ConLaw I: Structure of Government LAW 121 (002) Prof. Greve Fall 2018 Room: Hazel Hall Times: Tue/Thurs 2:00 3:50 Exam: Dec. 4, 2018, 12:00pm Office Hours: Room 409, Tuesday & Thursday 4:00-5:00pm; or by appointment (email mgreve@gmu.edu to schedule) Welcome to ConLaw I. We will use the following textbook: Michael Stokes Paulsen et al., The Constitution of the United States (NY: Foundation Press, 3d ed. 2017). Additional readings are posted on TWEN. No further readings are required. However, you may want to purchase, peruse, and even think about The Federalist. (Paulsen et al. are pretty good at excerpting relevant passages; but there s plenty more, and I ll revert to Publius s riff on the Constitution throughout.) If you want to look at a broad-sweep history of the Supreme Court and the major themes of constitutional law, check out Robert McCloskey, The American Supreme Court (Chicago Press 2004). On Teaching, and Learning, ConLaw Students entering ConLaw tend to entertain certain preconceptions, to wit: (1) my private opinion about liberty, truth, and justice matters greatly. Wrong: your prof doesn t care about it. Or: (2) Law should be formalistic and rule-like, like CivPro. ConLaw isn t; therefore, it s all politics. Also wrong, for the most part. For reasons we ll discuss I continue to believe, albeit with increased diffidence, that there is a form of (non-formalistic) constitutional law that is actually law. The tension between law and politics is crucial; you ll learn a lot about it. For my true (and correct) views on many of the cases and ConLaw in general see Greve, The Upside- Down Constitution (Harvard UP 2012). I do not recommend this book as an introductory text: it s tough sledding. If you absolutely insist on probing you instructor s mind prior to the course, check out Greve, The Constitution (2013). It s short, accessible, cheap, and available on Amazon. Class Discussion I strongly encourage active class participation, and I will consider it for purposes of your grade. (Active, constructive participation means a.33 upgrade.) In particular, assuming you are prepared for class, I welcome questions of the I just didn t get this variety: very likely, it s a question your classmates are afraid to ask. I ll cold-call now and then, to keep you on your feet. If for some reason you have been unable to prepare for a class, send me an email. No harm if you do this once or twice; just don t make a habit of it.
Exam Four hours; essay question(s). Open book; internet secure. It pays to mark up your book etc. as we go along. I ll supply additional information prior to exam time. Syllabus Check the syllabus on a regular basis. It is subject to change, depending on our progress. I will also add reading instructions/questions as we go along; and I may occasionally change my mind on how to arrange this particular set of deck chairs. The operative version of the Syllabus is the one on TWEN. I like this textbook because it goes for depth rather than breadth: instead of cramming endless precedents into your heads, we will study a relative handful of big cases in detail, with a lot of background. Often, case names in the assignments include the editors comments. The listed page numbers reflect the full assignment. We may not always be able to cover the assigned materials in a single session. When that happens, you are still expected to do the readings for the next class. Part I: Constitutional Structure 1. Reading the Constitution U.S. Constitution (1-15); M Culloch v. Maryland (487-503); Types of Constitutional Argument (42-43) M Culloch (or McCulloch, as it s usually mis-cited) is the most important case you will read the wellspring of numerous important doctrines. We ll come back to it time and again; I m hitting you over the head with it right out of the box because it s a great way of exploring various forms of constitutional argument. Try to understand what Marshall is doing here, and how he does it. The editors suggestion in n.2, p. 503 is very helpful. While at it, you may want to make a list of the constitutional provisions that are implicated here. 2. Constitutional Structure Articles of Confederation (1673-1679); U.S. Constitution (1-15); Introduction (19-41) You won t be able to understand any constitutional clause without understanding why it s in the document; and you won t be able to figure that out without some sense of the overall architecture. Useful exercise: Put the Constitution next to the Articles; cross-reference the clauses. What are the major differences? What exactly are the problems that the Constitution is meant to solve? 3. Constitutional Supremacy Marbury v. Madison, Stuart v. Laird (370-390) Marbury is the most famous case you ll ever read, in any course. I ve moved it up (from the order in the textbook) because the rest of ConLaw is hard to understand without it. It has two parts: (1) the riff on the Judiciary Act and Art III; (2) the explanation of the power of judicial review (starting on p. 385).
Part (2): There are actually two theories of judicial review that find support in Marbury, depending on how you understand Marshall s argument(s). Pay close attention to what he says about the judiciary s role: what exactly does this entail? Part (1) has some fairly tricky stuff you ll encounter again in AdLaw (Marbury is our first big Administrative Law case) and in FedCourts. We ll go through it. Consider the editors Notes (3) and (4), pp. 388-389: do we think Marshall got this right? 4. More on Constitutional Supremacy Alien & Sedition Acts (46-68); Martin v. Hunter s Lessee (TWEN) We ll ignore the First Amendment issues. The question you want to keep in mind: who exactly gets to say what the (supreme) Constitution means, and when and how? In particular, what s the role of the states in this enterprise? I ve asked the editors why they left Hunter s Lessee out of the textbook. Answer: you re not the first to ask. The case is difficult but crucial. Suppose Congress had never enacted Section 25 of the Judiciary Act (the precursor of what in 1875 became federal question jurisdiction): what follows? Part II: Separation of Powers 5. Introduction Youngstown Sheet & Tube Co. (69-86) The Constitution embodies two structural principles: separation of powers, and checks and balances (they re not the same). What exactly is the point? We ll rehearse the basic theory. You may want to read Federalist 51 (excerpted p. 86) in its entirety. Youngstown is instructive in many ways. It s not all that easy to tell legislative from executive power is it? Which of the opinions strikes you as most compelling, and why? 6. Legislative Powers; Delegation Map (86-88); Post Roads Debate (88-94); Mistretta (95-103); A.L.A. Schechter Poultry (TWEN); Dept of Transportation v. Ass n of Am. Railroads (TWEN). Two questions about legislative powers: (1) their scope/extent: that s M Culloch, and cases later in this course. (2) Can Congress delegate the powers to someone else? That s this. The First Congress that agonized over post roads enacted the Invalid Pension Act, authorizing the award of pensions to veterans under such rules and regulations as the President or the Secretary [of War] may from time to time establish. Unconstitutional? (Is that why it was called the Invalid Pension Act?) If not, what is the hilarious Post Roads debate actually about the Constitution, or just pork? I ve added readings to highlight a theme the textbook doesn t explain: only a very small faction of the (federal) rules that govern us come from Congress. Almost all come from three-letter agencies (FCC, SEC, EPA.) If you think that Congress may not delegate its powers, all of that has to be unconstitutional no? What s the answer in Schechter does it really stand for an intelligible principle rule of (non-)delegation, as Mistretta suggests? (Read the cases carefully!) What is Justice Scalia up to in his Mistretta dissent, and what do you make of Justice Thomas s opinion in the Amtrak case?
SCOTUS is looking at delegation again in Gundy v. U.S. (pending) 7. Composition of Congress; Legislative Qualifications Powell v. McCormack (103-111; U.S. Term Limits (111-125) Term Limits is the more important and difficult case; read carefully in light of (yes!) M Culloch. And remember the case when we get around to federalism in later sessions. 8. Bicameralism and Presentment INS v. Chadha (140-151); Clinton v. New York (151-160) Contrast the hyper-formalism in these decisions with the Court s anything-goes approach in delegation cases: what explains the difference? Are these decisions (non-)delegation cases in drag? 9. The Power of the Purse U.S. v. Lovett (160-167); Statement on H.R. 1473 (167-169); House of Representatives v. Burwell (169-176) The materials on money here and elsewhere in the 3d edition are new, and most welcome in light of recent events. We ll start with a brief overview of our fiscal Constitution ; to that end make a list of the constitutional provisions that say something about money. Think about the three-way separation-of-powers problems here (there are many). Suppose the Court had reached the separation of powers issue in Lovett: what s the answer? In addition, think about the judiciary s role: even if the legal issues are pretty straightforward (as the merits issues actually were in Burwell) the remedies may be extremely difficult no? 10. Executive Power; Appointments Introductory Materials (176-185); Buckley v. Valeo (186-189) Skim: NLRB v. Canning (190-207) Lucia v. SEC (TWEN) We ll spend the first half of this session on Article II and its place in the Constitutional scheme. Here s the basic puzzle: the Founders feared that Congress would draw all powers into its impetuous vortex ; and you can think of all the checks and balances as an attempt to clutter the legislatures with as many obstacles as the Founders could think of. That did not happen, did it? We ve seen astounding unilateral exertions of presidential power, while Congress stands pat and 535 blowhards compete with the President for airtime. That s the backdrop for this and the next sessions. The Appointments issues are pretty straightforward. Canning is interesting if you re into interpretive theory, especially the wisdom of getting hung up on definite articles ( the recess ). We ll deal with it briefly. 11. Removal and Supervision
Decision of 1789 (207-210); Myers v. U.S. (210-220); Humphrey s Executor (220-223); The Power to Direct (223-229) Many of you are too young to remember, so let me remind you: President Obama entered office with a full-scale financial crisis on his hands and with a bunch of effectively non-removable high-level officials at the Fed, the SEC, the Federal Reserve in New York, and other agencies. Does that make sense? What s the strongest argument in defense of Humphrey s Executor? 12. Suspending and Dispensing Powers; Synthesis Morrison v. Olson (249-269); U.S. v. Cox (229-237); Adams v. Richardson (237-240); OLC Deferred Action Memo (240-247) We ll reverse the order in the textbook: Morrison first, then suspension. First half: the contentious issue is removal. After Free Enterprise Fund (267-268) Humphrey s Executor and Morrison hang by a thread; and the President has mused about firing Mr. Mueller and chosen a Supreme Court nominee who has mused about driving the final nail into Morrison s coffin. Should the Court, on an appropriate occasion, overrule the cases as obviously wrong? Why or why not? Second half: the questions here are really hard. In addition to the editors Notes think about two questions: (1) the U.S. Congress has armed the Executive to the teeth. Does that entail (on Youngstownish grounds) an enhanced power to not enforce the law or does it cut the other way? (2) What exactly is the appropriate judicial remedy for an executive failure of faithful execution? 13. Foreign Affairs Neutrality Controversy (269-280); Zivotovsky v. Kerry (281-300) This session and the next involve a ton of very difficult questions; they re the stuff of entire courses on foreign relations law (not international law the domestic law of foreign relations). We ll try to get a general lay of the land more lecturing than usual. Hamilton plainly won the argument against Madison, didn t he? Why or why not? 14. War Powers Starting War etc. (300-304); Prize Cases (304-312); Declarations of War etc (312-327); Korematsu (328-341); Hamdi (341-348) 15. The Judicial Power A word on this and the remaining separation-of-powers sessions: in a very real sense this is the heart of the U.S. Constitution. And because it is, it s overlaid with extremely technical doctrines: every dang nuance is tied to the question of who gets to decide what. We ll do the basics. (If you like this stuff, see me in FedCourts.) I m not terribly fond of this part of the textbook (earlier editions were way better); hence, the unusual number of TWEN assignments.
Map of Art. III (365-370); Constitutional Dilemma (391-400); Cooper v. Aaron (400-404); Ex Parte Merryman (404-413) A rehearsal of Marbury s themes; re-read that case. In examining the Map, think about the gap between the Constitution s text, and modern facts. If you look just at Article III, the judiciary looks like a Mickey Mouse institution no? (I ll lecture briefly on the power of Congress over the jurisdiction of federal courts. Then how did the courts become so powerful? 16. Cases and Controversies Correspondence of the Justices (413-418); Ex Parte Levitt (418-420); U.S. v. Windsor (420-430); Massachusetts v. EPA (TWEN) We ll rehearse some black-letter law on standing to sue. We will also tackle two vexing questions that have become ever-more important: standing for legislators (Windsor), and for states (Mass v. EPA). 17. Sovereign Immunity Chisholm v. Georgia (448-462); Hans v. Louisiana (TWEN); Seminole Tribe (TWEN) Nasty problems here. But it s important to get this right. The central question is the interplay between the judicial power, federalism, and private (constitutional) rights. 18. Federal Common Law Erie RR v. Tompkins (TWEN) This used to be in earlier editions; I ve retained it because it s too important. Erie isn t just a CivPro case; it s a Conflicts case, and a constitutional case, and a federalism case. It s the linchpin of the New Deal Revolution; and so long as you think it was rightly decided, you will never comprehend the Constitution. Ask yourself in preparing for class: why might I be saying this? Part III: Federalism 19. Federal Structure Introduction, Federalist 10 (463-470); Bank Controversy (470-487); M Culloch (487-504) [re-read]; pp. 504-508 Recommended: Greve, Federalism (TWEN) Federalism pervades the Constitution, so it s useful to have a general overview and a sense of the historical trajectory; hence, the recommended assignment. 20. Commerce Gibbons v. Ogden (510-516); Subsequent Interpretation (516-522); U.S. v. Darby (522-525); Wickard v. Filburn (525-529); Heart of Atlanta (530-533); U.S. v. Lopez (533-547); Gonzales v. Raich (547-558).
Jointly and severally, the powers to regulate interstate commerce and to do necessary and proper things seem rather broad, don t they? Is this fight still worth the candle? 21. Dormant Commerce; Preemption Cooley v. Board of Wardens (TWEN); Camps Newfound (TWEN); Wyeth v. Levine (TWEN) The textbook leaves this out but again it s too important. For one thing, dormant Commerce Clause cases have been much more important in our history than cases of the Wickard variety. For another thing, the dormant Commerce Clause and preemption help you fit several big constitutional pieces together. Read the cases and opinions in light of Gibbons and the second holding in M Culloch. And read Justice Thomas s opinions in Camps Newfound and Wyeth in light of Erie: do you see the connections? Let s say you re a free-market guy or gal. Would you want a broad Commerce Clause (as in, say, Wickard) or a narrow one (as in, say, Hammer v. Dagenhart)? Why? 22. Governing States; Commandeering Garcia v. SAMTA (571-582); Printz v. U.S. (582-596) Garcia is technically still good law. But the conservative justices have engineered a half-dozen ways around it; I ll explain. Printz isn t Justice Scalia s best opinion (it s actually pretty sloppy) but it may be among his most important. Why? 23. Taxing & Spending Hylton (597-609); The Spending Power (609-621); South Dakota v. Dole (621-629) In what ways, precisely, are the powers to tax and to spend different from the power to regulate (e.g. pursuant to the Commerce Clause) textually, structurally, federalism-wise? 24. Putting the Pieces Together NFIB v. Sebelius (629-660) NFIB involves all three powers (regulate, tax, spend). Does any of its holdings make sense? 25. Other National Powers Legal Tender Cases (660-673); Missouri v. Holland (680-682); Reid v. Covert (682-684); Medellin v. Texas (684-692) Suggested: Bond v. U.S. (TWEN) 26. Federalism Among the States Map of Article IV (693-696); Somerset v. Stewart (1250-1251); Lemmon v. The People (712-720); Prigg v. Pennsylvania (720-730)
We ll spend some time not just of Art IV but also of Art I Sec 10, which your editors have practically excised from the Constitution. All those clauses prohibit states from doing things that Congress could easily prohibit under its copious powers, right? Then what is this stuff doing in the Constitution? Part IV: Civil War Amendments I ve kept this part very short because you will go over it again in ConLaw II, in much greater depth. 27. Slavery; Reconstruction Dred Scott (730-758); pp. 1263-1284; Slaughter-House Cases (1284-1303) Yale professor Akhil Amar has famously insisted on reading The Bill of Rights as a Constitution as a structure that s continuous with the unamended Constitution. Is this true of the Civil War Amendments? In what respects? Did the Slaughter-House Cases get the synthesis right, or obviously wrong? Which of the various incorporation theories is right, and why? 28. Enforcement Civil Rights Cases (1309-1322), City of Boerne (1306-1337); U.S. v. Morrison (1322-1327) Read the cases in this order. Were the Civil Rights Cases rightly decided? How precisely would you articulate the line that separates permissible enforcement from, umh, making things up?