It’s not enough that claimed injury is govt.’s “not doing its job” “Stigmatic/[generalized] injury” not enough- i.e. Allen Ps: “Although I’m not personally injured b/c I’m not trying to send my kids to white flight schools/my kids aren’t getting discriminated against, that people like me are getting discriminated against stigmatizes people like me” Claim 2 –Do Ps have standing to vindicate their kids’ right to have a racially integrated pub. school edu. (which IRS is undermining by not revoking tax-exempt status of “white flight” schools?) Concl: No. Analysis: (1) While this IS leg. cog. injury… (2) Fails causation / traceability sub-prong – causal connection between IRS contd. subsidies to white flight schools & this injury attenuated at best Stresses SoP standing concerns* - Ps insisting that fed. cts. should continually monitors soundness of Exec. policy (Here, IRS)….such a role is more appropriate for Congress Dissent: Yes. Econ. analysis – Causation prong IS satisfied. SC forcing IRS to remove white flight school tax-exempt status tuition at those schools goes up some private school parents will withdraw kids & put them into pub. Schools integration of pub. schools Hypo- Had SC ruled on the merits in Allan & revoked white flight schools’ tax exempt status, & then had white flight schools sued govt. claiming IRS applying tax code too strictly…. 1. Injury-in-fact? –Yes. lost $ from enrollment decline from tuition incr. 2. Causal relationship? A. That’s fairly traceable to D’s (here, govt.’s) actions? Yes; IRS revoking tax-exempt status directly causally traceable to schools’ lost $ from enrollment decline due to necc. tuition increases 3. SoP Allen rationale against SC intervention? (Would giving these Ps standing require SC to be“monitor of wisdom of govt policy?”_ Yes.
To achieve this, Cong. has prohibited even intrastate activities related to [marijuana] –both econ. activities (manufacture, distrib,…) and nonecon. activities (simple possession). Concl: Thus, “….Congress’s authority to enact these prohibitions of intrastate [marijuana] activities depends only upon whether they are appropriate means of achieving the legit. end of eradicating [those] substances from interstate commerce..” Modern Commerce Cl. Law Flow Chart 1. Does statute reg. “channels of i-c.?” (Lopez category 1) –“Channels” means *Direct reg. of clearly interstate commercial transactions.* (a) actual routes thru which trans. take place (highways, railroads etc) OR (b) i-c. transactions themselves (ex. sales across state lines – Darby, Champion) If yes, then SC will (likely) uphold. If no – 2. Does statute reg. “instrumentalities” of i-c. , OR “things in i-c.” (Lopez category 2) Means: Does statute reg. instruments/carriers that have traveled thru i-c. […even if carriers are instruments of both intra- and inter-state commerce]? Shreveport Rate Case- Even though regulated act. is intra-state- discrim. shipping rates within TX-, this activity was so related to interstate shipping [by encouraging TX r.r. monopolies] to warrant upholding reg. under Comm. Power A) If yes, (likely) upheld. B) If no – [meaning it’s local, intrastate activity] 3. Is statute regulating economic activity? [**Sometimes depends on how narrowly/broadly challenger frames “econ. activity – Ex. Is activity for which the regulated conduct substitutes “economic?” (Wickard); “intrastate possess. & manufac. Of marijuana” (Raich) Ex. Narrow: “med. marijuana for home use to relieve pain and suffering” (Raich O’Connor dissent) But sometimes ct. applies more rigid def. of “econ. activity” Lopez – guns near schools not econ. act., even under broad Wickard def.
1. Statute must be providing for general welfare – SC defers to Congress here - a policy judgment Statute always valid under this limit – if Congress itself enacted it, obviously Cong. thought statute provided for “gen. welfare” 2. Conditions on states’ receipt of fed. funds must be unambiguous, so states can choose whether to take fed. funds, after fully considering consequences of not following conditions 3. Germaneness – Fed. conditions on grant to states only OK if its relevant to purposes for which Cong. approved the grant Even remote connection between condition & the purpose of the spending statute OK – easy to satisfy. App- Here, condition for fed. highway funds-- raising drinking age to 21--is “directly related to 1 of the main purposes for which highway funds are expended- safe interstate travel;” Condition of states raising drinking ages to 21 uniformity across states in drinking age discourages teens from bordering states driving to SD to buy beer discourages teenage drinking & driving 4. Other Con. provisions may independently bar conditional grant of fed. funds (Ex. Cong. can’t give states grants on condition that they violate 1st Amd. by implementing censorship) 5. Fed. condition for grant to states can’t amt. to “compulsion” App: Condition here IS NOT coercive b/c Cong. has only made it so a state that has a below-21 drinking age “lose a relatively small % of certain fed. high funds”; so SD would still have other ways to obtain fed. highway grants Unclear how to disting. between conditions that are coercive and that are merely strong inducement to states. But SC has never had to draw this line b/c it has never struck down statutes exercising Congress. spending power. O’Connor Dole Dissent – Concl: Statute invalid exercise of Cong.’s spending power Cong.’s spending power should be limited by more than Cong’s own notion of gen. welfare so that fed. govt. doesn’t invade states’ jurisdiction / have no spending limits Criticizes maj.’s concl. that state min. drinking age condition is sufficiently related to grants for interstate highway construction & highway safety Upheld statute here “both over- and under-conclusive” Over –inclusive:
Frankfurter concurrence: functionalist arg. Sometimes pres. CAN act in domestic affairs absent Cong. authorization or express Con. authorization, but only if history and practice have suggested need to do so . But if Congress has explicitly said Pres. can’t act in given situation, then Pres. can’t. **Jackson concurrence- READ AS BINDING PRECEDENT Concl – Exec. action invalid b/c there’s implicit Cong. prohibition, and it’s unjustified under C-in-C Art. II power. [ His scheme leaves some room for pres. to act absent authorization from Congress, cat. 2 “yellow”/silence, unlike maj. ] A. When does Cong. Authorize Pres. to Act? 1. “green ”- Pres auth. to act at its apex when Cong. has (a) expressly OR (b) impliedly authorized pres.’s action In either case, Pres. CAN act 2. “yellow” / “twilight zone” – Cong. silent as to whether pres. can act in situation; Cong. silence on the matter pres. authority to act depends on imperative of circumsts. 3. “red” – (a) implied OR (b) express Cong. prohib. of this kind of action (assuming the Cong. prohib. is constitutional- ex. Congress can’t prevent Pres. from exercising his exclusive Con. power to grant pardons) Pres. authority to act at its lowest ebb App: Pres. nationalization of domestic mills in red zone A. Statuary Authoriz.? Congress has implicitly prohibited this pres. action (Despite Cong. silence on this, Jackson puts this action in “red zone”) Statutes of similar subject matter (govt. private property seizures) imply prohib. of this exec. action (red zone), even though Cong. silence as to these spec. circumsts/pres. action Show how anytime case falls into “twilight” zone, also poss. to argue that Cong. silence means implied prohibition (category 3 “red” ) B. Con. Authoriz.? Govt: “Commander & Chief” power permits pres. to act in war & nat’l security matters, even if Cong. has purported to prohib. Pres. from acting
includes detention w/o access to normal judicial system safeguards, incl. lawyer [Jackson cat. 1- “green”- pres. authority apex] O’Connor Plurality Qualification: 1. AUMF “not a blank check for the Pres.” to detain citizen at expense of detainee’s due process rights: (a) to receive notice of factual basis for his classification as “enemy combatant,” and (b) fair opp. to rebut govt.’s assertions against him in court 2. Pres. can only detain alleged enemy combatant for duration of the conflict (What does this even mean in amorphous, War on Terror?) *O’Connor Plurality Reasoning Statute authorizes use of “force,” which includes detention w/o normal judicial system safeguards Broad reading of “force” in AUMF Detention is so fundamental an incident of war as to be an exercise of the “necc. and appropriate” Cong. authorized pres. to take under AUMF Souter Concurrence w/ judgment/ dissent-in-part Can Pres. indefinitely detain U.S. citizen captured abroad/deemed “E.C.” in these situations: Cat. 3. /Cong. Prohib? .- No. Non-Detention Act, § 4001 (a) (1948) requires “clear statement of [Cong.] authorization” to detain citizens prohibits indefinite detention of U.S. citizens [Jackson cat. 3] Here, AUMF does not explicitly authorize pres. to detain U.S. citizens indefinitely –it only authorizes “force” (read narrowly- use of armies and weapons, doesn’t incl. indefinite detention) Thus pres. cannot indefinitely detain U.S. citizens captured abroad pursuant to NDA prohib. absent Cong. clear authorization Cat. 2/Cong. Silence- No, EXCEPT during emerg., temporarily: :Pres can detain citizens indefinitely when Congress is silent, but ONLY when there’s “genuine emergency” Emerg. qualification does NOT apply here b/c Hamdi has been detained for > 2 yrs. - shows there’s no “actual and present” necessity, like a “genuine invasion that closes civilian courts” (Ex parte Milligan) Cat 1/ Clear Cong. authorization – Yes
However, Cong. CAN limit pres.’s power to fire inferior officers [Subtext: Theory of the Unitary Executive- arg. for unfettered pres. removal power:] Pres. electorally accountable to voters; whereas actions of his subordinates, agency officials, only indirectly accountable by electorate voting for pres. If pres. can’t fire exec. officials for doing bad things, no electoral control over their decisions B/c Con. vests exec. power in the pres., he must have control over anyone charged w/ executing the law; thus, Cong. CAN’T limit pres.’s power to control (incl. to remove) exec. officials. Analysis Postmaster of Portland, OR exercises exec. power . “w/ advice and consent of Senate” limitation” on Pres.’s Postmaster removal authority = direct Cong. role in removal, Cong.’s effort to reserve to itself to remove postmasters Humphrey’s Executor v. United States Issue- Can Cong. limit Pres.’s power to remove FTC commissioner? (Are FTC commissioners “principal” or “inferior” officers pursuant to Appointments Cl. precedent)? Yes. Whether or not Cong. can limit Pres. removal of official depends on “character of the office.” While Cong. cannot restrict pres.’s power to fire exec. officers (Myers), it CAN limit Pres.’s power to remove non-exec. (here, quasi-legislative or quasi- judicial) officers Statute at – limited Pres. power to remove commissioner except in limited, specifically listed circumsts. [Contrast w/ statute]- Whereas Myers statute said Pres. could remove postmaster w/ “advice and consent of the Senate “(direct Cong. role in removal); Humphrey statute did NOT provide for direct Cong. role in removal Why is Cong. trying to limit circumsts. when pres. can fire? FTC designed as independent agency to promote fair competition in trade; Cong. trying to insulate FTC officials from New Deal/politically-motivated pres. removal Analysis – [FORMALISM} Rejected Myers unitary exec. theory; but didn’t completely overrule- distinguished it