Con Law Final

U.S. v. Nixon (1974): Background

• Following the Watergate scandal, Nixon fired the special prosecutor assigned to investigate the break-in, Archibald Cox

• Backlash resulted in several resignations (called the Saturday Night Massacre) and Nixon appointing a new prosecutor

• This new prosecutor subpoenaed Nixon, who attempted to have it quashed on the grounds that the dispute was within the executive branch and therefore non-justiciable, and also that he had executive privilege to keep the information confidential

U.S. v. Nixon (1974): Questions

• Does “executive privilege” shield some internal White House communications from subpoena?

• Are Nixon’s tapes included?

U.S. v. Nixon (1974): Majority Opinion (8-0)

Chief Justice Burger:

• It is reasonable that some executive conversation is privileged

• Separation of powers is also important

• However, neither of these truths allow for an absolute, unqualified executive privilege of immunity from judicial intervention

• Without compelling military, diplomatic, or national security interests, there is no reasonable argument to prevent such evidence by being privately viewed in a court with all due precautions

• To impede on this process would undermine the Judicial Branches Constitutional duty to do justice in criminal proceedings

• The possibility that conversations may possibly be viewed in camera in criminal proceedings will not dissuade officials from giving honest advice

• Confidentiality must be protected, so in camera is necessary

South Dakota v. Dole (1987): Background

• In 1984, Congress passed the NMDAA, which withheld a percentage of federal highway funds for states who had drinking ages below 21

• South Dakota, which had a drinking age of 19, sued

South Dakota v. Dole (1987): Question

• Is the de facto national drinking age under the NMDAA constitutional?

South Dakota v. Dole (1987): Majority Opinion (7-2)

Chief Justice Rehnquist:

• The use of spending powers has four requirements:

  • Conditions must be in promotion of the common welfare

  • Conditions must be unambiguous

  • Conditions must be reasonably related to the purpose of the statute

  • Conditions must not violate an independent constitutional provision

• There are times where Congressional pressure may turn to compulsion, however this act merely forces states who wish to have a lower drinking age to lose a minor amount of highway funding

• The Act cannot be deemed unconstitutional merely for successfully achieving its Congressional objective

• States ultimately still have the power to choose whatever drinking age they like

South Dakota v. Dole (1987): Dissenting Opinion (7-2)

Justice O’Connor:

• The NMDAA does not provide reasonable conditions for federal funding related to spending power, it allows the federal government to regulate the sale of alcohol, which violates §2 of the 21st amendment

• The establishment of a minimum legal drinking age of 21 is not sufficiently related to highway funding so as to justify the conditions imposed by the Act

U.S. v. Lopez (1995): Background

• Lopez was arrested for bringing a gun to school in violation of the Gun Free School Zones Act of 1990

• Lopez appealed, claiming the Act was an unconstitutional overreach of Congress’ commerce powers?

U.S. v. Lopez (1995): Question

• Is the Gun Free School Zones Act constitutional?

U.S. v. Lopez (1995): Majority Opinion (5-4)

Chief Justice Rehnquist:

• Congress can use it commerce power to:

  • Regulate the use of channels of interstate commerce (highways, roads, etc.)

  • Protect and regulate the means of commerce (trucks, planes, etc.), even if the threats are purely intrastate

  • Regulate activities which have a substantial effect on interstate commerce

• Previous precedent has piled inference upon inference to expand commerce power, but any further expansion just turns the commerce clause into police power, which belongs to the states

• Gun possession does not have a substantial effect on interstate commerce

Justice Thomas, Concurring:

• The original understanding of the commerce clause has been lost, and future jurisprudence should temper case law to fit that original meaning

U.S. v. Lopez (1995): Dissenting Opinion (5-4)

Justice Souter:

• Past historical precedent (the Lochner era and the culmination in the court packing scheme) should have signaled to the court that the primacy of Congress on matters of commerce power should be respected

• The wise approach is restraint

Justice Breyer:

• The courts should defer to Congress in determining what falls within their commerce power both because it is explicitly delegated to them by the constitution and because it requires an empirical judgement they are more equipped and informed to make

• Gun violence in schools affects commerce by threatening and discouraging trade that classroom learning supports (by creating workers and so on)

• This effect is substantial, as evidenced by the extent of the gun violence problem, the extent of the impact on classroom learning, and the extent of the consequent negative commercial impacts

U.S. v. Morrison (2000): Background