CONSTITUTIONAL LAW I OUTLINE a. The Constitution imposes a limit on government power. 1) Must be Govt/State Action to hve Const. Ques. 2)Public rights vs. private rights. b. Statues regulate. 1)Thus while a constitutional issue may not be directly raised in the example with Sammy, however, Sammy may be violating a statute. c. There is some overlapping between the Constitution and statutes. 4. Despite the Separation of Powers notion, Congress controls money allocation and its impeachment power gives it great control over the judicial and executive branch. B. Supreme Court (Article III). 1. It has the power to declare statutes, both federal and state, to be unconstitutional, but a. Congress can order the Court not to hear appeals on particular subjects (Article III). b. Other federal courts don't exist without being created by Congress, thus Congress can limit the number of cases available for the court to hear. 2. Fact Specific Decisions. a. The present Court's focus is to decide each case on its facts rather than to articulate guiding social principles, with the resulting proliferation in lower court litigation. II. ADMIRALTY LAW. Article III. Section 2. ..."to all cases of admiralty and maritime jurisdiction;"... Legal doctrines peculiar to admiralty courts. Liability is limited to the value of the vessel after the collision. C. Modern Rule. 1. Federal courts have jurisdiction over maritime affairs exclusive" and that jurisdiction extends to any waters that might have an effect on navigable waters. a. Today federal maritime jurisdiction has effectively been extended up to the GLACIERS! 2. Justification: The government can function best economically if jurisdiction over maritime affairs is stripped from the states totally, thereby creating an uniform national policy on shipping. a. The Court is basically making economic policy decisions. III. THE COMMERCE CLAUSE. Article I. Section 8. Clause 3. A. The Power Of Congress. 1. Congress shall have the power ... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; ... 2. Purpose: To promote the free flow of commerce across state lines. B. Analysis Steps. 1. Is there a federal statute or regulation on point? a. If there is, it controls and a state law is void. 2. If there is no federal statute of regulation on point, a state law controls if a. It does not discriminate against other states or citizens, and b. It is a reasonable exercise of legitimate state power. C. Federal Power And States Rights. 1. In the absence of a federal statute or regulation, a state can exercise police power. 2. Health, safety and welfare. a. State regulations which are intended to promote the health, safety and/or welfare are legitimate exercises of state power so long as the state law or regulation is (1) not inconsistent with a federal law, (2) does not discriminate, and (3) is not unduly burdensome. 3. Discrimination. 1)Query: Does state law favor locals over other? If yes, discrimination. D. Due Process = Economic. E. The New Deal (Planned Economic Theory - 1936 To The Present). 1. The new thinking was that the govt should regulate the economy because the forces of the free market are too irrational to be left alone. a. This was a reversal of economic due process in favor of social welfare, developed due to economists' belief that the result of the free enterprise theory was the depression. b. As a result, Congress can set quotas to regulate production, if the laws are too vague due to the lack of sufficient guidelines, thereby constituting too broad a delegation of administrative power, they are unconstitutional. A.L.Schecter v. U.S.. 1936. c. Individual freedom v. absolute unity = conflicting goals of society requiring constant efforts to strike a balance. 2. Manufacturing is now considered commerce. 1)Congress has authority to regulate anything that could have an effect on interstate commerce. F. Social Policy. 1. The commerce clause is used to achieve social goals and not just economic goals. 1)The federal govt has no general police powers, therefore, it must find an effect on interstate commerce to pull such regulatory powers out of the commerce clause. c. Segregation/discrimination a)Note how the USSC uses the same words but twists them so that the meaning will fit the desired result. USSC held that all new civil rights acts to be Constitutional because racial segregation adversely impacts the free flow of commerce accross state lines. G. Federal Police Powers. 1. The feds. have complete authority to regulate interstate commerce. a. Congress' motive for such regulation is irrelevant. 1)Congress may exclude from interstate commerce a)Goods harmful to interstate commerce such as hazardous wastes or diseased animals; b)Commercial items or goods produced under substandard conditions. c)Non-Commercial items such as persons fleeing prosecution, transporting women across state line for immoral activities, or kidnapping. 2)Note that Congress does not have authority to ban murder, but the previous areas are legislated through the commerce clause, thus giving Congress authority to regulate. H. Federal Preemption. 1. The rule is: If a state law conflicts with a federal law regarding interstate commerce, the state law is void. (Pre-emption clause, Article IV). 2. A fed. law is absolutely supreme in the area of interstate commerce if there is a fed. law dealing with the issue. 3. When a state regulation impacts interstate commerce, the state regulation can be voided by showing a contrary fed. reg. 4. Thus, in the absence of a federal statute, the states may regulate interstate commerce so long as the regulation is reasonable and does not discriminate. 5. Two types of federal preemption: express and implied. a. Express - Where Congress expressly regulates via statute. b. Implied - Nothing is expressly stated by Congress, but they have so regulated an area that there is no room for state rules. III. STATE POWER TO REGULATE. (We're still dealing with the Commerce Clause). A. Economics/Discrimination. 1. If a state law discriminates, it is per se unreasonable and therefore unconstitutional. 2. A state law is discriminatory if it gives preferential treatment to its own residents since this inhibits the free flow of commerce across state lines. See The Shreveport Rate Case, supra. 3. Does State have a legitimate state concern. B. Reciprocity. 1. Reciprocity agreements between states respecting sale of products do not automatically violate the Commerce Clause. But note: A mandatory reciprocity agreement forbidding the sale of products from another state unless the state reciprocates in invalid unless there is a substantial state interest (health, welfare, etc.) which can not be attained by alternative means. C. Transportation. (1) no federal statute (at the time); (2) legitimate state interest of safety, since roads were narrow; (3) it was reasonably because it was too burdensome for SC to widen its roads. unduly burdensome on the free flow of interstate commerce to require trucks to change flaps when they enter a state which outlaws them. UNconstitutional because it is unduly burdensome. D. State Resources. A state can not conserve natural resources for the exclusive benefit of its own citizens, thereby restricting the free flow of commerce. 3. Protectionism: A may not create artificial barriers to free trade or interstate trade which confers a benefit to local commerce. a. Note: The law can still be reasonable IF residents and non-residents treated alike and the charges are reasonably related to the costs. IV. TAXES. (We are still talking about the Commerce Clause). A. Article I. Section 8. Clause 1. 1. Congress shall have the power to lay and collect taxes... . 2. Pursuant to the Commerce Clause, Congress has complete power to authorize or forbid state taxation that affects interstate commerce. 3. Thus, states can tax interstate commerce, however such taxes that discriminate against interstate commerce violate the Commerce Clause. 4. The Commerce Clause is used to prevent state taxes that impose multiple burdens on interstate commerce. B. Discrimination. 1. If a state tax singles out interstate commerce for taxation, the USSC will ordinarily not "save" the tax by finding other state taxes imposed only on local commerce (which might arguably eliminate the "apparent" discrimination against interstate commerce). 2. State taxes that single out interstate commerce are considered nondiscriminatory if the particular statutory section or scheme also imposes the same type of tax on local commerce. C. Apportionment & Situs. 1. States can tax so long as it is fair. 2. Apportionment is where tax is based on the percentage of time the personal property is located within the taxing jurisdiction. Tax must be based on apportionment to be constitutional. 3. Apportionment formulas must fairly represent the value of the benefits provided by the state. However, they are generally very complicated. 4. Thus states can tax interstate commerce to help cover the cost of providing services and benefits. 5. Situs is where the property is located at the time the tax is imposed. a. A state can tax an instrument used in interstate commerce, but the tax must be apportioned in proportion to the presence of the property being taxed. Thus, where rolling stock of a railroad is only present in the state for part of its use an ad valorem tax, i.e., at tax on property based on its value, is a legitimate state right provided the property is located in the state, but the state cannot tax it while it is out of state. b. USSC held that ad valorem tax okay, but must be apportioned to situs. 5. Other types of taxes. a. Ad valorem tax. 1)Property tax on real and personal property. The validity on such a tax depends on: a)Whether the property has a "taxable situs", that is, does the property have sufficient contacts with the state to justify the tax; does the property receive benefits and/or protection from the taxing state? b)If the property is moved from state to state, is the tax amount properly apportioned? b. Transaction tax (sales tax, tax on sale). 1)Where did the sale take place? That state has the right to a sales, or transaction tax. c. Transportation tax. b)Eg: Greyhound route 100 miles in state A, 50 miles in state B and 130 miles in state C, state A can't tax the whole transaction. d. Use tax. 1)If personal property is purchased in state A, but used in state B, state B can tax the USE of it in state B, but not more than the difference between state A's sales tax and state B's sales tax. a)Eg; Sammy buys a 6 pack in AK & takes it to WA. No sales tax in AK. WA can charge Sammy 7.8% for the use of that 6 pack. b)Eg:Sammy buys a 6 pack in ID and takes it to WA. ID tax 5%. WA can charge Sammy the difference between ID tax and WA tax: 2.8%. 2)Justification: to allow a use tax which is equal to state B's sales tax would discriminate by making it too costly to buy an item in state A. e. Transfer tax. 1) USSC held that the transfer tax was constitutional because state provides a benefit & protection - police, fire, etc. f. Business and occupation tax. 1)B&O tax are taxes imposed for engaging in business within the state. They are generally measured by a flat annual fee or by a proportional rate based on revenue derived from the taxing state. 2)States may generally impose such taxes on persons doing business in the state - both on companies engaged exclusively in interstate commerce as well as on interstate companies engaged in local commerce - if four (4) criteria are met: a)There must be a substantial nexus between the interstate activities and the taxing state; b)The tax must be fairly apportioned; c)The tax must not discriminate against interstate commerce; d) The tax must be fairly related to the services provided by the state. 6. Modern trend. a. The USSC expanding the states' power to tax in response to the states' diminishing power caused by lack of revenues and the resulting dependence on federal funding. V. GENERAL APPROACH TO COMMERCE CLAUSE QUESTIONS. A. Is There A Federal Statute On Point? If So, The State Law Is Unconstitutional (Invalid). B. Is The State Law A Reasonable Exercise Of A Legitimate State Power? 1. What is the state's interest/power? 2. Is its exercise reasonable? Discriminatory? 3. What is the economic impact? 4. What are the balances between the state's exercise of its power and the economic impact of the restriction? a. What is everyone else doing? 1)The more states doing it the more likely it will be considered reasonable. 2)Bibb: one state required contour mudflaps on trucks but the neighboring state prohibited them. Because no other state required them the burden outweighed the safety benefit and the law requiring them was declared unconstitutional. b. What do all the experts say? - e.g., safety. c. The burden is on the state to show that the restriction is reasonable. 1)A law requiring trains to slow to 5 mph at crossings was an additional 9 hours on the N.Y. to Florida run. d. A state statute is presumed constitutional. 1)It is not constitutional if there is no rational basis for what the legislature did. 2)Eg: Arizona law regulating the length of trains was held unconstitutional because not rational. a)State interest: to prohibit passenger whiplash. b)Burden: required splitting of train loads at the border before entering the state. c)Irrational because there were other reasonable alternatives available such as reducing speed until slack gone. IV. IMPORT-EXPORT CLAUSE Article I. Section 10. Clause 2. No state shall, without the consent of Congress, lay any imports or duties on imports, except what may be absolutely necessary for executing its inspection laws; ... . A. Introduction. 1. The Import-Export Clause prohibits the states from imposing any tax on imported goods as such or on commercial activity with imported goods as such, except with congressional consent. 2. Purpose of the clause is to prevent states with good harbors from taking advantage of states without good harbors. 3. A nondiscriminatory personal property tax on all goods within a state is valid if proportional (reasonable). 4. The modern trend is that the USSC allows states' to tax more and to require international trade to pay its own way. 5. Disputes. a. The focus of a dispute is on the question of when does an item cease to be an import, so that it is subject to tax, or when does it become an export so that it is no longer subject to tax. B. What Is An Import? 1. Original package doctrine. a. Brown v. Maryland, 1827. USSC established the original package doctrine: As long as the goods remain in their original package, they continue to be imports and can't be taxed by the state. b. This interpretation lasted for over 100 years. c. The doctrine is still enforced for minor transactions and anything that doesn't involve stockpiling. 2. Stockpiling. a. Youngstown Sheet v. Bowers, 1959. USSC held that stockpiling for current manufacturing needs was not an import & states could tax. 1)Commodities imported and stockpiled for current manufacturing needs are not "imports" and can therefore be taxed. b. USSC looks at the economic realities to determine whether goods are still imports. 1)Eg: Tires manufactured abroad and shipped to a distribution center in State A can be taxed by State A. Michelin Tires v. Wages, 1975. 2) Eg: Tobacco imported and kept in a bonded warehouse is subject to state tax. R.J.Reynolds v. Durham, 1986. c. Commodities imported and stored in their original containers to meet current distribution needs are no longer imports and can be taxed. 1) Such goods cease to be imports when they come to rest at the manufacturers distribution center. d. If a commodity is being held for any appreciable time it can be taxed regardless of whether it is still in its original package. e. Justification for permitting the tax: the state must provide police and fire protection for the stockpiled goods too. Thus the USSC is allowing locals to increase their tax base. C. Exports. 1. The focus of export determination is on movement. a. Execution of a contract to sell goods abroad does not result in those goods being exempt from state tax until they begin to move on the journey out of the U.S. b. USSC held that as soon as the plant was loaded & moving (truck, plane, boat) it was a export, thus P couldn't tax that which was loaded. 1)That portion still standing is NOT in the movement process and can be taxed by CA. 2) That portion lying next to the track can be taxed because it was moving. 3) That portion loaded on side cars but parked on a siding: this is the most difficult area in determining whether movement has begun yet and the item is therefore no longer taxable. USSC allowed it to be taxed. 4) As soon as the railroad cars start to move the international journey has begun and the goods are "exports" exempt from state tax. 2. It is the MOVEMENT IN COMMERCE that determines when it becomes an export. a. Goods probably aren't "exports" until they are packaged in the shipping packages, if applicable. V. SOVEREIGN IMMUNITY. General Rule: States can not tax the federal govt, and to a lesser extent, the feds. can't tax the states. A. Background. 1. The dispute over taxation arose over whether there should be a national bank with exclusive right to receive and dispense govt funds. a. The states were bitterly opposed to such a bank because it drew funds away from state banks. b. Nothing in the language of Article I gave Congress the power to charter a national bank. c. The feds. position was that the Necessary and Proper Clause gave Congress whatever power it needed to carry out its other powers, including the chartering of a bank. B. Taxation Immunity. a. The power to tax is the power to destroy. Thus, the feds. may not tax a state & a state may not tax the feds. b. This is still the law today 1)Eg:Fairchild Airforce Base pays no local real estate taxes. 2. This doctrine of sovereign immunity is not found in the Constitution, but it is very much a part of Constitutional tradition. C. Determining Factor: Who Is Paying The Tax? 1. Govts can tax private employees (individuals), but not the govt entity itself. a. The feds. can impose an income tax on a state employee since the incidence is on the employee, despite the potential eventual burden on the state b. The state can tax the salary of a federal employee. 2. Look to where the incidence of the tax falls. If it falls on the govt, the state/federal govt. can't tax it. a. Municipal bonds: 1) Congress can't tax the interest earned on municipal bonds issued to finance local govt. 2) Interest on bonds issued by local govts for private investor "redevelopment" bonds can be taxed. b. Extraction tax: A state cannot impose a tax on a natural resource taken out of fed. land. c. Sales tax: 1) A state cannot impose a state sale tax on an item sold to the feds. 2) A state can impose a sales tax on sales to private contractors employed by the feds. on a cost plus construction contract (the incidence falls on the contractor). a)If a contract provides that the contractor is the agent of the feds., and he sends the bills for materials directly to the govt for payment, a state cannot charge sales tax. d. Excise tax: The feds. can't tax vehicles sold to a state for police, fire ,etc. e. Business and Occupation tax. A state can charge a B&O tax on income received by a private business doing work for the feds., despite the possibility of an eventual pass through of the cost to the feds. through higher contract prices. f. Use tax. 1)Eg: US owned airplane factory which it had turned over to private management and employees a) State couldn't charge real estate tax. b) State could charge use tax - the incidence of that tax originally falls on the private parties. 2) Eg: Forest ranger required to live in federally owned cabin on federal land had to pay a use tax under a state law taxing the use of tax exempt real estate by private persons who didn't themselves qualify for exemption (e.g., not charitable organizations). g. Ad valorem tax. 1) A state can impose an ad valorem tax on any person in possession of personal property not their own, including federally owned personal property. D. Governmental v. Proprietary Acts. 1. Govts can't tax govtal functions, but they can non-govtal functions (proprietary functions) of other govts. 2. Income Tax. a. If a state is doing something that is purely proprietary in nature, the state must pay fed. income tax on its income. b. Traditional governmental functions. 1) police, fire, judiciary, roads. c. Proprietary functions are those normally performed by private persons, such as liquor sales. 3. Fines for Violations. a. A state can be fined for violating a federal safety regulation if it chooses to operate a business connected with other means of interstate commerce. b. EG: CA operated a railroad and was fined for violating Railroad Safety Standards. c. Justification: A local govt must observe the rules that others performing like functions have to follow. 4. "Special" taxes/state benefits. a. A state must pay a fed. aviation tax imposed on state- owned helicopters because this tax was a special tax imposed for improving airport facilities and the state will benefit from those improvements. E. Conduct Impacting Interstate Commerce. 1. A state is not immune from taxation/fines when its conduct impacts interstate commerce. 2. The feds. can mandate how much a state can pay in salaries. F. Indians. 1. Indian tribes were intended to be independent sovereigns but that hasn't occurred. 2. Indian rights are subject to treaty which Congress can abolish. 3. The Indian tribes are not subject to taxes imposed by the feds. 4. Attempts by state governments to tax indians: a. "Indian country" is federally recognized reservation land. b. Indian activities which are on land which is NOT Indian Country are subject to taxation by the states. c. A state can't tax an Indian working on a reservation. 5. This is really a treaty power issue rather than a sovereign immunity issue. 6. Sovereign immunity of indians does not follow them off of the reservation. VI. THE CONTRACT CLAUSE. Article I. Section 10. No state shall ...pass any ... law impairing the obligation of contracts... . A. Substantially. 1. USSC has added the word substantially to the Contract Clause. Thus, a state may not substantially impair the obligations of contracts. 2. Original Purpose: To keep states from getting involved in bankruptcies. a. States have no power to "debt adjust". That is, a state cannot tell you that you do not have to pay a debt. 3. Primary meaning of the clause. a. A state cannot renege on a written, binding contract. b. A state cannot enter into a contract and then refuse to honor it on the grounds that the actions of prior legislators were illegal (e.g., bribery). B. A State Cannot Change A Corporate Charter. 1. A state may reserve the right in its corporation laws to affect charters granted after enactment of the law. 2. A corporate charter is a public contract between the stockholder, the corporation, and the state. a. If a corporation is dissolved the state must divide its assets among the incorporators or their successors - it cannot just take them itself. C. MEANING OF "IMPAIR" A CONTRACT 1. Impair means to substantially invalidate. 2. Home Building Loan v. Blaisdell, 1933. The USSC upheld the state's right to change its mtg. laws retroactively to give an owner a longer redemption period - this is NOT IMPAIRING the debt. a. The debt must be distinguished from the security for it. b. The legislation did not change the debt - the defaulting owner still has to pay the debt to redeem the property; it merely modified the remedy for collecting the debt. c. The decision seemed to wipe out the contract clause, but a few recent decisions temporarily revived it. 3. The more substantial the impairment, the greater the justification that must be shown by the state. D. Federal Impairments. 1. Federal impairments are not prohibited by this clause. 2. Federal law regulates bankruptcy, which substantially impairs contract rights and debt obligations. 1) A loan can be rewritten at a lower amount. E. A State Cannot Unsecure An Obligation. 1. Thus where a municipal bond prohibits the use of bond funds for certain purposes, the state cannot use the money thusly acquired for those prohibited uses. F. A State Cannot Alter A Private Contract Retroactively Unless The Contract Involves A Substantial Matter Of Broad Social And Public Concern. 1. If private parties enter into a contract, the state generally cannot change the contract's terms. a. The state's interest in protecting the retirement benefits of its citizens would, today, be considered a sufficient substantial matter of broad social and public concern to permit the state action. a. The court inserted the word "SUBSTANTIALLY" into the contract clause prohibiting against impairment of a contract. G. The Contract Clause Only Applies To State Attempts To Alter The Terms Of A Contract Obligation, And The State Can Impair Even Contract Obligations Where The Private Contract Involves A Substantial Matter Of Broad Social And Public Concern. 2. What is a "broad ares of social and public concern"? - probably most "legitimate state interests". VII. THE TAKING CLAUSE. 5th Amendment. ... nor shall private property be taken for public use without just compensation. A. Taking Properties - Due Process. 1. Basically, the govt. can take someone's property through the doctrine of eminent domain. 2. The govt must compensate you for the taking of property.* a. Property includes real and personal property, and tangible and intangible property. B. Police Power. 1. The govt can take someone's property without compensation in an emergency situation using its police power. 2. An example would be where a herd of cattle were diseased. The govt could order the cattle destroyed with no compensation to the owner. a. Usually limited to situations involving health and safety. C. Inverse Condemnation. 1. Where the govt. in essence takes your property, but doesn't compensate you. 2. However, where the govt uses zoning to condemn uses, it is not considered taking. This is known as a regulatory taking and does not trigger Constitutional safeguards. VIII. PRIVILEGES AND IMMUNITIES. 14th Amendment. ... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States... . Article IV. Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. A. National Citizenship: 14th Amendment. 1. Applies only to privileges within the Constitution. a. The right to pass freely from state to state. b. The right to vote for fed. officers. c. Right to assemble. 2. Doesn't apply to the Bill of Rights. a. Which means that states can abridge the rights of citizens in other areas. b. A state can abridge citizen's right to an occupation. B. State Citizenship: Article IV. 1. Every state must grant the citizens of every other state the same privileges and immunities it grants its own citizens. 2. Citizenship determined by domicile. 3. Discrimination is only prohibited with respect to a. Essential activities. b. Basic rights. 1)Access to the cts. c. Commercial/economic purposes. 1)Can't charge a state citizen less for commercial fishing permit. 2)Can charge a state citizen less for a private fishing permit. 4. Corporations and aliens are not citizens and are not protected against economic discrimination. C. Commerce Clause Overtones. 1. Note the commerce clause overtones in this area. If the state action affects interstate commerce, its actions may or may not be unreasonable or discriminatory. IX. THE PRESIDENT'S OFFICE AND POWERS. A. Presidential power comes from Article II. 1. Article II. Section 1. The executive power shall be vested in a president of the United States of America. B. The Power To Hire And Fire. 1. Appointment power. a. The President, with the advice and consent of the Senate, can appoint all 1)Ambassadors, Public ministers, Consuls, Supreme Court justices, & Officers of the US. b. Congress cannot appoint members of Exec. agencies with Administrative Power - only the President can. 2. Removal power. a. The President, as Chief Executive, is an administrator, and as such, has the absolute power to fire an employee of an executive administrative agency. 1)Heads of independent administrative agencies can't be fired except for cause. b. Executive administrative agencies are those run by a cabinet officer who serves at the pleasure of the President. 1)Department of Defense, Department of Agriculture, Department of Justice, Department of Commerce, Attorney General, Secretary of State. c. This power of removal does not include civil servants who are neither appointees nor decision makers. 3. The President cannot remove Supreme Court justices or lower court judges - they remain during "good" behavior. 4. The President does not have the power to fire an employee of an independent government agency. a. Eg: Federal Trade Commission, Federal Aviation Administration, etc. b. The independent agencies' commissioners are appointed to a statutory term and cannot be fired by the President. 1)Where the statute lists causes for removal, the president must conform to the statute and its procedures. 2)The only way to get rid of the head of an independent agency before the expiration of his term, absent the requisite statutory cause, is for Congress to abolish the agency itself and for the President to sign the bill doing such. B. Commander In Chief Of The Armed Forces. 1. War. a. The President has the right to send troops wherever he thinks they should go, without approval of Congress or a declaration of war. 1) Post-Vietnam statutes purport to limit the President's powers to commit troops to battle, but they haven't been challenged yet and probably wouldn't survive attack. b. Congress has control over the appropriations ($), so in effect Congress has some control. 1) "The President has the power of the sword; Congress has the power of the purse" c. If war has been declared there are no limits to what the government can do, including blanket detentions based solely on race. d. Only Congress has the authority to declare war. 2. Martial law. a. Martial law is declared when a chief executive (usually state governor) determines that law and order have broken down, and he calls out the troops to restore order. b. A governor exercises similar powers to the president during martial law. c. If armed conflict breaks out within a state, the President has the power to determine which is the legitimate government and the courts must support that decision. d. Prizes. 1)If the President declares martial law he can declare a blockade and award the captured ships to privateers. 2) Captured ships awarded during martial law may be either domestic or foreign. 3) The government usually splits the prize with the privateers. 4) War need not have been declared. e. Courts. 1)If the civilian government has been replaced by a military type government following a declaration of martial law, the civil courts may also be replaced by military courts. 2)A civilian may not be tried by a military court if the civil courts are still open. f. Preventive detention. 1) If martial law has been declared a chief executive may detain individuals to prevent further danger to the state. (Japaneese WWII). 2)The power to wage war is the power to wage war successfully. g. Implied powers during national emergencies. 1)The President's power to issue an order seizing private industry (e.g., during a labor dispute during war) must stem from Congress or the Constitution itself. 2)The President's implied powers can only be invoked if he has already tried all statutory remedies available. 3. Suspension of the writ of habeas corpus. a. "The Writ of Habeas Corpus shall not be suspended except in cases of invasion or grave public danger." b. Effect: the courts cannot intervene to even hear your case. c. This power has never really been tested constitutionally, though Lincoln did suspend it during the civil war. 4. The military. a. The members of the armed forces are specifically exempted from the Bill of Rights. b. The only rights the military have are under the statutorially created Uniform Code of Military Justice. 1) A base commander has the ultimate authority. 2)There are courts of military appeals. c. Courts. 1)A military court is only used when the action relates to a breach of military obligations Eg: Murder or rape on a base by a member of the service. 2) The spouse or child of a member of the service can't be tried by a military court in any event, even if the crime was committed on the base. 3) Once a person is discharged from the military he cannot be returned and tried by court martial. 4)If one is in the reserves he must be tried by a civil court even for violations committed while on active service, unless the government extends the soldier's active duty for the duration of the trial. C. Foreign Affairs. 1. The federal government has exclusive power over foreign affairs. a. States may not intrude. 2. The President has the exclusive power to a. Appoint ambassadors and other ministers. 1)This appointment results in the nation "existing" in the US courts. 2)This requires Senate confirmation of the appointment. 3)If the President severs relations with the country and recalls his ambassador, that nation can no longer sue or be sued in the US courts - it, that nation, doesn't exist. b. Make treaties (Congress ratifies). c. Receive ambassadors and ministers. 3. Supremacy Clause (Article IV). a. Treaty v. State law. 1)Where there is a federal treaty on point, a state law which conflicts with it is void. b. Treaty v. federal law. 1)Where there is a conflict between a treaty and a federal statute, the latest in time prevails. 2)Indian treaties: Indians have treaty rights only if Congress hasn't taken them away by subsequent statutes. a)Diplomatic immunity: An indian has diplomatic immunity from suit outside the tribal court. c. Executive agreements. 1)These have the same status as treaties 2)They can void a state law but do not need congressional ratification. a)Latest in time controls, therefore an executive agreement can override a treaty or federal statute. d. Scope of treaties. 1)A treaty doesn't give the feds. the power to abrogate any of the Bill of Rights or the Constitution. 2)Military authority can't be expanded by treaty. D. Pardon Powers. 1. The president can grant reprieves or pardons to anyone, for any offense against the US govt, under Article II, except in the case of impeachment. 2. The president can pardon someone before he is convicted. 3. The president can stop a trial in progress an pardon a defendant. 4. The president can impose any restrictions he chooses on a pardon. E. Legislative Powers. 1. The president can veto all legislative action, but he can not "second hand veto" by refusing to spend the money appropriated to implement a bill he has already signed. F. Executive Privilege. 1. Presidential communications as to military, diplomats or sensitive national security secrets are given utmost deference as being privileged. 2. All other communications are presumptively privileged, but yield to a need for evidence in a criminal case. 3. The president has absolute immunity from private suits relating to his own acts, so long as there are within the parameters of his authority. X. FIRST AMENDMENT. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances. A. Free Exercise Clause - Freedom Of Religion. 5)Reynolds v. U.S., 1879. Reynolds stipulated that he had 2 wives. Query by the USSC: Can a religious belief be justification of a criminal act? Court held no in a unanimous decision. a)The Court basically held: Believe what you want, but don't try to hide behind religious freedom. c. Despite what the Constitution says, Congress can make rules about religious practices, and Congress said: 1)The Mormons have an absolute right to believe what the wanted, but one can be denied the right to vote, hold office or be a juror if one practices an unpopular theological belief. Further, the assets of the church can be seized under the doctrine of cy pres. d. If the purpose of the statute is to single out a religion for adverse treatment, there is a clear violation of free exercise. e. A distinction must be made between a statute that interferes with religious beliefs and a statute that interferes with conduct that a person wishes to engage in because of his religion. 1)The freedom to hold a belief is absolute. 2)Action or conduct undertaken because of religious beliefs is not absolutely protected by the free exercise clause. a)When a govt regulation, enacted for a secular purpose, either burdens conduct required by some religious belief or requires conduct forbidden by some religious belief, the Court balances the following three factors: (i)Severity of the burden. (ii) Strength of the state interest. (iii)Alternative means available to impose a lesser burden. 2. Analysis of free exercise issues. a. Is there a state action? 1)If no state action there is no constitutional violation. 2)Private employers must make a reasonable accommodation for the religious beliefs of an employee under Title VII, not the Constitution. b. Is it a religion? 1)Ballard v. US test: The govt can not inquire into the truth or falsity of a religious belief, though it can question the sincerity. a)Anyone whose beliefs are different will be challenged today regarding his sincerity. b)If sincere, then it is a religious belief. 2)The state can't restrict the dissemination of religious beliefs. a)Jehovah's Witnesses can sell newspapers door- to-door. Ordinance prohibiting all door-to- door sales is unconstitutional. 3)Problem is that nowhere in Constitution is the word "religion" defined. The USSC takes an expansive view of religion. a)Virtually any belief someone wants to say is his fundamental belief can qualify as a religious belief. b)Conscientious objectors: There is no Constitutional right to object to military service - it is purely a statutory right. c. Can the govt regulate the practice of the religious belief? 1)Reynolds v. U.S. test: The Constitution guarantees absolute freedom of religious belief, but any practice of religion can be regulated in order to ensure good order. a)If your religious belief is not that of the majority, your religious practice freedom is nil! b)Law naming it a crime to belong to an organization that teaches or practices polygamy, with punishment if you do. c)The govt can require children to have vaccinations even though a religious group forbids it. d)The Reynolds test is still alive and well, and was recently reaffirmed by the USSC. 3. Sherbert v. Verner, 1963: The Sherbert test. A woman was laid off from her job. She was to be interviewed for another, but refused to go because she would have been required to work on Saturdays. Her religious day was Saturday. USSC held that the state could not deny her unemployment benefits unless it could show a compelling state interest. a. Rule: Before a state can infringe upon a person's conscience, the state must justify its action by showing compelling state interest and that the state's action was the least restrictive means of obtaining that result. b. So ... State can't force 1)A Jehovah's Witness to salute the flag; 2)A Jehovah's Witness to tape over his license plate with the state motto which said "live free or die". 3)An Amish child to attend secondary school; 4)State can't order a person to express a political, or philosophical view. 4. The USSC has never been consistent with the application of these rules. a. Reputable religious groups get the Sherbert test. b. Not so reputable religious groups get the Reynolds test. 5. But consider Employment Division, Oregon v. Smith, 1990. Native American Church member used peyote, an outlawed substance. Employer found out and terminated employee. Employee sought unemployment compensation. State refused. Employee argued freedom of religion. USSC held Reynolds applied. Free exercise clause does not permit violations of the law. a. Thus the Reynolds test is alive and well and the Sherbert test is limited to unemployment compensation cases where a person does not partake of an illegal activity. b. From Smith I got the sense that the USSC was saying that if a religious act violates state law, and the law was designed for some other purpose, then the USSC would apply Reynolds. 1)Thus, in Smith, the USSC found that Oregon's drug law had an incidental affect on religious beliefs and therefore the law was valid. If the law were directed simply at religions, the law would be unconstitutional. c. So, Reynolds applies except in unemployment cases or where some other constitutional right comes into play. 1)Believe what you want, but if the govt tells you to do something, you'd better do it or go to jail. B. Establishment Clause. (a/k/a Non-Establishment Clause). 1. The Establishment Clause bars govt sponsorship of religion, govt financial support of religion, and active involvement of govt in religious activities. The purpose of the Non-Estatblishment Clause was to erect a high wall between gov't and religion. Madison in particular was of the opinion that religions persecuted those who weren't members, and he wanted a separation between the religions and the govt. c. Parochial schools are private religious schools. 3. Blain Amendment: No state shall make any law regarding the establishment of religion nor the exercise thereof. No pubic property and no public revenue nor loan of credit by the US or any state shall be appropriated or made or used for the support of any religious school. a. The amendment failed by one vote. b. Every state admitted to the union after 1870 had to have the Blain Amendment in their constitutions to be admitted (including WA). c. Affected 1)Schools under religious domination and control 2)Schools with sectarian influences. d. Result: Only states with the Blain Amendment are prohibited from giving financial aid to private church schools. 4. States without the Blain Amendment in the constitutions. a. State can give free books to private school shildren because this fulfills a legitimate public function - the state has a valid concern about the quality of education of all its citizens. b. Child benefit theory. It is constitutionally permissible to spend public money on private school children so long as it is the child who benefits and not the religious institution. 1)Thus a state can reimburse a family for bus passes they purchase to sent their child to parochial school because (1) money went directly to parents, and (2) school not directly involved in the refund process. 5. Board of Education v. Allen, 1968. NY passed a law giving free text books to all students. The law was challengend under the Non-Estatblishment clause. The USSC devised a two prong test to determine if the law violated the Non-Estatblishment Clause: a. Does the law have a secular purpose? (ALLEN TEST) 1) A law is secular if it neither enhances or inhibits religion. 2)If the primary purpose of the law is to advance religion, it is unconstitutional. b. Does the law involve excessive entanglement between the state and the religion? 1)Such entanglements can be neither financial or political. 2)A reoccuring theme which hasn't yet obtained a majority: Any kind of program is unconstitutional because it is politically devisive, therefore violating this prong of the test. 3)Examples. a)State can't compensate parochial lay teaches for teaching secular subjects because there is too much of a benefit going to the religious institution and record keeping functions involve excessive financial entanglements. b)Parochial schools can't receive direct cash grants, per capital, for educating low income students. c)State can't provide private schools with visual aids, speech therapy programs in the private schools, or remedial programs in the private schools. d)State can pay for textbooks, costs of standarized tests on secular subjects, diagnostice speech, hearing and counseling services if conducted off the parocjial scool grounds, records for student attendance, and collecting statistical records required by the state. e)A state can also allow tax deductions to parents who send their children to private schools. 6. Private higher education. a. Allen test applies only to primary and secondary schools. b. Blain Amendment applies only to parochial schools and higher education, therefore not state money in those states. However, fed. money okay. c. States without the Blain Amendment can OR fed. money can be given, loaned to private church institutions of higher education for construction of buildings so long as the building is not used for religious purposes. d. At higher education level there appears to be no limit so long as the money is used for secular educational purposes. 7. Public schools. a. Religious influence. 1)A public school can not require a religious hour at school. IL v. Board of Ed. of IL, 1948. 2)After school religious instruction is okay as long as it is off school property. Zorach v. Clauson, 1952. b. Prayer. 1)Every morning saluted the flag and said prayer. USSC held prayer in school violated Non-Establishmentclause. Engle v. Vitale, 1962. 2)Every morning saluted the flag and listen to teacher read bible verses. USSC said unconstitutional. PA v. Schempp, 1963. c. Silence. 1)Alabama law allowing a moment of silence probably would have been okay, but the legislature added "so the children can pray". USSC said unconstitutional. Wallace v. Jafffree, 1985. 2)Ark. passed law: can't teach evolution. A back- door approach to teaching biblical creation. USSC said unconstitutional. Epperson v. AR, 1968. 3)LA law said if you teach evolution, must teach creation. USSC said Unconstitutional: Content censorship. 4)If a public university opens its doors to all groups, can't disallow religious groups. USSC said if open to one group, must be open to all. Content censorship.: Wanted to keep out "Youth for Christ". 8. Ecclesiastical disputes over property. a. General rule: The USSC wants to maintain the high wall between church and state. In a dispute between factions of a religious group the court will examine the following question: What type of ecclesiastical structure does the religious group have? 1)Three types: a)hierarchical - one person makes the decision (Eg: Roman Catholic Church). b)presbyterian - a national group makes the decision (Eg: Presbyterian, Methodist). c)congregational - local congregation makes the decision (Eg: Baptist). 2)So in a dispute between Catholics, the Pope's decision is final regarding church property and the USSC won't overturn his decision (unless ...). b. Background. 1)There is billions of dollars tied up in church property. A problem may arise when doctrinal differences emerge. 2)Watson v. Jones, 1871 & Bouldin v. Alexander, 1872. Although the political question of slavery had been resolved at Appomattox, the religious questions lingered on. In TN a church split on the issue of slavery. One group said slavery was God's will the other group denounced that philosophy. The Court sought to resolve the problem without govt interference. The Court came up with the Ecclesiastical governance - Look at the church's structure. Is it hierarchical, presbyterian or congregational. Depending upon which it is how the split is to be resolved. In these cases, the churches involved were Baptist, which meant that they were controlled by their local congregation, and the local congregation could vote to determine what was what. The problem arises when it comes to voting. Who gets to vote? a)Fraud exception still alive. b. So, Watson is still good law. How do you know which is the hierarchical? Great schism in the Church? 1)Neutral principles of law: If a doctrinal dispute breaks out, the courts can look at the documents - articles of inc., deeds etc. What do they say? Maybe of some help. c. Miscellaneous. 1)A state can't force a religious group to disclose where it gets its contributions. Larsen v. Valente, 1982. 2)A state law prohibiting a liquor store from being within 300' of a church is unconstitutional. Although a state probably could stop a liquor store from going in that close to a private school. Larken v. Gredal's Den (?). 3)A state legislature is entitled to have a chaplin (paid at public expense) reason - tradition. March v. Chambers, 1983. 4)A Christmas tree in a city park is okay because it promotes sales and not religion. Lynch v. Donnelly, 1984. 5)A nativity scene at a county courthouse violates the Non-Establishment Clause. County of Allegeny v. ACLU, 1989. d. Taxation. 1)A state can not force a religious organization to obtain a license to for door-to-door sales. Martin v. City of Struthers, 1943. 2)A state can tax the sales of religious items (sales tax). Jimmy Swaggart Ministries v. Board of Education, 19 . 3)A clever fellow brought a suit claiming that the tax exemption of religious groups violates the Non-Establishment Clause. The USSC rejected this idea on the ground of tradition. Waltz v. Tax Commission of NY, 1970.