Constitutional Law Class Notes 1/28/04

We all got the e-mail clarifying the assignment.

The terrorism hypothetical and more on Printz

Foley has been talking about the hypothetical of a large-scale terrorist attack. Say Congress, in an effort to put in to place some advance planning in the event of a terrorist attack, says that there will be a combined rapid-response team consisting largely of local law enforcement officers who will be under the direction of the Department of Homeland Security. In order to implement a decent rapid response team, we need to rely on local EMS and police.

So let’s say Congress passes a law saying that in the time of an emergency, Tom Ridge or whoever can require local officers to do certain things. Is that permissible under the Tenth Amendment as interpreted in Printz? Say it’s a real big emergency. We would need a rapid response at the direction of the federal government. We don’t have federal personnel on the ground at all times, and we don’t want them, either. We don’t want a federal standing army on U.S. soil. We send American troops abroad as necessary, but the idea of a standing U.S. army on U.S. soil is somewhat anathema to us. We rely on state and local governments to keep the peace. Part of the idea of the federal system of government is keeping some power out of the hands of the central government and leaving it in the hands of local governments to promote freedom.

Would it be consistent with the goal of promoting freedom if the only way to protect against terrorism would be to have a federal force that replicates local government functions? Is that what this decision says? The Court says that we are not using a balancing test in this area of constitutional law. We are creating a categorical prohibition of enlisting state officers to perform federal functions. There is no exception to the principle for emergencies! Do we still take the Court at its word, given that the opinion was written before 9/11?

Most of constitutional law has balancing aspects. Even free speech rights are balanced against compelling governmental interests.

It seems unlikely, however, that a state would object to participating in a new program the federal government would adopt to deal with terrorism. The states pretty much all agree. On the other hand, there may not be complete agreement as to the details. For example, not everyone is so hot on all part of the PATRIOT Act. What if a particular state wants to go against a particular detail of Congress’s implementation of the plan?

Congress might try to induce the states through the Spending Clause. Congress can’t mandate the kind of background checks in Printz, but maybe they can dangle some money in front of the states to induce them to stick to the program.

What if Congress says the only way we can trace terrorist suspects would be if local law enforcement officers submit monthly reports to the Department of Homeland Security? Would it be different if local police departments were forced to gather information? The only difference between this and Printz is the “emergency” aspect.

So do we believe the Court when they say that there is no emergency exception to the rule? Would the Court cut the federal government more slack today after 9/11 than they did in 1997? Foley suggests we need to do a reality check. But don’t always trust Foley as a predictor of Supreme Court outcomes!

What about Congress’s war powers? Could Congress declare martial law? If they did, would the Tenth Amendment get suspended?

Here is the key dispute between the majority and the dissent in Printz: We’ll always need cooperation and coordination between federal, state, and local governments. If there is some dispute about how best to do this, who gets the final say? Is it Congress as the elected representatives of the American people (subject to the presidential veto)? Or is it the Supreme Court acting on behalf of state and local governments?

The states are well-represented before Congress. It’s not like the Congress turns a deaf ear to the concerns of the states qua states. The dissent says that there are ways to make accommodations politically. If Congress passes a law that intrudes on the sovereignty of a state, presumably it has done so for what it believes is a good reason. So shall the Supreme Court allow Congress to make that judgment, or will the Supreme Court instead say that the ultimate authority lies with the governors of the states?

Are the members of the Supreme Court going to render a decision that would destroy the country? Say the government had a credible argument that under the Constitution, as written, we can’t adequately handle terrorist threats. Would the Supreme Court say that the Constitution doesn’t allow us to defend ourselves? Would the answer be different if the stakes are higher?

The Constitution doesn’t have a provision that allows the President or Congress to suspend the Constitution. We always operate under the Constitution and the rule of law. In other countries, people can suspend the operation of the Constitution for a while when they say there is an emergency.

In exercising its authority, the Court will always have a dose of realism when it interprets the Constitution. We live under the Constitution, the Court will interpret the Constitution, but Foley says it will do so with a dose of realism.

This year, the Court has already granted cert in some terrorism cases. These cases don’t raise federalism issues.

The Supreme Court doesn’t have any power to enforce its own judgments. It relies on the executive branch to carry them out. The Court is quite sensitive to this point. Printz isn’t a national security case.

Foley says that because we’re in flux, the best principle might be this: “Congress may not regulate state governments in ways that are inconsistent with a state’s status or dignity as a sovereign government, including regulations that force states to undertake specific actions concerning their own citizens that a state does not wish to undertake.” Congress can’t be the big bully and push the states around. This “animating idea” is bigger, according to Foley, than any of the detailed rules the Court has set out to this point. The reason why Condon was unanimous was that the Court didn’t see an affront to the dignity of South Carolina that they couldn’t sell driver’s license information. In Printz, we’re talking about what police chiefs are going to do in their jobs. Police power is the most basic sovereign power. Forcing local cops around seems to the Court like an affront to the dignity of the states as sovereigns. The Court says that we’re not doing balancing, but they might try to “smuggle in” some balancing notions. There may be some “hidden” balancing even if there isn’t any up-front balancing.

Apply this to the terrorism example: The sovereignty of each state may be dependent upon the existence of the union. If the federal government is ordering states around to protect the union, that may not be as bad as ordering them around for some domestic policy interests.

The object of the Fourteenth Amendment was to constrain state power in certain ways. States can’t suddenly assert the Tenth Amendment as an objection to an equal protection claim. The states have no right to take away equal protection.

New York and Printz are not compelled by the text of the Tenth Amendment. The majorities in these cases are really being motivated by an idea about federalism and the two-level structure of our government. That idea is always going to be on the minds of the justices that care about the idea. In any constitutional case, you must be sensitive to this idea. Federalism is always on (some of) the justices’ minds! On the other hand, some of the justices, like Breyer and Stevens, don’t like federalism!

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