can be handed off to the bureaucracy (Neiheisel and Brady 2017). A second explanation was suggested earlier: various emergencies since the Great Depression have required rapid political responses that the executive branch is far better equipped to handle, even if it means forfeiting some aspect of power that the Constitution assigns to Congress. And because Congress cannot anticipate countless future events, delegating authority to the president and the bureaucracy ahead of time facilitates a swift rejoinder when unexpected problems arise. In particular, Congress lacks the detailed expertise found in the bureaucracy, so it regularly delegates certain responsibilities to federal agencies with greater knowledge and experience by passing statutes that leave myriad details to be filled through administrative regulations with the understanding that those regulations and their implementation will be consistent with Congress’s intent. A second question is: Why does the Supreme Court uphold the constitutionality of such delegations of constitutional power? One reason may be that the justices are cautious about antagonizing a president. After all, presidents possess powers that can be used to retaliate against the courts, including proposing the judiciary’s budget to Congress. Second, executive branch officials “could not resolve problems while operating in a legislative straightjacket. They needed an opportunity to experiment,” Fisher (2014, 99) notes. Hence, “Courts accepted broadness and generality in statutes as unavoidable qualities of legislation.” There is also a

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more technical reason: lawsuits may be filed in federal court challenging Congress’s actions only after Congress in fact delegates its power. The Court has no self-starter, it is said, and theoretically there would never be a High Court delegation decision had Congress not allotted its authority to the executive branch in the first place. Fisher (2014, 87) provides another explanation: “Delegations are supposed to be accompanied by legislative standards that protect the essential lawmaking functions of Congress, but standardless delegations are common,” he writes. “They survive court scrutiny because of procedural safeguards, guidelines placed in the legislative history of a statute, and various customs and traditions that help confine executive discretion.” In addition, it stands to reason that the American public has given its blessing to such a delegation of authority, as the Court is typically responsive to public opinion, particularly in cases that are not overly salient (Casillas et al. 2011; see also Barnum 1985; Mishler and Sheehan 1993). Third, given Congress’s delegation trends and the Court’s tendency to uphold them, do these developments present any risks to America’s system of separation of powers and checks and balances? Some justices have suggested that they do. Justice Byron White’s dissent in Chadha insists that the Court should not have sweepingly declared the legislative veto unconstitutional, which, he says, “has become a central means by which Congress secures the accountability of executive and independent agencies.” Striking the legislative veto down leaves Congress with only two choices, according to White: “either leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its lawmaking function to the executive branch and independent agencies.” Yet with respect to Chadha’s ruling, Fisher (2014, 175) argues that many congressional options are still available: “We should not be too surprised or disconcerted if, after the Court has closed the door to the legislative veto, we hear a number of windows being raised and perhaps new doors being constructed, making the executive-legislative structure as accommodating of shared power as it has been in the past.” To Fisher’s point, there is evidence from the states that legislatures do, in fact, attempt to assert control over the bureaucracy under certain circumstances (e.g., conditions of divided government) by invoking statutory controls in the form of detailed legislation (Huber et al. 2001).

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Taxing and Spending Scholars have long recognized the importance of governments’ power to tax and spend (see Witte 1985). To Americans, it may seem that they pay some sort of tax to some level of government on virtually everything they buy. What is more, at each level of government, questions about taxation and what those tax monies should be spent for generate heated political battles. As Epstein and Walker (2020, 515) point out, presidential elections often spotlight questions on taxing and spending, including: “How should we deal with the growing national debt? What constitutes a fair income tax rate? What should be done to reform government spending on entitlement programs such as Social Security, Medicare, and Medicaid? Do we spend too much (or too little) on national defense?” Naturally, the Supreme Court becomes directly entangled in some of these questions. After broadly interpreting the Taxing and Spending Clause in Hylton v. United States (1796), the Court tackled the case of Pollock v. Farmers’ Loan and Trust Company (1895). By a 5–4 vote, Pollock struck down a federal income tax because it was not apportioned across the states based on representation.4 This chapter focuses on five additional rulings on the Taxing and Spending Clause since Pollock: United States v. Butler (1936), Steward Machine Company v. Davis (1937), Fullilove v. Klutznick (1980), South Dakota v. Dole (1987), and National Federation of Independent Business v. Sebelius (2012). Butler involved the New Deal’s Agricultural Adjustment Act, which established a federal program to reduce the supply of farm goods produced by renting a percentage of the nation’s farmland and leaving that acreage unplanted. To pay for the cost of renting farmland, the law imposed a tax on the processing of agricultural products. When the constitutionality of the tax was challenged, the Supreme Court determined, 6–3, that Congress could pass a law imposing a tax on the processing of agricultural products to, in turn, pay farmers not to grow certain crops. Then, the following year, in Steward Machine Company, the Court upheld by a bare majority Roosevelt’s Social Security Act program, which provided unprecedented unemployment compensation to assist the victims of the Great Depression, thereby recognizing Congress’s

4 Although a Supreme Court decision hardly ever leads to an amendment to the Constitution, Pollock was nullified by the Sixteenth Amendment, which gives Congress the power to lay and collect income taxes.

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far-reaching power to tax for the general welfare. This decision signaled that Roosevelt had won his battle with the High Court, as Chief Justice Charles Evans Hughes and Justice Owen Roberts no longer consistently voted with the Court’s most conservative members. Over forty years later, Fullilove v. Klutznick again concerned Congress’s power to tax and spend for the general welfare. Because of past discrimination, Congress required that minority-owned businesses be guaranteed at least 10 percent of a $4 billion appropriation for local public works projects in order to sell their services or supplies. A white contractor claimed that he suffered economically from this statutory provision, but the Supreme Court rejected his argument; instead, it held, 6–3, that Congress may require that fund recipients under a public works program set aside funds for minority-owned businesses under these circumstances. Several years later, South Dakota v. Dole dealt with a law requiring the Department of Transportation secretary to refuse to give certain highway funds to states that permitted persons under twenty-one years old to purchase or publicly possess alcohol. Congress’s intent was to encourage states to raise their drinking age to twenty-one in order to promote the general welfare, and the Court again agreed, this time 7–2, with Congress’s action—motivating states to raise their drinking ages to twenty-one was permissible because it furthered the general welfare. Finally, National Federation of Independent Business v. Sebelius challenged the constitutionality of the Patient Protection and Affordable Care Act (ACA) of 2010, commonly referred to as Obamacare, the signature legislation of President Obama’s administration, which attempted to provide health insurance access for millions of uninsured Americans. Among other things, the ACA required that by 2014 nonexempt individuals who failed to purchase and maintain a minimum level of health insurance must pay a tax penalty. Chief Justice Roberts, writing for a 5–4 majority, held that Congress could not require individuals to pay a tax to purchase health insurance under the Commerce Clause, but it could do so under the Taxing and Spending Clause for that purpose. On the one hand, Roberts argued, Congress may regulate existing commercial activity, but the Commerce Clause does not allow it to compel individuals to participate in commerce. On the other hand, the individual mandate penalty is a tax under the Taxing and Spending Clause, and “because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

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The Court v. Congress Students of public law have examined the High Court’s use of judicial review from various perspectives (see, e.g., Caldeira and McCrone 1982; Kramer 2004; Wolfe 1986). Relying on the Supreme Court Database (2019), Fig. 3.1 details the extent to which the Court has exercised judicial review by declaring congressional legislation unconstitutional between 1791 and 2018, and it plots the number of times the Court declared an act of Congress to be unconstitutional by term. Superimposed over the scatterplot displayed in Fig. 3.1 are two LOWESS curves. The solid line represents a LOWESS curve that employs a narrow smoothing span (f = 0.1), while the dashed line depicts a LOWESS curve that adopts a wider smoothing span (f = 2/3). The smoother LOWESS curve (again, the dashed line) reveals the gradual growth in the Supreme Court’s use of its ultimate power relative to Congress over time. Going from left to right in the figure, we see that the Court initially declared its power of judicial review in Marbury v. Madison but did not use it again against congressional legislation until Dred Scott v. Sandford (1857), which helped to spark the Civil War. After the end of the Civil

Fig. 3.1 Number of acts of Congress declared unconstitutional, 1791–2018

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War and the beginning of the second constitutional era, the Court’s willingness to overturn acts of Congress steadily rose well into the third constitutional era and increases to the present day. The solid line—a LOWESS curve that uses a fairly narrow smoothing span—picks up some interesting patterns in the data. After substantially increasing in the 1930s, the Court’s use of judicial review dropped sharply during the World War II period, rose during the Warren, Burger, and Rehnquist Courts, ultimately reached its zenith around the start of the new millennium, and dropped in the early Roberts Court, only to rise again in recent years. If, then, judicial activism can be defined as overturning the decisions of Congress, Fig. 3.1 generally shows that Supreme Court activism has clearly increased since the early twentieth century, regardless of whether the Court majority was either liberal or conservative.

Judicial Impact Landmark cases dealing with Congress’s multiple powers have been front and center on the Court’s agenda over time, beginning with Gibbons v. Ogden and extending through National Federation of Independent Business v. Sebelius . We now suggest how these decisions resonated throughout the legal, political, and economic systems by probing some of them listed in Table 3.1. Gibbons had the short-run impact of “end[ing] devastating commercial warfare among the states” but a far greater longrun effect of “Congress’ powers [being] strengthened vis-a-vis the states” (Goldman 1991, 272). As McCloskey (2016, 28) notes, Marshall’s longterm goals were “enhancement of judicial power in general [e.g., Marbury v. Madison] and diminution of state autonomy in particular [e.g., Gibbons v. Ogden].” Put simply, Marshall pulled off a fast one in both cases, as more attention was paid to their short-term than long-term impacts. By contrast, Cooley v. Board of Wardens had little impact on the status quo but did have the long-run effect of “not [allowing] Congress full range of its commerce powers until after [Jones & Laughlin Steel ]” (Goldman 1991, 272). So, broadly speaking, the Court went from 1852 until 1905 without handing down another leading Commerce Clause decision, with one exception, Swift & Company v. United States , where the “stream of commerce doctrine provided precedent for upholding [federal] regulation” (Goldman 1991, 272). Then, the hammer dropped—that is, the conservative decision in Hammer v. Dagenhart, which held that Congress could not prohibit from

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Table 3.1 Selected decisions on congress and congressional power Gibbons v. Ogden (1824). A state may not regulate commerce with the states or foreign nations if Congress is regulating it Cooley v. Board of Wardens (1852). Congress may permit the states to regulate aspects of commerce that are primarily local in nature Pollock v. Farmers’ Loan and Trust Company (1895). A federal income tax must be apportioned across the states based on representation United States v. E. C. Knight Company (1895). States may regulate manufacturing that does not directly affect interstate commerce Swift & Company v. United States (1905). Congress may punish conspiracies in restraint of trade in stockyards through the Sherman Antitrust Act Hammer v. Dagenhart (1918). Congress may not prohibit from interstate commerce goods manufactured by child labor Schechter Poultry Corporation. v. United States (1935). Congress may not delegate to the president the essential legislative function of establishing codes of fair competition for American industry, including virtually unfettered discretion to approve the codes developed by industries and to prescribe and impose them as he sees fit in instances in which he rejects the codes an industry develops or where the industry fails to develop codes for itself United States v. Butler (1936). Congress may not pass a law imposing a tax on the processing of agricultural products to, in turn, pay farmers not to grow certain crops Carter v. Carter Coal Company (1936). Congress may not regulate labor conditions involved in the local production of coal National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937). Congress may regulate labor-management relations if a manufacturer’s activities have a close and substantial relationship to interstate commerce Steward Machine Company v. Davis (1937). Congress may pass an unemployment compensation law in order to promote the general welfare United States v. Darby Lumber Company (1941). Congress may prohibit unfair competition that injures interstate commerce by prescribing minimum wages and maximum hours for employees of businesses engaged in interstate commerce or the production of goods for interstate commerce Wickard v. Filburn (1942). Congress may restrict the individual home production of wheat that has a substantial effect on interstate commerce Watkins v. United States (1957). A witness subpoenaed to testify before a congressional investigative committee may refuse to answer questions not indisputably pertinent to a legitimate legislative purpose Barenblatt v. United States (1959). A congressional investigative committee may inquire into a person’s involvement with the Communist Party Heart of Atlanta Motel v. United States (1964). Congress may remove the disruptive effects on interstate commerce caused by racial discrimination

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Table 3.1 (continued) Katzenbach v. McClung (1964). Congress may prohibit a restaurant, not patronized by interstate travelers, from discriminating on grounds of race if a substantial portion of its food is moved through interstate commerce Powell v. McCormack (1969). Each house of Congress does not have the power to impose qualifications on their members that exceed those expressly stated in the Constitution Gravel v. United States (1972). A grand jury may require the testimony of a congressional aide in a criminal proceeding and a member of Congress may not arrange to have a secret government report commercially republished because it is not an integral part of the legislative process. Eastland v. U.S. Servicemen’s Fund (1975). A member of Congress is immune from a lawsuit by an organization, alleging the violation of constitutional rights, after the member issues a subpoena requiring the organization to provide information for a legislative investigation National League of Cities v. Usery (1976). Congress may not impose minimum-wage and maximum-hour requirements on states as employers in functions essential to a state’s separate and independent existence Hutchinson v. Proxmire (1979). A member of Congress is not immune from a libel suit based on statements made in press releases and newsletters Fullilove v. Klutznick (1980). Congress may require that fund recipients under a federal public works program set aside at least 10 percent of the funds received to buy services or supplies from minority-owned businesses in order to promote the general welfare Garcia v. San Antonio Metropolitan Transit Authority (1985). Congress may impose minimum-wage and maximum-hour requirements on a city-owned transportation system South Dakota v. Dole (1987). Congress may pass a law that withholds a percentage of federal highway funds to a state to encourage that state to raise its drinking age to twenty-one if the law promotes the general welfare New York v. United States (1992). Congress may not require states to implement federal policy by directing them to take title of low-level radioactive waste within their borders and assume liability for all damages caused by that waste because the state had not disposed of the waste promptly Oregon Waste Systems, Incorporated v. Department of Environmental Quality of Oregon (1994). Oregon’s surcharge for disposing of out-of-state waste violates the Commerce Clause United States v. Lopez (1995). Congress may not regulate firearms near schools under the Commerce Clause U.S. Term Limits, Incorporated v. Thornton (1995). A state may not amend its constitution to add new qualifications for members of Congress beyond age, American citizenship, and state residency City of Boerne v. Flores (1997). Congress may not pass a law intended to reduce substantial governmental burdens on religion and thereby enforce constitutional rights broader than those previously enunciated by the Supreme Court

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Table 3.1 (continued) Reno v. Condon (2000). Congress may regulate personal information and its resale, in the possession of motor vehicle departments, under the Commerce Clause United States v. Morrison (2000). Congress may not regulate gender violence under the Commerce Clause Gonzales v. Raich (2005). Congress may outlaw the growth and use of homegrown cannabis even though a state permits its use for medical purposes Department of Revenue of Kentucky v. Davis (2008). A state law that gives tax breaks to residents who invest in municipal bonds does not unconstitutionally discriminate against interstate commerce National Federation of Independent Business v. Sebelius (2012). Congress may not require individuals to purchase health insurance, but it can require individuals to pay a tax in order to purchase health insurance South Dakota v. Wayfair, Incorporated (2018). A state does not unconstitutionally burden interstate commerce by taxing purchases from out-of-state suppliers Tennessee Wine and Spirits Retailers Association v. Thomas (2019). A state violates the Commerce Clause by requiring a two-year residency for an applicant to receive a retail liquor store license

interstate commerce goods manufactured by child labor. As Goldman (1991, 273) remarks, Hammer temporarily increased the use of child labor, but in the long term it meant that “most states eventually adopted child labor standards similar to those” at the federal level. Nevertheless, the Court did not stop there; instead, it handed down comparable decisions in Hammer’s wake. Perhaps the best known is Schechter Poultry, where both the short- and long-run impacts are noteworthy. On the one hand, Schechter wounded the National Industrial Recovery Act, was “seen as anti-New Deal and contributed to [the] constitutional crisis of 1936– 1937.” On the other hand, Schechter meant that “negative commerce clause doctrines had no long-run impact as [the] Court in effect reversed itself in 1937 and beyond” (272). That linchpin 1937 reversal came in Jones & Laughlin Steel, which not only ruled that Congress may regulate labor-management relations if a manufacturer’s activities have a close and substantial relationship to interstate commerce but also stood for the crucial notion that Congress controls the entire national economy. Thus, Jones & Laughlin Steel opened the constitutional door for a long string of liberal decisions that continued essentially until the Burger Court’s ruling in National League of Cities and in the Rehnquist Court’s decision in Lopez.

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Finally, the impact of three key Commerce Clause precedents announced between the 1940s and the 1960s should be highlighted (Goldman 1991, 273). Wickard was “one of a series of decisions consolidating federal government control over the American economy.” Heart of Atlanta Motel was a “landmark decision upholding congressional power to deal with social problems” via the Commerce Clause. And McClung seemingly went even further by ruling that Congress may prohibit a restaurant not patronized by interstate travelers from discriminating if a substantial portion of its food is moved through interstate commerce. The legal, political, and economic effects of Wickard, Heart of Atlanta Motel, and McClung had a definite liberal flavor, with the last two directly contributing to the Court’s third constitutional era aimed at ensuring individual civil rights and liberties for all.

Judicial Power in the Shadow of Congress The founding generation anticipated that the judiciary would go on to constitute the weakest branch of the national government, even as they also appeared to recognize that the power of judicial review—the power to serve as the ultimate arbiter of the Constitution—also lay with the High Court. History is littered with numerous examples, however, of the Court deferring to Congress or otherwise being forced to stand on the sidelines as the political battles of the day are played out in front of them. Nowhere in recent times has this been more apparent than when Chief Justice John Roberts, in his constitutionally prescribed role as “presider,” at times appeared to be little more than a mere onlooker during the Senate impeachment trial of President Trump as the political posturing and grandstanding from both sides of the partisan aisle continued apace throughout the episode. Of course, to do otherwise would have gone against long-standing precedent, but the event nevertheless likely served to cement the Court’s image as powerless in the face of a polarized political system. Another recent incident involving the Senate is instructive as well, as Majority Leader Mitch McConnell’s outright refusal to hold confirmation hearings on then-President Barack Obama’s nominee to the Supreme Court—Judge Merrick Garland—indicates that, going forward, future presidents may need to be faced with a Senate controlled by his or her copartisans in order to have a chance at influencing the composition of the Court. This development therefore suggests that the power to confirm

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may now ultimately be superior to the power to nominate, thereby placing Congress at an advantage in interbranch—and, increasingly, partisan— warfare over who sits on the nation’s court of last resort. That the number of justices who sit on the High Court is not enshrined in the Constitution leaves it especially vulnerable when Congress is willing to violate norms in order to secure outcomes favorable to the (partisan) majority. This is as true at the time of this writing as it was in 1937, when President Franklin Roosevelt enlisted a Congress controlled by fellow Democrats in a scheme to remake the Court as a means to ensure that key parts of the New Deal would survive legal challenge. Although the Court would ultimately remain at nine members, preserving the composition of the Court would require acquiescing to the policy positions supported by Congress and the president (Caldeira 1987). The Court would similarly express a willingness to defer to Congress in an effort to maintain institutional legitimacy with its ruling on Obamacare (Jacobi 2014). It is for these reasons that the Court is often referred to as a strategic actor, only implementing its preferred policy positions whenever it can securely do so without drawing efforts at exploiting its relative weakness from the other branches. For Congress has even expressed a willingness to “overrule” the Court through ordinary legislation (e.g., Blackstone 2013), even as threats to amend the Constitution itself often ring hollow. All this is to suggest that the legislative branch holds a great deal of sway over the Court, even if indirectly, and that the Court’s position as the body with the ultimate say over the interpretation and application of the Constitution may, in fact, be illusory.

Commercial Regulation Before the New Deal Gibbbons v. Ogden, 9 Wheaton 1 (1824) Facts: In 1789, the New York state legislature granted Robert Livingston, a wealthy New Yorker, a monopoly to operate steamships on all waters of the state, including New York Harbor and the Hudson River. New York legislators did not view the monopoly grant as particularly important because no one had yet developed a steamship that could operate reliably and profitably. Livingston joined forces with Robert Fulton, however, and together they produced a commercially viable steamship that was very profitable for the partners. When Livingston and Fulton died, Aaron Ogden and Thomas Gibbons entered a partnership.

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Ogden had already purchased the Livingston-Fulton monopoly, while Gibbons had a federal permit, issued under the 1793 Coastal Licensing Act, to operate steamships along the coast, so Gibbons had a federal license and Ogden had a state license to operate steamboats in New York waters. With these two grants, the two partners could carry passengers between New York and New Jersey. Then, Ogden broke off his partnership with Gibbons, and they became fierce competitors. Gibbons entered New York waters in violation of the monopoly, picking up business. Ogden, in response, convinced a New York court to issue an injunction enjoining Gibbons from entering New York waters. Gibbons defied the court order, his ship was seized, and he appealed to the Supreme Court. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may a state regulate commerce, including navigation, with foreign nations and among the states if Congress is regulating the same commerce? Decision: No Vote: Unanimous Majority Opinion: Chief Justice Marshall insists that the powers of Congress need not be strictly construed and then presents his broad interpretation of the Commerce Clause. Commerce is not simply the buying and selling of goods; rather, commerce is navigation as well, the transporting of commercial goods. Indeed, the word “commerce” in Article I, Section 8, Clause 3 includes the entirety of commercial interactions— what Marshall calls “commercial intercourse.” “Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying out that intercourse.” Marshall next asks, “To what commerce does this power [of Congress] extend? It has, we believe, been universally admitted, that these words comprehend every species of commercial intercourse between the United States and foreign nations.” As a result, Congress’s power to regulate foreign commerce is complete, and that commerce is a unit; that is, commerce in the Constitution means all instruments of commerce, including transportation. Marshall next contends that if Congress’s power to regulate foreign commerce includes all forms of commerce, then the word “commerce” “must carry the same meaning throughout the sentence, and remain as a unit, unless there be some plain intelligible cause which alters it.” Simply put, if Congress controls all foreign commerce, it must control all interstate commerce as well.

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At this point, Marshall seems to admit the possibility that there might be commerce completely internal to a state that “does not extend to or affect other states.” Still, he writes, “We are now arrived at the inquiry— what is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution.” Accordingly, although Ogden’s attorney asserted that the states are sovereign and retain the power under the Tenth Amendment to regulate commerce that is completely within the state’s boundaries, Marshall rejects this argument, saying instead that Congress’s power to regulate interstate commerce is different from the second-most important power of Congress—the power to tax. Taxation is a concurrent power, so both the national government and the state governments may tax, but that is not true of the power to regulate interstate commerce. Marshall declares, “The sole question is, can a state regulate commerce with foreign nations and among the states, while Congress is regulating it?” His answer, of course, is “no.” If a state attempts to regulate interstate commerce and if that regulation conflicts with federal law, the state regulations must fall because of the Supremacy Clause; however, the states do have the power to pass inspection laws to ensure the quality of products imported into or exported from a state. Cooley v. Board of Wardens, 12 Howard 299 (1852) Facts: In 1789, Congress passed a law providing that state and local authorities would continue to control their ports and harbors until Congress acted otherwise. Pennsylvania passed a port regulation law in 1803 requiring all vessels to hire a local pilot to guide ships in and out of the Port of Philadelphia. Aaron Cooley owned a vessel that sailed into Philadelphia without hiring a local pilot and was fined. Cooley insisted the Pennsylvania law was unconstitutional because his boat was involved in interstate commerce and only Congress could regulate a port in interstate commerce. By implication Cooley challenged the 1789 act of Congress as well. He lost his case in the Pennsylvania courts and appealed to the U.S. Supreme Court. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may the states regulate aspects of commerce that are primarily local in nature if Congress has passed no laws regulating such commerce?

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Decision: Yes Vote: 7–2 Majority Opinion: Gibbons v. Ogden (1824) declared that the power to regulate commerce includes the regulation of people who navigate ships, and Justice Curtis quotes Congress’s law of 1789 in this context: “That all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the states … until further legislative provision shall be made by Congress.” For that reason, the existing law of the Port of Philadelphia was a legal exercise of state and local authority. As Curtis writes, “The grant of commercial power to Congress does not contain any terms which expressly exclude the States from exercising an authority over its subject matter. If they are excluded, it must be because of the nature of the power, thus granted to Congress, requires that a similar authority should not exist in the states.” But this was not the case: “The mere grant of such power to Congress did not imply a prohibition on the States to exercise the same power,” so the states may pass legislation in the absence of federal legislation. Curtis notes that the regulation of commerce deals with many subjects that require national uniform rules, but because of the broad diversity of American commerce, sometimes local necessities require diversity in regulations. Exclusive congressional power would normally be needed where the nature of the commerce requires exclusive congressional action, yet that is not true in the case of the regulation of pilots under the 1789 act: pilotage is local in character, not national. Curtis summarizes his holding: “It is the opinion of the majority of the Court that the mere grant to Congress of the power to regulate commerce, did not deprive the states of power to regulate pilots, and that although Congress has legislated on this subject, its legislation manifests an intention … not to regulate this subject, but to leave its regulation to the several states.” Finally, Curtis emphasizes what the Court was not ruling, thereby highlighting the narrowness of the Cooley decision. Dissenting Opinions: Justice McLean agrees with Chief Justice Marshall in Gibbons to the effect that the 1789 act of Congress would have been unnecessary unless its purpose was to establish an exception to the general rule that Congress controls all aspects of interstate commerce, including pilotage in harbors. Justice Daniel dissents from the majority’s

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reasoning as well, claiming that the power to pass pilot laws is “an original and inherent power” of state governments and that Pennsylvania was appropriately regulating pilotage in the Philadelphia harbor. Swift & Company v. United States, 196 U.S. 375 (1905) Facts: Three companies, including Swift & Company, dominated the meatpacking industry in the early 1900s. Western ranchers sent their livestock to the stockyards of Chicago, where animals were sold, butchered, and packed for shipment to consumers in the East. When the meatpacking trust bought control of the Chicago stockyards and agreed not to bid against each other in the purchase or butchering of livestock, the trust was essentially in a position to fix the price of meat and demand very low rates for the transportation of meat coming into and leaving Chicago. The federal government filed suit, believing these actions constituted a restraint of trade in violation of the Sherman Antitrust Act of 1890. The meatpacking companies argued that their control over the stockyards was an intrastate matter to be regulated by the state of Illinois. Swift & Company lost in the lower courts, and appeal was taken to the Supreme Court. Issue: In light of Congress’s power to regulate commerce among the states under Article I, Section 8, Clause 3, may Congress punish conspiracies in restraint of trade in stockyards through the Sherman Antitrust Act? Decision: Yes Vote: Unanimous Majority Opinion: Justice Holmes reasons that the livestock coming through Chicago on its way to the East is in the current or stream of commerce that Congress may regulate through the Sherman Act. Basically, Holmes avoids the distinction made in United States v. E. C. Knight Company (1895) between manufacturing and interstate commerce by inventing this stream-of-commerce theory. He observes that the Chicago stockyards constitute the passageway through which commerce passed between the East and West, and thus, it was part of interstate commerce that Congress could regulate. Moreover, Holmes makes a distinction between a manufacturing monopoly such as the sugar trust in E. C. Knight, which had only an indirect effect on commerce, and a sales monopoly like the meat trust, which had a direct effect on commerce.

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Holmes insists that the meat trust was located in one state but had direct effects on the sale of meat in others. The animals to be slaughtered originated in the western states, while most consumers lived east of Chicago. “When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another,” he writes, “and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyards, and when this is a typical, constantly recurring course, the current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce.” The Sherman Act therefore applied to the stockyards, with the commercial sale of beef beginning when the cattle left the range and not ending until the final sale. The fact that the cattle stopped at the Chicago stockyards, midpoint in this commercial enterprise, did not mean they were removed from interstate commerce. Clearly, then, Holmes’s theory of the stream of commerce allows federal regulation of interstate commerce from the point of origin to the point of termination. Interruptions in the course of that interstate commerce do not suspend the power of Congress to regulate it. United States v. E. C. Knight Company, 156 U.S. 1 (1895) Facts: The American Sugar Refining Company controlled almost all sugar refining in the 1890s, and it bought the stock of four companies, including the E. C. Knight Company, to further increase its grip on sugar refining in the United States. The federal government sued under the Sherman Antitrust Act of 1890, which outlawed contracts, combinations, or conspiracies to create trusts or monopolies in restraint of free trade. The government failed to halt the sale in the lower courts, which said that the companies were engaged in manufacturing, as this was not covered by the Sherman Act. Appeal was taken to the Supreme Court. Issue: In light of the police power of the Tenth Amendment and the Commerce Clause of Article I, Section 8, Clause 3, may the states regulate the manufacturing of a product if that manufacturing does not directly affect interstate commerce? Decision: Yes Vote: 8–1 Majority Opinion: Chief Justice Fuller maintains that the states have always possessed the police power, under the Tenth Amendment, “to protect the lives, health, and property of its citizens, and to preserve

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good order and public morals.” The police power originally belonged to the states, is “essentially exclusive,” and is the legal basis for combating restraints of trade. By contrast, Congress is given exclusive power to regulate interstate commerce. This means “that which belongs to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the state.” The manufacture of a product is a local activity that must be distinguished from the distribution of that product, and although Congress may regulate its distribution, the states regulate its production under the police power. In Fuller’s words, “The fact that an article is manufactured for export to another state does not of itself make it an article of interstate commerce, and the intent of the manufacturer does not determine the time when the article or product passes from the control of the state and belongs to commerce.” So the Sherman Act applies to “combinations, contracts, and conspiracies to monopolize trade and commerce among the several states or with foreign nations; but the contracts and acts of the defendants related exclusively to the acquisition of the Philadelphia refineries and the business of sugar refining in Pennsylvania, and bore no direct relation to commerce between the states or with foreign nations.” In this case, the sale of the stock of the E. C. Knight Company to the American Sugar Refining Company only indirectly affected interstate commerce and, thus, must be regulated by Pennsylvania, not Congress. Dissenting Opinion: Justice Harlan contends that the powers of the states must be maintained in the federal system, yet so too must the powers of the national government to regulate interstate commerce. He writes, “Whatever improperly obstructs the free course of interstate intercourse and trade, as involved in the buying and selling of articles to be carried from one state to another, may be reached by Congress under its authority to regulate commerce among the states.” Relying on Gibbons v. Ogden (1824), Harlan urges that the Constitution not be narrowly construed in a way that makes it inadequate to deal with the evils of monopolies and restraints on trade. Hammer v. Dagenhart, 247 U.S. 251 (1918) Facts: Congress passed the Federal Child Labor Act in 1916. It prohibited the interstate shipment of products from factories, mines, and quarries that employed children under the age of fourteen. Beyond that, children between the ages of fourteen and sixteen could work no more than

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eight hours a day. In this case, Roland Dagenhart and his two minor sons worked in a North Carolina cotton mill. Under state law, both sons were permitted to work up to eleven hours per day. However, under the Federal Child Labor Act, the older boy could work only up to eight hours a day, and the younger boy could not work at all. The federal law was declared unconstitutional in the federal district court, and the Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress prohibit from interstate commerce goods manufactured by child labor? Decision: No Vote: 5–4 Majority Opinion: Justice Day acknowledges that Congress may prohibit some goods from interstate commerce under certain circumstances. The Court had previously said that Congress could prohibit the interstate transportation of lottery tickets, impure foods and drugs, and women for the purpose of prostitution. Day underscores that each of these precedents dealt with harmful goods transported from state to state, but in this case harmful goods are not involved; the cotton processed in this North Carolina mill was harmless. As a result, according to Day, “When offered for shipment, and before transportation begins, the labor of their production is over, and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power.” State and local governments, not Congress, are to regulate production. Otherwise, the states would be totally excluded from the regulation of commerce, contrary to the intent of the framers of the Constitution. The petitioners also insist that cheap child labor had led to unfair competition, but Day concludes that Congress has no power to require the states to exercise their Tenth Amendment police power to prevent unfair competition. As Day writes, “The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the states by the Tenth Amendment.” In closing, Day expresses a fear that if Congress continues to make inroads into the powers of the states, the American system of government will be essentially extinguished. Dissenting Opinion: Justice Holmes believes the Federal Child Labor Act is clearly within the power of Congress to regulate commerce, stating, “Regulation means the prohibition of something.” As a result, the act “is not beyond the regulative power of Congress merely because it prohibits

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certain transportation in and out” of a state. Nor does it infringe on states’ rights because the products are sent in interstate commerce. Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935) Facts: President Roosevelt’s New Deal Congress passed the National Industrial Recovery Act in 1933. It gave the National Recovery Administration (NRA) the authority to establish codes of fair competition for the nation’s businesses in order to stimulate the economy during the Great Depression. These codes regulated wages, hours, and various trade practices with the objective of eliminating unfair competition. Industries were to formulate their own codes of fair competition, in consultation with the NRA, but the president had to approve them. The president was also given the unprecedented power to impose a code of fair competition on an industry, without the approval of Congress, if an industry did not formulate one for itself. These codes had the effect of law, and Congress established few guidelines to control the kind of codes the president could impose. Aaron, Alex, Joseph, and Martin Schechter owned poultry slaughterhouses in Brooklyn. They were prosecuted under this law and found in violation of various NRA standards in federal district court. The Supreme Court granted certiorari. Issue: In light of Article I, Section 1, may Congress delegate to the president the essential legislative function of establishing codes of fair competition for American industry, including virtually unfettered discretion to approve the codes developed by industries and to prescribe and impose them as he sees fit in instances in which he rejects the codes an industry develops or where the industry fails to develop codes for itself? Decision: No Vote: Unanimous Majority Opinion: Chief Justice Hughes emphasizes that Congress is given all legislative powers by Article I of the Constitution. Congress cannot abdicate or transfer to another branch of government those essential legislative functions. Whether Congress surrendered or delegated its powers is critical to this case. The National Industrial Recovery Act does not define fair competition. According to the Act, the chief executive’s role is to approve the codes of fair competition developed by industries and the NRA based on a finding that those codes would effectuate Congress’s policy as established in Title I of the Act. By contrast, “the President is authorized to impose such

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conditions ‘for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code, as the President in his discretion deems necessary to effectuate the policy herein declared.’” “Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry,” Hughes insists. So, does the authority given the president to approve and prescribe codes of fair competition exceed Congress’s authority to delegate power to the chief executive? Hughes thinks it does. He fears that the president is given so much discretion under the Act that he may approve of proposed codes of fair competition as he sees fit. Hughes states some of his concerns: “The President in approving a code may impose his own conditions, adding to or taking from what is proposed, as ‘in his discretion’ he thinks necessary ‘to effectuate the policy’ provided by the act.” Naturally, says Hughes, the president “has no less liberty when he prescribes a code on his own motion or on complaint, and he is free to prescribe one if a code has not been approved. The act provides for the creation by the President of administrative agencies to assist him, but the action or reports of such agencies … have no sanction beyond the will of the President, who may accept, modify, or reject them as he pleases.” These concerns are compelling given the fact that the president’s authority extends to a host of different trades and industries. Because the discretion given to the chief executive is “virtually unfettered” and “without precedent,” it is an unconstitutional delegation of legislative power to the president. Concurring Opinion: Justice Cardozo underscores that the delegated power in this case gives the president “a roving commission to inquire into evils and upon discovery correct them.” This is not a circumstance in which Congress has bestowed a negative power on the president, such as authorizing him to approve codes of unfair competition. This instead gives the president a broad positive power to formulate codes of competition that “may be desirable or helpful for the well-being or prosperity of the industry affected,” and if that conception of presidential power “shall prevail, anything that Congress may do within the limits of the Commerce Clause for the betterment of business may be done by the President upon the recommendation of a trade association by calling it a code.” This, Cardozo trumpets, “is delegation running riot.”

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Carter v. Carter Coal Company, 298 U.S. 238 (1936) Facts: The New Deal Congress passed the Bituminous Coal Conservation Act of 1935 to help the troubled coal industry. It established minimum coal prices, minimum wages, and maximum hours, and it prohibited the use of child labor. It further established a voluntary fair competition code for the coal industry and provided an incentive for coal companies to abide by it. The incentive was a 90 percent refund of a 15 percent tax on sales at the mines. James Carter claimed the 15 percent tax was unconstitutional because it went beyond Congress’s Commerce Clause powers, and he filed suit in federal court. Appeal was taken to the Supreme Court. Issue: In light of its power to regulate commerce among the states, under Article I, Section 8, Clause 3, may Congress regulate labor conditions involved in the local production of coal? Decision: No Vote: 5–4 Majority Opinion: Justice Sutherland reasoned that local production is not trade nor commerce that Congress may regulate under the Commerce Clause because the mining of coal does not concern interstate commerce. It is production, not trade, and in this case, it is purely intrastate commercial activity. Mining “brings the subject matter of commerce into existence. Commerce disposes of it.” Sutherland also says that “the local character of mining, of manufacturing, and of crop growing is a fact, whatever may be done with the products.” He concludes that the national government has no power over local employer-employee relations because they have only an indirect effect on interstate commerce. Dissenting Opinion: Justice Cardozo would uphold the 1935 statute as it related to minimum and maximum prices on the sale of coal in interstate commercial transactions and intrastate commercial transactions where interstate commerce is “directly and intimately affected.” In taking this position, he argues that the federal government must regulate prices in interstate commerce, thereby rejecting the direct/indirect concepts of effects on commerce as an acceptable way to decide constitutional cases. Cardozo believes the public interest must be weighed in this case and that Congress may act to ensure a proper coal supply for the nation.

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Commerce, the New Deal, and Its Aftermath National Labor Relations Board v. Jones & Laughlin Steel Corparation, 301 U.S. 1 (1937) Facts: The New Deal Congress passed the National Labor Relations Act, often known as the Wagner Act, in 1935. Its purpose was to help workers achieve gains in wages and working conditions through collective bargaining. To accomplish this, the Wagner Act protected the rights of employees to organize and join labor unions as well as created the National Labor Relations Board (NLRB) to hear complaints of unfair labor practices and to impose corrective measures. Jones & Laughlin Steel Corporation was one of the nation’s largest steel producers. Its operations extended into many states and dealt with every aspect of steel production, with the company having its own mines, railroads, ships, and mills throughout much of the country. Complaints were filed against the company for engaging in unfair labor practices at a plant in Pennsylvania, including discrimination against workers wishing to join a union. The NLRB ruled against the company, ordering it to reinstate workers dismissed because of union activities. Jones & Laughlin refused, claiming the Wagner Act was unconstitutional because steel production activities were a part of manufacturing and that manufacturing was a form of intrastate commerce outside the regulatory power of Congress. The lower courts, relying on Hammer v. Dagenhart (1918) and Carter v. Carter Coal Company (1936), held in favor of Jones & Laughlin, and the NLRB appealed to the Supreme Court. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress regulate labor-management relations if a manufacturer’s activities have a close and substantial relationship to interstate commerce? Decision: Yes Vote: 5–4 Majority Opinion: Chief Justice Hughes’s opinion, which marked the end of laissez-faire opposition to New Deal legislation, recounts the facts and presents the position of Jones & Laughlin Steel—that the Wagner Act was an attempt by the national government to control the entirety of American industry, all the way to the local level. It further contended that the Wagner Act was “not a true regulation of commerce” but rather had “the fundamental object of placing under the compulsory supervision of the federal government all industrial labor relations in the nation.”

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Hughes rejects these assertions. The National Labor Relations Act regulates commerce within the meaning of Article I, Section 8, Clause 3 because it regulates things that burden or obstruct commerce or the free flow of commerce. As with foreign commerce, Congress has the power to regulate interstate commerce, and labor disputes are not out of reach from Congress’s power. Hughes next turns to the unfair labor practices in question and concludes that employees have a fundamental right to organize and to select their own representatives to bargain collectively with management’s representatives. Then, Hughes rejects Jones & Laughlin’s claim that manufacturing is not commerce, insisting that Congress’s power is not limited to regulating the flow or stream of commerce. The commerce power of Congress is plenary or complete, and “although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” As a result, Congress may regulate intrastate commercial activities, which have a close and substantial relationship to interstate commerce, including production. Hughes concedes, though, that Congress’s power to regulate interstate commerce does have limits: it “may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them would effectively obliterate the distinction between what is national and what is local and create a completely centralized government.” Congress must regulate labor-management relations to avoid the possible “paralyzing consequences of an industrial war,” and such strife can better be avoided now that Congress has given unions the right to organize and collectively bargain. Thus, in the final analysis, this case placed its stamp of approval on a significant expansion of Congress’s power to regulate interstate commerce—namely, to regulate labor-management relations based on the need to control strife between management and unions. Dissenting Opinion: Justice Van Devanter criticizes the majority’s departure from precedents like Carter Coal Company and Schechter Poultry Corporation. v. United States (1937). A manufacturing plant and its labor-management relations are not commerce that Congress may regulate, and, he argues, any interference with commerce must be direct and material before Congress may regulate it.

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United States v. Darby Lumber Company, 312 U.S. 100 (1941) Facts: Congress passed the Fair Labor Standards Act (FLSA) in 1938. It established minimum wages and maximum hours, and it regulated child labor in all businesses engaged in interstate commerce or the production of goods for interstate commerce. The Department of Justice took the Darby Lumber Company of Georgia to court for not complying with the maximum-hour provisions of the FSLA in the production of goods shipped through interstate commerce. A federal district court held that the FSLA was unconstitutional because the Commerce Clause did not permit Congress to regulate wages and hours in production and manufacturing. The Supreme Court accepted the appeal of the Justice Department. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress prohibit unfair competition that injures interstate commerce by prescribing minimum wages and maximum hours for employees of businesses engaged in interstate commerce or engaged in the production of goods for interstate commerce? Decision: Yes Vote: Unanimous Majority Opinion: Justice Stone asserts that the shipment of goods interstate is commerce within the meaning of Article I, even though manufacturing is not. Yet Darby Lumber insists that the real purpose and motive behind the Fair Labor Standards Act are to control wages and hours in the manufacturing process. Stone responds by emphasizing that Congress’s power to regulate commerce is plenary, as established in Gibbons v. Ogden (1824), and that the Fair Labor Standards Act’s purpose and motive include the regulation of unfair competition that injures interstate commerce. Besides, the Supreme Court lacks the power to restrict the motives and purposes of Congress’s regulation of commerce. Stone notes as well that Hammer v. Dagenhart (1918) is inconsistent with the Court’s broad conception of Congress’s power to regulate interstate commerce in this case and that Hammer is consequently overruled. Stone next addresses the validity of the wage and hour requirements of the Fair Labor Standards Act. Congress has the power to require minimum wages and maximum hours because workers who produce goods for interstate commerce are closely related to interstate commerce itself and clearly affect it. Congress’s power to regulate commerce, then, “extends to those activities intrastate which so affect interstate commerce

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or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end.” Beyond that, Congress has the power to “choose the means reasonably adapted to the attainment of the permitted end.” The Fair Labor Standards Act also appropriately requires that employers keep records of wages and hours so the act may be effectively enforced. Stone rejects the Darby Lumber Company’s Tenth Amendment argument. The states do not have exclusive power to regulate local wages and hours; indeed, the Tenth Amendment simply declares “a truism that all is retained which has not been surrendered.” The history of the Tenth Amendment indicates that it was no “more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.” This type of constitutional interpretation would be replicated many times over in the future, as the power of the national government grew and the power of the states dwindled. Wickard v. Filburn, 317 U.S. 111 (1942) Facts: Amendments to the Agricultural Adjustment Act (AAA) of 1938 empowered the secretary of agriculture, Claude Wickard, to establish quotas on different commodities that farmers could grow on their property, including crops consumed on that farm. As a result, Roscoe Filburn, a small farmer in Ohio, was assigned a wheat acreage allotment of a little over eleven acres, yet he planted over twice as much and harvested 239 bushels more than the AAA allowed. The wheat was used to feed Filburn’s family and farm animals, but apparently none was sold on the local market. Filburn was penalized under the AAA, took his case to federal court and lost, and the Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress restrict the individual home production of wheat that has a substantial effect on interstate commerce? Decision: Yes Vote: Unanimous Majority Opinion: Justice Jackson explains the basic arguments in this case. Filburn’s lawyers claim that Congress exceeded its powers by regulating the production and consumption of wheat on individual farms,

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as these activities are local in character and their effects on interstate commerce are indirect at best. The government contends, by contrast, that the AAA regulates only marketing but that if it regulates more, it is still constitutional under the Necessary and Proper Clause of Article I, Section 8, Clause 18. Rejecting old concepts such as direct versus indirect impacts on interstate commerce or whether manufacturing or production is part of commerce, Jackson refers to Chief Justice Marshall’s far-reaching conception of the commerce power in Gibbons v. Ogden (1824) and calls for an “affirmative exercise of the commerce power.” Indeed, Jackson writes very broadly of the exercise of congressional regulation under the Commerce Clause: “Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this is irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’” The majority’s reasoning is that, even though Filburn’s influence on interstate commerce might be trivial, the results would not be trivial if many other farmers did the same. This is true because home-grown wheat competes with wheat for sale in interstate commerce, and if Filburn had not grown beyond his quota, he would have purchased wheat that may well have come from another state. If many farmers did this, the economic effect on interstate commerce would be substantial, and thus, Congress has the power to regulate this. Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) Facts: The Heart of Atlanta Motel solicited business from out of state and was located near two interstate highways. About three-fourths of its business came from outside Georgia, but the motel refused to serve African Americans. It was sued for violating Title II of the Civil Rights Act of 1964, which forbids discrimination in public accommodations affecting interstate commerce. The lower court upheld the Act, and the Supreme Court granted certiorari.

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Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress pass legislation that attempts to remove the disruptive effects on interstate commerce caused by racial discrimination? Decision: Yes Vote: Unanimous Majority Opinion: Justice Clark provides the legislative background to the Civil Rights Act of 1964 and the requirements of Title II concerning discrimination in public accommodations. Congress passed Title II with two critical constitutional provisions in mind—the Commerce Clause of Article I and the Equal Protection Clause of the Fourteenth Amendment. Congress concluded that racial discrimination burdens interstate commerce, that African Americans often had to travel long distances in the South before finding a hotel that would take them, and that this discouraged them from traveling interstate. The Heart of Atlanta Motel claimed that Congress exceeded its power to regulate interstate commerce in passing Title II, that depriving it the right to choose its own customers violated both the Liberty and Property Provisions of the Fifth Amendment, and that forcing it to rent to African Americans was involuntary servitude in violation of the Thirteenth Amendment. The national government maintains that racial discrimination interferes with interstate commerce and that under the Commerce Clause Congress has the power to remove such obstructions. After distinguishing this case from the Civil Rights Cases (1883), Clark insists that the Commerce Clause gives Congress the power to prohibit racial discrimination in interstate commerce; the movement of people between states, in other words, is interstate commerce that Congress has the power to regulate. That same power allowed Congress to prohibit racial segregation on interstate carriers and in train terminal restaurants as well as to prohibit other harmful commercial practices. Indeed, Congress has the general power to legislate against moral wrongs connected with interstate commerce. And even if the Heart of Atlanta Motel’s business were of strictly local in character, “the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.” Clark asserts that Title II does not encroach on the rights to liberty and property under the Due Process Clause of the Fifth Amendment because there is a rational basis for Congress to pass this legislation and that

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“the means it selected to eliminate [discrimination in interstate commerce were] reasonable and appropriate.” Thirty-two states had similar legislation at the time, and the Supreme Court had likewise announced that those laws did not violate due process. At the end, Clark acknowledges that Congress arguably could have used different methods to eradicate the negative effects of racial discrimination in interstate commerce, “but this is a matter of policy that rests entirely with the Congress, not with the courts” because the “means chosen by it [were] reasonably adapted to the end permitted by the Constitution.” Concurring Opinion: Justice Black believes the Commerce and Necessary and Proper Clauses justify this ruling, whereas Justice Douglas would base the decision strictly on the Equal Protection Clause of the Fourteenth Amendment. Katzenbach v. McClung, 379 U.S. 294 (1964) Facts: Ollie McClung’s Barbecue, located in Birmingham, Alabama, refused to serve African Americans in the restaurant, although it had an available takeout service. No claim was made that interstate travelers patronized McClung’s Barbecue because it was located eleven blocks from any interstate highway or train or bus terminal. Nonetheless, about $70,000 worth of the food the restaurant served in 1963 came through interstate commerce. The Department of Justice sued McClung for violating Title II of the Civil Rights Act of 1964, which prohibits racial discrimination in public accommodations. The district court ruled for McClung because the government failed to demonstrate that the food purchased had a close and substantial effect on interstate commerce. The Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress prohibit a restaurant not patronized by interstate travelers from discriminating against African Americans if a substantial portion of the food it serves has moved through interstate commerce? Decision: Yes Vote: Unanimous Majority Opinion: Justice Clark indicates that the issue in this case is “whether Title II, as applied to a restaurant receiving about $70,000 worth of food which has been moved in commerce, is a valid exercise of the power of Congress.” He answers that Congress found, during hearings on Title II, that African Americans spent less money on restaurants

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and theaters where discrimination occurred and that this has “a close connection to interstate commerce. The fewer customers a restaurant enjoys the less food it sells and consequently the less it buys,” so discrimination can be “an artificial restriction on the market” and “interfere with the flow of merchandise.” As a result, Clark writes, “We believe that this testimony [before Congress] afforded ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new businesses refrained from establishing there as a result of it.” Once more, Clark concludes that Congress had a rational basis for passing Title II to eliminate this type of racial discrimination and that it was not crucial that there was no direct evidence demonstrating that McClung’s discrimination adversely affected the flow of interstate commerce. Upholding Title II, then, Clark found Congress’s action “to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.” National League of Cities v. Usery, 426 U.S. 833 (1976) Facts: In 1974, Congress amended the Fair Labor Standards Act (FLSA) of 1938. Those amendments established minimum wages and maximum hours for almost all state employees not already covered by the law, including those carrying out traditional state and local functions like law enforcement, firefighting, and sanitation. The National League of Cities challenged the constitutionality of the 1974 amendments, suing Secretary of Labor William Usery and claiming that the amendments infringed upon the states’ legitimate powers under the Tenth Amendment. The lower courts dismissed the case, and the Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress impose minimum-wage and maximum-hour requirements on states as employers in functions essential to a state’s separate and independent existence? Decision: No Vote: 5–4 Majority Opinion: Justice Rehnquist’s opinion, later reversed in Garcia v. San Antonio Metropolitan Transit Authority (1985), declares that the Supreme Court had “never doubted that there are limits upon the power

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of Congress to override state sovereignty, even when exercising its otherwise plenary powers to tax or to regulate commerce.” True, the trend in Supreme Court decisions since the 1930s had been to uphold very broad assertions of congressional power, especially those regulating interstate commerce, as binding on the states. Yet Rehnquist reasons that there is a key difference between Congress regulating individual businesses and regulating “the States as States,” and the 1974 FLSA amendments were unusual precisely because they were directed at the states as states. Specifically, Congress had told the states how much they must minimally pay their employees and the maximum number of hours a week they could work. To this, Rehnquist responds, “One undoubted attribute of state sovereignty is the States’ power to determine the wages which shall be paid to those whom they employ in order to carry out their governmental functions, what hours those persons will work, and what compensation will be provided where these employees may be called upon to work overtime.” The issue here, as a result, “is whether these determinations are ‘functions essential to separate and independent existence,’ so that Congress may not abrogate the States’ otherwise plenary authority to make them.” After arguing that the FLSA amendments would significantly increase the costs of state and local governments and “coerce the structure of work periods,” Rehnquist concludes that the amendments would indeed “impermissibly interfere with the integral governmental functions of these bodies.” In other words, “insofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional government functions, they are not within the authority granted Congress by [Article I, Section 8, Clause 3].” Dissenting Opinions: Justice Brennan contends that the majority’s reliance on the Tenth Amendment as a source of state sovereignty “not only suggests that they overrule governing decisions of this Court that address this question but must astound scholars of the Constitution.” The majority harkens back to the laissez-faire Court of the 1930s, in cases like United States v. Butler (1936), delivering “a catastrophic judicial body blow at Congress’ power under the Commerce Clause.” Justice Stevens dissents as well, being unable to see any constitutional difference between Congress’s regulation of state employees’ wages and various other types of regulations that he thinks are permissible.

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Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) Facts: The mass transit system in San Antonio, Texas, faced financial problems in the late 1960s. To keep it operating, the U.S. Urban Mass Transit Administration provided the San Antonio Metropolitan Transit Authority (SAMTA) with more than $50 million during the 1970s. Then, in 1979, the U.S. Department of Labor decided that SAMTA must comply with the minimum-wage requirements of the Fair Labor Standards Act (FLSA). SAMTA refused, contending in federal district court that mass transportation was a traditional governmental function under National League of Cities v. Usery (1976), thereby falling outside the requirements of FLSA. Joe Garcia, a SAMTA employee, filed suit against SAMTA for overtime pay, a district court held that municipal ownership and operation of mass transit qualified as a traditional governmental function, but that ruling was overruled on appeal. The Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3 and National League of Cities v. Usery, may federal minimum-wage and maximum-hour requirements under the Fair Labor Standards Act be imposed on a city-owned transportation system? Decision: Yes Vote: 5–4 Majority Opinion: Justice Blackmun, who cast the pivotal vote in National League of Cities, switches sides and speaks for the majority in Garcia. He explains the 1976 ruling, highlights the fact that the lower federal courts have been unsure about how and where to apply National League of Cities , and admits that this is a real problem. Although the lower courts had said that such things as licensing drivers and solidwaste disposal are traditional functions, they had additionally ruled that things like the regulation of air transportation and traffic on public roads are not. According to Blackmun, then, it was “difficult, if not impossible, to identify an organizing principle that places each of these cases in the first group on one side of a line and each of the cases in the second group on the other side.” And the Supreme Court was principally responsible for this confusion because it had not carefully explained how traditional governmental functions were to be distinguished from nontraditional functions and had developed no alternative standard that

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could be adopted in Commerce Clause cases. The character of American federalism, he argues, also makes it difficult to distinguish traditional from nontraditional governmental functions: “The essence of our federal system is that within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal, no matter how unorthodox or unnecessary anyone else—including the judiciary—deems state involvement to be.” For these and other reasons, Blackmun rejects National League of Cities as “unsound in principle and unworkable in practice” and strikes it down. Blackmun emphasizes that “the role of the States in the federal system lies in the structure of the federal government itself” and that the Constitution gives the states influence over the national legislative and executive branches. “The States,” he writes, “were vested with indirect influence over the House of Representatives and the Presidency by their control of electoral qualifications and their role in presidential elections. They were given more direct influence in the Senate.” As a result, “the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than in judicially created limitations on federal power.” Concerning this case, Blackmun concludes that the FLSA requirements, as applied to SAMTA, are not “destructive of state sovereignty or violative of any constitutional provision.” Nor did they violate any limitation on the Commerce Clause powers of Congress. Finally, in describing the federal system, Blackmun notes, “Of course, we continue to recognize that the States occupy a special and specific position in our constitutional system and that the scope of Congress’ authority under the Commerce Clause must reflect that position. But the principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through state participation in federal governmental action.” Dissenting Opinions: Justice Powell insists that “today’s decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause.” Justice O’Connor dissents as well, maintaining that the larger question is whether the states have any major role to play in the federal system.

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New York v. United States, 505 U.S. 144 (1992) Facts: Congress passed the Low-Level Radioactive Waste Policy Act of 1980 to deal with the problem of disposing of low-level nuclear waste in the United States. Three states—South Carolina, Washington, and Nevada—had all of the nation’s disposal sites as of 1980. The 1980 law made all states responsible for disposing of their own waste either within their own borders or on a regional basis. Under a regional approach, states could enter interstate compacts in order to develop regional disposal programs. By 1985, however, only three interstate compacts were formed, all around the three traditional recipient states; this meant they were still receiving all the nation’s low-level radioactive waste. Congress therefore amended the 1980 law in 1985, stipulating that the three traditional recipient states would continue to dispose of other states’ waste until 1992, provided that the other states paid a surcharge to South Carolina, Washington, and Nevada. The amendments also created three incentives for the other states to dispose of their own waste by 1992. Complying states would receive monetary incentives from a fund, held in escrow by the Department of Energy, consisting of 25 percent of all surcharges collected by the recipient states. Second, noncomplying states or compacts would be required to pay additional surcharges and be denied access to the three recipient states in the future. Third, at the outset of 1996, noncomplying states or compacts would be required to “take title” of all undisposed waste and accept full responsibility for damages caused by the generators of that waste. New York filed suit in federal court, arguing that the incentive provisions of the 1985 amendments encroached on the Tenth Amendment rights of the states. After losing in the lower courts, New York appealed to the Supreme Court, which granted certiorari. Issue: In light of the Spending Clause of Article I, Section 8, Clause 1, the Commerce Clause of Article I, Section 8, Clause 3, and the Tenth Amendment, may Congress require states to implement federal policy by directing them to take title of low-level radioactive waste within their borders and assume liability for all damages caused by that waste because the state had not disposed of the waste promptly? Decision: No Vote: 6–3

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Majority Opinion: Justice O’Connor indicates that this case deals with “the circumstances under which Congress may use the States as implements of regulation; that is, whether Congress may direct or otherwise motivate the States to regulate in a particular field or a particular way.” Congress lacks the power to require state legislatures to pass and enforce national regulatory programs or to compel the states “to govern according to Congress’s instructions.” Nonetheless, Congress may use incentives to encourage states to make specific policy choices. One incentive includes stipulating that certain conditions be met for the states to receive federal funds; another involves Congress’s power to regulate interstate commerce, so Congress may “offer States the choice of regulating that activity according to national standards or having state law pre-empted by federal regulation.” “By contrast,” O’Connor continues, “where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.” Of the incentives here, Congress first required a surcharge to be paid to recipient states of radioactive waste from other states, which was within Congress’s power. Second was the collection of part of the surcharges by the secretary of energy for an escrow account, from which financial incentives were to be paid to complying states, and the parties in this case accept this as being within the commerce and taxing powers of Congress. Third, though, Congress “offers state governments a ‘choice’ of either accepting ownership of waste or regulating according to the instructions of Congress…. Because an instruction to state governments to take title to waste, standing alone, would be beyond the authority of Congress, and because a direct order to regulate, standing alone, would also be beyond the authority of Congress, it follows that Congress lacks the power to offer the States a choice between the two.” This is not a conditional exercise of Congress’s power but rather an attempt to require the states to enforce a national regulatory program, and doing so extends beyond Congress’s powers. O’Connor writes, “Whether one views the take title provision as lying outside Congress’ enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution.” In the final analysis, Congress may not command the states to enact laws to implement national policy, though it may create incentives for the states to act if doing so does not offend basic principles of federalism.

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Concurring in part and dissenting in part: Justice White argues that the 1980 and 1985 laws had their origins in the states because they sought “congressional sanction of interstate compromises they had reached.” He additionally insists that none of the Court’s recent rulings on the Tenth Amendment justify some of the distinctions the majority makes. United States v. Lopez, 514 U.S. 549 (1995) Facts: Alfonso Lopez, a twelfth-grade student in San Antonio, Texas, was convicted of violating the Gun-Free School Zones Act of 1990, which prohibits the possession of firearms within one thousand feet of a school. The U.S. Court of Appeals reversed Lopez’s conviction on the grounds that the 1990 law overstepped Congress’s power to regulate interstate commerce. The Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress regulate the possession of guns in or near schools because they have a substantial effect on education that, in turn, substantially affects interstate commerce? Decision: No Vote: 5–4 Majority Opinion: Chief Justice Rehnquist traces the Supreme Court’s interpretation of the Commerce Clause from Gibbons v. Ogden (1824) through subsequent decades when the Court struck down federal laws as unconstitutionally regulating production and manufacturing through the period from 1937 to more recent times. Even since National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) the Court has reminded the legal world that Congress’s power to regulate commerce has some limitations. Against this background, Rehnquist indicates that Congress may regulate three broad categories of commerce: (1) “the use of channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, even though the threat may come only from intrastate activities”; and (3) “those activities that substantially affect interstate commerce.” The first two categories are not relevant to this case, but may Congress pass legislation regulating guns in the proximity of schools, as here, under the third grouping? Rehnquist concludes that Congress may not because the GunFree School Zone Act is totally unrelated to commerce, no matter how generally defined. He complains that the Court has previously “pile[d]

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inference upon inference” to justify Congress’s regulation of various indirect effects on interstate commerce. Yet Rehnquist emphasizes, “To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.” Concurring Opinion: Justice Thomas harkens back to the original understanding of the Commerce Clause. In particular, he maintains that the Court must reconsider narrowing its substantial effects standard because “much if not all of Art. I, Section 8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce.” By very broadly interpreting those things that have a substantial effect on interstate commerce, the Court has been “coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited to the Constitution.” Dissenting Opinions: Justice Souter suggests that the majority wishes to return to the old interpretations of the Commerce Clause prior to 1937. Justice Breyer also dissents, contending that Congress had a rational basis for concluding that violent crime in schools affects the quality of education, and that, in turn, had a significant effect on interstate commerce. Guns in schools are a serious problem, undermining teachers’ ability to teach and students to learn, and the nation’s educational system is inevitably related to America’s economy. Reno v. Condon, 528 U.S. 141 (2000) Facts: Congress passed the Drivers’ Privacy Protection Act in 1994. It controlled the disclosure of personal information—including names, addresses, telephone numbers, and medical data—possessed by state motor vehicle departments, except for specific reasons, as well as the resale of that information to private parties. South Carolina, a state that sold such information, claimed that the Act contravened the Tenth and Eleventh Amendments and fundamental tenets of federalism. A federal district court agreed, a Court of Appeals affirmed, and the Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may Congress regulate the disclosure of personal information possessed

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by state motor vehicle departments and the resale of such information to private parties? Decision: Yes Vote: Unanimous Majority Opinion: Chief Justice Rehnquist concludes that the personal information regulated by the 1974 act is a “thin[g] in interstate commerce.” Insurance companies, manufacturers, and other private entities purchase such data from motor vehicle departments, and that information enters the stream of commerce, so its sale may be regulated by Congress under the Commerce Clause. Moreover, the act does not violate basic tenets of federalism or the principles laid down in New York v. United States (1992) or Printz v. United States (1997). The act “regulates the States as the owners of databases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.” City of Boerne v. Flores, 521 U.S. 507 (1997) Facts: St. Peter Catholic Church outgrew its old building in Boerne, Texas, and requested a permit in 1991 to expand. Boerne officials denied the application because the old building had been designated as a historic landmark by Boerne’s Historic Landmark Commission. Archbishop P. F. Flores sued in federal court, insisting that the permit’s denial violated the Religious Freedom Restoration Act (RFRA) of 1993, which Congress passed after the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990). The RFRA adopted the test in Sherbert v. Verner (1963) for balancing claims of religious freedom against governmental interests where otherwise generally applicable statutes, such as Boerne’s historic landmark law, were involved. Flores contended that in passing the RFRA, Congress attempted to overrule Smith by embracing the Sherbert test. By contrast, Boerne argued that the RFRA exceeded Congress’s enforcement powers under Section 5 of the Fourteenth Amendment. A district court held that the RFRA was an unconstitutional violation of separation of powers, the Court of Appeals reversed, and the Supreme Court granted certiorari. Issue: In light of the Free Exercise of Religion Clause of the First Amendment, Section 5 of the Fourteenth Amendment, and the Constitution’s system of separation of powers, may Congress pass a law intended

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to reduce substantial governmental burdens on religion and thereby enforce constitutional rights broader than those previously enunciated by the Supreme Court? Decision: No Vote: 6–3 Majority Opinion: Justice Kennedy explains that if Smith had been decided based on the Sherbert test, “we would have asked whether Oregon’s prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest.” The Court did not apply Sherbert in Smith, though, because it would have resulted in a constitutional right to ignore neutral laws of general applicability—that is, drug regulation laws. Congress passed the RFRA because it disagreed with the Court’s judgment in Smith. The objectives of the RFRA were “(1) to restore the compelling interest test as set forth in Sherbert and Wisconsin v. Yoder (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” If government proves a compelling interest under the Sherbert test, it must additionally demonstrate that the burden imposed is the least restrictive means of achieving that compelling governmental interest. The present case deals with whether Section 5 of the Fourteenth Amendment permits Congress to pass the RFRA. Section 5 gives Congress the power to enforce the Due Process Clause with appropriate legislation. According to Kennedy, Section 5 bestows on Congress a broad, positive grant of power, but it has its limits. Because of this, on the one hand, Congress has the power to pass laws enforcing freedom of religion because the Court incorporated that right against the states through the Due Process Clause in Cantwell v. Connecticut (1940). Because a state cannot violate a person’s free exercise of religion and because Congress has the power to enforce the requirements of due process through appropriate legislation, Congress may pass laws under Section 5 to enforce the right of freedom of religion against the states. Even so, Congress’s enforcement powers under the Fourteenth Amendment are remedial, and it lacks the power to conclude what is or is not a constitutional violation. “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause,” Kennedy insists. “Congress does not enforce a constitutional right by changing what the right is. It has been

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given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” According to Kennedy, history affirms the idea that Congress’s power under Section 5 is remedial, not substantive. Case law extending back to Marbury v. Madison (1803) has recognized that Congress may not change the Constitution by a mere legislative act; otherwise, “it is difficult to conceive a principle that would limit congressional power.” In the end, Kennedy consequently maintains that the RFRA goes beyond being remedial legislation and is unconstitutional. Therefore, “When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.” Because the RFRA exceeds Congress’s power under Section 5, it runs counter to vital principles of separation of powers and is thus unconstitutional. Dissenting Opinion: Justice O’Connor urges that this case should be used to reexamine Smith, which she believes was incorrectly decided. Looking at the historical meaning of freedom of religion, O’Connor concludes that it “is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer’s conduct is in tension with a law of general application.” United States v. Morrison, 529 U.S. 598 (2000) Facts: Congress passed the Violence Against Women Act in 1994 after hearings indicated that gender-motivated violence cost the United States $3 billion a year. Violence against women was made a federal crime, and 42 U.S. Code Section 13981 provided a federal civil remedy for victims of gender violence. Christy Brzonkala sued Antonio Morrison under the Act after an alleged rape, but the federal district court said that Congress lacked the power to pass Section 13981 under either the Commerce Clause or the Fourteenth Amendment. A Court of Appeals affirmed, and the Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, Section 5 of the Fourteenth Amendment and United States v. Lopez (1995), may Congress make gender violence a federal crime and provide civil remedies for it?

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Decision: No Vote: 5–4 Majority Opinion: Chief Justice Rehnquist agrees with the lower courts that Congress lacked the power under the Commerce Clause and the Fourteenth Amendment to pass Section 13981. As explained in United States v. Lopez (1995), Congress may regulate three general types of activity under the Commerce Clause: (1) “the use of channels of interstate commerce,” (2) “persons or things in interstate commerce,” and (3) activities substantially affecting interstate commerce. Petitioners argue that Section 13981 should be upheld under the third category of congressional regulation because gender violence substantially affects interstate commerce. According to Lopez, certain considerations should be weighed in determining whether Congress may regulate specific activities under the Commerce Clause. Applying those principles to this case, Rehnquist concludes that gender violence is not economic activity. Nor can gender violence necessarily be regulated simply because Congress finds that it has a significant impact on victims and their families or because of its aggregate effects on interstate commerce. Here, Congress did not demonstrate that gender violence had a substantial effect on interstate commerce, and the Supreme Court must tell Congress when it exceeds its Commerce Clause powers. Ultimately, the courts must uphold the constitutional distinction between national and state authority. The states have always had the authority to regulate violence within their jurisdictions, and Rehnquist defends that principle. Otherwise, Congress could end up regulating a variety of crimes that have substantial effects on commerce among the states. Rehnquist then turns to the argument that Section 5 of the Fourteenth Amendment empowers Congress to pass Section 13981. Within limitations, Congress may prohibit gender discrimination under Section 5. These limitations include, however, the need to maintain the balance of power between the national and state governments as the framers of the Constitution intended. Even more important, the Fourteenth Amendment only prohibits forms of state action—not action by private individuals. Still, even if state actions were indirectly involved in discrimination against women, the civil remedy provided by Section 13981 would not be constitutional because it is directed toward criminal acts committed by private individuals, not states or state actors.

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Concurring Opinion: Justice Thomas criticizes the substantial effects test in Commerce Clause cases, preferring the original understanding of Congress’s powers to regulate commerce. The substantial effects test simply vests too much power in Congress. Dissenting Opinions: Justice Souter insists that it is the responsibility of Congress to gather evidence to determine what activities have a substantial effect on interstate commerce. By contrast, the role of the courts in a case like this “is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact.” Here, in hearings that occurred over four years, Congress presented a massive amount of information demonstrating the effect of gender violence on commerce among the states, and that evidence provided Congress with a rational basis to decide that it had jurisdiction to pass the Violence Against Women Act. This was far more information than was evident in United States v. Lopez or that presented in justifying the use of the Commerce Clause to pass other national legislation upheld by the Court in cases like Wickard v. Filburn (1941) and Heart of Atlanta Motel v. United States (1964). So, Souter concludes that the Court majority is embracing a new basis of review—an uncertain basis of review that discounts the substantial effects test yet refuses to return to the “conceptual straightjackets” of doctrines that the Court rejected long ago. Justice Breyer agrees with Souter’s analysis, adding that the majority opinion underscores the problems inherent in drawing judicial lines in Commerce Clause cases.

Membership in Congress Powell v. McCormack, 395 U.S. 486 (1969) Facts: The House of Representatives refused to seat Adam Clayton Powell (D-NY) in 1967, by a vote of 307 to 116, because of accusations of inappropriate use of government money and misusing his position. Powell, a popular but controversial African American congressman, then sued House Speaker John McCormack, arguing that he met the constitutional requirements of age, citizenship, and residency set forth by the Constitution. The lower federal courts said that they lacked jurisdiction in the case, and the Supreme Court granted certiorari. Issue: In light of Article I, Section 5, does the power of each house of Congress to judge the qualifications of its own members permit

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it to impose qualifications that exceed those expressly stated in the Constitution? Decision: No Vote: 8–1 Majority Opinion: Chief Justice Warren explains that the Speech or Debate Clause of Article I, Section 6, was designed “to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile judiciary.” It protects the views expressed by legislators during debate as well as those reflected in votes, committee reports, and resolutions. Under this conception, a legislator cannot be held accountable in the courts for representing the views and interests of his or her constituents. However, Article I, Section 5 gives Congress the power to judge the qualifications of its own members and to expel a member by a two-thirds vote. Respondents contend that members may be expelled because past conduct or character makes them unqualified to serve. According to this argument, the qualifications of age, citizenship, and residency set forth in the Constitution do not prevent Congress from judging its members’ qualifications and expelling them. Warren rejects this argument, concluding that “the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.” Looking back at the Constitutional Convention and the state conventions thereafter, Warren finds that “the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.” Dissenting Opinion: Justice Stewart maintains the case is moot because the House seated Congressman Powell two years after originally voting to exclude him. U.S. Term Limits, Incorporated v. Thornton, 514 U.S. 779 (1995) Facts: Voters in about half of the states passed some form of termlimit initiative during the 1990s for members of Congress. Arkansas was one of these states. It adopted Amendment 73 to the state constitution, prohibiting U.S. senators from having their names on the ballot after two terms and members of the U.S. House of Representatives from having their names on the ballot after three terms. The League of Women Voters and Congressman Ray Thornton challenged the law in state court, with U.S. Term Limits, an organization backing the amendment, as the

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respondent. Thornton prevailed in the state courts, and the U.S. Supreme Court granted certiorari. Issue: In light of Article I, Sections 2 and 3, may a state amend its constitution to add new qualifications for members of Congress beyond age, American citizenship, and state residency? Decision: No Vote: 5–4 Majority Opinion: Justice Stevens points out that Article I, Section 2, Clause 2 requires that members of the House of Representatives be twenty-five years old, an American citizen for at least seven years, and a state inhabitant to be elected. Article I, Section 3, Clause 3 likewise dictates that senators be at least thirty years old, an American citizen for at least nine years, and a state inhabitant to be elected. The Arkansas amendment, Stevens concludes, violates these constitutional requirements. Voters must be allowed to choose their own representatives for Congress, uniform national rules must exist as to who may be elected, and the U.S. Constitution should be amended if its requirements are to be changed. Powell v. McCormack (1969), the most relevant precedent, suggested that the framers of the Constitution intended that the qualifications for members of the House and Senate “be fixed and exclusive” as stated in the Constitution and that Congress could not change them. Nevertheless, contrary to Powell, the petitioners claim that the Tenth Amendment, reserving powers to the states, permits the states to add other qualifications. Stevens rejects this argument because the Tenth Amendment only reserves “that which existed before” the Constitution, and the states never had the power to set other qualifications for Congress under the Articles of Confederation. The framers intended that federal law was the principal source of qualifications for members of Congress, not state law. “The right to choose representatives belongs not to the States, but to the people,” and the people express their sovereignty through the federal government. Senators and members of the House of Representatives are “servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government. In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers.”

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Dissenting Opinion: Justice Thomas contends that the Constitution is silent on whether the people of a state may go beyond Article I to establish additional qualifications for the Senate and House of Representatives. He thinks this ruling ignores the reserved powers of the people, under the Tenth Amendment, as citizens of the states. Indeed, the national government has “limited and enumerated powers,” and the “ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.” So, the people at the state level may give reserved powers to the states or retain them, meaning that the majority has posed and answered the wrong question in this case.

Privileges and Immunities Gravel v. United States, 408 U.S. 606 (1972) Facts: Alaska’s Senator Mike Gravel read summaries of the Pentagon Papers into the public record at a Senate subcommittee meeting soon after the Supreme Court announced New York Times v. United States (1971). Gravel also entered forty-seven volumes of the Pentagon Papers into the public record and orchestrated the publication of the Pentagon Papers by Beacon Press, a commercial publisher, to ensure broader public dissemination. A federal grand jury was impaneled to investigate Gravel’s release and subpoenaed his aide, Leonard Rodberg, to testify. Rodberg moved to quash the subpoena, and a Court of Appeals subsequently barred an inquiry into Gravel’s and Rodberg’s actions and motives based in part on the Speech or Debate Clause of Article I. Gravel and the United States both appealed to the Supreme Court, which granted certiorari. Issues: First, in light of the Speech or Debate Clause of Article I, Section 6, Clause 1, may a grand jury require the testimony of a congressional aide in a criminal investigation? Second, in light of the Speech or Debate Clause, may a member of Congress arrange to have a secret government report commercially republished if that report is not an integral part of the legislative process? Decision: Yes, no Vote: 5–4 Majority Opinion: Justice Blackmun announces the Court’s opinion, which was written by Justice White. The majority opinion initially holds that the Speech or Debate Clause does not protect a senator or an aide

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from criminal conduct or exempt them from grand jury questioning on “third-party crimes where the questions do not require testimony about or impugn a legislative act.” Accordingly, Rodberg, who is ordinarily protected under the Speech or Debate Clause, is nevertheless not immune from grand jury questioning under these circumstances. Next, Gravel’s plans to republish the Pentagon Papers with a commercial press were not protected because his republication plans were “not part and parcel of the legislative process.” Dissenting Opinions: Justice Douglas maintains that Gravel’s actions are “but another way of informing the public” about the Vietnam War, so the Speech or Debate Clause constitutionally protected both Gravel and Rodberg from a grand jury investigation. The First Amendment likewise shielded Beacon Press from prosecution for republishing the Pentagon Papers. Justice Brennan contends that the majority views the Speech or Debate Clause too narrowly. Legislators have a responsibility “to inform the public about matters affecting the administration of government,” and Gravel was performing that function, which, he argues, members of Congress must carry out, even if it is not essential to the internal deliberations of Congress. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975) Facts: The Senate Subcommittee on Internal Security, chaired by Senator James Eastland, subpoenaed the bank records of the U.S. Serviceman’s Fund, a nonprofit organization being investigated for providing forums of dissent for American military personnel during the Vietnam War. The Servicemen’s Fund filed suit to enjoin enforcement of the subpoena, claiming the release of its financial records would violate its First Amendment rights and provide privileged information about its members. A Court of Appeals agreed with the Fund, and the Supreme Court granted certiorari. Issue: In light of the Speech or Debate Clause of Article I, Section 6, Clause 1, is a member of Congress immune from a lawsuit by an organization, alleging the violation of constitutional rights, after the member issues a subpoena requiring the organization to provide information for a legislative investigation? Decision: Yes Vote: 8–1

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Majority Opinion: Chief Justice Burger observes that the Speech or Debate Clause has been construed broadly. The Court’s opinions have additionally established an absolute bar on members of Congress being questioned in any other place concerning their activities within the legitimate legislative sphere. Burger reaffirms that principle. Issuing subpoenas to gather information for a legislative investigation is certainly a legitimate legislative activity. Eastland consequently has immunity from this lawsuit, as do his aides, according to Gravel v. United States (1972). Nor is it relevant that the Senate investigation delved into unorthodox or unpopular views. “Our cases make clear,” Burger writes, “that in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.” The absolute nature of the Speech or Debate Clause also outweighs the claim that the investigation may chill the respondents’ First Amendment rights. Concurring Opinion: Justice Thurgood Marshall, the Court’s first African American member, emphasizes that members of Congress and their aides are not always immune from lawsuits where their legislative activities allegedly infringe on constitutional rights. Dissenting Opinion: Justice Douglas believes the subpoena of financial records violated the Servicemen’s Fund’s constitutional rights. Hutchinson v. Proxmire, 443 U.S. 111 (1979) Facts: Senator William Proxmire made a practice, beginning in 1975, of divulging wasteful spending by federal agencies through his Golden Fleece of the Month award. One instance dealt with Dr. Ronald Hutchinson’s research on animal aggression, which ultimately lost its federal funding because of Proxmire. Proxmire specifically alleged in a Senate speech that Hutchinson’s research was worthless and that federal agencies supporting it were wasting taxpayers’ money. The same allegation was repeated in a newsletter, a television interview, and a press release. Hutchinson sued Proxmire and his aide, Morton Schwartz, for libel and loss of income, lost his suit in the lower courts, and the Supreme Court granted certiorari. Issue: In light of the Speech or Debate Clause of Article I, Section 6, Clause 1, is a member of Congress immune from a libel suit based on statements made in press releases and newsletters? Decision: No Vote: 7–2

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Majority Opinion: Chief Justice Burger explains that the Speech or Debate Clause has often been interpreted broadly, but there are limits to legislative immunity. Relevant here was Doe v. McMillian (1973), where the Court announced that a member of Congress could not republish a libelous statement in his home district because that was not an essential part of the legislative process. Likewise, Proxmire’s press releases and newsletters were not indispensable to Senate deliberations and, thus, were not protected from lawsuits. Dissenting Opinion: Justice Brennan concludes that the Article I, Section 6, Clause 1 did protect newsletters and press releases: “In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause.”

Investigations by Congress Watkins v. United States, 354 U.S. 178 (1957) Facts: John Watkins, a labor organizer for the United Automobile Workers, was subpoenaed to testify before the House Un-American Activities Committee in 1954 after two committee witnesses identified him as a Communist Party member. Watkins answered the questions of the committee except those pertaining to persons who were thought to be former Communist Party members, arguing that such questions were beyond the proper scope of the Committee’s investigation. He was convicted of contempt of Congress, a Court of Appeals upheld his conviction, and the Supreme Court granted certiorari. Issue: In light of Congress’s power to conduct investigations under Article I and the Liberty Provision of the Due Process Clause of the Fifth Amendment, may a witness subpoenaed to testify before a congressional investigative committee refuse to answer questions not indisputably pertinent to a legitimate legislative purpose? Decision: Yes Vote: 6–1 Majority Opinion: Chief Justice Warren discusses some basic principles underlying the inherent power of Congress to conduct investigations. That power is broad, extending to existing or future legislation and the political, economic, and social issues associated with them. Individuals have a responsibility to answer questions posed during congressional investigations and to respond to subpoenas. Still, Warren argues,

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Congress’s power to investigate has limitations. For instance, a congressional probe “must be related to, and in furtherance of, a legitimate task of the Congress,” and investigations may not be used to punish individuals. Congress must observe constitutional rights during the investigative process. Congress rarely used its contempt power before Kilbourn v. Thompson (1881) to compel testimony, but the courts have always possessed the authority to review how Congress used the contempt power. After a cluster of congressional investigation cases reached the Supreme Court in the 1920s, the nature of legislative investigations seemed to change after World War II in order to deal with the possibility of communist subversion and the overthrow of government. During this period, an increased risk to individual rights emerged with the development of far-reaching legislative investigations, and the courts had to address the Bill of Rights as a restraint on Congress’s investigative powers. Cases dealing with self-incrimination under the Fifth Amendment have grown in number, but Congress also may not infringe on First Amendment rights in the investigative process. Requiring the individual to be a witness against his will and to express his political beliefs, especially past beliefs that may have changed, tends to stifle controversial political views and promote orthodoxy. The Court therefore concluded in United States v. Rumely (1953) “that, when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter.” In Watkins, though, “it would be difficult to imagine a less explicit authorizing resolution. Who can define the meaning of ‘un-American’? What is that single, solitary ‘principle of the form of government as guaranteed by our Constitution’?” Indeed, the House of Representatives’ control over its own Un-American Activities Committee was “slight or non-existent. No one could reasonably deduce from the charter the kind of investigation that the Committee was directed to make.” When individual rights are at stake, then, the Supreme Court must not mechanically defer to Congress on the matter of legislative investigations when there is no clear definition of how far an investigation may proceed, in what direction, or how far back in time. When a legislative committee can define its own charter, this “can lead to ruthless exposure of private lives in order to gather data that is neither desired by Congress nor useful to it.” Only Congress may determine the rules that committees must abide by in their investigations, but the courts must ensure

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that those rules do not result in the violation of individual constitutional rights. The U.S. Code prescribes the sanctions that Congress may apply when a witness refuses to answer questions posed by a committee, yet witnesses may refuse to respond to questions not relevant to a congressional inquiry. So the matter under inquiry must be clear enough for a witness to determine whether a response is necessary. Nonetheless, in this case, the subject of the investigation is so vague that a witness cannot be sure which questions must be answered, thereby violating the Due Process Clause of the Fifth Amendment. Warren writes, “Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto. To be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.” That in no way occurred in this case. Dissenting Opinion: Justice Clark disagrees that questions during a congressional investigation must be indisputably clear and pertinent to the committee’s charter and that Congress’s committee system fails to afford suitable safeguards to protect witnesses’ constitutional rights. Barenblatt v. United States, 360 U.S. 109 (1959) Facts: Lloyd Barenblatt, a college professor, was subpoenaed to testify before a subcommittee of the House Un-American Activities Committee in 1954 during an investigation of communist infiltration into American education. At that time, Barenblatt voiced his opposition to the subcommittee’s inquiry into his political and religious views as well as his private affairs and associations. He then refused to answer five questions dealing with whether he was or had ever been a Communist Party member, whether a certain acquaintance was a member, and whether he had been a member of particular student organizations while he had been a graduate student. In a prepared statement, Barenblatt explained that he refused to answer these questions not on Fifth Amendment grounds but because the parent committee’s legislative authorization was too vague, he was not sufficiently informed as to the relevance of these questions to the subcommittee’s investigation, and the questions violated his First Amendment rights. Barenblatt was cited for contempt and convicted in a

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federal district court. His conviction was upheld in a Court of Appeals, and the Supreme Court granted certiorari. Issue: In light of Congress’s power to conduct investigations under Article I and the freedom of association implied by the First Amendment, may a congressional investigative committee inquire into a person’s involvement with the Communist Party? Decision: Yes Vote: 6–3 Majority Opinion: Before turning to the First Amendment question, Justice Harlan maintains that the House Un-American Activities subcommittee had been given the authority to compel testimony for this investigation. Additionally, Watkins v. United States (1957) could not be relied on to challenge the vagueness of the subcommittee’s authority because Watkins failed to speak to that issue; instead, Watkins ruled that a witness was not required to answer questions unless they were clearly pertinent to a congressional investigation. But on Barenblatt’s pertinency claim Harlan distinguishes Watkins from this case: Barenblatt made no allegation at the hearings that questions were irrelevant to the subcommittee’s investigation, the questions posed were clearly pertinent to the subcommittee’s focus, and its focus was announced before Barenblatt appeared on Capitol Hill. Barenblatt’s most important assertion was that the subcommittee hearings violated his First Amendment rights. To this, Harlan responds that the First Amendment does not permit witnesses to refuse to answer questions under all circumstances. In the final analysis, Barenblatt’s First Amendment case is outweighed by the fact that Congress has the power to regulate communist activities in order to prevent the overthrow of the U.S. government and that investigating those who advocate such an overthrow is within the power of Congress. Dissenting Opinion: Justice Black complains that the subcommittee’s activities violate Barenblatt’s First Amendment rights through exposure, censure, and public scorn. “To apply the Court’s balancing test under such circumstances is to read the First Amendment to say ‘Congress shall pass no law abridging freedom of speech, press, assembly and petition, unless Congress and the Supreme Court reach the joint conclusion that on balance the interest of the Government in stifling these freedoms is greater than the interest of the people in having them exercised.’” By balancing government power versus individual rights in this way, the Court fails to carry out its basic function and sacrifices the right

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of daring to think about unorthodox political ideas—all in the name of self-preservation. The First Amendment prevents government from forbidding people to think about and weigh political ideas, unorthodox or not, legal or not. The subcommittee is simply punishing individuals who have been or are communists.

Taxing and Spending United States v. Butler, 297 U.S. 1 (1936) Facts: The Great Depression was hard on American farmers, especially because they overproduced, causing the price of farm products to drop. The Agricultural Adjustment Act (AAA) of 1933 sought to raise the standard of living for farmers. Under this law, Congress exercised both its taxing and spending powers. On the spending side, the federal government would rent a percentage of the nation’s farmland and leave this acreage unplanted. On the taxing side, to pay for the cost of renting farmland, the AAA imposed an excise tax on the processing of agricultural products. William Butler, a cotton processor, challenged the constitutionality of the tax, a district court upheld it, but a Court of Appeals reversed. Appeal was taken to the Supreme Court. Issue: In light of its power to tax and spend for the general welfare, under Article I, Section 8, Clause 1, may Congress pass a law imposing a tax on the processing of agricultural products to, in turn, pay farmers not to grow certain crops? Decision: No Vote: 6–3 Majority Opinion: Justice Roberts says that the purpose of the AAA “is to restore the purchasing power of agricultural products to a parity ... [by taking] money from the processor and [bestowing] it upon farmers who will reduce their acreage.” He concludes that the AAA is a law regulating agricultural production and that “the tax is a mere incident of such regulation.” Before determining whether the AAA is constitutional, Roberts also describes the Supreme Court’s decision-making role in constitutional cases such as this, providing a classic statement of the theory underlying judicial restraint: “When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty—to lay the article of the Constitution which is invoked beside the statute which is challenged and

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to decide whether the latter squares with the former. All the court does or can do is to announce its considered judgment upon the question.” He adds, “The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.” Roberts claims it is unnecessary for the Court to inquire into the meaning of the General Welfare Provision of Article I, Section 8, Clause 1 in this case; instead, he concludes that the AAA encroaches on the rights of the states. “It is a statutory plan,” he writes, “to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction of their disbursement, are but parts of the plan. They are but means to an unconstitutional end.” Congress is not delegated the power to regulate agricultural production, nor can that power be implied from Article I, so the Tenth Amendment must reserve that power to the states and to the people; powers not granted to the national government are prohibited to it. In short, Congress has invaded the Tenth Amendment powers reserved to the states to regulate agricultural production. The revenue raised from the processing tax and spent to subsidize farmers cannot be condoned under the General Welfare Clause. Roberts further argues that an unconstitutional result may not be accomplished indirectly through Congress’s taxing and spending powers. The federal government also contends that cooperation with the AAA is voluntary, but Roberts rejects this argument: farmers will only refuse to comply if they are willing to give up their benefits under the law. “The power to confer or withhold unlimited benefits is the power to coerce or destroy,” Roberts insists, and farmers are essentially being forced to cooperate with the AAA. The framers of the Constitution did not contemplate laws such as this. Dissenting Opinion: Justice Stone maintains that the Tenth Amendment does not place any limitation on Congress to pass the AAA. Because agriculture is depressed nationwide, Congress has the power to enact this tax and to spend for the general welfare. Rather than Congress abusing its power in this case, the Court abuses its own. As Stone opines: “While unconstitutional exercise of power by the legislative and executive branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government.”

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Steward Machine Company v. Davis, 301 U.S. 548 (1937) Facts: The Social Security Act of 1935 established a program of unemployment compensation. Assistance for the unemployed came from a federal excise tax on all employers with at least eight workers. If employers paid taxes to state unemployment programs, however, they could receive up to a 90 percent credit for their state payments on their federal tax. Steward Machine Company, an Alabama corporation, paid the taxes due under the program and then sued the collector of internal revenue for a refund, claiming the Social Security Act violated the Constitution. The lower courts upheld the law, and the Supreme Court granted certiorari. Issue: In light of its power to tax and spend for the general welfare under Article I, Section 8, Clause 1, may Congress pass an unemployment compensation law without infringing on the Tenth Amendment powers of the states? Decision: Yes Vote: 5–4 Majority Opinion: Justice Cardozo argues that there is no violation in this case of the Tenth Amendment or any other explicit or implicit restrictions on congressional power. Steward Machine Company simply failed to demonstrate “that the tax and the credit in combination are weapons of coercion, destroying or impairing the autonomy of the states.” Cardozo highlights the fact that anywhere from ten to sixteen million Americans were unemployed between 1929 and 1936. Unemployment was truly a national problem, not one just affecting selected states. Congress thus confronted this national threat to the general welfare by passing this unemployment compensation program, and United States v. Butler (1936) is inapplicable in this case. Hence, in the final analysis, “the statute does not call for a surrender by the states of powers essential to their quasi-sovereign existence.” Fullilove v. Klutznick, 448 U.S. 448 (1980) Facts: Minority group members were guaranteed at least 10 percent of a $4 billion appropriation for local public works projects under the minority business enterprise (MBE) provision of the Public Works Employment Act of 1977. State or local grantees were to use this 10 percent to purchase services or supplies. Such a minority business had to be at least half owned by minority group members, and the MBE requirement

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could only be administratively waived if it was shown to be infeasible, despite affirmative efforts to meet it. Earl Fullilove, a white construction contractor, filed suit claiming he suffered economically from the enforcement of the MBE provision and appealed to the Supreme Court after losing his case in the lower courts. Issue: In light of its power to spend and provide for the general welfare, under Article I, Section 8, Clause 1, may Congress require that fund recipients under a federal public works program set aside at least 10 percent of the funds received to buy services or supplies from minority-owned businesses? Decision: Yes Vote: 6–3 Majority Opinion: Chief Justice Burger explains Congress’s intention behind the MBE provision: to ensure that minority businesses receive at least 10 percent of this appropriation because it had been shown they had been discriminated against in the past; otherwise, the effects of past discrimination would be perpetuated. Burger says this MBE provision was passed pursuant to Congress’s spending power and its power to provide for the general welfare under Article I, Section 8, Clause 1. Moreover, in prior cases, the Supreme Court had approved of this approach by Congress—to condition the receipt of federal money on private parties’ willingness to cooperate with Congress’s policy. Finally, Burger speaks of the breadth of Congress’s power to spend and regulate interstate commerce as well as its power to enforce the Equal Protection Clause of the Fourteenth Amendment. Each of these congressional powers, according to Burger, justifies the MBE program. Dissenting Opinions: Justice Stewart concludes that the majority’s ruling is wrong because the MBE provision violates the Equal Protection Clause of the Fourteenth Amendment, and there was no proof that Congress had ever discriminated in the past in the disbursement of federal contracting funds. Justice Stevens dissents too, remarking that he “cannot accept this slapdash statute as a legitimate method of providing classwide relief” for racial minorities. South Dakota v. Dole, 438 U.S. 203 (1987) Facts: Congress passed a statute directing the secretary of the Department of Transportation to withhold certain highway funds from states that permitted persons under twenty-one years of age to purchase or

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publicly possess alcohol. Congress’s intent was to influence states to raise their drinking age to twenty-one. Under this law, South Dakota would have lost about 5 percent of its federal highway funds and sued Elizabeth Dole, the secretary of transportation, claiming the law violated Congress’s spending power and the Twenty-First Amendment, which repealed the prohibition imposed by the Eighteenth Amendment. South Dakota lost in the lower courts, and the Supreme Court granted certiorari. Issue: In light of the Twenty-First Amendment and Congress’s spending powers under Article I, Section 8, Clause 1, may Congress pass a statute that withholds a percentage of federal highway funds to a state to encourage that state to raise its drinking age to twenty-one, thereby promoting the general welfare? Decision: Yes Vote: 7–2 Majority Opinion: Chief Justice Rehnquist believes that Congress may indeed attach conditions to the receipt of federal funds, yet there are restrictions on Congress’s spending powers as well—money must be spent for the general welfare, for example, and states must know Congress’s conditions that would disqualify them for federal funds. Conditions on federal funds may also be “illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’” Finally, Rehnquist writes, “we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds.” Rehnquist points out that only the last limitation on Congress’s spending power is involved in this case. Congress may, for instance, try to combat the problem of young people drinking and driving by using federal funds in this way, especially as it may relate to safe interstate travel. So Rehnquist observes, “The remaining question about the validity [of the law in question] is whether the Twenty-first Amendment constitutes an ‘independent bar’ to the conditional grant of federal funds. Petitioner, relying on its view that the Twenty-first Amendment prohibits direct regulation of drinking ages by Congress, asserts that ‘Congress may not use the spending power to regulate that which it is prohibited from regulating directly under the Twenty-first Amendment.’ But our cases show that this ‘independent constitutional bar’ limitation on the spending power is not of the kind petitioner suggests.” Rehnquist continues, “We think that the language in our earlier opinions stands for the unexceptionable proposition that the power may not be used to induce the states to engage in activities that would themselves

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be unconstitutional.” As an illustration, he wrote, “a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’ broad spending power. But no such claim can be or is made here. Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the state’s action in so doing would not violate the constitutional rights of anyone.” In this case, Congress has not compelled the states to act. This is a relatively mild encouragement to raise the minimum drinking age, so Congress has not surpassed its spending powers. Nor has it violated the TwentyFirst Amendment because the “enactment of [drinking] laws remains the prerogative of the States.” Dissenting Opinions: Justice Brennan notes that because the TwentyFirst Amendment gives the states the power to regulate the minimum age of alcohol purchasers, “Congress cannot condition a federal grant in a manner that abridges this right.” Justice O’Connor also dissents, saying that Congress’s law is not justified under the spending power or the commerce power. Like Brennan, she concludes that the TwentyFirst Amendment reserves to the states the setting of a minimum age for drinking, and Congress cannot pass a law abridging that right. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) Facts: Congress passed the Patient Protection and Affordable Care Act (ACA) of 2010 in order to provide millions of uninsured Americans with health insurance. The ACA contained a minimum coverage provision by amending the tax code and providing an individual mandate, stipulating that by 2014, nonexempt individuals who failed to purchase and maintain a minimum level of health insurance must pay a tax penalty. The ACA also contained an expansion of Medicaid, which states had to accept in order to receive federal funds for Medicaid, and an employer mandate to obtain coverage for employees. Lawsuits were filed in district court arguing that the ACA was unconstitutional. The district court ruled that the individual mandate provision was not a valid exercise of Congress’s commerce or taxing powers and that the entire act was invalid because the mandate could not be severed from any other provision. The district court additionally dismissed the challenge to the employer mandates and granted judgment to the federal government on the Medicaid expansions,

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finding insufficient support for the contention that the spending legislation was unconstitutionally coercive. The Court of Appeals affirmed the district court’s holdings as to the Medicaid expansions and the individual mandate but reversed the district court in part by holding that the individual mandate could be severed without invalidating the remainder of the ACA. The Supreme Court granted certiorari. Issue: First, in light of the Commerce Clause, may Congress require individuals to pay a tax to purchase health insurance? Second, in light of the Taxing and Spending Clause, may Congress require individuals to pay a tax in order to purchase health insurance? Decision: No, yes Vote: 5–4 Majority Opinion: Chief Justice Roberts insists that the Commerce Clause allows Congress to regulate existing commercial activity but does not allow it to compel individuals to participate in commerce. “The power to regulate commerce presupposes the existence of commercial activity to be regulated,” he writes (italics in original). “If the power to ‘regulate’ something included the power to create it, many of the provisions of the Constitution would be superfluous.” Constitutionally derived congressional authority comes with limits, as reflected in Supreme Court precedents, and “The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent… [W]e have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce.” However, Roberts concludes that the individual mandate penalty is a tax under the Taxing and Spending Clause: “Our precedent demonstrates that Congress had the power to impose the extraction in [the individual mandate] under the taxing power, and that [the individual mandate] need not be read to do more than impose a tax. That is sufficient to sustain it.” Continuing, Roberts maintains that “even if only a tax, the payment under [the individual mandate] remains a burden that the Federal Government imposes for an omission, not an act.” In the final analysis, then, the ACA “requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” Beyond that, this payment is not so severe as to be coercive, it is not limited to

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willful violations like fines for unlawful acts, and it is collected by the Internal Revenue Service by normal means. Dissenting Opinion: Justice Scalia argues that Congress characterized the payment as a “penalty,” and if the Court portrays it as a tax, then this amounts to the majority rewriting ACA, which is beyond their power. Moreover, the individual mandate and Medicaid expansion are inseverable, making the entire ACA unconstitutional.

References Barnum, David G. 1985. The Supreme Court and Public Opinion: Judicial Decision-Making in the Post-New Deal Period. Journal of Politics 47(2): 652–666. Blackstone, Bethany. 2013. An Analysis of Policy-Based Congressional Responses to the U.S. Supreme Court’s Constitutional Decisions. Law & Society Review 47(1): 199–228. Bork, Robert H. 1971. Neutral Principles and Some First Amendment Problems. Indiana Law Journal 47(1): 1–35. Caldeira, Gregory A. 1987. Public Opinion and the U.S. Supreme Court: FDR’s Court-Packing Plan. American Political Science Review 81(4): 1139–1153. Caldeira, Gregory A., and Donald J. McCrone. 1982. Of Time and Judicial Activism: A Study of the U.S. Supreme Court, 1800–1973. In Stephen C. Halpern and Charles M. Lamb, eds. Supreme Court Activism and Restraint. Lexington, MA: D.C. Heath, 103–127. Cameron, Charles M., Albert D. Cover, and Jeffrey A. Segal. 1990. Senate Voting on Supreme Court Nominees: A Neoinstitutional Model. American Political Science Review 84(2): 525–534. Casillas, Christopher J., Peter K. Enns, and Patrick C. Wohlfarth. 2011. How Public Opinion Constrains the U.S. Supreme Court. American Journal of Political Science 55(1): 74–88. Epstein, Lee, and Jeffrey A. Segal. 2005. Advice and Consent: The Politics of Judicial Appointments. New York: Oxford University Press. Epstein, Lee, Rene Lindstadt, Jeffrey A. Segal, and Chad Westerland. 2006. The Changing Dynamics of Senate Voting on Supreme Court Nominees. Journal of Politics 68(2): 296–307. Epstein, Lee, and Thomas G. Walker. 2020. Constitutional Law for a Changing America: Institutional Powers and Constraints. 10th ed. Washington, DC: CQ Press. Fisher, Louis. 2013. Presidential War Power. 3rd rev. ed. Lawrence: University Press of Kansas.

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———. 2014. Constitutional Conflicts Between Congress and the President. 6th ed. rev. Lawrence: University Press of Kansas. ———. 2017. Supreme Court Expansion of Presidential Power: Unconstitutional Leanings. Lawrence: University Press of Kansas. Fried, Albert, ed. 1997. McCarthyism: The Great American Red Scare: A Documentary History. New York: Oxford University Press. Goldman, Sheldon. 1991. Constitutional Law: Cases and Essays. 2nd ed. New York: HarperCollins. Graetz, Michael J., and Linda Greenhouse. 2016. The Burger Court and the Rise of the Judicial Right. New York: Simon and Schuster. Huber, John D., Charles R. Shipan, and Madelaine Pfalher. 2001. Legislatures and Statutory Control of Bureaucracy. American Journal of Political Science 45(2): 330–345. Jacobi, Tonja. 2014. Obamacare as a Window on Judicial Strategy. Tennessee Law Review 80(4): 763–845. Kramer, Larry D. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press. Leuchtenburg, William E. 1995. The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York: Oxford University Press. McCloskey, Robert G. 2016. The American Supreme Court. 6th rev. ed. Chicago: University of Chicago Press. Mishler, William, and Reginald S. Sheehan. 1993. The Supreme Court as a Counter-Majoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions. American Political Science Review 87(1): 87–101. Neiheisel, Jacob R., and Michael C. Brady. 2017. Congressional Lettermarks, Ideology, and Member Receipt of Stimulus Awards from the U.S. Department of Labor. Research & Politics 4(3): 1–6. Nowak, John E., and Ronald D. Rotunda. 2000. Constitutional Law. 6th ed. St. Paul, MN: West. O’Brien, David M., and Gordon Silverstein. 2020. Constitutional Law and Politics: Struggles for Power and Governmental Accountability. 11th ed. Vol. 1. New York: Norton. Pritchett, C. Herman. 1948. The Roosevelt Court: A Study of Judicial Politics and Values, 1937–1947 . New York: Macmillan. Segal, Jeffrey A., Charles M. Cameron, and Albert D. Cover. 1992. A Spatial Model of Roll Call Voting: Senators, Constituents, Presidents, and Interest Groups in Supreme Court Confirmations. American Journal of Political Science 36(1): 96–121. The Supreme Court Database. 2019. Washington University Law, http://suprem ecourtdatabase.org/index.php [https://perma.cc/FL7B-KSHW] (accessed April 10, 2020).

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Whittington, Keith E. 2009. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press. Witte, John F. 1985. The Politics and Development of the Federal Income Tax. Madison: University of Wisconsin Press. Wolfe, Christopher. 1986. The Rise of Modern Judicial Review. New York: Basic Books. Yarbrough, Tinsley E. 2000. The Rehnquist Court and the Constitution. New York: Oxford University Press.

CHAPTER 4

Federalism and Federal-State Relations

Different governmental systems are characterized by different levels of centralization. Authoritarian systems have the most centralized power, whereas the United States is one of many countries having some form of a federal system with distinct levels of government possessing varying degrees of power. Therefore, as Justice Louis Brandeis wrote in New State Ice Company v. Liebmann (1932), “it is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the nation.” But what do we mean by a “federal system”? What complexities are associated with the federal-state division of power in America? And how have Supreme Court decisions helped to define and shape the distribution of federal-state power in order to alleviate the country’s problems? The answer to the first question seems simple. As Peltason explains, in a federal system “a constitution divides governmental power between a central government and one or more subdivisional governments, giving each substantial functions” (1997, 17, quoted in Epstein and Walker 2020, 336). Elazar (1984, 2) expands on Peltason’s observation, defining federalism as the “mode of political organization that unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both.”

© The Author(s) 2021 C. M. Lamb and J. R. Neiheisel, Constitutional Landmarks, https://doi.org/10.1007/978-3-030-55575-7_4

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The second question is not so easily answered because federalism in the United States is complex depending on how it is examined. From the viewpoint of the average American, Epstein and Walker (2020, 336) note that “people may not understand which level of government makes specific policies. In addition, government may seem so remote to some citizens that they may not even know the names of their representatives.” Walker (2000, 15–16) provides a more in-depth explanation: American federalism “contains a remarkable cluster of contrasting characteristics.” He insists that it is “overloaded and undernourished,” “top heavy and bottom heavy,” “overregulated and underregulated,” “activist and passive,” “co-optive and cooperative,” and “competitive as well as collaborative.” From the standpoint of constitutional law and politics, this complexity is compounded by the fact that the Supreme Court has limited power; it can only resolve problems if they are properly presented to the judicial system, including meeting the requirements of jurisdiction, justiciability, and standing discussed in Chapter 1. And just because the Court hands down a ruling by no means guarantees that it will be implemented or enforced in the real world (see, e.g., Canon and Johnson 1999; Rosenberg 2008). For these and other reasons, numerous scholars have investigated the federal-state division of power in the United States from a variety of perspectives that reflect our federal system’s many complexities (see, e.g., Feeley and Rubin 2011; Soss et al. 2008, 2011; Shipan and Volden 2006; Volden 2005, 2006; Weissert 2011; Weissert et al. 2009). The third question is the most central to this book. Since its early history the High Court has repeatedly faced challenging issues pertaining to the division of constitutional authority between the federal and state legislatures, federal versus state courts, and, ultimately, the need for the federal government to maintain supreme power over the states (see McCloskey 2016). Recall that Chief Justice Marshall had federalism in mind in such watershed decisions as Marbury v. Madison (highlighted in Chapter 1), Gibbons v. Ogden (explored in Chapter 3), and McCulloch v. Maryland (analyzed in this chapter). The same is true of scores of other justices, especially conservatives during the 1990s, including Justices Sandra Day O’Connor, William H. Rehnquist, and Antonin Scalia in important decisions like New York v. United States (1992), Seminole Tribe of Florida v. Florida (1996), and Printz v. United States (1997). Beyond cases addressing prominent issues of federal legislative or judicial power versus the powers of the states, one of the foremost federalism developments over the past century is the Supreme Court’s incorporation

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of the Bill of Rights against the states. This process, usually referred to as selective incorporation, has meant that the federal government’s relative power has been significantly enhanced as the Court applied almost all of the provisions of the First through the Eighth Amendments to the states through the Fourteenth Amendment’s Due Process Clause. As you know, the Fourteenth Amendment requires that no state shall “deprive any person of life, liberty, or property, without due process of law.” Repeating the very due process concept and words found in the Fifth Amendment, which acts as a restraint on the federal government, the Fourteenth Amendment forced the Court ultimately to incorporate the same concepts of fairness against the states. Thus, beginning with Chicago, Burlington & Quincy Railway Co. v. Chicago (1897) and continuing on in the 1920s and 1930s with the likes of Gitlow v. New York (1925), Near v. Minnesota (1931), Powell v. Alabama (1932), and DeJonge v. Oregon (1937), the justices increasingly concluded that the Bill of Rights guaranteed far more individual rights and liberties at the state and local levels of government than was previously thought. This incorporation trend continued during the 1940s, and then the Warren Court left one of its most enduring imprints on constitutional law by incorporating no less than twelve different provisions of the Bill of Rights against the states.1 The three most recent incorporation decisions came during the Burger and Roberts Courts.2 In the final analysis, then, a variety of federalism-related questions are noteworthy in American law and politics, and Fig. 4.1 plots pro-federal

1 See NAACP v. Alabama (1958) (freedom of association); Mapp v. Ohio (1961) (exclusionary rule); Robinson v. California (1962) (prohibition against cruel and unusual punishment); Gideon v. Wainwright (1963) (right to counsel in all felony cases); Malloy v. Hogan (1964) (right against self-incrimination); Pointer v. Texas (1965) (right to confront witnesses); Griswold v. Connecticut (1965) (right to privacy); Parker v. Gladden (1966) (right to an impartial jury); Klopfer v. North Carolina (1967) (right to a speedy trial); Washington v. Texas (1967) (right to a compulsory process for obtaining witnesses); Duncan v. Louisiana (1968) (right to a jury trial in non-petty cases); and Benton v. Maryland (1969) (right against double jeopardy). 2 In Argersinger v. Hamlin (1972), the Burger Court held that the Sixth Amendment right to counsel extended to all criminal cases that included a jail sentence, in McDonald v. City of Chicago (2010) the Roberts Court contended that the Second Amendment right to keep and bear arms applied to state and local governments through the Due Process Clause of the Fourteenth Amendment, and in Timbs v. Indiana (2019), the Roberts Court incorporated the Eighth Amendment prohibition on excessive fines against the states.

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Fig. 4.1 Ideological direction in federalism cases across constitutional eras

power Supreme Court decisions during McCloskey’s three constitutional eras, again relying on the Supreme Court Database (2019). Note that during the first constitutional era the Court’s decisions principally appear across the top of the figure, reflecting the strong pro-federal orientation of Chief Justice Marshall and early Court members (see McCloskey 2016). This pattern clearly changes, though, during the second and third constitutional eras, suggesting two major points. First, from the close of the Civil War until the present, the overall number of federalism decisions handed down by the Court has grown substantially—from 80 during the first constitutional era to 457 so far in the third. Second, a much larger proportion of those decisions have favored the states than was true during the first constitutional era. In order to better understand the current constitutional era, Fig. 4.2 depicts the ideological direction in federalism decisions handed down across the Hughes, Stone, Vinson, Warren, Burger, Rehnquist, and Roberts Courts. The slope of the regression line appears to trend in a relatively liberal direction during the Hughes Court. The Stone Court similarly exhibits a pro-federal trend. The slope of the regression line is nearly flat throughout the Vinson years, indicating little ideological change in federalism cases. The same is largely true of the Warren Court; if anything, the trend line is slightly negative throughout this period in the Court’s history. It is certainly worth noting, however, that the intercept is quite high in relative terms, thereby helping to reinforce the conventional wisdom surrounding the liberal nature of the Warren years. Next, the regression line trends in a liberal direction under Burger but remains relatively flat throughout Rehnquist’s time as chief justice. The Roberts Court

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Fig. 4.2 Ideological direction in federalism cases in the third constitutional era

stands apart from the others as the only period during the third constitutional era to exhibit a negative (more pro-state) direction in federalism cases before the Court.

Constitutional Basics Five constitutional provisions inform our understanding of American federalism. The first that normally comes to mind is the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Second, as seen in the last chapter, through the years the Supreme Court’s interpretation of the Commerce Clause has had a significant effect on the power of the states and American federalism. Third, as explained above, the Court’s selective incorporation of the Bill of Rights through the Due Process Clause of the Fourteenth Amendment has substantially increased the power of the federal government relative to that of the states. Finally, as we shall see in this chapter, two other constitutional requirements are relevant to federalism as well— the Supremacy Clause of Article VI and the Eleventh Amendment. The Supremacy Clause stipulates that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties

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made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” By contrast, the Eleventh Amendment declares that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Given what we have learned from these Commerce Clause decisions, there is reason to believe that the justices’ attitudes and ideologies have also affected their Supremacy Clause and Tenth and Eleventh Amendment decisions. The Supreme Court’s federalism cases frequently help clarify the meaning of these constitutional provisions, yet over time the Court has reached remarkably opposing conclusions. Consider the question of which level of government is more powerful given the language and history of the Constitution. On the one hand, in McCulloch v. Maryland (1819) Marshall rejected the notion that the states are sovereign and declared that the Supremacy Clause made a federal bank completely immune from state taxation. In the process he argued that the Supremacy Clause literally requires that national law is supreme, thus expansively interpreting the power of the national government. On the other hand, in Printz v. United States (1997) the Rehnquist Court announced that the Tenth Amendment does not permit Congress to even temporarily require states to implement federal policy by directing state and local law enforcement officials to carry out background checks on prospective handgun purchasers until the federal government is geared up to perform that function—clearly a broad interpretation of state power and state sovereignty. These illustrations from two different High Court eras, separated by 178 years, suggest that constitutional law can swing in opposite political and legal directions depending on the time and the ideologies of the Court’s justices. In order to delve further into the first example, let’s take Marshall’s major federalism contributions, beginning with McCulloch.

From Marshall to the Third Constitutional Era Various federalism decisions underscore the fact that the Supreme Court is a political institution. McCulloch—often said to be Marshall’s greatest opinion—is but one illustration. The battleground in McCulloch concerned the divisive issue of a federal bank, which dated back to Alexander Hamilton’s tenure as treasury secretary for President Washington. Like Washington, Hamilton was a Federalist and a supporter

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of creating a national bank, whereas Thomas Jefferson, Washington’s secretary of state, was a Democratic-Republican, an advocate of decentralized political power and adamantly opposed to a federal bank. Yet despite the protests of Jefferson and other Democratic-Republicans, in 1791 Congress established the first bank of the United States, which was followed in 1816 by a second bank. This legislative activity all occurred “amid renewed controversy and cries of strict constructionism” that went to the very core of McCulloch (Epstein and Walker 2020, 146). Not by coincidence, Marshall was a Federalist as well, one with an exceptional political background, including service as secretary of state under John Adams, and Marshall’s argument in McCulloch dated back to Hamilton’s urgings in The Federalist Papers in favor of launching a federal bank. Specifically, in McCulloch Maryland had passed a law that attempted to tax the second bank of the United States, and the state argued in court that Congress had exceeded its Article I powers and encroached on state sovereignty by creating the bank. However, writing for a unanimous Court, Marshall ruled that Congress could create the bank under its implied powers found in the Necessary and Proper Clause. Article I did not prohibit the bank’s creation, and the federal government’s powers, he insisted, must be viewed in the context of the entire Constitution. After all, “we must never forget that it is a constitution we are expounding,” and constitutions consist of broad principles intended to “endure for ages to come, and consequently, be adapted to the various crises of human affairs” (italics in original). Congress must be able to select the means for carrying out its enumerated powers, and in this case, it does so under the authority of the Necessary and Proper Clause. Marshall also rejects Maryland’s state sovereignty argument; instead, he maintains that only the people are sovereign. The elected delegates of the people of the states assembled in their respective conventions and ratified the Constitution, but the people never surrendered their sovereignty to the state governments. Two other decisions by Marshall followed McCulloch within five years: Cohens v. Virginia (1821) and Osborn v. The Bank of the United States (1824). On the one hand, Cohens stood for the principle that the Supreme Court had jurisdiction in a case in which citizens of one state appealed a conviction from another state as well as the more far-reaching concept that the doctrine of national supremacy applied to Supreme Court review of state court holdings. Marshall’s unanimous opinion in Cohens argues that because the national government is supreme over the

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state governments, “there is nothing so extravagantly absurd in giving to the court of the nation the power of revising the decisions of local tribunals on questions which affect the nation.” On the other hand, Osborn declared that a lawsuit could be brought against a state official personally in federal court for carrying out an unconstitutional state law. There, Marshall’s majority opinion contended that a state official, Osborn—not the state of Ohio—was the party in this case (see the discussion of the Eleventh Amendment later in this chapter); as a result, Ohio’s Eleventh Amendment claim failed. In the process Marshall again relied on McCulloch, repeating his position that the bank “is an instrument which is ‘necessary and proper’ for the carrying on the fiscal operations of [the national] government…. To tax its faculties, its trade and occupation, is to tax the bank itself. To destroy or preserve the one, is to destroy or preserve the other.” Ohio’s tax of the bank was therefore unconstitutional and the combination of McCulloch, Cohens, and Osborn clearly exposed Marshall’s personal desire to fortify the powers of the federal government over those of the states. Following McCulloch, Cohens, and Osborn, the next three generations of justices gradually minimized the value that Marshall placed on a strong federal government. Cooley v. Board of Wardens (1852) concluded that Congress could permit the states to regulate aspects of commerce that are primarily local in nature (see Chapter 3), and Collector v. Day (1871) announced that Congress may not impose a tax on a state judge’s salary. Then, according to McCloskey (2016, 93), “As the judges of the Supreme Court looked about them in the closing years of the nineteenth century and the early years of the twentieth, they could see threats to free enterprise rearing up on every side in numbers that seemed to increase year by year.” The Court’s response to these free-enterprise threats was usually to interpret the Commerce Clause narrowly after Collector v. Day, rejecting Marshall’s brand of federalism and strengthening the states’ powers. This ideological transformation was especially noticeable in United States v. E. C. Knight Company (1895) (see Chapter 3). There, the federal government sued under the Sherman Antitrust Act to stop the sale of additional sugar refining businesses to the giant American Sugar Refining Company, but the Court decided that the states may regulate the manufacturing of a product that did not directly affect interstate commerce. Chief Justice Melville Fuller’s majority opinion maintained that the states had always possessed the police power under the Tenth Amendment (discussed later

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in this chapter), which is “essentially exclusive” and the legal basis for combatting restraints of trade, while Congress is given exclusive power to regulate interstate commerce. This implies “that which belongs to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the state.” It followed, Fuller claimed, that a product’s manufacture is a local activity that must be distinguished from the product’s distribution, and although Congress may regulate distribution, the states regulate production. Following E. C. Knight, Hammer v. Dagenhart (1918) ruled that Congress could not prohibit from interstate commerce goods manufactured by child labor, and Carter v. Carter Coal Company (1936) held that Congress could not regulate labor conditions in local coal production (see Chapter 3). The Court’s laissez-faire period, discussed in Chapter 5, was well established by the time E. C. Knight, Hammer, and Carter Coal were announced. Indeed, the concept of “laissez faire”—that government should minimally interfere in free-market economies—captured a Supreme Court majority not only most famously in Lochner v. New York (1905) but also in a number of additional decisions between the 1890s and the 1930s, including Allgeyer v. Louisiana (1897), Bailey v. Drexel Furniture Company (1922), Schechter Poultry Corporation v. United States (1935), Panama Refining Company v. Ryan (1935), Morehead v. New York ex rel. Tipaldo (1936), and United States v. Butler (1936). So, after some four decades, how did the Court make the transition from laissez-faire economics to the third constitutional era? As explained in Chapter 3, several other Commerce Clause cases had critical federalism implications. First, the second constitutional era ended with the Court’s pivotal holding in National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937). By a 5–4 vote, Jones & Laughlin proclaimed that Congress could regulate labor-management relations if a manufacturer’s activities had a close and substantial relationship to interstate commerce. It was followed by United States v. Darby Lumber Company (1941), where the Court unanimously declared that Congress could prohibit unfair competition that injures interstate commerce by prescribing minimum wages and maximum hours for employees of businesses engaged in interstate commerce. Both decisions actively embraced New Deal politics and rejected the laissez-faire orientation of the past. Second, however, the political progressiveness evident in Jones & Laughlin Steel and Darby Lumber was surpassed by later decisions like

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Wickard v. Filburn (1942), which were even more liberal in orientation. In Wickard, a unanimous majority declared that Congress could restrict an individual farmer’s production of wheat if it might have a substantial effect on interstate commerce—even though the farmer’s extra wheat never entered interstate commerce but was only used to feed his own family and livestock. Warmly embracing legal reasoning that supported New Deal politics, the Court reasoned that, had the farmer not grown more wheat than what the congressional quota permitted, he would have probably bought more wheat, which would have probably come through and substantially affected interstate commerce. Against this political backdrop, new types of federalism cases appeared before the Warren Court during the 1960s, including Commerce Clause rulings like Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung (1964), that had significant repercussions for civil rights. Apart from this, two other Warren Court decisions involving civil rights should be emphasized: Cooper v. Aaron (1958), treated later in this chapter, and South Carolina v. Katzenbach (1966), which upheld Congress’s power to pass the Voting Rights Act of 1965. Remember, though, that President Nixon had appointed four conservative members to the Court between 1969 and 1971—Burger, Blackmun, Powell, and Rehnquist—in order to push the Court to the right (see, e.g., Yarbrough 2000). Furthermore, with Chief Justice Warren Burger’s retirement in 1986, William Rehnquist—originally appointed as an associate justice by Nixon—was promoted by another Republican president, Ronald Reagan, to become chief justice. Thus, the Rehnquist Court endeavored to speed up the Burger Court’s moderately conservative Commerce Clause leanings with decisions like United States v. Lopez (1995) and United States v. Morrison (2000) (see Whittington 2001). Since that time the Roberts Court has handed down few milestone federalism decisions except for Shelby County, Alabama, v. Holder (2013).

State Commercial Regulation Chapter 3 described how the High Court has dealt with various state laws’ regulatory effects on interstate commerce. We continue this theme by introducing three state commercial regulation cases not examined earlier—Southern Pacific Railroad Company v. Arizona (1945), Bibb v. Navajo Freight Lines, Incorporated (1959), and Maine v. Taylor (1986).

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Southern Pacific Railroad challenged the constitutionality of an Arizona statute limiting the length of trains traveling through the state in order to promote public safety, and the Court struck down that state law. Specifically, Chief Justice Harlan Fiske Stone, writing for a 7–2 majority, stressed the need for a national standard in this area, concluding that a state cannot seriously burden interstate commerce by requiring that trains going through the state have no more than fourteen passenger cars or seventy freight cars. Similarly, Bibb v. Navajo Freight Lines questioned the legality of an Illinois law that prohibited trucks and trailers traveling on its interstate highways from using mud flaps as opposed to special rear-fender mudguards as a safety feature. Illinois’s objective was to promote the public’s health and welfare by stopping debris from being splattered on trailing vehicles, but in Bibb the Court unanimously adhered to the Southern Pacific Railroad precedent, holding that a state cannot require trucks and trailers using interstate freeways to install special mudguards if their installation places a burden on the flow of interstate commerce. Justice William O. Douglas’s 7–2 majority opinion reasoned that most states permitted the use of mud flaps, that the installation of special mudguards would be costly, that they would require welding that could present a danger if a truck were carrying explosives, and, ultimately, that the Illinois mudguard requirement would offer no real safety advantages over the use of traditional mud flaps. Maine v. Taylor, meanwhile, was a totally different case. Congress had passed a law barring the importation of any fish or wildlife that violated a state law, whereas a Maine statute prohibited the importation of live baitfish. Justice Harry Blackmun’s 8–1 opinion turned on the majority’s interpretation of what serves a legitimate local purpose. Blackman concluded that Maine’s law met this standard; in particular, a state law may prohibit interstate trade if it serves a legitimate local purpose that cannot be served as well by available nondiscriminatory means—the legitimate local purpose here being environmental protection and ecological preservation. Although a state may not prohibit the flow of interstate commerce in order to protect an economic interest within the state, such as Maine’s live baitfish industry, it may protect its own citizens and natural resources if it does not arbitrarily discriminate against interstate commerce.

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The Tenth and Eleventh Amendments As noted earlier, the Tenth Amendment, ratified in 1791, sets aside for the states or the people all powers not delegated to the federal government, and the Supreme Court has long interpreted the Tenth Amendment to include the state police power—the power of each state to pass laws to protect the public’s health, safety, welfare, and morals.3 The Eleventh Amendment, ratified in 1797, stipulates, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” As in other areas of constitutional law, these requirements have provided ample opportunities for the Court to interpret their meaning based on the justices’ ideologies. We highlight three of those cases. The first, Printz v. United States (1997), dealt with the Brady Handgun Violence Prevention Act, passed by Congress in 1993, which temporarily ordered state and local law enforcement officials to help carry out the new federal law by conducting background checks on prospective handgun buyers while the federal government prepared to perform that objective. By a 5–4 vote, Justice Antonin Scalia wrote for the majority, arguing that neither the Constitution, its history, nor judicial precedent permitted state or local law enforcement officials to be required to assist in implementing national policy. Scalia contends that the Constitution created a system of dual sovereignty between the national and state governments, that residual state sovereignty survived the formation of a federal system, and that residual state sovereignty is reflected in the fact that Article I gave Congress only enumerated powers but that the Tenth Amendment declares that the states or the people retain all powers not delegated to the federal government. Obviously, Scalia says, allowing Congress to direct the states to implement its policies would negatively impact American federalism and the separation of powers system. Second, in Seminole Tribe of Florida v. Florida (1996) the Court faced a challenge to the federal Indian Gaming Regulatory Act of 1988. That law stipulates that Native American tribes may conduct gambling

3 See, for example, the Slaughterhouse Cases, E. C. Knight, and Hammer. In Chapter 5 also see Munn v. Illinois (1877), West Coast Hotel v. Parrish (1937), and Hawaii Housing Authority v. Midkiff (1984).

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activities after entering compacts with states, that states must negotiate in good faith with tribes over gambling (a booming business at some Indian casinos), and that the tribes could file suit against the states in federal court when disputes developed between the negotiating parties. Based on a 5–4 vote, Chief Justice Rehnquist concluded that Congress cannot revoke or abrogate the states’ sovereign immunity from lawsuits in federal court in light of the Eleventh Amendment. Third was Alden v. Maine (1999), a case in which Maine probation officers sued the state for allegedly violating the overtime requirements of the Fair Labor Standards Act of 1938. Again, the Court ruled, 5–4, that Congress cannot revoke the states’ sovereign immunity from lawsuits in their own courts. According to Justice Anthony Kennedy’s majority opinion, the states possessed sovereign immunity before the Constitution’s ratification and still retain it. Indeed, the pivotal role of the states in American government is reflected not only in the limited, enumerated powers given to the federal government but also in the Tenth Amendment’s explicit language. The Eleventh Amendment, which overruled the Court’s holding in Chisholm v. Georgia (1793), restored the framers’ original understanding, and Seminole Tribe, the Court said, was consistent with the framers’ intent.

Judicial Federalism Judicial federalism cases address the High Court’s power to review state supreme court decisions, so what immediately becomes important in this litigation is the Supremacy Clause as well as Article III and, now and then, the Judiciary Act of 1789. In this chapter, we cover four judicial federalism cases—Martin v. Hunter’s Lessee (1816), Cooper v. Aaron (1958), Younger v. Harris (1971), and Stone v. Powell (1976). Martin v. Hunter’s Lessee unanimously established that the appellate jurisdiction of the Supreme Court extends to cases pending in state courts that interpret federal law. Chief Justice Marshall did not participate because of a financial conflict of interest (McCloskey 2016), so Justice Joseph Story wrote for the Court. Like Marshall, Story believed that only the people are sovereign, not the states. The Constitution was ordained and established by the people, who gave supreme authority to the national government via the Supremacy Clause and made the states subordinate to the national government. Then Story turns to Article III, which “is the voice of the whole American people solemnly declared, in establishing

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one great department [i.e., the federal courts] … which was, in many respects, national and in all supreme.” It is the federal courts’ responsibility to interpret federal law, and the Constitution vests all that power in the federal courts. Cooper v. Aaron is a rare case. After Brown v. Board of Education (1954), Arkansas’s governor and legislature took actions to ensure that the Court’s school desegregation ruling was not enforced in their state. Indeed, the governor claimed that Arkansas could nullify Brown and called out the Arkansas National Guard to guarantee that African American students did not attend Little Rock Central High School with white students. This led to the threat of mob violence, forcing President Eisenhower to send federal troops to Little Rock to protect African American students. The Supreme Court delivered an unusual opinion in Cooper in which all nine justices were listed as the majority opinion writer, thus unanimously highlighting the fact that state officials cannot resist or nullify a High Court decision. Justice Felix Frankfurter concurred, stressing that illegal interference by state officials signals a breakdown of the federal system, which cannot be tolerated under the Supremacy Clause. In Younger v. Harris , the Burger Court handled what was originally a state court challenge to California’s Criminal Syndicalism Act banning the advocacy or teaching of violence to achieve political change. An 8–1 majority in that case ruled that a federal court cannot prematurely intervene into state criminal prosecutions, absent exceptional circumstances, even if those prosecutions have a chilling effect on individual rights. Justice Hugo Black, speaking for the majority, noted that state courts should normally decide state cases without federal court intervention, and the federal district court here should not have interfered in the state criminal prosecution until the state proceedings were completed. Stone v. Powell concerned Powell’s request for habeas corpus relief from a federal court after he was convicted and imprisoned for murder in California.4 Powell appealed to a lower federal court, claiming he was wrongly incarcerated because search-and-seizure evidence used at trial should have been excluded. However, the Supreme Court ruled, 6–3, that a state prisoner cannot be granted federal habeas corpus relief on the grounds that evidence obtained in an unconstitutional search or seizure 4 Habeas corpus is discussed in Chapter 2. See Ex parte Milligan (1866); Rasul v. Bush (2004).

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was introduced at trial if the state provided an opportunity for full and fair litigation of the Fourth Amendment claim.

The Court v. the States Given what we have said about federalism and federal-state relations, it is fitting that we also consider the degree to which the Supreme Court has exerted its power of judicial review to declare state legislation unconstitutional. Therefore, Fig. 4.3 once more uses the Supreme Court Database (2019) in order to demonstrate the extent to which the Court chose to strike down state legislation between 1791 and 2018. Analogous to Fig. 3.1, Fig. 4.3 plots the number of times that the High Court declared a piece of state legislation unconstitutional by term. Superimposed over the scatterplot displayed in Fig. 4.3 are two LOWESS curves. As is the case with the other plots throughout this book, the solid line represents a LOWESS curve that uses a fairly narrow smoothing span (f = 0.1), while the dashed line represents a LOWESS curve that employs a wider smoothing span (f = 2/3). Beginning with the Supreme Court’s earliest years and moving to more recent times, Fig. 4.3 reveals major fluctuations in the Court’s use of

Fig. 4.3 Number of state laws declared unconstitutional, 1791–2018

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judicial review involving state legislation. Looking at the solid LOWESS curve, the Court appears to have slowly increased the number of times in each term that it overturned a state law with the first major increase in the Court’s use of judicial review coming during the Civil War period. That surge leveled off until the early 1900s, when it again began to increase, reaching a peak near the end of the second constitutional era. After a brief decline in the first part of McCloskey’s third constitutional era, the Court once again began to strike down state laws in a more energetic fashion near the middle part of the third constitutional era, only to decrease significantly under Chief Justices Burger, Rehnquist, and Roberts. A slightly different overall picture emerges with reference to the dashed line (the LOWESS curve that uses a wider smoothing span), as the Court’s use of judicial review to roll back state legislation increases steadily throughout the first and second constitutional eras before starting to trend downward at the beginning of the third.

Judicial Impact McCulloch remains the High Court’s most significant federalism decision because in it the “implied powers of Congress theory [was] developed” and “federal supremacy was strengthened” (Goldman 1991, 234). McCloskey (2016, 44) explains some nuances of McCulloch’s impact by emphasizing three points. First, Marshall and his Court were widely criticized by politicians and citizens in the South and West, where the bank was opposed, but acclaimed in the North and East, where the bank was favored. Second, though, the bank’s opponents “curiously compromised their own position by putting the immediate issue of the Bank ahead of the broader issue of principle.” Third, as a result, the bank’s opponents often “denounced the Court for not holding the incorporation statute unconstitutional,” thereby “tacitly conceding that the Court had the power to do so” (McCloskey 2016, 44, italics in original) (Table 4.1). Marshall’s majority opinion in Cohens also had short-term political impacts as well as far greater effects over time. In Goldman’s words (1991, 234), the “Eleventh Amendment [was] weakened because [the] states are forced to appear before the Supreme Court in appeals from state court decisions.” Three years later, Osborn infuriated states’ rights advocates and suggested that the “Eleventh Amendment [was] undermined because states could be sued by having [a] plaintiff sue [a] state official personally and not technically the state” (1991, 234).

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Table 4.1 Selected decisions on federalism and federal-state relations Martin v. Hunter’s Lessee (1816). The appellate jurisdiction of the Supreme Court extends to cases pending in state courts that interpret federal law McCulloch v. Maryland (1819). Congress may incorporate a national bank under its implied powers, and such a bank is immune from state taxation Cohens v. Virginia (1821). The Supreme Court has jurisdiction in a case if citizens of one state appeal a conviction from another state, and the doctrine of national supremacy applies to Supreme Court review of state court decisions Osborn v. The Bank of the United States (1824). A lawsuit may be brought against a state official personally in federal court for carrying out an unconstitutional state law and such a suit is not filed against the state Collector v. Day (1871). Congress may not impose a tax on a state judge’s salary Southern Pacific Railroad Company v. Arizona (1945). A state may not seriously burden interstate commerce by requiring that trains traveling in the state have no more than fourteen passenger cars or seventy freight cars Pennsylvania v. Nelson (1956). Congress may preempt state regulation if federal laws are so pervasive that they leave no room for the states to supplement federal laws, if the federal interest is so dominant that the federal system must be assumed to preclude enforcement of state laws on the same subject, or if enforcement of state laws present a serious danger of conflict with the administration of a federal regulatory program Cooper v. Aaron (1958). A state governor and legislature cannot resist or nullify a Supreme Court decision in order to avoid desegregating public schools Bibb v. Navajo Freight Lines, Incorporated (1959). A state may not require trucks and trailers using its interstate highways to install special mudguards if their installation places a burden on the flow of interstate commerce South Carolina v. Katzenbach (1966). Congress has the power to pass the Voting Rights Act of 1965 Younger v. Harris (1971). A federal court cannot prematurely intervene into state criminal prosecutions, absent exceptional circumstances, even if those prosecutions have a chilling effect on individual rights Stone v. Powell (1976). A state prisoner may not be granted federal habeas corpus relief on the grounds that evidence obtained in an unconstitutional search or seizure was introduced at trial if the state provided an opportunity for full and fair litigation of the Fourth Amendment claim Michigan v. Long (1983). The Supreme Court has jurisdiction in a state case if a state court lacks adequate and independent state grounds to support its legal conclusions Maine v. Taylor (1986). A state law may prohibit interstate trade if it serves a legitimate local purpose that cannot be served as well by available nondiscriminatory means Puerto Rico v. Branstadt (1987). Federal courts have the authority to compel a state governor to extradite fugitives from justice Seminole Tribe of Florida v. Florida (1996). Congress may not revoke the states’ sovereign immunity from lawsuits in federal court

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Table 4.1 (continued) Printz v. United States (1997). Congress may not require states to implement federal policy by directing state and local law enforcement officials to carry out background checks on prospective handgun purchasers Alden v. Maine (1999). Congress may not revoke the states’ sovereign immunity from lawsuits in their own courts Riegel v. Medtronic (2008). Premarketing approval by the Food and Drug Administration of medical devices preempt state damage suits against their manufacturers Arizona v. United States (2012). Congress has preempted state laws that would allow local authorities to enforce immigration law Shelby County, Alabama v. Holder (2013). Section 4(b) of the Voting Rights Act of 1965 is unconstitutional because it impermissibly burdens the principles of federalism and equal state sovereignty Murphy v. National Collegiate Athletic Association (2018). The federal government cannot prohibit the states from authorizing state-sponsored sports betting within their jurisdictions

An ideological shift on the Court is evident in Collector v. Day, for it was “conciliatory to the states and signal[ed] the Court’s interest in rejuvenating state sovereignty at a time of national government ascendancy.” Even so, in the long run Collector “provide[d] precedent for interpreting [the] Tenth Amendment so as to favor the states as opposed to the national government” (Goldman 1991, 234). This trend continued off and on until 1937 in Jones & Laughlin Steel, which announced that the National Labor Relations Act was constitutional even though it regulated labor-management relations as part of Congress’s power to oversee interstate commerce. The New Deal Court’s dramatic shift in 1937 in favor of economic regulation continued for four decades, with one obvious exception— National League of Cities v. Usery (1976). As Chapter 3 explained, in National League of Cities the Burger Court took the position that Congress could not impose minimum-wage and maximum-hour requirements on states as employers in “functions essential to a state’s separate and independent existence.” Even so, as McCloskey (2016, 174–175) observes, the Burger Court had “no stomach for a fight. Succeeding cases carefully ‘distinguished’ Usery and upheld challenged congressional legislation,” although Chief Justice Rehnquist later had his way in decisions

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like United States v. Lopez (1995) and Printz v. United States (1997) (see Whittington 2001).

From Marshall to the Third Constitutional Era McCulloch v. Maryland, 4 Wheaton 316 (1819) Facts: Maryland passed a law in 1818 that, in effect, taxed the second bank of the United States. Maryland officials claimed the bank was unconstitutional because it was not necessary and proper for the carrying out of Congress’s enumerated powers under Article I, Section 8. Maryland further asserted that it could tax a branch of the bank as part of its exercise of state sovereignty. Subsequently Maryland sued James McCulloch, an employee of the Baltimore branch of the bank, for not paying the state tax on the bank. McCulloch appealed to the Supreme Court. Issues: First, in light of the Necessary and Proper Clause of Article I, Section 8, Clause 18, may Congress incorporate a national bank under its implied powers? Second, in light of the Supremacy Clause of Article VI, Clause 2, is such a bank immune from state taxation? Decision: Yes, yes Vote: Unanimous Majority Opinion: Chief Justice Marshall rejects Maryland’s argument that the Constitution emanates from the sovereign and independent states; instead, he maintains that the people are sovereign. The elected delegates of the people of the individual states assembled in their respective conventions and ratified the Constitution, but the people never surrendered their sovereignty to the state governments. In truth, the national government is the government of the people, Marshall insists: “In form, and in substance, the [national government] emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” The national government is a government of enumerated powers and may exercise only those powers granted to it. Yet “it is supreme within its own sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all.” Marshall consequently observes that the Supremacy Clause of Article VI, Clause 2, makes national law supreme to conflicting state laws.

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Marshall also speaks of the enumerated versus the implied powers of the national government: “Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.” Marshall goes on to contend that the federal government’s powers must be viewed in the context of the entire Constitution and that “we must never forget that it is a constitution we are expounding.” Constitutions must consist of broad statements of legal principles that must “endure for ages to come, and consequently, be adapted to the various crises of human affairs” (italics in original). He further says that “the government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.” The federal government, in other words, must be able to select the means for carrying out its enumerated powers, and it selects its means under the authority of the Necessary and Proper Clause. Maryland argues for a strict construction of the Necessary and Proper Clause and that the bank is not necessary (i.e., indispensable) in carrying out Congress’s related enumerated powers. But Marshall rebuts Maryland’s argument on the meaning of the word “necessary”: “Is it true, that this is the sense in which the word ‘necessary’ is always used? … [I]t frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not being confined to those single means, without which the end would be entirely unattainable.” Marshall maintains that words involve gradations of intensity, depending on how they are used in sentences with other words. As a result, an illustration of something being necessary would be Article I, Section 10, where the Constitution places specific limitations on the states—the states are prohibited from passing ex post facto laws or bills of attainder and impairing the obligation of contracts. This is a constitution, and constitutions are not narrow documents; instead, they contain great clauses that must be interpreted expansively to permit governments to respond “to the various crises of human affairs.” The Necessary and Proper Clause is placed among the powers of Congress—not in Article I, Section 10, laying out the limitations on Congress’s powers—for a reason. The framers intended the Necessary and Proper Clause to broaden Congress’s powers, not restrict them.

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Marshall summarizes much of his argument in the following celebrated passage: “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Put simply, a federal statute is constitutional if it is directed toward a legitimate end that is not prohibited of Congress and if it is within the scope of both the letter and spirit of the Constitution. On the second issue, Marshall notes that the taxing power is a concurrent power, but there are limitations on state taxation; for example, the states cannot lay duties on imports and exports. What’s more, the Supremacy Clause dictates that national law is supreme, and three corollaries of this are evident: “1st. That a power to create implies a power to preserve; 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve; 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.” The country cannot allow the states to tax the federal government, for that power may be taken to an extreme—to destroy. Confidence must be placed in Congress—rather than in the state legislatures—for Congress represents all the people. If there were enough opposition to the bank, Congress would not have created it. State taxes should not extend to the bank any more than a host of other national activities carried out at the state and local levels. A tax by one state on the federal government is essentially a tax on all the country’s citizens, which cannot be allowed because, among other things, it would weaken the national treasury. Cohens v. Virginia, 6 Wheaton 264 (1821) Facts: The State of Virginia prosecuted, tried, and convicted the Cohens brothers for selling District of Columbia lottery tickets in Norfolk, Virginia. An act of Congress authorized the DC lottery to raise money to make improvements in Washington, DC, but Virginia law prohibited the

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sale of lottery tickets except as established by the State of Virginia. At trial, the Cohens said the law of Congress was supreme over the Virginia law. Virginia complained, though, that the Supreme Court lacked jurisdiction in this case because the Eleventh Amendment, ratified over thirty years earlier, prohibits a citizen of one state from suing another state. Virginia further claimed that the state courts of last resort could construe the U.S. Constitution and that there might be as many interpretations as there are states. Appeal was taken to the Supreme Court. Issues: First, in light of Article III, Section 2, and the Eleventh Amendment, does the U.S. Supreme Court have jurisdiction in a case if citizens of one state appeal a conviction from another state? Second, in light of the Supremacy Clause of Article VI, Clause 2, does the doctrine of national supremacy apply to U.S. Supreme Court review of state court decisions? Decision: Yes, yes Vote: Unanimous Majority Opinion: Chief Justice Marshall explains that Article III gives federal courts jurisdiction in two types of cases, depending on the character of the cause and the character of the parties. Marshall maintains that this case falls into this second category. In addition, he concludes, “The mere circumstance, that a state is a party, gives jurisdiction to the [U.S. Supreme] Court.” Virginia insists that the U.S. Supreme Court lacks jurisdiction in this case because of the Eleventh Amendment, ratified in 1798 to overrule Chisholm v. Georgia (1793). It reads, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the states by citizens of another state, or by citizens or subjects of any foreign state.” Hence, Marshall relies on these exact words to make his basic argument: the Eleventh Amendment applies only to cases in which an individual of one state commenced and prosecuted against another state. Still, in this case Virginia commenced and prosecuted the case against Cohens, so the Eleventh Amendment does not exempt Virginia from federal court jurisdiction in such an appeal. As Marshall writes, “If a suit, brought in one court, and carried by legal process to a supervising court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a state. It is clearly in its commencement the suit of a state against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the state, but for the purpose of asserting a constitutional defense against a claim made by a state.”

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Marshall presents the second issue: whether the appellate power of the Supreme Court can be exercised over the judgment of a state court, based on the Supremacy Clause of Article VI, Clause 2. He argues that because the national government is supreme over the state governments, “there is nothing inconsistent … in making all its departments supreme.” In other words, “there is nothing so extravagantly absurd in giving to the court of the nation the power of revising the decisions of local tribunals on questions which affect the nation.” Marshall nevertheless does not decide in favor of the Cohens brothers. Although they had the right to appeal to the High Court, the congressional lottery law was limited to the city of Washington, and the brothers had no legal right to sell tickets in Virginia. Osborn v. The Bank of the United States, 9 Wheaton 738 (1824) Facts: Each branch of the U.S. bank in the state of Ohio was taxed $50,000, and Ohio officials ignored the Supreme Court’s related ruling in McCulloch v. Maryland (1819). The bank, which had a charter from Congress, then received an injunction from a federal court prohibiting Osborn, the Ohio State auditor, from collecting the tax. Osborn, in turn, ignored the injunction and had the money forcibly seized from the bank. The federal government then sued Osborn and ordered him to pay for damages and the amount seized. He appealed to the Supreme Court, maintaining that the federal court lacked jurisdiction under the Eleventh Amendment. Issues: First, in light of the Eleventh Amendment, may suit be brought against a state official personally in federal court for carrying out an unconstitutional state law? Second, is such a suit a suit against the state? Decision: Yes, no Vote: 6–1 Majority Opinion: Chief Justice Marshall reviews the argument in the case. Ohio asserts that the Eleventh Amendment prohibits suit being brought in federal court against Osborn for carrying out Ohio’s law taxing the bank. Marshall rebuts this reasoning by contending that a state official, Osborn—not the state of Ohio—is the party in this case. As a result, the Eleventh Amendment argument fails. Marshall next insists that the bank is constitutional. As McCulloch indicates, the bank “is an instrument which is ‘necessary and proper’ for the carrying on the fiscal operations of [the national] government…. To tax its faculties, its trade and occupation, is to tax the bank itself. To destroy or preserve the one,

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is to destroy or preserve the other.” Ohio’s tax of the bank, therefore, is unconstitutional. Marshall then writes, “It being then shown … that the defendants could derive neither authority nor protection from the act which they executed, and that this suit is not against the state of Ohio within the view of the Constitution, the state being no party on the record, the only real question in the case is, whether the record contains sufficient matter to justify the court in pronouncing a decree against the defendants?” He concludes that, when acting under authority of an unconstitutional act, an agent of the state—here, Osborn—is personally responsible for any injury inflicted in his attempt to execute the act. Collector v. Day, 11 Wallace 113 (1871) Facts: Congress passed income tax laws in the mid-1860s that placed a 5 percent tax on incomes above $1000. Judge J. M. Day, a probate court judge in Massachusetts, objected to paying the tax on his income on intergovernmental tax immunity grounds. Day won his case in the lower court, and appeal was taken to the Supreme Court. Issue: In light of Article I, Section 8, may Congress impose a tax on a state judge’s salary? Decision: No Vote: 8–1 Majority Opinion: Justice Nelson poses the question up front, admitting there are limits on state sovereignty because of the powers the Constitution gives to the national government. Importantly, however, the national government can claim no more powers than are granted to it by the Constitution or that are necessary by implication. Accordingly, “the [federal] government, and the States … are separate and distinct sovereignties, acting separately and independently of each other, within their separate spheres.” In a powerful statement for states’ rights, though, Nelson says that the taxing powers of Congress must not impair state governments, including state courts: “Without this [judicial] power, and the exercise of it, … no one of the States under the form of government guaranteed by the Constitution could long preserve its existence,” and the states’ power to maintain their courts is a sovereign power vested in the states. Indeed, he says, state self-preservation requires that neither the national government nor other state governments may tax another state’s judges.

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Dissenting Opinion: Whereas Nelson advocates states’ rights, Justice Bradley thinks that federal taxation is different from state taxation—that in a sense federal taxation is on a higher constitutional plane. The national government is “the common government of all alike,” so “every citizen is presumed to trust his own government in the matter of taxation.”

State Commercial Regulation Southern Pacific Railroad Company v. Arizona, 325 U.S. 761 (1945) Facts: The Arizona Train Limit Law of 1912, in order to promote railway safety, prohibited in the state the operation of trains with more than fourteen passenger cars or more than seventy freight cars. Arizona sued the Southern Pacific Railway Company in 1940 for violating the 1912 law. Southern Pacific responded by insisting that the Arizona law conflicted with the power of Congress to regulate interstate commerce, the Arizona Supreme Court upheld the state law, and the U.S. Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may a state seriously burden interstate commerce by requiring that trains traveling in the state have no more than fourteen passenger cars or seventy freight cars? Decision: No Vote: 7–2 Majority Opinion: Chief Justice Stone acknowledges that states possess the power to enact legislation that affects and even regulates interstate commerce under certain circumstances, especially if Congress has not passed legislation to the contrary. Congress, which usually focuses on the need for national uniformity in commercial regulation, may be unable to deal satisfactorily with the diversity throughout the states. For this reason, if “the regulation of matters of local concern is local in character and effect, and its impact on the national commerce does not seriously interfere with its operation, and the consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority.” Nonetheless, constitutional law has long embraced the general rule that the states may not “impede substantially the free flow of commerce from state to state, or … regulate those phases of the national commerce which, because of the need for national uniformity, demand that their regulation, if any, be prescribed by a single authority.” And if

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Congress is silent, the Supreme Court may find that a state law regulating commerce violates the Commerce Clause. In this case, the Court must determine the nature and extent of the burden on interstate commerce caused by the Arizona law and whether that burden is justified in the name of public safety under the Tenth Amendment police power. The facts indicate that long trains operate throughout the United States and that Congress should be the governmental institution imposing any national uniformity on train length. Because the required reduction of the length of trains diminishes their efficiency and substantially increases the costs of operation, Stone concludes that the Arizona law creates a “serious burden” on interstate commerce and a “substantial obstruction” to Congress’s policy of promoting “adequate, economical and efficient railway transportation service.” The safety advantages derived from the law are, moreover, doubtful. The national interest in an efficient, economical, and acceptable railroad system therefore outweighs Arizona’s interest in regulating the length of trains. Dissenting Opinions: Justice Black urges that decisions to regulate the length of trains should be left to the federal and state legislatures. Justice Douglas presumes that the Arizona law is valid and believes “the courts should intervene only where the state legislation discriminated against interstate commerce or was out of harmony with the laws which Congress has enacted.” Bibb v. Navajo Freight Lines, Incorporated, 359 U.S. 520 (1959) Facts: The Illinois legislature passed a law prohibiting trucks and trailers on Illinois interstate highways from using the mud flaps legal in most states; instead, Illinois required special rear-fender mudguards as a safety feature to prevent debris from being splashed on the windshields of following vehicles. The Navajo Freight Lines requested an injunction to enjoin the enforcement of the Illinois statute, won its case in the lower courts, and the Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may a state require all trucks and trailers using its interstate highways to install special mudguards if their installation places a burden on the flow of interstate commerce? Decision: No Vote: Unanimous

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Majority Opinion: Justice Douglas recognizes that the states possess a broad power to regulate their highways to promote public safety under the Tenth Amendment. State laws regulating highways are presumed to be constitutional if the national government is not regulating them and the state laws do not impede interstate commerce. Nevertheless, installation of the special mudguards would be somewhat costly; would require welding, which would present a danger if a truck were hauling explosives; and ultimately would offer no safety advantages in using the required mudguards. In view of this, Douglas concludes that this is a rare case “where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce.” Maine v. Taylor, 477 U.S. 131 (1986) Facts: Congress passed the Lacey Act Amendments of 1981, making it a federal crime to import any fish or wildlife in violation of state law. At the same time, Maine had outlawed the importation of live baitfish. Robert Taylor violated the Maine law by importing baitfish for his bait business and was prosecuted in federal court under the Lacey Act. Taylor insisted the Maine law was an unconstitutional burden on interstate commerce, and Maine intervened in the case to defend its statute. The district court upheld the state law, the Court of Appeals reversed, and the Supreme Court granted certiorari. Issue: In light of the Commerce Clause of Article I, Section 8, Clause 3, may a state law prohibit interstate trade if it serves a legitimate local purpose that cannot be served as well by available nondiscriminatory means? Decision: Yes Vote: 8–1 Majority Opinion: According to Justice Blackmun, Hughes v. Oklahoma (1979) announced the appropriate standard for judging this case: “Once a state law is shown to discriminate against interstate commerce ‘either on its face or in practical effect,’ the burden falls on the state to demonstrate both that the statute ‘serves a legitimate local purpose,’ and that this purpose could not be served as well by available nondiscriminatory means.” Although Maine directly prohibited interstate baitfish trade, Blackmun concludes that the state proved that its law served a legitimate local purpose—environmental protection and ecological preservation—that could not be met by a nondiscriminatory means.

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A state may not prohibit the flow of interstate commerce simply to protect the economic interests within the state, yet it may protect its own citizens and natural resources if it does not arbitrarily discriminate against interstate commerce. Dissenting Opinion: Justice Stevens points out that Maine has a thriving baitfish industry of its own and that it has engaged in “stark discrimination against out-of-state articles of commerce [which] requires rigorous justification by the discriminating State.” Maine’s asserted interest in ecological preservation and environmental protection, he argues, is too vague to constitute such a rigorous defense.

The Tenth and Eleventh Amendments Printz v. United States, 521 U.S. 898 (1997) Facts: Congress passed the Brady Handgun Violence Prevention Act in 1993. Among other things, it temporarily directed state and local law enforcement officials to assist in implementing the new act by carrying out background checks on prospective handgun purchasers. Jay Printz challenged this provision in federal court, claiming that Congress exceeded its powers in passing this requirement. Printz won his case in district court, lost in the Court of Appeals, and the Supreme Court granted certiorari. Issue: In light of Articles I and II and the Tenth Amendment, may Congress temporarily require states to implement federal policy by directing state and local law enforcement officials to carry out background checks on prospective handgun purchasers? Decision: No Vote: 5–4 Majority Opinion: Justice Scalia explains that only the Constitution, its history, and judicial precedent can determine whether a state or local law enforcement official can be required to assist in implementing national policy. Scalia’s review of the nation’s early history indicates that Congress did impose certain obligations on state courts but not on state executives; indeed, early American history suggests that Congress assumed it could not order state executive officials to help implement federal laws. Apart from this, although The Federalist Papers observe that state executive officials might assist in implementing some national policies, such as tax collection, Scalia contends that it was assumed that the states must consent to such a role; indeed, not until recent years had Congress passed

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legislation requiring state and local executive officials to carry out national policy. Nor does the Constitution permit this congressional requirement. The Constitution created a system of dual sovereignty between the national and state governments, and residual state sovereignty survived the formation of a federal system of government. Residual state sovereignty is seen in the fact that Article I gave Congress only discrete, enumerated powers and the fact that the Tenth Amendment declares that the states or the people retain all powers not delegated to the national government by the Constitution. Obviously, allowing Congress to direct the states to implement its policies would have a negative impact on American federalism and would also negatively affect the American system of separation of powers. Article II indicates that the president and duly appointed executive branch officials are responsible for faithfully executing federal laws. If Congress could direct the states to implement national policy, it would reduce the power of the president as laid out in Article II. Judicial precedent likewise indicates that the challenged provision of the Brady Act is unconstitutional. Most recently, New York v. United States (1992) held, in Scalia’s words, that “Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program…. [S]uch commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Concurring Opinions: Justice O’Connor points out that although the challenged provision of the Brady Act violates the Tenth Amendment, state and local law enforcement officials may voluntarily participate in implementing the Act and Congress may encourage voluntary participation on a contractual basis. Justice Thomas concurs as well, emphasizing that the national government’s powers are enumerated and that it may act only with constitutional authorization. Dissenting Opinions: Justice Stevens claims that Congress “may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens” when it discharges its affirmative delegated powers. According to Stevens, the issue “is whether Congress, acting on behalf of the people of the entire Nation, may require local law enforcement officers to perform certain duties during the interim needed

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for the development of a federal gun control program.” His response is that Congress’s affirmative powers to regulate interstate commerce and to pass laws necessary and proper for the carrying out of its enumerated powers justify the challenged provision of the Brady Act. Nothing in the Constitution, including the Tenth Amendment, indicates that Congress cannot require local police officials to conduct background checks on prospective handgun purchasers. Stevens also reads early constitutional history and judicial precedent differently from the majority’s reading, again concluding that the Brady Act provision is constitutional. Justice Souter dissents as well. The Federalist Papers in general and Hamilton’s No. 27 convince him that Congress has not acted unconstitutionally in this case. Souter nevertheless assumes that Congress may exceed its powers in some instances, as in New York v. United States. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) Facts: In 1988, Congress passed the Indian Gaming Regulatory Act, which provides that Native American tribes may conduct gambling activities after entering compacts with states. It further requires that states negotiate in good faith with tribes over gambling, a thriving business at some Indian casinos. When disputes over gambling arise between the states and tribes, the 1988 act permits tribes to sue the states in federal court. The Seminole Tribe of Florida sued Florida when negotiations on gambling collapsed with the state in 1991. In federal district court, Florida claimed the case must be dismissed because the states have sovereign immunity from lawsuits in federal court under the Eleventh Amendment. The district court rejected the argument, but the Court of Appeals concluded that Congress may not revoke the states’ Eleventh Amendment immunity from federal lawsuits. The Supreme Court granted certiorari. Issue: In light of the Eleventh Amendment and the Indian Commerce Clause of Article I, Section 8, Clause 3, may Congress revoke the states’ sovereign immunity from lawsuits in federal court? Decision: No Vote: 5–4 Majority Opinion: Chief Justice Rehnquist emphasizes that the Eleventh Amendment represents two ideas: states are sovereign entities in the American federal system, and they cannot be sued in federal court without their consent. As a result, Congress went too far in the Indian

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Gaming Regulatory Act by giving Native American tribes standing to sue states in federal court in order to force them to negotiate over gambling activities. Only two previous Supreme Court decisions concluded that Congress had the power to revoke state immunity from lawsuits—Fitzpatrick v. Bitzer (1976), invoking the Fourteenth Amendment, and Pennsylvania v. Union Gas Company (1989), invoking the Commerce Clause. Rehnquist then observes that Congress may nullify state immunity in the area of the Fourteenth Amendment but not with respect to the Commerce Clause. With this in mind, he overrules Union Gas, arguing that it was of doubtful use as a precedent, diverged from the established interpretation of the Eleventh Amendment, and thwarted Article III’s customary function. State sovereign immunity is not surrendered simply because a lawsuit involves an area of law exclusively under national control. “Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States,” Rehnquist writes. “The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.” Dissenting Opinion: Justice Souter’s analysis leads him to believe that the majority is wrong. Traditionally, the plain statement rule stood for the idea that Congress must clearly declare that it intended to revoke state power when exercising the Commerce Clause powers. Because “the political safeguards of federalism are working,” Souter writes, “a plain statement rule is an adequate check on congressional overreaching, [and] today’s abandonment of that approach is wholly unwarranted.” Alden v. Maine, 527 U.S. 706 (1999) Facts: Maine probation officers sued the state of Maine in 1992, claiming damages because the state allegedly violated the overtime requirements of the Fair Labor Standards Act (FLSA) of 1938. A federal district court dismissed the suit based on Seminole Tribe of Florida v. Florida (1996), and the Court of Appeals affirmed. After the probation officers sued in state court on the same grounds, the suit was once more dismissed, and the Maine Supreme Judicial Court affirmed. The U.S. Supreme Court granted certiorari.

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Issue: In light of Article I, may Congress revoke the states’ sovereign immunity from lawsuits in their own courts? Decision: No Vote: 5–4 Majority Opinion: Justice Kennedy says that the states’ sovereign immunity from lawsuits is anchored not in the Eleventh Amendment but in the Constitution’s structure, its history, and how the Supreme Court has interpreted it. The states possessed sovereign immunity prior to the ratification of the Constitution and retain it to this day. The crucial role of the states in American government is reflected in the limited and enumerated powers given to the federal government as well as the language of the Tenth Amendment. American federalism preserves state sovereignty, that was the original intent. The framers supported “a system in which the State and Federal Governments would exercise concurrent authority over the people.” The framers also recognized that state sovereignty and state dignity require immunity from private suits. That was a carryover from English law and the doctrine that the Crown could not be sued without its consent. The Eleventh Amendment, overruling Chisholm v. Georgia (1793), therefore restored the original understanding of the framers, and the ruling in Seminole Tribe is consistent with the framers’ intent. State sovereign immunity does not suggest, though, that the states are free to ignore federal law or the U.S. Constitution—sovereign immunity has its limits. The states relinquished some of their sovereignty when the Fourteenth Amendment was adopted, for example, so Congress may approve of private lawsuits against nonconsenting states under Section 5 of that Amendment. Likewise, sovereign immunity does not prohibit lawsuits against government entities that are not an extension of the state nor all suits against state officials. Dissenting Opinion: Justice Souter, who criticizes the majority’s dependence on the Eleventh Amendment in Seminole Tribe, now rejects the majority’s interpretation of the Tenth Amendment and principles of federalism as supporting the sovereign immunity reasoning in this case.

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Judicial Federalism Martin v. Hunter’s Lessee, 1 Wheaton 304 (1816) Facts: Prior to the Revolutionary War Lord Fairfax, a British loyalist, inherited a large tract of land in Virginia. When the war broke out, Fairfax remained in Virginia and later died there. On his death he left the property to his nephew, Denny Martin, who lived in England. Hunter purchased some of that land from Martin. However, Virginia had enacted a law stating that no enemy could inherit land (i.e., Martin), and Virginia started confiscating the property in order to sell it itself. The Virginia courts ruled against Martin, but the U.S. Supreme Court held in his favor in the case of Fairfax’s Devisee v. Hunter’s Lessee (1813). There, the Court declared that the Virginia statute was unconstitutional because it conflicted with the 1783 Treaty of Paris, in which Congress promised to recommend to the states that they restore confiscated property to the loyalists. The U.S. Supreme Court directed the Virginia court to carry out its ruling, but the Virginia court did not believe that it was subordinate to the High Court and refused to follow the order. Additionally, to make matters worse, the Virginia court tried to strike down Section 25 of the Judiciary Act of 1789 as unconstitutional. Section 25 said that whenever the highest state court rendered a decision against a person who claimed rights under federal law, the Supreme Court could review and possibly reverse the state court judgment. The Virginia court argued that the U.S. Supreme Court could not review its interpretation of federal law because the states are co-equal sovereignties with the national government. Then, the Virginia court’s ruling was appealed to the U.S. Supreme Court in the form of Martin v. Hunter’s Lessee. Issue: In light of Article III, Section 2, Clause 2, and Section 25 of the Judiciary Act of 1789, does the appellate jurisdiction of the Supreme Court extend to cases pending in state courts that interpret federal law? Decision: Yes Vote: Unanimous Majority Opinion: Justice Story begins by addressing some preliminary considerations. He asserts that only the people—not the states—are sovereign. The Constitution was ordained and established by the people, who intentionally gave supreme authority to the national government. The people made the states subordinate to the national government, and the people had the authority to place any restrictions on state power they

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wanted. That is why Article I, Section 10 places various limitations on state power (i.e., the states may not impair the obligation of contract or pass ex post facto laws and bills of attainder, etc.). By definition, the states cannot exercise the powers the Constitution gives to the national government. Then, Story turns to Article III and the issue in this case. Article III “is the voice of the whole American people solemnly declared, in establishing one great department … which was, in many respects, national and in all supreme.” It is the responsibility of the federal courts to interpret federal law, and the Constitution vests all that power in the federal courts. The federal courts are given the “whole of judicial power,” and the states are bound to recognize that fact. Article III indicates that Congress controls the appellate power of the Supreme Court, and that was what Congress did in passing the Judiciary Act of 1789. According to Story, the framers of the Constitution knew that some cases dealing with federal law would arise in state courts. Because the framers made the Constitution the supreme law of the land and because the Supreme Court is the final interpreter of the Constitution, logically the appellate power of the Supreme Court must extend to all cases in state courts that raise questions of federal law; that is, the High Court’s appellate power extends to state court decisions that deal with federal law, and the Supreme Court may overrule any such state court determination on appeal. Story maintains that “state attachments, state prejudices, state jealousies, and state interests might obstruct the administration of justice.” That is why the federal courts are given jurisdiction in certain cases—so federal judges can and will provide uniformity in constitutional interpretation. “Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself,” Story argues. “If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different states, and might perhaps, never have precisely the same construction, obligation, or efficacy, in any two states.” That would be totally unacceptable in our legal system, and “appellate jurisdiction must continue to be the only adequate remedy for such evils.”

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Thus, in summarizing the Court’s holding, Story writes, “On the whole, the court is of [the] opinion that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act [of 1789], which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one.” Cooper v. Aaron, 358 U.S. 1 (1958) Facts: The governor and state legislature of Arkansas opposed the school desegregation required by Brown v. Board of Education (1954), and the Arkansas constitution was amended in 1956 to require the state legislature to resist Brown. Governor Orval Faubus, insisting that Arkansas could nullify Brown, called out the Arkansas National Guard in September 1957 to ensure that African American students did not attend Little Rock Central High School. This led to the threat of mob violence. President Dwight Eisenhower then sent federal troops to Little Rock to protect African American students wishing to attend Central High School. After that, the district court agreed to delay desegregation for over two years. African American plaintiffs challenged that ruling, and the Supreme Court convened a special term in August 1958 to deal with this case. Issue: In light of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Supremacy Clause of Article VI, and Brown I , may a state governor and legislature resist or nullify a Supreme Court decision in order to avoid desegregating public schools? Decision: No Vote: Unanimous Opinion of the Court: The justices demonstrate their unity in this case through a unanimous opinion signed by each. In it, they contend that Arkansas’s refusal to abide by Brown is “of the highest importance to the maintenance of our federal system of government.” Given the nation’s federal-state hierarchy of government, Arkansas cannot nullify Brown via a state statute, and a governor cannot stir up racial animosity to avoid the enforcement of a U.S. Supreme Court ruling. As the Court said in United States v. Peters (1809), “If the legislatures of the several states may, at will,

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annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” Because of the Supremacy Clause of Article VI and decisions like Marbury v. Madison (1803), the Court’s holding in Brown is binding on each state and all their officials. Beyond that, the school board was responsible under Brown and the Fourteenth Amendment to ensure desegregation, and it could not simply blame other state officials for its failure to desegregate. Nor is the disruption of the public peace an adequate reason for denying constitutional rights. Concurring Opinion: Justice Frankfurter emphasizes that illegal interference by state officials signals a breakdown of the federal system and cannot be tolerated under the Supremacy Clause. South Carolina v. Katzenbach, 383 U.S. 301 (1966) Facts: Congress passed the Voting Rights Act of 1965 because a rigorous enforcement approach was needed to ensure that African Americans could vote in the South. South Carolina challenged various provisions of the statute and requested an injunction to prevent the attorney general from enforcing the law. The case fell under the Supreme Court’s original jurisdiction because it involved a state suing a citizen of another state. Issue: In light of Article I and the Fifteenth Amendment, does Congress have the power to pass the Voting Rights Act of 1965? Decision: Yes Vote: 8–1 Majority Opinion: Chief Justice Warren explores the legislative history of the Voting Rights Act and the nature of voting discrimination. Most important, Congress found that past remedies for voting rights violations were too weak and that more elaborate measures were needed to implement the Fifteenth Amendment. Warren observes that Congress went about this in an innovative way and that the Voting Rights Act establishes remedies for voting discrimination that take effect without any need for prior adjudication. He judges this to be “clearly a legitimate response to the problem” by Congress. Warren focuses on various aspects of the 1965 statute. One is the coverage formula for southern states. He concludes that Congress could specifically single out for coverage the southern states guilty of the worst voting rights violations in the past. Second, the Voting Rights

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Act suspended literacy tests and similar techniques used to discriminate, and this was within Congress’s power as well. Third, Congress required that either the U.S. attorney general or a federal district court judge in Washington, DC, had to review and approve new voting rights laws enacted in selected southern states before they could go into effect. These were known as the preclearance procedures of Section 5 of the Act. Warren concedes that “this may have been an uncommon exercise of congressional power” but adds that it was justifiable under the unusual circumstances of this case. Finally, sending federal examiners to the South to combat discrimination in voting was a valid exercise of congressional power as well. Opinion concurring in part: Justice Black is clearly offended by the Section 5 preclearance procedure whereby new state election laws must receive approval from federal officials before going into effect. He maintains that “Section 5, by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.” If the Tenth Amendment reserves any power to the states, it means that they “have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them.” The preclearance requirement essentially gives the federal government a veto power over state legislation, which violates the guarantee of a republican form of government found in Article IV, Section 4. Indeed, this provision treats the states as “little more than conquered provinces” and “approaches dangerously near to wiping the States out as useful and effective units of government in our country.” As such, the preclearance requirement is unconstitutional. Younger v. Harris, 401 U.S. 37 (1971) Facts: California’s Criminal Syndicalism Act prohibited the advocacy or teaching of violence to achieve political change. John Harris was indicted for violating that law. He then requested a federal court to enjoin the Los Angeles County District Attorney, Evelle Younger, from prosecuting him, claiming that the California law had a chilling effect on his First

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Amendment rights. The federal court, ruling that the California law was unconstitutionally vague and broad, issued an injunction precluding Younger’s prosecution. The Supreme Court granted certiorari. Issue: In light of Article III and the Free Speech and Free Press Provisions of the First Amendment, as applied to the states through the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, may a federal court prematurely intervene into state criminal prosecutions, absent exceptional circumstances, even if those prosecutions have a chilling effect on individual rights? Decision: No Vote: 8–1 Majority Opinion: Justice Black observes that state courts should normally decide state cases without federal court intervention. This means, among other things, that federal courts should not ordinarily issue injunctions to enjoin state court proceedings, particularly without a showing of an irreparable injury that is great and immediate. In this case, the federal court should not have interfered in the state criminal prosecution until the state proceedings were completed. There is no indication of bad faith on the part of California, and Harris does not qualify for federal injunctive relief. Therefore, absent exceptional circumstances, the federal courts should not prematurely intervene into state criminal prosecutions, even if they may have a chilling effect on individual rights. Dissenting Opinion: Justice Douglas insists that Dombrowski v. Pfister (1965) is especially relevant here. In Dombrowski the Court noted that “in times of repression, the federal judiciary, charged by Congress with special vigilance for protection of civil rights, has special responsibilities to prevent an erosion of the individual’s constitutional rights.” Douglas would apply the same principle in this case. Stone v. Powell, 428 U.S. 465 (1976) Facts: Lloyd Powell committed a murder in California during a liquor store robbery. Hours later he was arrested for vagrancy, and a search incident to his arrest uncovered the murder weapon, which was admitted at trial. Powell was subsequently convicted and incarcerated for murder. He then requested habeas corpus relief from a federal court, maintaining he was illegally imprisoned because the vagrancy ordinance he was convicted

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for violating was unconstitutionally vague and a weapon was seized during an unreasonable search. A federal district court held against Powell’s claims, a Court of Appeals reversed, and W. T. Stone, the prison warden, appealed to the Supreme Court. Issue: In light of exclusionary rule, the Unreasonable Search and Seizure Clause of the Fourth Amendment, the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, and Article III, may a state prisoner be granted federal habeas corpus relief on the grounds that evidence obtained in an unconstitutional search or seizure was introduced at trial if the state provided an opportunity for full and fair litigation of the Fourth Amendment claim? Decision: No Vote: 6–3 Majority Opinion: Justice Powell underscores several costs associated with the exclusionary rule, including that it may allow the guilty to go free and may “[generate] disrespect for the law and administration of justice.” Although the majority adheres to the exclusionary rule in general, it reverses the Court of Appeals here. “There is no reason to believe,” Powell remarks, “that the overall educative effect of the exclusionary rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions.” Therefore, “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial.” Dissenting Opinion: Justice Brennan claims that only Congress has the power to determine whether federal courts may conduct a habeas corpus review of a state prisoner’s assertion that a state violated his or her constitutional rights. As a result, the Supreme Court oversteps its authority in this case.

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References Canon, Bradley C., and Charles A. Johnson. 1999. Judicial Policies: Implementation and Impact. 2nd ed. Washington, DC: CQ Press. Elazar, Daniel J. 1984. American Federalism: A View from the States. 3rd ed. New York: Harper & Row. Epstein, Lee, and Thomas G. Walker. 2020. Constitutional Law for a Changing America: Institutional Powers and Constraints. 10th ed. Washington, DC: CQ Press. Feeley, Malcolm M., and Edward L. Rubin. 2011. Federalism: Political Identity and Tragic Compromise. Ann Arbor: University of Michigan Press. Goldman, Sheldon. 1991. Constitutional Law: Cases and Essays. 2nd ed. New York: HarperCollins. McCloskey, Robert G. 2016. The American Supreme Court. 6th rev. ed. Chicago: University of Chicago Press. Peltason, J. W. 1997. Corwin and Peltason’s Understanding the Constitution. 14th ed. Fort Worth, TX: Harcourt Brace. Rosenberg, Gerald N. 2008. The Hollow Hope: Can Courts Bring About Social Change? 2nd ed. Chicago: University of Chicago Press. Shipan, Charles R., and Craig Volden. 2006. Bottom-Up Federalism: The Diffusion of Antismoking Policies from U.S. Cities to States. American Journal of Political Science 50(4): 825–843. Soss, Joe, Richard C. Fording, and Sanford F. Schram. 2008. The Color of Devolution: Race, Federalism, and the Politics of Social Control. American Journal of Political Science 52(3): 536–553. ———. 2011. Disciplining the Poor: Neoliberal Paternalism and the Persistent Power of Race. Chicago: University of Chicago Press. The Supreme Court Database. 2019. Washington University Law, http://suprem ecourtdatabase.org/index.php [https://perma.cc/FL7B-KSHW] (accessed April 10, 2020). Volden, Craig. 2005. Intergovernmental Political Competition in American Federalism. American Journal of Political Science 49(2): 327–342. ———. 2006. States as Policy Laboratories: Emulating Success in the Children’s Health Insurance Program. American Journal of Political Science 50(2): 294– 312. Walker, David B. 2000. The Rebirth of Federalism: Slouching Toward Washington. 2nd ed. New York: Chatham House. Weissert, Carol S. 2011. Beyond Marble Cakes and Picket Fences: What U.S. Federalism Scholars Can Learn from Comparative Work. Journal of Politics 73(4): 965–979.

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Weissert, Carol S., Carl W. Stenberg, and Richard L. Cole. 2009. Continuity and Change: A Ranking of Key Issues Affecting U.S. Intergovernmental Relations (1995–2005). Publius 39(4): 677–695. Whittington, Keith E. 2001. Taking What They Give Us: Explaining the Court’s Federalism Offensive. Duke Law Journal 51(1): 477–520. Yarbrough, Tinsley E. 2000. The Rehnquist Court and the Constitution. New York: Oxford University Press.

CHAPTER 5

Americans’ Economic Rights

The United States is predominantly a capitalist nation with a safety net for the economically less fortunate, so decisions influencing who gets what, when, how, and why can be critical economic issues in politics and law. Naturally, they become issues that draw the Supreme Court into political and legal firestorms, as reflected in such landmark rulings as Lochner v. New York (1905), Home Building & Loan Association v. Blaisdell (1934), and Kelo v. City of New London, Connecticut (2005) (see, e.g., Gillman 1993; McCloskey 1951). Returning to McCloskey’s (2016) theory of the three constitutional eras, the Marshall Court normally relied on economic rights to bolster the power of the federal government, the Court from the time of Chief Justice Roger Taney to the Great Depression tended to permit the rights of businesses to flourish as the nation increasingly became industrialized, and the Court’s decisions since Franklin Roosevelt’s New Deal have emphasized the protection of individual civil rights as well as economic rights in a more regulated economy. Hence, Dartmouth College v. Woodward (1819) reflects the conservative economic activism of the first constitutional era, Lochner v. New York is a conservative activist decision representing the laissez-faire economics of the second constitutional

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Fig. 5.1 Ideological direction in economic liberty cases, 1791–2018

era, and Heart of Atlanta Motel v. United States (1964) illustrates a civil rights-oriented, activist decision from the third constitutional era. Figure 5.1, which plots the proportion of Supreme Court economic rights decisions that had liberal outcomes, aggregated by term, from 1791 to 2018, reveals some interesting patterns. During the first constitutional era, there is a great deal of term-to-term variability with respect to the ideological character of the Court’s decisions on economic rights. The solid LOWESS smooth that is superimposed over the scatterplot represents a fairly narrow smoothing span (f = 0.1). This curve indicates that the Court returned a higher proportion of liberal decisions on economic rights early during the first era before dropping sharply throughout the second quarter of the nineteenth century. From about 1850 until the start of the second constitutional era, the LOWESS curve then trends upward. In sharp contrast to the first constitutional era, the second constitutional era is remarkably stable, with most observations more tightly clustered around the trend line. Indeed, the dashed line (a LOWESS curve that uses the default smoothing span [f = 2/3]) is effectively flat throughout this era. The dashed LOWESS curve starts to trend downward after the start of the third constitutional era, representing a trend toward more conservative decisions. The LOWESS curve that

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Fig. 5.2 Ideological direction in economic liberty cases in the third constitutional era

uses the narrower smoothing span picks up some interesting movement throughout the third constitutional era, though, as we see upward movement (toward more liberal decisions on economic rights) from the start of the New Deal through roughly the midpoint of the twentieth century before witnessing a precipitous decline in the proportion of liberal decisions throughout the remainder of the century to the present. While it is difficult to discern precisely what is going on throughout the complete arc of political time when it comes to the Court’s decisions on the economy, it seems clear that a relative period of stability during the second constitutional era gave way to greater term-to-term variability during the third that ultimately culminated in a trend toward more conservative decisions on economic rights during the latter part of the time series. Judicial ideology during the Supreme Court’s volatile third constitutional era can be better understood by examining Fig. 5.2, which portrays liberal outcomes, aggregated by term, in economic liberty cases between the Hughes and Roberts Courts. The slope of the regression line is plainly liberal in direction during the Hughes Court, remains essentially flat throughout both the Stone and Vinson Courts, and then quickly shifts to a liberal path under Earl Warren before returning to a conservative

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trajectory during Warren Burger’s chief justiceship. The regression line then flattens to a degree during the Rehnquist period (while still trending somewhat conservative), only to rise surprisingly in a liberal direction under John Roberts.

Constitutional Basics Three constitutional provisions serve as the foundation of economic rights in America. One is the Contract Clause of Article I, Clause 10, which reads that no state shall pass any law “impairing the Obligation of Contracts,” which was especially important during the first constitutional era, when John Marshall gave it a broad reading in order to protect property interests (see, e.g., Magrath 1966; Wright 1938). Second, other economic rights are protected by the Due Process Clauses of the Fifth Amendment, which applies to the federal government, and the Fourteenth Amendment, which applies to the states. Both requirements declare that no person shall be “deprived of life, liberty, or property, without due process of law.” Due process is a hazy concept, of course, one long debated yet instrumental in the development of American constitutional law. Third, the Takings Clause of the Fifth Amendment guarantees that “private property [shall not] be taken for public use without just compensation.” As with the Contract Clause and the Due Process Clauses of Fifth and Fourteenth Amendments, the wording of the Takings Clause is only suggestive of any precise meaning, for what constitutes a “taking,” “public use,” and “just compensation”? Consequently, two leading questions again are: What has the Supreme Court told us through the years that these words, phrases, and concepts really mean? And what political, legal, or economic forces help to explain how different generations of justices have interpreted and reinterpreted these meanings?

The Contract Clause Figure 5.3 presents a scatterplot of the ideological direction of Supreme Court Contract Clause decisions, aggregated by term, between 1791 and 2018. Superimposed on the scatterplot is a linear regression line. This line’s slope provides a basis for concluding that the Court’s Contract Clause rulings have become increasingly liberal over time. We believe that a note of caution is warranted with respect to the interpretation of the plot, however, as “liberal” and “conservative” may mean different things

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Fig. 5.3 Ideological direction in cases involving the contract clause, 1791–2018

in the different cases that underlie the plot displayed in Fig. 5.3. Let us explain further: the Supreme Court Database (2019) only lists a handful of cases as being chiefly related to the issue of contracts. To produce the plot displayed in Fig. 5.3, then, we therefore calculated the proportion of all cases in a given term that (1) listed the Contract Clause as something that the Court considered in the case (according to the lawSupp variable in the dataset) and (2) were coded as having a “liberal” outcome. Precisely what “liberal” means, however, depends upon the issue being decided by the Court rather than the constitutional provision or statute that the Court indicated as serving as the basis for its decision. All we are able to say, then, with reference to the Contract Clause using these data is that, on average, ever-greater proportions of cases that cited the Contract Clause as the reason for the Court’s ruling have been coded by the Supreme Court Database as having a “liberal” outcome over the life of the Court. As shown at the top of Table 5.1, three of Marshall’s Contract Clause decisions stand apart from the others: Fletcher v. Peck (1810), New Jersey v. Wilson (1812), and Dartmouth College v. Woodward (1819) (see, e.g., Magrath 1966; Wright 1938). Fletcher concerned the bribery of myriad Georgia state legislators in order to permit land speculators to purchase a

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Table 5.1 Selected decisions on economic rights Fletcher v. Peck (1810). A public land grant, authorized by a state legislature, is a contract and is not rescindable New Jersey v. Wilson (1812). A state grant that provides a tax exemption to one party is a contract and is not rescindable Dartmouth College v. Woodward (1819). A state statute converting a private college into a public institution and creating a new board of trustees impairs the original charter Charles River Bridge v. Warren Bridge (1837). A state may enter new contractual obligations with a private company, even if they undermine the rights of an existing contract holder with the state, if the original contract did not provide exclusive rights and the new contract promotes the public interest Munn v. Illinois (1877). A state may regulate the storage grain warehouses and set the maximum rates that grain elevator owners may charge if doing so promotes the public interest Chicago, Milwaukee and St. Paul Railroad Company v. Minnesota (1890). A state legislature may not create a commission having the judicially unreviewable power of determining rates that owners of railroads and warehouses may charge, thereby denying the owners of a basic hearing before the commission Allgeyer v. Louisiana (1897). A state legislature may not pass a law preventing its citizens from entering contracts with out-of-state companies Lochner v. New York (1905). A state may not pass a law prohibiting a bakery employee from working more than ten hours per day and sixty hours per week Adair v. United States (1908). Congress may not prohibit interstate railroads from placing in their labor contracts a provision stipulating that an employee will not join a labor union Muller v. Oregon (1908). A state may pass a law prohibiting women from working in laundries and factories for more than ten hours a day Adkins v. Children’s Hospital (1923). Congress may not pass a law that fixes minimum wages for women in the District of Columbia Home Building and Loan Association v. Blaisdell (1934). A state law may extend the period of default in a mortgage contract because of extreme economic conditions if it promotes the public interest Morehead v. New York ex rel. Tipaldo (1936). A state may not require a minimum wage for adult women workers West Coast Hotel v. Parrish (1937). A state may require a minimum wage for women and children in the public interest Williamson v. Lee Optical Company (1955). A state law may prohibit anyone other than a licensed optometrist or ophthalmologist from fitting eyeglasses or other optical appliances to the face

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Table 5.1 (continued) United States Trust Company of New York v. New Jersey (1977). States may not repeal a statutorycontract between them that limits a Port Authority’s ability to subsidize rail-passenger transportation from revenues and reserves committed as security for bonds purchased by private investors, even if doing so promotes the public good Allied Structural Steel Company v. Spannaus (1978). A state law may prohibit an out-of-state company from discontinuing a pension plan or leaving the state without paying a large fee if its pension funds are inadequate to compensate all workers with at least ten years of service Hawaii Housing Authority v. Midkiff (1984). A state may take, with just compensation, title in real property from lessors and transfer it to lessees to reduce the concentration of property ownership in the state Nollan v. California Coastal Commission (1987). A state may not require that beachfront property owners transfer to the public an easement across their property as a condition for receiving a building permit if the purpose of the state requirement is to provide a continuous strip of publicly accessible beach along the coast and property owners are not paid for the easements Pennell v. City of San Jose (1988). A city may pass a rent-control law that allows landlords to automatically raise rents by a certain percentage each year and requires a hearing on the reasonableness of an increase only if a tenant claims a hardship Lucas v. South Carolina Coastal Council (1992). When government regulations require a property owner to sacrifice all economically beneficial uses of his property in the name of the common good, a take occurs that requires full compensation Dolan v. City of Tigard (1994). Under the Takings Clause, in order for land use regulations not to infringe on private property rights, government must demonstrate that its restrictions have a legitimate public purpose and individualized determinations must show a rough proportionality between the regulations and the harm to be avoided Kelo v. City of New London, Connecticut (2005). A city may authorize the taking and transferring of property from one private party to another with the intent of promoting community economic development Horne v. Department of Agriculture (2015). The Takings Clause applies to personal property, so Congress may not prohibit farmers from selling part of their crops on the market

huge area, including parts of what now are Alabama and Mississippi. In that case, Marshall and a unanimous Court declared that a public land grant, authorized by a state legislature, is a contract and is not rescindable. According to Marshall, when “a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights.” Georgia, like other states, is not a separate sovereign; it is part of a nation, the nation’s Constitution is supreme over state

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laws, and the nation’s Constitution prohibits the states from impairing the obligation of contracts.1 Two years later, in New Jersey v. Wilson, Marshall again wrote for a unanimous Court in a case where New Jersey had granted lands to Native Americans in 1758, promised that the state would never tax the land, but later revoked the tax exemption after the Native Americans sold the land to new owners. Not surprisingly, Marshall concluded that a state grant providing a tax exemption to one party constituted a contract under the Contract Clause and was, as in Fletcher, not rescindable. Dartmouth College v. Woodward is probably Marshall’s most famous Contract Clause opinion. Dartmouth College had originally received its founding charter from the King of England, but the state of New Hampshire later attempted to convert Dartmouth from a private college to a state educational institution. Yet Marshall announced for a 6–1 majority that a state law converting a private college into a public institution and creating a new board of trustees impairs the original charter, even if the contract was initially drafted prior to American independence from England. The Contract Clause is not extremely broad, Marshall admits, though it does limit the states from encroaching on numerous kinds of property contracts; otherwise, the states could “[weaken] the confidence of man in man, and [embarrass] all transactions between individuals.”2 These activist decisions by Marshall “in effect rewrote the contract clause” (Goldman 1991, 357), but the Court embraced a states’ rights position in its next landmark case, Charles River Bridge v. Warren Bridge (1837), with Chief Justice Taney speaking for a 4–3 majority. The Massachusetts legislature had granted the Charles River Bridge Company a charter to build a bridge over the Charles River and collect tolls for forty years, but the charter did not explicitly say that Charles River Bridge had an exclusive right to construct a bridge. Then, the state legislature granted a second charter over forty years later to the Warren Bridge Company to build a second bridge. This new charter permitted Warren Bridge to charge tolls for six years, after which time the bridge would become state property. Charles River Bridge claimed a violation of the Contract Clause,

1 Seemingly, Marshall’s opinion was not influenced by the fact that land speculators had bribed Georgia legislators in order to facilitate this gargantuan swindle. 2 Indeed, Marshall thought of contracts as “sacred” arrangements, intended to last forever.

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but Taney concluded otherwise—that a state may enter into new contractual obligations with a private company, even if they undermine the rights of an existing contract holder with the state, if the original contract did not explicitly provide exclusive rights and the new contract promoted the public interest. But how are we to know what is in the “public interest”? Indeed, how could a Supreme Court majority embrace this concept without clearly defining it for the legal and political world? Does the definition simply depend on what most justices consider to be in the public interest given their own personal attitudes and backgrounds? Taney largely dodged such questions, arguing that government’s function is to advance the public’s happiness and prosperity and that a state legislature had the power to take away the Charles River Bridge’s franchise because “the public interest and convenience would be better promoted by a bridge in the same place.” To Taney, this meant that government grants must be interpreted strictly, that any rights belonging to Charles River Bridge could not be created by implication, and that vagueness in charter grants must be decided in favor of the states and the public. Dramatic political and economic change was in the air as the Taney Court veered away from the first constitutional era. In McCloskey’s (2016, 53) words, “The prospect of a Court appointed by Democratic presidents and headed by Taney seemed dark indeed; Marshall’s carefully wrought jurisprudence would be demolished and the nation would be exposed to the unchecked ravages of agrarian, states’ right radicalism.” Nonetheless, the Court would wait almost a century before it announced its next landmark Contract Clause ruling. That case, Home Building and Loan Association v. Blaisdell , grew out of a different convulsive historical event—the worldwide Great Depression, extending from the fall of 1929 for a decade—when the Court was essentially forced to respond with this compassionate decision. The roots of Blaisdell involved a man who had a home mortgage with the Home Building and Loan Association during the Depression. Unfortunately for Blaisdell, the Home Building and Loan Association decided to foreclose when he defaulted on his mortgage payments. After the state courts said that Blaisdell’s mortgage should be temporarily extended because of the economic crisis, a 5–4 High Court declared that a state law may extend the period of default in a mortgage contract because of extreme economic conditions if it promotes the public interest. Chief Justice Charles Evans Hughes’ majority opinion emphasizes how

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the Contract Clause should be interpreted during times of emergency. Power is neither created nor enhanced during an emergency, he argues, but “emergency may furnish the occasion for the exercise of power.” Furthermore, the Contract Clause binds parties to a contract, yet it is not absolute, and states have the power to protect the public interest. Given an emergency as dire as the Great Depression, a state was justified in temporarily restraining the enforcement of contracts to protect the public interest. As Marshall famously observed in McCulloch v. Maryland (1819), “We must never forget that it is a constitution we are expounding, a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs” (italics in original). The Constitution is, in other words, a living, evolving document that must adjust to the nation’s changing problems and times.

Substantive Due Process and the Laissez-Faire Court The Supreme Court’s due process decisions fall into two general categories: procedural due process and substantive due process. Procedural due process requires procedural fairness—legal procedures cannot unfairly deny a person life, liberty, or property. Under this concept, for instance, a person cannot be convicted of a crime without a fair trial or the right to counsel. Substantive due process requires that the substance of a law does not unfairly deprive a person life, liberty, or property—the concept that “the Constitution is violated when government unreasonably or arbitrarily denies rights that are inherent in the freedom of the individual” (Epstein and Walker 2020a, 617). Here, we focus on the Court’s interpretation of substantive due process between 1897 and 1937, its so-called Lochner or laissez-faire period, when the justices struck down various federal and state economic regulations for illegally intruding on the majority’s conception of economic liberty (see also Chapter 4). At the heart of laissez-faire capitalism is the notion of freedom of contract. No such right of contract is explicitly mentioned in the Constitution, but a conservative activist majority discovered it in the Liberty Provision of the Due Process Clauses of the Fifth and Fourteenth Amendments. Justice Rufus Peckham explained his conception of freedom of contract in Allgeyer v. Louisiana (1897) in the following terms: “The liberty mentioned in the Fourteenth Amendment… is deemed to embrace the right of the citizen to be free in the

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enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.” But what if the choices that employees made in agreeing to work had serious health consequences? Can government then legally restrict the freedom to contract? Epstein and Walker (2020a, 634) aptly call the laissez-faire period the “roller coaster ride of substantive due process,” as the Court vacillated on these issues. Of course, the highpoint of this period was Lochner. The New York state legislature in that case had passed a maximum-hour work law known as the Bakery Shop Act of 1897 in order to protect the health of bakery employees who were regularly exposed to flour dust and bakery fumes in poorly ventilated work areas. This law specifically prohibited bakery employees from working more than sixty hours a week or an average of more than ten hours a day, and the Supreme Court was asked whether this law violated the Liberty Provision of the Fourteenth Amendment’s Due Process Clause. Speaking for a 5–4 majority, Justice Peckham concluded “yes”—that a state law placing a prohibition on an employer under these circumstances and preventing employees from working more than the prescribed hours did violate the right to contract guaranteed by the Liberty Provision. Conceding that a state’s Tenth Amendment police powers are broad, Peckham still maintained that they could not be stretched to present “an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” In a famous passage, Peckham’s states, “It might be safely affirmed that almost all occupations more or less affect the health. . . . But are we all, on that account, at the mercy of legislative majorities? . . . . The act is . . . but . . . an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best.” The Liberty Provision in this case therefore protects the liberty of both the employer and the employee to contract for work, and laws like that of New York are “mere meddlesome interferences” with individual economic rights.

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Numerous scholars have criticized Lochner (see, e.g., Colby and Smith 2015; Greene 2011),3 but Muller v. Oregon (1908) should be more to their liking. Oregon had enacted a law forbidding women from working more than ten hours a day in factories and laundries. However, rather than repeating the laissez-faire outcome in Lochner only three years earlier, here the justices held that the Liberty Provision of the Fourteenth Amendment’s Due Process Clause permitted a state to prohibit women from working that many hours a day. So why would some commentators criticize Muller? Primarily because Justice David Brewer’s unanimous majority opinion contained sexist reasoning when he wrote that long hours of physical work “tends to [have] injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.” This viewpoint justified state laws to protect women from working too many hours a day; still, Brewer’s opinion limited a woman’s right to contract out her work as she saw fit. The roller-coaster ride continued with Adkins v. Children’s Hospital (1923), as the Court “revived impressively” the Lochner decision (McCloskey 2016, 106). A minimum-wage law for women and children was in effect in Washington, DC, and the Court was asked to determine whether the Liberty Provision of the Due Process Clause of the Fifth Amendment prohibited it. Contrary to Muller, a 5–3 majority declared that Congress’s law passed for the District of Columbia did violate due process. Speaking for the Court, Justice George Sutherland says that since the Nineteenth Amendment’s ratification guaranteeing women the right to vote and other reforms promoting their rights, the legal differences between men and women had largely vanished, so the liberty of women to contract should be like men’s because they are “legally as capable of contracting for themselves as men.” In Morehead v. New York ex rel. Tipaldo (1936), the Court entered the substantive due process arena once more, tackling a New York state law requiring a minimum wage for women based on their work’s value. According to this law, a job requiring little skill would be paid less than one requiring greater skill. In response, a bare majority of the justices said the Fourteenth Amendment’s Liberty Provision did not permit a

3 See Gillman (1993) for one prominent revisionist interpretation of Lochner.

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state to require a minimum wage for adult women workers. Writing for the majority, Justice Pierce Butler observed that the New York statute was comparable to the District of Columbia law in Adkins, so applying Adkins, Butler maintained that the states lack the power to prohibit, change, or nullify the wage provisions of contracts between employers and adult women employees. But the laissez-faire Court continued to face widespread political opposition, and it eventually reversed itself in the milestone case of West Coast Hotel v. Parrish (1937), overruling Adkins. West Coast Hotel was another state minimum-wage law case, this time requiring a minimum wage for women and minors. Chief Justice Hughes’s 5–4 majority opinion noted that the Constitution does not explicitly mention a freedom to contract; instead, it says that no person shall be denied liberty without due process of law, and liberty had previously been interpreted by the laissez-faire Court to include a freedom to contract. However, rejecting Justice Peckham’s logic in Allgeyer and Lochner, Hughes writes, “in prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. . . . Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” Embracing the concept of the public interest in this way, Hughes took judicial notice of a compelling fact in this case—the exploitation of women and children workers during the Great Depression who lacked the bargaining power to ensure a living wage. Given these conditions, a state had the authority to promote the public interest by passing legislation to counter the problem of unconscionable employers. Chalk up another political victory for the New Deal. The roller-coaster ride had ended. In sum, relying on substantive due process, the laissez-faire Court had espoused the view that the right to contract is a form of economic liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. Leading free-market decisions announced during the Lochner period therefore reflected the judicial activism of a conservative Court during McCloskey’s second constitutional era, in contrast to the Warren Court’s liberal activism in civil rights and liberties during the third constitutional era. The Lochner period ended with a New Deal victory in West Coast Hotel, and since then, the nation has witnessed more liberal Supreme Court decisions in a wide variety of individual rights cases (see, e.g., Epstein and Walker 2020b; O’Brien and Silverstein 2020).

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The Takings Clause The Fifth Amendment’s Takings Clause guarantees that private property will not be taken for public use without just compensation, and the Supreme Court is naturally responsible for resolving related legal controversies. Figure 5.4 depicts the ideological direction of Supreme Court Takings Clause rulings, aggregated by term, between 1791 and 2018. The slope of the linear regression line, superimposed on the scatterplot, demonstrates that the Court’s Takings Clause decisions have grown slightly more favorable toward individual property owners across the three constitutional eras.4 They have also increased in frequency, as represented by the fact that observations are fairly sparse throughout the first constitutional era. And although the Court resolved many Takings Clause issues during the second constitutional era, the constitutional importance of the Takings Clause has been revitalized since the 1980s, as seen in four prominent decisions—Hawaii Housing Authority v. Midkiff (1984), Nollan v.

Fig. 5.4 Ideological direction in cases involving the takings clause, 1791–2018

4 See Chapter 1, note 3 concerning how liberal Takings Clause cases are defined by the US Supreme Court Database.

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California Coastal Commission (1987), Lucas v. South Carolina Coastal Council (1992), and Kelo v. City of New London, Connecticut (2005). The facts in Midkiff were unprecedented. Large landholders or the government owned practically all land in Hawaii in the 1960s, so Hawaii passed a law to rectify this land-tenure system by stipulating that the Hawaii Housing Authority (HHA) could condemn residential tracts of land and transfer ownership to persons leasing it when a sufficient number of tenants in an area filed condemnation applications. If HHA hearings established that it would effectuate the act’s purposes, the agency could buy the land at prices determined by negotiations with landowners or by a condemnation trial. Given these extraordinary facts, the Court unanimously agreed that Hawaii could take, with just compensation, title in real property from lessors and transfer it to lessees to reduce the concentration of property ownership in the state. In her majority opinion, Justice Sandra Day O’Connor says that the Court had “never held a compensated taking to be proscribed by the Public Use Clause,” so largely for this reason the majority upholds the Hawaii law. This was a classic exercise of the police power because the land oligopoly in Hawaii had “created artificial deterrents to the normal function of the state’s residential land market and forced thousands of individual homeowners to lease, rather than buy, the land underneath their homes.” Lucas was a different type of case. Lucas had purchased two oceanfront lots on an island near Charleston, South Carolina, in order to build single-family homes on them. Two years later, South Carolina passed a law giving the South Carolina Coastal Council the power to protect the shoreline against erosion and other environmental threats. The Coastal Council subsequently declared that Lucas’s lots were located in a critical area near beaches and outlawed construction on them. Here, writing for a 6–3 majority, Justice Antonin Scalia held that, in light of the Public Use Clause of the Fifth Amendment, when government regulations require a property owner to sacrifice all economically beneficial uses of his property in the name of the common good, a taking occurs that requires full compensation. According to Scalia, “where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with,” which was not true in this case. By contrast, in Nollan the petitioner challenged a government regulation providing an easement across his California beachfront property

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based on Fifth Amendment grounds. The Court majority ruled, 5–4, that a state may not require beachfront property owners to transfer to the public an easement across their property as a condition for receiving a building permit if the purpose of the state requirement is to provide a continuous strip of publicly accessible beach along the coast and property owners are not paid for easements. Justice Scalia’s majority opinion notes that the taking of private property is within the bounds of the Fifth Amendment if it “‘substantially advance[s] legitimate state interests’ and does not ‘den[y] an owner economically viable use of his land.’” Even so, in this case the California Coastal Commission sought to provide “a continuous strip of publicly accessible beach along the coast,” and the state’s power of eminent domain cannot be used to advance this objective. Finally, Kelo was a controversial ruling concerning New London, Connecticut, which had experienced an extreme economic decline through the years. In response, a private nonprofit body known as the New London Development Corporation (NLDC) was called upon to help the city plan new economic development. When NLDC recommended an especially bold proposal to revive New London, existing property owners filed suit under the Takings Clause, claiming their properties were being taken not for public use but to sell to private developers. With Justice John Paul Stevens speaking for a 5–4 majority, the Court declared that government’s power of eminent domain to condemn and take private property did not offend the Constitution, provided that its objective was to advance the economic development of an entire community. Stevens argues that the taking in this case promotes the public purpose, the city council concluded that the area of land under consideration was distressed enough to justify a program of economic rejuvenation, and the Supreme Court should defer to that decision. Considering its overall design, the Fort Trumbull Municipal Development Plan satisfies the public use requirement of the Fifth Amendment.

Judicial Impact How did these economic rights decisions resonate in the American political and legal system? According to Goldman (1991, 385), conservative newspapers severely criticized Munn v. Illinois in the short run, yet its long-run impact was much greater because the “business-affectedwith-a-public-interest doctrine [was] established.” By contrast, Chicago,

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Milwaukee and St. Paul Railroad Company v. Minnesota raised “uncertainty over whether Munn v. Illinois was overturned” and “substantive due process [was again] used to restrict government economic regulation” (385). Lochner confirmed that uncertainty, and “many state court decisions declared state labor legislation unconstitutional on [its] authority.” Moreover, in the long run Lochner provided an “extreme defense of liberty of contract.” Only three years later, Muller v. Oregon held out hope that the laissezfaire Court might modify its ideological direction. As Goldman writes, “Over the subsequent nine years [following Muller], 39 states enacted new or toughened existing laws regulating the work of women,” and in the long run, Muller “provided positive precedent for sustaining social legislation” (385). Still, the laissez-faire Court’s erratic decisional pattern continued in 1933, when “the Lochner doctrine was resurrected” in Adkins v. Children’s Hospital . Further, Morehead v. New York ex rel. Tipaldo was “greeted unfavorably,” and the “Court majority [was] seen as insensitive to the hardships caused by the Depression.” The conservative Court’s roller-coaster ride ended with West Coast Hotel, as the New Deal ultimately lost some battles but won the war. In Goldman’s words, West Coast Hotel “signaled an end to using substantive due process to strike down economic and social welfare policy” (383).

The Contract Clause Fletcher v. Peck, 6 Cranch 87 (1810) Facts: The Georgia legislature granted approximately thirty-five million acres of land, in what is now Alabama and Mississippi, to four land companies in 1795. This vast area along the Yazoo River cost speculators only about $500,000 because they bribed numerous Georgia state legislators. When the scandal was made public, Georgia voters turned legislators out of office who had voted for the grants, and the new legislature revoked the original grants through a Rescinding Act in 1796. In the meantime, innocent persons had purchased some of the land in good faith and now had dubious title to the property. By contrast, the state of Georgia stood by its Rescinding Act, claiming the land still belonged to it. Robert Fletcher sued John Peck to recuperate money he paid for some of the land because Peck’s title was now apparently defective under the Rescinding Act. Fletcher lost in state court and appealed to the U.S. Supreme Court.

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Issue: In light of the Contract Clause of Article I, Section 6, is a public land grant, authorized by a state legislature, a contract and not rescindable? Decision: Yes Vote: Unanimous Majority Opinion: Chief Justice Marshall uses Fletcher to establish federal power over the states. He contends that when “a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights.” Georgia, like other states, is not a separate sovereign; it is part of a nation, the nation’s Constitution is supreme over state laws, and the nation’s Constitution prohibits the states from impairing the obligation of contracts. Marshall maintains that a grant is one type of contract within the meaning of Article I, Section 10 and that, in fact, the Contract Clause applies to contracts of all kinds. The American people, in approving the Contract Clause for the Constitution, “manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.” The Georgia Rescinding Act, as a result, violated the Contract Clause. New Jersey v. Wilson, 7 Cranch 164 (1812) Facts: New Jersey granted lands to Native Americans in 1758. The grant provided that the land could never be sold by the Indians nor taxed by New Jersey, but in 1804 the Indians sold the land to others, with New Jersey’s permission. New Jersey then revoked the tax exemption and taxed the new owners, arguing the exemption applied only to the Indians. The new owners in turn challenged the tax on grounds that it abridged the original contract of 1758. New Jersey lost in the lower court and appealed to the Supreme Court. Issue: In light of the Contract Clause of Article I, Section 10, is a state grant that provides a tax exemption to one party a contract and thus not rescindable? Decision: Yes Vote: Unanimous Majority Opinion: Chief Justice Marshall asserts that the 1758 grant plainly was a contract within the meaning of the Contract Clause, and the tax exemption attached to whomever owned the land. The land was sold

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with the permission of the New Jersey legislature, and the new purchasers must therefore receive the previous owners’ rights. Dartmouth College v. Woodward, 4 Wheaton 517 (1819) Facts: The King of England granted a charter to Dartmouth College in 1769 and established a board of trustees to oversee it. Ten years later, John Wheelock was named Dartmouth’s president, but he soon became embroiled in bitter disagreements with the trustees. Both political parties in New Hampshire were drawn into the controversy, with Republicans supporting Wheelock and Federalists backing the board of trustees. The trustees eventually dismissed Wheelock in 1815, and the arena of conflict shifted to the state legislature. In 1816, the legislature, controlled by Republicans, passed a new law amending Dartmouth’s original charter. It converted Dartmouth from a private college to a state university and created a new board of trustees. The old trustees rejected the changes but were removed, even though most faculty and students supported them. As a result, the old trustees filed suit against William Woodward, an official of the new board, but the state courts decided in favor of Woodward. The old trustees then appealed to the U.S. Supreme Court. Issue: In light of the Contract Clause of Article I, Section 10, does a state statute converting a private college into a public institution and creating a new board of trustees impair the original charter, even if the contract was originally drafted prior to American independence from England? Decision: Yes Vote: 6–1 Majority Opinion: Chief Justice Marshall insists that the original charter for Dartmouth College was clearly a contract within the meaning of Article I, Section 10. In reaching this conclusion, Marshall observes that the Contract Clause is not extremely broad, though it does limit the states from encroaching on numerous kinds of property contracts; otherwise, the states could “[weaken] the confidence of man in man, and [embarrass] all transactions between individuals.” Indeed, Marshall thinks of contracts as “sacred” arrangements meant to last forever. Marshall speaks of the nature of a corporation as “an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.” A corporation is designed to survive

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over time through individuals who act to promote its objectives. In this context, then, Marshall describes the charter for Dartmouth College: “It appears that Dartmouth College is an eleemosynary institution, incorporated for the purpose of perpetuating the application of the bounty of the donors, to the specified objects of that bounty; that its trustees or governors were originally named by the founder, and invested with the power of perpetuating themselves; that they are not public officers, nor is it a civil institution, participating in the administration of government; but a charity-school, or a seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation.” The original charter, according to Marshall, was a contract for property and valuable considerations, and its original parties were the Crown, the donors, and the trustees. Beyond that, it was a contract under the meaning of Article I, Section 10, which was impaired by the New Hampshire law converting Dartmouth into a state institution and altering its governing body. The original charter’s intention was that all power would be forever in the hands of the established board of trustees, and the American Revolution did not affect the terms of that original charter. New Hampshire’s law therefore abridged the Constitution’s Contract Clause. Charles River Bridge v. Warren Bridge, 11 Peters 420 (1837) Facts: In 1785, the Massachusetts legislature granted the Charles River Bridge Company a charter to build a bridge over the Charles River and collect tolls for forty years. Nothing in the charter expressly gave Charles River Bridge the exclusive right to construct a bridge, although it was implied. Charles River Bridge, having spent large sums of money to build the bridge, later sued the Warren Bridge Company after the Massachusetts legislature granted a second charter in 1824 to build a second bridge. This new charter permitted Warren Bridge to charge a toll for six years, after which time the bridge would become state property. Charles River Bridge claimed a violation of the Contract Clause, lost in the Massachusetts Supreme Court, and appealed to the U.S. Supreme Court. Issue: In light of the Contract Clause of Article I, Section 10, may a state enter into new contractual obligations with a private company, even if they undermine the rights of an existing contract holder with the state, if the original contract did not provide exclusive rights and the new contract promotes the public interest?

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Decision: Yes Vote: 4–3 Majority Opinion: Chief Justice Taney maintains that government’s function is to advance the public’s happiness and prosperity, so the Massachusetts legislature had the power to take away the franchise from Charles River Bridge because it concluded that “the public interest and convenience would be better promoted by a bridge in the same place.” To Taney, this meant that government grants must be interpreted strictly, that any rights belonging to Charles River Bridge could not be created by implication, and that vagueness in charter grants must be decided in favor of the states and the public. This case does not deal with a relationship between equals, as in private contracts. A state legislature is sovereign, having the power to determine what is in the public interest and to override the rights of corporations in order to promote that public interest. “The continued existence of a government,” Taney writes, “would be of no great value, if by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform, transferred to the hands of privileged corporations.” The original contract between Massachusetts and Charles River Bridge did not stipulate any exclusive privileges, and exclusive rights cannot be implied from the contract of this kind. Taney argues, “The rule of construction” is that “in charters of this description, no rights are taken from the public or given to the corporation, beyond those which the words of the charter, by their natural and proper construction, purport to convey. There are no words which import such a contract as the plaintiffs in error contend for, and none can be implied.” Almost all states have adopted this rule of law concerning turnpikes and the rights of corporations, and Taney consequently upholds the Massachusetts Supreme Court. Dissenting Opinion: Justice Story claims that common law and common sense suggest that the original contract implied exclusive rights; otherwise, Charles River Bridge Company would have never entered into the contract and invested its resources, knowing the state would allow and charter a second bridge that would be free to the public after six years. As a result, Story views the original contract as a contract between equals—like a private contract—and the state cannot violate it later.

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Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934) Facts: John Blaisdell had mortgaged his home in Minneapolis to the Home Building and Loan Association, which foreclosed when he defaulted on his mortgage payments during the Great Depression. Blaisdell then sought to extend his mortgage under the Minnesota Mortgage Moratorium Act of 1933, which allowed temporary extensions from foreclosures due to the economic crisis. A local court agreed to extend the period before foreclosure for two years if Blaisdell paid a minimum monthly payment, and the Minnesota Supreme Court affirmed. The Building and Loan appealed to the U.S. Supreme Court. Issue: In light of the Contract Clause of Article I, Section 10, may a state law extend the period of default in a mortgage contract because of extreme economic conditions if it promotes the public interest? Decision: Yes Vote: 5–4 Majority Opinion: Chief Justice Hughes emphasizes how the Contract Clause should be interpreted during times of emergency. Power is neither created nor enhanced during an emergency, but “emergency may furnish the occasion for the exercise of power.” This case therefore presents the question of whether Minnesota violated the Contract Clause by temporarily extending the period of default on mortgages during the Great Depression. The Contract Clause binds parties to an agreement, yet it is not absolute, and states have the power to protect the public interest regardless of the Contract Clause. As a result, Hughes indicates that the “question is not whether the legislative action affects contracts incidentally, or directly or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end.” Given an emergency such as the Great Depression, the state was justified in temporarily restraining the enforcement of contracts so as to protect the public interest. The Constitution is, in other words, a living, changing document that does not always mean precisely what its framers intended; it must adapt to changing times and to new crises the nation encounters. Viewing this case in light of the nation’s entire experience, Hughes concludes that the public interest during the Great Depression was so pressing as to permit the Minnesota legislature to draw on its reserved power to protect “the vital interests of the community” by passing the

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Minnesota Mortgage Moratorium Act. It was a legitimate and reasonable action under the circumstances, intended to soften momentarily the effects of an economic emergency. Dissenting Opinion: Justice Sutherland sees the majority opinion as one that significantly encroaches on the sanctity of contracts. The state police power, inherent in the Tenth Amendment, does not permit a state to impair the requirements of a contract, regardless of whether the nation is facing an economic depression. United States Trust Company of New York v. New Jersey, 431 U.S. 1 (1977) Facts: New York and New Jersey entered an interstate compact in 1921 to create the Port Authority of New York to promote and coordinate transportation and commerce in the New York City metropolitan area. The Port Authority was principally financed by bonds purchased by private investors and could liquidate its assets, if necessary, to pay for the investor-held bonds. The Port Authority then purchased a railroad in 1962, thereby expanding its holdings. At that time, the two states also passed statutes agreeing to limit the Port Authority’s ability to make future purchases with assets committed as security for the bonds. Wanting to expand the Port Authority’s property again in 1974, New York and New Jersey passed laws repealing their legal agreement not to spend resources committed as security for bonds. The United States Trust Company, a bondholder of the Port Authority, then filed suit, claiming that New Jersey had violated the Contract Clause. The United States Trust Company lost in the New Jersey courts, and the Supreme Court granted certiorari. Issue: In light of the Contract Clause of Article I, Section 10, may states repeal a statutory covenant between them that limits a Port Authority’s ability to subsidize rail-passenger transportation from revenues and reserves committed as security for bonds purchased by private investors if it promotes the public good? Decision: No Vote: 4–3 Majority Opinion: Justice Blackmun points out that the trial court said that New Jersey could repeal the 1962 agreement under its police power “because the repeal served important public interests in mass transportation, energy conservation, and environmental protection. Yet the

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Contract Clause limits otherwise legitimate exercises of state legislative authority, and the existence of an important public interest is not always sufficient to overcome that limitation.” A state may impair the obligation of contract, Blackmun observes, “if it is reasonable and necessary to serve an important public purpose.” Still, it is not simply up to a state to determine what is reasonable and necessary. Here, the state insists that repealing the interstate agreement addressed a legitimate public concern, but the Supreme Court majority concludes that impairing the contract was not reasonable and necessary. In Blackmun’s words, “a State cannot refuse to meet its legitimate financial obligations simply because it would prefer to spend the money to promote the public good rather than the private welfare of its creditors.” New Jersey intended to encourage the use of public transportation during the energy shortage of 1974 by improving commuter railroad service and urged “that repeal of the 1962 covenant was necessary to implement this plan because the new mass transit facilities could not possibly be self-supporting and the covenant’s ‘permitted deficits’ level had already been exceeded.” Blackmun spurns the repeal, however, as neither reasonable nor necessary. New Jersey could have selected a more modest approach of changing the covenant in part rather than repealing it altogether, and it could have adopted other means for achieving its goals. Beyond that, the repeal was not reasonable because it had long been known that publicly owned railroads tended to produce substantial deficits. The repeal therefore violated the Contract Clause. Dissenting Opinion: Justice Brennan maintains that for over a century the Supreme Court had announced that state legislatures could promote the public health, safety, and welfare despite private rights protected by contracts. This holding flies in the face of that well-established trend and should not “be read as suggesting that the States should blithely proceed down the path of repudiating their obligations, financial or otherwise.” Allied Structural Steel Company. v. Spannaus, 438 U.S. 234 (1978) Facts: Allied Structural Steel, based in Illinois, had an office in Minnesota with thirty employees. Its pension plan covered employees after a required length of service and age, yet pension rights did not extend to those who quit their jobs or were discharged prior to meeting these requirements. The Minnesota Private Pension Benefits Protection Act of 1974 called into question this pension plan. When Allied Structural Steel shut

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its office in Minnesota, thereby firing nine workers with over ten years of service but too few to meet the company’s pension plan requirements, the state said it owed about $185,000 to the state based on the 1974 law. The company sued Warren Spannaus, the Minnesota attorney general, lost in the district court, and the Supreme Court granted certiorari. Issue: In light of the Contract Clause of Article I, Section 10, may a state law prohibit an out-of-state company from discontinuing a pension plan or leaving the state without paying a large fee if its pension funds are inadequate to compensate all workers with at least ten years of service? Decision: Yes Vote: 5–3 Majority Opinion: Justice Stewart’s majority opinion was one of the few post-New Deal Contract Clause decisions of the Supreme Court to restrain state economic and welfare regulations. His opinion argues that the Minnesota law “superimpose[ed] pension obligations upon the company conspicuously beyond those that it had voluntarily agreed to undertake” and that this exercise of the police power went beyond what the Tenth Amendment permitted. Stewart indicates five criteria, enunciated in Home Building and Loan Association v. Blaisdell (1934), for judging whether the Minnesota law was constitutional and explains that it failed to meet them. As a result, the state law had a severe effect on the company’s pension plan, “nullif[ying] express terms of the company’s contractual obligations and impos[ing] a completely unexpected liability in potentially disabling amounts.” Moreover, Minnesota demonstrated no “important general societal problem” and faced no emergency when it impaired the contract. Dissenting Opinion: Justice Brennan claims that the Minnesota law violated neither the Contract Clause nor the Due Process Clause of the Fourteenth Amendment.

Substantive Due Process and the Laissez-Faire Court Munn v. Illinois, 94 U.S. 113 (1877) Facts: Ira Munn was fined $100 for violating an 1871 Illinois law regulating the rates charged for storing grain. Similar to laws passed in other midwestern states, the law was a response to political pressure exerted by farmers to control the unusually high prices charged by grain elevators

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and railroads with virtual monopolies. The state courts upheld the Illinois law, and Munn appealed to the Supreme Court. Issue: In light of the Property Provision of the Due Process Clause of the Fourteenth Amendment and the state police power under the Tenth Amendment, may a state regulate the storage of grain in warehouses, require an operating license for grain warehouses, and set the maximum rates that grain elevator owners may charge if it promotes the public interest? Decision: Yes Vote: 7–2 Majority Opinion: Chief Justice Waite acknowledges that the notion that one may not be deprived of property without due process of law is hundreds of years old and is even found in the Magna Charta. He thinks, though, that the common good may require all people to forfeit some of their rights and privileges, including the use of private property, in a way that needlessly harms others; indeed, the police power of the Tenth Amendment suggests it is state governments’ responsibility to promote the common good and therefore, in some instances, fix maximum rates that may be charged. Support for this proposition is also found in the common law. As a result, Waite concludes that “property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created.” Such a state regulation does not necessarily violate the owner’s right to property under the Due Process Clause of the Fourteenth Amendment, although sometimes it may. In this case, giant grain warehouses in Chicago had a virtual monopoly on grain storage before the grain was shipped west. If Illinois allowed these warehouses to go unregulated, ignoring the common good, it would be neglecting its responsibility to promote the public welfare—a responsibility inherent in the Tenth Amendment. Dissenting Opinion: Justice Field insists that the majority opinion subverts private property rights that the Constitution has previously protected.

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Chicago, Milwaukee and St. Paul Railroad Company. v. Minnesota, 134 U.S. 418 (1890) Facts: Minnesota passed a law in 1877 establishing a commission to regulate the rates that railroads and warehouses charge. One complaint the commission received alleged that the Chicago, Milwaukee, and St. Paul Railroad Company was setting unreasonable prices for transporting milk. After a hearing the commission decided a lower charge would be reasonable. Losing its case in the Minnesota courts, the railroad appealed to the U.S. Supreme Court. Issue: In light of the Property Provision of the Due Process Clause of the Fourteenth Amendment, may a state legislature create a commission with the judicially unreviewable power of determining rates that owners of railroads and warehouses may charge, thereby denying the owners a basic hearing before the commission? Decision: No Vote: 6–3 Majority Opinion: Justice Blatchford accepts the finding of the Minnesota Supreme Court that the rates recommended by the commission were “final and conclusive as to what are equal and reasonable charges; that the law neither contemplates nor allows any issue to be made or inquiry to be had as to their equality or reasonableness in fact; [and] that, under the statute, the rates published by the commission are the only ones that are lawful.” In other words, he says, “although the railroad company is forbidden to establish rates that are not equal and reasonable, there is no power in the courts to stay the hands of the commission, if it chooses to establish rates that are unequal and unreasonable.” This, Blatchford concludes, deprives a company of its day in court and a fair hearing, thereby denying it procedural due process under the Fourteenth Amendment: “No hearing is provided for, no summons or notice to the company before the commission has found what it is to find and declared what it is to declare, no opportunity [is] provided for the company to introduce witnesses before the commission, in fact, nothing which has the semblance of due process of law.” Beyond that, Blatchford contends, the “question of reasonableness of the rate of charge for transportation . . . is eminently a question for judicial investigation, requiring due process of law for its determination. If the company is deprived of the power of charging reasonable rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial

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machinery, it is deprived of the lawful use of its property itself, without due process.” Dissenting Opinion: Justice Gray claims that the majority essentially overrules Munn v. Illinois (1877) and several related precedents. Allgeyer v. Louisiana, 165 U.S. 578 (1897) Facts: The Louisiana legislature passed a law prohibiting individuals and businesses from purchasing property insurance from a company not licensed to conduct business in Louisiana and not having a representative in the state. The intent of the law was to prevent unethical insurance companies from taking advantage of the people of Louisiana. After Allgeyer and Company did business with an out-of-state firm and was convicted for abridging the state law, it appealed to the U.S. Supreme Court, which granted certiorari. Issue: In light of the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, may a state legislature pass a law preventing its citizens from entering into contracts with out-of-state companies? Decision: No Vote: Unanimous Majority Opinion: Justice Peckham maintains that Louisiana clearly had the power to forbid out-of-state insurance companies from operating within its borders. In this case, though, a Louisiana businessman contacted a New York firm about insurance, not vice versa. Beyond that, it is a citizen’s right to do precisely that under the Liberty Provision of the Due Process Clause of the Fourteenth Amendment because the notion of liberty includes a number of different rights: “to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential.” Hence, Louisiana law could not forbid one of its citizens from entering into a contract with an out-of-state business. Lochner v. New York, 198 U.S. 45 (1905) Facts: During the late nineteenth century, many bakery workers suffered under unhealthy working conditions—poorly constructed buildings lacking good sanitation facilities, smelly and sweaty during warm weather

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and inadequately ventilated the year round so that flour dust and fumes normally filled the air. The New York state legislature therefore passed a maximum-hour work law for bakery and confectionery employees, known as the Bakeshop Act of 1897, to protect their health and welfare. This law prevented bakery employees from working more than sixty hours per week or an average of more than ten hours per day. Joseph Lochner required one employee in his Utica bakery to work over sixty hours a week and was found in violation of the law. After losing in the state courts, Lochner appealed to the U.S. Supreme Court. Issue: In light of the Liberty Provision of the Due Process Clause of the Fourteenth Amendment and the police power of the Tenth Amendment, may a state pass a law prohibiting a bakery employee from working more than ten hours per day and sixty hours per week? Decision: No Vote: 5–4 Majority Opinion: Justice Peckham emphasizes that the New York statute placed an absolute prohibition on the employer and that employees could not work more than the prescribed hours even if they needed extra earnings. This, he claims, violates the right to contract, a liberty protected by the Due Process Clause of the Fourteenth Amendment. True, the state’s Tenth Amendment police powers are broad, but they may not be stretched to present “an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” The Liberty Provision of the Due Process Clause therefore protects the liberty of both the employer and the employee to contract for work. Peckham believes the health, safety, and welfare of the public is not affected in this case, only that of the bakers. Moreover, he notes, “We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee.” As a result, laws such as that of New York are “mere meddlesome interferences” with individual rights, exceeding the proper scope of a state’s police power; indeed, sometimes state legislatures may pass them not to protect the public health, safety, and welfare but simply to regulate relations between employers and employees. “Under such circumstances,” Peckham writes, “the freedom of master and employee to contract with

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each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the federal Constitution.” Dissenting Opinions: Justice Holmes maintains that the majority opinion obviously reflects the laissez-faire philosophy of the Court and asserts that the Fourteenth Amendment “does not enact Mr. Herbert Spenser’s Social Statics.” The Court had recently struck down similar state laws, but this type of social legislation should be upheld unless it violates fundamental rights or principles. Justice Harlan also dissents, claiming that federal or state laws should only be declared unconstitutional if they are “plainly and palpably in excess of legislative power,” a condition not met in this case. Contrary to the majority, Harlan believes the New York law was passed to protect the health of bakery workers and was not an unreasonable means for accomplishing that ends. Adair v. United States, 208 U.S. 161 (1908) Facts: Relying on its power to regulate interstate commerce, Congress passed a labor statute in 1898 prohibiting interstate railroad companies from using “yellow-dog contracts”—contracts under which the railroads could demand that employees pledge not to join a union and workers could be dismissed if they reneged on their vow. William Adair, an official of the Louisville and Nashville Railroad, fired a locomotive fireman who had signed a yellow-dog contract in this case. Adair was found guilty of disobeying the 1898 law and appealed to the Supreme Court. Issue: In light of the Liberty and Property Provisions of the Due Process Clause of the Fifth Amendment, may Congress prohibit interstate railroads from placing in their labor contracts a provision stipulating that an employee will not join a labor union? Decision: No Vote: 6–2 Majority Opinion: Justice Harlan highlights the fact that liberty under the Fifth Amendment’s Due Process Clause includes the right to enter into contracts and to contract for the labor of others. Furthermore, no contract “can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good. .. without stopping to consider what would have been the rights of the railroad company under

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the Fifth Amendment.” In this case, it was “Adair’s right—and that right inhered in his personal liberty, and was also a right of property—to serve his employer as best he could, so long as he did nothing that was reasonably forbidden by law as injurious to the public interests.” Congress simply lacks the power to force a business to accept or retain a person’s services. As a result, an employer’s right to dissolve a labor agreement is the same as an employee’s right to do so. “In all such particulars the employer and the employee have equality of right.” Nor did Congress’s power to regulate commerce among the states justify this law. Dissenting Opinion: Justice Holmes believes this law is a limited interference in the right to contract. Muller v. Oregon, 208 U.S. 412 (1908) Facts: Oregon passed a law prohibiting women from working more than ten hours a day in factories and laundries. A laundry owner, Curt Muller, contested the law on grounds that it violated the liberty to contract under the Due Process Clause of the Fourteenth Amendment. After losing in the lower courts, Muller appealed to the Supreme Court. Issue: In light of the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, may a state pass a law prohibiting women from working in laundries and factories for more than ten hours a day? Decision: Yes Vote: Unanimous Majority Opinion: Justice Brewer indicates that the Oregon legislation reflects the general view that women, because of their physical characteristics, should not work long hours performing physical work. Relying on sexist reasoning, Brewer wrote that long hours of physical work “tends to [have] injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.” This justified state laws to protect women from working too many hours a day. At the same time, of course, his opinion circumscribed an individual woman’s right to contract out her work as she saw fit—whether it be for over ten hours a day or not.

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Adkins v. Children’s Hospital, 261 U.S. 525 (1923) Facts: Congress created a Minimum Wage Board in 1918 and gave it the power to establish minimum wages for women and children in the District of Columbia. Children’s Hospital, in DC, secured an injunction to halt the enforcement of the act because it had female employees who willingly worked for lower wages. It argued the law violated its liberty to contract with employees. The petitioner, a member of the board, appealed to the Supreme Court. Issue: In light of the Liberty Provision of the Due Process Clause of the Fifth Amendment, may Congress pass a law that fixes minimum wages for women in the District of Columbia? Decision: No Vote: 5–3 Majority Opinion: Justice Sutherland says that only under unusual circumstances may a legislature abridge a contract. Beyond that, since the ratification of the Nineteenth Amendment guaranteeing women the right to vote and other reforms promoting their rights, the legal differences between men and women had largely vanished, and the Court should recognize this fact. The liberty of women to contract should be like men’s because they are “legally as capable of contracting for themselves as men.” Congress’s law in this case was also overly broad and ultimately unconstitutional because “it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with the business, or the contract or the work the employee engages to do. The declared basis. .. is not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to ensure her subsistence, health and morals.” According to Sutherland, this was an arbitrary exercise of congressional power that violates the Fifth Amendment. Dissenting Opinions: Chief Justice Taft claims that the Court’s role in the American legal system is not to declare acts of Congress unconstitutional simply because the justices’ economic views differ from those reflected in federal legislation. Justice Holmes dissents as well. He says that more than the Nineteenth Amendment is necessary before he will believe “there are no differences between men and women, or that legislation cannot take those differences into account.”

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Morehead v. New York Ex Rel. Tipaldo, 298 U.S. 587 (1936) Facts: New York State enacted a law requiring a minimum wage for women based on the value of the work provided. A menial job, requiring little skill, would command less compensation than one requiring greater skill. Joseph Tipaldo, a New York laundry manager, was prosecuted for violating the law, won his case in the lower courts, and appeal was taken to the Supreme Court. Issue: In light of the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, may a state require a minimum wage for adult women workers? Decision: No Vote: 5–4 Majority Opinion: Justice Butler emphasizes that the New York statute was very similar to the District of Columbia law in Adkins v. Children’s Hospital (1923). The Supreme Court announced in Adkins that Congress’s minimum-wage statute for adult working women in Washington, DC, breached the Liberty Provision of the Due Process Clause of the Fifth Amendment. Applying Adkins to this case, Butler asserts that the states lack the power to prohibit, change, or nullify the wage provisions of contracts between employers and adult women employees. West Coast Hotel v. Parrish, 300 U.S. 379 (1937) Facts: Elsie Parrish sued her employer, West Coast Hotel, for paying her less than the minimum wage required by a Washington state law, which provided for a minimum wage for both women and minors. West Coast Hotel challenged the state minimum-wage law, the Washington courts upheld it, and the hotel appealed to the Supreme Court. Issue: In light of the Liberty Provision of the Due Process Clause of the Fourteenth Amendment and the police power of the Tenth Amendment, may a state, in the public interest, require a minimum wage for women and children? Decision: Yes Vote: 5–4 Majority Opinion: Chief Justice Hughes overrules Adkins v. Children’s Hospital (1923), which announced that Congress could not pass a law fixing minimum wages for women in the District of Columbia. Hughes points out that the Constitution does not explicitly mention the freedom

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to contract, on which the majority relied in Adkins. It says, instead, that no person shall be denied liberty without due process of law, and liberty had previously been interpreted to include a freedom to contract. At the same time, Hughes urges, the police power may restrict, in the public interest, the freedom to contract. Accordingly, Congress had limited employment in underground mines and manufacturing industries’ work hours. Hughes recognizes a compelling consideration in this case: the exploitation of women and children workers who, during the Great Depression, lacked significant bargaining power to ensure a living wage. Given this situation, a state is authorized to promote the public interest by passing legislation to counter the problem of unconscionable employers. Dissenting Opinion: Justice Van Devanter argues that the Constitution’s meaning cannot change with fluctuations in the economy. Urging judicial restraint, he maintains that the Court’s function is limited to constitutional interpretation; it lacks the power to amend the Constitution. If the Constitution does not permit certain types of laws to stand, the answer is to amend the Constitution. The Court should therefore abide by precedent and uphold Adkins. Williamson v. Lee Optical Company, 384 U.S. 483 (1955) Facts: In 1953, Oklahoma passed a statute making it illegal for persons who were not licensed to be an optometrist or an ophthalmologist from fitting lenses for eyeglasses and other optical appliances. Opticians, though, could fit lenses only with a prescription from an optometrist or ophthalmologist. Lee Optical Company claimed this law violated the Due Process Clause of the Fourteenth Amendment, won its case in district court, and Mac Williamson, the Oklahoma attorney general, appealed to the Supreme Court. Issue: In light of the Property Provision of the Due Process Clause of the Fourteenth Amendment, may a state law prohibit anyone other than a licensed optometrist or ophthalmologist from fitting eyeglasses or other optical appliances to the face? Decision: Yes Vote: Unanimous Majority Opinion: Justice Douglas underscores the fact that legislatures have the power to pass statutes of this kind to protect the public health, safety, and welfare, and the courts should not second-guess the

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wisdom of a legislature. Thus, the era of Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) had ended. In Douglas’s words, “The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” Pennell v. City of San Jose, 485 U.S. 1 (1988) Facts: In 1979, San Jose, California, passed a rent-control law primarily to prevent landlords from imposing unreasonable rent increases during times of housing shortages. It allowed landlords to increase rents automatically as much as 8 percent each year, and a public hearing to review the reasonableness of increases was necessary only if a tenant protested the raise. The landlord in this case, Richard Pennell, challenged the constitutionality of the San Jose ordinance, lost in the California Supreme Court, and the U.S. Supreme Court granted certiorari. Issue: In light of the Property Provision of the Due Process Clause of the Fourteenth Amendment, may a city pass a rent-control law that allows landlords to automatically raise rents by a certain percent each year and requires a hearing on the reasonableness of an increase only if a tenant claims a hardship? Decision: Yes Vote: 6–2 Majority Opinion: Chief Justice Rehnquist describes the legal criteria for judging the validity of a rent-control law under the Due Process Clause: it is unconstitutional if “arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt.” In this case, Pennell insisted that a local legislative body should not consider a lowincome tenant’s hardship when setting rent controls. Rehnquist spurned Pennell’s argument, observing that protecting consumers’ welfare had long been deemed a proper goal for local governments. The hearing officer in this case had weighed numerous factors required by the law in reaching a decision, and they were properly balanced. This scheme for determining a reasonable rent therefore did not violate the Due Process Clause of the Fourteenth Amendment because it “represents a rational attempt to accommodate the conflicting interests of protecting tenants from burdensome rent increases while at the same time ensuring that landlords are guaranteed a fair return on their investment.”

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Concurring in part and dissenting in part: Justice Scalia agrees that this case involves no violation of the Due Process Clause, yet he believes the hardship provision of the San Jose law constitutes a taking of private property without just compensation under the Fifth and Fourteenth Amendments. The San Jose case simply presented a situation in which local rent control was used to create “a welfare program privately funded by those landlords who happen to have ‘hardship’ tenants.”

The Takings Clause Nollan v. California Coastal Commission, 483 U.S. 825 (1987) Facts: The California Coastal Commission regulated beachfront construction and reconstruction. James Nollan challenged its regulations on Fifth Amendment grounds, claiming that the commission could not require property owners to transfer to the public an easement across their property as a condition for receiving a building permit. Nollan won his case in the California Superior Court, that ruling was reversed, and the Supreme Court granted certiorari. Issue: In light of the Tenth Amendment police power and the Public Use Clause of the Fifth Amendment, as applied to the states through the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, may a state require that beachfront property owners transfer to the public an easement across their property as a condition for receiving a building permit if the purpose of the state requirement is to provide a continuous strip of publicly accessible beach along the coast and property owners are not paid for easements? Decision: No Vote: 5–4 Majority Opinion: Justice Scalia observes that taking private property is within the bounds of the Fifth Amendment if it “‘substantially advance[s] legitimate state interests’ and does not ‘den[y] an owner economically viable use of his land.’” Here, the California Coastal Commission says that such legitimate state interests include “protecting the public’s ability to see the beach, assisting the public in overcoming the ‘psychological barrier’ to using the beach created by a developed shorefront, and preventing congestion on the public beaches.” Yet Scalia insists that the commission is attempting to achieve another objective unrelated to land

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use regulation—namely, to provide “a continuous strip of publicly accessible beach along the coast.” The state’s power of eminent domain may not be used to advance this objective; otherwise it must pay property owners for easements across their property. Dissenting Opinions: Justice Brennan concludes that the California Coastal Commission’s regulations are reasonable given the state’s police powers and that “there is a reasonable relationship between the public benefit and the burden created by appellants’ development.” The public has a right to ocean access, and this case does not present a valid takings claim. Justice Blackmun dissents too, concluding that the police power permits the commission’s regulation, which apparently has no economic effect on Nollan’s property values. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) Facts: In the 1960s, large landholders or the government owned practically all land in Hawaii. As a result, Hawaii passed the Land Reform Act of 1967 to correct this land-tenure system. It stipulated that, in order to promote the public welfare, the Hawaii Housing Authority (HHA) could condemn residential tracts of land and transfer ownership to persons leasing it when enough tenants in an area filed condemnation applications. If HHA hearings established that it would effectuate the purposes of the act, the agency could buy the land at prices determined through negotiations with landowners or by a condemnation trail. Negotiations stalled in this case, and a landowner sued in federal court. The district court upheld the Land Reform Act in the face of a Fifth Amendment challenge, the Court of Appeals reversed, and the Supreme Court granted certiorari. Issue: In light of the Tenth Amendment police power and the Public Use Clause of the Fifth Amendment, as applied to the states through the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, may a state take, with just compensation, title in real property from lessors and transfer it to lessees to reduce the concentration of property ownership in the state? Decision: Yes Vote: Unanimous Majority Opinion: Justice O’Connor notes that Berman v. Parker (1954) is highly relevant here. It assumed the position that the police power permits federal and state legislatures to declare what is in the public interest and to use the power of eminent domain, if needed, to obtain

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property to promote the public good: “The ‘public use’ requirement is thus coterminous with the scope of a sovereign’s police powers.” And although courts may review a legislature’s decision on what constitutes a public use, that review power is very narrow. A legislature may not use its police power to take a person’s property to benefit another private person, but “where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” For this reason, the majority upholds the Hawaii law. This is a classic exercise of the police power because the land oligopoly in Hawaii had “created artificial deterrents to the normal function of the state’s residential land market and forced thousands of individual homeowners to lease, rather than buy, the land underneath their homes.” This law was passed “not to benefit a particular class of identifiable individuals but to attack certain perceived evils of concentrated property ownership in Hawaii—a legitimate public purpose.” Kelo v. City of New London, Conn., 545 U.S. 469 (2005) Facts: The City of New London, Connecticut, faced staggering economic decline and soaring unemployment during the 1990s because of the loss of many of its major employers. To deal with these pressing problems, the city created the New London Development Corporation (NLDC), which was authorized to help plan for new economic development. NLDC subsequently proposed the Fort Trumbull Municipal Development Plan. This plan included issuing state bonds amounting to $5.35 million for planning activities and $10 million for the creation of Fort Trumbull State Park. Soon thereafter, a large pharmaceutical business announced that it would build a research facility at Fort Trumbull, and other commercial companies indicated their interest as well. The city council approved the plan and authorized NLDC to buy or acquire the property under the city’s power of eminent domain. NLDC negotiated the purchase of most of the land needed for Fort Trumbull, but negotiations broke down with a few homeowners. When NLDC initiated condemnation proceedings against them, the homeowners filed suit in state court. They argued that the taking of their property violated the Fifth Amendment because their land was not being taken for public use, such as the building of roads or schools; instead, it was being taken for private development to economically benefit the entire community of New London. The

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Connecticut Supreme Court held that New London could legally take the homeowners’ properties, and the Supreme Court granted certiorari. Issue: In light of the Public Use Clause of the Fifth Amendment, as applied to the states through the Liberty Provision of the Due Process Clause of the Fourteenth Amendment, may a city authorize the taking and transferring of property from one private party to another with the intent of promoting community economic development? Decision: Yes Vote: 5–4 Majority Opinion: Justice Stevens acknowledges an age-old doctrine: “the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.” Even so, he contends that such a taking may occur when future “use by the public” is the objective of the taking, and a “use by the public” taking must be distinguished from a taking of land to confer “a private benefit on a particular private party.” Stevens notes that the Supreme Court “long ago rejected any literal requirement that condemned property be put into use by the general public. . . . Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the nineteenth century, it embraced the broader and more natural interpretation of public use as ‘public purpose.’” In other words, the courts did not require that municipalities seeking to perform these types of takings have an exact public use in mind but rather that their intentions be directed toward the “public purpose” (i.e., the public benefit). The taking in this case does promote the “public purpose,” Stevens asserts. The city council concluded that the area of land under consideration was distressed enough to justify a program of economic rejuvenation, and the Supreme Court should defer to that decision. Looking at its overall design, the Fort Trumbull Municipal Development Plan certainly satisfies the public use requirement of the Fifth Amendment. Dissenting Opinions: Justice O’Connor believes that the majority’s opinion establishes a precedent that will bestow far too much power on those with more economic and political influence. This could leave ordinary citizens’ homes and businesses at the mercy of the powerful. Justice Thomas dissents as well, arguing that the Court strays far from the original meaning of the Public Use Clause in this decision.

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References–Constitutional Landmarks Colby, Thomas, and Peter J. Smith. 2015. The Return to Lochner. Cornell Law Review 100(3): 527–602. Epstein, Lee, and Thomas G. Walker. 2020a. Constitutional Law for a Changing America: Institutional Powers and Constraints. 10th ed. Washington, DC: CQ Press. ———. 2020b. Constitutional Law for a Changing America: Rights, Liberties, and Justice. 10th ed. Washington, DC: CQ Press. Gillman, Howard. 1993. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham, NC: Duke University Press. Goldman, Sheldon. 1991. Constitutional Law: Cases and Essays. 2nd ed. New York: HarperCollins. Greene, Jamel. 2011. The Anticanon. Harvard Law Review 125(2): 373–475. Magrath, C. Peter. 1966. Yazoo: Law and Politics in the New Republic: The Case of Fletcher v. Peck. Providence, RI: Brown University Press. McCloskey, Robert G. 1951. American Conservatism in the Age of Enterprise. Cambridge, MA: Harvard University Press. ———. 2016. The American Supreme Court. 6th rev. ed. Chicago, IL: University of Chicago Press. O’Brien, David M., and Gordon Silverstein. 2020b. Constitutional Law and Politics: Civil Rights and Civil Liberties. 11th ed. Vol. 2. New York: Norton. The Supreme Court Database. 1992. Washington University Law, http://suprem ecourtdatabase.org/index.php [https://perma.cc/FL7B-KSHW] (accessed April 10, 2020). Wright, Benjamin F. 1938. The Contract Clause of the Constitution. Cambridge, MA: Harvard University Press.

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Afterword: The Roberts Court and America in Turmoil Turbulence reigned in the United States as this book went to press. With political polarization seemingly as pervasive as ever, Donald Trump continued to defy many—if not most—of the customs and traditions of his White House predecessors. As such, much of the country’s turmoil was due not only to his divisive political positions but also to unorthodox behavior as president. And although impeachment proceedings were behind the country, the nation reeled during the first several months of 2020 from three other extraordinary developments. First, the terrifying COVID-19 pandemic, originally detected in China, spread illness and death to U.S. households from coast to coast. By mid-September about 925,000 people were estimated to have died worldwide, and by then the United States was the global epicenter of the pandemic. While many Americans sought to socially distance and wear protective masks, others took medical experts’ warnings less seriously, and wearing a mask became a political issue for some. Second, COVID-19 had far-reaching effects on the U.S. economy, significantly disrupting demand, sowing immense economic uncertainty, and causing the stock market to plunge and then vacillate for months. Businesses suffered from lockdowns, widespread layoffs followed, and unemployment skyrocketed. When lockdowns were lifted, the virus spiked again, and state governments requested additional financial assistance from Washington to cope with health-related © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. M. Lamb and J. R. Neiheisel, Constitutional Landmarks, https://doi.org/10.1007/978-3-030-55575-7

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troubles. Third, following a police officer’s killing of George Floyd, a black man in Minneapolis, massive political protests reminiscent of the 1960s broke out in cities and towns throughout the nation over the repeated use of excessive force by the police against African Americans. Slogans like “No Justice, No Peace,” “Black Lives Matter,” and “Social Justice” rang out for months as proposals were advanced to combat the long-standing, deep-rooted problem of policing African American communities. Violence erupted in numerous cities, including Atlanta, Chicago, Dallas, Denver, Detroit, Los Angeles, Louisville, Minneapolis, Portland, and Seattle, as the focus of some protests widened to the more general issue of political, economic, and social discrimination in America. Given these exceedingly challenging developments, in early August national opinion polls revealed that seventy percent of the public believed the country was headed in the wrong direction (Direction of the Country 2020). As these staggering problems swept the nation and voters anticipated crucial upcoming elections in the fall, the Roberts Court announced several high-profile decisions during the summer of 2020. A number of these involved issues of civil rights or civil liberties, but some related to significant matters discussed in this volume, including lawsuits involving President Trump and his administration’s policies. Perhaps the best example is Trump v. Vance (2020), a landmark ruling handed down on the final day of the Court’s term. There, the district attorney for the County of New York had issued a grand jury subpoena seeking Trump’s financial records as part of an investigation involving Stormy Daniels, a pornographic film actress. Daniels insisted that she was paid $130,000 to remain silent about a relationship she had with Trump some ten years prior to the 2016 election. Trump’s attorneys filed suit to stop the release of the president’s records. Appearing before the Supreme Court, Trump’s lawyers maintained that if a sitting chief executive were forced to respond to a state criminal subpoena, it would divert him from his enormous responsibilities, tarnish his reputation, and harass him while in office, all of which would be intolerable under Article II and Article VI’s Supremacy Clause. The Article II contention was anchored in the notion that it “guarantees the independence of the Executive Branch. As the head of that branch, the President ‘occupies a unique position in the constitutional scheme,’” the sixty-five-year-old John Roberts wrote. “His duties, which range from faithfully executing the laws to commanding the Armed Forces, are of unrivaled gravity and breadth.” The Supremacy Clause

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argument was based on the premise that it “gives a sitting President absolute immunity from state criminal subpoenas because compliance with those subpoenas would categorically impair a President’s performance of his Article II functions.” Chief Justice Roberts’s majority opinion in Trump v. Vance reached three basic conclusions. To start, it flatly rejected Trump’s claim that a sitting president has absolute immunity from the issuance of a state criminal subpoena, citing as precedents United States v. Burr (1807), United States v. Nixon (1974), Nixon v.Fitzgerald (1982), and Clinton v.Jones (1997). By so ruling, Roberts underscored a bedrock legal principle by essentially declaring that no one is above the law. As he put it, “in our judicial system, ‘the public has a right to everyman’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States.” Surely, Roberts felt that he needed a convincing vote from his colleagues in such a significant case, so it is critical that he obtained a unanimous vote on this central issue, although Justices Samuel Alito and Clarence Thomas dissented on other matters. Second, Roberts concluded that a state grand jury subpoena directed toward a sitting president’s private papers need not meet a heightened showing of need. For example, Trump and his solicitor general, Noel Francisco, insisted that “state criminal subpoenas pose a heightened risk and could undermine the President’s ability to ‘deal fearlessly and impartially’ with the States…. They caution[ed] that, while federal prosecutors are accountable to and removable by the President, the 2,300 district attorneys in this country are responsive to local constituencies, local interests, and local prejudices, and might ‘use criminal process to register their dissatisfaction with’ the President.” Roberts also rejected this line of reasoning. But third, the Court unanimously remanded the case, with Roberts writing, “the arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate.” Trump v. Vance meant that even though Donald Trump’s absolute immunity arguments were unanimously rejected by the High Court, the case was nevertheless remanded to the lower court for further proceedings. This highlighted a crucial point: Trump had achieved a valuable political victory, for his personal financial papers subpoenaed in this milestone case would not be made public until after the 2020 election, if ever. Nonetheless, the president was publicly unhappy with the Vance

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holding, tweeting, “This is all a political prosecution. I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration” (quoted in Olson and Blitzer 2020). On the same day Vance was handed down, a related decision still had to be announced before the justices could take their summer break: Trump v. Mazars (2020), which also dealt with the President’s financial records but presented an unprecedented separation of powers question for the Court. As explained in Chapter 3, the Supreme Court has long held that Congress has broad powers to carry out investigations relating to a legitimate legislative purpose, as in Watkins v.United States (1957) and Eastland v.United States Servicemen’s Fund (1975). This includes investigations by committees that are gathering information in order to review past legislation or pass new laws. Accordingly, in April 2019 the House of Representatives Oversight Committee subpoenaed Mazars USA—an accounting, tax, and consulting firm—for the financial records of President Trump and his businesses for eight prior years, as the committee considered legislation requiring a chief executive to turn over information pertaining to possible conflicts of interest and illegal conduct. Here, for instance, the committee claimed that this information would “help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U.S. elections.” In response, Trump’s attorneys filed suit to block the House subpoena because, they argued, it was not in pursuit of a legitimate legislative purpose and it violated the principle of separation of powers. As a result, they asserted, the House committee was attempting to carry out law enforcement functions beyond its power. Separation of powers cases frequently focus on the powers of Congress, the president, and/or the Court in order to ensure that one branch does not infringe on a primary function of the other, as in Bowsher v.Synar (1986) and Morrison v.Olson (1988) (see, e.g., Epstein and Walker 2020; O’Brien and Silverstein 2020). According to Chief Justice Roberts, in Mazars the issue was whether Congress had surpassed its constitutional power by issuing the subpoenas. “Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reciprocity,” he wrote. Traditionally, these two branches have dealt with Congress’s need for information on the president without requesting the Supreme Court’s intervention. This was true during the Reagan and Clinton administrations, for instance, but now the Court was directly

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drawn into this matter. The chief justice next emphasized that Article I does not give Congress an enumerated power either to investigate or to issue subpoenas, so these powers are limited because they are “justified solely as an adjunct to the legislative process” and must be related to a legitimate legislative purpose. Roberts then points out that Congress cannot use its subpoena power for purposes of law enforcement, for those powers are delegated to the executive and judicial branches by the Constitution. At the same time, as noted in Vance, the president has a special place in the American separation of powers system, so courts must carefully consider whether a subpoena demanding presidential information constitutes a legitimate task of Congress. The majority in Mazars concluded that the lower courts had failed to take adequate account of the separation of powers concerns in this case and, as in Vance, unanimously remanded it. In both Mazars and Vance, then, Trump essentially won a practical political victory, for his personal papers would not be turned over to Congress—although that was not clear from his public statements, which remained critical of the Court. Seila Law LCC v. Consumer Financial Protection Bureau (2020) was a different kind of separation of powers case, one that reaffirmed the president’s sweeping removal powers as recognized in Myers v.United States (1926) (see Chapter 2). In Seila Law, the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency created by Congress during the Obama administration, was designed to guarantee the security and transparency of consumer debt products following the financial crisis of 2008. Importantly, though, instead of creating a multimember independent regulatory agency, as was the practice, here Congress established an independent agency directed by one person who could be removed by the president only for “inefficiency, neglect, or malfeasance in office.” Given the breadth of the president’s removal powers under Myers and related precedents, the Roberts Court concluded, 5–4, that the legislation creating CFPB was constitutional but that the agency’s leadership structure violated separation of powers, as it unconstitutionally limited the president’s power to remove the CFPB director. As a result, a president who opposed CFPB—as was true of Donald Trump—could fire the CFPB director at will. This led Senator Elizabeth Warren (D-MA), who proposed the CFPB legislation, to put a positive spin on Seila Law: “Let’s not lose sight of the bigger picture: after years of industry attacks and GOP opposition, a conservative Supreme Court recognized what we all

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knew: the [CFPB] itself and the law that created it is constitutional,” she said. “The CFPB is here to stay” (quoted in Mangan and Higgins 2020). Chapter 2 considered the landmark case of Trump v.Hawaii (2018), where the Roberts Court declared by a 5–4 vote that President Trump’s proclamation restricting travel to America by foreign nationals from eight mainly Muslim nations was constitutional in light of the power delegated to the president by Congress under the Immigration and Nationality Act. Another blockbuster decision involving restrictions on undocumented aliens was Department of Homeland Security v. Regents of the University of California (2020), the so-called Dreamers case. In 2012, the Department of Homeland Security (DHS) announced the creation of the Deferred Action for Childhood Arrivals (DACA) program based on an executive action by President Barack Obama. The DACA program permitted some people, illegally brought to the United States by their parents as children, to not be deported; instead, they were eligible to qualify for work permits and remain in the country on a renewable twoyear basis. Trump promised to abolish DACA during his 2016 presidential campaign, and DHS announced in September 2017 that DACA would indeed be terminated. Several lawsuits challenged the administration’s policy change, arguing that it was an arbitrary and capricious violation of the Administrative Procedure Act (APA), which regulates how federal administrative agencies recommend and establish regulations, or that it violated the equal protection component of the Due Process Clause of the Fifth Amendment. Three district courts ruled in favor of the plaintiffs, and the government appealed to the Supreme Court. Writing for a 5–4 majority that included the Court’s four most liberal members, Chief Justice Roberts seized the ideological center by ruling that DACA’s rescission was in fact arbitrary and capricious under APA, reversing, to the joy of countless immigrants, DHS’s decision. As the justices often do, Roberts emphasized that the Court’s role was not to sit in judgment of a policy’s wisdom; rather, in this case its job was to determine “whether [DHS] complied with the procedural requirement that it provide a reasoned explanation for its action.” It did not, Roberts explained. “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” As a result, he concluded, “that dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.” The Court remanded the DACA cases, and afterward Trump tweeted, “The

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recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court.” Then came an even more common political message from Trump: “If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and … Religious Liberty, among many other things, are OVER and GONE!” (quoted in Trump Calls for “New Justices” After Supreme Court Ruling on DACA as Conservatives Take Aim at Roberts 2020). President Trump’s references here included the Roberts Court’s ruling in New York v. Department of Justice (2020), declining to decide whether localities could proclaim themselves as “sanctuaries” and, thus, refuse to assist federal officials in enforcing national immigration laws, and, second, Department of Commerce v. New York (2020), holding that at that time the Trump administration could not add to the 2020 census a question asking whether a person was a U.S. citizen. About a week later, though, Trump prevailed in Department of Homeland Security v. Thuraissigiam (2020), a case that allowed the administration to increase its pace in deporting asylum seekers. There, a 7–2 majority held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a law placing restrictions on the ability of federal courts to review habeas corpus petitions that challenged the decisions of immigration officers, did not violate the Suspension Clause of Article I, Section 9, which provides “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Hundreds of lawsuits challenged President Trump’s executive actions and his administration’s bureaucratic regulations (see, e.g., Kassop 2020; Liptak 2020a; Popovich et al. 2020), so it is hardly surprising that Trump would experience legal opposition to his attempt to cut back or overturn President Obama’s signature legislation, the Patient Protection and Affordable Care Act (ACA, also known as Obamacare). Relevant here is the precedent in National Federation of Independent Business v.Sebelius (2012), where the Roberts Court declared by a 5–4 vote that Congress could require individuals to pay a tax to purchase health insurance based on the Taxing and Spending Clause of Article I (see Chapter 3). Despite National Federation of Independent Business, Trump continued to oppose Obamacare in 2020 by joining Republican officials from eighteen states insisting that Congress had rendered the ACA unconstitutional in 2017 by eliminating the tax penalty for not purchasing insurance. The Roberts Court denied a motion to expedite this case, California v. Texas (2020),

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but it is expected to be resolved after the 2020 presidential election. Probably less important but somewhat related was Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020), where the Court sustained by a 7–2 vote Trump’s attempt to allow employers to withdraw from the ACA requirement that women have access to no-cost contraceptive services. In addition to Rucho v.Common Cause (2019), addressed in Chapter 1, a few civil rights–civil liberties decisions from the 2019 Term should be briefly mentioned. First, Bostock v. Clayton County (2020) upset conservatives not only for its liberal content but also because the 6– 3 majority opinion was written by Justice Neil Gorsuch, Trump’s first Supreme Court appointee. Bostock was a child welfare worker in Clayton County, Georgia, who, after ten years of service, was dismissed for conduct “unbecoming” of a county employee due to his sexual orientation and participation in a gay softball league. Ruling in favor of Bostock, Gorsuch argued that an employer who dismisses an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964. This was an unprecedented Supreme Court interpretation of Title VII, which expressly prohibits employment discrimination “because of race, color, religion, sex, or national origin.” Sexual orientation is not expressly mentioned in Title VII. Yet keying in on the prohibition of sex discrimination, heretofore interpreted as protecting women and men from job discrimination, the Bostock Court significantly broadened the meaning of sex to include sexual orientation. As explained by Gorsuch, Title VII means that “an individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock’s impact could be wide-ranging, for a large proportion of federal and state civil rights laws prohibit sex discrimination. This means that, going forward, they are now likely to be interpreted as prohibiting discrimination based on sexual orientation as well. Interestingly, Justice Brett Kavanaugh, Trump’s second appointee, dissented, viewing Bostock as a separation of powers case. Kavanaugh wrote, “under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” Essentially, then, Kavanaugh viewed Bostock as an unacceptable instance of Supreme Court activism.

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A second civil rights decision, June Medical Services L.L.C. v. Russo (2020), was the Court’s first important abortion ruling during the Trump administration. A Louisiana law forced physicians who performed abortions to have “active admitting privileges at a hospital … located not further than thirty miles from the location at which the abortion is performed or induced,” a requirement often difficult for the state’s doctors to meet. Further, it defined “active admitting privileges” as being “a member in good standing” of the hospital’s “medical staff … with the ability to admit a patient and to provide diagnostic and surgical services to such patient.” Abortion providers insisted that this Louisiana law placed an undue burden on women’s right to an abortion. Plaintiffs lost in the U.S. Court of Appeals, but the Supreme Court reversed by a 5–4 vote, with the chief justice once more voting with the Court’s liberal wing but authoring a concurring opinion. Justice Stephen Breyer’s majority opinion concluded that needless health regulations that pose substantial obstacles to a woman’s right to obtain an abortion constitute an undue burden on that right and, therefore, violate the Constitution. June Medical Services was followed by a second abortion-related ruling, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020), mentioned above. Finally, Espinoza v. Montana Department of Revenue (2020) was a freedom of religion case dealing with a Montana program that provided tax credits to those contributing to organizations that offer scholarships for private school tuition, but with one condition: these scholarships could not be used at a school “controlled in whole or in part by any church, sect, or denomination.” The Roberts Court reversed the Montana Supreme Court, 5–4, announcing that Montana’s no-aid provision unconstitutionally discriminated against religious schools as well as those wishing to attend them. With Roberts again writing for a thin majority, the Court held that “Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision,” Roberts noted, “also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.” Accordingly, this no-aid provision infringed on the Free Exercise of Religion Clause of the First Amendment. When the Court adjourned in July 2020, one thing seemed obvious: in the words of Adam Liptak, Supreme Court reporter for the New York Times , “John Roberts Was Already Chief Justice. But Now It’s His Court” (Liptak 2020b). Roberts, a 2005 appointee of George W. Bush,

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has typically been thought of as a conservative judge but has increasingly faced criticism from political conservatives. The most recent set of decisions handed down from the High Court have made it abundantly clear that Roberts is now not only the Court’s formal leader but repeatedly held the pivotal vote when the other justices were closely divided. He has also taken the opportunity—as is his prerogative—to assign more than his fair share of key majority opinions to himself. To some, Roberts was even more than that. “Roberts is not only the most powerful player on the court,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “He’s also the most powerful chief justice since at least 1937” (quoted in Liptak [2020b]). That would make Roberts more influential than even Earl Warren, who led the Warren Court revolution of the 1960s. During a period of extreme political polarization, Roberts additionally “steered the Supreme Court toward the middle, doling out victories to both left and right in the most consequential term in recent memory,” Liptak wrote. “The trend is clear, said Epstein…. He is drifting left at a statistically significant rate—and at a rate roughly resembling [Justice David] Souter’s liberal turn in the 1990s, she said” (quoted in Liptak [2020c]). Epstein’s research showed that Roberts voted with the Court’s conservative and liberal blocs at about the same rate. “Even more stunning, she said, is that Roberts voted with the majority in 97 percent of the non-unanimous decisions, compared to his average of 80 percent. This is the best showing by a chief justice since at least the 1953 term” (quoted in Liptak [2020b]). Given the recent developments surveyed here, how could it be seriously asserted that the Supreme Court is overwhelmingly a legal institution? Instead, although in part a legal institution, the High Court is also inextricably intertwined with the larger political system, and the justices often behave essentially as politicians in robes, as scholars have repeatedly demonstrated (see, e.g., Epstein and Knight 1998; Segal and Spaeth 2002). That said, will John Roberts and the Roberts Court make significant strides in helping the nation to resolve the extraordinary problems growing out of COVID-19, a crippling recession, and increasingly precarious relations between law enforcement and America’s minority communities? It is possible, as the Court has dealt with urgent problems in the past. We must wait to find out, of course, keeping in mind that normally the United States judicial system works very deliberately. Even so, students of public law never tire of following the U.S. Supreme Court. The next term will certainly be no exception.

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273

References Bostock v. Clayton County, 590 U.S. ___ (2020). Bowsher v. Synar, 478 U.S. 714 (1986). California v. Texas, ___ U.S. ___ (pending case). Clinton v. Jones, 520 U.S. 681 (1997). Department of Commerce v. New York, 588 U.S. ___ (2020). Department of Homeland Security v. Regents of the University of California, 591 U.S. ___ (2020). Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020). Direction of the Country. 2020. Real Clear Politics. August 3. https://www. realclearpolitics.com/epolls/other/direction_of_country-902.html (accessed August 3, 2020). Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975). Epstein, Lee, and Jack Knight. 1998. The Choices Justices Make. Washington, DC: CQ Press. Epstein, Lee, and Thomas G. Walker. 2020. Constitutional Law for a Changing America: Institutional Powers and Constraints. 10th ed. Washington, DC: CQ Press. Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020). June Medical Services L.L.C. v. Russo, 591 U.S. ___ (2020). Kassop, Nancy. 2020. Legal Challenges to Trump Administration Policies: The Risks of Executive Branch Lawmaking That Fails to “Take Care.” In Charles M. Lamb and Jacob R. Neiheisel, eds. Presidential Leadership and the Trump Presidency: Executive Power and Democratic Government. New York: Palgrave Macmillan, 41–90. Liptak, Adam. 2020a. Supreme Court Won’t Block Ruling to Halt Work on Keystone XL Pipeline. New York Times. July 6. www.nytimes.com/2020/ 07/06/us/politics/supreme-court-keystone-xl-pipeline.html (accessed July 6, 2020). ———. 2020b. John Roberts Was Already Chief Justice. But Now It’s His Court. New York Times. June 30. www.nytimes.com/2020/06/30/us/johnroberts-supreme-court.html (accessed July 3, 2020). ———. 2020c. In a Term Full of Major Cases, the Supreme Court Tacked to the Center. New York Times. July 10. www.nytimes.com/2020/07/10/us/ supreme-court-term.html (accessed July 12, 2020). Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___ (2020). Mangan, Dan, and Tucker Higgins. 2020. Supreme Court Leaves Consumer Regulator Standing but Backs President’s Ability to Fire Director. June 29. www.cnbc.com/2020/06/29/supreme-court-leaves-consumer-regulatorstanding-but-backs-presidents-ability-to-fire-director.html (accessed July 3, 2020).

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Morrison v. Olson, 487 U.S. 654 (1988). Myers v. United States, 272 U.S. 52 (1926). National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). New York v. Department of Justice, ___ U.S. ___ (pending case). Nixon v. Fitzgerald, 457 U.S. 731 (1982). O’Brien, David M., and Gordon Silverstein. 2020. Constitutional Law and Politics: Struggles for Power and Governmental Accountability. 11th ed., Vol. 1. New York: Norton. Olson, Tyler, and Ronn Blitzer. 2020. Supreme Court Punts, Denies Trump Immunity but Blocks House Dems from Tax Docs. Fox News. July 9. https:// www.foxnews.com/politics/trump-records-vance-subpoena (accessed July 12, 2020). Popovich, Nadja, Livia Albeck-Ripka, and Kendra Pierre-Louis. 2020. The Trump Administration Is Reversing 100 Environmental Rules. Here’s the Full List. New York Times. July 15. www.nytimes.com/interactive/2020/climate/ trump-environment-rollbacks.html (accessed July 15, 2020). Rucho v. Common Cause, 588 U.S. ___ (2019). Segal, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press. Seila Law LCC v. Consumer Financial Protection Bureau, 591 U.S. ___ (2020). Trump Calls for “New Justices” After Supreme Court Ruling on DACA as Conservatives Take Aim at Roberts. 2020. June 19. www.foxnews.com/us/ trump-calls-for-new-justices-after-supreme-court-ruling-on-daca-as-conservat ives-take-aim-at-roberts (accessed June 25, 2020). Trump v. Hawaii, 585 U.S. ___ (2018). Trump v. Mazars, 591 U.S. ___ (2020). Trump v. Vance, 591 U.S. ___ (2020). United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807). United States v. Nixon, 418 U.S. 683 (1974). Watkins v. United States, 354 U.S. 178 (1957).

Index

A Abortion, 14, 15, 37, 38, 271 Adair v. United States (1908), 14, 228, 252–253 Adams, John, 20, 23, 187 Adkins v. Children’s Hospital (1923), 14, 228, 234, 239, 254, 255, 257 Adverseness, 4 Advisory opinions, 4 African Americans, 7, 17, 145–147, 160, 165, 194, 215, 216, 264 Agricultural Adjustment Act (AAA), 122, 144, 145, 170, 171 Alabama, 147, 172, 229, 239 Alden v. Maine (1999), 193, 198, 211–212 Alito, Samuel A., 17, 117, 265 Allgeyer v. Louisiana (1897), 189, 228, 232, 250 Allied Structural Steel Company v. Spannaus (1978), 229, 246–247 Appellate jurisdiction, 2–4, 15, 25, 27–29, 193, 197, 213, 214

Appointments Clause, 85–87 Argersinger v. Hamlin (1972), 183 Arizona, 8, 191, 205, 206 Arizona v. United States (2012), 198 Arkansas, 95, 161, 162, 194, 215 Article I, U.S. Constitution Commerce Clause, VII, 112–116, 123, 125, 129, 131, 132, 135, 137, 139–141, 143, 144, 146–152, 154, 155, 158–160, 176, 185, 189, 205–207, 210, 211 congressional membership, 112, 117 congressional powers, 173 impeachment, 51, 66, 83, 95, 109, 110, 263 Necessary and Proper Clause, 73, 111, 145, 147, 187, 199, 200 presidential powers, 63 provisions, vii, 14, 15, 19, 34, 55, 87, 89, 117, 143, 146, 171, 176, 186, 226

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. M. Lamb and J. R. Neiheisel, Constitutional Landmarks, https://doi.org/10.1007/978-3-030-55575-7

275

276

INDEX

Speech or Debate Clause, 117, 118, 161, 163–166 tax and spend power, 34, 35, 112, 122, 123, 170–172 war declaration power, 64. See also Congress Article II, U.S. Constitution. Appointments Clause, 85 commander in chief, 1, 31, 51, 53, 64, 75, 77 electoral college, 5, 50 foreign policy, 60 impeachment, 51 presidential power, 53, 60 presidential qualifications, 151, 162 provisions, 58, 73, 91, 101 take care clause, 51, 66, 75 treaties, 3, 60, 73. See also President Article III, U.S. Constitution. appellate jurisdiction, 2, 3, 25, 27, 28, 193, 213 judicial powers, 2, 3, 18, 24, 211, 214 original jurisdiction, 2, 3, 24, 25, 28 provisions, 3, 23, 24. See also Supreme Court Article VI, U.S. Constitution federalism, 185, 193 supremacy clause, 73, 185, 199, 202, 203, 215, 216, 264 Articles of Confederation, 162, 200 Atlanta, GA, 264 Attorney general, 7, 8, 84–86, 216, 247, 256

B Bailey v. Drexel Furniture Company (1922), 189 Baker v. Carr (1962), 4, 5, 14, 15, 19, 31–33, 110, 116

Balanced Budget and Emergency Deficit Act, 82 Baltimore, MD, 27, 199 Bank of the United States, 187, 199 Barenblatt v. United States (1959), 119, 126, 168–170 Barron v. Baltimore (1833), 4, 15, 27 Benton v. Maryland (1969), 183 Berman v. Parker (1954), 259 Bibb v. Navajo Freight Lines, Incorporated (1959), 190, 191, 197, 206–207 Bicameralism, 88 Bill of Rights. See Incorporation; Specific Amendments Birmingham, AL, 147 Black, Hugo L., 7, 8, 54, 75, 77, 114, 169, 194, 217 Blackmun, Harry A., 37, 38, 73, 78, 84, 116, 150, 151, 163, 190, 191, 207, 245, 246, 259 Blatchford, Samuel, 249 Bolivia, 69 Bork, Robert H., 110 Boumediene v. Bush (2008), 62 Bowsher v. Synar (1986), 56, 63, 82–84, 266 Bradley, Joseph P., 41, 205 Brady Handgun Violence Prevention Act, 192, 208 Brandeis, Louis D., 8, 9, 80, 181 Brandenburg v. Ohio (1969), 14 Brennan, William J., Jr., 8, 31–33, 77, 149, 164, 166, 175, 219, 246, 247, 259 Brewer, David Josiah, 234, 253 Breyer, Stephen G., 8, 91, 100, 104, 117, 155, 160, 271 Brown v. Board of Education (1954), 8, 14, 15, 194, 215 Buckley v. Valeo (1976), 56

INDEX

Burger court, 52, 116, 128, 183, 190, 194, 198 Burger, Warren E., 11, 20, 52, 78, 83, 84, 88, 89, 92, 93, 115, 125, 165, 166, 173, 184, 190, 196, 226 Burton, Harold H., 76 Bush, George H.W., 6, 20, 29, 30, 62, 72, 73, 96, 97, 117, 271 Bush v. Gore (2000), vi, 6, 62, 96–100 Butler, Pierce, 235, 255 Butz v. Economou (1978), 94 C California, 8, 66, 194, 217, 218, 237, 257 Campaigns, 92, 97, 268 Canada, 73 Cantwell v. Connecticut (1940), 157 Cardozo, Benjamin N., 139, 140, 172 Carswell, G. Harold, 110 Carter, Jimmy, 33, 55, 70 Carter v. Carter Coal Company (1936), 114, 126, 140, 141, 189 Catholic church, 156 Central Intelligence Agency (CIA), 70, 78 Charles River Bridge v. Warren Bridge (1837), 228, 230, 242–243 Chase, Salmon P., 20, 22, 28, 39, 65, 66 Checks and balances, 1, 50, 83, 121. See also Separation of powers Chicago, IL, 134, 135, 248, 249, 264 Chicago, Milwaukee and St. Paul Railroad Company v. Minnesota (1890), 228, 238–239, 249–250 Chief justices, vi, 3, 6–9, 11, 13, 16–21, 23, 27, 28, 34, 42, 52, 54, 58, 76, 78, 79, 83, 85, 88, 92, 98, 101, 104, 110, 112–114, 116, 117, 119, 123, 129, 131,

277

133, 135, 138, 141, 145, 154, 156, 159, 161, 165, 166, 173, 174, 176, 182, 184, 188, 191, 193, 198, 199, 202, 203, 210, 216, 223, 226, 230, 231, 235, 240, 241, 243, 244, 248, 254, 255, 257, 265–268, 271, 272 Child labor, 126, 128, 137, 140, 143, 189 Chisholm v. Georgia (1793), 4, 15, 18, 26, 193, 202, 212 City of Boerne v. Flores (1997), 127, 156–158 Civil liberties, 43, 53, 54, 63, 110, 116, 264, 270 Civil rights, 22, 43, 95, 110, 116, 129, 190, 218, 223, 235, 264, 271 Civil Rights Cases (1883), 146 Civil War, 11, 21, 28, 37, 50, 53, 57, 63, 124, 184, 196 Clark, Tom C., 76, 146–148, 168 Cleveland, Grover, 10, 20 Clinton, Bill, 8, 72, 89, 91, 95, 96, 110, 117, 266 Clinton v. City of New York (1998), 62, 89–91 Clinton v. Jones (1997), 62, 95–96, 265 Cohens v. Virginia (1821), 187, 197, 201–203 Colegrove v. Green (1946), 4, 31 Collector v. Day (1871), 188, 197, 198, 204–205 Commerce Clause, vii, 112, 113–116, 123, 125, 127–129, 131, 132, 135, 137, 139–141, 143–152, 154–156, 158–160, 176, 185, 186, 188–190, 205–207, 211. See also Article I, U.S. Constitution; Interstate commerce

278

INDEX

Commerce power, 114, 116, 125, 137, 142, 145, 151, 175 Commerce regulation, 112, 113, 116, 126, 131–134, 136, 137, 140, 143, 149, 154, 160, 176, 253 Comptroller general, 56, 82–84 Congress appellate jurisdiction, 2, 4, 25, 28 commerce regulation, 112, 113, 133, 137, 143 composition, 19, 129 enumerated powers, 153, 163, 187, 192, 193, 199, 200, 209, 210, 212 executive power limits, 60 implied powers, 69, 75, 111, 187, 196, 197 inherent powers, 55, 57, 166 investigative powers, 167 membership and immunities, 112 Necessary and Proper Clause, 111, 187, 200 powers, v, 1, 35, 38, 51, 54, 57, 67, 75, 80, 82, 83, 109, 115, 125, 131, 144, 153, 160, 200, 266 role in military actions, 29, 65 seating powers, 17 Speech or Debate Clause, 117, 118, 164–166 state laws, 99, 196, 199, 230, 240 structure, 149, 153, 162, 212 taxing and spending, 15, 19, 34, 35, 112, 122, 170 term limits, 161 veto power, 88 war declarations, 64. See also Article I, U.S. Constitution; House of Representatives; Senate Connecticut, 36, 39, 238, 260 Constitutional Convention of 1787, 79–80, 161

Constitutional interpretation, 13, 32, 43, 144, 214, 256 Constitution, U.S.. See Specific Articles and Amendments Contract clause, 226, 227, 230, 232, 240–242, 244–247 Contracts, 26, 27, 39, 135, 136, 200, 227, 230, 232, 233, 235, 240, 241, 243–246, 250–252, 255 Cooley v. Board of Wardens (1852), 113, 125, 126, 132, 188 Cooper v. Aaron (1958), 190, 193, 194, 197, 215–216 Court-packing plan, 110, 114 Cox, Archibald, 92 Criminal cases, 183 Curtis, Benjamin Robbins, 133 D Dames & Moore v. Regan (1981), 55, 61, 70–72 Daniel, Peter V., 133 Dartmouth College v. Woodward (1819), 223, 227, 228, 230, 241–242 Davis, David, 65 Day, William, 137 DeJonge v. Oregon (1937), 183 Delegated powers, 209 Delegation of power, 112, 167 Democratic Party, 17, 23 Department of Defense, 70 Department of Justice, 8, 84, 87, 143, 147 Department of Revenue of Kentucky v. Davis (2008), 128 District of Columbia, 23, 24, 29, 84, 111, 201, 234, 235, 254, 255 Dolan v. City of Tigard (1994), 229 Dorr’s Rebellion, 41 Douglas, William O., 8, 114, 191 Dred Scott v. Sandford (1857), 124

INDEX

Dual federalism, vii, 113, 114 Dual sovereignty, 192, 209 Due process clause commerce, 146, 159, 160, 176 economic rights, 226 liberty of contract, 239 procedural due process, 232, 249 substantive due process, 232–235, 239 taxation, 122. See also Fifth Amendment; Fourteenth Amendment Duncan v. Kahanamoku (1946), 53 Duncan v. Louisiana (1968), 183

E Eastland, James O., 118 Eastland v. U.S. Servicemen’s Club (1975), 118, 127, 164–165, 266 Economic rights and capitalism, 9, 223–226, 232, 233 Economics, 2, 17, 111, 125, 166, 254, 261 Education, 154, 155, 242 EEOC v. Wyoming (1983), 115 Eighteenth Amendment, 174 Eisenhower, Dwight D., 8, 11, 194, 215 Elections, 15, 16, 18, 98, 122, 151, 264, 266 Electoral College, 5, 6, 50 Eleventh Amendment, 18, 155, 185, 186, 188, 192, 193, 202, 203, 210–212 Ellsworth, Oliver, 20 Eminent domain, 238, 259, 260 Employment Division, Department of Human Resources of Oregon v. Smith (1990), 156 Enemy combatants, 29, 62

279

Enumerated powers, 93, 163, 187, 192, 193, 199, 200, 209, 210, 212, 267 Environmental protection, 191, 207, 208, 245 Environmental Protection Agency (EPA), 85 Equal protection clause, 16, 39, 41, 147, 173 Establishment clause, 35, 59, 103 Ethics in Government Act, 84–87 Exclusionary rule, 183, 218, 219 Executive branch, 1, 13, 50, 54, 56, 60, 62, 63, 70, 78–80, 83–87, 92, 94, 104, 112, 120, 121, 151, 171, 209, 264 Executive powers, 26, 83, 84 Executive privilege, 57, 63, 92, 93 Ex parte McCardle (1869), 4, 15, 28–29 Ex parte Milligan (1866), 57, 61, 64–65, 194 Ex post facto laws, 14, 27, 39, 200, 214

F Fairfax’s Devisee v. Hunter’s Lessee (1813), 213 Fair Labor Standards Act (FLSA), 143, 144, 148, 150, 193, 211 Faubus, Orville, 215 Federalism, vii, 9, 32, 44, 100, 111, 112, 151, 153, 155, 156, 181, 182, 184–186, 188–190, 192, 195, 209, 211, 212 Federalist Papers , 187, 208, 210 Federalists, 241 Federal Trade Commission (FTC), 81, 82 Field, Stephen J., 41, 248 Fifteenth Amendment, 14, 111, 216

280

INDEX

Fifth Amendment, 27, 65, 68, 76, 105, 146, 166–168, 183, 226, 234, 237, 238, 252–255, 258–261, 268. See also Due process clause; Takings clause First Amendment, 19, 34–36, 55, 58, 59, 77, 101, 102, 156, 164, 165, 167–169 Fitzpatrick v. Bitzer (1976), 211 Flast v. Cohen (1968), 4, 5, 15, 19, 34–36 Fletcher v. Peck (1810), 227, 228, 239–240 Florida, 96, 98–100, 210 Foreign policy, 60, 70 Fortas, Abe, 9, 110 Fourteenth Amendment children, 255 civil rights, 235 interpretation, 14, 99, 211, 232 property rights, 41, 146, 183, 248, 253 vague language, 168 women, 158, 159, 234, 235, 253, 255. See also Due process clause; Equal protection clause Fourth Amendment, 78, 79, 195, 218, 219 Framers’ intent, 162, 193, 212 Frankfurter, Felix, 8, 9, 32, 72, 76, 194, 216 Fried, Charles, 18, 119 Frothingham v. Mellon (1923), 34 Fuller, Melville W., 135, 188 Fullilove v. Klutznick (1980), 122, 123, 127, 172–173 G Garcia v. San Antonio Metropolitan Transit Authority (1985), 116, 127, 148, 150 Garland, Merrick, 129

Gay rights, 270 Georgia, 26, 143, 227, 230, 239, 240, 270 Gibbons v. Ogden (1824), 112, 125, 126, 133, 136, 143, 145, 154, 182 Gideon v. Wainwright (1963), 183 Gill v. Whitford (2018), 6 Ginsburg, Douglas H., 110 Ginsburg, Ruth Bader, 20, 100, 117 Gitlow v. New York (1925), 183 Goldberg, Arthur J., 37 Goldwater, Barry, 33 Goldwater v. Carter (1979), 5, 15, 33 Gomillion v. Lightfoot (1960), 14, 15 Gonzales v. Raich (2005), 128 Gore, Albert, Jr., 5, 96, 97 Gorsuch, Neil M., 17, 270 Gravel, Mike, 118, 163, 164 Gravel v. United States (1972), 118, 127, 163, 165 Gray, Horace, 250 Great Depression, 51, 120, 122, 138, 170, 223, 231, 232, 235, 244, 256 Grier, Robert C., 64 Griswold v. Connecticut (1965), 14, 15, 36, 183 Gun-Free School Zones Act, 154

H Habeas corpus , 16, 28–30, 64, 65, 104, 194, 218, 219, 269 Hamdan v. Rumsfeld (2006), 57, 62 Hamdi v. Rumsfeld (2004), 62 Hamilton, Alexander, 3, 88, 186, 187 Hammer v. Dagenhart (1918), 126, 136, 141, 143, 189 Harding, Warren G., 7, 20 Harlan, John Marshall, 32, 35–37, 78, 136, 169, 252

INDEX

Harlan, John Marshall II, 169 Hawaii, 54, 58, 101, 237, 259, 260 Hawaii Housing Authority v. Midkiff (1984), 192, 229, 236, 259 Haynsworth, Clement F., Jr., 110 Heart of Atlanta Motel v. United States (1964), 115, 126, 145, 160, 190, 224 Hirabayashi v. United States (1943), 67 Hodel v. Virginia Surface Mining Association (1981), 115 Holmes, Oliver Wendell, Jr., 2, 5, 8, 73, 74, 80, 134, 135, 137, 252–254 Home Building and Loan Association v. Blaisdell (1934), 228, 231, 244, 247 Hoover, Herbert, 7, 9, 20, 81 Horne v. Department of Agriculture(2015), 229 House of Representatives, 1, 19, 50, 87, 90, 151, 160–163, 167 House Un-American Activities Committee, 119, 166, 168 Hughes, Charles Evans, 7, 11, 20, 22, 114, 123, 138, 139, 141, 142, 184, 225, 235, 244, 255, 256 Hughes Court, 11, 52, 114, 184, 225 Hughes v. Oklahoma (1979), 207 Humphrey’s Executor v. United States (1935), 56, 81 Hutchinson v. Proxmire (1979), 118, 127, 165 Hylton v. United States (1796), 122 I Ideology, 7, 110, 112, 225 Illinois, 31, 191, 206, 246–248 Immigration, 58, 73 Immigration and Naturalization Act (INA), 58, 72–73, 87, 101, 103

281

Immigration and Naturalization Service (INS), 72, 87 Immigration and Naturalization Service v. Chadha (1983), 15, 19, 56, 61, 84, 87–89 Immunity, 61, 62, 94–96, 117, 165, 166, 193, 197, 198, 204, 210–212, 265 Impeachment, 51, 66, 83, 95, 109, 110, 129, 263 Implied powers, 69, 75, 111, 187, 197, 200 Income tax, 122, 126, 204 Incorporation, vii, 182, 183, 185, 196 Indiana, 57, 64, 65 Inherent powers, 55, 57, 77, 78, 166 In re Debs (1895), 55 In re Neagle (1890), 55 International Emergency Economic Powers Act (IEEPA), 70, 71 Interstate commerce, 111–115, 126–129, 131–138, 140, 142, 143, 145–149, 153–156, 159, 160, 173, 188–191, 197, 198, 205–208, 210, 252 J Jackson, Andrew, 9, 20 Jackson, Robert H., 5, 9, 68, 75, 105, 114, 144, 145 Japanese Americans, 54, 60, 62, 66–68 Jay, John, 9, 20 Jefferson, Thomas, 18, 23, 187 Johnson, Andrew, 2, 17, 65, 110, 182 Johnson, Lyndon B., 9 Johnson v. Eisentrager (1950), 29 Judicial federalism, 193–195, 213–215 Judiciary Act of 1789, 23–25, 30, 193, 213, 214 Jurisdiction, 2–4, 14–16, 18, 24–30, 35, 40, 43, 62, 85, 86, 100, 136,

282

INDEX

159, 160, 182, 187, 189, 193, 197, 198, 202, 203, 214–216 Just compensation, 27, 76, 226, 229, 236, 237, 258, 259 Justiciability, 3, 4, 31–33, 34, 182 K Kagan, Elena, 8, 18, 20, 117 Kavanaugh, Brett M., 17, 110, 270 Kelo v. City of New London, Connecticut (2005), 223, 229, 237, 260–261 Kennedy, Anthony M., 30, 90, 117, 157, 158, 193, 212 Kennedy, John F., 9 Kilbourn v. Thompson (1881), 167 Klopfer v. North Carolina (1967), 183 Korean War, 57, 74 Korematsu v. United States (1944), 54, 59, 60, 61, 66–68, 102 L Labor unions, 141, 228 Laissez-faire Court, 149, 232, 235, 239, 247 Laissez-faire economics, 189, 223 Lawrence v. Texas (2003), 14 Legislative veto, 15, 19, 56, 61, 87–89, 121 Liberty of contract, 239 Lincoln, Abraham, 20, 53, 57, 63, 64 Line Item Veto Act, 89–91 Little Rock, AR, 194, 215 Lochner v. New York (1905), 14, 189, 223, 228, 250–252, 257 Louisiana, 39, 41, 250, 257, 271 Loving v. Virginia (1967), 8 Low-Level Radioactive Waste Policy Act, 152 Lucas v. South Carolina Coastal Council (1992), 229, 237

Luther v. Borden (1849), 4, 15, 19, 41–43 M Madison, James, 23, 80, 90 Maine, 191, 207, 208, 211 Maine v. Taylor (1986), 190, 191, 197, 207–208 Malloy v. Hogan (1964), 183 Mapp v. Ohio (1961), 183 Marbury v. Madison (1803), 3, 4, 11, 15, 18, 23–25, 92, 124, 125, 158, 182, 216 Marshall Court, 22, 223 Marshall, John, 3, 8, 11, 18, 20, 23, 24, 27, 76, 112, 131, 133, 184, 193, 199, 202, 203, 226, 229, 230, 240, 241 Marshall, Thurgood, 165 Martin v. Hunter’s Lessee (1816), 193, 197, 213–215 Maryland, 187, 199, 200 Massachusetts, 204, 230, 242, 243 Massachusetts v. Environmental Protection Agency (EPA) (2007), 4 McCarthy, Joseph R., 119 McConnell, Mitch, 129 McCulloch v. Maryland (1819), 182, 186, 197, 199–201, 203, 232 McDonald v. City of Chicago (2010), 183 McLean, John, 133 McReynolds, James C., 80 Miami-Dade County, FL, 98 Michigan, 7 Michigan v. Long (1983), 197 Migratory Bird Treaty Act, 73 Miller, Samuel F., 40, 41 Miller v. Johnson (1995), 16 Minimum wage, 116, 126, 140, 143, 148, 189, 234, 235, 254, 255

INDEX

Minneapolis, MN, 244, 264 Minnesota, 244, 246, 247, 249 Miranda v. Arizona (1966), 8, 14 Mississippi, 28, 39, 65, 66, 229, 239 Missouri, 73, 74 Missouri v. Holland (1920), 55, 61, 63, 73–74 Mootness, 4 Morehead v. New York ex rel. Tipaldo (1936), 189, 228, 234, 239, 255 Morrison v. Olson (1988), 56, 84–87, 266 Muller v. Oregon (1908), 228, 234, 239, 253 Munn v. Illinois (1877), 192, 228, 238, 239, 247–248, 250 Murphy, Frank, 7, 114 Myers v. United States (1926), 56, 61, 63, 79–81, 83, 267

N NAACP v. Alabama (1958), 183 National Federation of Independent Business v. Sebelius (2012), 116–117, 122, 123, 125, 128, 175–177, 269 National Industrial Recovery Act, 114, 128, 138 National Labor Relations Board (NLRB), 141 National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937), 114, 126, 141–142, 154, 189 National Labor Relations Board v. Noel Canning (2014), 62 National League of Cities v. Usery (1976), 116, 127, 148–149, 150, 151, 198 Native American tribes, 192, 210, 211 Near v. Minnesota (1931), 183

283

Necessary and Proper Clause, 111, 145, 187, 200 Nelson, Samuel, 204 Nevada, 152 New Deal, 112–114, 130, 141, 189, 223, 225, 235, 239 New Hampshire, 8, 230, 241, 242 New Jersey, 131, 230, 240, 241, 245, 246 New Jersey v. Wilson (1812), 227, 230 New Orleans, LA, 39 New State Ice Company v. Liebmann (1932), 181 New York, NY, 7, 131, 152, 245, 250, 251, 266 New York (state), 90, 130, 131, 233, 234, 251, 255 New York Times, 76, 77, 271 New York Times v. Sullivan (1964), 14 New York Times v. United States (1971), 76–78, 118, 163 New York v. United States (1992), 116, 127, 152–154, 156, 182, 209 Nineteenth Amendment, 234, 254 Nixon, Richard M., 20, 57, 63, 76, 92–94, 110, 190 Nixon v. Fitzgerald (1982), 61, 94–95, 265 Nixon v. United States (1993), 4, 5 Nollan v. California Coastal Commission (1987), 229, 237, 258–259 North Carolina, 7, 137 Nuclear waste, 152 O Obama, Barack, 18, 52, 117, 123, 129, 267–269 Obamacare, 117, 123, 130, 269 Obergefell v. Hodges (2015), 14

284

INDEX

O’Connor, Sandra Day, 8, 20, 116, 151, 153, 158, 175, 182, 209, 237, 259, 261 Ohio, 144, 188, 203, 204 Oklahoma, 256 One person, one vote doctrine, 14 Oregon, 157, 234, 253 Oregon Waste Systems, Incorporated v. Department of Environmental Quality of Oregon (1994), 127 Original jurisdiction, 2–4, 24, 25, 28, 216 Osborn v. The Bank of the United States (1824), 13, 187, 197, 203 P Palko v. Connecticut (1937), 37 Paraguay, 69 Pardons, 51 Parker v. Gladden (1966), 183 Patient Protection and Affordable Care Act (ACA), 117, 123, 175, 269 Peckham, Rufus W., 232, 233, 235, 250, 251 Pennell v. City of San Jose (1988), 229, 257 Pennsylvania, 132, 134, 136, 141 Pennsylvania v. Nelson (1956), 197 Pennsylvania v. Union Gas Company (1989), 211 Pentagon Papers, 77, 118, 163, 164 Philadelphia, PA, 132–134, 136 Political gerrymandering, 6, 14, 16–18 Political questions, 3, 4, 6, 15, 16, 19, 31, 32, 33, 38, 41–43 Pollock v. Farmers’ Loan and Trust Company (1895), 122, 126 Powell, Adam Clayton, 117, 160 Powell, Lewis F., Jr., 33, 78, 89, 94, 95, 151

Powell v. Alabama (1932), 183 Powell v. McCormack (1969), 117, 127, 160, 162 Presentment clause, 88–91 President accountability, 121, 153, 161 appointments, 1, 7, 8, 56, 80, 81, 85 commander and chief, 1, 31, 51, 53, 64, 75 conflict with Supreme Court, 19 election, 8, 23, 97, 98, 101, 151, 264, 270 foreign affairs, 51, 54, 55, 60, 70, 71, 77 habeas corpus , 29, 54, 57, 64, 65 immunity, 93–96, 265 impeachment, 51, 66, 83, 95, 109, 110, 129 military affairs, 30, 53, 55, 73 pardons, 51 qualifications, 151, 162 removals, 56, 80 Supreme Court appointees, 17, 270 treaties, 60, 70, 73 vetoes, 19, 90. See also Article II, U.S. Constitution; Executive branch; Executive powers; Executive privilege Presidential election of 2000, 96, 122, 270 Printz v. United States (1997), 156, 182, 186, 192, 198, 199, 208 Privacy rights, 14, 37, 38, 183 Private property, 15, 27, 74–76, 226, 229, 236, 238, 248, 258 Prize Cases (1863), 53, 63 Procedural due process, 232, 249 Proxmire, William, 118, 165, 166 Public employees, 95 Public good, 229, 245, 246, 260 Public opinion, 2, 121

INDEX

Public use, 15, 27, 75, 76, 226, 236, 238, 260, 261 Puerto Rico v. Branstad (1987), 116, 197

R Racial discrimination, 68, 105, 115, 126, 146–148 Racial gerrymandering, 14–16 Rasul v. Bush (2004), 4, 16, 29, 62, 194 Reagan, Ronald, 18, 20, 51, 52, 104, 110, 117, 190, 266 Reapportionment, 31, 110 Regulation, 56, 71, 87, 112–115, 120, 125, 132, 133, 135, 143–145, 149, 150, 153, 156, 159, 170, 174, 198, 205, 235, 237, 248, 258, 259, 268, 269, 271 Rehnquist Court, 20, 52, 104, 115, 125, 128, 186, 190 Rehnquist, William H., 8, 11, 20, 33, 38, 71, 85, 86, 98, 99, 115, 116, 148, 149, 154–156, 159, 174, 182, 184, 190, 193, 196, 198, 210, 211, 226, 257 Religious Freedom Restoration Act (RFRA), 156–158 Reno v. Condon (2000), 116, 128, 155 Republican Party, 110, 267 Reynolds v. Sims (1964), 8, 110 Rhode Island, 41, 42 Riegel v. Medtronic(2008), 198 Ripeness, 4 Roberts Court, 16, 18, 23, 52, 54, 58, 104, 116, 125, 183, 184, 190, 225, 264, 267–269, 271, 272

285

Roberts, John G., Jr., 6, 11, 16, 17, 20, 54, 58, 68, 101, 117, 129, 170, 176, 226, 264, 271, 272 Roberts, Owen J., 13, 123 Robinson v. California (1962), 183 Roe v. Wade (1973), 14, 15, 37 Roosevelt court, 69 Roosevelt, Franklin D., 7, 9, 20, 54, 67, 69, 81, 110, 112, 114, 123, 130, 138, 223 Rucho v. Common Cause (2019), 6, 14, 16, 270 S Sale v. Haitian Centers Council, Incorporated (1993), 62, 72 San Antonio, TX, 150, 154 Scalia, Antonin G., 8, 31, 86, 87, 91, 117, 177, 182, 192, 208, 209, 237, 238, 258 Schechter Poultry Corporation. v. United States (1935), 56, 114, 126, 138, 189 Schools, 34, 35, 116, 154, 155, 197, 260, 271 Search and Seizure, 78, 194, 219 Seminole Tribe of Florida v. Florida (1996), 116, 182, 192, 197, 210, 211 Senate, 1, 2, 33, 50, 51, 62, 70, 73, 79–81, 83, 90, 92, 109, 110, 117, 129, 151, 162, 163, 165, 166 Separation of powers, 1, 9, 31, 32, 56, 63, 66, 76, 80, 82–88, 90–94, 96, 121, 156, 158, 192, 209, 266, 267, 270 September 11, 2001 attacks, 29, 51, 49 Shaw v. Reno (1993), 7, 16 Shelby County, Alabama v. Holder (2013), 190, 198

286

INDEX

Sherbert v. Verner (1963), 156 Sherman Antitrust Act, 126, 134, 135, 188 Sixteenth Amendment, 122 Slaughterhouse Cases (1873), 14, 15, 39 Slavery and slaves, 40, 41 Sotomayor, Sonia, 20, 59, 103, 104, 117 Souter, David H., 8, 99, 100, 155, 160, 210–212, 272 South Carolina, 26, 152, 155, 156, 216, 237 South Carolina v. Katzenbach (1966), 190, 197, 216 South Dakota, 174, 175 South Dakota v. Dole (1987), 122, 123, 127, 173 South Dakota v. Wayfair, Incorporated (2018), 128 Southern Pacific Railroad Company v. Arizona (1945), 190, 197, 205 Special prosecutors, 56, 84–86, 92 Specific Amendments, vii, 14, 35, 93 Specific Articles and Amendments, 57, 65, 208 Speech or Debate Clause, 117, 118, 161, 163–166 Standing to sue, 3, 4, 34–36, 90, 211 Stare decisis , 3, 43 State commercial regulation, 190, 205–208 States’ rights, 19, 21, 113, 114, 138, 196, 204, 205, 230, 231 Stevens, John Paul, 30, 72, 84, 90, 99, 162, 173, 208, 209, 238, 261 Steward Machine Company v. Davis (1937), 122, 126, 172 Stewart, Potter, 35, 77, 161, 173, 247

Stone, Harlan F., 8, 9, 11, 20, 23, 143, 171, 191 Stone v. Powell (1976), 193, 194, 197, 218 Story, Joseph, 193, 214, 243 Substantive due process, 232–235, 239 Supremacy Clause, 132, 185, 186, 193, 194, 201, 216 Supreme Court Conservative justices, 9, 182, 267, 272 judicial activism, 12, 125, 235 judicial attitudes, vi judicial decision making, 9, 43 judicial deference, 51 judicial impact, 17, 60 judicial power, v, 4, 9, 11, 13, 14, 18, 22, 26, 66 judicial restraint, 14, 42, 77, 171, 256 judicial review, 3, 18, 19, 33, 34, 99, 125, 129, 195, 196 judicial strategies, 11 liberal justices, 8, 18, 43, 224, 225, 227. See also Article III, U.S. Constitution Sutherland, George, 54, 69, 70, 81, 82, 140, 234, 245, 254 Swift & Company v. United States (1905), 113, 125, 126, 134 T Taft-Hartley Act, 75, 76 Taft, William Howard, 7, 20, 79, 80, 254 Takings Clause, 44, 226, 229, 236–238, 258–261 Taney Court, 231 Taney, Roger B., 9, 13, 20, 42, 43, 113, 223, 230, 243 Taxes, 122, 172, 201

INDEX

Taxing and spending power, 15, 19, 34, 35, 112, 171 Tennessee, 31, 32 Tennessee Wine and Spirits Retailers Association v. Thomas (2019), 128 Tenth Amendment, 40, 55, 61, 73, 74, 113, 132, 135, 137, 144, 148, 149, 151–155, 162, 163, 171, 172, 185, 186, 188, 192, 193, 198, 206–210, 212, 217, 233, 245, 247, 248, 251, 255, 258, 259 Term limits, 161 Texas, 37, 150, 154, 156 Thirteenth Amendment, 39, 146 Thomas, Clarence, 8, 17, 110, 117, 155, 160, 163, 209, 261, 265 Timbs v. Indiana (2019), 183 Train v. City of New York (1975), 91 Treaties, 3, 51, 60, 70, 73, 185, 214 Truman, Harry, 9, 20, 57, 74, 75 Trump, Donald J., 17, 55, 58, 59, 101–104, 109, 110, 129, 263–270 Trump v. Hawaii (2018), 54, 55, 58, 62, 101, 268 Trump v. Sierra Club (2019), 62, 104 Twelfth Amendment, 50 Twenty-first Amendment, 174, 175

U United States Trust Company of New York v. New Jersey (1977), 229, 245 United States v. Belmont (1937), 60 United States v. Butler (1936), 13, 15, 122, 126, 149, 170, 172, 189 United States v. Curtiss-Wright Export Corporation (1936), 54, 60, 61, 69

287

United States v. Darby Lumber Company (1941), 116, 126, 143, 189 United States v. E.C. Knight Company (1895), 113, 126, 134, 135, 188 United States v. Lopez (1995), 116, 127, 154, 158–160, 190, 199 United States v. Morrison (2000), 116, 128, 158, 190 United States v. Peters (1809), 215 United States v. Rumely (1953), 167 United States v. United States District Court (1972), 57, 61, 78 UN Protocol Relating to the Status of Refugees, 72 U.S. Constitution. See individual Articles and Amendments U.S. Term Limits, Incorporated v. Thornton (1995), 117, 127, 161

V Van Devanter, Willis, 142, 256 Vetoes, 19, 90 Vice president, 50, 51, 98 Vietnam War, 76, 118, 164 Vinson Court, 52, 225 Vinson, Frederick M., 9, 11, 20, 76, 184 Violence Against Women Act, 158, 160 Virginia, 201–203, 213 Voting, vi, 6, 9, 12, 14, 16, 97, 161, 216, 217, 271

W Waite, Morrison R., 20, 248 War on Terrorism, 51 Warren Court, 14, 23, 110, 119, 183, 184, 190, 235, 272 Warren, Earl, 8, 9, 11, 20, 225, 272

288

INDEX

Washington, DC, 91, 201, 217, 234, 255 Washington, George, 9, 20 Washington Post , 76 Washington (state), 152, 255 Washington v. Texas (1967), 183 Watergate, 49, 57, 84, 91, 92 Watkins v. United States (1957), 119, 126, 166, 169, 266 West Coast Hotel v. Parrish (1937), 116, 192, 228, 235, 255 White, Byron R., 38, 78, 84, 89, 95, 121, 154, 163 White, Edward D., 20 Wickard v. Filburn (1942), 114, 126, 144, 190 Williamson v. Lee Optical Company (1955), 228, 256 Wilson, James, 18, 26

Wilson, Woodrow, 9 Wisconsin v. Yoder (1972), 157 Women, 5, 20, 137, 228, 234, 235, 253–256, 270 World War II, 9, 49, 54, 63, 125, 167 Writ of certiorari defined, 2, vi Writ of habeas corpus defined, note 5, Chapter 1, 28, 29, 54, 57, 61, 65 Writ of mandamus , 23, 24 Y Younger v. Harris (1971), 193, 194, 197, 217 Youngstown Sheet & Tube Company v. Sawyer (1952), 57, 61, 72, 74 Z Zivotofsky v. Kerry (2015), 62