Case Name/ Issue



ARS Cases Chart – Spring 2009, Rascoff. –Jason Hardy

Cases

C01. INS v. Chadha 2

C02. Clinton v. City of New York 3

C03. State v. Warshow 4

C03½. United Steelworkers v. Weber 5

C03¾. Rector, Holy Trinity Church v. United States 6

C04. Fishgold v. Sullivan Drydock & Repair Corp. 6

C05. U.S. v. Locke 7

C06. Green v. Bock Laundry 7

C07. Zuni Public School District No. 89 v. Dept. of Education 8

C08. United States v. Marshall 8

C09. Brogan v. U.S. 9

C10. Li v. Yellow Cab of Calif., Calif. 9

C10½. FISA/NSA wiretapping case 10

C11. Muscarello v. United States 11

C12. Leo Sheep Co. v. U.S. 12

C13. Blanchard v. Bergeron 12

C14. In re Sinclair 13

C15. Montana Wilderness Ass’n v. U.S. Forest Serv. [I] 13

C16. Montana Wilderness Ass’n v. U.S. Forest Serv. [II] 14

C17. Bob Jones Univ. v. U.S. 14

C18. Cartledge v. Miller 14

C19. Lorillard v. Pons 15

C20. Morton v Mancari 15

C21. Flood v. Kuhn 15

C22. A.L.A. Schechter Poultry Corp. v. U.S. 16

C23. “Benzene Case” 16

C24. American Trucking Ass’ns., Inc. v. EPA 17

C25. Myers v. United States 17

C26. Humphrey’s Executor v. U.S. 17

C27. Morrison v. Olson 18

C28. Commodity Futures Trading Commission [CFTC] v. Schor 19

C29. Benslimane v. Gonzales 19

C30. Londoner v. Denver 20

C31. Bi-Metallic Investment Co. v. State Board of Equalization 20

C32. Goldberg v. Kelly 20

C33. Hamdi v. Rumsfeld 21

C34. Board of Regents of State College v. Roth 21

C35. Perry v. Sindermann 21

C36. Mathews v. Eldridge 22

C37. Nt’l Council of Resistance of Iran v. Albright 22

|Textualism or Formalist |Purposivism |Functionalist |Institutional Competency |

|- Truepenny and Tatting in Speluncean Explorers |- Foster in Speluncean Explorers (counter by |- White in Chadha |Issues: less democratic accountability for courts, |

|- Burger in Chadha |Tatting) |- Scalia in Clinton |lack of constitutional authority to legislate, how |

|- Stevens in Clinton |- Billing in Warshow? |- Blackmun (P)* in Weber |to judge when a law needs to be changed |

|- Barney in Warshow |- Brennan in Weber. |- Blackmun (P) in Bock Laundry | |

|- Rehnquist in Weber |- Rehnquist (I) in Weber |- Breyer (Eclectic) in Zuni. |- Keen in Spel. Explrs. (counter by Handy) |

|- Hand in Fishgold |- Brewer in Holy Trinity* |- Breyer (Eclectic) in Muscarello. |- Hill in Warshow. |

|- Marshall in Locke |- Hand in Fishgold |- Taft (3) in Myers. |- Ginsberg in Brogan. |

|- Easterbrook in Marshall |- Stevens in Locke |- Rehnquist (3) in Morrison v. Olson. |- Clark in Li. |

|- Scalia in Bock Laundry*, Brogan, etc. |- Posner (pragmatic) in Marshall* | |- Rehnquist in Bob Jones. |

|- Breyer in Muscarello. |- Stevens in Bock Laundry*, Brogan |- But see Brennan in Schor (Framers chose limits on|- Blackmun in Flood v. Kuhn |

| |- Ginsburg in Brogan (but limited by the text, in |efficiency) |- Marshall et al. in Benzene case |

| |contrast to Stevens in Zuni) | | |

| |- Stevens in Zuni (intention can trump text, per |* Golden Rule |- Counter: Calebresi (DSI - §IIC3). |

| |Holy Trinity) | | |

| |- Sullivan (DSI) in Li. | | |

| |- Burger in Bob Jones. | | |

|Case Name/ Issue |(Majority approach) |(Concurring or Dissenting approach) |(Concurring or Dissenting approach) |

|C01. INS v. Chadha, U.S. (1983), 1150: INS |[Burger]: (Formalist) – “legislation should not be |Concur in result [Powell]: Separation of Powers - |Dissent [White] (Functionalist): Congress should |

|suspended a deportation order. The House overrode |enacted unless it has been carefully and fully |The judiciary should be the check on legislative |retain some power to oversee the administration of |

|the suspension via §244(c)(2) of the Immigration |considered by the Nation’s elected officials.” By |power. The problem is not so much one of |agencies that it creates with broad delegation of |

|and Nationality Act, which authorized one chamber |bypassing the presentment requirement, the |presentment but that the Legislature is displacing |authority. |

|of Congress, by resolution, to invalidate a |legislative veto gives Congress a “second bite of |the role of the Judiciary and performing a | |

|decision by the executive to allow a deportable |the apple” and too much power. |quasi-judiciary function by applying a general law |Public choice analysis: An ig could focus its |

|alien to remain in the U.S. Chadha’s lawyer argued | |to a specific fact-pattern. (Powell might be o.k. |resources on an agency decision and then a |

|that §244(c)(2) is unconstitutional because it does| |with a change to a law in regard to an unintended |Congressional committee if the agency decision is |

|not adhere to the procedures outline in Art. I §7. | |application by an administrative agency.) |unfavorable to the ig. Thus, the ig could have |

| | | |influenced a decision thrice (in the passage of the|

| | | |law, in its application by the agency, and in the |

| | | |act of oversight). |

|C02. Clinton v. City of New York, U.S. (1998), 373:|[Stevens] (Formalist): The line-item veto as |Dissent [Scalia] (Functionalist): Despite its name,|Dissent [Breyer]: The Act represented no violation |

|Under the Line Item Veto Act of 1996, the President|granted in the Act violated the Constitutional |the bill didn’t authorize a line-item veto; it only|of the text of the Constitution or separation of |

|could sign a bill into law and then cancel out |separation of powers because it bypassed the |allowed for the President to “cancel” a spending |powers principle. Congress could have parceled out |

|certain provisions. To do so, he is required to |bicameralism and presentment requirements of Art I |item, which is functionally equivalent to the |individual bills (a procedure called “enrollment |

|consider the legislative hxy and purposes. He also|§ 7 by giving the President the power to |Executive’s ability to spend money with discretion |separation”) rather than packaging all the |

|must determine that the cancellation will “(i) |unilaterally amend or repeal the text of statutes |which “Congress has permitted the President to do |provisions together in a large omnibus bill, and |

|reduce the Federal budget deficit, (ii) not impair |that had been duly passed by Congress; only a |since the formation of the Union.” |the President could have vetoed individual bills |

|any essential Government functions; and (iii) not |Constitutional amendment could make such a | |with no problem. |

|harm the national interest.” And he must notify |structural change. | | |

|Congress within a specified time of the | | |Public choice analysis: Would all the provisions |

|cancellation. Clinton exercised the line item veto| | |have passed if they were passed separately? |

|on a law that gave tax breaks to NYC and farmers, | | |Furthermore, isn’t Congress implicitly |

|among other groups. Congress members had | | |acknowledging that is it beholden to special |

|previously brought suit against the Line Item Veto | | |interests by granting the President the power to |

|Act (Rains v. Byrd), but the case was dismissed for| | |undue compromises that Congress strikes to appease |

|lack of standing. | | |interest groups? |

|C03. State v. Warshow, (595): Warshow and other Ds |[Barney, C.J.] (Formalist): The letter of the law |Concur [Hill]: Deference to legislature on policy |Dissent [Billing]: Evidence should have gone to the|

|engaged in a sit-in designed to prevent nuclear |for a necessity self-defense was not applicable in |decisions – The legislature had weighed the |jury - “where, as here, the Ds offer to prove an |

|power plant workers from bring the plant back |this case – “low-level radiation and nuclear waste |competing policy considerations and found that |emergency which the regulatory scheme failed to |

|online. Charged with trespass, Ds asserted an |are not the types of imminent danger classified as |operating a nuclear power plant was relatively |avert, the inference of preclusion is unwarranted.”|

|affirmative defense of necessity, claiming that the|an emergency sufficient to justify criminal |safe, thus precluding a necessity defense to |In response to [Hill], he disputes that the |

|nuclear plant posed a severe threat to public |activity.” The Ds had time to take other actions. |self-help protection against harm from the plant. |statutes indicate that the legislature had weighed |

|safety, and that blocking the entrance to the plant| |“The balancing of competing values cannot, of |all the policy considerations and found that “the |

|was necessary to avoid a nuclear accident. The | |course, be committed to the private judgment of the|benefits of nuclear energy outweigh its dangers,” |

|court refused to allow the defense, and Ds were | |actor, but must, in most cases, be determined at |as Hill wrote. (Counter argument to Billing’s |

|convicted. Affirmed. | |trial with due regard being given for the crime |argument: If juries are allowed to decide policy |

| | |charged and the higher value sought to be achieved…|issues, where will the line be drawn?) |

|[ Public Choice analysis: Well-funded and | |If we were to allow Ds to present the necessity | |

|well-organized nuclear business interests lobbied | |defense in this case we would, in effect, be |“Moreover, statutory enactments in derogation of |

|for the passage of the current law, so were all the| |allowing a jury to redetermine questions of policy |the common law are [to be] strictly [(narrowly)] |

|policy issues fairly weighed? Possible interest | |already decided by the legislative branches of the |construed.” So, here, legislation endorsing |

|groups opposed to the nuclear business groups would| |federal and state governments [since they had |nuclear power should not be read to indicate a |

|consist of average people who are less-involved in | |already passed laws to allow for the operation and |broad legislative intent to undermine the common |

|the political process with less money, less | |regulation of nuclear power plants]. This is not |law necessity defense. (Hill’s counter to Billing’s|

|organization, and less motivation due to less | |how our system of government was meant to operate… |view: The legislature’s stated policy, enacted |

|tangible benefits – thus, concentrated benefits for| |Ds still have the right to try to induce those |through statutes, overrides the more general common|

|the business groups and distributed costs for | |forums that have made the policy choices at issue |law doctrine of necessity in this case.) |

|public opposition.] | |today to reconsider their decisions. But until | |

| | |that time I feel constrained to follow the law as | |

| | |it is, not as some would like it to be.” | |

|C03½. United Steelworkers v. Weber, US (1979), 99: |[Brennan] (Purposivism): An affirmative action plan|Concur [Blackmun] (Pragmatic/ Golden Rule): |Dissent [Rehnquist and Burger] (Textualist): The |

|The United Steelworkers of America and Kaiser |voluntarily adopted by private parties to eliminate|Voluntary quota programs like Kaiser’s are |text of the statute clearly prohibits the type of |

|Aluminum had “voluntarily” implemented an |traditional patterns of racial discrimination does |permissible to remedy “arguable violations” of the |discrimination that Weber faced. |

|affirmative action-based training program to |not violate the spirit or intent of Title VII. |CRA. Congress did not consider this sort of |(Intentionalist): Furthermore, the legislative |

|increase the number of the company's black skilled |(Textualist) argument as well: Although an employer|situation when it passed the CRA. Kaiser’s |history indicates an intent to eliminate all racial|

|craft workers. Half of the eligible positions in |cannot be compelled by the government or the courts|situation is that, if it takes no action, it faces |discrimination, “recognizing that no discrimination|

|the training program were reserved for blacks. |to adopt a remedial program like Kaiser’s, a |possible future liability for discrimination under |based on race is benign, that no action |

|Weber, who was white, was passed over for the |voluntarily-adopted program, as at issue here, is |the CRA. But by taking voluntary action to remedy |disadvantaging a person because of his color is |

|program despite his qualifications. He claimed that|not barred by §703(j). |racial imbalance in the workforce, it risks a |affirmative.” Thus, programs that give preference |

|he was the victim of reverse discrimination. Lower| |lawsuit from white employees like Weber. |to workers of color would be barred under the Act, |

|courts supported Weber's claim that employment | | |just as discrimination against workers of color was|

|preferences based upon race violated Title VII of | |Public choice issues: If Congress didn’t like the |barred. |

|the Civil Rights Act of 1964’s prohibition against | |decision, couldn’t it change the law? Congress may|(Purposivist): The purpose of the CRA was to |

|racial discrimination in employment. Rev’d. | |be reluctant to avoid legislating on controversial |contribute toward a “color blind” society. |

| | |labor and employment issues because Labor and | |

| | |Business lobbies are powerful interest groups. In |In response to the majority’s contention that |

| | |this case, both groups benefited from the decision,|Kaiser adopted the plan voluntarily, they did so |

| | |so there would be little motivation to push for a |under pressure of potential intervention by the |

| | |change. |Fed. Gov’t. |

|C03¾. Rector, Holy Trinity Church v. United States,|[Brewer] (Purposivist/Intentionalist – Golden |[Brewer] (cont.): |[Brewer] (cont.): |

|U.S. (1892), 695: Holy Trinity Church contracted |Rule): “It is a familiar rule, that a thing may be |(Intentionalist) |Constitutional and historical argument – The 1st Am|

|with E. Walpole Warren, an Englishman, to move to |within the letter of the statute and yet not within|- Historical framework/general intent - Re: |holds that “Congress shall make no law respecting |

|NY to serve as its pastor and rector. A statute |the statute, because not within its spirit, nor |Heydon’s case #2, the evil (mischief) this statute |an establishment of religion, or prohibiting the |

|forbade a company from assisting or encouraging an |within the intention of its makers.” “This is not |was enacted to remedy was outlined by Justice Brown|free exercise thereof.” The U.S. (“a Christian |

|alien to immigrate for the purposes of performing |the substitution of the will of the judge for that |in United States v. Craig: Businesses contracted |nation”) was founded by and continues to be ruled |

|“labor or service of any kind in the United |of the legislator, for frequently words of general |with aliens to provide passage to the U.S. and low |by religious people, who undoubtedly did not intend|

|States.” Express exceptions did not include |meaning are used in a statute…” Although a |wages in exchange for labor. “The effect of this |to interfere with religious work. Constitutional |

|preaching. |(Textualist) analysis indicates rectors are not one|was to break down the labor market…” leading to an |and historical argument – The 1st Am holds that |

|- Holding: Although Holy Trinity’s contract fell |of the vocations excepted from the statute, the |appeal to Congress to enact the Act. |“Congress shall make no law respecting an |

|within the literal interpretation of the statute, |title of the statute refers to the prohibition of |- Legislative History/ specific intent – An extract|establishment of religion, or prohibiting the free |

|the intent of the statute’s drafters was “to stay |aliens under contract to “perform labor,” and |from a committee report indicated that the term |exercise thereof.” The U.S. was founded by and |

|the influx of … cheap unskilled labor” (not |preaching is not commonly understood to be |“manual labor” was suggested as an adequate |continues to be ruled by religious people, who |

|preachers). |considered “labor.” |replacement for the overly-broad term “labor.” |undoubtedly did not intend to interfere with |

| | |However, the committee recommended passage of the |religious work. |

| | |law without changing the term in light of a | |

| | |deadline and “believing that the bill in its | |

| | |present [final] form will be construed as including| |

| | |only those whose labor or service is manual…” [Note| |

| | |that extrinsic legislative material was generally | |

| | |not allowed to alter “plain” statutory meaning.] | |

|C04. Fishgold v. Sullivan Drydock & Repair Corp., |[Hand] (Formalist/Textualist): The dictionary |[also Hand majority] | |

|2d., 707: A federal statute provided that a person |definition of “discharge” denotes a permanent |(Purposivist – Imaginative Reconstruction): When | |

|who had left private employment for U.S. military |termination of employment, rather than the |Congress passed the Act in 1940, service was | |

|service must be restored to their previous position|temporary termination denoted by “layoff.” |limited to one year and the U.S. was still at | |

|upon return from service “and shall not be | |peace. “Against that background it is not likely | |

|discharged from such position without cause within | |that a proposal would then have been accepted which| |

|one year after such restoration.” Fishgold charged | |gave industrial priority ... to unmarried men – for| |

|that his employer violated this law after it laid | |the most part under thirty – over men in the | |

|him off within a year of his return to work after | |thirties, forties or fifties, who had wives and | |

|serving in the army. J for D. | |children dependent upon them.” | |

|C05. U.S. v. Locke, U.S. (1985), 728: Fed Land |[Marshall] (Formalist/Textualist): “[W]ith respect |Dissent [Stevens, joined by Brennan] | |

|Policy & Mgt Act (FLPMA) required mining |to filing deadlines a literal reading of Congress’ |(Intentionalist): FLPMA had obvious drafting errors| |

|claimholders to file documents with Bureau of Land |words is generally the only proper reading…” |and Congress likely made a mistake re: the | |

|Mgt. (BLM) “prior to 12/31.” Locke, whose family |“[T]he fact that Congress might have acted with |deadline. The BLM apparently misunderstood the | |

|had been mining for decades prior to the FLPMA’s |greater clarity or foresight does not give courts |deadline as well, so P’s mistake was reasonable | |

|passage in 1982, filed on 12/31 and was denied. P |carte blanche to redraft statutes in an effort to |because the language was not plain. “Congress would| |

|sued BLM. District found for P, overturned the |achieve that which Congress is perceived to have |have chosen to adopt a construction of the statute | |

|denial, and held the statute unconstitutional, |failed to do.” Since the text is clear, no need to|that filing take place by the end of the calendar | |

|which sent the case directly to the Sup Ct. R’d. |look to legislative hxy or intent. |year if its attention had been focused on this | |

| | |precise issue.” | |

|C06. Green v. Bock Laundry, US (1989) 766: Green, a|[Stevens] (Intentionalist – Golden Rule): |Concur in result [Scalia] (Textualist & Golden |Dissent [Blackmun, joined by Brennan & Marshall] |

|former burglar, lost his arm using one of D’s |(a) A literal reading of the statute would lead to |Rule): If the statute is interpreted literally, it|(Pragmatic/Purposivist): “Sensible result”: |

|machines and sued under products liability claim. D|an odd result that “would deny a civil plaintiff |“produces an absurd, and perhaps unconstitutional, |“Applying the balancing provisions of Rule |

|sought to impeach P’s credibility using past crimes|the same right to impeach an adversary’s testimony |result.” This can be resolved by reading the word |609(a)(1) to all parties would have prevented the |

|evidence. FRE 609(a)(1) states that past crimes |that it grants to a civil defendant. ... [Thus,] |“criminal” in front of the word “defendant” in the |admission of unnecessary and inflammatory evidence |

|evidence is inadmissible if its probative value is |Rule 609(a)(1) ‘can’t mean what it says...’” |statute, which does not give the word “defendant” a|in this case and will prevent other similar unjust |

|outweighed by its prejudicial effect “to the |because civil litigants have the same due process |meaning “it simply will not bear” but does give it |results until Rule 609(a) is repaired, as it must |

|defendant.” Since Green was Plaintiff in this |rights under the 5th Am. |a meaning that is in accord with normal usage and |be.” |

|case, evidence of his past crimes could not be |(b) The legislative hxy indicates that Congress |understanding. |“The majority’s lengthy recounting of the |

|excluded for prejudicial effect, according to a |intended that only the defendant in a criminal case| |legislative history of Rule 609 demonstrates why |

|literal reading of the statute. Appls Ct. affirmed|should be protected from unfair prejudice by the | |almost all that history is entitled to very little |

|allowance of impeaching evidence, and Sup Ct. |balancing requirement set out in Rule 609(a)(1). | |weight. Because the proposed rule changed so often |

|affirmed. |(c) The Rule’s exclusion of civil witnesses from | |– and finally was enacted as a compromise ... much |

| |its weighing language was a deliberate and | |of the commentary ... concerns versions different |

|Holding: FRE 609(a)(1) should be interpreted to |mandatory command that impeachment of such | |from the Rule Congress finally enacted.” |

|mean that only the accused in a criminal case |witnesses be admitted into evidence, and that | | |

|should be protected from unfair prejudice by the |command overrides the judge’s general discretionary| | |

|balance set out in the rule. |authority under Rule 403 to balance probative value| | |

| |against prejudice. | | |

|C07. Zuni Public School District No. 89 v. Dept. of|[Breyer] (Eclectic): |Concur [Stevens] (Intention trumps Text): Per Holy |Dissent [Scalia with Roberts, Souter, and Thomas] |

|Education, U.S. (2007), 795: Impact Aid Act (20 USC|(1) Leg’ve Hxy: DOE’s usage is consistent with the |Trinity, even if text has a plain meaning, other |(Textualist): Breyer’s approach puts the cart |

|§7709) provides financial assistance to school |evolution of the statute from previous equalization|tools of statutory construction may provide “better|before the horse by analyzing leg’ve history before|

|districts adversely affected by a federal presence |laws. |evidence of congressional intent with respect to |the text. Furthermore, the statute has a plain |

|but includes exceptions to not interfere with |(2) Purpose: DOE’s usage is consistent with the |the precise point at issue. ... This happens to be |meaning – it refers to local educational agencies |

|programs that seek to equalize expenditures among |purpose of the disregard clause (“to exclude |a case in which the legislative history is |(LEAs) whose expenditures are above and below the |

|school districts. The statute provides a formula |‘outlier’ districts from the calculation”), and the|pellucidly [(obviously)] clear and the statutory |relevant percentiles, but the text does not refer |

|for the Secretary of Education to determine if a |DOE offered an explanation for why it did not use |text is difficult to fathom.” |to student populations (contrary to DOE’s |

|state program qualifies under the exception by |the alternative method. | |regulations). |

|comparing the difference between the district with |(3) Textualist: DOE’s usage was not inconsistent |[Alito and Kennedy] Concurring in opinion: Agreed | |

|the highest per-pupil expenditure and the district |with the statutory language, which was ambiguous in|with the outcome but expressed that Breyer’s order | |

|with the lowest per-pupil expenditure, disregarding|light of dictionary research and the lack of |of analysis above should not become the usual or | |

|districts with per-pupil expenditures “above the |experts’ arguments that the language is precise. |“systemic” approach. | |

|95th percentile or below the 5th percentile of such| | | |

|expenditures in the State.” Agency regulations | | | |

|issued 30 years ago interpreted the formula in one | | | |

|way, but school districts disputed that | | | |

|interpretation in this case. Ct. found in favor of| | | |

|DOE. | | | |

|C08. United States v. Marshall, 7th Cir. (aff’d |[Easterbrook] (Textualist): By comparing how the |Dissent [Cummings, Bauer, Wood, Cudahy, & Posner] |Dissent [Posner et al.] (Pragmatic/Golden Rule): If|

|U.S.) (1991), 801: Marshall et al. were convicted |same language is used in regard to other drugs, the|(Intentionalist): A textualist reading defies the |punishments depend upon the medium, the punishments|

|for LSD distribution. Their sentences hinged upon |weight is determined by the gross weight of a |intention of Congress. Based upon ordinary |are arbitrary. “[A] quart of orange juice |

|the question of whether the statute (21 USC §841) |“mixture or substance” incorporating the pure drug.|dictionary definitions and a 1988 Sentencing |containing one dose of LSD is not more, in any |

|excludes the weight of the carrier medium (paper) |“Ordinary parlance” and U.S. v. Rose (7th) indicate|Commission publication, a D.C. case held that the |relevant sense, than a pint of juice containing the|

|in regard to mandatory minimum sentences. 7th Cir.|that LSD and paper are a mixture. Regarding |paper carrier was not a mixture or substance within|same one dose, and it would be loony to punish the |

|aff’d lower ruling that the paper carrier’s weight |subsequent leg’ve “history”: “ongoing debates do |the meaning of the statute. U.S. v. Healey. |purveyor of the quart more heavily than the |

|should be included in the weight for sentencing. |not represent the views of Congress.” |Subsequent amendments to the sentencing guidelines,|purveyor of the pint. ... [Under the majority’s |

| | |pending approval by Congress, held that the paper’s|interpretation] a person who sold one does of LSD |

| |[The Supreme Court (sub nom. Chapman v. U.S.) |weight should not be included in the weight. |might be subject to the ten-year mandatory minimum |

| |[Rehnquist], relying upon a dictionary definition | |sentence while a dealer who sold 199,999 doses in |

| |of “mixture,” affirmed the majority’s textualist | |pure form would be subject only to the five-year |

| |conclusion.] | |minimum.” |

|C09. Brogan v. U.S., US (1998), CP28: As a union |[Scalia] (Textualist): Contrary to the apparent |Concur in result [Ginsburg and Souter], but express|Dissent [Stevens and Breyer] (Intentionalist): “It|

|officer, Brogan took a bribe. When asked about it |Purposivism of U.S. v. Gilliland, “it is not, and |concerns about the potential for prosecutorial |is not at all unusual for this Court to conclude |

|by the FBI, he denied taking the bribe. Issue: Is |cannot be, our practice to restrict the unqualified|abuse due to the ability to “manufacture crimes” or|that the literal text of a criminal statute is |

|an “exculpatory no” (falsely denying culpability |language of a statute to the particular evil that |“generate felonies, crimes of a kind that only a |broader than the coverage intended by Congress … |

|for wrongdoing) to a federal agent an exception to |Congress was trying to remedy – even assuming that |Government officer could prompt” – e.g., by asking |Although the text of § 1001, read literally, makes |

|the False Statements Act, 18 USC § 1001 (which |it is possible to identify that evil from something|questions of people who are ignorant of the law |it a crime for an undercover narcotics agent to |

|makes it illegal to make “any false, fictitious or |other than the text of the statute itself.” |against making false statements. In Brogan’s case,|make a false statement to a drug peddler, I am |

|fraudulent statements or representations” to a | |the investigators made an unannounced visit to |confident that Congress did not intend any such |

|government official or agency during an |[In line with Ginsburg’s and Souter’s concerns, |Brogan. Only after questioning him did they inform|result. … Even if that were not clear, I believe |

|investigation)? Sup Ct says No. “Because the |Martha Stewart was convicted for lying to an |him that they had information contradicting his |the Court should show greater respect for the |

|plain language of § 1001 admits of no exception for|officer during an investigation.] |denial of wrongdoing and that lying to federal |virtually uniform understanding of the bench and |

|an ‘exculpatory no,’ we affirm…” | |agents is a crime. (Purposivism/Intentionalism): |the bar that persisted for decades with … the |

| | |Furthermore, leg’ve hxy indicates that the purpose |approval of this Court as well as the Department of|

| | |of § 1001 “’was to protect the Gov’t from the |Justice … as Sir Edward Coke phrased it, ‘… |

| | |affirmative, aggressive and voluntary actions of |communis opinio [(a widely-held belief)] is of good|

| | |persons who take the initiative; and to protect the|authoritie in law.’” Scalia’s response: Common |

| | |Gov’t from being the victim of some positive |belief may be in error. |

| | |statement which has the tendency and effect of | |

| | |perverting normal and proper governmental | |

| | |activities and functions.’” | |

|C10. Li v. Yellow Cab of Calif., Calif. (1975), |[Sullivan] (Purposivist/ Intentionalism, DSI): |“[W]e do not believe that the general language of |Dissent [Clark] (Intentionalism) (cf. to Ginsburg |

|737: Calif. Civil Code § 1714 defined liability for|Although § 1714 originally codified the rule of |section 1714 dealing with defensive considerations |in Brogan): “The majority’s altering the meaning of|

|negligence that caused harm to another but excepted|contributory negligence because the legislature was|should be construed so as to stifle the orderly |section 1714, notwithstanding the original intent |

|the perpetrator from liability “so far as the |limited by the common law resources available |evolution of such considerations in light of |of the framers and the century-old judicial |

|[injured] has, willfuly or by want of ordinary |(since a code is essentially a legislative |emerging techniques and concepts.” (similar to |interpretation of the statute, represents no less |

|care, brought the injury upon himself.” |enactment of the common law of the time), the |Imaginative Reconstruction of Intentionalism – like|than amendment by judicial fiat.” Although society|

|Historically, the Calif. Supreme Court interpreted |statute should be reinterpreted to codify the more |saying, “Based upon an understanding of what |has changed, the proper process to update the |

|this statute as a codification of the doctrine of |recently developed rule of comparative negligence |Congress was trying to accomplish, they would have |statute is through legislative, not judicial, |

|contributory negligence, which bars recovery to a |(where the plaintiff’s recovery is reduced |enacted the technique of comparative negligence if |amendment. |

|tort plaintiff whose own negligence contributed in |according to her negligence but not barred |it was available at the time.”) | |

|any way to her injury. |completely). The text allows for this | | |

| |interpretation. | | |

|C10½. FISA/NSA wiretapping case (demonstrating the | (2) Repeals by implication, the effect of the |(6) FISA specifically repealed the provision of the|(7) When FISA was enacted, DOJ agreed that Congress|

|use of standards of statutory interpretation): |DOJ’s broad AUMF interpretation, are disfavored in |previous federal wire-tapping law that protected |has the authority under its Article I powers to |

|Letter from Scholars to Congressional Leadership in|the law (statute-based, general canon); and |the constitutional power of the President from |regulate domestic wiretapping by federal agencies |

|Response to the Justice Dept letter of 12/22/05 |(3) Members of Congress advised the Attorney |limitation, and Congress “concluded that ‘even if |and could require judicial approval of foreign |

|(1187) – The AUMF did not override the FISA and |General that legislation amending the FISA to allow|the President has the inherent authority in the |intelligence surveillance. |

|authorize warrantless domestic wire-tapping |this program would not be feasible; |absence of legislation to authorize warrantless | |

|because: |(4) FISA purports to be the “exclusive means” by |electronic surveillance for foreign intelligence | |

|(1) The statute specifically addressing the issue |which electronic surveillance may be conducted; |purposes, Congress has the power to regulate the | |

|(FISA) governs the more generally phrased law |(5) FISA provides that even a declaration of war |conduct of such surveillance by legislating a | |

|(AUMF), “under accepted principles of statutory |authorizes such spying only for a fifteen-day |reasonable procedure, which then becomes the | |

|interpretation”; |period; |exclusive means by which such surveillance can be | |

| | |conducted.’ HR Rep. No. 95-1282 (1978)”; | |

|C11. Muscarello v. United States, U.S. (1998), 888:|[Breyer] (1) (Textualist): Ordinary meaning |[Breyer, cont.] (2) (Purposivist): “It is difficult|Dissent [Ginsburg, Rehnquist, Scalia, and Souter]: |

|D unlawfully sold marijuana from his truck and |supports conviction. The primary, or basic, |to say that, considered as a class, those who |(1) (Strict Textualist) – |

|confessed that he “carried” a gun in the truck’s |dictionary definition of “carry” is to “convey by |prepare, say, to sell drugs by placing guns in |(a) Dictionaries have various defintions of |

|locked glove compartment. Did he violate a |vehicle.” A random sampling of newspapers |their cars are less dangerous, or less deserving of|“carries.” The use of the word depends upon |

|provision of a statute that prohibited “us[ing] or |indicates that phrases like “carrying weapons” are |punishment, than those who carry handguns on their |context, and “[a]t issue here is not ‘carries’ at |

|carr[ying] a firearm … in relation to any crime of |used to convey this type of meaning. To hold a |person.” |large but ‘carries a firearm.’” |

|violence or drug trafficking crime…”? Yes. |weapon on one’s person is a secondary, special |(3) (Intentionalist) – Legislative history includes|(b) If “perhaps more than one third” of |

|(Conviction affirmed.) |meaning of “carry,” and “there is no linguistic |testimony that the term “carry” could refer to |randomnly-sampled newspaper usages supported the |

| |reason to think Congress intended to limit the word|conveyance of a gun in a vehicle; yet Congress did |majority’s usage, what about the other two-thirds? |

| |‘carries’ in the statute to any of these special |not change the language to limit the term to the |(c) (Whole Act Canon) Despite the majority’s |

| |definitions.” Whole Act Canon: Looking at the |special definition. And at least one member of |presumption of consistent usage, other provisions |

| |context of the statute, “firearm” includes bombs, |Congress supported this law with the intent of |of the statute indicate that “Congress sometimes |

| |grenades, etc.; it would be curious for Congress to|providing incentives for criminals to “leave their |employed ‘transports’ when, according to the Court,|

| |only ban such weapons only if on a D’s body, since |guns at home.” |‘carries’ was the right word to use.” |

| |they are too large to be carried on the body. |(4) In regard to the Dissent’s use of the Rule of |(d) “Section 924(c)(1), as the foregoing discussion|

| |Canon against Surplusage: Despite D’s argument that|Lenity, it is not applicable to this case b/c the |details, is not decisively clear one way or |

| |such an interpretation conflates the meaning of |text is not ambiguous (894’2). |another. The sharp division in the Court on the |

| |“carry” and “transport,” the statute uses | |proper reading of the measure confirms, ‘[a]t the |

| |“transport” to mean something different, as | |very least, ... that the issue is subject to some |

| |indicated by its different dictionary definition. | |doubt.” |

| | | |(2) (Constitutional Canon) - Rule of lenity: When |

| | | |ambiguity exists in a criminal statute, “doubts are|

| | | |resolved in favor of the defendant.” |

|C12. Leo Sheep Co. v. U.S., U.S. (1979), 973: In |[Rehnquist] (1) (Textualist) – Expressio unius: The|[Rehnquist cont.] (2) (Purposivist – Imaginative |Notes: Contrast with a DSI - Dynamic Statutory |

|1860, the Gov’t granted plots of land to railroads.|Act contained specific exceptions/reservations but |Reconstruction): Unlike a private party, the Gov’t |Interpretation analysis (730) – While the |

|Due to concerns of constitutionality, Congress only|not the one sought by the public in this case. “It |does not need an easement b/c it has the power of |majority’s reasoning defers to the deal that was |

|granted alternating plots and maintained federal |is possible that Congress gave the problem of |eminent domain; thus, the doctrine of easement by |struck 125 years ago between the railroad companies|

|ownership of other plots such that a “checkerboard”|access little thought; but it is at least as likely|necessity is inapplicable. [Rehnquist seems to be |and the government to achieve a trans-continental |

|of ownership resulted. Historically, people had |that the thought which was given focused on |viewing the law as a “contract” between the gov’t |railroad, a strict application of the historical |

|accessed a public reservoir by passing on a road |negotiation, reciprocity considerations, and the |and individuals, and the court is enforcing a |intent is not as relevant under the current |

|through land that Sheep had acquired from the RR, |power of eminent domain as obvious devices for |contract according to the terms of the deal.] |circumstances. Not only has the social context |

|but Sheep sought to quiet title, thereby closing |ameliorating disputes.” | |changed, but laws have changed as well – for |

|the road. J for Sheep (P). R’d on appeal b/c “when | | |example, a whole body of environmental and |

|Congress granted land to the Un. Pac. R.R., it | | |conservationist law has been enacted since the land|

|implicitly reserved an easement…”. R’d (for P). | | |grant acts (981). |

|C13. Blanchard v. Bergeron, U.S. (1989), 983: |[White] (Intentionalist): Considers leg’ve hxy, |[White cont.] (Purposivist) – “[T]he purpose of |Concur in result [Scalia] (Textualist) - against |

|“Attorney’s gotta get paid!” Blanchard won a civil |specifically committee reports, that refer to lower|§1988 was to make sure that competent counsel was |leg’ve hxy: “That the Court [majority] should refer|

|rights case and then received $7500 for attorney’s |court decisions that “correctly applied” a |available to civil rights plaintiffs ... If a |to the citation of three District Court cases in a |

|fees under the 1976 Civil Rights Attorney’s Fee |12-factor test from a 5th Cir. case decided before |contingent-fee agreement were to govern as a strict|document issued by a single committee of a single |

|Award Act, 42 USC §1988. Appeals Ct ruled that the |the passage of §1988. Under that test, a contracted|limitation on the award of attorney’s fees, an |house as the action of Congress displays the level |

|atty’s fees were capped under §1988 at $4000 due to|fee is only one of the twelve factors to be |undesirable emphasis might be placed on the |of unreality that our unrestrained use of |

|an agreed-upon contingency percentage. §1988 |considered and is not dispositive. Thus, “a |importance of the recovery of damages in civil |legislative history has attained.” Most of the |

|provides that the court, “in its discretion, may |contingent-fee contract does not impose an |rights litigation. The intention of Congress was to|members of Congress who voted on the law did not |

|allow ... a reasonable attorney’s fee ...” R’d. |automatic ceiling on an award of attorney’s fees |encourage successful civil rights litigation, not |read the committee report or the District Ct |

| |and to hold otherwise would be inconsistent with |to create a special incentive to prove damages and |opinions cited. Most likely, the case references |

|[Scalia’s concurrence found that the fee was |the statute and its policy and purpose.” |shortchange efforts to seek effective injunctive or|were inserted by a committee staff member, possibly|

|“reasonable,” so fit within the meaning of the | |declaratory relief.” |at the suggestion of a lawyer-lobbyist, to |

|statute.] | | |influence judicial interpretation rather than to |

| | | |inform Congresspersons of the bill’s meaning. |

|C14. In re Sinclair, 7th (1989), 991: A year after |[Easterbrook] (Textualist): Legislative hxy should |The Supreme Ct. has not been clear on this issue – |The committee report may be in error, or perhaps |

|the Sinclairs, family farmers, had filed Ch.11 |not trump the plain meaning of the text (arguably |sometimes saying that leg’ve hxy should not be |the statute is. But “Congress has done nothing to |

|bankruptcy, Congress enacted Ch.12, which provides |contrary to [Stevens] in Zuni): The Sinclairs’ |consulted when the text has a plain meaning, |change § 302(c)(1), implying that the statement in |

|a more protective type of bankruptcy for farmers. |argument rests upon a Conference Committee report, |sometimes saying that hxy should be consulted |the committee report may have been the error” |

|The statute clearly states that Ch.11 cannot be |which has not been formally approved (by the |despite the appearance of a clear meaning, and |(995’3a). (But see 996n2 for an argument that the |

|converted to Ch.12. Leg’ve hxy indicates that a |process of bicameralism and presentment). |sometimes “implying that once in a blue moon the |statute was in error. Also, consider that the |

|judge could exercise discretion to convert a Ch.11 |“Statutes are law, not evidence of law” (993’3a). |legislative history trumps the statute...” |Legislature did not attempt to change the text b/c |

|to Ch.12, though. Bankruptcy judge declined the |Interpretation should look to history to discern |(992’2y). |they presumed the report would help to interpret |

|Sinclairs’ request to convert. A’d. |“original meaning” (as the text would have been | |their intent.) |

| |understood in the historical context), not | | |

|Easterbrook’s Rule about Leg’ve Hxy: |“original intent.” | |[P.C. analysis: Farmers have a disproportionate |

|(1) Only reference legislative history if the | | |influence in the Senate b/c Senators from farming |

|statutory text does not have a clear meaning. | | |states, with relatively small populations, have the|

|(2) History should only inform a meaning that the | | |same influence as Senators from non-farming states |

|text will hold but should not contradict the text. | | |with greater populations.] |

|C15. Montana Wilderness Ass’n v. U.S. Forest Serv. |[Norris] (Textualist): The ambiguous legislative |(5) “The Dog that Didn’t Bark” Canon: In all the |(8) Ds also presented as support a reply letter |

|[I], 9th (1981), 1027: Burlington Northern acquired|history is not sufficient to overcome a more |numerous discussions of the bill on the Senate |from the Attorney Gen. to the chairmen of the |

|timber land within the Gallatin Nt’l Forest from |natural reading of the actual language of the |floor, no mention is made of the relatively |subcommittee responsible for the bill. Rather than|

|Burlington’s predecessor, the Northern Pacific |statute, which is that §1323 of The Alaska Nt’l |significant change in the law that D’s |viewing the AG’s letter as confirmation of the |

|Railroad, which had obtained the land under the |Interest Lands Act of 1980, applies only to land in|interpretation of §1323 would represent. “We find |chairmen’s interpretation that §1323 applied |

|Northern Pacific Land Grant of 1864. Burlington |Alaska. |it difficult to believe that the Senate would have |nationwide, the court concluded that the AG |

|acquired in 1979 a permit from the U.S. Forest |(1) The text is unclear, so the court looks to |contemplated and effected a profound change in the |“assumed without analysis that the representatives’|

|Serv. to construct roads over the Nt’l Forest in |other indicia (1028’7). |law of access across government land for the entire|interpretation of § 1323 was correct, and proceeded|

|order to access Burlington’s totally-enclosed |(2) Whole Act Canon (called “in pari material” even|country without ever mentioning it.” |to discuss in detail the effect of such a change in|

|timber lands, but environmentalists and a |though comparing two sections of the same statute):|(6) House records indicate an ambiguous |the law.” |

|neighboring property owner sought an injunction |Usage of the term in other parts of the statute and|understanding of §1323 as well. Some Rep’s |(9) Ds’ proposed interpretation would repeal |

|against the construction. Partial summ jdgmnt |the parallel structures of §§ 1323(a) and 1323(b) |apparently understood it to apply nationwide. |another statute by implication, which is generally |

|granted B an easement by necessity, or |indicate the scope is limited to Alaska. |(7) Rejected Proposal Rule: On the other hand, Rep.|disfavored, unless the legislature has expressed |

|alternatively, an implied easement under the North.|(3) Ds argued that Sen. Melcher’s statements on the|Udall introduced an amendment to clarify that the |otherwise. |

|Pac. Land Grant of 1864, to access its enclosed |floor reflect Congress’ intent for §1323 to apply |bill only applied to Alaska. After the amendment | |

|timber lands. R’d and remanded. |nationwide, but these comments were inserted after |was not accepted, Udall inserted into the record |In short, the leg’ve hxy was ambiguous, so the |

| |Congress had passed the bill. |his view that the bill did not apply nationwide. |court relies upon the text, which appears to apply |

| |(4) The committee report is ambiguous to the issue.| |only to Alaska. |

|C16. Montana Wilderness Ass’n v. U.S. Forest Serv. |On reconsideration of the same case with new |[Norris] (now more Intentionalist): “Three weeks |The conferees included Reps. Udall and Sieberling |

|[II], 9th (1981), 1036: Burlington does have an |evidence, the court concluded that §1323 of the Act|after Congress passed the Alaska Lands Act, a |and Sen. Melcher (all involved in the legislative |

|assured right of access to its enclosed land. |does include nationwide land, not just land in |House-Senate Conference Committee considering the |history considered in the first case). “The |

| |Alaska, even though this interpretation seems to |Colorado Wilderness Act interpreted § 1323 of the |participation of Rep. Udall is particularly |

| |repeal by implication decades of hxy that private |Alaska Lands Act as applying nation-wide…” |noteworthy since he was the one congressman to |

| |citizens cannot build over wilderness. | |proclaim ... that § 1323 applied only to Alaska.” |

|C17. Bob Jones Univ. v. U.S., US (1983), 1050: |[Burger] (Purposivist): |(2) “Dog that didn’t bark”: Congress has been |Dissent [Rehnquist] (Textualist): IRC §501(c)(3) |

|Following a D.C. Appellate Ct. rulings in 1970 and |(1) “It is a well-established canon of statutory |“acutely aware” of the IRS rulings of ’70 and ’71 |provides tax-exempt status for organizations that |

|1971, the IRS embraced a common-law “charity” |construction that a court should go beyond the |but has not modified the rulings. |are “organized and operated exclusively for |

|concept and ruled that tax-exempt organization |literal language of a statute if reliance on that |(3) Acquiescence Rule: Thirteen proposed amendments|religious, charitable, ... or educational |

|cannot engage in activity “contrary to settled |language would defeat the plain purpose of the |to overturn the rulings have been defeated, while |purposes...” The disjunctive “or” indicates that |

|public policy,” such as racial discrimination. |statute.” (ala Brennan in Weber or Brewer in Holy |Congress has passed other amendments to the tax |educational institutions do not have to be |

|Subsequently, the IRS revoked BJU’s tax-exempt |Trinity). “[A]n institution seeking tax-exempt |code, including an amendment to §501(c)(3). |“charitable” as well. The term “charitable |

|status b/c the school discriminated as to |status must serve a public purpose and not be |(4) Congress even enacted §501(i), which explicitly|contribution” of §170 is defined specifically by |

|admissions on the basis of race. |contrary to established public policy.” “The |denies tax-exempt status to social clubs which |statute and, therefore, does not lend support to |

| |institution’s purpose must not ... undermine any |discriminate on the basis of race, color, or |the majority’s argument. Regarding §501(i), |

| |public benefit that might otherwise be conferred.” |religion. [Rehnquist uses this for the opposite |“Congress showed that when it wants to add a |

| |The parallel §170 explicitly included the |argument of expressio unius.] |requirement prohibiting racial discrimination ... |

| |“charitable” concept. | |it is fully aware of how to do it.” The dissent |

| | | |cites precedent that “congressional inaction is of |

| | | |virtually no weight in determining legislative |

| | | |intent...” “[T]his Court should not legislate for |

| | | |Congress.” |

|C18. Cartledge v. Miller, SDNY (1978), 1066: George|[Weinfeld] (Purposivist): Although ERISA protected |.” “’[T]he usual purpose of exemptions [precluding |In pari materia: Judicial interpretations of |

|Cozart failed to make alimony and child support |pensions b/c people rely on their pensions to live |assignment of benefits] is to relieve the person |exemption provisions in other, equally-rigid |

|payments, and his ERISA pension was attached to pay|day-to-day, ERISA was not passed to “insulate a |exempted from the pressure of claims hostile to his|federal statutes – such as the Social Security Act,|

|the debt. Arguing that ERISA precluded the |breadwinner from the valid support claims of spouse|dependents’ essential needs as well as his own |the Veterans Benefits Act, and the Railway |

|assignment of benefits, the pension plan committee |and offspring.” |personal ones, not to relieve him of familial |Retirement Act – lend support that Congress did not|

|members sued for injunctive relief from the family |(But cf. Ridgeway v. Ridgeway, US (1981), 1075’6). |obligations and destroy what may be the family’s |intend to preclude enforcement of family support |

|court judge who issued the attachment order. A’d |[P.S. Congress amended ERISA to affirm this case |last and only security, short of public relief’” |obligations. [P.C. Counter – Each bill probably |

|attachment. (Not appealed). |and, presumably, to extend it beyond the district |(quoting Schlaefer v. Schlaefer). |represents a compromise among igs at a specific |

| |court.] | |time and within a specific historical context.] |

|C19. Lorillard v. Pons, US (1978), 1070: Does 7th |[Marshall]: (Intentionalist): Congress primarily |Similar to the reenactment rule, the Court |ADEA’s authorization for remedies of “legal or |

|Am right to a jury trial apply? [Not addressed b/c |modeled ADEA after the remedial scheme of FLSA |concludes that when “Congress adopts a new law |equitable relief” indicates an intent to provide |

|statute could be construed to avoid constitutional |(Fair Labor Standards Act), which courts have |incorporating sections of a prior law, Congress |for a right to jury trial. |

|problem.] Does the Age Discrimination and |unanimously interpreted to allow a right to jury |normally can be presumed to have had knowledge of | |

|Employment Act of 1967 (ADEA) provide a right to |trial. The difference is that ADEA requires an |the interpretation given to the incorporated law, |Although ADEA is similar to Title VII of the Civil |

|jury trial in private civil actions for lost wages?|individual to first notify the Sec’y of Labor, who |at least insofar as it affects the new statute” |Rights Act of 1964, the remedial and procedural |

|Yes. |may bring an action; if the Sec’y does not, then |(1071’3z). |provisions are significantly different. Because |

| |the individual can exercise the private right. | |Congress didn’t just copy other statutes, it |

| | | |indicates deliberation. |

|C20. Morton v Mancari, US (1974), 1082: Non-Indian |[Blackmun] (Purposivist – Whole Code canon): |(2) Post-enactment Leg’ve Hxy: Just three months |(4) Canon against implicit repeal: “In the absence |

|employees of the BIA sued BIA b/c the Indian |(1) The Civil Rights Act of 1964 affirmatively |after passage of the EEOA, Congress enacted two new|of some affirmative showing of an intention to |

|Reorganization Act of 1934 allowed the BIA to give |exempted preferential hiring practices of Indians |laws that provided for preferential hiring of |repeal, the only permissible justification for |

|preference to qualified Indians over non-Indians in|in private employment, indicating that Congress did|Indians. [Counter: exclusio unius again.] |repeal by implication is when the earlier and later|

|regard to appointment to certain jobs. Issue: Did |not understand such preferences to be the type of | |statutes are irreconcilable.” In this case, the |

|the 1972 Equal Employment Opportunity Act, which |discrimination it was addressing. “In extending |(3) “Indian preferences, for many years, have been |history and purpose of the Indian Reorganization |

|prohibits discrimination for federal public |the general anti-discrimination machinery to |treated as exceptions to Executive Orders |Act is not irreconcilable with a general rule |

|employment, repeal by implication the IRA? No (R’d |federal employment” 8 yrs later with the EEOA, |forbidding Government employment discrimination.” |prohibiting employment discrimination on the basis |

|lower court). |“[i]t would be anomalous to conclude Congress | |of race. |

| |intended to eliminate the longstanding statutory | | |

| |preferences in BIA employment.” [Counter: exclusio| | |

| |unius.] | | |

|C21. Flood v. Kuhn, US (1972), 632: Prof. baseball |[Blackmun]: “With its reserve system enjoying |“If there is any inconsistency or illogic in all |Dissent [Douglas & Brennan]: “The unbroken silence |

|player Curt Flood was traded against his wishes to |exemption from the federal antitrust laws, baseball|this, it is an inconsistency and illogic of long |of Congress should not prevent us from correcting |

|the Phillies, and he sued Commissioner Kuhn and MLB|is, in a very distinct sense, an exception and an |standing that is to be remedied by Congress and not|our own mistakes.” |

|for injunctive relief from a reserve clause which |anomaly. ... It is an aberration that has been with|by this Court.” |Dissent [Marshall & Brennan]: “[T]he Court may have|

|prevented Flood from negotiating as a free agent. |us now for half a century, one heretofore deemed | |read too much into the legislative inaction.” “We |

|The Court upheld Fed. Baseball Club v. Nat’l League|fully entitled to the benefit of stare decisis...” |The Court also cites Congressional inaction, |do not lightly overrule our prior constructions of |

|(1922), which exempted MLB from anti-trust |[Policy issues: reliance & institutional |particularly rejected proposals to remedy the |federal statutes, but when our errors deny |

|regulation. |competency. Dissent: Clearly erroneous decisions |situation, as further support for upholding |substantial federal rights ... we must admit our |

| |should not be maintained simply b/c Congress could |precedent. |error and correct it.” |

| |fix it.] | | |

|C22. A.L.A. Schechter Poultry Corp. v. U.S., US |[Hughes]: |Concur [Cardozo]: | |

|(1935): |(1) Too broad – the statute provided no |Rule of law – The statute “sets up a comprehensive | |

|Under the Nat’l Industrial Recovery Act of 1935, a |“intelligible principle” to guide the agency b/c |body of rules . . . without reference to standards,| |

|NY poultry trade group developed fair competition |“fair competition” is too broad a term. |ethical or commercial, that could be known or | |

|codes which the agency adopted. The Schechters, |(2) Congress provided no administrative process to |predicted in advance of its adoption.” For | |

|who operated a small chicken distribution company, |cabin the agency’s discretion. |example, one of the rules criminalizes “an | |

|were convicted of violating the rules by allowing |(3) Inappropriate delegation essentially to private|established practice, not unethical or oppressive, | |

|people to choose their own chickens. (Note: There |parties. |the practice of selective buying...” | |

|may have been an issue of religious issue here | | | |

|too—these chickens were kosher.) Ds appealed. The| | | |

|Court held that the delegation was too broad. | | | |

|C23. “Benzene Case” [Industrial Union Dept., |Plurality [Stevens]: |[The Agency’s interpretation, which did not view §3| |

|AFL-CIO v. Am. Petroleum Institute], US (1980), CP |(1) The standard was based on assumptions, not the |as providing a threshold question that had to be |(2) guarantee that, when Congress delegates |

|128: Facts: The Occupational Safety and Health Act |scientific evidence required by the statute. All |satisfied, provided too much power to the Agency.] |authority, it provides an “intelligible principle” |

|of 1970 created OSHA to protect against safety and |the evidence related to Benzene at a level of | |to guide the exercise of delegated authority, and |

|health hazards in the workplace. OSHA §6(b)(5) |10ppm, not 1ppm. |Concurrence [Powell] discusses cost-benefit |(3) provide courts with ascertainable standards by |

|provided that, “in promulgating standards dealing |(2) Nondelegation canon: The statute should not be |analysis issue. |which to test exercises of delegated authority. |

|with toxic materials or harmful physical agents[, |interpreted to grant OSHA power to regulate all | | |

|the Secretary of OSHA] ...shall set the standard |health and safety concerns. “In the absence of a |Concur in result [Rehnquist]: The unconstitutional|Dissent [Marshall et al.]: |

|which most adequately assures, to the extent |clear mandate in the Act, it is unreasonable to |portions of the statute should be invalidated. The|(1) The statute seems to clearly provide an |

|feasible, on the basis of the best available |assume that Congress intended to give the Secretary|text and legislative history indicate that the |intelligible principle that limits the agency’s |

|evidence...” the safety of workers. OSHA set the |the unprecedented power over American industry that|so-called feasibility standard “is a legislative |authority. |

|acceptable level of Benzene at 1 ppm after |would result from the Government’s view of §§ 3(8) |mirage, appearing to some Members but not to |(2) Institutional Competency – “The plurality’s |

|interpreting “feasible,” in regard to carcinogens |and 6(b)(5), couple with OSHA’s cancer policy.” |others, and assuming any form desired by the |‘threshold finding’ requirement is nowhere to be |

|(which presumably are not safe at any level), to |Rather, §3 requires OSHA to make a threshold |beholder.” It could mean a CBA, or it could not. |found in the Act and is antithetical to its basic |

|mean the lowest level (1) technologically-feasible |determination that a substance poses a significant |Per Rascoff, Rehnquist says the solution is for |purpose.” In other words, the plurality has |

|and (2) economically feasible so as not to bankrupt|risk. Then §6 applies, requiring OSHA to conduct |Congress to make the hard decision about whether |legislated its own standard. “[T]he responsibility|

|the regulated industry. On pre-enforcement review,|research to determine a technologically-feasible |CBA, eliminating all risks, or something else is |to scrutinize federal administrative action does |

|the regulation was held invalid. A’d. (Remand to |standard that won’t bankrupt the industry. |the appropriate std. |not authorize the Court to strike its own balance |

|OSHA to make a determination non inconsistent with | |Thus, n.d. doctrine serves to: |between the costs and benefits of occupational |

|the holding.) | |(1) force Congress to make the hard choices |safety standards.” That is a task for the |

| | |involving public policy, |“representative branches of government.” |

|C24. American Trucking Ass’ns., Inc. v. EPA, D.C. |Issue: Was the EPA’s 1997 ruling on the levels for |Whitman v. Am. Trucking Ass’ns., Inc., US (2001), |Concur [Thomas]: The Constitution does not speak of|

|(1999), CP148: |particulate matter (PM) and ozone appropriate? |CP150: |an “intelligible principle.” Rather, it vests all |

|The Clean Air Act requires the EPA to promulgate |Holding: The EPA’s construction of the CAA |[Scalia]: Reverses D.C. Court b/c the statute does |legislative power in the Congress. |

|and revise national ambient air quality standards |represents an unconstitutional delegation b/c |articulate an intelligible principle. “Requisite” | |

|(NAAQS) for air pollutants identified by the EPA as|neither Congress nor the EPA articulated an |means “not too much, not too little.” Yes, it’s |Concur [Stevens and Souter]: The Court could either|

|meeting certain statutory criteria. The CAA |intelligible principle to restrict the agency’s |vague, but the Court has approved of vaguer |(1) frankly acknowledge that the delegated |

|requires the EPA to set, for each pollutant, a |authority. “Here it is though Congress commanded |standards. |authority is properly called “legislative” “but |

|“primary standard” – a concentration level |EPA to select ‘big guys,’ and EPA announced that it| |nevertheless conclude that the delegation is |

|“requisite to protect the public health” with an |would evaluate candidates based on height and |Note that an improper statutory delegation cannot |constitutional because adequately limited by the |

|“adequate margin of safety” – and a “secondary |weight, but revealed no cut-off point. ... The |be “cured” by an agency b/c that itself would be an|terms of the statute” or (2) pretend, “as the Court|

|standard” – a level “requisite to protect the |reasonable persons responds, ‘How tall? How |exercise of too much authority. |does,” that it is not legislative. |

|public welfare.” |heavy?’” | | |

|C25. Myers v. United States, U.S. (1926), CP160: |[Taft]: Although a literal reading of the statute | (2) Leg’ve hxy of the 1st Congress indicates |Dissent [McReynolds]: Since Congress created the |

|By order of the President, Myers was removed from |at issue would require Senate approval for hirings |removal power for Ex. offices was given solely to |office of postmaster, it can limit the President’s |

|his position as postmaster of the 1st class in |and firings, that would be an unconstitutional |the President. |power in regard to it; it has, in fact, done this |

|Oregon, and he sued for lost wages as a result of |limitation on the Executive’s inherent powers. |(3) (Functionalist): Congress may have just as much|in other cases. Also, the Constitution does not |

|improper removal. J for D. A’d. |(1) The text of the Constitution addresses |information as the Pres about a candidate for appt,|expressly give the Pres. removal power, but it |

| |hirings/appointments and it addresses removals upon|but the Pres is likely to have much more info re: |expressly delimits the Pres’ powers. |

|[“Unitary Executive” principle: The President has |impeachment and conviction for certain crimes. |removal. | |

|inherent power to remove executive officers without| | |Dissent [Brandeis]: Executive Acquiescence: |

|Congressional approval.] | | |Long-standing legislative practice in approving |

| | | |removals is tantamount to judicial approval, and |

| | | |the Pres has sought Senate approval in the past. |

|C26. Humphrey’s Executor v. U.S., US (1935), CP174:|Issues: (1) Does the FTCA’s stipulations that the |(2) Independence of quasi-legislative and | |

|President had appointed Humphrey to be a |Pres can fire Comm’rs for cause limit the |quasi-judicial agencies: Unlike a postmaster, which| |

|Commissioner on the FTC, which is an “independent |circumstances under which the Pres can remove them?|is an executive office, the FTC “is an | |

|agency” whose commission must include, by design, |(2) If so, is such a limitation constitutional? Yes|administrative body created by Congress to carry | |

|appointees from different political parties who are|and yes. |into effect legislative policies ... and to perform| |

|appointed for 7 years terms. FDR demanded that H | |other specified duties as a legislative or as a | |

|quit; H refused, so FDR fired him. H sued for lost|[Sutherland]: (1) The hardwired bipartisanship of |judicial aid.” | |

|wages. |the FTC, leg’ve reports, and the general purposes | | |

| |of the FTCA indicate Congressional intent that the | | |

| |FTC be independent of the Pres. | | |

|C27. Morrison v. Olson, US (1988), CP181: The |[Rehnquist]: |(2) In regard to precedent: “We undoubtedly did |Dissent [Scalia]: |

|Ethics in Government Act of 1978 created the office|(1) Although the Independent Counsel is clearly an |rely on the terms ‘quasi-legislative’ and |(1) Rule of law, not of men: The majority leaves no|

|of Independent Counsel to investigate and, when |executive officer, Congressional limitation of the |‘quasi-judicial’ to distinguish the officials |discernible standard for evaluating the |

|appropriate, prosecute certain high-ranking |President’s removal power is constitutional because|involved in Humphrey’s Executor and Wiener from |constitutionality of such statutes. |

|Government officials for violations of federal |the President’s need to exercise removal power is |those in Myers, but our present considered view is |(2) The statute deprives the President of all |

|criminal laws. The statute provided that the AG |not “so central to the functioning of the Executive|that the determination of whether the Constitution |control over the officer b/c, as pointed out in |

|could remove the IC for cause, or the IC could be |Branch as to require as a matter of constitutional |allows Congress to impose a ‘good cause’-type |Humphrey’s, the power to fire “for cause” is no |

|removed by impeachment and conviction. In 1983, |law that the counsel be terminable at will by the |restriction on the President’s power to remove an |power at all. |

|the AAG for OLC (Olson) testified before a |President. |official cannot be made to turn on whether or not |(3) Pragmatic concerns: (a) Although the AG can |

|Congressional committee, which later initiated the | |that official is classified as ‘purely executive.’ |decide not to investigate, s/he can only do so if |

|appointment of an IC to investigate whether Olson | |(3) (Functionalist): It would be absurd to give the|s/he is sure there is no reason to investigate |

|had provided false and misleading testimony. The | |President the power to fire the person that is |further, but w/o the ability to investigate prior |

|IC (Morrison) asked a grand jury to issue subpoenas| |tasked with investigating the President’s |to that, the AG cannot know there is no reason. (b)|

|on Olson, who then sought to quash on the grounds | |misconduct. |The IC exists solely to investigate one person. It|

|that the IC provisions of the EGA were | | |would be like a traffic cop choosing a particular |

|unconstitutional. J for D. R’d. R’d (upheld the | | |driver and waiting for him/her to break a law. (c) |

|statute). | | |Unlike normal prosecutor’s offices where |

| | | |investigations are prioritized, the IC has nothing |

| | | |else to do and nothing to stop him or her from |

| | | |dedicating unlimited resources to investigate. |

|C28. Commodity Futures Trading Commission [CFTC] v.|Summary: As in Morrison, the Court replaced a |[O’Connor]: |In this case, (a) Congress intended to create an |

|Schor, US (1986), CP280: Under the Commodity |formalistic distinction with a balancing test “with|(1) (Purposivist): The CFTCs claim of jxn is |inexpensive and expeditious alternative forum for |

|Exchange Act (CEA), Schor filed with the CFTC a |an eye to the practical effect that the |reasonable b/c it is in line with the purposes of |CEA claims, not allocate a broad jxn among federal |

|reparations claim against his broker, |congressional action will have on the |the CEA – “to provide an efficient and relatively |tribunals; (b) the nature of the claim is a |

|ContiCommodities. Before receiving notice of the |constitutionally assigned role of the federal |inexpensive forum” for resolution of trading |relatively limited CL claim; (c) the CEA limits the|

|claim, Conti filed in federal court a claim to |judiciary.” Although formalist rules “might lend a|disputes. |CFTC and leaves much power to Art III cts (e.g. |

|recover for a negative balance. C then dismissed |greater degree of coherence to this area of the |(2) (Purposivist – Pragmatic): When a party |CFTC orders can only be enforced by district ct |

|that claim and filed a counterclaim with the CFTC |law, they might also unduly constrict Congress’ |voluntarily waives his right to an Art. III |order, the orders are reviewed de novo, and ALJs |

|alleging fraud (a state tort action) by S. The |ability to take needed and innovative action |hearing, an ALJ proceeding by an independent agency|may not preside over jury trials or issue writs of |

|CFTC had promulgated a regulation that allowed |pursuant to its Article I powers.” Before Schor, |serves to protect the independence of the judicial |habeas corpus). |

|counterclaims “arising out of” the same transaction|courts distinguished between public claims - which |branch as well as to protect individuals from | |

|as the claim. ALJ for C, and S appealed, claiming |arose due to a statutory grant and which ALJs could|potentially-biased judges. |Dissent [Brennan] (Separation of Power): Would |

|ALJ adjudication violates Art. III b/c agency |adjudicate (if Congress creates a right, it can |(*) Test – Factors to Consider: |allow only specific vesting of judicial functions |

|performs adjudicatory role. |choose how to limit the right) – and private claims|(a) Mischief - “the concerns that drove Congress to|to exceptional categories based on “powers bestowed|

|- Issues: (1) Does the CEA empower the CFTC to hear|– which arose from CL and which could not be |depart from the requirements of Article III,” |on Congress by the Constitution or historical |

|counterclaims related to reparations claims? (2) If|adjudicated by ALJs. |(b) the nature of the right/claim, and |consensus”: territorial courts, courts-martial, and|

|so, is such a grant of authority constitutional? | |(c) the extent to which the ALJ “exercises the |courts that adjudicate certain public-rights claims|

|Holding: (1) Yes and (2) Yes. | |range of jxn and powers normally vested only in Art|(vs. private-right claims). Concern about the |

| | |III courts.” |gradual erosion of the core competence of the fed |

| | | |cts. Efficiency isn’t the only goal, and, in fact,|

| | | |the Constitution sacrifices some efficiency for |

| | | |protection against tyranny. |

|C29. Benslimane v. Gonzales, 7th (2005), CP294: |[Posner] (Pragmatic): “In effect, ...Benslimane has|The only rational explanation for the BIA’s |The regulation issued by the DOJ (Ashcroft) that |

|Benslimane, an alien married to a US citizen, had |been ordered removed b/c he failed to submit a |decision was punishment for B’s atty’s failure to |reduced the level of appellate review by the BIA |

|overstayed his visa, and the INS sought to deport |duplicate of the Form I-485 that had been filed six|file this form. The decision “flew in the face of |essentially just shifted the workload of reviewing |

|him. When B did not provide to the ILJ a |months earlier.” B’s attorney mistakenly believed |its own [precedent] as well as in the face of |ILJ decisions to the federal appellate courts. |

|relatively insignificant document, the ILJ ordered |he could not submit the form until another part of |Congress’s ‘intent [in enacting 8 U.S.C. § 1255] | |

|his deportation. The Board of Immigration Appeals |the process was decided. |that eligible aliens be able to adjust status | |

|(BIA) affirmed. Vacated. | |without having to leave the United States, ...”. | |

|C30. Londoner v. Denver, US (1908), CP307: |In this case, Ps filed written objections at stage | | |

|Background: In order to pave a street, the Denver |(iv) that the opportunities for comment (stages |[Moody]: Although due process does not require all |[In the context of taxation, a legislative body |

|Board of Public Works (BPW) was required by statute|(iii) and (iv)) were not sufficient to protect |the protections of a “strictly judicial” |(which can be held democratically accountable via |

|to (i) petition a majority of the owners of |individuals’ constitutional rights to due process |proceeding, “a hearing in its very essence demands |elections) has the power to tax without affording |

|property along the proposed path and (ii) obtain |under the 14th Am. After decisions for D in the |that he who is entitled to it shall have the right |citizens due process protections. However, when the|

|authorization from the City Council. Then, (iii) |lower courts, the Sup Ct reversed. |to support his allegations by argument however |decision to tax particular individuals is made by a|

|only after a period of notice and opportunity for | |brief, and, if need be, by proof, however |non-legislative body based on the individual facts |

|hearing, could the BPW begin paving. Once |Holding: The approval of paving does not require a |informal.” |and circumstances of a particular case, the |

|completed, the City Council, (iv) after a period |hearing b/c it did not involve an assessment (tax),| |decision becomes adjudicative in nature, and due |

|notice and opportunity for written objections could|but the approval of the allocation plan does | |process protections are required.] |

|(v) approve the BPW’s proposed allocation of the |require some form of hearing. | | |

|costs of paving among the affected owners. | | | |

|C31. Bi-Metallic Investment Co. v. State Board of |P, owner of real estate in CO, sued to enjoin a 40%|Holding: Due process requirements were satisfied |[Holmes]: “Where a rule of conduct applies to more |

|Equalization, US (1915), CP308: |increase in the valuation of taxable property in |b/c, when a large group of people are affected, the|than a few people it is impracticable that every |

| |Denver. P contended that it was not given adequate|political process |one should have a direct voice in its adoption.” |

| |opportunity to be heard and, therefore, its | |“There must be a limit to individual argument in |

| |property was taken w/o due process of law. | |shuch matters if government is to go on.” |

| |Affirmed. | | |

|C32. Goldberg v. Kelly, US (1970), CP312: Ps |The pre-termination process established by NY (i) |Holding: Welfare benefits are an entitlement, not a|(2) “The same governmental interests that counsel |

|welfare benefits had been terminated without a |Caseworker discusses case with beneficiary; (ii) CW|gratuity [contrary to Black’s dissent], and, as a |the provision of welfare [fairly and accurately |

|pre-deprivation hearing. The process provided only|sends letter explaining decision to terminate; |property interest, require due process – a |providing for the welfare of its citizens], counsel|

|for a post-deprivation “fair hearing.” J for P. |(iii) Beneficiary has 7 days to challenge the |pre-deprivation hearing, in this case. |as well its uninterrupted provision to those |

|Affirmed. |determination by letter. |[Brennan]: (1) The individual’s interests are |eligible to receive it.” The gov’t interests of |

| | |great, since he depends upon the benefits for |conserving fiscal and administrative resources are |

| | |survival. |outweighed by the individual interests, |

| | | |particularly since the costs can be reduced by more|

| | | |efficient procedures. |

|C33. Hamdi v. Rumsfeld, US (2004), CP342½: Hamdi |Holding: “[A]lthough Congress authorized the |[O’Connor]: Matthews application: |(3) High gov’t interest in security: Ensuring that |

|was turned over the US military forces in |detention of combatants in the narrow circumstances|(1) “the most elemental of liberty interests – the |aiders of the enemy do not return to the |

|Afghanistan and transferred to Gitmo in 2002. Upon|alleged here, due process demands that a citizen |interest in being free from physical detention by |battlefield; practical problems of having military |

|learning a few months later that H was an American |held in the United States as an enemy combatant be |one’s government.” |officers come back to the US to testify and of |

|citizen, authorities transferred him to a naval |given a meaningful opportunity to contest the |(2) Media and relief organizations submitted amici |allowing discovery into military operations (a |

|brig in the U.S. H filed a writ of habeas Corpus. |factual basis for that detention before a neutral |curiae noting that “’[t]he nature of humanitarian |threat to national secrets and most likely futile |

|The Gov’t contends that, per the authority granted |decisionmaker.” Notice and opportunity for hearing|relief work and journalism present a significant |anyway) |

|in the AUMF, it can detain “enemy combatants” |are required, although some of the procedural |risk of mistaken military detentions.’” History | |

|indefinitely. |requirements may be relaxed (e.g. allowing hearsay |and common sense also warn of the potential for | |

| |evidence; giving the gov’t a rebuttable |abuse of unchecked power. | |

| |presumption). | | |

|C34. Board of Regents of State College v. Roth, US | |[Stewart]: The court must first ask the threshold |Dissent [Marshall]: “In my view, every citizen who |

|(1972), CP318: Roth was hired for a 1yr |Holding: P did not have a property or liberty |question of whether a liberty or property interest |applies for a government job is entitled to it |

|professorship at Wisconsin State U. He was not |interest at stake such that d.p. was required for |is at stake. No indication that reputational |unless the government can establish some reason for|

|rehired at the end of that 1 yr., and he was given |its deprivation. |liberty interest is at stake in this case. “It |denying the employment.” “When the government |

|no explanation. State statute provides for tenure | |stretches the concept too far to suggest that a |knows it may have to justify its decisions with |

|only after 4 consecutive yrs of employment. R | |person is deprived of ‘liberty’ when he simply is |sound reasons, its conduct is likely to be more |

|sued, claiming the lack of opportunity for hearing | |not rehired in one job but remains as free as |cautious, careful, and correct.” |

|violated his 14th Am d.p. rights. Js for P. A’d. | |before to seek another.” Neither did R have a | |

|R’d. | |statutorily-created or rule-based property | |

| | |interest. | |

|C35. Perry v. Sindermann, US (1972), CP322: |Holding: “S was entitled to an opportunity at a | | |

|Sindermann had been employed for 10 yrs within the |hearing on remand before the district court to | | |

|Texas state college system, which had no formal |prove his allegations that the failure to renew was| | |

|tenure. After a public controversy with the |based on his exercise of free speech ... [and] an | | |

|college’s board of regents, S’s contract was not |opportunity to prove the legitimacy of his claim of| | |

|renewed. He sued under 14th Am. Js for Ds. R’d. |[entitlement to tenure] in light of ‘the policies | | |

|A’d (re: remand). |and practices of the institution’” | | |

| |(objectively-based expectations of employment). | | |

|C36. Mathews v. Eldridge, US (1976), CP328: | |[Powell]: (1) private interest: although the |(3) Gov’t interests: Additional procedures would |

|Eldridge had been receiving SS disability benefits,|Issue: Does due process require an opportunity for |hardship resulting from erroneous deprivation “may |have significant costs to the government. |

|but the SSA determined he was no longer eligible |a pre-deprivation evidentiary hearing for the |be significant ... [it] is likely to be less than |“[E]xperience with the constitutionalizing of |

|and terminated his benefits. “Instead of |termination of Social Security disability benefit |that of a welfare recipient.” (2) Risk of erroneous|government procedures suggests that the ultimate |

|requesting reconsideration Eldridge commenced this |payments? Holding: No, the procedure in place are |deprivation: B/c the determination requires |additional costs in terms of money and |

|action challenging the constitutional validity of |sufficient. |assessment of medical evidence, it is not likely to|administrative burden would not be insubstantial.” |

|the administrative procedures established by the | |be erroneous, and additional procedures are not | |

|Secretary ... for assessing whether there exists a | |likely to increase the fairness and reliability by | |

|continuing disability.” J for P. R’d. | |much. Additionally, the disability recipient is | |

| | |allowed access to all the information relied upon | |

| | |for the decisions. | |

|C37. Nt’l Council of Resistance of Iran v. |Holding: Must provide a pre-deprivation hearing, |(2) (a) Such designation prohibits P from having a | |

|Albright, D.C. (2001), CP332: 1999- Secretary of |unless the Gov’t “can make a showing of |U.S. bank account or receiving material support or | |

|State designated P as a “foreign terrorist |particularized need.” |resources from anyone within the jxn of the US. | |

|organization” b/c P was found to be an alias of the| |(b) The only protection of erroneous deprivation | |

|PMOI, which was already designated a FTO. P sued, |[Sentelle]: (1) “Russian Volunteer Fleet... 282 |suggested is that the Secretary of State must | |

|claiming the designation deprived it of |U.S. 481 ... makes clear that a foreign |confer with the AG and Secretary of Treasury before| |

|constitutionally-protected rights w/o due process. |organization that acquires or holds property in |making a designation, but these are all actors | |

|J for P. |this country may invoke the protections of the |within the “unitary executive.” (c) While “’no | |

| |Constitution when that property is placed in |governmental interest is more compelling than the | |

| |jeopardy by government intervention.” Because |security of the nation,’” the Secretary has not | |

| |property interests have been impaired, P is |shown how a pre-deprivation hearing “would | |

| |entitled to due process. |interfere with the Secretary’s duty to carry out | |

| | |foreign policy.” | |

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download