Supreme Court Doctrines and Key Interpretations
Political Question Doctrine
If the Court invokes political question doctrine, it will dismiss the suit without reaching the merits. This doctrine is very rarely invoked. It came about when citizens challenged State government action under the Guarantee Clause (Article IV §4, republican form of government). In Luther v. Borden, plaintiffs brought suit under the Guarantee Clause for the form of government during a Rhode Island insurrection. The court didn’t reach the merits of the case because the Guarantee Clause is nonjusticiable. The legislative and executive branches are responsible for making and enforcing the laws.
Three Categories of Political Questions:
Jurisdictional Reasons: Sometimes another branch is given the authority to adjudicate certain issues
Lack of Clear Judicial Rules: If there are no clear rules, it seems inappropriate to let the Court basically make up reasons for deciding the issue a certain way
Prudential Reasons: The Court doesn’t want to overstep its bounds in ruling on sensitive political issues given that it is not accountable like the other two branches, so it should stay out of tricky disputes
Dormant Commerce Clause
The dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.There are many areas where Congress could have acted but hasn’t. By its own force, this prevents States from acting sometimes. Historically, Justices have disagreed in two extreme positions:
States can do nothing when Congress is silent (states cannot even regulate safety of bridges/roads/etc. because they are connected to interstate commerce which is explicitly a Congressional power);
States can do whatever they want when Congress is silent (states can prevent out-of-staters from going over a bridge in order to help local industry; if this was a case, then Congress would need to pass a statute in response to every possible situation).
The modern Court has rejected both of these extremes. Instead, they’ve developed several tests for when Congress is silent. Two Supreme Court assumptions used to develop these tests:
America is a common market and economic free-trade zone
Discrimination of out-of-staters by a State should be discouraged because it only benefits in-state residents whiling harming out-of-staters who are powerless to stop it. Taken to an extreme, this could lead to a breakdown in the democratic process.
Impeachment and Succession
Article II §4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors".”
Article I §II cl.5: “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.” (simple majority)
Article I §III cl.6: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” The Senate needs 2/3 vote for conviction.
What Constitutes “High Crimes and Misdemeanors”? There are two leading theories:
Limited View – A crime is something if it could be charged and indicted. Only then is it applicable to ‘important’ or ‘high’ crimes.
Broader View – Misuse or neglect of the Office by the President suffices because they could be disastrous to the country.
*Congressman Ford: an impeachable offense is anything that the House and Senate believe it to be at the moment they vote. The Supreme Court has ruled that Congress is the one to define “high crimes and misdemeanors,” not them.
Interpreting the Necessary and Proper Clause
The Necessary and Proper clause (N&P) is potentially a source of great power for federal legislation. At the time of the founding, it was known as the “sweeping clause” or “omnipotent clause.” In McCulloch, where the clause was broadly interpreted by Justice Marshall, Marshall said "necessary" means "conducive to," not "absolutely necessary." Applying the clause was acceptable as long as it was reasonably related to a legitimate end (“let the end be legitimate”) while being “consistent with the letter and spirit of the constitution.” Furthermore, the clause is located in Art. I, §8 (grants of enumerated powers) not Art. I §9 (restrictions on Congress’s power), suggesting that it was not to be narrowly construed. And the clause reads, “and all other powers vested by this Constitution in the government,” which is striking because the Constitution doesn't enumerate powers to “the government”; therefore, the clause must have been intended to be broad.
Opposition to such a broad interpretation of the N&P clause argues that its application must be tightly linked to the enumerated or implied power it purports to support. Too often, the connection is attenuated beyond credulity. Furthermore, there are structural and textual issues often overlooked with the N&P clause. For instance, the text says “necessary and proper,” suggesting both, as separate entities, must be present (Printz). Structurally, the constitution makes it improper to use the N&P clause to tread on federalism (especially state police powers) (Printz), the rights of individuals (the people), or separation of powers (Zivotofsky, Scalia’s dissent in Morrison), for instance. This ensures Congress does not overreach its authority and invade spheres beyond the Constitution’s intentions. This parsing of words also allows the Court to say something is not proper, rather than try to fit the issues into something like the 5th Amendment (Bolling v. Sharp) where there is no solid precedent or history.
In Comstock, the Court developed a new 5-part test for determining what is necessary and proper of statutes:
1) the means are reasonably and plainly adapted to the attainment of an enumerated or implied power,
2) Government action was a modest addition to a longstanding federal framework,
3) it is a reasonable extension of existing framework and not too attenuated,
4) it accommodates state interests rather than impinging on their power, and
5) it is narrowly tailored to accomplish its federal interests. The applicability of this test is largely unknown, however, because subsequent cases wrestling with the N&P clause, like Sebelius, neglected to use this test.
The commerce clause (CC) has been through several drastic fluctuations in our nation’s history. Initially, the court in Gibbons ruled that the CC applies to interstate commerce. That is, commerce among the states and not entirely within the states. This reasoning was argued in several cases, like Hammer (banning interstate commerce of products of child labor) and Carter (applying a tax to regulate labor and prices in mining), to successfully overcome federal regulations of what the Court declared were local affairs. However, this narrower interpretation of the CC shifted around 1937 following the landslide election for FDR and Democratic congressmen.
The Court began following a presumption of constitutionality in Carolene (a rational basis was found to be all that the 5th Amendment required). This shift in the Court’s interpretation of the CC, at its broadest application, allowed congress to regulate the activities of individuals. For instance, the federal government was able to successfully argue in Wickard that though one farmer growing a lot of wheat was not directly related to interstate commerce, if all farmers similarly overproduced the aggregate effect would affect interstate commerce and national prices. Therefore, the government is allowed to step in. Similarly, the federal government could regulate discrimination policies in motels and restaurants. In Heart of Atlanta Motel, the Court found that because the motel was near an interstate highway, and because discriminating based on race could hurt the economy, the government could force them to stop discriminating. McClung made a similar finding when it held that because the restaurant received a large portion of its product from out-of-state, and because discrimination could harm the economy, the government, again, could regulate.
However, the Court has since shifted to a more narrow interpretation of the CC. In Lopez the Court outlined two broad categories for determining what could be regulated: economic vs. non-economic. It also said there are three activities the Congress can regulate: channels (e.g., air, sea), instrumentalities, and activities. Guns in school zones, the Court held, were a non-economic instruments and therefore not subject to Congressional regulation. The Court has since further limited its interpretation of the CC. Inactivity joined non-economic activity as not subject to regulation (Sebelius). An exception was carved out by Scalia’s dissent in Raich for regulating non-economic activity. Raich says a regulation of intrastate noneconomic activity is legitimate if it is an essential part of a broader regulatory scheme of economic activity, such that the scheme would be undercut if these noneconomic activities were not covered, and if the activity in the aggregate impacts interstate commerce. Because the act in consideration could not effectively distinguish between weed grown for home use and for commercial sale, refusing to ban the former would undermine banning the latter.
1) Channels: Setting rules for those involved with interstate commerce (RRs, roads, air, sea);
2) Instrumentalities: People or things engaged in the realm of interstate commerce;
3) Activities: Any activity which “substantially affects” interstate commerce
Against Expansive Interpretation:
If the Court allows an interpretation of the CC that is too broad, such that it allows regulation of individuals and businesses, for example, there is the strong possibility that the laws will infringe on the 5th and 14th Amendments’ Due Process clauses (DPC), including protections of life, liberty, and property. Such overreaching exceeds the structural boundaries of the Constitution by stepping on state police powers meant to be protected by the 10th Amendment. Furthermore, one could argue efficient public policy requires limited regulation by highly removed authorities, because those authorities are not as keenly aware of the best and most efficient uses and needs of individuals, cities, and states.
Ways to get around the limitations of the commerce clause:
Expand the regulation. Initially a law may seem to step on state toes arbitrarily, but if the law is broadened to regulate enough area, then it can't be undercut by surrounding areas/states.
Entice states to adopt rules by offering federal funding in return (a la Common Core, Title I spending for schools, etc.)
Expansive Executive Powers
The content of Article II suggests the President gets many powers:
Treaties (Senate approves, SC interprets),
Commander in Chief (Art 2, Sec. 2, Cl. 1),
Receive Ambassadors (Art II Sec 3),
Take Care Clause (Art II, Sec 3),
Removal Power (from Washington).
Furthermore, unlike Congress, which has a vesting clause declaring all legislative powers belong to it, and then it has a list of enumerated powers, Art. 2 says “the executive power shall be vested in the president,” and there is not a subsequent section that delineates the enumerated powers similar to Congress’s Art I, Sec 8.
Even Art 2, Sec 2 is more general than Art 1, Sec 8. This may suggest that the executive powers were meant to be broadly interpreted. One could argue that the few powers given to Congress in Art 2 (approving treaties, approving ambassadors, etc.), and the enumerated and structural limitations emplaced by the rest of the Constitution, are the only limits on the President’s executive powers. The awesome reach of the president’s powers, for instance, has enabled the Louisiana Purchase, and the Emancipation Proclamation was through the Commander-in-Chief power. Also, the Take Care Clause gives the president alone the power to faithfully execute laws, and therefore he has employment discretion.
Foreign affairs are best handled through the executive branch, because the government must speak with one governmental voice (Curtiss-Wright dicta, Zivotofsky). Furthermore, foreign affairs requires secrecy, so an individual is preferable to a group. As far as the power to act, Art 4, Sec 4 requires the United States to protect against invasion.
Because this protection would be through the Commander in Chief power (the Prize Cases let the president use CiC power to wage war (though he can’t declare war)), the president has an obligation to prevent invasion. Part of preventing invasion is to act prior to being invaded (preemptive action). A broad interpretation means the President may exercise military authority whenever he believes it may limit any type of invasion by anyone anywhere. In practice, this would mean there is no limit (save for budget constraints by Congress, and law or treaties he must Take Care to enforce) on when or whom he attacks as long as he can justify the target as a threat.
Because it is impossible to know if an immigrant or refugee harbors ill intent against the U.S. and plans to attack the U.S. upon admittance to the country, the President may ban their entry. Even one member of ISIS or an ISIS-affiliated group getting into the country would be an invasion, and the President is obligated to prevent such entries. With the combination of the Take Care clause, Art 4, Sec 4, the interpretation applied in Curtiss-Wright, and the CiC power, the President can preemptively initiate a travel ban.
Limited Executive Power
The president does not have dictator-like powers that he can employ at his discretion without regard to the other branches of government. For example, the Take Care Clause presupposes the creation of laws, which is done by Congress, so the President should take cues from Congress. If the Constitution meant to give more power to President, it would have said so. And if the President were meant to be able to act on affairs foreign and domestic alone, the Constitution would not have allowed Congress to limit funding of executive agencies, cabinet members, and departments, functionally limiting or neutering their power. Furthermore, when the constitution says “executive power shall be vested in the President,” that could mean not all executive powers are granted to the President (contrast with Art 1, “All legislative powers herein granted shall be vested in a Congress.” Some executive power could—and does (approving treaties, for instance)—go to the legislative branch, meaning the President is more constrained than Congress.
It is not as if all foreign affairs powers reside in the President. For instance, Congress has foreign powers, too, like the High Seas clause (Art 1, Sec 8, Cl 10), and it alone can declare war (Art 1, Sec 8, Cl 11). Even if the President can wage war, Congress controls defense spending and speaks for the will of the people (Youngstown). This is evident with Art I, Sec 8, Cls 12, 13, 15, and 16, which all expressly have to do with funding the military. Finally, the Prize Cases only allow a response to war, not the power to initiate one. Congress reinforced this position by passing the War Powers Act, which restricts the extent to which the president can flex his military powers without a congressional declaration of war. As found in Youngstown, allowing a president to usurp extraordinary powers in the name of national security is unwise.
Interpreting the Constitution as Providing an Emphasis on Federal Rights
Darby established a nationalist interpretation of the 10th Amendment
States get what's left out after considering the CC, N&P C, GWC, etc.
Art 3, Sec 1 and Art. 6, cl 2 make it okay for courts to be bound by the Supreme Court
States cannot do anything proscribed in Art I, Sec 10
States have no foreign policy powers (Missouri v. Holland)
Enactment and enforcement of federal laws, even when supposedly intruding on states’ rights, is supported by the N&P and CC.
The Supremacy Clause/preemption
The 10th Amendment does not include the word “expressly” and, in fact, the founders deliberately voted against including that word
State statutes that mirror federal ones may cause conflict, because the president may enforce items different from the governor. Such conflict must be avoided (Gibbons).
Just as the federal government can’t intrude on State police powers, states can’t interfere with federal powers (like the military, for instance)
Sometimes the federal government must step in to protect against discrimination (Obergefell). Democracy doesn’t work if the majority always dominates the minority.
Darby called the 10th Amendment a “truism” and then said it didn’t apply
Ways to get around state rights issues:
Create a treaty (get enough nations on board with it). Downside: it’s hard to get 2/3 of senate to support such treaties. Upside: The treaty would become equal to other federal laws. (Missouri v. Holland)
Interpreting the Constitution as Providing an Emphasis on States’ Rights
States retain police powers. Police Powers:
The government must take caution to not extend itself into states in certain ways. The reasons include that it intrudes on federalism, separation of powers, and accountability. For example, the federal government cannot commandeer state officials by telling them what to do in order to enforce federal law.
In Printz the government tried to make local sheriffs conduct background checks pursuant to a federal law. The Court noted that there is an established system of dual sovereignty in the Constitution (discussed below). It also said the President would essentially be reduced to an unnecessary appendage if Congress could do what it wished without the President as with him by having state authorities handle the execution of federal law rather than the President (separation of powers). Accountability is at issue in Printz because Congress would not have to raise federal taxes, because they could force states to pick up the tab; and states would take the fall for any shortcomings in the federal program, thereby insulating congressmen from their constituents. Congress may incentivize states to follow a federal program, but it cannot compel them to do so.
The Court’s ruling in New York was similar, except instead of compelling executive officials, Congress tried to compel legislative officials by forcing them to adopt specific legislation. Here, again, commandeering removes accountability, and it intrudes on federalism. Even though state officials signed on to the act, that was not sufficient, because elected officials cannot strip away state sovereignty.
State rights are embedded in the Constitution and therefore cannot be overcome by state or federal legislation, except by a constitutional amendment. Examples of federalism in the text and structure of the Constitution include:
Art. 4, Sec. 3 (the government cannot reduce or combine state territory without the state’s consent),
Art 4, Sec 2 (citizens of one state are entitled to the privileges and immunities of the several states),
Art 5 (constitutional amendments require ¾ of the states), and
Art 4, Sec 4 (presupposes the continued existence of states).
Federal Arguments for Immigration Restrictions:
“The federal government has long been recognized as having the power to regulate the entry of persons from foreign nations (as in Chae Chan Ping), since this is a power incidental to national sovereignty, and one freely practiced by other nations.”
The federal government has inherent sovereign powers
The N&P Clause can be used to justify prohibitions (Chae Chin Ping)
Not banning immigrants could negatively affect interstate commerce (people fear tourism destinations could be site of terrorist attacks), and falls within Lopez categories
Federal Argument Against Immigration Restrictions:
N&P could be used to require states to accept refugees (protecting people similar to protecting birds in Missouri v. Holland)
Banning could negatively affect tourism (fewer people traveling to the U.S. to visit family, see sites, etc.), and therefore commerce
It is part of a broader regulatory scheme under Homeland security rules and regulation.
Could Cut Either Way:
10th Amendment doesn’t say “expressly,” and such verbiage was voted down
Congress has the power over naturalization (immigration): Art I, Sec 8, Cl 4
State Arguments for State Power Over Immigration:
States could claim they are being commandeered (Printz)
States could claim they are, in effect, being forced to adapt legislation (because it’ll be required to dictate who in the state has what responsibilities for any refugees), in violation of (New York v. U.S.)
10th Amendment, baby
States could argue a ban based on national origin would have effects on interstate commerce, and is therefore unconstitutional for president to do (Heart of Atlanta Motel, McClung). E.g., it’d affect travel, tourism, commerce.
Spending (Providing for the General Welfare)
In Butler, the Court adopted a broad interpretation of the Taxation Clause, holding that the power to provide for the general welfare under Art 1, Sec 8, Cl 1 was a power apart from other enumerated powers. This was the Hamilitonian view, and it gave Congress wide latitude with regard to taxing.
The elements for constitutional spending are outlined in Dole.
First, the federal spending must be designed to promote the general welfare.
Second, any condition on the funds must be related to the purposes of the broader funding program (in Dole, the Court found that the drinking age was sufficiently linked to highway funding due to a goal of better highway safety).
Third, the condition on spending must be clearly stated.
And fourth, it must not violate any independent constitutional limitation.
The spending also must not be coercive. In Dole, the 5% of highway funds that were to be withheld was a relatively small proportion of the funds, and therefore acceptable because states could reasonably choose to forego the funding. The Court in Sebelius, however, found that the threat of withdrawing all Medicaid funds, which accounted for 10-20% of state budgets was coercive because no rational state could forego such funding. This is similar to the coercion found in New York, where states were not given a real option aside from adopting federal law. Insert application
No actual mention of “spending” in Constitution.
Rather: “…to pay the debts and provide for the common defense and general welfare of the United States” (Art. 1 §8 Cl. 1)
Congress can tax to provide for general welfare (taxing cigarettes reduces cancer without spending)
Congress can just provide for general welfare
Welfare is inherently subjective; it’s often easier to justify action through more objective Commerce Clause.
The Taxing Power
The criteria for what counts as a tax includes that it must:
Be generally applicable (rather than localized, like the Act struck down in Butler), and
Not be passed with punitive intent (Sebelius).
In Sebelius, the Court also investigated whether the penalty was actually a constitutional tax. The criteria considered included:
Examining the degree of the tax (in Sebelius, tax was no greater than the cost of insurance, and therefore not burdensome; Contrast with Bailey, where a so-called tax was deemed to actually be a penalty).
Looking at how the tax fits into the broader regulatory scheme (i.e., what portion of the bill it is located in).
Looking at the means of collecting the tax (i.e., whether it is collected by the IRS).
Considering whether the tax was applied arbitrarily, and
Looking at whether the tax was based on an objective or subjective standard.
The Court in Sebelius used a "saving construction" to deem the shared responsibility payment required for those not in compliance with the individual mandate a tax, suggesting that when in doubt, the Court’s presumption will favor a tax.