Law Class Notes
We all got the e-mail clarifying the assignment.
The terrorism hypothetical and more on Printz
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
letís say Congress passes a law saying that in the time of an emergency,
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 Congressís implementation of the plan?
Congress might try to induce the states through the Spending Clause.† Congress canít 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 ďemergencyĒ 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 donít always trust Foley as a predictor of Supreme Court outcomes!
What about Congressís 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: Weíll 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.† Itís 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 canít adequately handle terrorist threats.† Would the Supreme Court say that the Constitution doesnít allow us to defend ourselves?† Would the answer be different if the stakes are higher?
The Constitution doesnít 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 donít raise federalism issues.
The Supreme Court doesnít 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 isnít a national security case.
says that because weíre in flux, the best principle might be this: ďCongress
may not regulate state governments in ways that are inconsistent with a stateís
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.Ē† Congress
canít be the big bully and push the states around.† This ďanimating ideaĒ 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 didnít see an affront to the dignity of
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 canít suddenly assert the Tenth Amendment as an objection to an equal protection claim. †The states have no right to take away equal protection.