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The lecture notes are here.

The Legislative Powers

• Bicameralism & Presentment (260-261).
• INS v. Chadha (261-272).
• Clinton v. City of New York (272-281).
• Read Article I, Section 8 of the Constitution (3-4).
• Enumerated Powers in Article I, Section 8 (281-283).
• Bills of Attainder (283-284).
• Note 5 – Nixon v. GSA (293-294).
• Ex Post Facto Clause (294-295).
• Contracts Clause (295).

This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.

This is Jagdish Chadha.

Justice Louis Powell authored a concurring opinion.

Justice White dissented.

The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”

The majority opinion was authored by Justice John Paul Stevens.

Justice Anthony Michael Kennedy concurred.

Justice Stephen G. Breyer dissented, in part.

Justice Antonin Scalia dissented, in other parts.

Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.

 

Today the Supreme Court decided four cases: Montgomery v. Louisiana (8th Amendment), Musacchio v. United States (Criminal Procedure), Menominee Tribe of Wis. v. United States (Civil Procedure), and FERC v. Electric Power Supply Assn. (Regulatory Law). The FantasySCOTUS crowd went 4-for-5, and the {Marshall}+ Algorithm went 5-for-5.

In Montgomery v. Alabama, both the crowd and algorithm predicted a reversal, but disagreed on the split.

Musacchio v. U.S. was a rare case that yielded a 9-0 affirm. The crowd nailed this. The algorithm got lucky by predicting a 5-4 affirm.

 

Menominee Indian Tribe of WI v. U.S. was another 9-0 affirm that the crowd got correctly. Interestingly, under the algorithm, the four votes to reverse were very weak (below 56%).

In FERC v. Elec. Pwr Supply Assoc., with Justice Alito recused, the vote split 6-2 to reverse. {Marshall}+ predicted a 8-0 reverse. FantasySCOTUS, interestingly, predicted a 4-4 affirm.

 

Here is a two-part interview I did with Houston talk radio host Terry Lowry on the Supreme Court’s decision to grant U.S. v. Texas.

At the very end of Justice Thomas’s dissent in Montgomery v. Louisiana, Justice Thomas offers a workaround for states that do not want to allow their state courts to invalidate Juvenile LWOP sentences, even for murderers. There is a lot of going on here, so I will unpack it.

Unlike the rule the Court announces today, this limitation at least reflects a constitutional principle. Only when state courts have chosen to entertain a federal claim can the Supremacy Clause conceivably command a state court to apply federal law. As we explained last Term, private parties have no “constitutional . . . right to enforce federal laws against the States.” Armstrong, 575 U. S., at ___ (slip op., at 4). Instead, the Constitution leaves the initial choice to entertain federal claims up to state courts, which are “tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States.” Osborn v. Bank of United States, 9 Wheat. 738, 821 (1824).

States therefore have a modest path to lessen the bur- dens that today’s decision will inflict on their courts. States can stop entertaining claims alleging that this Court’s Eighth Amendment decisions invalidated a sen- tence, and leave federal habeas courts to shoulder the burden of adjudicating such claims in the first instance. Whatever the desirability of that choice, it is one the Constitution allows States to make.

The Court’s rule says that state courts hearing post-conviction relief are required to apply Miller retroactively. But what if a Court does not offer post-conviction relief for certain claims. In particular, the state legislature abolishes state-court jurisdiction for “claims alleging that this Court’s Eighth Amendment decisions invalidated a sentence.” If there is no state-court jurisdiction for such a claim, Thomas writes, then the federal courts would then be able to entertain those claims.

But what about the supremacy clause, you ask? Aren’t state courts required to hear federal causes of action? (See my earlier post on Montgomery and the supremacy clause). As I explain in my article, State Judicial Sovereignty, state courts can only be compelled to hear federal causes of action when the legislature vests with them with competent jurisdiction to do so. As Thomas suggests, if a state eliminates this form of post-conviction relief, then the state courts would not have to alter sentences. The federal courts can “shoulder the burden of adjudicating such claims in the first instance.”

Justice Thomas always such a sophisticated sense for federalism in counterintuitive ways. I will be sure to cite this dissent in my article, which should be out in the Illinois Law Review later this year.

In Montgomery v. Louisiana, the Court holds that the Constitution compels state courts to retroactively apply the 2012 decision in Miller on post-conviction relief. The consequence of this decision is that state courts are going to have to provide the opportunity for parole for any juvenile sentenced to LWOP. How did the Court reach this conclusion? Justice Kennedy acknowledges that the previous precedents of the Court “do not directly control the question the Court now answers for the first time.” So what’s the answer? Apparently, the Supremacy Clause.

If a State may not constitutionally insist that a prisoner remain in jail on federal habeas review, it may not consti­tutionally insist on the same result in its own postconvic­tion proceedings. Under the Supremacy Clause of the Constitution, state collateral review courts have no greater power than federal habeas courts to mandate that a prisoner continue to suffer punishment barred by the Constitution. If a state collateral proceeding is open to a claim controlled by federal law, the state court “has a duty to grant the relief that federal law requires.” Yates, 484 U. S., at 218. Where state collateral review proceedings permit prisoners to challenge the lawfulness of their con­ finement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge.

Huh? This conclusory assertion effects a radical expansion of the meaning of the Supremacy Clause, without even the slightest analysis, or regard for what it portends in other areas of post-conviction law. Shame on the Chief Justice for joining this slippery conclusion, which will be cited for years to come in contexts unimaginable.

Scalia’s dissent destroys this ipse dixit.

The majority can marshal no case support for its con- trary position. It creates a constitutional rule where none had been before: “Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises” binding in both federal and state courts. Ante, at 8. “Best understood.” Because of what? Surely not because of its history and derivation.

Because of the Supremacy Clause, says the majority. Ante, at 12. But the Supremacy Clause cannot possibly answer the question before us here. It only elicits another question: What federal law is supreme? Old or new? …

How can it possibly be, then, that the Constitution requires a state court’s review of its own convictions to be governed by “new rules” rather than (what suffices when federal courts review state courts) “old rules”? …

The majority, however, divines from Siebold “a general principle” that “a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced.” Ante, at 11. That is utterly impossible. No “general principle” can rationally be derived from Siebold about constitutionally required remedies in state courts; indeed, the opinion does not even speak to constitutionally required remedies in federal courts.

Scalia rejects any notion that this result is constitutionally compelled.

The majority’s maxim that “state collateral review courts have no greater power than federal habeas courts to mandate that a prisoner continue to suffer punishment barred by the Constitution,” ante, at 12–13, begs the ques- tion rather than contributes to its solution. Until today, no federal court was constitutionally obliged to grant relief for the past violation of a newly announced substantive rule. . . .  maxim shown to be more relevant to this case, by the analysis that the majority omitted, is this: The Supremacy Clause does not impose upon state courts a constitutional obligation it fails to impose upon federal courts. 

Scalia also rejects that this result could be compelled by the Due Process Clause or the Equal Protection Clause:

All that remains to support the majority’s conclusion is that all-purpose Latin canon: ipse dixit. The majority opines that because a substantive rule eliminates a State’s power to proscribe certain conduct or impose a certain punishment, it has “the automatic consequence of invali- dating a defendant’s conviction or sentence.” Ante, at 9. What provision of the Constitution could conceivably produce such a result? The Due Process Clause? It surely cannot be a denial of due process for a court to pronounce a final judgment which, though fully in accord with federal constitutional law at the time, fails to anticipate a change to be made by this Court half a century into the future. The Equal Protection Clause? Both statutory and (in- creasingly) constitutional laws change. If it were a denial of equal protection to hold an earlier defendant to a law more stringent than what exists today, it would also be a denial of equal protection to hold a later defendant to a law more stringent than what existed 50 years ago. No principle of equal protection requires the criminal law of all ages to be the same.

To Scalia, the principle of “finality” demands that the opinion is wrong:

The majority grandly asserts that “[t]here is no grandfa- ther clause that permits States to enforce punishments the Constitution forbids.” Ante, at 12 (emphasis added). Of course the italicized phrase begs the question. There most certainly is a grandfather clause—one we have called finality—which says that the Constitution does not re- quire States to revise punishments that were lawful when they were imposed. Once a conviction has become final, whether new rules or old ones will be applied to revisit the conviction is a matter entirely within the State’s control; the Constitution has nothing to say about that choice.

Justice Thomas’s dissent also rejects this perverse reliance on the Supremacy Clause:

No provision of the Constitution supports the Court’s holding. The Court invokes only the Supremacy Clause, asserting that the Clause deprives state and federal post- conviction courts alike of power to leave an unconstitu- tional sentence in place. Ante, at 12–13. But that leaves the question of what provision of the Constitution supplies that underlying prohibition.

The Supremacy Clause does not do so. That Clause merely supplies a rule of decision: If a federal constitu- tional right exists, that right supersedes any contrary provisions of state law. See Art. VI, cl. 2 (“This Constitu- tion, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). Accordingly, as we reaffirmed just last Term, the Supremacy Clause is no independent font of substantive rights. Armstrong v. Exceptional Child Center, Inc., 575 U. S. ___, ___ (2015) (slip op., at 3).

It’s bad enough the Court’s outcome-determinative jurisprudence has adulterated the 8th Amendment beyond any conceivable neutral principle of law. Now, it has infected the Supremacy Clause. (At least today’s per curiam decision did not purport to rely on the Supremacy Clause).