Court Cases

AMERICAN POLITICAL THOUGHT

Court Cases
~ most corresponds to Georgetown's summer American Political Thought course, Prof. Carey ~

McCulloch v. Maryland (1819)

- about: Necessary & Proper Clause/Federal Supremacy v. State Rights
- The state of Maryland brought an action against James William McCulloch, a cashier in the Maryland branch of the Bank of the United States, for not paying a tax the state had imposed on the United States Bank.
- Issue: Whether the state of Maryland had the right to tax a federal agency which was properly set up by the United States Congress.
- Decision: In a unanimous decision, the Supreme Court of the United States ruled that the power to tax involves the power to destroy, and that the federal governments national bank was immune to state taxation. The Court reasoned that Congress could set up a United States Bank and write laws necessary and proper to carry out its constitutional power to coin and regulate money.

The Constitution constituted will of the people (superior to political will)
Fed. 78 the judiciary should exercise just judgment, no force or will
Interpretivist view (orginialist view) supports ideas in fed. 78
Non-interpretivist view (activist view) opposes fed. 78, says it is too limiting.

Federalist #78

- importance of an independent judicial branch and the meaning of judicial review.
- The Constitution proposes the federal judges hold their office for life, subject to good behavior. Permanency in office frees judges from political pressures and prevents invasions on judicial power by the president and Congress.
- The judicial branch of government is by far the weakest branch. The judicial branch posses only the power to judge, not to act, and even its judgments or decisions depend upon the executive branch to carry them out.
- Political rights are least threatened by the judicial branch. On occasion, the courts may unfairly treat an individual, but they, in general, can never threaten liberty.
- The courts are the arbiters between the legislative branch and the people; the courts are to interpret the laws and prevent the legislative branch from exceeding the powers granted to it.
- The courts must not only place the Constitution higher than the laws passed by Congress, they must also place the intentions of the people ahead of the intentions of their representatives
- to interpret the laws and judge their constitution are the two special functions of the court. The fact that the courts are charged with determining what the law means does not suggest that they will be justified in substituting their will for that of the Congress.
- The independence of the courts is also necessary to protect the rights of individuals against the destructive actions of factions.

Marbury vs. Madison (1803)

- about judicial vs. executive power; and judicial review
- In his last few hours in office, President John Adams made a series of midnight appointments to fill as many government posts as possible with Federalists. One of these appointments was William Marbury as a federal justice of the peace. However, Thomas Jefferson took over as President before the appointment was officially given to Marbury. Jefferson, a Republican, instructed Secretary of State James Madison to not deliver the appointment. Marbury sued Madison to get the appointment he felt he deserved. He asked the Court to issue a writ of mandamus, requiring Madison to deliver the appointment. The Judiciary Act, passed by Congress in 1789, permitted the Supreme Court of the United States to issue something like this.
- Issue: Whether the Supreme Court of the United States has the power, under Article III, Section 2, of the Constitution, to interpret the constitutionality of a law or statute passed by Congress.
- Decision: The Court decided that Marburys request for a writ of mandamus was based on a law passed by Congress that the Court held to be unconstitutional. The Court decided unanimously that the federal law contradicted the Constitution, and since the Constitution is the Supreme Law of the Land, it must reign supreme. Through this case, Chief Justice John Marshall established the power of judicial review: the power of the Court not only to interpret the constitutionality of a law or statute but also to carry out the process and enforce its decision.
- Relevance: This case is the Courts first elaborate statement of its power of judicial review. Chief Justice Marshall said, lt is emphatically the province and duty of the judicial department to say what the law is. This was the first instance in which a law passed by Congress was declared unconstitutional. The decision greatly expanded the power of the Court by establishing its right to overturn acts of Congress, a power not explicitly granted by the Constitution.

Dred Scott vs Sanford (1857)

- issue: slavery, question of citizenship (5th amendment property rights)
- Dred Scott, a slave, was taken by his owner, Sanford, into northern federal territory. Scott felt that he was free because of the Missouri Compromise of 1820, which excluded slavery from specified portions of United States territories. When he came back to Missouri, Scott sued his owner for his freedom.
- Issue: Whether Dred Scott, a slave, was a citizen of the United States and legally entitled to use the courts to sue.
- Decision: The Supreme Court of the United States ruled that slaves were property, not citizens and, therefore, Dred Scott was not entitled to use the courts. The Court focused on the rights of the owner, not the slave, saying that black people had no rights that white people were bound to respect. Justice Taney said that freeing Scott would be a clear violation of the Fifth Amendment because it would amount to depriving Sanford of his property without due process of law. He also said that Congress had no power to prohibit slavery in the territory and that the Missouri Compromise was unconstitutional.
- Relevance: the first substantive due process case.

SUBSTANTIVE DUE PROCESS (!!!)

The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the governments desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a persons freedom or property or life, when the law otherwise gives them the power to do so.

The Due Process Clause of the Fourteenth Amendment, adopted in 1868, states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . " The facially clear meaning of this passage is that a state has to use sufficiently fair and just legal procedures whenever it is going to lawfully take away a persons life, freedom or possessions. Thus, before a man can be executed, imprisoned or fined for a crime, he must get a fair trial, based on legitimate evidence, with a jury, etc. These are procedural or "process" rights.

However, under "Substantive Due Process," the Supreme Court has developed a broader interpretation of the Clause, one that protects basic substantive rights, as well as the right to process. Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a persons life, freedom or property, but that these clauses also guarantee that a persons life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking.

This is an extremely significant idea because of how it greatly expands the power of judicial review exercised by the federal courts.

INCORPORATION (!!)

- with the substantive due process issue, the power of judicial review (by courts) was greatly expanded:
it gave the federal courts unqualified discretion to decide what substantive rights are protected under Due Process and how extensive that protection is. There are two ways the Supreme Court does this:
Under the substantive wing of the "Incorporation" doctrine, where the Court adopt selected provisions of the Bill of Rights and apply them to the states under Due Process.
Under the "Fundamental Rights" theory, where the Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead the Court is said to root these guarantees directly in the word "Liberty" in the Fourteenth Amendments Due Process Clause.
once the federal courts decide what substantive rights are protected buy Substantive Due Process, it can use Judicial Review to enforce these rights by reviewing all state legislation for compliance with these rights.

Barron vs. Baltimore (1833)

- John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses.
- Issue: Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner?
- Decision: The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.
- effect: the Bill of Rights applies only to the national government, not the states. Between 1880 and 1924, the Court rejected incorporation in 9 occasions, and stuck by the Barron rule. (this means that this case was an example of non-incorporation)

Gitlow vs. New York (1925)

- Facts: Benjamin Gitlow was convicted in the Supreme Court of New York for having published and circulated, unlawfully, pamphlets and leaflets detrimental to the government. These advocated overthrowing organized government by violent and other unlawful means. Gitlow appealed the case through the Appellate Division and Court of Appeals of the New York system.
- Issue: Does the New York State Criminal Anarchy statute contravene the due process clause of the Fourteenth Amendment?
- Decision: No. (vote 7-2) Reason: There is no absolute right to speak or publish, without responsibility, whatever one may choose. A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare. Utterances such as the statute prohibited, by their very nature, involve danger to the public peace and to the security of the state. The statute was not arbitrary or unreasonable.
- This case has long been regarded as a "landmark" decision because here for the first time the Court held portions of the "Bill of Rights" applicable to the states by means of the Fourteenth Amendment. (incorporation!!!)
- By considering the case, they established incorporation. Henceforth, the court examines whether the individuals rights have been violated.

Palko vs. Connecticut (1936)

- Palko was indicted in Connecticut for murder in the first degree. A jury found him guilty of murder in the second degree and sentenced him to life imprisonment. At a second trial additional evidence was admitted and additional instructions given to the jury. A verdict of first degree murder was returned and Palko was sentenced to death. He appealed the legality of this procedure under the due process clause of the Fourteenth Amendment, claiming double jeopardy.
- Issue: Is the appellant, by the new trial and subsequent sentence to death, deprived of due process under the Fourteenth Amendment?
- Decision: No. (vote 8-1) Reason: The due process clause of the Fourteenth Amendment applies to the states only those provisions of the Bill of Rights (Amendments 1 to 8) which are of the very essence of a scheme of ordered liberty. These provisions are those that involve principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. (This means that the court decided, based on the Natural Law Test, that it was killing a person was repugnant enough as to convict him)

Natural Law Test (Palko v. Conn): is this incompatible with the sense of justice of the civilized world?

Justice Black - The legislative history of the 14th Amendment shows that it was intended to make all the Bill of Rights applicable to the states. Not to have some objective flexible test of necessary to liberty and fundamental test decide what is incorporated. This natural law test violates the Constitution in that it subtly conveys to the courts, at the expense of the legislatures, ultimate power over public powers in fields where no specific constitutional provision provides such power. Thus, it should be abandoned. But liberty is important and one can see how it can be taken and thus even though I am right and the other side is wrongIll take the selective if that is all I can get.
(after Justice Black, the Natural Law Test was discarded. Henceforth, all of the Rights were incorporated)

Brown vs. Board of Education of Topeka (1954)

- about: School Segregation/Equal Protection v. State Rights
- Four black children sought the aid of the courts to be admitted to the all-white public schools in their community after having been denied admission under laws which permitted racial segregation. The youths alleged that these laws deprived them of the equal protection of the law under the Fourteenth Amendment, even though their all-black schools were equal to the all-white schools with respect to buildings, curricula, qualifications and salaries of teachers, and other tangible factors.
- Issue: Whether segregation of children in public schools denies blacks their Fourteenth Amendment right of equal protection under the law.
- Decision: The Supreme Court of the United States looked not to the tangible factors but the effect of segregation itself on public education. The Court decided unanimously that segregation of black children in the public school system was a direct violation of the equal protection clause of the Fourteenth Amendment. It rejected the separate but equal doctrine of Plessy v. Ferguson (1896), and stated that this doctrine had no place in education. According to the Court, even if the facilities were physically equal, the children of the minority group would still receive an inferior education. Separate educational facilities were held to be inherently unequal. (they ruled against segregation)
- Relevance: By this decision (although maybe a good one, in terms of stopping segregation), the Court was not only telling states what they should not do, but also telling what they have to do.

Roe vs. Wade (1973)

- about: abortion/right of privacy v. state rights/reserve powers
- A Texas woman sought to terminate her pregnancy. However, a Texas law made it a crime to procure or attempt an abortion except when the mothers life would be in danger if she remained pregnant. Ms. Roe challenged the Texas law on the grounds that the law violated her right of personal liberty given in the Fourteenth Amendment and her right to privacy protected by the Bill of Rights
- Issue: Whether state law which bans or regulates abortion violates a womans right to privacy or personal choice in matters of family decisions or marriage.
- Decision: The Supreme Court of the United States decided that states could regulate abortions only in certain circumstances but otherwise women did have a right to privacy and reproductive autonomy. The womans right to privacy was held to be a fundamental right which could only be denied if a compelling state interest existed. Once the fetus reaches a viable stage of development, such a compelling point is reached because the unborn child is now given constitutional protection.
- Relevance: example of a substantive due process case also, this decision overrode laws of 50 states (that people had voted for): extended its power and imposed their will on the legislature of 50 states.

Supreme court transformation: was judicial review intended? NO, the Constitution did not intend for it.

Court Packing Plan (1937)

The Supreme Court's invalidation of the Agricultural Adjustment Act and the National Recovery Act angered Roosevelt and he attempted to pack the court in his favor. This act called for the president to be able to appoint a new justice, up to a maximum of six, for every justice who had a least 10 years service and was 70 years of age or older. This plan immediately drew immense criticism from all political directions. When the chief sponsor of the bill, Joseph Robinson of Arkansas, died, so to did the bill.

Judicial Reform Act (1997)

- January 1997, passed in the House but not in Senate
- Seeks to restore integrity and public confidence in our judiciary by creating Statewide Special Grand Juries (three twenty-five member Special Grand Juries with statewide jurisdiction) having power to judge both law and fact charged with determining whether any particular judge, based on the evidence, should retain his/her shield from civil suit.
- imposes various restrictions on federal judges and is destined for a Presidential veto
- designed to combat specific instances of "judicial activism" by modifying certain judicial procedures. It would have required a three-judge district court panel to enjoin constitutional challenges of state referenda instead of a single judge. Also, would have prohibited a judge from issuing any order to require a tax increase and would have virtually prohibited any order against state or local government that could have required a jurisdiction to expend funds. Finally, it would have allowed e ither party in litigation to obtain a new presiding judge as a matter of right, encouraging strategic intervention and subsequent strikes against the sitting judge midway in litigation, even if a decision had been rendered against that side of the lawsuit.

United States vs. Nixon (Watergate, 1974)

- about: Federal due process v. executive privilege
- In the first half of 1972, the Democratic National Headquarters at the Watergate Office Building in Washington, D.C., was broken into. The investigation that followed centered on staff members of then Republican President Richard M. Nixon. The Special Prosecutor subpoenaed certain tapes and documents of specific meetings held in the White House. The Presidents lawyer sought to deny the subpoena. The Special Prosecutor asked the Supreme Court of the United States to hear the case before the lower appeals court ruled on the Presidents appeal to deny the subpoena.
- Issue: Whether the United States violated President Nixons constitutional right of executive power, his need for confidentiality, his need to maintain the separation of powers, and his executive privilege to immunity from any court demands for information and evidence.
- Decision: By an 8-0 vote, the Court decided that President Nixon must hand over the specific tapes and documents to the Special Prosecutor. Presidential power is not above the law. It cannot protect evidence that may be used in a criminal trial.

Lochner vs. New York (1905)

- about: Work Hours Per Week/Individual Property Rights v. State Police Powers
- New York law set limits on how many hours bakery employees could work. Lochner was convicted and fined fifty dollars for permitting an employee to work more than the lawful number hours in one week. On appeal, Lochner claimed that the New York law infringed on his right to make employer/employee contracts.
- Issue: Whether a law which limited the number of hours bakery employees were allowed to work interfered with the bakery owners right to make employer/employee contracts.
- Decision: The Supreme Court of the United States held that even though states have the power to regulate the areas of health, safety, morals, and public welfare, the New York law in question was not within the limits of these police powers of the State.
- Relevance: This decision was the greatest case of the substantive due process era, in which the Court struck down a number of state laws that interfered with an individuals economic and property rights. The court went mad :-), they said New York wasnt allowed to make its own law.

LIBERTY OF CONTRACT

Liberty of Contract issue whether the Constitution creates a right for individuals to enter into contracts on terms of their own choosing? In Lochner vs. NY, court declares the liberty of contract
says that it is in the Constitution (although it is not ever mentioned), and that it is a part of the 4th Ammednment.
With its decision in the case of Lochner v. New York, the Supreme Court embarked upon one of the most controversial courses in its history. Over the next three decades, the Court would strike down numerous attempts by state governments to improve working conditions or protect consumers, all under the guise of a liberty found in the Due Process Clause of the Fourteenth Amendment, the "liberty of contract."
The term "substantive due process" is often used to describe the approach used in Lochner--the finding of liberties not explicitly protected by the text of the Constitution to be impliedly protected by the liberty clause of the Fourteenth Amendment. In the 1960s, long after the Court repudiated its Lochner line of cases, substantive due process became the basis for protecting personal rights such as the right of privacy, the right to maintain intimate family relationships, etc.

Everson v. Board of Education (1947)

- A New Jersey school district had passed a plan allowing the reimbursement of schools for the transportation of students to private schools. The district was acting under a statute that allowed schools to regulate the transportation of students. A state court had ruled the plan unconstitutional, but the New Jersey Court of Errors and Appeals reversed the decision.
- Decision: The Court voted 5-4 in favor of upholding the New Jersey plan.
- Relevance: Using the Fourteenth Amendment, the Court applied the Establishment Clause to the states (pertaining to religion). However, it was not violated so long as money was not given directly to religious schools or gave them specific benefits.

JEFFERSON'S WALL OF SEPARATION

Establishment Clause: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
The phrase, "separation of church and state" is not found in the U.S. Constitution, the First Amendment, nor any of the notes from the Constitutional Convention..
Jefferson had written a letter in which he spoke about the wall of separation separating the state and religion but controversy exists as to what the original intent was.
The "wall" was a jurisdictional limitation against the federal government's interference with an individual's natural right to the free exercise of religion. The federal government, reasoned Jefferson, has jurisdiction over "actions only and not opinions"; it had no jurisdiction over religion, which was a matter "solely between man and his God."

Blaine Amendment (1875) introduced 22 times in Congress, would have prevented states from giving aid to religious schools. Representative James G. Blaine of Maine proposed a constitutional amendment requiring the states to abide by the religion clauses of the First Amendment of the U.S. Constitution, as well as prohibiting the public funding of parochial schools. The amendment was passed by the House by an overwhelming majority but failed to muster the necessary two-thirds vote in the Senate (28 votes in favor, 16 votes opposed). Afterwards, the Blaine Amendment was incorporated into a number of state constitutions, especially in the West, were its inclusion was often a prerequisite for consideration for statehood.

Cooper vs. Aaron (1958)

- Issue: were the State of Arkansas and its political subdivisions bound by the Brown v Board decision?
- Pursuant to the Brown v Board decision, the Little Rock school board submitted a desegregation plan that called for the total desegregation of its school system by 1963, beginning with Central High School. Initial feedback from the community indicated a willingness on the part of the citizens to see the plan succeed. However, in 1956 an amendment to the Arkansas Constitution called for the General Assembly to resist the federal courts and the Brown decision.
- Decision: since the officials of the City of Little Rock, including those of the school board, are agents of the state, and since the Fourteenth Amendment was addressed specifically to the states, the Little Rock School District is bound by the Court's decision. The Court's decision stated, "The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature...Thus law and order are not here to be preserved by depriving Negro children of their constitutional rights."
- Relevance: Article IV of the Constitution makes the Constitution "the supreme Law of the Land." The Court noted that all government officials, federal and state, take oaths to support the Constitution. Therefore, due to the supremacy of the Constitution to all other law, and due to the long-established recognition that the Supreme Court is the ultimate arbiter in stating what it means, the states and their political subdivisions are bound by the decisions of the U.S. Supreme Court.
- Basically, constitution is what the court says it is. This was horrible it meant that the other 2 branches must also accept what the Court says the Constitution is.

Missouri vs. Jenkins (1995)

- the rich school in Missouri; ruling about whether the Court could levy taxes. The decision was that the Court couldnt levy taxes, but that it could establish other institutions (in this case, the school board) through which they could levy taxes. This means that the Court essentially (although indirectly) got the power to levy taxes.

SAVANNAH PRINCIPLE

Old morality/ Savannah principle in 1796 Savannah had a very bad fire and wanted federal aid. It was decided not to give aid to Savannah, since it was not for the general welfare.
Inconsistencies with rule exceptions to the Savannah rule. Canals and roads (vetoed by president), land grant colleges, etc. Today, federal money goes toward education for college students, small studies, small and private projects, university grants, etc.
WWI started this; centralization due to demands of war; framework for centralized government
The New Deal was a total breakdown of Savannah Principles.

- Trends in the United States: 1) centralization of state power; 2) concentration of executive power; 3) concentration of national power.

Money played a role here 16th amendment. National government has funding to carry out its plans, the state government does not. The states have become somewhat independent upon federal governments. (also, for example, states cant tax income)

THE CHASE RULE

First Senate impeached John Pickering, a New Hampshire judge who was a victim of insanity. After the Senate had removed Pickering from office, the House brought impeachment charges against Justice Samuel Chase of the Supreme Court. The House charged that he had criticized the Jefferson administration unfairly. The Senate acquitted him, much to Jefferson's disappointment. This helped establish the precedent that political changes do not affect the tenure of judges.
Chase Rule: do not remove justices through the impeachment process because of his/her decisions and political statements. Instead, remove them for actions extraneous to their job (like criminal charges, etc)

- Roosevelt set down many of the goals of the progressive society in State of Union: jobs, homes, Medicare, education (security & happiness). Nock (Our Enemy the State) thinks this is a regression centralization and loss of individualism.

- Iron triangle also perpetuates this cycle: a mutually beneficial relationship between Congress, clients, and bureaucracy.

- Robert Samuels problem with the welfare state. How do you maintain a large welfare sate without smoldering the economy? Progressive goals are expensive. Capitalism has proven to be the best way to finance this. Cannot place regulations that reduce profits. (dont kill the goose that lays the golden egg)

- A positive state will require bureaucracy and rules/regulation seeks to correct wrongs

- Howards book Death of Common Sense legislation specifies, advances idea of rule of law. Scientism (ex. OSHA). The result is an arbitrary government: 80% of workforce not in compliance with all regulations. This allows inspectors to pick on the person/organization they personally do not like.

- Problem from liberty viewpoint: Doctrine of Delegation: Delegata protestas non potest delegara: powers dedicated to one body cannot be given to another.

- Lowe: Congress must work with bureaucracy and must make rules known. If rules are rigged and arbitrary, there is no rule of law.

Schechter Poultry Corp. v. United States (1935) (the chicken case)

- Schecter Poultry was alleged to have sold unfit chicken to a butcher. Schecter and the butcher are both based in Brooklyn New York. Schecter did no out of state business. Schecter Poultry Co. was charged by the federal government which argued that under the National Industrial Recovery Act Schecter Poultry can be regulated by the federal government which under the NRA set up codes in cooperation with various industries.
- Schecter Poultry argued that the NIRA was unconstitutional because the federal government had no right to regulate intrastate trade.
- The Supreme Court citing Gibbons v Ogden as the precedent reversed the lower courts decision in Schecter and struck down the NIRA as unconstitutional. The Supreme Court thus said reaffirmed the fact that the federal government may not regulate intrastate trade only interstate trade.
- NIRA replaced with National Labor Relations Act, NLRA, which created the NLRB, set fair work standards and with the Fair Labor Standards Act, passing the first minimum wage per hour, 20 cents, maximum work week, 44 then 40 hours, and banned 16 year olds and younger from factory jobs.

Gibbons vs. Ogden (1824?)

- The state of New York gave exclusive navigation rights to all water within the jurisdiction of the state of New York to R. R. Livingston and R. Fulton, who assigned Ogden the right to operate between New York City and New Jersey ports. Gibbons owned two steamships running between New York and Elizabethtown, which were licensed under Act of Congress. Ogden gained an injunction against Gibbons, who appealed.
- Issue: Can a state grant exclusive rights to navigate its waters?
- Decision: No. Congressional power to regulate commerce is unlimited except as prescribed by the Constitution. Commerce is more than traffic; it is intercourse and it is regulated by prescribing rules for carrying on that intercourse. Regulating power over commerce between states does not stop at jurisdictional lines of states, and may be exercised within a state, but it does not extend to commerce wholly within a state. When the state law and federal law conflict on this subject, federal law must be supreme. Thus the act of the state of New York was unconstitutional.
- Relevance: this case was the first one ever to go to the Court under the Commerce clause. The Court decided that commerce power was dormant in other words, the national government had exclusive control over commerce, even if no federal laws existed on that subject.

2 federalism models:
1. Brutus through courts, the national government will encroach on states
2. Publius it is easier for courts to encroach the national government
- until 1937, we had model 2. With the New Deal, direct as well as indirect effects on commerce started being considered.

Sherman Anti-Trust Act (1890)

- prevented monopolization of any market
- government used this to break up many large corporations like the Standard Oil Company, American Tobacco Company etc.
- imposed on how things were manufactured within the states (it should regulate flow, not manufacture of goods!)
US vs. Darby Lumber (1941)
- The appellee was engaged, in the state of Georgia, in the business of acquiring raw materials, which he manufactured into finished lumber with the intention of shipping it in interstate commerce to customers outside the state. Numerous counts charged the appellee with the shipment in interstate commerce from Georgia to points outside the state of lumber in which he employed workmen at less than the prescribed minimum wage or more than the prescribed maximum hours without payment of any wage for overtime. The appellee sought to sustain the decision on the grounds that the prohibition of Congress was unauthorized by the commerce clause, and was prohibited by the Fifth Amendment.
- Issue: Has Congress the constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages are less than a prescribed minimum or whose weekly hours are greater than a prescribed maximum and to prohibit the employment of workmen in the production of goods for "interstate commerce" at other than prescribed wages and hours?
- Decision: Yes. Reason: The manufacture of goods in itself is not a matter of interstate commerce, but the shipment of such article is. It was contended that the regulations of Congress in the matter of wages and hours belong properly to the states. How ever, the power of Congress to regulate interstate commerce is complete in itself, with no other limitations except those prescribed in the Constitution. This was a matter of legislative judgment perfectly within the bounds of congressional power, and over which the courts are given no control. Congress has the power to regulate not only commerce between the states, but such intrastate activities that so affect interstate commerce as to make their regulation means to a legitimate end. As regards the congressional policy of excluding from interstate commerce all goods manufactured under substandards, the enforcement of wages and hours, even though intrastate, are a valid means of protection, and therefore, within the reach of the commerce power.

Heart of Atlanta Motel vs. United States (1964)

- The owners of Heart of Atlanta Motel, restricted occupancy to white persons only, and sued for declaratory relief to be able to continue its policy despite the Civil Rights Act of 1964.
- The Court upheld those acts of Congress and in particular held that, Congress action in removing the disruptive effect which it found racial discrimination has on interstate travel is not invalidated because Congress was also legislating against what it considered to be moral wrongs.
- Showed that Congress has the full scope of powers of the commerce clause to use in protecting certain aspects of civil rights. e.g., those that by any stretch of the imagination can be said to "affect commerce".
- National court can determine local commerce/operations
Ollies BBQ Case
- "Ollies BBQ family owned restaurant" was not an interstate business.
- Decision: Court unanimously held title 2 applies to Ollie's BBQ because Ollies purchases ingredients from out of state. This broadens Title 2 to just about all businesses.

Violence Against Women Act

- made it a crime to cross state lines to continue to abuse a spouse or partner, created tough new penalties for sex offenders, and prohibited anyone facing a restraining order for domestic abuse from possession of a firearm.
- the Act requires sexual offenders to pay restitution to their victims, requires states to pay for rape examinations, and extends rape shield laws to protect crime victims from abusive inquiries into their private conduct.
- Relevance: The arguments about the constitutionality of the Violence Against Women Act arise out of a long history of Supreme Court precedents and interpretation of Congresss power to legislate under the Commerce Clause and the Equal Protection Clause.
- (the Act was done through commerce power made it seem like the commerce clause could include anything)

PACIFICUS vs. HELVIDIUS

issue: presidential authority
In 1793, George Washington proclaimed the United States neutral in the war then underway between Britain and France. American supporters of France criticized Washington for overstepping his authority and usurping the powers of Congress in making the declaration.
Alexander Hamilton defended Washington's in eight separate articles--of which only the first dealt with constitutional issues--published under the pseudonym of Pacificus in the Philadelphia newspaper, The Gazette of the United States. Hamilton argued that the conduct of foreign relations was exclusively an executive function, except where the Constitution explicitly stated otherwise.
Jefferson had resisted the decision to draft the neutrality proclamation on the grounds that the Constitution did not give him the authority to do so. He urged Madison to refute Hamiltons arguments. Writing as Helvidius, Madison argued that the control of foreign relations lay with Congress. In making this argument, Madison made several claims that differed from positions that he took during the Virginia ratification convention six years earlier.
In the end, Congress won the battle with Washington over the neutrality proclamation when local courts refused to indict or convict alleged violators in the absence of statutes passed by Congress.
Relevance: Hamilton's broad interpretation of the president's powers in foreign affairs has had great appeal for two centuries, and presidents (and their lawyers) have repeatedly invoked passages from Pacificus to buttress their own expansive reading of presidential authority.

- in the Korean War, Truman didnt even ask Congress their opinion. In Vietnam, the only authorization from Congress came for the Tonkin Resolution President can take all means necessary to protect US forces

War Powers Resolution

- Limits on presidential power:
The US President can only use army in the following circumstances: a declaration of war, specific statutory authorization, or a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
The President Must Consult with Congress
The President Must Report to Congress within 48 Hours of Troop Deployment
President Must Terminate Deployment within 60 Days of Reporting to Congress

Presidential power:
- /expansive/ - Roosevelt: Stewardship Theory: resident is the steward of the people
- /narrow/ - Taft: president must look to Congress
- /both/ - Coolidge

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