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If men were angels, no government would be necessary. Antonin Scalia, as always, needs no government.

I like to think that somewhere, Antonin Scalia is having a grand ‘ole time with James Madison and the Constitutional Convention of 1787, the members of the conventions that ratified the first Ten Amendments, plus the Radical Republicans from 1868 who ratified the 14th Amendment. For once, I think he would indulge in post-enactment legislative history.

Rest in peace Justice Scalia. Your memory will live on for generations through your opinions.

The New York Times reports that the President is considering opening a new front against ISIS in Libya. The article doesn’t even bother to address what the congressional authorization is for such a move. Is it the 2001 AUMF against Al Qaeda, because after all, Al Qaeda is really ISIS. Or is it the 2002 AUMF against Iraq, because after all, Iraq is really Iraq, Syria, and now Lebanon. To borrow from Justice Scalia’s dissent in King v. Burwell, “words no longer have meaning.”

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.

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).

One of the issues in Campbell-Ewald v. Gomez, an otherwise mundane Telephone Consumer Protection Act, was whether the Court retained jurisdiction after a settlement offer that made the plaintiff whole. The Court split 6-3 on the issue, with RBG writing the majority opinion. Writing a rare dissent was Chief Justice Roberts, joined by Justices Scalia and Alito.

With some flourish, Roberts cited a number of constitutional decisions to drive home the point that when the Court lacks standing, there is no case or controversy, and the case must be dismissed.

The problem for Gomez is that the federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitle- ment to relief already there for the taking. As this Court has said, “[n]o principle is more fundamental to the judici- ary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U. S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976)). If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end.

Chief Justice Roberts also cited the seminal letter from Chief Justice Jay to President Washington, explaining that the courts would not offer advisory opinions.

In 1793, President George Washington sent a letter to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for the opinion of the Court on the rights and obligations of the United States with respect to the war between Great Britain and France. The Supreme Court politely—but firmly—refused the request, concluding that “the lines of separation drawn by the Constitution between the three departments of the government” prohibit the federal courts from issuing such advisory opinions. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1890–1893).

Here is the full correspondence from Chief Justice Jay to President Washington:

SIR:

We have considered the previous question stated in a letter written by your direction to us by the Secretary of State [Thomas Jefferson] on the 18th of last month, [regarding] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court of the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.

We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.

We have the honour to be, with perfect respect, sir, your most obedient and most humble servants.

Roberts traces this directly from the “case” or “controversy” requirement, and cites Marbury. (Roberts never passes up the opportunity to cite his mancrush John Marshall):

That prohibition has remained “the oldest and most consistent thread in the federal law of justiciability.” Flast v. Cohen, 392 U. S. 83, 96 (1968) (internal quotation marks omitted). And for good reason. It is derived from Article III of the Constitution, which limits the authority of the federal courts to the adjudication of “Cases” or “Controversies.” U. S. Const., Art. III, §2. The case or controversy requirement is at once an important check on the powers of the Federal Judiciary and the source of those powers. In Marbury v. Madison, 1 Cranch 137, 177 (1803), Chief Justice Marshall established that it is “the province and duty of the judicial department to say what the law is.” Not because there is a provision in the Consti- tution that says so—there isn’t. Instead, the federal courts wield that power because they have to decide cases and controversies, and “[t]hose who apply [a] rule to par- ticular cases, must of necessity expound and interpret that rule.” Ibid.

Justice Alito has an interesting dissent on mootness.

And Justice Thomas, well he explores the common law roots of “tenders.”

The Court correctly concludes that an offer of complete relief on a claim does not render that claim moot. But, in my view, the Court does not advance a sound basis for this conclusion. The Court rests its conclusion on modern contract law principles and a recent dissent concerning Federal Rule of Civil Procedure 68. See ante, at 6–9. I would rest instead on the common-law history of tenders. That history—which led to Rule 68—demonstrates that a mere offer of the sum owed is insufficient to eliminate a court’s jurisdiction to decide the case to which the offer related. …

Modern settlement procedure has its origins in the law of tenders, as refined in the 18th and 19th centuries. As with much of the early common law, the law of tenders had many rigid formalities. These formalities make clear that, around the time of the framing, a mere offer of relief was insufficient to deprive a court of jurisdiction. …

This history demonstrates that, at common law, a de- fendant or prospective defendant had to furnish far more than a mere offer of settlement to end a case. This history also demonstrates that courts at common law would not have understood a mere offer to strip them of jurisdiction.

I have absolutely no basis to offer any commentary on the law of tenders, but I hope some scholars can opine.