106th Congress Document
SENATE
2d Session No. 106-27
________________________________________________________________________
THE CONSTITUTION
OF THE
UNITED STATES OF AMERICA
ANALYSIS AND INTERPRETATION
__________
2000 SUPPLEMENT
ANALYSIS OF CASES DECIDED BY THE SUPREME
COURT OF THE UNITED STATES TO JUNE 28, 2000
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
George A. Costello
Kenneth R. Thomas
Editors
David M. Ackerman
Henry Cohen
Robert Meltz
Contributors
U.S. GOVERNMENT PRINTING OFFICE
69-557 CC WASHINGTON : 2000
________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Washington, DC 20402
ARTICLE I
DELEGATION OF LEGISLATIVE POWER
The Effective Demise of the Nondelegation Doctrine
[P. 78, add to text following n.79:]
The infirm state of the nondelegation doctrine was
demonstrated further in Loving v. United States.\1\ Article
118 of the Uniform Code of Military Justice (UCMJ) \2\
provides for the death penalty for premeditated murder and
felony murder for persons subject to the Act, but the
statute does not comport with the Court's capital punishment
jurisprudence, which requires the death sentence to be
cabined by standards so that the sentencing authority is
constrained to narrow the class of convicted persons to be
so sentenced and to justify the individual imposition of the
sentence.\3\ However, the President in 1984 had promulgated
standards that purported to supply the constitutional
validity the UCMJ needed.\4\
---------------------------------------------------------------------------
\1\ 517 U.S. 748 (1996). The decision was unanimous
in result, but there were several concurrences reflecting
some differences among the Justices.
\2\ 10 U.S.C. Sec. Sec. 918(1), (4).
\3\ The Court assumed the applicability of Furman v.
Georgia, 408 U.S. 238 (1972), and its progeny, to the
military, 517 U.S. at 755-56, a point on which Justice
Thomas disagreed, id. at 777.
\4\ Rule for Courts-Martial; see 517 U.S. at 754.
---------------------------------------------------------------------------
The Court held that Congress could delegate to the
President the authority to prescribe standards for the
imposition of the death penalty--Congress' power under
Article I, Sec. 8, cl. 14, is not exclusive--and that
Congress had done so in the UCMJ by providing that the
punishment imposed by a court-martial may not exceed ``such
limits as the President may prescribe.'' \5\ Acknowledging
that a delegation must contain some ``intelligible
principle'' to guide the recipient of the delegation, the
Court nonetheless held this not to be true when the
delegation was made to the President in his role as
Commander-in-Chief. ``The same limitations on delegation do
not apply'' if the entity authorized to exercise delegated
authority itself possesses independent authority over the
subject matter. The President's responsibilities as
Commander-in-Chief require him to superintend the military,
including the courts-martial, and thus the delegated duty is
interlinked with duties already assigned the President by
the Constitution.\6\
---------------------------------------------------------------------------
\5\ 10 U.S.C. Sec. Sec. 818, 836(a), 856.
\6\ 517 U.S. at 771-74.
---------------------------------------------------------------------------
In the course of the opinion, the Court
distinguished between its usual separation-of-powers
doctrine--emphasizing arrogation of power by a branch and
impairment of another branch's ability to carry out its
functions--and the delegation doctrine, ``another branch of
our separation of powers jurisdiction,'' which is informed
not by the arrogation and impairment analyses but solely by
the provision of standards,\7\ thus confirming what has long
been evident that the delegation doctrine is unmoored to
separation-of-powers principles altogether.
---------------------------------------------------------------------------
\7\ Id. at 758-59.
---------------------------------------------------------------------------
--The Regulatory State
[P. 82, add to n.106:]
Notice Clinton v. City of New York, 524 U.S. 417 (1998),
in which the Court struck down what Congress had intended to
be a delegation to the President, finding that the authority
conferred on the President was legislative power, not
executive power, which failed because the Presentment Clause
had not and could not have been complied with. The
dissenting Justices argued that the law, the Line Item Veto
Act, was properly treated as a delegation and was clearly
constitutional. Id. at 453 (Justice Scalia concurring in
part and dissenting in part), 469 (Justice Breyer
dissenting).
QUALIFICATIONS OF MEMBERS OF CONGRESS
Exclusivity of Constitutional Qualifications
--Congressional Additions
[P. 111, add to n.297:]
Powell's continuing validity was affirmed in U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779 (1995), both by the
Court in its holding that the qualifications set out in the
Constitution are exclusive and may not be added to by either
Congress or the States, id. at 787-98, and by the dissent,
which would hold that Congress, for different reasons, could
not add to qualifications, although the States could. Id. at
875-76.
--State Additions
[P. 114, add to text following n.312:]
The long-debated issue whether the States could add
to the qualifications that the Constitution prescribed for
Senators and Representations was finally resolved, by a
surprisingly close vote, in U.S. Term Limits, Inc. v.
Thornton.\8\ Arkansas, along with twenty-two other States,
all but two by citizen initiatives, had imposed maximum
numbers of terms that Members of Congress could serve. In
this case, the Court held that the Constitution's
qualifications clauses \9\ establish exclusive
qualifications for Members that may not be added to either
by Congress or the States. The four-Justice dissent argued
that while Congress had no power to increase qualifications,
the States did.
---------------------------------------------------------------------------
\8\ 514 U.S. 779 (1995). The majority was composed
of Justice Stevens (writing the opinion of the Court) and
Justices Kennedy, Souter, Ginsburg, and Breyer. Dissenting
were Justice Thomas (writing the opinion) and Chief Justice
Rehnquist and Justices O'Connor and Scalia. Id. at 845.
\9\ Article I, Sec. 2, cl. 2, provides that a person
may qualify as a Representative if she is at least 25 years
old, has been a United States citizen for at least seven
years, and is an inhabitant, at the time of the election, of
the State in which she is chosen. The qualifications
established for Senators, Article I, Sec. 3, cl. 3, are an
age of 30, nine years' citizenship, and being an inhabitant
of the State at the time of election.
---------------------------------------------------------------------------
Richly embellished with disputatious arguments about
the text of the Constitution, the history of its drafting
and ratification, and the practices of Congress and the
States in the early years of the United States, the actual
determination of the Court as controverted by the dissent
was much more over founding principles than more ordinary
constitutional interpretation.\10\
---------------------------------------------------------------------------
\10\ See Sullivan, Dueling Sovereignties: U.S. Term
Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78 (1995).
---------------------------------------------------------------------------
Thus, the Court and the dissent drew different
conclusions from the text of the qualifications clauses and
the other clauses respecting the elections of Members of
Congress; the Court and the dissent reached different
conclusions after a minute examination of the records of the
Convention respecting the drafting of these clauses and the
ratification debates; and the Court and the dissent were far
apart on the meaning of the practices in the States in
legislating qualifications and election laws and in Congress
in deciding election contests based on qualifications
disputes.
A default principle relied on by both Court and
dissent, given the arguments drawn from text, creation, and
practice, had to do with the fundamental principle
underlying the Constitution's adoption. In the dissent's
view, the Constitution was the result of the resolution of
the peoples of the separate States to create the National
Government. The conclusion to be drawn from this was that
the peoples in the States agreed to surrender powers
expressly forbidden them and to surrender those limited
powers that they had delegated to the Federal Government
expressly or by necessary implication. They retained all
other powers and still retained them. Thus, ``where the
Constitution is silent about the exercise of a particular
power--that is, where the Constitution does not speak either
expressly or by necessary implication--the Federal
Government lacks that power and the States enjoy it.'' \11\
The Constitution's silence about the States being limited
meant that the States could legislate additional
qualifications.
---------------------------------------------------------------------------
\11\ 514 U.S. at 848 (Justice Thomas dissenting).
See generally id. at 846-65.
---------------------------------------------------------------------------
Radically different were the views of the majority
of the Court. After the adoption of the Constitution, the
States had two kinds of powers: powers that they had before
the founding and powers that were reserved to them. The
States could have no reserved powers with respect to the
Federal Government. ``As Justice Story recognized, `the
states can exercise no powers whatsoever, which exclusively
spring out of the existence of the national government,
which the constitution does not delegate to them . . . . No
state can say, that it has reserved, what it never
possessed.' '' \12\ The States could not before the founding
have possessed powers to legislate respecting the Federal
Government, and since the Constitution did not delegate to
the States the power to prescribe qualifications for Members
of Congress, the States did not have it.\13\
---------------------------------------------------------------------------
\12\ Id. at 802.
\13\ Id. at 798-805. And see id. at 838-45 (Justice
Kennedy concurring).
---------------------------------------------------------------------------
Evidently, the opinions in this case reflect more
than a decision on this particular dispute. They rather
represent conflicting philosophies within the Court
respecting the scope of national power in relation to the
States, an issue at the core of many controversies today.
APPORTIONMENT OF SEATS IN THE HOUSE
The Census Requirement
[P. 115, add to n.317:]
Another census controversy was resolved in Wisconsin v.
City of New York, 517 U.S. 1 (1996), in which the Court held
that the decision of the Secretary of Commerce not to
conduct a post-enumeration survey and statistical adjustment
for an undercount in the 1990 Census was reasonable and
within the bounds of discretion conferred by the
Constitution and statute.
THE LEGISLATIVE PROCESS
Presentation of Resolutions
[P. 144, add new topic at end of section:]
The Line Item Veto.--For more than a century, United
States Presidents had sought the authority to strike out of
appropriations bills particular items, to veto ``line
items'' of money bills and sometimes legislative measures as
well. Finally, in 1996, Congress approved and the President
signed the Line Item Veto Act.\14\ The law empowered the
President, within five days of signing a bill, to ``cancel
in whole'' spending items and targeted, defined tax
benefits. In acting on this authority, the President was to
determine that the cancellation of each item would ``(i)
reduce the Federal budget deficit; (ii) not impair any
essential Government functions; and (iii) not harm the
national interest.'' \15\ In Clinton v. City of New
York,\16\ the Court held the Act to be unconstitutional
because it did not comply with the Presentment Clause.
---------------------------------------------------------------------------
\14\ Pub. L. No. 104-130, 110 Stat. 1200, codified
in part at 2 U.S.C. Sec. Sec. 691-92.
\15\ Id. at Sec. 691(a)(A).
\16\ 524 U.S. 417 (1998).
---------------------------------------------------------------------------
Although Congress in passing the Act considered
itself to have been delegating power,\17\ and although the
dissenting Justices would have upheld the Act as a valid
delegation,\18\ the Court instead analyzed the statute under
the Presentment Clause. In the Court's view, the two bills
from which the President subsequently struck items became
law the moment the President signed them. His cancellations
thus amended and in part repealed the two federal laws.
Under its most immediate precedent, the Court continued,
statutory repeals must conform to the Presentment Clauses's
``single, finely wrought and exhaustively considered,
procedure'' for enacting or repealing a law.\19\ In no
respect did the procedures in the Act comply with that
clause, and in no way could they. The President was acting
in a legislative capacity, altering a law in the manner
prescribed, and legislation must, in the way Congress acted,
be bicameral and be presented to the President after
Congress acted. Nothing in the Constitution authorized the
President to amend or repeal a statute unilaterally, and the
Court could construe both constitutional silence and the
historical practice over 200 years as ``an express
prohibition'' of the President's action.\20\
---------------------------------------------------------------------------
\17\ E.g., H.R. Conf. Rep. No. 104-491, 104th Cong.,
2d Sess., 15 (1996) (stating that the proposed law
``delegates limited authority to the President'').
\18\ 524 U.S. at 453 (Justice Scalia concurring in
part and dissenting in part); id. at 469 (Justice Breyer
dissenting).
\19\ 524 U.S. at 438-39 (citing and quoting INS v.
Chadha, 462 U.S. 919, 951 (1983).
\20\ 524 U.S. at 439.
---------------------------------------------------------------------------
POWER TO REGULATE COMMERCE
Definition of Terms
--Federalism Limits on Exercise of Commerce Power
[P. 167, add to n.619, immediately after New York v. United
States:]
See also Printz v. United States, 521 U.S. 898 (1997).
The Commerce Clause as a Source of National Police Power
--Is There an Intrastate Barrier to Congress' Commerce
Power?
[P. 206, add to n.818:]
In a later case the Court avoided the constitutional
issue by holding the statute inapplicable to the arson of an
owner-occupied private residence. Jones v. United States,
120 S. Ct. 1904 (2000). An owner-occupied building is not
``used'' in interstate commerce within the meaning of the
statute, the Court concluded.
[P. 207, add to text following n.820:]
For the first time in almost 60 years,\21\ the Court
invalidated a federal law as exceeding Congress' authority
under the Commerce Clause.\22\ The statute was a provision
making it a federal offense to possess a firearm within
1,000 feet of a school.\23\ The Court reviewed the doctrinal
development of the Commerce Clause, especially the effects
and aggregation tests, and reaffirmed that it is the Court's
responsibility to decide whether a rational basis exists for
concluding that a regulated activity sufficiently affects
interstate commerce when a law is challenged.\24\ The Court
identified three broad categories of activity that Congress
may regulate under its commerce power. ``First, Congress may
regulate the use of the channels of interstate commerce . .
. . Second, Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or
things in interstate commerce,\25\ even though the threat
may come only from intrastate activities . . . . Finally,
Congress' commerce authority includes the power to regulate
those activities having a substantial relation to interstate
commerce, . . . i.e., those activities that substantially
affect interstate commerce.'' \26\
---------------------------------------------------------------------------
\21\ The last such decision had been Carter v.
Carter Coal Co., 298 U.S. 238 (1936).
\22\ United States v. Lopez, 514 U.S. 549 (1995).
The Court was divided 5 to 4, with Chief Justice Rehnquist
writing the opinion of the Court, joined by Justices
O'Connor, Scalia, Kennedy, and Thomas, with dissents by
Justices Stevens, Souter, Breyer, and Ginsburg.
\23\ The Gun-Free School Zones Act of 1990, Pub. L.
No. 101-647, Sec. 1702, 104 Stat. 4844, 18 U.S.C.
Sec. 922(q)(1)(A). Congress subsequently amended the section
to make the jurisdiction turn on possession of ``a firearm
that has moved in or that otherwise affects interstate or
foreign commerce.'' Pub. L. No. 104-208, Sec. 657, 110 Stat.
3009-370.
\24\ 514 U.S. at 556-57, 559.
\25\ For a recent example of such regulation, see
Reno v. Condon, 120 S. Ct. 666 (2000) (information about
motor vehicles and owners, regulated pursuant to the
Driver's Privacy Protection Act, and sold by states and
others, is an article of commerce).
\26\ 514 U.S. at 558-59.
---------------------------------------------------------------------------
Clearly, said the Court, the criminalized activity
did not implicate the first two categories.\27\ As for the
third, the Court found an insufficient connection. First, a
wide variety of regulations of ``intrastate economic
activity'' has been sustained where an activity
substantially affects interstate commerce. But the statute
being challenged, the Court continued, was a criminal law
that had nothing to do with ``commerce'' or with ``any sort
of economic enterprise.'' Therefore, it could not be
sustained under precedents ``upholding regulations of
activities that arise out of or are connected with a
commercial transaction, which viewed in the aggregate,
substantially affects interstate commerce.'' \28\ The
provision did not contain a ``jurisdictional element which
would ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce.'' \29\
The existence of such a section, the Court implied, would
have saved the constitutionality of the provision by
requiring a showing of some connection to commerce in each
particular case. Finally, the Court rejected the arguments
of the Government and of the dissent that there existed a
sufficient connection between the offense and interstate
commerce.\30\ At base, the Court's concern was that
accepting the attenuated connection arguments presented
would result in the evisceration of federalism. ``Under the
theories that the Government presents . . . it is difficult
to perceive any limitation on federal power, even in areas
such as criminal law enforcement or education where States
historically have been sovereign. Thus, if we were to accept
the Government's arguments, we are hard pressed to posit any
activity by an individual that Congress is without power to
regulate.'' \31\
---------------------------------------------------------------------------
\27\ Id. at 559.
\28\ Id. at 559-61.
\29\ Id. at 561.
\30\ Id. at 563-68.
\31\ Id. at 564.
---------------------------------------------------------------------------
Whether Lopez bespoke a Court determination to
police more closely Congress' exercise of its commerce
power, so that it would be a noteworthy case,\32\ or whether
it was rather a ``warning shot'' across the bow of Congress,
urging more restraint in the exercise of power or more care
in the drafting of laws, was not immediately clear. The
Court's decision five years later in United States v.
Morrison,\33\ however, suggests that stricter scrutiny of
Congress' commerce power exercises is the chosen path, at
least for legislation that falls outside the area of
economic regulation.\34\ The Court will no longer defer, via
rational basis review, to every congressional finding of
substantial effects on interstate commerce, but instead will
examine the nature of the asserted nexus to commerce, and
will also consider whether a holding of constitutionality is
consistent with its view of the commerce power as being a
limited power that cannot be allowed to displace all
exercise of state police powers.
---------------------------------------------------------------------------
\32\ ``Not every epochal case has come in epochal
trappings.'' Id. at 615 (Justice Souter dissenting)
(wondering whether the case is only a misapplication of
established standards or is a veering in a new direction).
\33\ 120 S. Ct. 1740 (2000). Once again, the
Justices were split 5 to 4, with Chief Justice Rehnquist's
opinion of the Court being joined by Justices O'Connor,
Scalia, Kennedy, and Thomas, and with Justices Souter,
Stevens, Ginsburg, and Breyer dissenting.
\34\ For an expansive interpretation in the area of
economic regulation, decided during the same Term as Lopez,
see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265
(1995).
---------------------------------------------------------------------------
In Morrison the Court applied Lopez principles to
invalidate a provision of the Violence Against Women Act
(VAWA) that created a federal cause of action for victims of
gender-motivated violence. Gender-motivated crimes of
violence ``are not, in any sense of the phrase, economic
activity,'' \35\ the Court explained, and there was
allegedly no precedent for upholding commerce-power
regulation of intrastate activity that was not economic in
nature. The provision, like the invalidated provision of the
Gun-Free School Zones Act, contained no jurisdictional
element tying the regulated violence to interstate commerce.
Unlike the Gun-Free School Zones Act, the VAWA did contain
``numerous'' congressional findings about the serious
effects of gender-motivated crimes,\36\ but the Court
rejected reliance on these findings. ``The existence of
congressional findings is not sufficient, by itself, to
sustain the constitutionality of Commerce Clause
legislation. . . . [The issue of constitutionality] is
ultimately a judicial rather than a legislative question,
and can be settled finally only by this Court.'' \37\ The
problem with the VAWA findings was that they ``relied
heavily'' on the reasoning rejected in Lopez--the ``but-for
causal chain from the initial occurrence of crime . . . to
every attenuated effect upon interstate commerce.'' As the
Court had explained in Lopez, acceptance of this reasoning
would eliminate the distinction between what is truly
national and what is truly local, and would allow Congress
to regulate virtually any activity, and basically any
crime.\38\ Accordingly, the Court ``reject[ed] the argument
that Congress may regulate noneconomic, violent criminal
conduct based solely on that conduct's aggregate effect on
interstate commerce.'' Resurrecting the dual federalism
dichotomy, the Court could find ``no better example of the
police power, which the Founders denied the National
Government and reposed in the States, than the suppression
of violent crime and vindication of its victims.'' \39\
---------------------------------------------------------------------------
\35\ 120 S. Ct. at 1751.
\36\ Dissenting Justice Souter pointed to a
``mountain of data'' assembled by Congress to show the
effects of domestic violence on interstate commerce. 120 S.
Ct. at 1760-63. The Court has evidenced a similar
willingness to look behind congressional findings purporting
to justify exercise of enforcement power under section 5 of
the Fourteenth Amendment. See discussion under
``enforcement,'' infra. In Morrison itself, the Court
determined that congressional findings were insufficient to
justify the VAWA as an exercise of Fourteenth Amendment
power. 120 S. Ct. at 1755.
\37\ 120 S. Ct. at 1752.
\38\ 120 S. Ct. at 1752-53. Applying the principle
of constitutional doubt, the Court in Jones v. United
States, 120 S. Ct. 1904 (2000), interpreted the federal
arson statute as inapplicable to the arson of a private,
owner-occupied residence. Were the statute interpreted to
apply to such residences, the Court noted, ``hardly a
building in the land would fall outside [its] domain,'' and
the statute's validity under Lopez would be squarely raised.
120 S. Ct. at 1911.
\39\ 120 S. Ct. at 1754.
---------------------------------------------------------------------------
THE COMMERCE CLAUSE AS A RESTRAINT ON STATE POWERS
Doctrinal Background
[Pp. 215-16, add to n.864:]
Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60,
78 (1993) (Justice Scalia concurring) (reiterating view);
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175,
200-01 (1995) (Justice Scalia, with Justice Thomas joining)
(same). Justice Thomas has written an extensive opinion
rejecting both the historical and jurisprudential basis of
the dormant Commerce Clause and expressing a preference for
reliance on the Imports-Exports Clause. Camps Newfound/
Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609 (1997)
(dissenting; joined by Justice Scalia entirely and by Chief
Justice Rehnquist as to the Commerce Clause but not the
Imports-Exports Clause).
State Taxation and Regulation: The Old Law
--Taxation
[P. 223, add to n.907:]
Notice the Court's distinguishing of Central Greyhound
in Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S.
175, 188-91 (1995).
--Regulation
[P. 227, add to n.928:]
And see C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383, 391 (1994) (discrimination against interstate
commerce not preserved because local businesses also
suffer).
[P. 227, add to n.930:]
For the most recent case in this saga, see West Lynn
Creamery, Inc. v. Healy, 512 U.S. 186 (1994).
State Taxation and Regulation: The Modern Law
--Taxation
[P. 229, add to n.941:]
A recent application of the four-part Complete Auto
Transit test is Oklahoma Tax Comm'n v. Jefferson Lines,
Inc., 514 U.S. 175 (1995).
[P. 231, add to n.952:]
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 120 S.
Ct. 1022 (2000) (interest deduction not properly apportioned
between unitary and non-unitary business).
[P. 232, add to text following n.959:]
A deference to state taxing authority was evident in
a case in which the Court sustained a state sales tax on the
price of a bus ticket for travel that originated in the
State but terminated in another State. The tax was not
apportioned to reflect the intrastate travel and the
interstate travel.\40\ The tax in this case was different
from the tax upheld in Central Greyhound, the Court held.
The previous tax constituted a levy on gross receipts,
payable by the seller, whereas the present tax was a sales
tax, also assessed on gross receipts, but payable by the
buyer. The Oklahoma tax, the Court continued, was internally
consistent, since if every State imposed a tax on ticket
sales within the State for travel originating there, no sale
would be subject to more than one tax. The tax was also
externally consistent, the Court held, because it was a tax
on the sale of a service that took place in the State, not a
tax on the travel.\41\
---------------------------------------------------------------------------
\40\ Indeed, there seemed to be a precedent squarely
on point. Central Greyhound Lines, Inc. v. Mealey, 334 U.S.
653 (1948). Struck down in that case was a state statute
that failed to apportion its taxation of interstate bus
ticket sales to reflect the distance traveled within the
State.
\41\ Oklahoma Tax Comm'n v. Jefferson Lines, Inc.,
514 U.S. 175 (1995). Indeed, the Court analogized the tax to
that in Goldberg v. Sweet, 488 U.S. 252 (1989), a tax on
interstate telephone services that originated in or
terminated in the State and that were billed to an in-state
address.
---------------------------------------------------------------------------
However, the Court found discriminatory and thus
invalid a state intangibles tax on a fraction of the value
of corporate stock owned by state residents inversely
proportional to the corporation's exposure to the state
income tax.\42\
---------------------------------------------------------------------------
\42\ Fulton Corp. v. Faulkner, 516 U.S. 325 (1996).
The State had defended on the basis that the tax was a
``compensatory'' one designed to make interstate commerce
bear a burden already borne by intrastate commerce. The
Court recognized the legitimacy of the defense, but it found
the tax to meet none of the three criteria for
classification as a valid compensatory tax. Id. at 333-44.
See also South Central Bell Tel. Co. v. Alabama, 526 U.S.
160 (1999) (tax not justified as compensatory).
---------------------------------------------------------------------------
[P. 232, add to n.961:]
And see Oregon Waste Systems, Inc. v. Department of
Envtl. Quality, 511 U.S. 93 (1994) (surcharge on in-state
disposal of solid wastes that discriminates against
companies disposing of waste generated in other States
invalid).
[P. 233, add to n.965:]
Compare Fulton Corp. v. Faulkner, 516 U.S. 325 (1996)
(state intangibles tax on a fraction of the value of
corporate stock owned by in-state residents inversely
proportional to the corporation's exposure to the state
income tax violated dormant Commerce Clause), with General
Motors Corp. v. Tracy, 519 U.S. 278 (1997) (state imposition
of sales and use tax on all sales of natural gas except
sales by regulated public utilities, all of which were in-
state companies, but covering all other sellers that were
out-of-state companies did not violate dormant Commerce
Clause because regulated and unregulated companies were not
similarly situated).
[P. 233, add to text following n.965:]
Expanding, although neither unexpectedly nor
exceptionally, its dormant commerce jurisprudence, the Court
in Camps Newfound/Owatonna, Inc. v. Town of Harrison,\43\
applied its nondiscrimination element of the doctrine to
invalidate the State's charitable property tax exemption
statute, which applied to nonprofit firms performing
benevolent and charitable functions, but which excluded
entities serving primarily non-state residents. The claimant
here operated a church camp for children, most of whom
resided out-of-state. The discriminatory tax would easily
have fallen had it been applied to profit-making firms, and
the Court saw no reason to make an exception for nonprofits.
The tax scheme was designed to encourage entities to care
for local populations and to discourage attention to out-of-
state individuals and groups. ``For purposes of Commerce
Clause analysis, any categorical distinction between the
activities of profit-making enterprises and not-for-profit
entities is therefore wholly illusory. Entities in both
categories are major participants in interstate markets.
And, although the summer camp involved in this case may have
a relatively insignificant impact on the commerce of the
entire Nation, the interstate commercial activities of
nonprofit entities as a class are unquestionably
significant.'' \44\
---------------------------------------------------------------------------
\43\ 520 U.S. 564 (1997). The decision was a 5 to 4
one with a strong dissent by Justice Scalia, id. at 595, and
a philosophical departure by Justice Thomas. Id. at 609.
\44\ Id. at 586.
---------------------------------------------------------------------------
[P. 236, add to n.978:]
In West Lynn Creamery, Inc. v. Healy, 512 U.S. 186
(1994), the Court held invalidly discriminatory against
interstate commerce a state milk pricing order, which
imposed an assessment on all milk sold by dealers to in-
state retailers, the entire assessment being distributed to
in-state dairy farmers despite the fact that about two-
thirds of the assessed milk was produced out of State. The
avowed purpose and undisputed effect of the provision was to
enable higher-cost in-state dairy farmers to compete with
lower-cost dairy farmers in other States.
--Regulation
[P. 236, add to text following n.980:]
Further extending the limitation of the clause on
waste disposal,\45\ the Court invalidated as a
discrimination against interstate commerce a local ``flow
control'' law, which required all solid waste within the
town to be processed at a designated transfer station before
leaving the municipality.\46\ The town's reason for the
restriction was its decision to have built a solid waste
transfer station by a private contractor, rather than with
public funds by the town. To make the arrangement appetizing
to the contractor, the town guaranteed it a minimum waste
flow, for which it could charge a fee significantly higher
than market rates. The guarantee was policed by the
requirement that all solid waste generated within the town
be processed at the contractor's station and that any person
disposing of solid waste in any other location would be
penalized.
---------------------------------------------------------------------------
\45\ See also Oregon Waste Systems, Inc. v.
Department of Envtl. Quality, 511 U.S. 93 (1994)
(discriminatory tax).
\46\ C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383 (1994).
---------------------------------------------------------------------------
The Court analogized the constraint as a form of
economic protectionism, which bars out-of-state processors
from the business of treating the locality's solid waste, by
hoarding a local resource for the benefit of local
businesses that perform the service. The town's goal of
revenue generation was not a local interest that could
justify the discrimination. Moreover, the town had other
means to accomplish this goal, such as subsidization of the
local facility through general taxes or municipal bonds. The
Court did not deal with, indeed, did not notice, the fact
that the local law conferred a governmentally-granted
monopoly, an exclusive franchise, indistinguishable from a
host of local monopolies at the state and local level.\47\
---------------------------------------------------------------------------
\47\ See The Supreme Court, Leading Cases, 1993
Term, 108 Harv. L. Rev. 139, 149-59 (1994). Weight was given
to this consideration by Justice O'Connor, 511 U.S. at 401
(concurring) (local law an excessive burden on interstate
commerce), and by Justice Souter, id. at 410 (dissenting).
---------------------------------------------------------------------------
Foreign Commerce and State Powers
[P. 241, add to n.1001:]
See also Itel Containers Int'l Corp. v. Huddleston, 507
U.S. 60 (1993) (sustaining state sales tax as applied to
lease of containers delivered within the State and used in
foreign commerce).
[P. 242, add to text following n.1004:]
Extending Container Corporation, the Court in
Barclays Bank v. Franchise Tax Board of California,\48\
upheld the State's worldwide-combined reporting method of
determining the corporate franchise tax owed by unitary
multinational corporations, as applied to a foreign
corporation. The Court determined that the tax easily
satisfied three of the four-part Complete Auto test--nexus,
apportionment, and relation to State's services--and
concluded that the nondiscrimination principle--perhaps
violated by the letter of the law--could be met by the
discretion accorded state officials. As for the two
additional factors, as outlined in Japan Lines, the Court
pronounced itself satisfied. Multiple taxation was not the
inevitable result of the tax, and that risk would not be
avoided by the use of any reasonable alternative. The tax,
it was found, did not impair federal uniformity nor prevent
the Federal Government from speaking with one voice in
international trade. The result of the case, perhaps
intended, is that foreign corporations have less protection
under the negative Commerce Clause.\49\
---------------------------------------------------------------------------
\48\ 512 U.S. 298 (1994).
\49\ The Supreme Court, Leading Cases, 1993 Term,
108 Harv. L. Rev. 139, 139-49 (1993).
---------------------------------------------------------------------------
CONCURRENT FEDERAL AND STATE JURISDICTION
The General Issue: Preemption
--The Standards Applied
[P. 247, add to n.1026, immediately preceding City of New
York v. FCC:]
Smiley v. Citibank, 517 U.S. 735 (1996).
[P. 247, add to n.1027:]
And see Department of Treasury v. Fabe, 508 U.S. 491
(1993).
[P. 247, add to n.1029:]
See also American Airlines v. Wolens, 513 U.S. 219
(1995).
[P. 248, add to n.1032:]
District of Columbia v. Greater Washington Bd. of Trade,
506 U.S. 125 (1992) (law requiring employers to provide
health insurance coverage, equivalent to existing coverage,
for workers receiving workers' compensation benefits); John
Hancock Mutual Life Ins. Co. v. Harris Trust and Savings
Bank, 510 U.S. 86 (1993) (ERISA's fiduciary standards, not
conflicting state insurance laws, apply to insurance
company's handling of general account assets derived from
participating group annuity contract); New York State Conf.
of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645 (1995) (no preemption of statute that required
hospitals to collect surcharges from patients covered by a
commercial insurer but not from patients covered by Blue
Cross/Blue Shield plan); De Buono v. NYSA-ILA Med. and
Clinical Servs. Fund, 520 U.S. 806 (1997); California Div.
of Labor Stds. Enforcement v. Dillingham Constr., Inc., 519
U.S. 316 (1997); Boggs v. Boggs, 520 U.S. 833 (1997)
(decided not on the basis of the express preemption language
but instead by implied preemption analysis).
[P. 249, add to text following n.1035:]
Little clarification of the confusing Cipollone
decision and opinions resulted in the cases following,
although it does seem evident that the attempted distinction
limiting courts to the particular language of preemption
when Congress has spoken has not prevailed. At issue in
Medtronic, Inc. v. Lohr,\50\ was the Medical Device
Amendments (MDA) of 1976, which prohibited States from
adopting or continuing in effect ``with respect to a
[medical] device'' any ``requirement'' that is ``different
from, or in addition to'' the applicable federal requirement
and that relates to the safety or effectiveness of the
device.\51\ The issue, then, was whether a common-law tort
obligation imposed a ``requirement'' that was different from
or in addition to any federal requirement. The device, a
pacemaker lead, had come on the market not pursuant to the
rigorous FDA test but rather as determined by the FDA to be
``substantially equivalent'' to a device previously on the
market, a situation of some import to at least some of the
Justices.
---------------------------------------------------------------------------
\50\ 518 U.S. 470 (1996). See also CSX
Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993)
(under Federal Railroad Safety Act, a state common-law claim
alleging negligence for operating a train at excessive speed
is preempted, but a second claim alleging negligence for
failure to maintain adequate warning devices at a grade
crossing is not preempted); Norfolk So. Ry. v. Shanklin, 120
S. Ct. 1467 (2000) (applying Easterwood).
\51\ 21 U.S.C. Sec. 350k(a).
---------------------------------------------------------------------------
Unanimously, the Court determined that a defective
design claim was not preempted and that the MDA did not
prevent States from providing a damages remedy for violation
of common-law duties that paralleled federal requirements.
But the Justices split 4-1-4 with respect to preemption of
various claims relating to manufacturing and labeling. FDA
regulations, which a majority deferred to, limited
preemption to situations in which a particular state
requirement threatens to interfere with a specific federal
interest. Moreover, the common-law standards were not
specifically developed to govern medical devices and their
generality removed them from the category of requirements
``with respect to'' specific devices. However, five Justices
did agree that common-law requirements could be, just as
statutory provisions, ``requirements'' that were preempted,
though they did not agree on the application of that
view.\52\
---------------------------------------------------------------------------
\52\ The dissent, by Justice O'Connor and three
others, would have held preempted the latter claims, 518
U.S. at 509, whereas Justice Breyer thought that common-law
claims would sometimes be preempted, but not here. Id. at
503 (concurring).
---------------------------------------------------------------------------
Following Cipollone, the Court observed that while
it ``need not go beyond'' the statutory preemption language,
it did need to ``identify the domain expressly pre-empted''
by the language, so that ``our interpretation of that
language does not occur in a contextual vacuum.'' That is,
it must be informed by two presumptions about the nature of
preemption: the presumption that Congress does not
cavalierly preempt common-law causes of action and the
principle that it is Congress' purpose that is the ultimate
touchstone.\53\
---------------------------------------------------------------------------
\53\ 518 U.S. at 484-85. See also id. at 508
(Justice Breyer concurring); Freightliner Corp. v. Myrick,
514 U.S. 280, 288-89 (1995); Barnett Bank v. Nelson, 517
U.S. 25, 31 (1996); California Div. of Labor Stds.
Enforcement v. Dillingham Constr., Inc., 519 U.S. 316, 334
(1997) (Justice Scalia concurring); Boggs v. Boggs, 520 U.S.
833 (1997) (using ``stands as an obstacle'' preemption
analysis in an ERISA case, having express preemptive
language, but declining to decide when implied preemption
may be used despite express language), and id. at 854
(Justice Breyer dissenting) (analyzing the preemption issue
under both express and implied standards).
---------------------------------------------------------------------------
The Court continued to struggle with application of
express preemption language to state common-law tort actions
in Geier v. American Honda Motor Co.\54\ The National
Traffic and Motor Vehicle Safety Act contained both a
preemption clause, prohibiting states from applying ``any
safety standard'' different from an applicable federal
standard, and a ``saving clause,'' providing that
``compliance with'' a federal safety standard ``does not
exempt any person from any liability under common law.'' The
Court determined that the express preemption clause was
inapplicable. However, despite the saving clause, the Court
ruled that a common law tort action seeking damages for
failure to equip a car with an airbag was preempted because
its application would frustrate the purpose of a Federal
Motor Vehicle Safety Standard that had allowed manufacturers
to choose from among a variety of ``passive restraint''
systems for the applicable model year.\55\ The Court's
holding makes clear, contrary to the suggestion in
Cipollone, that existence of express preemption language
does not foreclose operation of conflict (in this case
``frustration of purpose'') preemption.
---------------------------------------------------------------------------
\54\ 120 S. Ct. 1913 (2000).
\55\ The Court focused on the word ``exempt'' to
give the saving clause a narrow application--as ``simply
bar[ring] a special kind of defense, . . . that compliance
with a federal safety standard automatically exempts a
defendant from state law, whether the Federal Government
meant that standard to be an absolute requirement or only a
minimum one.'' 120 S. Ct. at 1919.
---------------------------------------------------------------------------
[P. 251, add to n.1046 after Ray v. Atlantic Richfield
citation:]
United States v. Locke, 120 S. Ct. 1135 (2000) (applying
Ray).
[P. 252, add to n.1050 before Free v. Brand:]
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265
(1995) (federal arbitration law preempts state law
invalidating pre-dispute arbitration agreements that were
not entered into in contemplation of substantial interstate
activity); Doctor's Associates, Inc. v. Casarotto, 517 U.S.
681 (1996) (federal arbitration law preempts state statute
that conditioned enforceability of arbitration clause on
compliance with special notice requirement).
[P. 252, add to n.1054:]
See also Barnett Bank v. Nelson, 517 U.S. 25 (1996)
(federal law empowering national banks in small towns to
sell insurance preempts state law prohibiting banks from
dealing in insurance; despite explicit preemption provision,
state law stands as an obstacle to accomplishment of federal
purpose).
[P. 253, add to text following n.1057:]
In Boggs v. Boggs,\56\ the Court, 5 to 4, applied
the ``stands as an obstacle'' test for conflict even though
the statute (ERISA) contains an express preemption section.
The dispute arose in a community-property State, in which
heirs of a deceased wife claimed property that involved
pension-benefit assets that was left to them by testamentary
disposition, as against a surviving second wife. Two ERISA
provisions operated to prevent the descent of the property
to the heirs, but under community-property rules the
property could have been left to the heirs by their deceased
mother. The Court did not pause to analyze whether the ERISA
preemption provision operated to preclude the descent of the
property, either because state law ``relate[d] to'' a
covered pension plan or because state law had an
impermissible ``connection with'' a plan, but it instead
decided that the operation of the state law insofar as it
conflicted with the purposes Congress had intended to
achieve by ERISA and insofar as it ran into the two noted
provisions of ERISA stood as an obstacle to the effectuation
of the ERISA law. ``We can begin, and in this case end, the
analysis by simply asking if state law conflicts with the
provisions of ERISA or operates to frustrate its objects. We
hold that there is a conflict, which suffices to resolve the
case. We need not inquire whether the statutory phrase
`relate to' provides further and additional support for the
pre-emption claim. Nor need we consider the applicability of
field pre-emption.'' \57\
---------------------------------------------------------------------------
\56\ 520 U.S. 833 (1997).
\57\ Id. at 841. The dissent, id. at 854 (Justice
Breyer), agreed that conflict analysis was appropriate, but
he did not find that the state law achieved any result that
ERISA required.
---------------------------------------------------------------------------
Similarly, the Court found it unnecessary to
consider field preemption due to its holding that a
Massachusetts law barring state agencies from purchasing
goods or services from companies doing business with Burma
imposed obstacles to the accomplishment of Congress' full
objectives under the federal Burma sanctions law.\58\ The
state law was said to undermine the federal law in several
respects that could have implicated field preemption--by
limiting the President's effective discretion to control
sanctions, and by frustrating the President's ability to
engage in effective diplomacy in developing a comprehensive
multilateral strategy--but the Court ``decline[d] to speak
to field preemption as a separate issue.'' \59\
---------------------------------------------------------------------------
\58\ Crosby v. National Foreign Trade Council, 120
S. Ct. 2288 (2000).
\59\ 120 S. Ct. at 2295 n.8.
---------------------------------------------------------------------------
--Federal Versus State Labor Laws
[P. 255, add to n.1069, immediately following Bethlehem
Steel:]
See also Livadas v. Bradshaw, 512 U.S. 107 (1994)
(finding preempted because it stood as an obstacle to the
achievement of the purposes of NLRA a practice of a state
labor commissioner).
COMMERCE WITH INDIAN TRIBES
[P. 263, add to n.1114:]
For recent tax controversies, see Oklahoma Tax Comm'n v.
Sac & Fox Nation, 508 U.S. 114 (1993); Department of
Taxation & Finance v. Milhelm Attea & Bros., 512 U.S. 61
(1994); Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S.
450 (1995).
[P. 263, add to n.1117, immediately following Brendale
discussion:]
And see Hagen v. Utah, 510 U.S. 399 (1994).
[P. 264, add to n.1119:]
See South Dakota v. Bourland, 508 U.S. 679 (1993)
(abrogation of Indian treaty rights and reduction of
sovereignty).
ALIENS
The Power of Congress to Exclude Aliens
[P. 276, add to n.1199:]
See Sale v. Haitian Centers Council, 509 U.S. 155 (1993)
(construing statutes and treaty provisions restrictively to
affirm presidential power to interdict and seize fleeing
aliens on high seas to prevent them from entering U.S.
waters).
Deportation
[P. 281, add to n.1232:]
In Reno v. Flores, 507 U.S. 292 (1993), the Court upheld
an INS regulation providing for the ongoing detention of
juveniles apprehended on suspicion of being deportable,
unless parents, close relatives, or legal guardians were
available to accept release, as against a substantive due
process attack.
[P. 281, add to text at end of section:]
An alien unlawfully in the country ``has no
constitutional right to assert selective enforcement as a
defense against his deportation.'' \60\
---------------------------------------------------------------------------
\60\ Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 488 (1999).
---------------------------------------------------------------------------
COPYRIGHTS AND PATENTS
Procedure in Issuing Patents
[P. 297, add to n.1353:]
In Markman v. Westview Instruments, Inc., 517 U.S. 348
(1996), the Court held that the interpretation of terms in a
patent claim is a matter of law reserved entirely for the
court. The Seventh Amendment does not require that such
issues be tried to a jury.
Nature and Scope of the Right Secured
[P. 298, add to n.1359:]
For fair use in the context of a song parody, see
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
THE POWER TO RAISE AND MAINTAIN ARMED FORCES
Trial and Punishment of Offenses: Servicemen, Civilian
Employees, and Dependents
[P. 316, add to n.1465:]
See Loving v. United States, 517 U.S. 748 (1996) (in
context of the death penalty under the UCMJ).
POWERS DENIED TO CONGRESS
Taxes on Exports
[P. 356, add to text following n.1772:]
Continuing its refusal to modify its Export Clause
jurisprudence,\61\ the Court held unconstitutional the
Harbor Maintenance Tax (HMT) under the Export Clause insofar
as the tax was applied to goods loaded at United States
ports for export. The HMT required shippers to pay a uniform
charge on commercial cargo shipped through the Nation's
ports. The clause, said the Court, ``categorically bars
Congress from imposing any tax on exports.'' \62\ However,
the clause does not interdict a ``user fee,'' that is a
charge that lacks the attributes of a generally applicable
tax or duty and is designed to compensate for government
supplied services, facilities, or benefits, and it was that
defense to which the Government repaired once it failed to
obtain a modification of the rules under the clause. But the
HMT bore the indicia of a tax. It was titled as a tax,
described as a tax in the law, and codified in the Internal
Revenue Code. Aside from naming, however, courts must look
to how things operate, and the HMT did not qualify as a user
fee. It did not represent compensation for services
rendered. The value of export cargo did not correspond
reliably with the federal harbor services used or usable by
the exporter. Instead, the extent and manner of port use
depended on such factors as size and tonnage of a vessel and
the length of time it spent in port.\63\ The HMT was thus a
tax, and therefore invalid.
---------------------------------------------------------------------------
\61\ See United States v. IBM Corp., 517 U.S. 843,
850-61 (1996).
\62\ United States v. United States Shoe Corp., 523
U.S. 360, 363 (1998).
\63\ Id. at 367-69.
---------------------------------------------------------------------------
[P. 356, add to text following n.1775:]
In United States v. IBM Corporation,\64\ the Court
declined the Government's argument that it should refine its
export-tax-clause jurisprudence. Rather than read the clause
as a bar on any tax that applies to a good in the export
stream, the Government contended that the Court should bring
this clause in line with the Import-Export Clause \65\ and
with dormant-commerce-clause doctrine. In that view, the
Court should distinguish between discriminatory and
nondiscriminatory taxes on exports. But the Court held that
sufficient differences existed between the Export Clause and
the other two clauses, so that its bar should continue to
apply to any and all taxes on goods in the course of
exportation.
---------------------------------------------------------------------------
\64\ 517 U.S. 843 (1996).
\65\ Article I, Sec. 10, cl. 2, applying to the
States.
---------------------------------------------------------------------------
[P. 356, add to n.1778:]
In United States v. IBM Corp., 517 U.S. 843 (1996), the
Court adhered to Thames & Mersey, and held unconstitutional
a federal excise tax upon insurance policies issued by
foreign countries as applied to coverage for exported
products. The Court admitted that one could question the
earlier case's equating of a tax on the insurance of
exported goods with a tax on the goods themselves, but it
observed that the Government had chosen not to present that
argument. Principles of stare decisis thus cautioned
observance of the earlier case. Id. at 854-55. The
dissenters argued that the issue had been presented and
should be decided by overruling the earlier case. Id. at 863
(Justices Kennedy and Ginsburg dissenting).
POWERS DENIED TO THE STATES
Ex Post Facto Laws
--Scope of the Provision
[P. 362, add to n.1815:]
In Eastern Enterprises v. Apfel, 524 U.S. 498, 538
(1998) (concurring), Justice Thomas indicated a willingness
to reconsider Calder to determine whether the clause should
apply to civil legislation.
--Changes in Punishment
[P. 364, add to n.1829:]
But see California Dep't of Corrections v. Morales, 514
U.S. 499 (1995) (a law amending parole procedures to
decrease frequency of parole-suitability hearings is not ex
post facto as applied to prisoners who committed offenses
before enactment). The opinion modifies previous opinions
that had invalidated some laws because they operated to the
``disadvantage'' of covered offenders. Henceforth, ``the
focus of ex post facto inquiry is . . . whether any such
change alters the definition of criminal conduct or
increases the penalty by which a crime is punishable.'' Id.
at 506 n.3. Accord, Garner v. Jones, 120 S. Ct. 1362 (2000)
(evidence insufficient to determine whether change in
frequency of parole hearings significantly increases the
likelihood of prolonging incarceration). But see Lynce v.
Mathis, 519 U.S. 433 (1997) (cancellation of release credits
already earned and used, resulting in reincarceration,
violates the Clause).
--Changes in Procedure
[P. 366, add to end of section:]
Changes in evidentiary rules that allow conviction
on less evidence than was required at the time the crime was
committed can also run afoul of the Ex Post Facto Clause.
This principle was applied in the Court's invalidation of
retroactive application of a Texas law that eliminated the
requirement that the testimony of a sexual assault victim
age 14 or older must be corroborated by two other witnesses,
and allowed conviction on the victim's testimony alone.\66\
---------------------------------------------------------------------------
\66\ Carmell v. Texas, 120 S. Ct. 1620 (2000).
---------------------------------------------------------------------------
Duties on Exports or Imports
--Scope
[P. 399, add to n.2000:]
Justice Thomas has called recently for reconsideration
of Woodruff and the possible application of the clause to
interstate imports and exports. Camps Newfound/Owatonna,
Inc. v. Town of Harrison, 520 U.S. 564, 609, 621 (1997)
(dissenting).
--Property Taxes
[P. 400, add to n.2020:]
See also Itel Containers Int'l Corp. v. Huddleston, 507
U.S. 60, 76-8 (1993). And see id. at 81-2 (Justice Scalia
concurring).
ARTICLE II
NATURE AND SCOPE OF PRESIDENTIAL POWER
Executive Power: Theory of the Presidential Office
--The Curtiss-Wright Case
[P. 420, add to n.34:]
In Loving v. United States, 517 U.S. 748 (1996), the
Court recurred to the original setting of Curtiss-Wright, a
delegation to the President without standards. Congress, the
Court found, had delegated to the President authority to
structure the death penalty provisions of military law so as
to bring the procedures, relating to aggravating and
mitigating factors, into line with constitutional
requirements, but Congress had provided no standards to
guide the presidential exercise of the authority. Standards
were not required, held the Court, because the President's
role as Commander-in-Chief gave him responsibility to
superintend the military establishment and Congress and the
President had interlinked authorities with respect to the
military. Where the entity exercising the delegated
authority itself possesses independent authority over the
subject matter, the familiar limitations on delegation do
not apply. Id. at 771-74.
Executive Power: Separation-of-Powers Judicial Protection
[P. 422, add to text following n.45:]
Significant change in the position of the Executive
Branch on separation of powers may be discerned in two
briefs of the Department of Justice's Office of Legal
Counsel, which may spell some measure of judicial
modification of the formalist doctrine of separation and
adoption of the functionalist approach to the doctrine.\1\
The two opinions withdraw from the Department's earlier
contention, following Buckley v. Valeo, that the execution
of the laws is an executive function that may be carried out
only by persons appointed pursuant to the appointments
clause, thus precluding delegations to state and local
officers and to private parties (as in qui tam actions), as
well as to glosses on the take care clause and other
provisions of the Constitution. Whether these memoranda
signal long-term change depends on several factors,
importantly on whether they are adhered to by subsequent
administrations.
---------------------------------------------------------------------------
\1\ Memorandum for John Schmidt, Associate Attorney
General, from Assistant Attorney General Walter Dellinger,
Constitutional Limitations on Federal Government
Participation in Binding Arbitration (Sept. 7, 1995);
Memorandum for the General Counsels of the Federal
Government, from Assistant Attorney General Walter
Dellinger, The Constitutional Separation of Powers Between
the President and Congress (May 7, 1996). The principles
laid down in the memoranda depart significantly from
previous positions of the Department of Justice. For
conflicting versions of the two approaches, see
Constitutional Implications of the Chemical Weapons
Convention, Hearings Before the Senate Judiciary
Subcommittee on the Constitution, Federalism, and Property
Rights, 104th Cong., 2d Sess. (1996), 11-26, 107-10
(Professor John C. Woo), 80-106 (Deputy Assistant Attorney
General Richard L. Shiffrin).
---------------------------------------------------------------------------
[P. 425, add to text following n.61:]
In the course of deciding that the President's
action in approving the closure of a military base, pursuant
to statutory authority, was not subject to judicial review,
the Court enunciated a principle that may mean a great deal,
constitutionally speaking, or that may not mean much of
anything.\2\ The lower court had held that, while review of
presidential decisions on statutory grounds might be
precluded, his decisions were reviewable for
constitutionality; in that court's view, whenever the
President acts in excess of his statutory authority, he also
violates the constitutional separation-of-powers doctrine.
The Supreme Court found this analysis flawed. ``Our cases do
not support the proposition that every action by the
President, or by another executive official, in excess of
his statutory authority is ipso facto in violation of the
Constitution. On the contrary, we have often distinguished
between claims of constitutional violations and claims that
an official has acted in excess of his statutory
authority.'' \3\ Thus, the Court drew a distinction between
executive action undertaken without even the purported
warrant of statutory authorization and executive action in
excess of statutory authority. The former may violate
separation of powers, while the latter will not.\4\
---------------------------------------------------------------------------
\2\ Dalton v. Specter, 511 U.S. 462 (1994).
\3\ Id. at 472.
\4\ See The Supreme Court, Leading Cases, 1993 Term,
108 Harv. L. Rev. 139, 300-10 (1994).
---------------------------------------------------------------------------
Doctrinally, the distinction is important and
subject to unfortunate application.\5\ Whether the brief,
unilluminating discussion in Dalton will bear fruit in
constitutional jurisprudence, however, is problematic.
---------------------------------------------------------------------------
\5\ ``As a matter of constitutional logic, the
executive branch must have some warrant, either statutory or
constitutional, for its actions. The source of all federal
governmental authority is the Constitution and, because the
Constitution contemplates that Congress may delegate a
measure of its power to officials in the executive branch,
statutes. The principle of separation of powers is a direct
consequence of this scheme. Absent statutory authorization,
it is unlawful for the President to exercise the powers of
the other branches because the Constitution does not vest
those powers in the President. The absence of statutory
authorization is not merely a statutory defect; it is a
constitutional defect as well.'' 108 Harv. L. Rev. at 305-06
(footnote citations omitted).
---------------------------------------------------------------------------
THE EXECUTIVE ESTABLISHMENT
Appointments and Congressional Regulation of Offices
[P. 514, add to text following n.468:]
The Court, in Edmond v. United States,\6\ reviewed
its pronouncements regarding the definition of ``inferior
officer'' and, disregarding some implications of its prior
decisions, seemingly settled, unanimously, on a pragmatic
characterization. Thus, the importance of the
responsibilities assigned an officer, the fact that duties
were limited, that jurisdiction was narrow, and that tenure
was limited, are only factors but are not definitive.\7\
``Generally speaking, the term `inferior officer' connotes a
relationship with some higher ranking officer or officers
below the President: Whether one is an `inferior' officer
depends on whether he has a superior. It is not enough that
other officers may be identified who formally maintain a
higher rank, or possess responsibilities of a greater
magnitude. If that were the intention, the Constitution
might have used the phrase `lesser officer.' Rather, in the
context of a Clause designed to preserve political
accountability relative to important Government assignments,
we think it evident that `inferior officers' are officers
whose work is directed and supervised at some level by
others who were appointed by Presidential nomination with
the advice and consent of the Senate.'' \8\
---------------------------------------------------------------------------
\6\ 520 U.S. 651 (1997).
\7\ Id. at 661-62.
\8\ Id. at 662-63. The case concerned whether the
Secretary of Transportation, a presidential appointee with
the advice and consent of the Senate, could appoint judges
of the Coast Guard Court of Military Appeals; necessarily,
the judges had to be ``inferior'' officers. In related
cases, the Court held that designation or appointment of
military judges, who are ``officers of the United States,''
does not violate the appointments clause. The judges are
selected by the Judge Advocate General of their respective
branch of the Armed Forces. These military judges, however,
were already commissioned officers who had been appointed by
the President with the advice and consent of the Senate, so
that their designation simply and permissibly was an
assignment to them of additional duties that did not need a
second formal appointment. Weiss v. United States, 510 U.S.
163 (1994). However, the appointment of civilian judges to
the Coast Guard Court of Military Review by the same method
was impermissible; they had either to be appointed by an
officer who could exercise appointment-clause authority or
by the President, and their actions were not salvageable
under the de facto officer doctrine. Ryder v. United States,
515 U.S. 177 (1995).
---------------------------------------------------------------------------
[P. 516, add new footnote to end of first sentence of first
full paragraph:]
As the text suggested, Freytag seemed to be a tentative
decision, and Edmond v. United States, 520 U.S. 651 (1997),
a unanimous decision written by Justice Scalia, whose
concurring opinion in Freytag challenged the Court's
analysis, may easily be read as retreating considerably from
it.
--Financial Disclosure and Limitations
[P. 519, add to n.498:]
The Supreme Court held this provision unconstitutional
in United States v. NTEU, 513 U.S. 454 (1995).
PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION
[P. 579, add to n.723:]
See also, following Franklin, Dalton v. Specter, 511
U.S. 462 (1994).
[P. 582, add to text following n.738:]
Unofficial Conduct.--In Clinton v. Jones,\9\ the
Court, in a case of first impression, held that the
President did not have qualified immunity from suit for
conduct alleged to have taken place prior to his election to
the Presidency, which would entitle him to delay of both the
trial and discovery. The Court held that its precedents
affording the President immunity from suit for his official
conduct--primarily on the basis that he should be enabled to
perform his duties effectively without fear that a
particular decision might give rise to personal liability--
were inapplicable in this kind of case. Moreover, the
separation-of-powers doctrine did not require a stay of all
private actions against the President. Separation of powers
is preserved by guarding against the encroachment or
aggrandizement of one of the coequal branches of the
Government at the expense of another. However, a federal
trial court tending to a civil suit in which the President
is a party performs only its judicial function, not a
function of another branch. No decision by a trial court
could curtail the scope of the President's powers. The trial
court, the Supreme Court observed, had sufficient powers to
accommodate the President's schedule and his workload, so as
not to impede the President's performance of his duties.
Finally, the Court stated its belief that allowing such
suits to proceed would not generate a large volume of
politically motivated harassing and frivolous litigation.
Congress has the power, the Court advised, if it should
think necessary to legislate, to afford the President
protection.\10\
---------------------------------------------------------------------------
\9\ 520 U.S. 681 (1997).
\10\ The Court observed at one point that it doubted
that defending the suit would much preoccupy the President,
that his time and energy would not be much taken up by it.
``If the past is any indicator, it seems unlikely that a
deluge of such litigation will ever engulf the Presidency.''
520 U.S. at 702.
---------------------------------------------------------------------------
--The President's Subordinates
[P. 582, add to n.743:]
Following the Westfall decision, Congress enacted the
Federal Employees Liability Reform and Tort Compensation Act
of 1988 (the Westfall Act), which authorized the Attorney
General to certify that an employee was acting within the
scope of his office or employment at the time of the
incident out of which a suit arose; upon certification, the
employee is dismissed from the action, and the United States
is substituted, the Federal Tort Claims Act (FTCA) then
governing the action, which means that sometimes the action
must be dismissed against the Government because the FTCA
has not waived sovereign immunity. Cognizant of the
temptation set before the Government to immunize both itself
and its employee, the Court in Gutierrez de Martinez v.
Lamagno, 515 U.S. 417 (1995), held that the Attorney
General's certification is subject to judicial review.
IMPEACHMENT
Impeachable Offenses
--Judicial Review of Impeachments
[P. 591, add to text following n.784:]
Upon at last reaching the question, the Court has
held that a claim to judicial review of an issue arising in
an impeachment trial in the Senate presents a nonjusticiable
question, a ``political question.'' \11\ Specifically, the
Court held that a claim that the Senate had not followed the
proper meaning of the word ``try'' in the impeachment
clause, a special committee being appointed to take
testimony and to make a report to the full Senate, complete
with a full transcript, on which the Senate acted, could not
be reviewed. But the analysis of the Court applies to all
impeachment clause questions, thus seemingly putting off-
limits to judicial review the whole process.
---------------------------------------------------------------------------
\11\ Nixon v. United States, 506 U.S. 224 (1993).
Nixon at the time of his conviction and removal from office
was a federal district judge in Mississippi.
ARTICLE III
JUDICIAL POWER
Characteristics and Attributes of Judicial Power
[P. 618, add to text following n.126:]
Judicial power confers on federal courts the power
to decide a case, to render a judgment conclusively
resolving a case. Judicial power is the authority to render
dispositive judgments, and Congress violates the separation
of powers when it purports to alter final judgments of
Article III courts.\1\ In this controversy, the Court had
unexpectedly fixed on a shorter statute of limitations to
file certain securities actions than that believed to be the
time in many jurisdictions. Resultantly, several suits that
had been filed later than the determined limitations had
been dismissed and had become final because they were not
appealed. Congress enacted a statute, which, while not
changing the limitations period prospectively, retroactively
extended the time for suits dismissed and provided for the
reopening of the final judgments rendered in the dismissals
of suits.
---------------------------------------------------------------------------
\1\ Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
218-19 (1995). The Court was careful to delineate the
difference between attempting to alter a final judgment, one
rendered by a court and either not appealed or affirmed on
appeal, and legislatively amending a statute so as to change
the law as it existed at the time a court issued a decision
that was on appeal or otherwise still alive at the time a
federal court reviewed the determination below. A court must
apply the law as revised when it considers the prior
interpretation. Id. at 226-27.
Article III creates or authorizes Congress to create
not a collection of unconnected courts, but a judicial
department composed of ``inferior courts'' and ``one Supreme
Court.'' ``Within that hierarchy, the decision of an
inferior court is not (unless the time for appeal has
expired) the final word of the department as a whole.'' Id.
at 227.
---------------------------------------------------------------------------
Holding the congressional act invalid, the Court
held it impermissible for Congress to disturb a final
judgment. ``Having achieved finality, . . . a judicial
decision becomes the last word of the judicial department
with regard to a particular case or controversy, and
Congress may not declare by retroactive legislation that the
law applicable to that very case was something other than
what the courts said it was.'' \2\ On the other hand, the
Court ruled in Miller v. French \3\ that the Prison
Litigation Reform Act's automatic stay of ongoing
injunctions remedying violations of prisoners' rights did
not amount to an unconstitutional legislative revision of a
final judgment. Rather, the automatic stay merely alters
``the prospective effect'' of injunctions, and it is well
established that such prospective relief ``remains subject
to alteration due to changes in the underlying law.'' \4\
---------------------------------------------------------------------------
\2\ 514 U.S. at 227 (emphasis by Court).
\3\ 120 S. Ct. 2246 (2000).
\4\ 120 S. Ct. at 2257.
---------------------------------------------------------------------------
Finality of Judgment as an Attribute of Judicial Power
[P. 620, add to n.140:]
Notice the Court's discussion in Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 218, 225-26 (1995).
ANCILLARY POWERS OF FEDERAL COURTS
The Contempt Power
--Categories of Contempt
[P. 623, add to text following n.154:]
In International Union, UMW v. Bagwell,\5\ the Court
formulated a new test for drawing the distinction between
civil and criminal contempts, which has important
consequences for the procedural rights to be accorded those
cited. Henceforth, the imposition of non-compensatory
contempt fines for the violation of any complex injunction
will require criminal proceedings. This case, as have so
many, involved the imposition of large fines (here, $52
million) upon a union in a strike situation for violations
of an elaborate court injunction restraining union activity
during the strike. The Court was vague with regard to the
standards for determining when a court order is ``complex''
and thus requires the protection of criminal proceedings.\6\
Much prior doctrine remains, however, as in the distinction
between remedial sanctions, which are civil, and punitive,
which are criminal, and between in-court and out-of-court
contempts.
---------------------------------------------------------------------------
\5\ 512 U.S. 821 (1994).
\6\ Id. at 832-38. Relevant is the fact that the
alleged contempts did not occur in the presence of the court
and that determinations of violations require elaborate and
reliable factfinding. See esp. id. at 837-38.
---------------------------------------------------------------------------
--Due Process Limitations on Contempt Power: Right to Jury
Trial
[P. 631, add to n.195:]
See also International Union, UMW v. Bagwell, 512 U.S.
821 (1994) (refining the test for when contempt citations
are criminal and thus require jury trials).
[P. 631, add to n.196:]
In International Union, UMW v. Bagwell, 512 U.S. 821,
837 n.5 (1994), the Court continued to reserve the question
of the distinction between petty and serious contempt fines,
because of the size of the fine in that case.
--Contempt by Disobedience of Orders
[P. 634, add to n.206:]
See also International Union, UMW v. Bagwell, 512 U.S.
821 (1994).
Power to Issue Writs: The Act of 1789
--Habeas Corpus: Congressional and Judicial Control
[P. 639, add to text following n.238:]
In Felker v. Turpin,\7\ the Court again passed up
the opportunity to delineate Congress' permissive authority
over habeas, finding that none of the provisions of the
Antiterrorism and Effective Death Penalty Act \8\ raised
questions of constitutional import.
---------------------------------------------------------------------------
\7\ 518 U.S. 651 (1996).
\8\ Pub. L. No. 104-132, Sec. Sec. 101-08, 110 Stat.
1214, 1217-26, amending, inter alia, 28 U.S.C.
Sec. Sec. 2244, 2253, 2254, 2255, and Fed. R. App. P. 22.
---------------------------------------------------------------------------
Congressional Limitation of the Injunctive Power
[P. 642, add to text following n.264:]
Perhaps pressing its powers further than prior
legislation, Congress enacted the Prison Litigation Reform
Act of 1996.\9\ Essentially, the law imposes a series of
restrictions on judicial remedies in prison-conditions
cases. Thus, courts may not issue prospective relief that
extends beyond that necessary to correct the violation of a
federal right that they have found, that is narrowly drawn,
is the least intrusive, and that does not give attention to
the adverse impact on public safety. Preliminary injunctive
relief is limited by the same standards. Consent decrees may
not be approved unless they are subject to the same
conditions, meaning that the court must conduct a trial and
find violations, thus cutting off consent decrees. No
prospective relief is to last longer than two years if any
party or intervenor so moves. Finally, a previously issued
decree that does not conform to the new standards imposed by
the Act is subject to termination upon the motion of the
defendant or an intervenor. After a short period (30 or 60
days, depending on whether there is ``good cause'' for a 30-
day extension), such a motion operates as an automatic stay
of the prior decree pending the court's decision on the
merits. The Court upheld the termination and automatic stay
provisions in Miller v. French,\10\ rejecting the contention
that the automatic stay provision offends separation of
powers principles by legislative revision of a final
judgment. Rather, Congress merely established new standards
for the enforcement of prospective relief, and the automatic
stay provision ``helps to implement the change in the law.''
\11\
---------------------------------------------------------------------------
\9\ The statute was part of an Omnibus
Appropriations Act signed by the President on April 26,
1996. Pub. L. 104-134, Sec. Sec. 801-10, 110 Stat. 1321-66-
77, amending 18 U.S.C. Sec. 3626.
\10\ 120 S. Ct. 2246 (2000).
\11\ 120 S. Ct. at 2259.
---------------------------------------------------------------------------
JUDICIAL POWER AND JURISDICTION--CASES AND CONTROVERSIES
Substantial Interest: Standing
--Taxpayer Suits
[P. 657, add to n.335:]
Richardson's generalized grievance constriction does not
apply when Congress confers standing on litigants. FEC v.
Akins, 524 U.S. 11 (1998). When Congress confers standing on
``any person aggrieved'' by the denial of information
required to be furnished them, the statutory entitlement is
sufficient, and it matters not that most people will be
entitled and will thus suffer a ``generalized grievance.''
Id. at 21-25.
[P. 657, add to n.336:]
The Court's present position on Flast is set out
severely in Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), in
which the Court largely plays down the ``serious and
adversarial treatment'' prong of standing and strongly
reasserts the separation-of-powers value of keeping courts
within traditional bounds. The footnote is a response to
Justice Souter's separate opinion utilizing Flast, id., 398-
99, for a distinctive point.
--Constitutional Standards: Injury in Fact, Causation, and
Redressability
[P. 658, insert the following after the word ``Now'' in
sentence following n.345:]
political,\12\
---------------------------------------------------------------------------
\12\ Department of Commerce v. United States House
of Representatives, 525 U.S. 316 (1999).
---------------------------------------------------------------------------
[P. 659, add to text following n.347:]
In FEC v. Akins,\13\ the Court found ``injury-in-fact''
present when plaintiff voters alleged that the Federal
Election Commission had denied them information, to which
they alleged an entitlement, respecting an organization that
might or might not be a political action committee. Congress
had afforded persons access to the Commission and had
authorized ``any person aggrieved'' by the actions of the
FEC to sue to challenge the action. That the injury was
widely shared did not make the claimed injury a
``generalized grievance,'' the Court held, but rather in
this case, as in others, it was a concrete harm to each
member of the class. The case is a principal example of the
ability of Congress to confer standing and to remove
prudential constraints on judicial review.
---------------------------------------------------------------------------
\13\ 524 U.S. 11 (1998).
---------------------------------------------------------------------------
[P. 659, add to n.348 at end of string citation:]
Friends of the Earth v. Laidlaw Envtl. Servs., 120 S.
Ct. 693 (2000).
[P. 659, add to text following n.348:]
Even citizens who bring qui tam actions under the
False Claims Act, an action that entitles them to a
percentage of any civil penalty assessed for violation, have
been held to have standing, on the theory that the
government has assigned a portion of its damages claim to
the plaintiff, and the assignee of a claim has standing to
assert the injury in fact suffered by the assignor.\14\
---------------------------------------------------------------------------
\14\ Vermont Agency of Nat. Res. v. United States ex
rel. Stevens, 120 S. Ct. 1858 (2000). The Court confirmed
its conclusion by reference to the long tradition of qui tam
actions, since the Constitution's restriction of judicial
power to ``cases'' and ``controversies'' has been
interpreted to mean ``cases and controversies of the sort
traditionally amenable to, and resolved by, the judicial
process.'' Id. at 1863.
---------------------------------------------------------------------------
[P. 660, add to n.352:]
In Steel Co. v. Citizens for a Better Environment, 523
U.S. 83 (1998), the Court denied standing because of the
absence of redressability. An environmental group sued the
company for failing to file timely reports required by
statute; by the time the complaint was filed, the company
was in full compliance. Acknowledging that the entity had
suffered injury in fact, the Court found that no judicial
action would afford it a remedy.
[P. 661, add to text at end of section:]
Redressability can be present in an environmental
citizen suit even when the remedy is civil penalties payable
to the government. The civil penalties, the Court explained,
``carried with them a deterrent effect that made it likely,
as opposed to merely speculative, that the penalties would
redress [plaintiffs'] injuries by abating current violations
and preventing future ones.'' \15\
---------------------------------------------------------------------------
\15\ Friends of the Earth v. Laidlaw Envtl. Servs.,
120 S. Ct. 693, 707 (2000).
---------------------------------------------------------------------------
--Prudential Standing Rules
[P. 661, add to text following n.360:]
In a case permitting a plaintiff contractors'
association to challenge an affirmative-action, set-aside
program, the Court seemed to depart from several restrictive
standing decisions in which it had held that the claims of
attempted litigants were too ``speculative'' or too
``contingent.'' \16\ The association had sued, alleging that
many of its members ``regularly bid on and perform
construction work'' for the city and that they would have
bid on the set-aside contracts but for the restrictions. The
Court found the association had standing, because certain
prior cases under the Equal Protection Clause established a
relevant proposition. ``When the government erects a barrier
that makes it more difficult for members of one group to
obtain a benefit than it is for members of another group, a
member of the former group seeking to challenge the barrier
need not allege that he would have obtained the benefit but
for the barrier in order to establish standing. The `injury
in fact' in an equal protection case of this variety is the
denial of equal treatment resulting from the imposition of
the barrier, not the ultimate inability to obtain the
benefit.'' \17\ The association, therefore, established
standing by alleging that its members were able and ready to
bid on contracts but that a discriminatory policy prevented
them from doing so on an equal basis.\18\
---------------------------------------------------------------------------
\16\ Northeastern Fla. Ch., Assoc. Gen. Contractors
v. City of Jacksonville, 508 U.S. 656 (1993). Thus, it
appears that had the Court applied its standard in the
current case, the results would have been different in such
cases as Linda R. S. v. Richard D., 410 U.S. 614 (1973);
Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26 (1976); and Allen
v. Wright, 468 U.S. 737 (1984).
\17\ 508 U.S. at 666. The Court derived the
proposition from another set of cases. Turner v. Fouche, 396
U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957 (1982);
Regents of the Univ. of California v. Bakke, 438 U.S. 265,
281 n.14 (1978).
\18\ 508 U.S. at 666. But see, in the context of
ripeness, Reno v. Catholic Social Servs., Inc., 509 U.S. 43
(1993), in which the Court, over the dissent's reliance on
Jacksonville, id. at 81-2, denied the relevance of its
distinction between entitlement to a benefit and equal
treatment. Id. at 58 n.19.
---------------------------------------------------------------------------
[Pp. 661-62, add to n.360:]
Justice Scalia, who wrote the opinion in Lujan,
reiterated the separation-of-powers objection to
congressional conferral of standing in FEC v. Akins, 524
U.S. 11, 29, 36 (1998) (alleged infringement of President's
``take care'' obligation), but this time in dissent; the
Court did not advert to this objection in finding that
Congress had provided for standing based on denial of
information to which the plaintiffs, as voters, were
entitled.
[P. 662, add to n.362:]
See also Bennett v. Spear, 520 U.S. 154 (1997).
--Standing to Assert the Constitutional Rights of Others
[P. 663, add to n.370:]
The Court has expanded the rights of non-minority
defendants to challenge the exclusion of minorities from
petit and grand juries, both on the basis of the injury-in-
fact to defendants and because the standards for being able
to assert the rights of third parties were met. Powers v.
Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S.
392 (1998).
--Standing of Members of Congress
[P. 668, add new paragraph at end of section:]
Member or legislator standing has been severely
curtailed, although not quite abolished, in Raines v.
Byrd.\19\ Several Members of Congress, who had voted against
passage of the Line Item Veto Act, sued in their official
capacities as Members of Congress to invalidate the law,
alleging standing based on the theory that the statute
adversely affected their constitutionally prescribed
lawmaking power.\20\ Emphasizing its use of standing
doctrine to maintain separation-of-powers principles, the
Court adhered to its holdings that, in order to possess the
requisite standing, a person must establish that he has a
``personal stake'' in the dispute and that the alleged
injury suffered is particularized as to him.\21\ Neither
requirement, the Court held, was met by these legislators.
First, the Members did not suffer a particularized loss that
distinguished them from their colleagues or from Congress as
an entity. Second, the Members did not claim that they had
been deprived of anything to which they were personally
entitled. ``[A]ppellees' claim of standing is based on loss
of political power, not loss of any private right, which
would make the injury more concrete . . . . If one of the
Members were to retire tomorrow, he would no longer have a
claim; the claim would be possessed by his successor
instead. The claimed injury thus runs (in a sense) with the
Member's seat, a seat which the Member holds . . . as
trustee for his constituents, not as a prerogative of
personal power.'' \22\
---------------------------------------------------------------------------
\19\ 521 U.S. 811 (1997).
\20\ The Act itself provided that ``[a]ny Member of
Congress or any individual adversely affected'' could sue to
challenge the law. 2 U.S.C. Sec. 692(a)(1). After failure of
this litigation, the Court in the following Term, on suits
brought by claimants adversely affected by the exercise of
the veto, held the statute unconstitutional. Clinton v. City
of New York, 524 U.S. 417 (1998).
\21\ 521 U.S. at 819.
\22\ 521 U.S. at 821.
---------------------------------------------------------------------------
So, there is no such thing as Member standing? Not
necessarily so, because the Court turned immediately to
preserving (at least a truncated version of) Coleman v.
Miller,\23\ in which the Court had found that 20 of the 40
members of a state legislature had standing to sue to
challenge the loss of the effectiveness of their votes as a
result of a tie-breaker by the lieutenant governor. Although
there are several possible explanations for the result in
that case, the Court in Raines chose to fasten on a
particularly narrow point. ``[O]ur holding in Coleman stands
(at most, . . .) for the proposition that legislators whose
votes would have been sufficient to defeat (or enact) a
specific legislative Act have standing to sue if that
legislative action goes into effect (or does not go into
effect), on the ground that their votes have been completely
nullified.'' \24\ Because these Members could still pass or
reject appropriations bills, vote to repeal the Act, or
exempt any appropriations bill from presidential
cancellation, the Act did not nullify their votes and thus
give them standing.\25\
---------------------------------------------------------------------------
\23\ 307 U.S. 433 (1939).
\24\ 521 U.S. at 823.
\25\ 521 U.S. at 824-26.
---------------------------------------------------------------------------
It will not pass notice that the Court's two
holdings do not cohere. If legislators have standing only to
allege personal injuries suffered in their personal
capacities, how can they have standing to assert official-
capacity injury in being totally deprived of the
effectiveness of their votes? A period of dispute in the
D.C. Circuit seems certain to follow.
--Standing to Challenge Nonconstitutional Governmental
Action
[P. 669, add to n.401:]
See also National Credit Union Admin. v. First Nat'l
Bank & Trust Co., 522 U.S. 479 (1998), in which the Court
found that a bank had standing to challenge an agency ruling
expanding the role of employer credit unions to include
multi-employer credit unions, despite a statutory limit that
any such union could be of groups having a common bond of
occupation or association. The Court held that a plaintiff
did not have to show it was the congressional purpose to
protect its interests. It is sufficient if the interest
asserted is ``arguably within the zone of interests to be
protected . . . by the statute.'' Id. at 492 (internal
quotation marks and citation omitted). But the Court divided
5 to 4 in applying the test. And see Bennett v. Spear, 520
U.S. 154 (1997).
[P. 670, add to n.405:]
But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that
``citizen suit'' provision of Endangered Species Act is
directed at empowering suits to further environmental
concerns does not mean that suitor who alleges economic harm
from enforcement of Act lacks standing); FEC v. Akins, 524
U.S. 11 (1998) (expansion of standing based on denial of
access to information).
The Requirement of a Real Interest
--Declaratory Judgments
[P. 674, add to n.436:]
See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
--Ripeness
[P. 676, add to n.449:]
For recent examples of lack of ripeness, see Ohio
Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998); Texas v.
United States, 523 U.S. 296 (1998).
[P. 678, add to n.457:]
In the context of ripeness to challenge agency
regulations, as to which there is a presumption of available
judicial remedies, the Court has long insisted that federal
courts should be reluctant to review such regulations unless
the effects of administrative action challenged have been
felt in a concrete way by the challenging parties, i.e.,
unless the controversy is ``ripe.'' See, of the older cases,
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet
Goods Ass'n, Inc. v. Gardner, 387 U.S. 158 (1967); Gardner
v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967). More
recent cases include Reno v. Catholic Social Servs., Inc.,
509 U.S. 43 (1993); Lujan v. National Wildlife Fed'n., 497
U.S. 871, 891 (1990).
--Mootness
[P. 679, add to n.462:]
Munsingwear had long stood for the proposition that the
appropriate practice of the Court in a civil case that had
become moot while on the way to the Court or after
certiorari had been granted was to vacate or reverse and
remand with directions to dismiss. But, in U.S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),
the Court held that when mootness occurs because the parties
have reached a settlement, vacatur of the judgment below is
ordinarily not the best practice; instead, equitable
principles should be applied so as to preserve a
presumptively correct and valuable precedent, unless a court
concludes that the public interest would be served by
vacatur.
[PP. 679, add to n.463:]
Consider the impact of Cardinal Chemical Co. v. Morton
Int'l, Inc., 508 U.S. 83 (1993).
[P. 680, add to n.466:]
Following Aladdin's Castle, the Court in Northeastern
Fla. Ch., Assoc. Gen. Contractors v. City of Jacksonville,
508 U.S. 656, 660-63 (1993), held that when a municipal
ordinance is repealed but replaced by one sufficiently
similar so that the challenged action in effect continues,
the case is not moot. But see id. at 669 (Justice O'Connor
dissenting) (modification of ordinance more significant and
case is mooted).
[P. 680, add to n.467:]
In Arizonans For Official English v. Arizona, 520 U.S.
43 (1997), a state employee attacking an English-only work
requirement had standing at the time she brought the suit,
but she resigned following a decision in the trial court,
thus mooting the case before it was taken to the appellate
court, which should not have acted to hear and decide it.
[P. 680, add to n.469:]
But compare Spencer v. Kemna, 523 U.S. 1 (1998).
[P. 682, add to n.476 following Super Tire citation:]
Friends of the Earth v. Laidlaw Envtl. Servs., 120 S.
Ct. 693, 708-10 (2000).
--Retroactivity Versus Prospectivity
[P. 686, add to n.503:]
For additional elaboration on ``new law,'' see O'Dell v.
Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520
U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996).
But compare Bousley v. Brooks, 523 U.S. 614 (1998).
[P. 687, add to text following n.509:]
Apparently, the Court now has resolved this dispute,
although the principal decision is a close 5 to 4 result. In
Harper v. Virginia Dep't of Taxation,\26\ the Court adopted
the principle of the Griffith decision in criminal cases and
disregarded the Chevron Oil approach in civil cases.
Henceforth, in civil cases, the rule is: ``When this Court
applies a rule of federal law to the parties before it, that
rule is the controlling interpretation of federal law and
must be given full retroactive effect in all cases open on
direct review and as to all events, regardless of whether
such events predate or postdate our announcement of the
rule.'' \27\ Four Justices continued to adhere to Chevron
Oil, however,\28\ so that with one Justice each retired from
the different sides one may not regard the issue as
definitively settled.\29\
---------------------------------------------------------------------------
\26\ 509 U.S. 86 (1993).
\27\ Id. at 97. While the conditional language in
this passage might suggest that the Court was leaving open
the possibility that in some cases it might rule purely
prospectively, not even applying its decision to the parties
before it, other language belies that possibility. ``This
rule extends Griffith's ban against `selective application
of new rules.' '' [Citing 479 U.S. at 323]. Inasmuch as
Griffith rested in part on the principle that ``the nature
of judicial review requires that [the Court] adjudicate
specific cases,'' Griffith, 479 U.S. at 322, deriving from
Article III's case or controversy requirement for federal
courts and forbidding federal courts from acting
legislatively, the ``Court has no more constitutional
authority in civil cases than in criminal cases to disregard
current law or to treat simil |
