Constitutional Law I

7 October

• There's one case in which the court didn't honor the spending power. Valazquez, 1991. This is the LSC (Legal Services Corporation) case. LSC lawyers inevitably sought remedies that went beyond their clients' cases (i.e., legal reform): they would argue that laws were unconstitutional. This would benefit not only their client, but also maybe thousands of others. But this displeases congress: lawyers paid with federal money are declaring that their statutes are unconstitutional.

  So they made a rule (through the spending clause) that LSC lawyers couldn't argue these points, and had to confine themselves to the specifics of their clients' cases. This raises 1A issues, of course. And eventually the case makes it to SCOTUS, which rules that congress can't control what LSC says. So the spending clause reaches its limits when it tries to meddle directly in the court's turf and what people can say in court (this is of course nothing at all like restricting what doctors can say in a pregnancy clinic...).

  So this turns into more of a separation of powers decision than a spending clause decision, in some respects.

• It's rare, incidentally, for the feds to create a corporation in order to carry out their plans. McCulloch is one example. But there are a few government corporations: Amtrak, PBS (mostly), LSC, the TVA. And there are spin-offs: Fannie Mae and Freddie Mac. All of these are controversial, not surprisingly, and at various times people propose abolishing them and replacing them with agencies instead of corporations.

  Advantages of corporations: separation of powers. We want PBS to be independent, for example. Flexibility: there's less red tape if the thing isn't an agency. If we're worried that corporations are too independent, we need only note that they have to get budgets renewed by congress every year.

  Disadvantages: well, there's too much independence. The corporations can always get their funding via effective lobbying, and so they have little accountability. An agency is semi-accountable (through the president and congress). They've all resisted termination somehow, also. And in a sense these corporations are too political: they aren't accountable, but they wield power and bow to pressure. An agency's control by the political process is at least overt.

• Other sources of federal power beyond taxing, spending, and such.
• The Property Power Congress has the power regulate and control federally owned property. This is pretty much a no-brainer. This is explicit in the constitution. But what lots of people don't know is just how much property the feds own. It's about 650M acres: 20x the size of WI. About 1M square miles. A little bigger than Western Europe. NV, for example, is 87% owned by the federal government. 50% of Montana and California. Federal ownership carries federal management with it. Owning that much property conveys a lot of power beyond just the property itself.

  And who within the government exercises that control? Congress, nominally, but they delegate this to the executive branch, because they're too busy. And this creates separation of powers issues: executive decisions are concentrated in one person (the president), and can be sweeping.

  The federal government can acquire land via eminent domain, also.

  This means also that federal courts can dominate state legislatures: declaring what state governmental property usage laws have overstepped and become unconstitutional takings. This is another example of the centralization of authority in the US.

• Power over foreign affairs Also a no-brainer. It's always been obvious that the federal government has this power. SCOTUS ratifies this policy even in 1936, at the height of their anti-federal kick: Curtis Wright (the President is the primary figure in foreign policy, and the states don't make foreign policy). See also Martin v. Hunter's Lessee.
• Power over immigration This is controversial of late. Border states want a share of this power, but no dice so far.
• Power over bankruptcy issues Quite popular.
• Power to sign treaties: when signed, they become the law of the land.
• Missouri v. Holland
  Thesis: migratory birds are interstate commerce, so the feds can regulate them. (this is prior to 1937). SCOTUS: this is not interstate commerce-- wild birds are wild birds, not commerce. And the US signed a treaty with Canada (technically signing a treaty with England). And the treaty says just what the statute had said. So they're just sneaking around that previous ruling: it's the same policy.

  But-- and this is Holmes-- treaties are federal. This is what the founders had in mind, and it's appropriate.

  So treaty power can be greater than ICC power. And greater than individual rights, at times (see the takings that occurred in relation to claims against the USSR, or post Iran hostage crisis settlements). If the federal government wants to abridge individual claims as part of a foreign policy agenda, it can. Domestically, this would require just compensation, but foreign policy trumps that.

• The war power Limited application, but perhaps the biggest and strongest power.
• Korematsu
  Ironically, FDR is famous for expanding racial civil rights (Lyndon Johnson also). But he signs the order giving the military the authority to confine those of Japanese descent. He did, however, write some article prior to his election about the dangers of undermining American power by mongrelizing with Asian races. Whoah: that is cuckoo stuff.

  Earl Warren is also big on the civil rights, but he's involved too. And Eisenhower's brother. So it's a star-studded affair, and not really a high point for anyone's career.

  So, there's a curfew, and this is considered constitutional (in the "because SCOTUS says is constitutional" sense).

  There's also the exclusion order. And the internment order. When other countries pull something like that, we call it "concentration camps." This is pretty extreme stuff.

  This history is kind of wallpapered over: if you go to the presidential library, you get the idea that FDR didn't sanction it (he did: he signed the order). And that SCOTUS didn't support it (it did, with the exception, perhaps, of Endo). Moreover, we can tell that this wasn't controversial, because Congress was in on it as well, and they'd shy away otherwise.

  Basically, everyone recognizes that this is an edgy subject, but in the end, this is a war and we've got to win (Roberts, dissenting, calls uncomfortable attention to the fact that this is pure racism). Jackson's dissent says that of course the court can't hold that this is acceptable under the constitutional, so the best course of action might be to duck the case. Jackson, remember, was the Nuremberg prosecutor: does a decision like this mean that the only force behind those trials was "we won," or is there moral gravamen behind it?

  In retrospect, the verdict of history is that this is a bad decision: race discrimination is bad, mmm-kay? This is actually the case whence the term "suspect category" derives, even though it is tolerated here. This is the only case to pass strict scrutiny: "pressing public necessity" is what is now called "compelling state interest."

  In that day, though, Japanese invasion was much feared, and people didn't know if it could be stopped.

  Why should the courts show such restraint? It's risky, but this is civil rights, not ICC.

  Of course, if the war is lost, we can pretty much forget about the constitution. Of course, if power expands during emergencies, then emergencies will happen whenever they are convenient. And by 12/1944, when this is decided, there's no threat of invasion any more.

8 October

• We are going to speed up, as we go through state power.
• Back on Korematsu
  So Korematsu loses in a formal sense, but in practical terms and in the court of opinion he wins.

  But why should the court side with the US?

  • Well, to win the war, for one thing. That was a real concern. In the event of invazion Japanese Americans with divided loyalty could have been a point of concern. We had their crypto, incidentally, and could see some info being relayed out of San Francisco. Germany fanned the flames of this "fifth column" strategy, incidentally, with the help of ethnic Germans in, e.g., the invasion of Czechoslovakia. But, by this logic, why not worry about Hawaii, instead of California?
  • We've increased federal powers during wars all along: formation of a federal bank to fund war of 1812, e.g., or suspension of habeas corpus and institution of an income tax (later declared unconstitutional) by Lincoln during the Civil War. And we never hold the draft to be unconstitutional (even during Viet Nam: cert denied). And lots of taking during WWII (see Lewis and the proposed coal strike being threatened with treason charges).
  • In wartime, judicial intervention is sometimes ignored: see Douglas and the bombing in Cambodia: the bombing continued even while the official ruling was that it was unconstitutional. Likewise German saboteurs under WWII: FDR sends his AG over to SCOTUS to keep them from intervening in the plan to try and execute the prisoners. SCOTUS takes the case, decides the process is fine, and the guys get executed.
  • Yes, this offends 14A equal protection, but if we don't make this a total effort (i.e., fanning the flames of racism to make people more combative), we're failing to avail ourselves of an important advantage. So we're not doing this because we're afraid of the Japanese, but because we want to make people hate the Japanese for the time being.
  • Why only the Japanese? Isn't that just plain old racism? Well, a few Germans and Italians got rounded up as well. Plus, there were about 60M German Americans, and only 150K Japanese Americans. And Germany had no serious surface navy: no invasion capacity. Japan had a great navy. And the Germans had been impugned during WWI; their loyalty was much less in question this time around, because they tended to hate Hitler.
  • Plus, what the US did was way more humane than what the Japanese did to the Americans in Japan. This isn't a point of law, of course, but it's some comfort maybe.
  Anyway, SCOTUS finds for the government. They intervene in Endo, over internment, but not just the exclusion order.

  The verdict of history is not very sympathetic for the court. It's the second worst (Dredd Scott taking top honors). That one was more openly racist, but this one is only mildly less so: it elevates the war power and judicial timidity to a level that overrides explicit race discrimination and 14A.

  Korematsu 38 years later re-opens the case in federal court in CA, arguing that the government (in criminal cases) is obliged to share its information with the defendants. Standard crim pro, of course. And the government hadn't revealed that it was fairly confident we wouldn't be invaded. And why didn't we worry about this? We had broken their codes, so we knew their navy wasn't coming. Of course, they had a strong reason not to reveal it.

  But at any rate, the district court says that Korematsu was wrongly convicted on this basis. So technically, he wins the case (1983). In 1988 the US officially apologized to internees. This put some pressure on Japan to apologize, but they have thus far declined.

  So then we've paid reparations to the Japanese who were interned. That makes troubles: what about Native Americans or the descendants of slaves? What should they get paid?

• Some other powers affecting the expansion of federal powers with respect to individual and civil rights.
• The Civil war, obviously, was a giant step towards the increase of federal power. We also get 13A, 14A, and 15A. Each of those explicitly grant congress the power to enforce this amendment (the final clause of each). And indeed, congress has passed systematic far-reaching laws respecting equal protection and individual rights. These all could have come under 14A, but they did not. Instead, they are based on ICC. That was routine. The laws were challenged, and the challenges failed, in just the way you'd expect at this point. Does Lopez, suggesting limits on ICC power, endanger civil rights? Seems far-fetched, but some do feel concern.
• These amendments not only empower congress, but also restrict it, in the sense that the court still intervenes in civil rights issues. Mostly this is Con Law II, but 1A is still important to us.

  About 50 years ago, Yoder came to SCOTUS: we don't want to send our kids to school after about grade 8. This was cast as violating 1A restriction on free exercise of religion, and SCOTUS finds in favor of the Amish: when a secular regulation collides with religious exercise, the regulation has to give, unless there's a compelling state interest.

  All religions are happy about this: they get less interference. In 1990, Yoder gets restricted by an OR case (smoking peyote can get you fired if you're a drug counselor, even if you're smoking for religious purposes). This is >Smith, by the way: there just has to be a rational basis.

  Religions didn't like this, and began to lobby: they prefer Yoder. Along comes Boerne, deciding that the religious freedom restoration statute is unconstitutional.

  So there's back and forth with congress about restrictions. And now we have our case about restrictions on prisoners: SCOTUS says that RLUIPA is constitutional this time around.

• Implications: if federalism was a main protection against accumulation of power, and it's pretty much dead, is there anything else that might replace it? Up we come on separation of powers and election issues.

  If the federal government has power to do whatever it wants, why do we need to bother having states? Other countries don't bother. What powers are left for the states? (mostly just what the feds allow, although that turns out to be quite a bit)

9 October

• So we've looked at federalism from the federal side. Now we need to look at it from the state and local perspective. Many of the policies are the same (or mirror images).
• Mortier
  The town of Casey is small and northern. SCOTUS calls the town "on the way to Superior." Note that they do not know much about WI (Rhenquist is the only justice ever to hail from WI, by the way. That's federalism for you: why should people 1,000 miles away who don't know much about the state make decisions about it?

  Anyway, Mortier wants to spray his crops, and seeks a permit from the county (i.e., a local permit, not state or federal). The local authority doesn't want arial spraying. Now Mortier doesn't have money to litigate this to SCOTUS, but a group of land-use and property-use enthusiasts has found their "Harry Hiker" in him, and they back the suit.

  So the "public intervenor" is now part of the DoJ (AG's office) in WI. Note that Dawson and Kent (opposing counsel in this case) often teach environmental law here together.

  So, the issue: can the federal statute (FIFRA) pre-empt the local statute? It says nothing about arial spraying, which means it's allowed. The state is also silent on this. Does this pre-empt the local statute? Mortier says yes, the locals say no.

  The WI SC, incidentally, said that federal statutes pre-empt local regulation (not state). For whatever reason, they didn't talk about the WI law... that's a little unusual. And so when SCOTUS says that FIFRA doesn't pre-empt local law, the WI legislature goes back and says the WI law DOES pre-empt local law (§ 94.701). So why didn't WI SC consider this on the way up? No telling. Anyway, Casey wins this case, but loses the war.

  So, is local government a kind of state government? (meaning, a sub-organization of it)? If so, how can federal law pre-empt state law and not local? If not, then what? Well the statute says EPA should consult local government for input before regulating pesticides-- does that mean that they wanted local input, and that local decisions should be given weight? Abrahamson and Heffernan both read the statute's language to draw opposite conclusions, both based on the language. The interpretation of a statute is not controlled by policy, not language-- the application of language is a rationalization.

  Anyway, SCOTUS says FIFRA does not pre-empt local law. Why? The text says that states are not pre-empted. It doesn't say "locals," so does that mean locals are pre-empted (by exclusio, especially since "states" are defined), or that they are not? Both WI SC and SCOTUS agree that states are not pre-empted, but they reach opposite conclusions about whether locals are. So the statute is ambiguous. So if the statutes are ambiguous, is there pre-emption?

  If there is pre-emption, then the local law can not deviate in either direction (environmental law is a one-way ratchet). If there is no pre-emption, then the local law can be more strict. This statute clearly does not pre-empt the states. It says so explicitly. The standard test: The federal law does not pre-empt unless the federal law makes clear and manifest its intemption to pre-empt; the federal law MAY pre-empt, but in order to do so, it has to be clear about it. And this federal statute is not clear and manifest about pre-emption of local statutes.

  Is this good? Why not make it automatic that there is pre-emption?

  Well, federalism suggests that power should be split geographically: it's more democratic, voting is more effective locally, local people will be enthused if they control their lives, local people have a better understanding of local circumstances, less risk of tyranny, local people can experiment, the feds are too bureaucratic, Art I § 8 limits federal power, 10A says this power is reserved to the states. Boo-yah.

  On the Federal side, pre-emption should be automatic. If we make a regulation at the federal level, of course it should be binding: it will be uniform, too many contradictory regulations makes it impossible to sort matters out, we're used to federal power, it's more efficient.

  Anyway, congress may override local rules, but federalism lives on a little bit, in the sense that congress isn't presumed to override it, unless it takes affirmative steps. So at least it's transparent, and we'll know if they do it, so we can hold them accountable.

  So how do we interpret the statute? Everyone starts with the text. Great. It is, of course, ambiguous. Next, we go to legislative history. WI courts found these persuasive, but SCOTUS finds them untrustworthy: the ag councils who wrote those reports are anti-regulation, because farmers in general dislike regulation about land use.

  When an amendment fails, it doesn't mean anything: it could have failed for a million different reasons.

  Scalia: the court only pretends to be bound by legislative history. That's always so ambiguous that it can be made to reach whatever conclusion it wants. Lawyers: don't waste your time on legislative history-- use arguments that will have impact on the court. And legislative history is often quite deliberately artificial. A lobbyist can seed the congressional record.

• Atkins
  Really, this is a Con Law II case: may a state execute someone who is officially retarded? SCOTUS: no, it may not, and IQ 70 is the dividing line.

  Interesting note: Atkins did OK in high school, but was disqualified from football for retardation.

  So he wins at SCOTUS, but then we go back to find out if he actually is retarded. That's a question for the jury, and they decide (after much expert testimony) that indeed he is not. Too bad, so sad, as Tobin would say.

• So what is interpretation of the constitution? It's not just reading text or guessing what founders had in mind. The standards of decency are evolving (Atkins, citing Warren, J.). Scalia says no: we are a court of law-- we interpret documents, and apply them. Moreover, we're not persuaded by state legislature interpretations: we start with the documents themselves. The majority invites "germane expertise" (lay experts, like the APA). Scalia says: no-- they are not on the court. We are the germane experts-- that is what it means to be on SCOTUS. We are the experts on what the constutution means. And what about that amicus brief from the religious coalition: the majority finds this "instructive, and encourages such input. But, on the other side, what does it mean to claim that you have moral expertise? In a democracy, we trust votes. And isn't it convenient that we like Christian views on execution, but we ignore them on abortion? This is all cynical. And the European Union's opinion: they hate the death penalty, but USA likes it. Good grief! Why not cite the briefs from countries that have the death penalty? And beyond that, what do we care about foreign law? The majority says public opinion polls are fair game, because we want to do what the people want. Scalia: no, no, no: at most, we should look at how many people voted for the death penalty, because that's the law.
• Justice Breyer, incidentally, is married to the daughter of a high ranking British legislator, and has much respect for foreign law. Of course we should look elsewhere for guidance.
• So how do you argue before the supreme court? You need to know which judge(s) you're arguing to-- you can afford not to persuade the others, but an argument that works on Scalia will not affect Breyer, and vice-versa. This goes back to the Brandeis Brief.
• So, then: what can we cite as precedent? Polls? Amici?
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