The 1787 Project

The case of Granholm v. Heald (2005) involves this question: may a state ban direct shipments to consumers from out-of-state wineries while allowing direct shipments to consumers from in-state wineries? The question forces us to consider the ways our national experiment with Prohibition in the 18th Amendment (1919) and its repeal in the 21st Amendment (1933) continues to affect the powers of state governments with respect to alcohol regulation.

In 2010, Congress passed the Affordable Care Act expanding Medicaid eligibility, and the Arizona state legislature passed S.B. 1070 making it a state-level offense to violate certain provisions of federal immigration law. The Supreme Court heard challenges to each law in 2012, and the outcome of each case hinged on particular conceptions of the division of authority between the states and the national government under the U.S. Constitution.

In the 1990s, the Supreme Court under Chief Justice William Rehnquist began slowly chipping away at national regulatory power by applying federalism-based limits on congressional authority. In two cases we examine today -- New York v. United States (1992) and Printz v. United States (1997) -- the Court articulated the anti-commandeering doctrine, drawing a bright line that prevents the national government from commandeering the state governments and forcing them into a national regulatory scheme.

The power to tax involves the power to destroy, Chief Justice John Marshall famously said in McCulloch v. Maryland (1819), the textbook federalism case from the early republic. Marshall's opinion in that case set the terms of debate for many of the constitutional controversies that would follow about the division of authority between the states and the national government. These controversies bring up fundamental questions about what kind of national government the Constitution created.

In May of 2009, President Obama said in a speech on national security that the political and constitutional challenges surrounding the ongoing detention of individuals held at the U.S. Naval Base at Guantanamo Bay, Cuba, would be one of the toughest issues his administration would face. This episode explores the constitutional authority of the President, Congress, and the Courts in this area of law through an analysis of the constitutional disputes in the cases of Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008).

Using two cases from Franklin Roosevelt's administration - United States v. Curtiss-Wright Export Corp. (1936) and Korematsu v. United States (1944) - this episode explores a fundamental constitutional question: what is executive power? Justice Sutherland's opinion in Curtiss-Wright offers a high-level civics lesson on the constitutional difference between the enumerated powers of the government in domestic affairs and the largely unenumerated powers of the president in foreign affairs. The case of Korematsu, about the detainment of 120,000 Japanese-Americans during World War II, however, blurs the line between domestic affairs, on the one hand, and foreign affairs, on the other, and challenges us to think about the constitutional limits of executive power.

Who has the authority to take the country to war - Congress or the President? Constitutionally, it takes both. The President is commander-in-chief of the armed forces of the United States. Military leaders report to him, and he ultimately is responsible for strategic U.S. military objectives and operations. Congress, on the other hand, has the power to raise revenue to provide for the common defense, raise armies, maintain a navy, and write rules governing U.S. land and naval forces. Significantly, Congress also has the power to declare war; but does that mean the President cannot engage in war without congressional authorization? This is a subject of ongoing interpretive dispute between Congress and the President that gets to the core of the Constitution's allocation of war powers.

Presidents often exercise enormous power through little more than the stroke of a pen. Harry Truman issued an executive order authorizing his Secretary of Commerce to seize and operate most of the nation's privately-owned steel mills, while Abraham Lincoln suspended Habeas Corpus in a letter to one of his generals and instituted a blockade of southern ports with a presidential proclamation. The constitutional arguments in each instance are similar, and they bring up a fundamental question that we will continue to explore in the next few episodes: what powers do presidents have simply by virtue of being commander-in-chief and chief executive of a sovereign nation?

The case of Missouri v. Holland (1920) takes up the question of Congress' authority to pass legislation to implement international treaties. The Constitution creates a national legislature with limited and enumerated powers, but the Constitution does not specifically put limits on the treaty-making power. Can Congress pass domestic legislation to implement a treaty if it would not otherwise have that constitutional authority? According to the Supreme Court, yes - but Justice Thomas' concurring opinion in the recent case of Bond v. United States (2014) suggests that the issue is not quite settled.

In this episode, we consider the concepts of executive privilege, presidential immunity, when you can sue a president, and whether the president can be criminally indicted. The short answer: it's complicated. To get started thinking about these issues, we revisit several landmark cases involving presidents Nixon, Clinton, and Trump.