1. Marbury v. Madison

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7. ∆ Argument: The Gun-Free School Zones Act is unconstitutional as being beyond the power of Congress to legislate control over local public schools.
8. Majority Reasoning: § 922(q) is a criminal statute that has no observable relationship to “commerce” or any sort of economic enterprise, regardless of how broadly those terms are defined. Deterring the presence of guns on school grounds is not part of a larger regulatory scheme to control commerce that would otherwise be undermined if not viewed in the “aggregate.” Furthermore, it contains no test by which the firearm in question could be rationally linked to interstate commerce. Although the lack of formal Congressional findings to this extent are not fatal, their absence fails to save the statute from the otherwise plain observation that it is not commerce-related. To accept the government’s position that it guns at schools do have a substantial effect on commerce because they adversely affect the economy would be to give virtually unlimited power to Congress to regulate any activity that has a social cost. Additionally, such a position would allow Congress to provide federally mandated school curriculums, and regulate each and every aspect of local schools. This is too broad a reading of the commerce power.
9. Concurrence Reasoning: [Kennedy, O’Connor] Such a broad reading of the commerce power would violate the theory of federalism in which the states perform their role as laboratories for the experimentation with various means of local regulation.
10. Concurrence Reasoning: [Thomas] In future cases, the Court should take the opportunity to fashion jurisprudence that more accurately reflects the intent of the Framers with respect to the commerce power. The “substantial effect” test is far too broad in light of the historical evidence of the Framers’ intent.
11. Dissent Reasoning: [Souter] The Court was wrong to second-guess the rational basis for Congress’ enactment of this Act based on the commerce clause. As a matter of judicial restraint, the Court should defer judgment to the legislature when it appears that there is a rational basis for the Act.
12. Dissent Reasoning: [Breyer] The economic reality is that the quality of education has a “substantial effect” on interstate commerce because it affects the individual citizen’s ability to compete in the global marketplace.

1. Gregory v. Ashcroft, (1991); pg. 40 Supp., briefed 9/17/95
2. Facts: Missouri has a state constitutional provision that provides for the mandatory requirement of judges when they reach age 70. The Age Discrimination in Employment Act prohibits an employer from discharging an individual over the age of 40 for reasons of age. However, the Act expressly excludes from the definition of “employee” any “person elected to public office” or any “appointee on the policymaking level.” Judges in Missouri are first appointed by the Governor and then re-elected.
3. Procedural Posture: Unknown.
4. Issue: Whether the Age Discrimination in Employment Act may be applied to the mandatory retirement of Missouri judges.
5. Holding: No.
6. ∏ Argument: Missouri argued that the judges fell into the exception of the Act as being either elected or policymaking persons, and therefore exempt.
7. Majority Reasoning: Because of the delicate balance of federal vs. state power, and especially in light of the serious intrusion it would be into state power if the federal government were able to regulate the ages of their public officials, O’Connor held that Congress would be taken to have encroached on state power in this context only if there was a “plain statement” to that effect. This was necessary to preserve the Framer’s “dual sovereignty” notion of the power of the states being commensurate with the power of the federal government. Especially since the Court, in Garcia, had left protection of states’ rights primarily to the political process of elections, we must be absolutely certain that Congress intended such an exercise so that the Commerce Power is kept in check. Since the ADEA’s exclusion of most public officials is ambiguous, the Court would not interpret Congressional intent as being plain enough to effect such a broad exercise of power.
8. Concurrence Reasoning: The majority’s “plain statement” rule is “unwise”, “infeasible”, and “unnecessary to the proper resolution of this case.” It deviates from the standard set forth in Garcia, and there is no reason to think that the rationale of Garcia would be inapplicable here. However, there is no reason to consider this question, because as a matter of simple statutory construction, Missouri judges are exempted as “elected” or “policymaking” officials.

1. New York v. United States, (1992); pg. 43 Supp., briefed 9/24/95
2. Facts: In 1985, Congress passed the Low-Level Radioactive Waste Policy Amendments Act of 1985, which was intended to solve a national problem of the disposal of low-level radioactive waste by providing a procedure for states to either group together into regional compacts, each dumping their waste into a single site in one of the compact states, or find their own waste disposal area. The Act had three provisions: 1) monetary incentives which allowed site states to charge increasingly higher surcharges to non-pact states for disposal of their waste, part of which surcharges would be refunded to the states by the Secretary of Energy if they complied with a timeline for finding their own disposal sites, 2) access incentives which allowed site states to deny access to non-pact states after a few years, and 3) a “take-title” provision which required the delinquent states to take possession and title of the radioactive waste and assume liability for it if they remained delinquent to the end. New York decided to dispose of its own waste, and did not join a regional pact. However, the state had problems locating the site within its borders because the local citizens did not want it.
3. Procedural Posture: The state of New York brought this action to seek a declaratory judgment that the Act was inconsistent with the Tenth Amendment and the Guarantee Clause of Article IV.
4. Issue: Whether Congress may direct or otherwise compel a State to regulate a particular private field in a particular way.
5. Holding: No.
6. ∏ Argument: The 10th amendment forbids Congress from directly regulating the states to compel them to carry out federal regulation in this private field. Although they unquestionably have the power under the Commerce Clause to regulate the generators of the waste, they do not have the power to compel the states to directly regulate the waste generators in a particular manner. The Act “commandeers the legislative processes of the states.” Furthermore, the second part of the act which provides for monetary incentives is beyond Congress’ spending power. Lastly, the Act violates the Guarantee Clause because it attempts to undermine the states’ own republican form of government.
7. ∆ Argument: The Constitution’s prohibition of convressional directives to state governments can be overcome where the federal interest is sufficiently important to justify state submission. Also, the Constitution does, in some circumstances, permit federal directives to state governments. Lastly, the Constitution envisions a role for Congress as an arbiter of state disputes.
8. Majority Reasoning: The Tenth Amendment is a truism that simply directs the court to examine what are the internal limitations to the powers granted to Congress in Article I. So the court must examine the Commerce Power, the Spending Power, and the Supremacy Clause. The basic premise is that under Hodel, Congress may not simply “commandeer” the state governmental processes. Nothing in the Constitution implies that Congress has the ability to require states to govern by federal coercion. This premise is supported by looking at the Framer’s intent when they chose the structure that the Congress would exercise its power directly over individuals rather than over states as intermediaries. Although Congress can motivate or encourage states to regulate in a certain way by making federal assistance conditional or by giving them the choice between doing it themselves or having the federal government do it for them by preemption, it can not directly compel. This enables state governments to be directly responsive and accountable to the local electorate. Where the federal government compels regulation, the state officials take the brunt, while the federal officials remain insulated, thus reducing accountability in the political process. Construing the Act in a light most favorable to the United States, the “take title” provision is still clearly beyond Congress’ power because Congress neither has the power to force states to take title to the waste (thereby subsidizing the generators) nor does it have the power to compel regulation. That there is a very strong federal interest in controlling waste does not allow Congress to go beyond the Constitution. Even if New York state itself agreed to the bargain, the state is powerless to waive the Constitutional limits on Congressional power because the Constitution is for the protection of individuals. The other parts of the Act are Constitutional because neither monetary incentives nor access denials can reasonably be said to deny a State a republican form of government.
9. Concurrence/Dissent Reasoning: [White] reasoned that the majority had taken the Act out of its historical context and its contractual setting. The states, including New York, got together to reach their own agreement on how the radioactive waste crisis should be handled. They did not seek federal pre-emption, but rather federal sanction of their pact under Article I, Section 10 which states that “no state shall, without the consent of Congress,...enter into any agreement or Compact with another State.” Thus New York should be estopped from asserting the unconstitutionality of a bargain that it had derived substantial benefit from.

1. Bailey v. Drexel Furniture, (1922_; pg. 177, briefed 9/24/95
2. Facts: After the Court held that regulation of child labor was unconstitutional if its basis was the Commerce Power (Hammer v. Dagenhart), Congress passed the Child Labor Tax Law of 1919 which imposed a federal excise tax of 10% of the annual net profits of any employer who exceeded the age or working hours limitations provided. It was almost identical to the Act declared unconstitutional in Hammer, but it rested on the taxing power instead.
3. Procedural Posture: Drexel brought this action for refund in the District Court after paying $6,000 under the tax, and won. The IRS appealed.
4. Issue: Whether Congress may impose a tax on industries as a means of regulating child labor, under the pretext of the taxing power.
5. Holding: No.
6. ∏ Argument: The Act is a regulation of the employment of child labor internal to the states, which is an exclusively state function under the 10th amendment.
7. ∆ Argument: The Act is a mere excise tax levied by the Congress under its broad power of taxation under the Constitution. The court has already gone so far un upholding taxing statutes that it is bound by precedent to uphold this one as well.
8. Majority Reasoning: The Act, on its face, appears to be a penalty enacted under the pretext of a tax. It provides a heavy burden for departure from a detailed and specific course of conduct. It is imposed without regard to the severity or proportion of the violation of the child labor provisions. It also requires a mens rea in that the violator knowingly depart from the standards. Thus, it clearly looks like a penalty. To allow it merely because it has the magic word “tax” would be to break down all constitutional limitations on Congress’ power to interfere with state activities, because then any subject of federal concern could be regulated by the taxing power. Even though some taxes have an incidental penalty-like action, this one is primarily a penalty. This case is the same as Hammer. Also, the previous authority relied upon by the government is distinguishable because it involved taxes that were not enacted under a pretext.

1. United States v. Kahriger, (1953); pg. 181, briefed 9/24/95
2. Facts: The Revenue Act of 1951 contained a 10% occupational tax on persons engaged in the business of accepting wagers (professional interstate gamblers). It also required these persons to keep a list of the names, and addresses of all employees for public inspection at any time by any state county or municipal agency. In the discussions in the Congressional record, there was evidence that one of the primary purposes was to tax these professional gamblers out of existence.
3. Procedural Posture: The lower court found this provision beyond the taxing power of the Congress.
4. Issue: Whether Congress has the power, under the taxing power, to enact a tax on a particular profession if the tax also has a regulatory effect which appears to infringe on the states’ police power under the 10th amendment.
5. Holding: Yes.
6. ∏ Argument: The legislative history indicating a congressional motive to suppress wagering indicates that this is a tax passed under a pretext of revenue generation and thus is not a proper exercise of the taxing power. The sole purpose of the law is to penalize gamblers. The revenue generation pretext is evidenced by the small amount of revenue actually generated. Furthermore, a the law requires the gamblers to record and present upon demand the names and addresses of their employees, which is clearly an attempt to regulate this occupation.
7. Majority Reasoning: A federal excise tax is not invalid merely because it discourages or deters the activities taxed. Nor is it invalid because the revenue generated is negligible. If a tax produces revenue, and unless there are penalty provisions extraneous to any tax need, the courts are without authority to limit the exercise of the taxing power. This tax is not a penalty, therefore it is valid. The registration requirement simply aids in the collection of the tax.

1. United States v. Butler, (1936); pg. 186, briefed, 9/24/95
2. Facts: Butler was a processor of cotton. In 1933, the Congress passed the Agricultural Adjustment Act as one of the New Deal measures intended to raise agricultural prices by limiting farm production. In return for limiting their production, the government would give the farmers a subsidy that was raised by taxing the processing stage of the agriculture.
3. Procedural Posture: Butler attacked the tax on the grounds that it was an integral part of an unconstitutional program to control agricultural production.
4. Issue: Whether the Act was a valid exercise of the power to spend for the general welfare.
5. Holding: No.
6. ∆ Argument: Congress has the right to tax and spend to “provide for the general welfare.” This phrase should be liberally construed to cover anything conducive to the national welfare. The decision as to what is conducive to the national welfare is the function of Congress alone, unreviewable by the courts, and this Act was for the “general welfare.” Furthermore, it is not coercive, because it provides for voluntary compliance through payment of benefits.
7. Majority Reasoning: Looking to the framer’s intent, the Court accepted Hamilton’s view that Congress has a substantive power to tax and to spend, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. However, the Court did not reach the determination of whether the Act was for the general welfare, because it invades the rights reserved to the states. The attempt by congress to regulate the production of agriculture is unconstitutional, thus any laws passed as a means to this unconstitutional end are enacted under a pretext. The taxing power can not be used to interfere with the states’ rights, so the spending power should not either. The Act is coercive, because it does not provide the farmers with a practical choice, since their non-compliance would result in their financial ruin. Furthermore, the power of Congress to contract with individuals is limited by whether its federal power reaches the subject matter of the contract. In this case, the federal power does not reach so far.
8. Dissent: The court should only be concerned with the power to enact statutes, not their wisdom. The court here may be overstepping its bounds by trying to pass judgment on the policy of the law, not its consitutionality. The coercion argument is unconvincing because Congress must be able to have the power to condition funding on proper use of the funding, otherwise, its broad powers would be defeated.

1. Steward Machine Co. v. Davis, (1937); pg. 192, briefed 9/24/95
2. Facts: Title IX of the Social Security Act imposed a payroll tax on employers, but granted a credit of up to 90% of the tax for contributions to a state unemployment fund if such fund was certified by the federal government as meeting the requirements of the Act. One of the provisions of the Act required the states to immediately pay over the funds to the federal government who would hold them in trust.
3. Procedural Posture: Steward sought a refund of the taxes they had paid under this Act.
4. Issue: Whether Congress has the power to encourage the states to accept federally approved unemployment programs by providing tax credits to employers in that state if the programs are adopted.
5. Holding: yes.
6. ∏ Argument: The aim of the law is to conscript the state legilatures by the use of economic pressure. Thus, it is unconstitutional as infringing upon the soveriegnty of the states.
7. ∆ Argument: The statute was designed to enable the states to cooperate with the federal government in the solving of a national problem. It does not coerce state governments because it is optional.
8. Majority Reasoning: Cardozo explained that the unemployment problem was nationwide and was not relieved by the action (or inaction) of the states. Thus, the action of the federal government was clearly for the general welfare. Congress was capable of determining what was in the best interest of the national welfare in this case. There was not coercion, but merely motivation or temptation. To argue that coercion was the same as economic motivation would be to “plunge the law into endless diffifulties” because the distinction between what was coercion and what was not would be impossible. Congress has the power to tax and to condition the tax on the compliance of the states, as long as the subject matter of the tax is related to the scope of national policy and power. The Child Labor Law case is distinguishable because in that case, the pretext was clearly visible. In this case, the tax credit would be lawful on its own. It is not crippled by the fact that it is tied to conditional performance by the states.

1. Woods v. Miller Co., (1948); pg. 302, briefed 10/1/95
2. Facts: The Housing and Rent Act of 1947 was passed under the authority of the war power to regulate the rents of houses in post-WWII America. As the soldiers came back from the war, they were met with a housing shortage due to the reduction in residential construction. The reduction was caused by allocation of building materials to military projects.
3. Procedural Posture: The District Court held that the authority of Congress to regulate rents by virtue of the war power ended with the President’s New-Year’s Eve 1946 proclamation of peace. Also, Congress did not state that they were acting under the war power when they passed the Housing and Rent Act. The government appealed directly to the Supreme Court.
4. Issue: Whether the Housing and Rent Act is a constitutional exercise of the war power by Congress.
5. Holding: Yes.
6. Majority Reasoning: [Douglas] Citing to both Hamilton and Ruppert, the court stated that the war power includes the power “to remedy the evils which have arisen from its rise and progress” and continues for the duration of that emergency. It does not end with the cessation of hostilities. The Presidential proclamation recognized that the state of war still existed, and the war effort was what contributed most heavily to the present housing shortage. Thus, Congress had the power, even after the cessation of hostilities, to regulate a shortage of housing caused primarily by the war. The necessary and proper clause requires that the war power be held over to treat the effects of war. Although this holding, read broadly, would authorize the war power to used during peace to regulate long-term effects of war and swallow up the Ninth and Tenth amendments, we must assume that Congress will act responsibly and take into account its constitutional limits when exercising the war power.
7. Concurrence Reasoning: [Jackson] felt that the result in this case was clear, but was worried about the potential abuse of the war power because it tended to bexercised during periods of hasty patriotism. The war power cannot last as long as the effects and consequences of war because many are permanent.

1. Missouri v. Holland, (1920); pg. 204, briefed 10/1/95
2. Facts: There were migratory birds in the northern United States that transited between the U.S. and Canada. These birds had a beneficial effect on the ecosystem by controlling the insect population, as well as being a food supply. However, the birds were being over-hunted. The U.S. and Great Britain entered into a treaty to protect the birds by delineating hunting seasons. Pursuant to the treaty, the Migratory Bird Treaty Act of 1918 was passed by Congress to give effect to the U.S. side of the treaty.
3. Procedural Posture: The state of Missouri brought this action to prevent an U.S. game warden from enforcing the Act on the grounds that it violated the 10th amendment, arguing that Congress did not have to power to pass the Act without the treaty, and thus should not be able to pass the Act under the treaty because if the Act, standing alone, is in violation of the 10th amendment, then the treaty is as well.
4. Issue: Whether Congress may properly pass an Act that regulates hunting seasons for migratory birds if that Act regulates in traditionally state-controlled areas.
5. Holding: Yes.
6. Majority Reasoning: Article II, § 2 expressly delegates the power of Congress to make treaties. Furthermore, Article IV declares that treaties made under the authority of the United States are the “supreme law of the land.” If the treaty is valid, then it is clearly a necessary and proper action to carry out the treaty-making power in this case. The treaty-making power derives from the authority of the United States, as an “organism” itself. It does not matter that Congress might not have the power to pass the Act not in pursuance of a treaty, because Congress does have the power to make treaties, and the Act is a necessary and proper means to give effect to the treaty. Since the birds are important, and they transit back and forth between the countries, the United States has the power to make a treaty concerning their protection and the treaty is valid. Since the treaty is valid, the Act is valid as being necessary and proper to give effect to a valid treaty.
7. Notes: In the 1950’s fear that any Constitutional limitation on Congress’ power could be overriden by the broad effect given by Holmes to the treaty power in Holland led to a proposed constitutional amendment called the “Bricker Amendment” which stated that “A provision of a treaty which conflicts with this Constitution shall not be of any force or effect,” and “A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty.” However, in Reid v. Covert, these fears were put to rest by Justice Black when he stated that no agreement can “confer power on the Congress...which is free from the restraints of the Constitution.” and that Holland should be read as standing for the proposition that the 10th amendment is no barrier to the United States’ power to make treaties because the states had delegated their rights as to treaties to the federal government. Although there is no explicit power in the Constitution for the Congress, independent of the treaty power, to pass laws concerning foreign affairs, it is generally regarded as implied by the fact that the United States’ power to interact with other countries must lay in some body, and it rests most appropriately in Congress who has the power to make all other federal laws.

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