Seminar. Advanced Constitutional Law Prof. Greve. Monday 2:00 3:50. Spring Outline

Transcription

1 Seminar Advanced Constitutional Law Prof. Greve Monday 2:00 3:50 Spring 2015 Outline This seminar covers constitutional questions that frequently arise in (especially commercial) appellate and Supreme Court litigation but are inadequately covered in ConLaw I, Federal Courts, Statutory Interpretation/Legislation, and Administrative Law. Subjects include federal preemption; spending and appropriations; constitutional canons (e.g., non-delegation, avoidance) in statutory litigation; constitutional common law (e.g., the dormant Commerce Clause); and the vexing and often ignored interplay between these and related doctrines. For the full inventory, see the Syllabus below. Secondarily, the seminar introduces students to (constitutional, appellate) litigation strategy, as distinct from writing skills on one side and high-level doctrine on the other. Strategy questions include the do s and don t s of appellate litigation but also client and forum selection; coalitionbuilding and amicus management; and certiorari issues. Some of the sessions will guest-star the lawyers who participated in the cases, providing students with an opportunity to ask pressing questions: How did you do this? What were you thinking? (Also, are you hiring?) Because the seminar is structure-oriented, it does not cover the let s-make-up-rights ground of ConLaw II. Because it is practice-oriented, it does not cover anything that would qualify as constitutional theory at Yale Law School, from Balkin to Dworkin to Wittgenstein to originalism, straight-up (twist, or olives?). You ll be required to learn law. That will require work. Requirements The seminar is suitable only for students who have done well in ConLaw I and, ideally, have taken (and again done well in) Administrative Law and/or Federal Courts. I will not re-teach this stuff; I will simply assume that you know it. Think of the seminar as FedCourts on steroids: the hardest two credits you have ever earned.

2 The seminar requires an inordinate amount of reading of unedited opinions, briefs, and arguments transcripts, as well as law review articles and other materials. (Cutting through clutter is an indispensable legal skill; this seminar is a good opportunity to learn it.) Moreover, the reading assignments listed in the Syllabus are a bare minimum. To get the maximum value from this seminar and to do well in it, you ll want to do additional research for each session. The principal requirement is a final paper (20-30pp), on a topic selected in consultation with the instructor. The paper may take the form of a brief, judicial opinion, or law review essay. It will require initial discussion and continuing consultation thereafter; I will announce a proposed schedule at the first session. In addition, there is a very heavy premium on active, constructive class participation. To that end, students will be required to submit, per (mgreve@gmu.edu), two questions about the case(s) and readings for the following session, due two days prior Saturdays, 6:00pm to that session. No question are due for the first class. The final paper counts for 75% of the course grade; questions submitted and class participation, 25%. Logistics Office Hours: Mondays, 4-5 pm; or by appointment. Contact Info: Please use this for all communication: mgreve@gmu.edu. Syllabus Note: The Syllabus is subject to frequent changes (depending on our progress; guest stars availability; the progress of pending litigation, and your instructor s sheer whim). I will attempt to provide adequate notice; however, periodic checks are highly advised. The seminar is divided into an introductory session and six parts, each containing two sessions. The Syllabus lists the readings and suggests the general direction of the parts/sessions. Readings are listed under Background, Assignments, and Recommended. Some materials will be posted on TWEN; everything else is readily available of Westlaw or other internet sites. Background contains cases (and occasionally some other materials) with which you should be familiar. In any event, I ll simply assume that you are. Most of the cases appear in excerpted

3 form in ConLaw or FedCourts textbooks, and that will generally suffice for purposes of preparation. You ll find the other cases on Westlaw; other materials will be on TWEN. Assignments is the must-read stuff the cases we will knock around in class. To get a grip on the cases, you will generally want to read briefs and argument transcripts (not listed). Recommended means well, optional. Many of the materials are snippets from Hart & Wechsler s Federal Courts (6 th ed. 2009) ( H&W ) and from your instructor s Upside-Down Constitution ( UDC ). If you happen to own one of both of these masterpieces, good; if not, they are available in the library. Obviously, H&W is way more important. UDC may be helpful if you re interested in how I happen to think about this stuff. You don t have to think that way au contraire: you are strongly encouraged to make up your own mind. Session 1: Introduction Constitutional Argument (and Strategy) I ve chosen a tolerably straightforward case to limn the range of questions that will occupy us throughout the course: forms of constitutional argument (yes, Virginia, there s more than the text and no, that doesn t mean it s made up); and questions of strategy. Assigned: Granholm v. Heald, 544 U.S. 460 (2005); Tracy Genesen, Remarks Stephen Smith, Believing Like a Lawyer (TWEN) (an all-time classic well worth your while); UDC Ch. 1. PART I: Judicial Power We start, as we must, with Marbury. Its premises are in tension with the Supreme Court s Magnificat of the post-new Deal order: Behold, we are the handmaid of the Congress. You ve encountered this tension in ConLaw I and perhaps AdLaw and/or FedCourts. We ll explore it in two settings: direct constitutional attacks on statutory preclusions of judicial review; and constitutional avoidance canons. Session 2: Preclusion of Review Guest Star: Robert R. Gasaway (Kirkland & Ellis) Take a look at Sec. 307(b) of the Clean Air Act and Sec. 113(a) of CERCLA (aka Superfund ): are these provisions constitutional? Why or why not? What sort of case would you want to argue that they re not? Once you have that case, would you try to distinguish Yakus or attack it outright? Would you couch your argument as an Article III attack, or due process? Both?

4 Background: Crowell v. Benson, 285 U.S. 22 (1932) Assigned: Yakus v. U.S., 321 U.S. 414 (1944); Adamo Wrecking Co. v. U.S., 434 U.S. 275 (1978) Recommended: H&W Session 3: Avoidance Canons Statutory Construction Guest Star: Ashley Parrish (King & Spalding) The precept that statutes that can be construed in conformity with the Constitution must be so construed is one of several constitutional avoidance canons and techniques. In one form or another it dates back to the days of Story and Marshall. But is it right and if so, in what form and deployment, and with what limits? Put that question together with originalist interpretation and facial vs. as applied challenges: your head will spin. Step back. Instead, recognize that if you re a private litigant (usually against the government), the canon can kill you and save you, in several different ways. Read the assigned cases through that lens. Suppose you see the canon coming in the tax part of NFIB: what s your answer? What s your argument in the Medicaid piece of NFIB and then in Bond avoidance, or outright unconstitutionality? Background: For Bond: Missouri v. Holland, 252 U.S. 416 (1920); Reid v. Covert, 354 U.S. 1 (1957). For NFIB: Steward Machine Co. v. Davis, 301 U.S. 548 (1937); South Dakota v. Dole, 483 U.S. 203 (1983) Assigned: NFIB v. Sebelius, 132 S.Ct (2012); Bond v. United States, 134 S.Ct (2014) Recommended: H&W (with literature references). PART II: Constitutional Common Law On some accounts just about all ConLaw is common law. Nothing in the Constitution tells you whether the sale of insurance across state lines is commerce ; whether corporations are citizens ; or whether Janet Jackson s assets fall or hold up under freedom of the press. And because we can t and don t want to wait around for Congress to tell us, courts make the rules. On another account, that s all interpretation, and constitutional common law is or ought to be a null set. Have fun with the metaphysics if you like. For present purposes constitutional common law means judicially enforceable rules, derived from (but not literally in ) the Constitution, that are

5 presumptive because Congress can trump them through (clear) legislation. The most important of these rules is the dormant Commerce Clause. Vastly more important in our history than the awake Commerce Clause; still part of the ConLaw canon in my ill-spent youth; now, not so much. But it s still worth knowing both in its own right and for what comes next (preemption). Session 4: Dormant Commerce (1) Taxes and Regulation Guest Star: [Neal Katyal] (Lovell s) One way of approaching this: read Justice Thomas s Camps Newfound dissent. Then, ask whether the second M Culloch holding and Gibbons are actually right. Next, consider that the imaginary dormant Commerce Clause reached its apex in the heyday of legal formalism: weird, don t you think? Consider the cert grant in Wynne. If you re the state, what s your best move on the merits? If you re representing the Wynnes, what is your biggest problem, and how do you deal with it? Background: M Culloch v. Maryland ; Gibbons v. Ogden; Brown v. Maryland, Assigned: Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564 (1997); Comptroller v. Wynne [pending] Recommended: W. Livestock v. Bureau of Revenue, 303 U.S. 250 (1938); Complete Auto Transit v. Brady, (both good to know but not absolutely crucial); UDC Ch. 4 (91-111); Eule, Laying the Dormant Commerce Clause to Rest (TWEN); Symposium, Vanderbilt Law Review En Banc (TWEN) Session 5: Dormant Commerce (2) Extraterritoriality You d think that states can t tax or regulate wholly foreign ( extraterritorial ) transactions. Alas, that s news to the great state of California and a matter of indifference to the Supreme Court. But suppose the Court did agree to hear an extraterritoriality case: would you brief/argue it as a dormant Commerce Clause case? Due process? Something else? Could Congress authorize states to tax and regulate wholly foreign transactions? Background: Hammer v. Dagenhart, 247 U.S. 251 (1918); Parker v. Brown, 317 U.S. 341 (1943); Healy v. Beer Institute, 491 U.S. 324 (1989) Assigned: Quill Corp. v. North Dakota, 504 U.S. 298 (1992); [CARB case] Recommended: UDC Ch. ; Laycock, (TWEN)

6 PART III: Federal Preemption Preemption cases often hang on arcane statutory terms of art; and because they often arise, one after another, under the same statutes (ERISA, the FDCA, SLUSA), they re highly pathdependent. In that sense, this is for statutory dorks. Still: in hard cases there s a lot of churn and heavy constitutional breathing. (Read Justice Thomas s Wyeth concurrence, which tries to reconnect the constitutional dots.) To get this right, you have to comprehend how preemption doctrine fits into the rest of the post-new Deal universe: the vast expansion of the Commerce Clause, Erie Railroad (oh, yes); and the curious emergence of preemptive federal common law. We ll first sketch a roadmap and then tackle some nasty problems. Session 6: Foundations, Canons, Presumptions Two intuitions are at work here. One: if you put a boundless Commerce Clause together with Gibbons-style preemption notions, there d be nothing left of the states. Rice tries to address that: make sure you understand what s happening there. Two: you can have Erie, or interstate commerce; you can t have both. Is it any wonder that the doctrines are a mess? Where, in your considered judgment, does the power to preempt come from? Background: Erie Railroad v. Tompkins, 304 U.S. 64 (1938); H&W ; Boyle v. United Technologies, 487 U.S. 500 (1988) Assigned: Rice v. Santa Fe Elevator, Geier v. Honda Motor Co., 529 U.S. 861 (2000); Wyeth v. Levine ; AT&T Mobility v. Concepcion, 563 U.S. (2011) Recommended: Stephen Gardbaum, The Nature of Preemption (in, Greve & Epstein, Federal Preemption Library Reserve); Caleb Nelson, Preemption (TWEN); UDC. Session 7: Application(s) Guest Star: Dan Schweitzer (NAAG) State enacts a law limiting Medicaid provider payments. Providers say that s preempted because the federal statute requires higher rates. Can they sue? If not, why not? This is surprisingly nasty; you ll have to understand a bunch of quasi-constitutional doctrines: Section 1983, private rights of action, and Ex Parte Young. Then, ask and answer: do we think that a spending statute preempts anything at all? Why or why not? Background: Gonzaga v. Doe

7 Assigned: PART IV: Separation of Powers Congress may (1) broadly delegate legislative power to executive/administrative agencies; (2) combine legislative, executive, and judicial functions in such agencies; and (3) shield their officers against presidential removal. [Note: This Part may be replaced] PART V: Non-Delegation The thing to comprehend is that reports of non-delegation s death have always been and will always be premature: nobody thinks Congress could enact a law authorizing the President to do good and adjourn sine die. Thus, even if we cut Congress all the slack in the world (as we have), two questions remain: (1) what are the ascertainable limits; (2) how (if at all) should courts enforce them? We ll first examine a direct non-delegation challenge (a pending case involving the Consumer Financial Protection Bureau (CFPB)) and then tackle the underhanded canons. Session 10: Direct Challenge(s). Guest Star: (O Melveny & Myers) Read Title X of the Dodd-Frank, carefully. Then, suppose you ve been retained by a financial institution that got whacked or is about to get whacked for an abusive financial practice. Assume (probably correctly) that you have no APA defense. What would a delegation/separation of powers case look like? What are your best/worst cases? Read Schechter very carefully. Background: A.L.A.Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935); Mistretta v. U.S., 488 U.S. 361 (1989); Free Enterprise Fund v. PCAOB, 561 U.S. (2010) Assigned: Dodd-Frank Act, Title X; [briefs] Session 11: Non-Delegation as a Canon

8 We ll examine the rise and fall of the non-delegation canon and then the Chevron doctrine and its mousehole exception (?) or application (?): those are delegation canons, don t you think? Why doesn t someone say so? We ll then examine statutory schemes that delegate the power to tax (as well as to regulate). No prob, the Supreme Court has said; but maybe that off-the-cuff ruling isn t a show-stopper. Background: Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984); FDA v. Brown & Williamson, 529 U.S. 120 (2000) ; Assigned: Industrial Union v. API, 448 U.S. 607 (1980); Whitman v. Am. Trucking Ass ns, 531 U.S. 457 (2001) PART VI: Federalism; Taxing and Spending A key federalism fact is that the federal government cannot conceivably run a large-ish country on its own; it needs state and local governments to give you money and to keep you out of wetlands. Hence, the terms of federal-state relations and bargains matter a great deal, and you may have noticed that they ve become very controversial. We ll first discuss the constitutional contours and then deal with practical questions highly technical, but of huge practical import. Session 12: Commandeering and Conditional Preemption Congress may preempt states; incentivize states; but never commandeer them. May it then govern by conditional preemption, as in: You (state) may voluntarily do as we wish, or else we (feds) will do it for you? Is that okay because the greater power to preempt includes the lesser power to preempt conditionally or is it a gun to the head? Background: Prigg v Pennsylvania, 41 U.S. 539 (1842); New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997); re-read the Medicaid piece of NFIB v. Sebelius. Assigned: Hodel v. Virginia Surface Mining & Reclamation Ass n, 452 U.S. 264 (1981); FERC v. Mississippi, 456 U.S. 742 (1982); CAA Sec 110, 112 [?] Recommended: Session 13: Federal Funding

9 Consider two propositions/questions: (1) it cannot possibly be the case that Congress can spend its way around enumerated powers limits and that no one has standing. (2) Federal taxes are common pool contributions. If taxpayers can challenge the feds bargain with a state government for delivery of services, why not a contract with Office Depot? Any constitutional way to sort this out, either on the standing or the spending question? Background: Massachusetts v. Mellon, Frothingham v. Mellon; Pennhurst v. Haldeman, re-read Steward Machine Company, South Dakota v. Dole, NFIB (Medicaid part, yet again).