Constitutional Law Class Notes 4/22/04

The semester has flown by and we’re almost at the end.

Here are some things about the exam and how to review. We will probably be able to pick it up Tuesday morning at 9 AM. It will be due Thursday at 1 PM, which is the time that a sit-down Constitutional Law exam would be over. It’s going to be roughly a 48 hour exam for that time period. There will be three essay questions. We will be able to use books and notes. How can we plan for this? Foley says if we have been keeping up with the reading, that is just about the best preparation you can muster until you get the questions themselves. There is no point in trying to memorize details of things until you get a specific question. But if you haven’t been doing the reading, it’s going to be a lot harder. You need the basic concepts in order to be able to tackle the questions in 48 hours.

It’s not hard to figure out what sort of questions will be on the exam. We learned about (1) Federalism, (2) Separation of Powers, (3) equality (the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment), and (4) substantive due process. Be prepared to write a brief, or at least the summary of argument section. We might be asked to argue for both sides as a brief writer. We might also be asked to write a bench memo to a judge to advise a judge on how to rule on a case. We may be asked to play the role of a judge. We may be asked to write a memo advising a client about the constitutionality of certain conduct or legislation. Don’t worry about the Bluebook for this exam. If the date of the case is important to your argument, you might want to mention the date of the case even if that’s not what the Bluebook says. The most important thing about Lawrence is that it’s brand new!

The time management in this class is going beyond absurd. Monday we have to fill out course evaluations. We have 50 minutes flat to cover two briefs covering over 120 pages. We’ve spent nearly 40 minutes talking about the exam.

More on § 5

Yesterday, we went pretty fast but got the essence of comparing Morrison and Hibbs. In Foley’s lingo, the new test under § 5 is the “too far” test…has Congress just gone overboard, or is the statute narrowly tailored and circumscribed enough? If you have a § 5 problem, you should ask if Congress has gone too far, or if it’s close enough. Inevitably, that’s an indefinite standard that can only be understood in relation to cases the Court has already decided. The other key point is that Congress can have over § 5 to impose standards that are not themselves required by § 1. The failure to provide 12 weeks of leave, for example, is not a violation of § 1, but Congress has the power to impose 12 weeks of leave under § 5.

The most important thing to understand is that the reason we’re getting so much more litigation under § 5 in the last decade is because of two developments related to federalism: (1) The shrinking of the Commerce Clause. You wouldn’t have to worry about a § 5 issue if the sky was the limit of the Commerce Clause. That’s why § 5 comes up in Morrison, because they found a lack of authority under the Commerce Clause. For 60 years after the New Deal revolution, the Court had not found any Commerce Clause problems until the arrival of Lopez. The new § 5 stuff is part of the revitalization of the “New Federalism”. Another aspect of federalism is the new Eleventh Amendment sovereign immunity, which is a new development that also occurred in the 1990s. This new sovereign immunity doctrine that started with Seminole Tribe says that Congress cannot override sovereign immunity using Commerce Clause power, which forces you to look at § 5. Five years ago, it wasn’t necessary to teach § 5 in a first year Con Law class!

The briefs in Padilla v. Rumsfeld

There may well be something about this case on the exam!

Part of the reason we’re reading these briefs is to look at how you argue constitutional issues to the U.S. Supreme Court when you’re in a “zone of uncertainty”. We also read the Sabri briefs. There aren’t rules “out there” that dictate answers. But we can still write briefs and be persuasive.

What is this case? Foley wants us to be thinking about the oral argument next Wednesday. What sort of questions will the justices ask the attorneys in the case? Paul Clement will argue for the United States. He is doing moot court stuff to try to predict what the justices will ask, especially the swing vote justices.

What’s under review here is the Second Circuit’s decision. Since the Second Circuit said that the President lacked authority, the Court need not come to the rights question until it’s finished with dealing with whether the Second Circuit was correct or incorrect on the power issue. And what about habeas jurisdiction? That may be important to the Supreme Court, but we haven’t spent any time on it in this class. Don’t worry about that and where the case should be filed. We should focus on the power question. Does the President have power either by virtue of the Constitution or by virtue of statutory authority and Justice Jackson’s analysis in Youngstown Sheet? We also need to think about the rights issue, at least in the back of our minds. Now that we know a little bit about substantive due process, there seems to be a substantive due process issue on the table if you get over the initial power hurdle.

What was Justice Jackson’s analysis in Youngstown Sheet? He wrote a concurrence that the Court later picked up in Dames & Moore v. Regan. Jackson tried to tell us what the relationship is between the President and Congress with respect to the President’s actions. The question here is: when the President issued the order to detain Padilla, is he acting (1) with the authority of Congress, (2) against the authority of Congress, or (3) in the absence of any indication from Congress? The government’s position is that Congress has given the President express permission to detain people in the authorization for the use of force. But the government goes on to claim that the President has the inherent power to detain Padilla.

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