Constitutional Law Outline
History:
o
America Before the Constitution (i.e. Articles of Confederation)
 No federal executive or central government
 Congress was powerless
 States fought, minted their own currencies, negotiated trade agreements w/ foreign nations,
taxed products from other states
 Economy was poor / colonies in debt
o The Philadelphia Convention
 Small states feared their influence would be lost / would be outvoted
 States worried that the Constitution would make the centralized government too powerful
Article 1 Defines the power of Congress
Article 2 Defines the power of the President / Executive Branch
Article 3 Defines the power of the Federal Courts
THE JUDICIAL POWER
1. JUDICIAL REVIEW
Marbury v. Madison, 1803
 Marbury (P) had a legal right to the commission, but the Judiciary Act of 1789 and the Constitution
conflicted as to whether the Supreme Court had original jurisdiction to issue writs of mandamus
 Judiciary Act Authorized SC to issue writs of mandamus in cases warranted by the principles and usages
of law, to any courts appointed, or persons holding office, under the authority of the US”
 Article III of the Constitution Says “in all cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the Supreme Court shall have original jurisdiction (no
mention of writs of mandamus here). In ALL the other cases before mentioned, the Supreme Court shall
have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as
Congress shall make
 Marshall’s Holding  If the Supreme Court identifies a conflict between a constitutional provision and a
congressional statute, the Court has the authority (and the duty) to declare the statute
unconstitutional and to refuse to enforce it
 REASONING OF COURT
o Justice Marshall treats Article III’s list as MUTUALLY EXCLUSIVE, therefore the Judiciary Act is
giving the Supreme Court MORE power than the Constitution says it should have (Constitution does
NOT list writs of mandamus w/in Court’s original jurisdiction).
o If framers wanted to let Congress confer jurisdiction they would have said so.
o “DUTY OF COURT WHAT TO SAY LAW IS” established right of review by SCOTUS of the
executive and legislative branches.
o CONSTITUTION IS PARAMOUNT Protection of minorities, civil rights etc.
o Supremacy Clause says states bound by const. If Congress not bound by const. then states would
not be able to unconst. things but Congress would.
 ARGUMENTS TO BE MADE: The Judiciary has the power to interpret Congress’ laws as being inconsistent
w/ the Constitution b/c:
o Implicit in the STRUCTURE of the Constitution that Congress cannot pass a law that exceeds the
powers that congress actually has
o The Constitution limits the powers of federal government
o Under INSTITUTIONAL LOGIC, it doesn’t make sense for a branch, i.e. Congress, to check itself (“a
fox can not guard the hen house)
o It is inherent in the NATURE OF A WRITTEN CONSTITUTION that the Constitution is a form of
higher law that trumps all other laws. If Congress could ignore the Constitution, there would be no
point in having one in the first place
1
o
o
o
o
o
Inherent in the JUDICIAL FUNCTION that courts will have to decide which law governs in a conflict,
and it is the judicial function under oat to follow the Constitution
TEXTUAL commitments in the Constitution that suggest the courts must have the power to
invalidate a statute (Supremacy clause and judiciary jurisdiction over “all cases arising under the
Constitution”
The Court exercises JUDICIAL EXPERTISE, as it is their job to know and interpret the law, and
would be best at determining constitutionality therefore
Under a DEMOCRATIC THEORY, the Court is enforcing the will of the people through the
Constitution, which embodies the fundamental principles of the people in a higher level of
generality
The Constitution protects the minority from the tyranny of the majority, under a ANTIDEMOCRATIC THEORY, by stating things the government can not do even if it wants to
2. JUDICIAL SUPREMACY
Martin v. Hunter’s Lessee, 1816
 Federal land treaty was in conflict with state law— the plaintiff wanted his property back from VA. SCOTUS
held for Martin but VA refused to obey and said SCOTUS had no right to review state court decisions.
 Justice Story defended the legitimacy of Supreme Court review of state court judgments resting on
interpretations of federal law, basing his opinion on:
 TEXT
o This expectation runs through the Constitutional Convention debates
o Constitution tells us that judicial power should extend to cases arising out of federal law
o In the language of Article III of the Constitution, “shall” means “must” / Supreme Court MUST have
appellate jurisdiction over federal law questions, which assumedly may start in state courts
o Creation and jurisdiction of lower federal courts to the discretion of Congress contemplated that
federal questions would initially arise in state as well as federal courts
o If Congress does not want Supreme Court to review state court judgments, then it should make
federal law cases exclusive to lower federal courts
 INSTITUTIONAL RATIONALE
o Federal judges are experts on federal law and not subject to majoritarian pressures, whereas
state judges are influenced by politics and state interests since they are elected
 UNIFORMITY
o There is a need for uniformity in decisions throughout the nation interpreting the Constitution
o We need a revising authority to control discordant judgments in the states and harmonize
them into uniformity throughout the whole US
o Also there would be no review of Criminal cases (all start in state) and civil cases with FQ.
Cohens v. Virginia, 1821
 If SCOTUS has original jurisdiction over a case, can it have appellate jurisdiction also?
o In Marbury, Marshall seemed to say no but in this case, he seems to allow it
 Says states can be sued and SCOTUS can have appellate jurisdiction over states
o SCOTUS should NOT have to have original jurisdiction over every case in which the state is a
party (think about criminal cases in which every case has the state as a party)
 Says original and appellate jurisdiction over states is NOT mutually exclusive  can have original
over some cases and appellate over other cases—BACKTRACK FROM MARBURY
 All cases involving a state shouldn’t be removed directly to the federal courts and there should be appellate
jurisdiction also because:
o Criminal cases
o Lot’s of cases would come in with non-federal questions constitutional avoidance would mean they
would be decided on state law
o Even if they were removed at a later stage—the trial would have to restart in federal court.
2
Cooper v. Aaron, 1958
 After Brown v. Board of Education, Little Rock School Board was blocked in its efforts to desegregate
schools when Governor Faubus placed Little Rock’s Central HS “off limits” to black students
 Arkansas state officials said they weren’t bound by the Supreme Court’s decision in Brown b/c they
weren’t parties to the case and hadn’t done anything wrong
 RESPONSE
o The Supreme Court’s interpretation of the Constitution is the binding interpretation of the land,
on ALL people (including all branches of the government), regardless of how many people
disagree or how controversial the ruling is
o Also governor can go to court and try to get SCOTUS to overturn the decision but he has to follow
the law in the interim.
 The Court held that the Supreme Court is the ultimate interpreter of the Constitution
 Cooper made clear that the broad reading of Marbury is the correct holding
3. POLITICAL QUESTIONS
There are no questions of law in political questions.
Baker v. Carr, 1962
 Equal Protection Claims Dealing w/ State Assembly Apportionment ARE Justiciable
 Voters in Tennessee claimed that the apportionment of the Tennessee General Assembly violated their
equal protection rights
o For over 50 years, the Assembly had not reapportioned itself, and mostly urban voters felt that
redress through changes in state law was impossible / their vote was diluted by the number of
people per rep. in urban areas
o Tennessee voters asked a federal court either to direct elections at large or to decree an
appointment according to the most recent census figures
 Justice Brennan’s 6 Factors For Determining if a Case is a Political Question / Non-Justiciable:
o Each factor relates in some way to separation of powers / at least one factor must be present in order
to make an issue a non-justiciable political question
 ***(1) A constitutional TEXTUAL COMMITMENT to a branch of government (i.e. to Congress or
the President)
 ***(2) A LACK OF JUDICIALLY MANAGEABLE STANDARDS for resolving the question
 ***(3) The impossibility of a court’s deciding the issue without an initial POLICY
DETERMINATION of a kind clearly for non-judicial discretion
 (4) AVOID DISRESPECT for the other branches of the government
 (5) An unusual need for UNQUESTIONING ADHERENCE of another branch of the government /
political decision already made
 (6) The need for the government to speak with ONE VOICE to AVOID EMBARASSMENT from
various pronouncements on a single issue by different departments of government
 Justice Frankfurter’s Dissent Court should NOT get involved with this case because:
o It’s based on the GUARANTY CLAUSE (guaranteeing a republic form of government) and the court has
held that cases that implicate the Guaranty Clause are non-justiciable
o Plagued by a LACK OF JUDICIALLY MANGEABLE STANDARDS, since the Constitution does not give
guidance about standards to apply when a voter has his vote diluted
 This case is forcing the court to make a POLICY DETERMINATION that our nation best leaves
to the elected branches
o The Court held that NONE of the 6 circumstances listed above were present, judicial standards
under the Equal Protection Clause were well developed and that courts are given authority
decide whether a particular act reflects arbitrary and capricious acts of discrimination
 The Guaranty Clause can NOT be used as a basis for invalidating state actions though
3
Political question doctrine may be more of a SPECTRUM



Extreme Deference (i.e. Presidential veto)-> Court wouldn’t get involved at all
No Deference (i.e. Passage of a discriminatory law)-> Court would get involved and substitute its judgment of
what the Constitution says for Congress’ judgment
Middle of the Spectrum-> Most cases fall here / Souter’s concurring opinion in Nixon
o If the Senate tried Nixon by flipping a coin, the Court might have intervened
Non-justiciable political questions, which MUST be dismissed concern
(a) Cases under the Guaranty Clause (Article 4, Section 4: “The US shall guarantee to each state a republic form
of government”) (see Baker)
 Supreme Court has always said that cases under this clause are non-justiciable political questions
(b) Challenges to the President’s conduct to perform policy
 Ex: Lawsuits against the President for going to Vietnam War without a formal declaration from Congress
(c) Challenges to the impeachment & removal process (Nixon v. United States / Powell)
(d) Challenges to partisan gerry-mandering
 When the political party that controls the legislature draws districts to maximize safe seats for that party
 Some states passing laws that individual commissions have to draw the lines.
The “Commitment to Other Branches” Strand of Political Question Doctrine
 Impeachment
o Strong argument can be made that House of representatives’ decision whether to impeach the
President or other federal officer, and the senate’s decision whether to convict, are NOT judicially
reviewable b/c these decisions are committed to those bodies by the Constitution
United States v. Nixon
 Impeachment Proceedings are Solely the Province of the Legislature
 Judge in Mississippi, was indicted by the House and the Senate voted to invoke Senate Rule XI, appointing
a committee of Senators to prepare report summarizing the facts and evidence. Afterwards, the Senate
voted to impeach Nixon, removing him from office.
 Nixon filed suit, arguing that Rule IX violates the constitutional grant of authority to “try” all
impeachments because it prohibits the full Senate from taking part in the proceedings / his acts and
evidence were submitted to a committee, which is not the same as a trial
o Article I, Section 3 confers upon Senate the impeachment authority: “The Senate shall have the
SOLE power to TRY all impeachments”
 The Court held that the federal judiciary could NOT review impeachment proceedings, which are
the province of the Legislative Branch
 Evaluation of Brennan’s 6 Factors in Baker v. Carr
o ***Giving the Senate Impeachment Clause, which provides that the “Senate shall have SOLE POWER
to try all impeachments” is a constitutional TEXTUAL commitment that the Framers put this
important trust in the hands of the Senate because its members are representatives of the people
o The word “try” lacks precision to afford any JUDICIALLY MANAGEABLE STANDARD of review
o Impeachment is the only check on the Judicial branch by the Legislature and involving the judiciary
in the process would eviscerate this important CONSTITUTIONAL CHECK
 White and Blackmun’s Concurrence Judicial review ensures that the Senate adheres to a minimal set
of procedural standards in impeachment trials
 Souter’s Concurrence If the Senate were to act in a manner seriously threatening the integrity of
its determinations, i.e. a coin toss or upon determination that an officer of the US is a “bad guy,” judicial
interference might well be appropriate / would justify judicial review
4
4. STANDING AND RIPENESS
Limits on the Courts’ Power to Hear Cases Include:
(1) The Court has long refused to render ADVISORY OPINIONS
 Judicial power in Article III only extends to “cases and controversies,” so the issuance of advisory
opinions is not within the power given to the courts by the Constitution
 Also, better decisions are expected when the Court makes those decisions in the context of actual
disputes before it, with real people who have a stake in the outcome of the case
(2) RIPENESS
 The Court will NOT hear a case of an injury claimed under a statute that is not yet enacted b/c a
controversy has not happened yet
 Mere pendancy of a law that poses a threat to you is not enough
 The usual way of challenging the law is to violate it, prosecute it, then argue as a D that it was
unconstitutional or otherwise invalid
 NO declaratory judgments
 Look at 2 criteria:
o The hardship the P will suffer w/out pre-enforcement review The greater the hardship the P will
suffer, the more likely it is the federal court will hear the case
o The fitness of the issues and the record for judicial review
 Does the federal court have all that it needs to effectively decide the issue?
(3) MOOTNESS
 If events after the filing of a lawsuit end P’s injury, the case shall be dismissed as moot
 If the central issue is already moot, parties don’t still have a stake in the case and the Court will dismiss it
 A π must present a LIVE controversy, an ongoing injury, at all stages of the federal court
proceedings. If anything happens during the proceedings to end the P’s injury, the case is considered moot
 The mere unconstitutionality of the government’s actions are not enough if the relief has already been
granted.
(4) STANDING
 Is P the proper party to bring the matter to court for adjudication?
 The standing doctrine, like the political question doctrine, is sometimes used by the Court to get out of
some cases it doesn’t want to resolve (Allen v. Wright)- we can’t be confident how the Court will apply it in
the future
In order for P to have standing, 3 requirements must be met:
(i) INJURY
 P must prove that he has been or eminently will be personally injured
o Threatened harm can NOT be too far in the future, or too speculative – immediate threat
o A large number of people can suffer the harm, as long as the litigant alleges the requisite
“concrete” and “individuated” harm
o But, members of a minority group will not from that membership alone derive standing to litigate
against governmental conduct which denigrates that minority group (i.e. an abstract stigmatic
injury generally caused by racial discrimination)
(ii) TRACEABILITY
 Injury must be fairly traceable to D’s unlawful conduct or policy—Court is not interested in playing
with percentages / speculating
(iii) REDRESSABILITY
 P must allege and prove that D caused the injury so that a favorable court decision is likely to
remedy the injury
o If ruling for P has no effect, then it is just an advisory opinion, which is prohibited!
o The relief being sought, if granted, has a reasonable likelihood of redressing the injury
5
Muskrat v. United States, 1911
 Substantive legal issue: can Congress change the substantive law to increase the beneficiaries to Cherokee
land?
 Court says not this suit because:
o Case  must be instituted in the course of regular judicial proceedings
 This isn’t the problem
o Controversy  only applies to civil matters, narrowly construed
 This also is fine
 President Jefferson asks the court if he can do something and wants the court to say yes (i.e. gets court’s
advice) but court says they cant give him that advice because:
o 1. Facts  when court sees the facts, they may say “based on these facts, that’s not what we meant”
o 2. Also missing an adverse party
 When we talk about adversity, United States would not be a proper ∆ because the United States
has nothing at stake; won’t cost them a penny but will cost either the 1902 or 1906 Cherokee
their land. Also, the 1904/06 Cherokee are not present in this case, so that’s why there is no case
or controversy because if the case went to judgment, then the 1904/06 Cherokee never had their
day in court (Due Process) so they would not be legally bound
 Are advisory opinions by courts unthinkable?
o No – Massachusetts has this but sets controls
o Lose some of the opportunity for factual development
o Lose some of the adversarial component
Allen v. Wright, 1984
 Parents of black public school children (P) alleged that the IRS (D) had not adopted sufficient standards and
procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools
 Want an injunction requiring IRS to deny tax exemptions to a considerably broader class of private schools
The Court held that Ps did NOT have standing under Article III based on 4 rationales:
(1) DOCKET
 If abstract stigmatic injury were cognizable, standing would extend nationwide to all members of
the particular racial grounds against which the Government was alleged to be discriminating by its grant
of tax exemption to a racially discriminatory school, regardless of location of that school
(2) SEPARATION OF POWERS
 The Constitution assigns to the Executive Branch, and not to the Judicial Branch, the duty to “take care
that the Laws be faithfully executed”
(3) GENERAL GRIEVANCE
 Generalized grievances should be resolved in the political process as opposed to the individualized
court setting
 The P must not be suing solely as a citizen or as a taxpayer interested in making the government follow the
law—But, if the P’s children had been denied admission to the private schools, there would be a cognizable
injury that could be challenged in the courts
(4) STAKE IN THE OUTCOME
 Makes it much more likely that the best arguments will be presented to the Court and the factual
background will be well developed. Court doesn’t think the Ps have a stake in the outcome, but they fought
this case all the way to the Supreme Court!
The Court also held that P did NOT meet the 3 standing requirements:
 (a) INJURY
o Issue #1 Ps claim they are harmed directly by the mere fact that the government is giving financial
aid to discriminatory private schools
 BUT this is NOT a cognizable injury unless Ps were personally denied equal treatment by the
challenged discriminatory conduct
6
Issue #2 Ps claim that the federal tax exemptions to racially discriminatory private schools in their
communities impair their children’s ability to receive an education in a racially integrated
school
 Since the children are personally being deprived of their right to attend racially
integrated schools, that IS a cognizable injury
(b) TRACEABILITY (Cause-in-fact is the problem here!!)
o Even if the IRS did not grant tax-exempt status to segregated private schools, it would NOT
necessarily create a desegregation of the public schools b/c rich white kids will still go
 At a minimum, it is SPECULATIVE whether withdrawal of tax exemption from any particular
school would lead the school to change its policies / have a significant impact on the racial
composition of public schools. BUT-- Is she asking for mathematical proof? Isn’t the fact that
the schools are fighting this proof?
 THUS, the Court concluded that the line of causation from the IRS’ conduct to the
continued segregation of the public schools was so attenuated that the segregation was
not “fairly traceable” to the conduct
(c) REDRESSABILITY
o This is fine.
o


House Resolution For Balanced Budget
 Ripeness problem—We don’t know how much money we will take in till next year.
 Justiceability Problem— How can the court decide how the money should be spent, and what budgets
should be cut
 Standing problem— Who will be the plaintiffs? Congress unlikely to let taxpayers sue, and Congress can’t
sue since they aren’t being hurt directly.
 Political Question—since how will judges fix the remedy?
THE FEDERAL LEGISLATIVE POWER
Federalism Outline
 Federal System
o The US has a federal system, in which the national government and the government of each of
the states co-exist
 Federal Government Has Limited Powers
o The federal government is one of limited, enumerated powers
o The 3 branches of the federal government may only assert those powers specifically granted by
the US Constitution
 “Necessary and Proper Clause”
o However, Congress has the power to make all laws that are “necessary and proper” for carrying
out its enumerated powers
o So, if Congress is seeking an objective that falls w/in the specifically enumerated powers,
Congress may use ANY means that is rationally related to the objective being sought, and that
is not specifically forbidden by the Constitution
Arguments for a Centralized vs. De-Centralized Government
 Pro-Decentralized Government
o MAXIMIZE TOTAL WELFARE— A federal solution is almost always a uniform solution, but
conditions on the ground vary from state to state. If we had smaller communities, they could better
channel that money to fit people’s needs and could offer better services to people
o DEMOCRATIC VALUES— If you represent less people, you are more responsive to them
o PROMOTE LIBERTY—Communities that are smaller can decide for themselves what rights they
most prize and allocate accordingly
7

Pro-Centralized
o PROMOTE LIBERTY—We don’t want to leave it to individual states to protect essential rights
o NATIONHOOD— There are certain fundamental values we hold as a nation that should be uniform.
– If you concentrate power in a large central government, the power of one homogenous faction
will be diluted and won’t be able to impose their views on others
o MAXIMIZE WELFARE—If will benefit the entire nation if the federal government can regulate the
economics of the country
Specific Powers Given to Congress
Art. 1, § 8 contains 18 clauses granting power to Congress, including the power to:
 Lay and collect taxes
 Provide for the defense of the country
 Borrow money on the credit of the US
 Regulate commerce w/ foreign nations, and among the several states
 Regulate immigration and bankruptcy
 Establish post offices
 Control the issuance of patents and copyrights
 Declare war
 Pass all laws needed to govern the District of Columbia and federal military enclaves (i.e. military bases)
and
 “Make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the Government of the United States”
1. NECESSARY AND PROPER CLAUSE
McCulloh v. Maryland, 1819
 In 1918, the Maryland Assembly enacted an anti-bank Act to impose a tax on all banks or branches in the
State of Maryland that were NOT chartered by the State Legislature (i.e. the Second Bank of the US).
Intended to discriminate against the national banks MD branch.
 Holding #1: The Court held that the chartering of the Bank was within the constitutionally-vested power of
the federal government (Congress had the power to incorporate the bank)
o Post-ratification HISTORY shows that the first Congress enacted the National Bank bill
 It was signed by President Washington / Jefferson and Madison eventually thought it was
constitutional
o ORIGINAL MEANING/INTENT if they’d wanted to limit Congress’s power to only those things
expressly stated, they would have said so.
o IMPLIED POWERS particular powers can be implied from the grant of other powers.
o CCONSTITUTION IS A GUIDE Should be interpreted broadly, because otherwise
FUNCTIONALLY/PRACTICALLY cannot carry out powers without exercising implied powers (Post
office example).
o TEXTUALLY Under the “Necessary and Proper Clause,” Congress has the power to take action
to carry out their enumerated powers, as it is placed in Congress’ list of affirmative powers in
Article I and it does NOT use “absolutely necessary” or “indispensable” language. Rather, so long as
the means is RATIONALLY RELATED to a constitutionally-specified object, the means is also
constitutional
o PROBLEM Never says what the constitutionally specified objective is.
o POLITICAL THEORY power of sovereignty resides with Congress, people gave them the ability to
make decisions that affect all.
 Holding #2: The State of Maryland’s taxation of an instrument of the federal government is
unconstitutional
 Although both the federal and state governments have the power to tax and there is no express provision
of the Constitution states that States cannot tax the federal government, BUT Marshall concludes that
Maryland can NOT structure a federal instrument because:
8
o
o
STRUCTURAL/SUPREMACY argument Power to tax is the power to destroy, and giving states
the power to tax the federal government is giving them the power to destroy it.
POLITICAL THEORY a part cannot impose a tax on a whole one state cannot impose a tax on
the federal government, which represents all states.
United States vs. Comstock, 2010
 Law allows government to keep sex-offenders in federal commitment for longer than their sentence.
Assumes constitutional if it were a state law but question before court is if federal government can do
what the states can do?
 Is creation of Federal Offenses an enumerated power? No. BUT Necessary and Proper clause can be used
to create crimes for violating laws made pursuant to enumerated powers.
 Five Considerations uphold Law:
(1) N&P clause very broad – can use any means to achieve its end
 BUT all of the reason why you necessarily have to imprison someone don’t apply to the next
step; additional step after punishment over and done
 Breyer responds by saying history of federal commitment, so:
(2) Statute is a modest addition to a number of prison-related mental-heath statutes that
have already existed
 Examples that he gives are Army/Navy and DC BUT not in control of any state; only in
control of the federal government
 Same with people already in federal custody awaiting trial → totally different situation
(3) Reasonable extension to sexually dangerous people
(4) Accounts for the states’ interest and
(5) Not too attenuated
 This is less of an intrusion than McCulloh since they created a whole federal system—greater intrusion on
states power BUT the need there was greater for the federal government to pay for it’s business.
 Thomas dissent Enumerated powers and N&P get you up to Federal Crimes originally in prison for
cannot extend this to completely UNRELATED imprisonment.
ALWAYS ASK  IF LAW INFRINGES ON STATE POWER?
2. COMMERCE CLAUSE

The Commerce Power
o Article I, § 8  Gives Congress the power “to regulate commerce with foreign nations, and
AMONG THE SEVERAL STATES, and with the Indian tribes”
 The national commerce was supposed to afford the means to end hostile state
restrictions, retaliatory trade regulations, and protective tariffs on imports from
other states
o Under the Articles of Confederation, Congress had no power to regulate commerce among the
states
 The Commerce Clause has warranted a major extension of federal power in the modern era
o The Commerce Clause serves 2 distinct functions:
 (1) It acts as a source of congressional authority
 (2) It acts, implicitly, as a limitation on state legislative power (the DCC)
9
EARLY CASES (Pre-1936)
Expanding the Commerce Clause
Gibbons v. Ogden, 1824
 NY State legislature granted 2 men (Ogden) the exclusive right to operate steamboats in NY waters, BUT
Gibbons operated a competing steamboat service in violation of Odgen’s monopoly, but licensed by federal
law as a “vessel to be employed in the coasting trade”
 Issue→ Supremacy Clause says federal law governs, but is the federal law constitutional?
 Did Congress have the authority under the Commerce Clause to pass such a law? Marshall says YES.
o EXPANSIVE/BROAD Interpretation of Commerce Clause Commerce includes not only sale of
goods but ALL COMMERCIAL INTERCOURSE.
o Congress can regulate matters that are INTRASTATE IF they have an effect on INTERSTATE
Commerce.
o Congress has power to OVERRIDE STATE’S INTERESTS when regulating Commerce limited
only by other parts of the constitution.
Regulation of Interstate Commerce vs. Manufacture / Production of a Product
E.C. Knight Case, 1895 (The Sugar Case)
(Commerce = shipping and selling, NOT manufacture)
 The Court dismissed the government’s claim of sugar monopoly, despite the fact that a sugar monopoly
would raise the price of sugar and profoundly affect products that include sugar, because Congress did NOT
have the power to regulate the manufacture and creation of a product
 Congress can regulate the interstate sale and shipping of sugar, but can NOT reach all the way back in the
business cycle to reach manufacturing and production. Uses words like INCIDENTALLY, PRIMARY VS.
SECONDARY, INDIRECTLY.
 Bad case to limit commerce clause laws against monopolies, job of federal govt. to step in, power to
legislate against monopolies is not mutually exclusive—both states and feds can do it. Court just not ready.
Economic Regulation → The Origins of “Substantial Economic Effects” Approach
 During the time period from 1880 to 1937, Congressional regulation was found to fall w/in the Commerce
power so long as the activities being regulated had a “substantial economic effect” upon interstate
commerce
The Shreveport Rate Case, 1914
(Congress Can Regulate Intrastate Carriers w/ Sub. Effect on IC)
 The ICC ordered several railroads to end their practice of setting rates for hauls between points WITHIN
Texas proportionately lower than their rates for transportation from Texas. (They could raise rates for TX
or lower rates for Interstate). Railroads argued that this was INTRASTATE
 The Court sustained Congressional authority to reach intrastate rail rates that discriminated against and
affected interstate railroad traffic.
 Since setting shipping rates that are much lower within state than out of state negatively affects the
commerce of other states by deterring manufacturers from shipping their goods outside the state, the
intrastate activity has a substantial effect on interstate commerce and thus can be regulated by Congress
 Earlier, in E.C. Knight, said they would not interfere, here they allow it and defer to Congress. Possible
justification—ACTUAL, PHYSICAL railroad moving INTRASTATE and then INTERSTATE.
“Police Power” Regulations and the Commerce-Prohibiting Technique
 Instead of trying to regulate local activities directly, Congress used the technique of prohibiting interstate
transport of certain items or persons (i.e. “commerce-prohibiting technique”)
 This “commerce-prohibiting” technique was used not only for pure economic regulatory matters, but also
for “police power” or “moral” regulation
10

The driving power behind these statutes was to regulate basic vices of society but the form of regulation
was to prohibit certain types of interstate movement. The Court was substantially more sympathetic to this
“commerce-prohibiting/police power” technique than to direct regulation of interstate affairs.
Champion v. Ames, 1903
(The Lottery Case) (Cong. Can Reg Interstate Shipment of Lottery Tickets)
 Court upheld the Federal Lottery Act of 1895, which prohibited interstate transporting of lottery
tickets (which were thought of as a social vice)
 Argument: they are not REGULATING, they are PROHIBITING.
 SCOTUS: Since Congress was actually regulating the interchange of goods between states, and not
interfering w/ intrastate matters reserved for state control, the Act was constitutional, despite Congress’
motive, which is irrelevant (Court agrees lottery tickets are polluting Interstate Commerce).
 Motive does not matter, Means that Matter.
Hammer v. Dagenhard, 1918
(The Child Labor Case) (OVERTURNED – Not followed)
 Congressional Act of 1916 (trying to regulate labor practices by regulating the transportation and shipment
of products) that barred the products of child labor from interstate commerce states with child labor will
have lower prices than other states Direct Economic Harm. Court strikes down law.
 Congress was attempting to reach the stage of manufacture despite its lack of authority to regulate
activity that comes earlier in the business cycle
 The goods shipped themselves were harmless / not part of the very evil sought to be prohibited
(unlike bad eggs / lottery tickets)
 BUT, the bottom-line rationale for the Court’s ruling was
(1) Outright judicial hostility to the regulation at issue and
 Particularly un-willing to allow congressional legislation which was pro-labor
 Thought legislation was an unwarranted interference with the free-market system



(2) The Court was concerned about 10th Amendment Intrusion on States Powers
 All manufacturing intended for shipment would be brought under federal control,
encroaching unconstitutionally on the authority of the states
BUT, how can a regulation exceed the commerce power (implying that it is a power delegated to the federal
govt.) and at the same time be reserved to the states (through the 10th Amendment), as Hammer suggests?
Holmes Dissent→ So long as the congressional regulation falls within the power specifically given to
Congress (here, the power to regulate interstate commerce), the fact that it has a collateral effect
upon local activities otherwise left to state control does NOT render the statute unconstitutional
10th Amendment of NO force (became majority view after 1937)
Court Barriers to the New Deal
(Emphasis on Form of Commerce, Not Outcome of Effect)
Carter v. Coal Co., 1936
(The Mining Case) (Wages/conditions Are NOT Commerce Despite Effect)
 The Court invalidated the act, which established min. wages for workers in coal mines
 The Act was found NOT to be a valid use of the commerce power b/c wages, hours of service and
working conditions are NOT interstate commerce, but are related to PRODUCTION (a purely local
activity) before and sale or distribution after shipping and sale
 If the conduct itself is not commerce, then it can’t be enough, even if it has a substantial effect on interstate
activities.
o PRODUCTION VS. SALE ARGUMENT again even though the materials produced would nearly all
ultimately be sold in interstate commerce, the production does not “directly affect” interstate
commerce
11

Dissent: POLICY JUDGMENT because Congress is the most REPRESENTATIVE BODY— We did it in
Champion (Lottery)—not PROTECTIONISM by a state Congress providing POSITIVE BENEFIT TO
COUNTY
Lochner v. New York (Baker Hours Legislation) No federalism problem, but turned over anyway. Basically
showing that court doesn’t think legislature should be controlling these things and concerns about big government.
SECOND WAVE (1937- 90s)

From 1937-1995, the Supreme Court broadly interpreted the scope of Congress’ power under the
Commerce Clause, beginning w/ the 1937 decision of NLRB v. Jones & Laughlin Steel Corp. The Court has
showed a vastly greater willingness to defer to legislative decisions
Expanding Substantial Economic Effect” → Loosening Nexus Required b/w Intrastate Activity Being
Regulated and Interstate Commerce
NLRB v. Jones & Laughlin Steel Corp., 1937
 Upholds NLRA making it illegal to fire employees over union activities. State argues that this is regulating
local industry and PRODUCTION.
 4th largest steel producer so labor unrest has SUBSTANTIAL EFFECT on economy and interstate
commerce. This would probably NOT WORK if this was about pencils. ****Keep that in mind when
making argument.
 Try to DIFFERENTIATE E.C. Knight and Carter Coal Talk about the EFFECT on INTERSTATE
COMMERCE instead of the ARTIFICAL line they were drawing before between production and sale.
 Dissent Commerce definition is OPEN-ENDED (Maj. Yes, true Want states to exercise opinions and
power in legislature).
 THUS, even intrastate labor practices may affect interstate commerce if they have a close and
SUBSTANTIAL relation to interstate commerce. It does NOT matter whether the activity being
regulated occurs before, during or after the interstate movement anymore
The” Commerce-Prohibiting” Technique (Police Power Regulations) → Substantially Broadened
United States v. Darby, 1941
 Upheld law making it illegal to ship things in interstate commerce where the manuf. has not complied with
min. wage or max. hours requirements. OVERTURNED Hamer v. Dagenhart (Child Labor Case)
 Shipping of good is surely Interstate Commerce MOTIVE DOES NOT MATTER
 Motives are for the legislature to discuss and decide—Congress doesn’t lose it’s power to legislate
interstate commerce because it motives are not commerce related.
 Congress BETTER POSITION to determine harmfulness to states (Political Theory). States have a say in
legislature.
 Exclusions for very small businesses always.
 10th Amendment is a Truism 10th Amendment refers us to the list of Congress’ explicitly enumerated
powers, and if the exercise of power falls underneath the broad scope of the Commerce Clause, then that’s
the end of the story!
The” Cumulative Effect” Theory→ Second Major Expansion of Commerce Power
 Congress may regulate not only acts which taken alone would have a substantial economic effect on
interstate commerce, but also an entire class of acts, if collectively the class has a substantial
economic effect (even though one act w/in it might have virtually no interstate impact at all)
12
Wickard v. Fillburn, 1942
(Producing Home-Grown Wheat, In Aggregate, Substantially Affects IC)
 Filburn, a dairy farmer in Ohio, sued Sec. of Agriculture, to prevent enforcement of a penalty imposed on
him for exceeding a market quota for wheat that had been established for his farm- for personal
consumption— excess wheat was just for home consumption and NOT used for sale on the open market for
profit. Congress regulating PERSONAL CONSUMPTION
 Court upheld quotas b/c aggregate, growing wheat for home consumption will have a substantial
effect on interstate commerce Reasoning: Every bushel of wheat Filburn consumes at home is one less
bushel of wheat he doesn’t have to purchase at the market
 Protection of the interstate commercial trade in wheat clearly falls within the commerce power, and
the regulation of home-grown wheat is reasonably related to protecting that commerce.
 Wickard also stands for the proposition that Congress can regulate purely intrastate activity that is
not itself “commercial” (not produced for sale) (used in Gonzales v. Raich)
 Congress MAY have considered exceptions for home-grown wheat decided it has a substantial
effect or not considered it Not for Court to decide.
Civil Rights Cases— Commerce Power for Social Ends: Ban on Discrimination in Public Accommodations
Heart of Atlanta Motel, 1964
 Motel next to interstate highway so easy case.
 NO INSISTENCE ON PROOF OF EFFECT ON IC— would be hard to quantify—but this is essentially a freeze
on interstate commerce for African-Americans
 DEFERENCE TO CONGRESS Question of SUBSTANTIALITY and CONNECTION between commerce and
discrimination for Congress to discuss and decide.
 So long means Congress chooses are reasonably adapted to the ends, and WITHIN BOUNDS of Const.
Court shouldn’t comment
 TOOL: substantial effect on people traveling interstate
Katzenbach v. McClung, 1964
 Court upheld the application of Title II to Ollie’s BBQ, a family restaurant in Alabama located 11 miles from
an interstate highway.
 Court uses clause in act saying “Subs. portion of food served ($70K)... has moved in commerce.”
Congress thinking ahead?
 Also AGGREGATION argument Amount of food in Ollie’s small BUT racial discrimination in restaurants
placed a burden on interstate commerce b/c it caused a total loss of customers in restaurants, theaters, and
like establishments, discouraged black people from traveling if they had no where to eat, and deterred
professional / skilled people from moving into areas where such practices occurred.
 BUT Technically also impeding interstate commerce because Ollie’s does not want to integrate because
it will lose business and therefore buy less food. Other restaurants can mount an as-applied challenge.
 MOTIVES DO NOT MATTER.
How Searching Should a Judge’s Review of Congress’ Exercising of Commerce Clause Authority Be?
 Rational Basis→ The court will uphold a Congressional assertion of power as long as Congress could have
rationally believed that the activity, when viewed in the aggregate, could have a substantial effect on
interstate commerce
 Judicial Restraint→ Intervene only when Congress has infringed on individual rights
 Strict Scrutiny→ Is there a compelling governmental interest to address this Congressional action?
13
RECENT CASES (1995-Present)
United States v. Lopez, 1995
 Strikes down Gun-Free School Zones Act (making it a federal offense for an individual to knowingly possess
a firearm in a school zone), passed under Congress’ authority under the Commerce Clause.
 3 Broad Categories of Activities Recognized where Congress can use Commerce Power. Congress may
regulate:
(1) Channels of Interstate Commerce
 Places where commerce occurs, and shipments of goods across state lines using channels.
 Lottery case, Darby etc. E.g. highways, waterways, railroad routes etc.
(2) Instrumentalities of Interstate Commerce, or persons or things in IC, even though the
threat may come only from intrastate things.
 Shreveport Rate case
 E.g. Telephones, internet, planes, trains
(3) Substantial Relation to Interstate Commerce
 Not merely affect but Substantially Affect
 Congress cannot regulate LOCAL, NON-ECONOMIC activity, based on tenuous connection to commerce.
NEEDS TO THINK ABOUT CONNECTION didn’t even give one here.
 LEVEL OF GENERALITY too high No answer to WHAT IS LIMIT? Too general.
 To support its holding, the Court uses the RATIONALE that its decision:
(1) Is in accord with PRECEDENT
(2) Congress, in the statute at issue here, is NOT trying to ADMINISTER a larger regulatory
scheme of economic activity, but is just trying to criminalize mere possession
 Unlike the wheat-growing regulation in Wickard, the regulation here was NOT part of a
larger regulation of economic activity, in which the regulatory scheme would be undercut
unless the intrastate activity were regulated
(3) Under a FORMALIST approach, there is NO jurisdiction element in this statute that ensures on a
case-by-case basis that the firearm was purchased through interstate commerce
 Congress could have made it a crime only to possess a gun that had moved in interstate
commerce, but Congress didn’t do so
 Kennedy Concurrence Wants STONGER CONNECTION to COMMERCE
 Thomas’ Concurrence→ The “substantial effects” test is far removed from the original understanding and
early case law
 Dissent: Breyer + Stevens, Souter and Ginsburg
o The specific question before us is NOT whether the regulated activity sufficiently affected interstate
commerce, but whether Congress could have a RATIONAL BASIS for concluding that the
regulated activity sufficiently affected interstate commerce CONGRESSIONAL DEFERENCE
o Majority’s holding creates 3 serious legal problems:
(1) Runs counter to modern Supreme Court cases on the Commerce Clause
(2) Majority focuses on the distinction b/w commercial and noncommercial activities,
instead of focusing on whether the activities affect interstate commercial activities The
line is too hard to draw
(3) The Court’s holding threatens the legal certainty of an area of law that was reasonably
well-settled
 Souter’s Dissent→ This decision tugs the Court off course, with the rule of restraint.
 Steven’s Dissent→ Congress may prohibit possession of guns in particular markets, as there is a NATIONAL
INTEREST in eliminating that market.
14
United States vs. Morrison, 2000
 Violence against women act said that a woman who was a victim of such a gender-motivated violent crime
could bring a civil suit against the perpetrator in federal court. Struck down (only this part).
 The Court struck down the provision as unconstitutional because it was NOT a regulation of economic
activity, nor did it contain a jurisdictional trigger indicating that the activity was in some way linked to
interstate commerce, and therefore EXCEEDED Congress’ scope of power under the Commerce Clause
 A substantial effect, in the aggregate, on interstate commerce can NOT be based on non-economic
activity.
 Congress had findings but they were TOO ATTENUATED—LEVEL of GENERALITY too high.
 Cannot think of Economic Activity in Abstract— think together with SEPARATION OF POWERS.
 Souter’s Dissent→ It is up to CONGRESS, not the courts, to decide whether an activity has a substantial
effect on interstate commerce
o The courts are to determine only whether Congress’ conclusion has a RATIONAL BASIS.
 Congress assembled a mountain of data showing the effects of violence against women on IC
Gonzales v. Raich, 2005
(Congress Can Reg Intrastate Product/Posses of Economic Activity w/Effect on IC)
 California authorized limited use of marijuana for medicinal purposes to “seriously ill” residents
 Ps brought this action against the Attorney General and head of DEA seeking injunctive and declaratory
relief prohibiting the enforcement of the Federal Controlled Substances Act (CSA) to the extent it prevented
them form possessing, obtaining, or manufacturing cannabis for their personal medical use
 Conflict between Federal and State laws Federal law prevails ONLY if constitutional (Supremacy
Clause), and Ps argue that Congress lacks power to apply the CSA “as applied” to THEM b/c it is
attempting to regulate local, non-economic activity (did NOT challenge CSA “on its face”).
 Congress CAN regulate the production of marijuana, which is an ECONOMIC activity, since such production
has a substantial effect on interstate commerce and the cultivation and use of marijuana at home IS
economic in nature b/c:
o (1) There will be an effect on the market since users won’t have to buy marijuana on the market.
AGGREGATION ARGUMENT (Wickard).
o (2) The CSA regulates the production, distribution, and consumption of commodities for which
there is a lucrative interstate market—INTRASTATE control is required to achieve the end goal.
 Scalia’s Concurrence→ Congress may regulate noneconomic, local, and intrastate activity if that
regulation is a necessary part of a more general comprehensive scheme of regulating interstate activity.
 O’Conner’s Dissent→ The homegrown cultivation, personal possession and use of marijuana for medicinal
purposes has NO apparent commercial character separate class of activity w/ no impact on the national
illicit drug market
Commerce Clause Overview and Arguments
Significance of Lopez, Morrison, & Raich
 Effect on interstate commerce must be SUBSTANTIAL— An incidental effect on commerce is NOT enough
 Commercial Transactions— When the transaction being regulated is itself a clearly COMMERCIAL or
economic one, the Court will probably continue to allow Congress to regulate that transaction, even if it’s a
completely intrastate one, as long as it’s part of a class that, in the aggregate, substantially affects interstate
commerce (Gonzales v. Raich)
o BUT, where the activity being regulated is essential a NON-COMMERCIAL one, the Court
apparently will NOT regard the aggregate impact of that activity on interstate commerce as being
sufficient (Morrison v. Olson), UNLESS either
 The causal link is extremely short and direct or
 The item being regulated, although non-commercial, crosses state lines or enters the stream
of commerce
 Part of a larger regulatory scheme (Wickard)
Contd...
15



Findings
o The fact that Congress has made particular findings that an activity substantially affects interstate
commerce may make some difference, but is unlikely to be dispositive very often
o Lopez and Morrison courts were unswayed by detailed findings
Jurisdictional Hooks
o Where Congress drafts the statute in a way the requires a jurisdictional hook b/w the particular
activity and commerce, the act is quite likely to be found w/in the Commerce power
Think about FEDERALISM
o Is the federal government needed to step in and do something? (Not the case in Lopez or Morrison)
o State support or opposition not dispositive We do not allow temporary ebbs and flows in
federalism that allows the Feds or States to grab power with each other’s consent. This is a
protection for the people.
Who Should Police Congress’ Authority Under the Commerce Clause (further analysis of Lopez)
COURT (Lopez Majority / Kennedy’s Concurrence)
 INSTITUTIONAL LOGIC Congress will overreach if they police themselves / need the Court to serve as a
check on its power
 PROTECT LIBERTY Majoritarian rule can be threatening to our system
 JUDICIAL EXPERTISE Judges have experience in interpreting the law and are experts in their field
CONGRESS (Breyer’s Dissent)
 PRESIDENTIAL VETO (Separation of Powers) The President has the power to veto congressional
legislation that seems to overreach. Check.
 POLITICAL SAFEGUARD If people do not like what’s happening, they can vote their reps. out of office
 HISTORY OF STATE’S RIGHTS Individuals need certain protections, but states are not individuals
 INSTITUTIONAL COMPETENCE Congress can hold hearings and collect evidence, whereas the court is
limited to the parties in the case
3 Different Approaches to Constitutional Interpretation of the Commerce Clause
View #1: ORIGINALISM (SCALIA / THOMAS)
 Commerce Clause should mean exactly what it meant back when the Constitution was ratified in 1789
 Changes in the world should NOT change the powers of the government to act under the
Constitution, as the effect of the government’s power should be frozen in time
 Since Congress’ power under the Commerce Clause was limited to a vary narrow scope in 1789,
because of what constituted commerce back then, Congress’ can not exceed that original scope of power
View #2: MAJORITY OPINION IN LOPEZ (REHNQUIST) / KENNEDY VIEW
 In spite of the changes in the world, we should be faithful to the original balance and place limits on
what Congress can do
 Congress must have the ability to reach things that it could not have reached back in 1789, BUT
Congress’ power under the Commerce Clause can NOT grant unlimited power
View #3: BREYER / SOUTER VIEW
 Because the world has changed, there is nothing that Congress can’t reach today under the
Commerce Clause The Commerce power should e applied to all activities that “substantially affect”
interstate commerce
16
Pros / Cons of Originalism
PROS
 Promotes CONSISTENCY in Constitutional interpretation We can have confidence in what the document
means and this meaning will NOT change from day-to-day
 Promotes DEMOCRATIC VALUES The Constitution was ratified by the people and therefore should be
binding on all judges
 Constitution is a form of HIGHER LAW If the Constitution only means what we want it to mean, it is just
a makeview and is not law in its own account
 The Constitution is a CONTRACT between the people and the states And this contract specifies
itself how we can change it if we want to do so
 Constraining judicial DISCRETION Constrains the ability of judges to impute their views onto the
rest of the public
CONS
 FLEXIBILITY The Constitution is NOT a tax code, but intentionally broad
 INDETERMINANCY  There is no reference to current issues in the Constitutional debates—
Therefore, Originalists just get to pick and chose their historical evidence of support from the historical
record and can use it as a guise to import their own views as well
 LEGITIMACY We follow the Constitution because we believe its legitimate, but to the extent it diverges
from our principles and values today, it becomes less viable and legitimate
 ANTI-DEMOCRATIC VALUES Originalism constrains the Court from protecting new groups of
people from discrimination
How Do We Understand What a Constitutional Amendment Means Today, If It Doesn’t Mean What It Did
When it Was Ratified? (i.e. alternatives to Originalism)
 STATE PRACTICES  How common is this approach in the United States today?
 PRACTICES ABROAD  How have other countries dealt with this issue?
 PRECEDENT  What has the Court said before on this issue?
3. THE TAXING AND SPENDING POWER
Article 1, Section 8
 The Congress shall have power to lay and collect taxes, duties, imposts and excises...—Tax Power
 To pay the debts and provide for the common defense and general welfare of the United States; but all
duties, imposts and excises shall be uniform throughout the United States—Spending Power
The Child Labor Tax Case, 1922
 After Supreme Court held that regulation of child labor through the Commerce power was unconstitutional
(Hamer v. Dagenhart), Congress enacted the Child Labor Tax Law of 1919. Under this law, every employer
of child labor was required to pay an excise tax of 10% annual profits
 Struck down because it was a PENALTY not a TAX—Clearly the PURPOSE is to STOP BEHAVIOR (child
labor) NOT RAISE REVENUE
 This is not disincentivizing behavior through taxes—because you don’t pay tax based on amount of child
labor, just a flat rate “tax” of 10% if you use any.
 IMPROPER MOTIVE for tax.
 BUT—Problems with thinking about Motive? MULTIPLE MOTIVES—What is primary (raise revenue?) and
what is secondary (stop child labor?) or is it vice-versa.
17
United States vs. Kahriger, 1953
 Excise tax imposed on gambling businesses, which were generally illegal. 1% of profits, normal annual tax,
register with IRS if gambler. Applies to intrastate and interstate gambling
 Why didn’t Congress use Commerce Clause to make illegal? Was already illegal in the states and not
working—Easier to enforce the taxes that are facilitating the gambling because the IRS is already in place
and structurally capable of this regulation. TOOLS to make ENFORCEMENT EASIER.
 If they can figure out who is a Gambler they can figure out whether they’re paying taxes and easier to get
them that way.
 This was NOT going to raise a lot of revenue and clear motive seems to be opposite of Child Labor
Case.
 BUT looks more like an Excise Tax than Child Labor Case since tax proportional to activity Congress is
trying to discourage.
 Court specifies that cannot have legislation that is Extraneous to any Tax Need—but not much concern,
always need taxes.
 Jackson Concurrence All taxes have economic and social consequences BUT does NOT LIKE the use of
tax code for those kinds of purposes.
 Frankfurter Dissent Unconstitutional infringement on states rights, purpose not to raise taxes but
regulate gambling. Raising some revenue cannot be the test.
Takeaway
 Cannot tax something you cannot regulate. E.g. speech, religion
 Taxing authority is used as a means of avoiding criminal laws—Less Due Process
 Less protection in civil law than criminal law
 Suggests outlawing tax if OUT OF PROPORTION to HARM being committed.
 Authority to tax pretty broad after this case.
United States vs. Butler, 1936
 Tax imposed to pay farmers to reduce their acreage; goal is price stability through reduction of supply.
Doing through the tax system essentially what they tried to do in Wickard using Commerce Clause.
 (Standing Issue here but court get’s around it—usually taxpayers cannot sue government for how taxes are
being spent).
 How broad is the power to spend money?  Clause says “provide for the general welfare” → This is a
debate.
 Argument of general welfare, can you regulate and spend money for general welfare?
 Cant regulate for general welfare → can only tax & spend for the general welfare
 This is consistent with federalism.
 Then argument about taxing & spending for general welfare and what that means:
o Madison: reference to other enumerate powers, so can only tax within the enumerated powers
o Hamilton: No, different, separate power from the enumerated power.
 Court takes Hamilton view.
 Makes sense to let the Congress decide what the general welfare is  Suggests some limits – not clear.
 BUT THEN: says that a different constitutional provision prohibits the act → regulation of production is up
to the states and cannot use money to accomplish indirectly that which you cant do directly
 Court says can’t use the tax money if it has an effect to regulate
o BUT Always some regulation effect of a tax → Jackson made this point in Kahriger because
always incentivize/ disincentivize people to do things based on tax
 Governments argument on the other hand was that it was VOLUNTARY → court doesn’t buy this
ECONOMIC COERCION.
 Stone Dissent Taking away benefit not same as threatening a loss. Under this theory, government could
never take away a benefit it provided. CANNOT HAVE SYSTEM where Federal Government cannot
IMPOSE RESTRICTIONS on use of its money.
 NO LONGER GOOD LAW GOVT. ALLOWED TO TAX FOR GENERAL WELFARE VERY FEW LIMITS.
18
South Dakota vs. Dole, 1987
 Background: Congress says you will lose 5% of highway funds unless you raise the drinking age to 21
 Court assumes this could not be done directly because the 21st Amendment gives the states more control
over liquor laws than they have control over other things
 UNIFORMITY is not a justification.
 Here directly INFRINGING ON STATE RIGHT to regulate conduct of citizens. Also Stone argument does not
hold up because direct THREAT OF LOSS.
 Court upholds and lays out TEST for whether taking away spending is constitutional:
(1) For General Welfare
 Very broad. Will never second-guess Congress.
(2) Should give states choice to exercise their power. Congress needs to be CLEAR if it’s going
to infringe on power of States directly.
 To make Congress think about taking away state rights.
 Sensible but not meaningful distinction
(3) Should be related to Federal Interest or Project.
 Low bar—no qualifiers like substantial. Not much of a safeguard.
 Level of Generality—very general : Law could be about safe interstate travel or controlling
behavior of teens.
(4) Other Constitutional Provisions may provide an Independent Bar
(5) It Cannot be UNDULY COERCIVE
 Here they are only taking away 5% of money—“mildly coercive”
 Here, did everybody do it because 5% was coercive or good public policy?
 Is 5% the ceiling or the floor?
4. OBAMACARE
Commerce Clause and Necessary and Proper Clause
 Government’s argument is that this is part of a LARGER REGULATORY SCHEME  if we allow people to
opt out, somebody will end up paying anyway. Everybody agrees.
 Dissent’s Problem Regulating INACTIVITY (Ginsburg doesn’t care it hasn’t been done before, Roberts
and Scalia don’t want to stretch it to inactivity).
 If the dissenters are right then the easier solution is MEDICARE FOR ALL (everybody just get’s it – no
regulation of activity/inactivity)
 How can THE LESSER BE UNCONSTUTIONAL on FEDERALISM grounds but not the GREATER
suggests focusing on the means rather than the end too much and looking at Commerce Clause TOO
NARROWLY.
 This is NOT A COMMERCE CLAUSE PROBLEM/ FEDERALISM Argument  because the states cannot do
this either so it’s not infringing on a state right—no state had laws or anything against it.
 ALREADY MAKE PEOPLE TAKE CARE OF OLD AGE Social security and Medicare
 It does NOT matter that the STATES HATE IT—we didn’t care in Violence Against Women that states
loved it, so bad argument.
 LAISSEZ FAIRE Argument can’t control spillover. Congress can do it much more effectively. If states can’t
do it, or Federal Government can do it better—should weigh on side of letting Federal Govt. do it.
Spending Power
 Medicaid Issue  was not important but SC upheld law as long as it was VOLUNTARY so struck down
clause taking away all Medicaid funding.
 South Dakota Test (Modified):
o This is UNDULY COERCIVE
 BUT What is the line? 100% is surely a line.
 Should have thought about the minimum they could get away with smallest penalty for
compliance
19
 What is the problem with looking at percentage? Large budget vs. Small budget.
New Program vs. Old Program  Restraints on spending vs. Taking away money
 BUT this is basically a new program. Ginsburg, can they repeal and reenact Medicaid?
 Matter of degree—used to cover only a few people, now everybody.
o Does not give states an option or notice
 Concurrence: If you don’t accept it you will pay for it anyway (federal funds) BUT—federal
funds always go to needier states.
 States can opt out.
 Congress has ability to take away programs at will.
 Medicaid statute says it can be changed from time to time.
This is Not a Judicially Manageable Standard
o How much is too much
o Legislature to protect states CHECK can vote out their member of Congress.
o

Tax Clause –Upheld under this even though struck down under Commerce Clause
 Medicare is a universally accepted tax. If you can do the greater surely you can do the lesser. Tax
authority pretty broad in terms of health.
 Is this a tax or a penalty?  Matters a lot. Govt. called it a penalty because they didn’t want to “raise taxes”
 Are regulatory impacts a valid criticism to taxes? No.
o Does raise some revenue-- $4BB
o Very hard to figure out PRIMARY vs. SECONDARY motive.
 Dissent This is a requirement and therefore a penalty. BUT no, because no enforcement mechanism,
no criminal sanctions.
 Majority says taxing agencies are responsible for this—Dissent COULD have argued that IRS imposes
penalties for other agencies (e.g. EPA)
 Acts like a tax— annual, report on tax return, amount correlated to other income.
 If court had called penalty? Congress could fix it and call it a tax.
TAKEWAYS
 Congress has multiple TOOLS—can try them all. Might have to modify slightly but can achieve same basic
goal.
 Same kind of tool analysis applied in Commerce Clause cases
o Regulate means of interstate commerce
o Regulate products travelling in interstate commerce
o Regulate things that effect commerce if regulation is part of a scheme that affects commerce
 Motives do not matter
 Details matter—operationally and constitutionally
20
FEDERAL LIMITS ON STATE POWER
1. PREEMPTION—EXPRESS AND IMPLIED
The Supremacy Clause Article VI of the Constitution, which provide that the Constitution, and laws and treaties
made person to it, are the Supreme law of the land. Under this clause, the Constitution and federal laws take
priority over any conflicting state law.
Statutory Interpretation
 Each preemption case turns on the statutory scheme at issue in the case, a determination of congressional
intent in the setting of the particular tax, history and purposes of the federal legislation involved, and the
interplay between the federal regime and the state statute at issue to determine its intended impact on
state laws
 States have a say in protecting the rights of their citizens through tort liability.
 Court has said that there is a “presumption against preemption”
Silkwood v. Kerr-McGee, 1948
 Congress did not want anybody except the Federal Government to regulate Nuclear Safety did not want
states to drive out nuclear plants. Also:
o Expertise: much for efficient to have one group of people to have expertise
o More safety/More money Tradeoff: Congress decided that it is the best entity to decide on the
level of tradeoff
o Different standards in different states can be problematic.
 Argument against UNIFORMITY? Because then FEDERAL WILL ALWAYS TRUMP STATE.
 Problematic when FEDERAL government tries to regulate PRIMARY CONDUCT
 FIELD PREEMPTION—broadest but applied in the narrowest cases. E.g. Labor Unions - NLRA.
o How to show a case is NOT field preemption—when there is no alternative federal remedy. If
state remedy not allowed then there would be NO REMEDY.
 TENSION BETWEEN REGULATIONS? No, because in this case the court says it is NOT PHYSICALLY
IMPOSSIBLE.
o BUT even when sometimes it is not physically impossible, court has said that state laws cannot
“frustrate the purpose”
 Majority says that federal regulations and some punitive damages don’t always mean complete
preemption. (Dissent says opposite – will double costs of compliance).
US Term Limits v. Thorton, 1995
 Arkansas put term limits on electing people to Congress—not an absolute barrier, can still write in, but
much harder to win.
 HISTORICAL ARGUMENT  Proposal to let Congress set the qualifications for people but proposal
rejected.
o Anti-incumbent protection— Members of Congress are incumbents and would make it easier for
themselves to be elected. E.g. Powell Case: adding property requirements.
 Arguments FOR Term Limits
o ORIGINAL POWERS: States could do this before 1789—BUT there was no national legislature
before that.
o RETAIN original powers, not create new ones: Nothing in const. prohibiting states from doing
this—BUT nothing allowing either.
o ENUMERATED POWER: States have power to decide place and manner of holding elections—BUT
this also means that those are the enumerated powers given to states and term limits not in there.
o No discussion in Constitutional Convention Framers may not have thought of this. Everybody
had property requirements etc. at that point.
21



Arguments AGAINST
o Elections are term limits
o Lame duck incumbents
o POLICY: Longevity means better relationship and better understanding, prevents staffers from
being ones making decisions.
o TEXTUAL: Article 1, Section 2—sets the qualifications. UNIFORM LEGISLATURE: Argument is that
this is the NATIONAL legislature, and these people make decisions for everybody. Cannot harm
national legislature.
Dissent agrees that property requirements for e.g. would not be constitutional so maybe just additional
requirements are unconstitutional?
Answer to preemption always up in the air.
SUMMARY: Congress May Preempt State Power to Regulate in 3 Ways:
(1) By EXPRESS statement (“Express” Preemption)
 Anytime Congress has authority to act, it can expressly declare through an express statement that
federal law is exclusive in that field and state and local law is therefore prohibited / deemed
preempted. Ex: “Only Congress may regulate the labels on meat”
 BUT, even when there is an express preemption provision, it is still not clear how far the
preemption should reach. Have to decide what Congress would have done, all statues are
different and court has to get into nitty gritty.
 Mostly this turns on statutory interpretation
(2) By IMPLIED occupation of the regulatory field (“Field Preemption)
 When Congress has occupied an ENTIRE field, and there is a federal interest in regulating that field,
state law is preempted
 The Court should assume that Congress wanted states NOT to have the authority to regulate in this
area, even if there is no obvious conflict between the federal and state regulations
 Also, when Congress has set up a federal agency and given it broad regulatory powers in a
particular subject area, this may indicate a congressional intent to preempt the field. E.g.
Immigration, Aviation
(3) By IMPLIED preclusion of conflicting state regulations (“Conflict” Preemption)
 When state law conflicts with federal law, state law must yield if not physically impossible to
comply with both simultaneously.
 If state and local law frustrates the purpose of a federal objective, then the state or local law is
deemed preempted.
 Need to know if Federal Law is CEILING or FLOOR?
 Conflicting Tactics Regarding Foreign Policy → Court is especially likely to find a conflict when a
state takes an action that affects foreign policy (Crosby v. National Foreign Trade Council)
 E.g. Each year, Secretary of Agriculture promulgates a regulation that forbids the picking and
shipping of avocados before a certain date to ensure quality and maturity (as a minimum standard
of quality and maturity), but California law prohibits the sale of avocados that contain less than 8%
oil
o BUT, the mere fact that federal and state law are different do NOT mean that they
necessarily conflict
o Ceiling or floor?
 If federal law is a ceiling / “THE standard,” then any more rigorous state law will
would be in conflict
 BUT, if the federal law is just a minimum standard, then more rigorous state
standards are permissible
 Court upheld ban on class actions in National Arbitration Act—states cannot allow class actions.
o This is implied preemption because they said it “frustrates the purpose”
o Not clear how, because it only frustrates the purpose of companies to get out of class
actions.
22
2. DORMANT COMMERCE CLAUSE
Grant of Commerce Power to the Federal Government is a denial of power to the states. Certain areas that states
cannot operate even though there is nothing explicit to say that they cannot. Only applies to the state.
I. Ships, Trains, & Trucks
Cooley v. Board of Wardens, 1851
 A state law enacted to regulate commerce by requiring ships entering and leaving the state’s harbor to
engage a local pilot to guide those ships was held valid under a federal law despite its incidental
regulation of commerce.
 This is the WORST case for UNIFORMITY—every harbor is different local people need to know harbor.
 UNIFORMITY Arg. ALONE is too BROAD—not irrelevant but have to ask why it is needed in each case.
 Just because Congress has some role, does NOT mean states have no role. Federal policy does not cut out
the states completely.
 Better argument is the need for LACK of UNIFORMITY Federal government should be worried about
harbor safety (National Problem), but cannot legislate, as it needs a LOCAL SOLUTION.
 Statute okay even though it affects interstate commerce.
Wabash v. Illinois, 1886
 IL Law saying that cannot charge customers or freight different rates for same distance.
 Problem court envisions: if states can change the amount, discriminatory
 If everyone can do it, would have chaos and should be done by Congress.
 Struck down but looks like legislative agenda, all conjecture and speculation. Not appropriate.
SC State Highway Department v. Barnwell Brothers, 1938
 SC passed a state law placing width and weight limitations on trucks operating on state highways. Upheld.
 No unfair advantage to South Carolina their trucks had the same limitation. No HIDDEN
DISCRIMINATION.
 Location—no Interstate travel was being burdened.
 South Carolina had LEGITIMATE PUBLIC SAFETY INTEREST in legislating—roads were bad and were
going to break from heavy trucks and too narrow for two 96 inch trucks to pass without obstructing the
view.
 States cannot enact anything they want they have to JUSTIFY it with GOOD REASON and CANNOT
PREJUDICE INTERSTATE COMMERCE.
Southern Pacific Co. v. State of Arizona, 1945
 There was a bill regulating length of trains but Congress did not pass it. Why? Do NOT read into
CONGRESSIONAL SILENCE. Could be any number of things, lobbying, lack of time, didn’t get votes,
President didn’t like it, Dept. of transportation could have opposed it. Sometimes they may not even
have thought about it.
 There is no FACIAL DISCRIMINATION—BUT Interstate trains affected much more and UNFAIR BENEFIT
to AZ.
o AZ employees have to break down trains; essentially a transportation tax; involuntary vacation
 BEHAVIOR OF OTHER STATES RELEVANT— Yes, not for standard but to estimate burden. Majority of
states will have to stop and make themselves shorter in AZ.
 PUBLIC SAFETY Argument unsound—30% more trains means more accidents, more employee injuries,
more environmental impact. NO REASONABLE RELATION TO SAFETY.
 WHAT IF ALL STATES DID IT (made different length requirements)—Interstate commerce would come to
a halt.
 What is the test of what is OKAY for Safety reasons and what is not? EXCESSIVE BURDENS on Interstate
Commerce are not allowed.
23
Kassel v. Consolidated Freightways Corp. of DE, 1981
 IA statute reducing 65 foot trucks within borders and restricting trucks to 55 feet.
 SAFETY Argument unsound—more trucks = more accidents, 65 (standard) v. 55 Ft. trucks have the same
breaking capacity, turning radius etc.
 EFFECT on INTERSTATE COMMERCE— trucks have to go around IA.
 HIDDEN MOTIVES/ UNFAIR BENEFIT—IA won’t have to repair roads b/c bigger trucks = more damage,
increased safety because no interstate trucks will go there.
 Differentiated from SC case b/c that was not about trying to keep down highway maintenance costs—
legitimate safety interest.
 EXCEPTIONS for IOWA
o Exceptions for big border cities—don’t want to hurt their commerce. (Safety argument works
against them here)
o Livestock exception – IA industry would be hurt by this.
 LEGISLATIVE HISTORY
o Important but not dispositive. In this case very clear.
o Committee Reports also useful but not dispositive. MULTIPLE MOTIVES.
II. Preventing Protectionism
Dean Milk v. City of Madison, 1951
 Effect of Madison inspection regulations, only Madison Inspectors allowed to inspect, is to exclude milk
from IL and some parts of WI.
 Material that SOME PEOPLE INSTATE HURT? Yes, but that cannot be the rule—otherwise would put that
in to always defeat dormant commerce clause.
 Court strikes down since Madison is rejecting wholesome milk, not just bad milk. No SAFETY ARGUMENT.
 Alternatives Send Madison Milk inspectors out of state; Use National Milk Standard (lower, but no proof
that it is bad).
 Citizens don’t notice but are losing out because less competition Farmers are winning (INTENSITY OF
INTEREST)
 Interest of both citizens instate and out of state to see there is COMPETITION.
City of Philadelphia v. NJ, 1978
 NJ says no out of state garbage because of Environmental Damage.
 EXCEPTIONS—swine feed. Maybe pig owners wanted cheaper out of state garbage.
 Is this Commerce? Yes. Cannot discriminate against other states moving their garbage around—Landfills
buying garbage—this is a MARKETPLACE.
 PROTECTIONISM—Court says yes, because trying to protect own environmental resources at expense of
others. (?)
 The law treats NJ garbage differently from PA garbage—but has not shown why PA garbage is worse.
 Cannot SHIFT BURDEN TO OUT OF STATERS (Like Kassel—Iowa truck case).
 Dormant cause is to PROTECT PEOPLE WHO DON’T GET A SAY. (E.g. PA people who can’t vote in NJ).
 NJ isn’t getting MORE garbage (There is a limit on Landfill space) Just a different ratio of PA to NJ
garbage.
 Limits to environmental protection.
Camps Newfound/Owatonna v. Town of Harrison, 1996
 Property Tax break for non-profits that are primarily serving Mainers.
 What is the commerce here? Similar to Heart of Atlanta Motels, impacts commerce because there is travel
to and from the camp and the camp is a purchaser and provider of goods; also people buying camp services,
which is commerce in itself
 EFFECT ON OUT OF STATERS— If camp stays in business, the out-of-staters will be footing the bill for this
tax because the camp will charge more since they have a cost they cannot get rid of
24




DISCRIMINATION: non-profits that cater to out-of-state consumers vs. non-profits who cater to Mainers.
Burden initially falls on the Maine non-profit organizations but the costs then will be paid by the out-ofstaters.
Situation where, in order for DCC to apply, Congress must be able to regulate it itself Surely IF Congress
CANNOT regulate under affirmative commerce clause, should pause before saying it is subject to the
dormant commerce clause
Scalia Dissent if this can be done through subsidies (which it can), why not do it through tax breaks?
Thomas Dissent Commerce Clause is an affirmative power and no such thing as DCC.
West Lynn Creamery, Inc. v. Healy, 1994
 Court invalidates MA law that imposed a tax on all sales of milk to MA retailers but then rebated proceeds
of the tax to MA dairy farmers, even though 2/3 of milk is coming from out of state
 Court admitted that could have done this another way  SUBSIDIES OKAY
o Take out of general revenue and somehow tie to the level of milk that they’re producing
o Instead of tax rebate reverse engineer to come out with the same figure
 As a matter of economics, would this work and is this any different from the tax rebate?
o The economic discrimination is the same whether done through subsidy or not – local producers at an
economic advantage created by the state
 Why do STATES PREFER TAX REBATE OVER SUBSIDY?
o As a legislator, would have to vote to give money out of treasury that the treasury already has
(subsidy) so need to budget for it and is subject to annual appropriations (subject to annual
review)
o On the other hand, tax rebates are already there and thus are there forever
 Should that control for constitutional purposes as well (why tax rebate better than subsidy)?
o Economic impact is the same in both cases, yet the court seems to assume that just because you can do
one that does NOT mean you can’t do the other but doesn’t explain why.
“Interstate Bribery Cases” – REVERSE DCC
 States paying money into businesses to come into the state (often get tax breaks on property and
sometimes income taxes)
 Are these good business for the state? Does these rules make economic sense?
o Dubious – businesses promise to do lots of things but they don’t actually end up happening and after
they get most of the tax breaks, they leave of close down the plant, so states have tried to put in
“clawbacks”  if we give you certain benefits and you don’t carry out your end of the bargain, we get
back the benefits that we give you
 Do these state subsidies violate the dormant commerce clause? Are they improper under Camp
Newfound
o Strong dormant commerce clause argument here for discriminating; favoring out of state businesses
to bring into state
o Creates interstate bribery effect with competition  argument on other side is that it protects the
state from itself.
III. Market Participant Exception
 Involves the state in a different role: as a market participant (acting as a private business)
 Exception to the dormant commerce clause that applies when a state government acts like a private
business, buying or selling goods or services in the market
Alexandria Scrap Case
 State gives preference in purchase of cars to in-state companies
 Without a doubt is a burden on out-of-state companies but is okay because the state is acting as a
purchaser and in doing so, no difference between a private business with who the state wants to work
with
 Says nothing in commerce clause prohibits state participating in the market and thus it’s okay
25
Reeves Case (Cement)
 Rather than the state acting as the buyer, the state acts as the seller but the same outcome arises; state can
contract with whomever it pleases
 Easier case because this is property of the state and it is just deciding what it is going to do with its
property and in-state people paid for this property so federalism concern is heightened here
 Don’t want to interfere with owners of property to get rid of own property
White Case (Boston)
 Require 50% of workers on construction site be city residents; court says no different because these
people are working for the city— it is okay for the municipality to have some say in who works for the city
 Here, burden is also on intrastate commerce because requires city residents not MA residents but court
doesn’t dismiss based on this – go right to the market-participant exception.
South Central Timber Development v. Wunnicke, 1984
 Court puts its foot down here and says this is too far – CANNOT IMPOSE REQUIREMENT FOLLOWING
PURCHASE
 Alaska isn’t just subsidizing an amount equal in cost of processing—that way the exporter could forgo the
subsidy and export the timber.
 Stronger Case for DCC when FOREIGN COMMERCE is involved because that is clearly federal.
 First Sale Doctrine Cannot dictate what buyer does after pays for product. Did not want to INTERFERE
with owners of property—lumber property of buyer. Trying to REGULATE DOWNSTREAM COMMERCE.
United Haulers Association v. Oneida Solid Waste Management, 2007
 Everybody has to send garbage to a state county dump. Private Companies pick up trash—charges private
companies to deliver. More trash = more fees.
 Clearly FACIALLY DISCRIMINATORY -- BUT NO ECONOMIC INTEREST.
 Court says okay because PUBLIC dump and govt. can control HEALTH AND SAFETY.
 BUT—some economic interest because system would not work unless everybody was in it.
 Alternative: County can also pick up trash for themselves and that would clearly be okay.
 Free trade important BUT—State can trump DCC and when taking into account health and safety of their
citizens.
 Also VOTERS AGREED to the burden of this costing more (unlike Dean Milk) democratic process.
Is the Market Participation Doctrine a Sensible Exception?
Pro-Exception
 When states act in the same way as private entities / businesses act, the playing field should be level since
there will be competition
 Such state actions have a very small effect on interstate commerce
 Basic notions of state autonomy / States should be able to purchase or sell what it wants
Anti-Exception
 Unworkable distinction
 Attempts to swallow up DCC’s force as an “end run” on the its authority
ABM Advice-- When thinking about these:
 Who is going to be benefitted?
 Who is going to be harmed?
 Who is burdened?
 Who participated in this decision?
 What is the impact?
 Is there a proper justification?
26
DCC Summary and Arguments

Modern Court’s Approach: 3 Categories
o Modern Dormant Commerce Clause decisions hold unconstitutional some but not all state regulations
that burden interstate commerce, under 3 different approaches:
o Category #1  FACIALLY DISCRIMINATORY (Philadelphia v. New Jersey)
o Statutes that make clear on their face that in-state interests are treated better than out-of-state
interests or burdens are imposed on out-of-state interests that are not imposed on in-state
interests
 State and local governments sometimes try to help out their local and state businesses at
the expense of out-of-staters
o Category #2  DISCRIMINATORY IN PURPOSE OR EFFECT (Kassel – IA Trucks, AZ Trains)
o These regulations do not actually state on their face that out-of-state interests are burdened in a way
that in-state interests are not, but they appear to be either motivated by such a desire or so clearly
have such an effect that the Court is willing to assume that they were motivated by that purpose
 Where simple economic protectionism is affected by state legislation, a virtually per se rule
of invalidity has been erected
 Category #3  BURDEN ON INTERSTATE COMMERCE (Southern Pacific Co. / Kassel)
o These laws are neutral in their application but nevertheless impose a burden on interstate
commerce or on an out-of state interest
 Non-discriminatory / presumptively constitutional
 Law that falls into this category will be upheld UNLESS its burden CLEARLY outweighs
the benefit the state receives from the law
If a legitimate local purpose is found, then the question becomes one of degree and the extent of the burden
that will be tolerated will depend on the nature of the local interest involved, and on whether it could be promoted
as well with a lesser impact on interstate activities
Views For / Against the DCC
Pro-DCC
o HISTORY There is vast evidence that the Framers were concerned about the states imposing burdens
on interstate commerce and imposing protectionist barriers on out-of-state businesses or activities.
 So, as a matter of history, this is exactly the sort of state regulation that the framers wanted
o ECONOMIC The state laws invalidated by the DCC hurt the free flow of goods and are not economically
efficient
o INSTITUTIONAL LOGIC Not realistic to think that Congress could act to preempt all state regulation
that burdens interstate commerce
o POLITICAL THEORY Some citizens of states bear the cost of other state laws, but don’t get to vote for
the representatives in that state / have no voice in that state’s legislature
Anti-DCC (Justice Scalia)
o TEXT There is no textual support for the DCC in the Constitution
o INSTITUTIONAL LOGIC DCC is anti-democratic b/c federal judges are NOT elected, yet they are
overturning state regulation that was democratically enacted
o SEPARATION OF POWERS Its up to Congress to preempt a state regulation
 If Congress doesn’t like these state laws, they can preempt the state legislation using federal
law
 Judges are acting as super-legislatures
o FEDERALISM Category #3 statutes are passed by the states to promote the general welfare and the
health and safety of their citizens and do NOT attempt to regulate interstate commerce, and thus should
pass constitutional muster
 DCC is just invalidating state action
27
3. INTERSTATE TAXATION
Quill Corp. v. North Dakota, 1992
 Before Quill the rule was that companies did not need to collect sales tax unless they had a physical
presence in the state.
 ND Supreme Court overturned this and SCOTUS agreed that there were no Due Process objections but said
that there were DCC objections.
 Adopts International Shoe type requirement to ensure Due Process is met
o Property
o Employees
o Sales in the states
 Signal to Congress that there is no Due Process objection and that they should LEGISLATE INTERSTATE
TAXATION.
 Why Congress?
o Court reluctant to overturn because of STARE DECISIS—companies rely on the tax rules.
o Undue burden to compute 6000 different types of taxes— job of LEGISLATURE to work it out
o Otherwise it would be JUDICIAL LEGISLATION – Court should not draw arbitrary lines, Congress
better equipped to take temperature of votes etc.
o No RETROACTIVE TAXES
 Not fixing this is INTERSTATE TAX SHELTERS—hurting in-state retailers. DCC being used by states to
hurt their own retailers and benefit out of state sellers—no taxes and cheaper prices.
 Read into CONGRESSIONAL SILENCE? No—because Congress thought there was a Due Process Problem.
 DCC being used to PERPETUATE discrimination instead of avoid it.
4. PRIVILEGES AND IMMUNITIES CLAUSE
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” –
Article IV




ALTERNATIVE TOOL to DCC. (So is the 14th Amendment – Equal Protection Clause)
In DCC we don’t need to show facial discrimination only “undue burden”—E.g. Kassel (IA Trucks), SC
Highways—can attempt to STRETCH P&I clause to fit DCC Cases.
This only refers to PEOPLE.
DOES NOT apply to CONGRESS—They must always discriminate between states to some degree—people
have protection from Congress in the form of CHECKS— Structure of Senate and House.
Baldwin v. Fish and Game Commission of Montana, 1978
 Court decides to not stop blatant discrimination—different prices for hunting licenses for in-staters vs.
out-of-staters.
 Only applies to IMPORTANT RIGHTS
 TEXTUAL PROBLEM— Article IV says “All P&Is”, BUT Voting is important—we don’t allow people to vote
in two states.
 All does not mean all—only most/many/some (E.g. In-state vs. out of state tuition allowed, subsidies
allowed).
28
SEPARATION OF POWERS


President / Congress Boundary Line
o President Can’t Make the Laws
 All the President can do is CARRY OUT the laws made by Congress
o Declaration of War
 Only CONGRESS, not the President, can declare war
o Appointments
 The President, NOT Congress, has the power to appoint federal executive officers
 Removal by Congress
o Just as Congress may not directly appoint federal executive officers, it may NOT remove
an executive officer, except by the special process of impeachment
o Removal of Federal Judges
 Federal judges can NOT be removed by either Congress or the President without impeachment
Other Issues
o Executive Immunity
 Absolute for President
o The President has absolute immunity from civil liability for his official acts
o Executive Privilege
 Presidents have a qualified right to refuse to disclose confidential information relating to the
performance of their duties (i.e. executive privilege)
 Outweighed
o Since the privilege is qualified, it may be outweighed by other compelling governmental
interests (i.e. the need for the President’s evidence in a criminal trial)
1. PRESIDENTIAL DOMESTIC POWERS
The President’s Powers
 Article II, § 1 provides, “the executive power shall be vested in a President…”
o Unlike Congress, whose powers are much more closely delineated, much of the President’s power,
in both domestic and foreign spheres, is IMPLIED
 Article II, Section 2 & 3 do give the President the power to…
o Take care that the laws be faithfully executed
o Make treaties
o Nominate ambassadors
o Grant pardons
o Be the Commander-in-Chief of the Army and Navy
Madison’s Federalist No. 51
 The aggregation of power in one person is the definition of tyranny
o The rule of law would be more likely to be observed if there were checks and balances
 Although an absolute separation of powers would be unfeasible and undesirable, we could prevent
one branch form becoming too powerful by creating a system of checks and balances
The President Has NO Right to “Make Laws”
 The President can NOT make laws, he can only carry them out
 The Steel Seizure Case: Youngstown Sheet & Tube Co. v. Sawyer (Pres Can NOT Make Laws)
o During the Korean War, President Truman sought to avert a strike in the nation’s steel mills
 President Truman therefore issued an executive order directing his Secretary of
Commerce to seize the mills and operate them under federal direction
 Congressional approval of the seizure order was not requested
o The steel companies sought an injunction to prevent the seizure
29
The Court struck down the seizure order, concluding that it was an unconstitutional
exercise of the lawmaking authority reserved to Congress
Justice Black’s Majority Opinion Formalistic / Textual Approach
 The President’s seizure order, w/out consent of Congress, was a clear usurpation of
congressional lawmaking power
 Can’t be justified under “Commander-in-Chief” power b/c the taking of private
property in order to keep labor disputes from stopping production of war material
was too far removed form the actual “theater of war” in which the President had the
right to set policy
 Nor could the seizure be justified under the President’s power to see that the
laws are faithfully executed, as the very language of the clause shows that the
President must merely carry out the laws, not make them.
Frankfurter’s Concurrence President can act in the absence of Congressional statute or
express Constitutional text, but only if history and practice has suggested that it is permissible to do
so
***Justice Jackson’s Concurring Opinion-> The President’s powers are NOT fixed, but
fluctuate, depending on their disjunction or conjunction w/ those of Congress:
 3 Categories:
 Where the President acts pursuant to express or implied AUTHORIZATION of
Congress, in which his authority it at its maximum (APEX) (GREEN light)
 Where the President acts in the ABSENCE of either a congressional grant or
denial of authority, in which case there is a zone of TWIGHLIGHT in which he and
Congress may have concurrent authority, or in which its distribution is uncertain
(YELLOW light)
 Where the President acts in CONTRADICTION to the express or implied will of
Congress- in this case, his power is “at its LOWEST EBB” (RED light)
Jackson thought that the steel seizure fell into this 3rd category and that it could therefore NOT be
constitutionally justified
Dissent  Temporary seizure was justified b/c of the emergency nature of the situation and in
order to preserve temporarily the status quo until Congress could act
Problem with reading into Congressional Silence
 No could mean in the past they agreed on the merits.
 How many similar acts without Congressional action count as history?
 What is a “similar” situation?
 Congressional silence may just mean silence and not acquiescence.

o
o
o
o
o
o
Implications of Youngstown
 Should We Interpret the Commander-In-Chief Position to Permit the President to Act in Matters of
War, Even if Congress Has Attempted to Prevent the President From Acting?
 Pros
o Modern warfare will sometimes require more flexibility for the President to act
o In matters of foreign policy, we want to speak w/ one voice
o Congress can act if they are unhappy
o We construe other powers in Article II to be exclusive to the President, why not here?
 Cons
o We may give the President too much power, w/out limits
o The Constitution divides power over war because of the threat to the liberties of the people if we
invested that power in one person
 Question for Thought If the nation were invaded tomorrow, while Congress is on recess, would the
President have the authority to act, under Jackson’s concurrence?
o Would be a “twilight zone” situation, since Congress is silent / on recess
30
ABM QUESTIONS AND ANSWERS
1. President Truman’s problem in Youngstown was that Congress had forbidden him from seizing the steel
mills, and he believed that his war powers permitted him to override that direction.
Wrong: Congress had not said anything explicit regarding seizing steel plants or anything similar. It had chosen
other means of dealing with labor unrest, and the President argued that those other laws had left him room under
his Commander-in-Chief and inherent powers to do what he did.
2. Justice Black argued that the President’s job is to execute the laws and not make them, which only
Congress can do. To Black, the Executive Order seizing the steel mills was legislation because it had all the
characteristics of legislation: it looked like a law; it was prospective only; and it included prohibitions
applicable to private parties. All of those were enough to make it a law that the President had no power to
issue.
Partially right: Black simply asserted that the Order was a law, but did not give reasons. The reasons given tend to
support that conclusion, but there are other reasons as well, mainly that labor unrest and the appropriate remedies
for it involved significant choices among competing public policies of the kind that are ordinarily left to Congress
and which Congress had addressed in various ways, not including authorizing the President to do what he did
there.
3. Justice Jackson’s division of the question of presidential power into three categories is very helpful in
answering most questions about whether the particular acts of the President are within his powers.
Partially right: Jackson’s three part analysis is a useful starting point, but his inclusion of implied as well as express
grants or denials of powers is flawed because Congress acts only by passing laws, not by anything short of that.
(Argument about reading into Congressional Silence too much). To be sure, courts can infer from what Congress
actually did in enacting a law that it would have (did) grant or deny the President certain additional powers, but
that is a matter of interpreting existing laws, not implying grants or denials based on what Congress did not enact.
4. Justice Frankfurter in his concurrence and the dissenters argued that a consistent course of conduct by
the President, to which Congress did not object, was a proper basis to conclude that the power to
undertake what he did there was one that the President could constitutionally exercise. That conclusion is
a sensible way to accommodate the interests of both Congress and the President.
Mainly wrong: the first sentence is a reasonably accurate statement of what Frankfurter and the dissenters said,
but the conclusion does not follow for several reasons. REASONS why it was not a proper basis Among those
include problems with determining how many prior actions are enough; how similar must they be; what other
reasons might there be for inaction, besides congressional agreement that the President has such powers; what
could Congress do if it disagreed with a particular action; and the powers of Congress and the President are limited
not to protect their offices alone, but to protect the people, and that allocation cannot be changed by agreement or
by something equivalent to adverse possession.
31
2. PRESIDENTIAL FOREIGN POWERS
Treaties
 A treaty is an agreement b/w the US and a foreign country that is negotiated by the President and ratified
by the Senate
(a) State laws that conflict w/ treaties are invalid
(b) If there is a conflict between a treaty and a federal statute, the one adopted last in time controls
(c) Treaties are invalid if they conflict with the Constitution
 Treaties are either “self-executing” which go into effect immediately or “non self-executing” that bind the
US but do not have any internal operative effect until internal legislation is passed.
Executive Agreements
(a) An executive agreement is an agreement b/w the US and a foreign country that is effective when signed
by the President and the Head of the foreign nation and approved by simple majority in both houses.
 If the document is titled an executive agreement, both
 If the document is titled a treaty, senate ratification is required / not effective without it
(b) No limit exists on the ability to use executive agreements for foreign policy commitments
 Anything that can be done by a treaty can be done by an executive agreement
 An executive agreement has never been struck down as unconstitutional or invalid
(c) Executive agreements prevail over conflicting state law, but never over conflicting federal law or the
Constitution
The President’s War Powers
The President has broad powers as Commander in Chief to use American troops in foreign countries
 Not once in all American history has the President’s use of American troops been declared unconstitutional
United States v. Curtiss-Wright, 1936
 Congress passed a Joint Resolution authorizing the President to ban the sales of arms to countries involved
in the border dispute between Bolivia and Paraguay. The President immediately made an Executive Order
banning such sales.
 Clearly a national/federal power to be able to tell ∆ to not sell arms—but is it an executive power?
 YES – This is an EXECUTIVE POWER. Cannot have different people negotiating with people at the same
time on behalf of the US—need ONE VOICE and CONFIDENTIALITY.
 No treaty here, only people being affected are DOMESTIC weapons manufacturers, this isn’t really foreign
affairs.
 NO SEPARATION OF POWERS ISSUE—President and Congress agree—should be given deference. BUT
Congress cannot delegate it’s powers over to the President—DELEGATION DOCTRINE.
 This is not delegation because it is in the REALM OF FOREIGN AFFAIRS.
 Why didn’t Congress just PASS A LAW? Because would then have to REPEAL THE LAW.
ABM QUESTIONS AND ANSWERS
1. As Curtiss-Wright holds, the President reigns supreme in all military and foreign affairs because the
nation must speak with one voice, which means that Congress has a very limited role.
Partially correct: The Curtiss-Wright Court surely did extol the virtues of Presidential power in foreign relations
and gave several examples where congressional involvement would cause problems in assuring that the nation
speak with one voice. But to the extent that Curtiss-Wright suggests that Congress has no role in foreign affairs,
including military matters, it overlooks several express grants of power to Congress in the Constitution.
2. Curtiss-Wright is properly described as a decision upholding the broad authority of the President in
foreign affairs.
32
Plainly overstated. There was an express delegation of authority from Congress and so the case falls into Jackson’s
first category. Second, the impact of the law would be felt mainly by US arms manufacturers who would no longer
be allowed to make sales to support the war in South America.
Goldwater v. Carter, 1979
 Carter terminated a treaty with Taiwan, and a few Congressional members felt that this deprived them of
their Constitutional function.
 Standing and ripeness sometimes looks like the same issues in certain circumstances → no uncertainty of
that kind here; if Senators harmed, are harmed just as much now as later
 Why does Powell say this is not ripe? → Senate could have passed a resolution saying that the President
doesn’t have authority to sign treaty without their consent; BUT president is not bound by this
 Fact that this is a political case does not mean it is a political questions. This is not the senate
questioning a policy decision of the President—it is whether the power to cancel treaties is
textually committed to the President alone or the senate.
 Plurality says Constitution speaks only of ratification and not ending treaties → textually correct
 Powell’s ripeness likely would not have been persuasive – hard to see why ripeness would matter; surely
someone would have standing if someone who lost money was suing
 Court here saying if not a political question, surely something on which the President has considerable
discretion as to how he is going to do it
 From a political question perspective, doesn’t seem to matter whether the substance of the treaty is
copyright or mutual defense – either it’s a political question or it’s not. On the merits, may give president
more discretion in some areas than in others
 This opinion was inconclusive.
ABM QUESTIONS AND ANSWERS
Goldwater v. Carter holds that all cases challenging a President’s decision to terminate a treaty are nonjusticiable.
Almost certainly an overstatement. Especially after Raines v. Byrd, Senators will not have standing to make such a
challenge, but it is hard to see that ripeness will be a real problem in other cases. As for political question, that may
be a ground when the treaty deals with military matters, but it is hard to see that a court would take the same
position if the treaty were in a commercial field (like copyright), especially if there were statutes that were enacted
under the treaty. And without an opinion for five justices, there is no clear holding.
Dames & Moore v. Regan, 1981
(President’s Power To Suspend Claims w/ Congress. Author. in Foreign Affs)
 As part of the settlement of the hostage situation, President Carter took a number of actions affecting the
claims of American creditors against Iran
o The action, which posed the difficult constitutional issue, was President Carter’s suspension of all
contractual claims against Iran then pending in American courts; such claims were to be later
arbitrated by an international tribunal
 The court found that claim suspension was WITHIN the President’s constitutional authority / the
President has the power to suspend pending claims against foreign governments where such action
is necessary to the resolution of a major foreign policy dispute and where Congress as acquiesced
o Relevant analysis comes from Youngstown / President’s suspension of claims of its citizens which
are pending against foreign governments in US courts is somewhere near the top of the spectrum,
falling into a broad Category #1
 IEEPA and Hostage Act indicate acceptance by Congress of a broad scope of
presidential power in suspension of claims
 While Congress had never explicitly delegated to the President the power to suspend such
claims, it had implicitly authorized that practice by a long history of acquiescing in
similar presidential conduct
33


Narrow holding Not power to settle claims for ALL claims, even against foreign governments
o Just where such settlement or suspension is a necessary incident to the resolution of a major
foreign policy dispute AND Congress has acquiesced in that type of presidential action
o Might even be in Category #2, but need to speak with one voice in foreign affairs bumps it up to a
higher category
Problems with Category #2 aka reading into Congressional Silence/Past acceptance. What is similar?
How many times do they have to have accepted? Did Congress not do anything because they agreed? Is this
a waiver argument because that’s not allowed? Did Congress acquiesce with a statute in the past?
ABM QUESTIONS AND ANSWERS
In Dames & Moore, the President took two sets of actions that were challenged: seizing of Iranian assets in
the US (taking control, like seizing steel mills) and requiring everyone who had claims against Iran to go to
binding arbitration, instead of going to court. On the first, the Court found that Congress had authorized
the seizure by statute, but if it had not, the President’s action would have been unlawful.
Partially right: everything up to the final clause is correct. The Court did not reach the latter issue, but if it had,
there is a strong argument that the President could have seized the assets to maintain the status quo until Congress
could act, under his inherent emergency powers. Unlike the action in Youngstown, this seizure would be for a
limited duration and for a specific purpose that is not inconsistent with any law that Congress had enacted.
The Court in Dames & Moore also upheld the mandatory arbitration despite the absence of a specific
authorization, which is directly contrary to the holding in Youngstown.
Largely incorrect: the Court did uphold the action despite the lack of a statute, but the facts were quite different in
several ways that the Court found relevant. These include a number of statutes in which Congress provided for
arbitration of disputes with foreign nations instead of litigation, although it did so expressly for each country.
Arbitration was part of a package in which Iran agreed to pay $1 billion to settle all claims via arbitration, without
which no money might have been available to pay any claims. The remedy provided was not inconsistent with
what Congress had done in other similar situations, unlike the remedy Truman wanted to use in Youngstown. And
Congress and two Presidents supported the plan, which made it possible to have our hostages returned, with only
a few claimants opposing it. To be sure, some of the same problems with Congressional silence/acquiescence are
also found in Dames & Moore, but it is an overstatement to say that the decision contradicts the holding in
Youngstown.
3. PRESIDENTIAL POWERS IN TIME OF WAR
The President, Congress, and the War Power
 Congress The power to “declare war” (Art 1, § 8, cl.11) & to raise and support armies and navies (Art. I, §
8, cl. 12 & 13)
 President Authority as “commander-in-chief” of the armed forces (Art. 2, § 2)
Writs of Habeas Corpus
 Entitles a person who has been imprisoned by the government to force the government to justify his
detention
o Affords a procedural right to a hearing to show why you shouldn’t be detained
 The Constitution’s “Suspension Clause” (Art. 1, § 9, cl. 2)  “The privilege of the writ of habeas
corpus shall NOT be suspended, unless then in cases of rebellion or invasion the public safety may
require it”
o Means that the Government can ONLY suspend the writ of habeas corpus to protect the public
safety in times of invasion, or rebellion
 Since Article 1 delineates the power to Congress, we can infer it is Congress who has the authority to
suspend the writ of habeas corpus
34
Hamdi v. Rumsfeld, 2004
(Sup. Ct. Holds that President’s Detainment of Citizen Enemy Combatant Okay)
 Hamdi, a US citizen, was captured while fighting against the US force in Afghanistan
o US forces designated Hamdi an “enemy combatant” and held him in naval brigs in US
o Hamdi sought habeas relief / Government argued that Hamdi’s status as an “enemy combatant”
justified holding him indefinitely without formal charges or proceedings
 The Court held that the government may detain citizens as “enemy combatants,” but due process
demands that they be afforded a meaningful opportunity to contest the factual basis for the classification
before a neutral decisionmaker
 Congress has specifically authorized the President’s acts of detention through the AUMF gives the
President authority to use “all necessary and appropriate force” against persons associated with the
Sept. 11, 2001 terrorist attacks) and the Non-Detention Act (passed by Congress in 1948, it says that no
citizen should be detained by the US EXCEPT pursuant to an Act of Congress), and therefore the
President’s actions fall under Category #1
o Implicit in the language of “force” under the AUMF is the military authority to detain people that you
capture
 Souter’s Dissent Hamdi’s detention is forbidden by the Non-Detention Act
o Congress mad a general rule in the Non-Detention Act that there can be NO detention without an act of
Congress SPECIFICALLY authorizing it
o BUT, the AUMF is NOT a clear statement that detention is authorized
o The President can NOT act in Category #3. The President might have some power in emergency
circumstances, but that is limited / not the case here
 Thomas’ Dissent The President’s decision that detention is necessary to protect the public should not
be subjected to judicial second-guessing
o The President might have inherent authority to detain, but we do not have to decide that question in
this case because Congress has authorized the President’s power to detain
 Scalia’s Dissent Writs of habeas corpus can only be suspended at times of rebellion an invasion by
CONGRESS
o For the President to deny access of procedural safeguards, Congress MUST have suspended the writ
and expressly taken away the right for these detainees to challenge their detention
o But here, the President has NO authority to take away this right and detain combatants because
Congress has not suspended the writ (not through AUMF or anything)
 ABM COMMENTS/Questions and Answers
o Authorized use of military does not mean that Habeas Corpus has been suspended.
o Even though Youngstown came out on the opposite side—this is similar since Denial of the rights of the
court because of “emergency” does not work in either case.
Hamdi tested the powers of the President in time of war to deal with enemy combatants, based on both the
President’s powers as Commander-in-Chief and in interpreting statutes authorizing the use of force and in
detaining citizens without charging them with a crime. The Court generally upheld the President’s powers,
but placed some limits on them as the immediate need for detention subsided.
Largely correct. There was no single majority opinion, but the Court was generous on the front end – initial
detention – but much less so once the need for immediate action was no longer a proper justification for a
prolonged detention and the focus shifted from the battlefield to other venues.
Justices Stevens and Scalia were correct that the right of habeas corpus, with its specific limitations on its
suspension, proved that the President lacked all of the powers that he exercised here.
Partially correct. As in other situations where the Constitution (or in some cases a statute) provides expressly for
the type of action that is being asserted under another authority – but with different conditions and limits – the
specific provisions control and thereby limit the general. Thus, the notion of indefinite detention is surely
35
inconsistent with the right of access to the courts on habeas corpus. On the other hand, short term detention is not
so clearly inconsistent, thus suggesting that the President was within his rights on the front end, but not forever.
4. EXECUTIVE PRIVILEGE AND IMMUNITY
Executive privilege is asserted to say that certain communications b/w the President and high-ranking
government officials should NOT be disclosed
 In Nixon, the Court recognized in general terms a constitutionally-based doctrine of executive privilege, but
held that the privilege was only a QUALIFIED one, which was overcome on the facts of Nixon by the
needs of a pending criminal investigation
 Executive privilege protects presidential papers and conversations, but such privilege must yield to overriding
needs to the information
Untied States v. Nixon, 1974
(Pres. Does Not Have Absolute Privilege Against Judicial Subpoenas)
 During the 1972 presidential campaign, Democratic National Headquarters in the Watergate Hotel was
burglarized. Nixon covered up.
o The District Court hearing the case issued a subpoena for audio tapes and documents related
to meetings b/w Nixon and others
 Nixon produced edited versions of those materials, then moved to quash the subpoena, claiming
executive privilege
o Nixon argued that it was critical to maintain the confidentiality of the President’s
communication, and that separation of powers prohibited the judicial branch from evaluating
privilege claims and forcing the executive to produce some communications
 The Court held that although the President has a general executive privilege, the President does
NOT enjoy an ABSOLUTE generalized privilege which would allow him to shied all communications
from a subpoena in a criminal proceeding
o Court, Not President, Decides
 Separation of powers doctrine does NOT preclude judicial review of President’s claim
of executive privilege
 According to Marbury, it is emphatically the province of the Court to say what the law is”
 Privilege Exists
o There is a presumptive executive privilege that protects the President’s communications to
ensure that the President gets candid advice fro him advisors
 Privilege Only Qualified
o BUT, it’s NOT an absolute privilege!
 Rather, executive privilege is a qualified privilege that is rebuttable if there is
countervailing evidence in disclosure
 Balancing Test
o We must consider the interest in disclosure against the president’s interest in confidentiality
 If the interest in disclosure outweighs the interest in confidentiality, then the
President’s assertion will fail
 Duty of Trial Court
o The need for confidentiality in presidential communications is important, but it does NOT
outweigh the constitutional duty of the judicial branch to do justice in criminal prosecutions,
especially where the information will be protected by in camera review
o The fair administration of justice would be severely impaired by a generalized presidential
privilege, whereas it is unlikely that advisors would temper their remarks to the President based on
the slim chance that the contents of their conversation might be later subpoenaed
o The need for evidence in a criminal trial outweighs executive privilege
ABM QUESTIONS AND ANSWERS
US v. Nixon establishes the right of a sitting President to assert executive privilege, but the scope of the
privilege is quite narrow.  Pretty clearly an overstatement. The Court did recognize executive privilege, but
36
did not say that it was narrow (or broad). Its most important conclusion was that it could be overcome by other
needs, in that case a criminal case in which the interest of both prosecution and defense were important and had to
be taken into account. The request was also narrow – for specific tapes of meetings where suspected criminal
activity occurred – and that also weighed against the privilege.
Nixon vs. GSA, 1977
 Nixon made agreement with some GSA guy saying only he would have access to his Presidential Papers.
o But Ford needs to know information in records to have continuity in foreign and domestic affairs.
 SEPARATION OF POWERS Argument—it’s the property of the executive.
 HISTORICAL Argument—every President has taken them with him.
o BUT nobody has tried to cut off access before, so cannot read into Congressional acquiescence as
allowing this too.
 Court claims EMINENT DOMAIN—can claim they are his, but subject to judicial review.
 Nixon also claims EXECUTIVE PRIVILEGE—is this the same argument? Here, yes.
 Claims GSA (Subordinate) cannot dictate what he does.
o Court refers to GSA’s stellar records
o Also, if Nixon and GSA disagree—Nixon can go to court.
 Congress passed a statute after this but PROSPECTIVE—how do we know it did not interfere with
Executive—both Ford and Carter signed it.
 Court says SoP is not a bar unless the power of the Executive is being encroached upon—which is it
not here, REASONABLENESS STANDARD.
 Nixon argues that this is a BILL OF ATTAINDER—and puts undue burden on him. Yes, undue burden, but
now also for all other Presidents. Also Congress is justified in treating him differently because the
Government has a significant interest in taking control of these papers—Also getting just
compensation.
ABM QUESTIONS AND ANSWERS
Nixon v. GSA seemed to create a broad right of access to all presidential papers etc, despite a claim of
executive privilege and a long history of Presidents taking their papers with them when they left office,
which was a major expansion of US v. Nixon.
Partially right. There were several respects in which the inroads into executive privilege were expanded. The
access was not in connection with a criminal case, and the access was not limited to specific records needed for a
particular purpose, but applied to all of the President’s records. On the other hand, there were substantial
protections built in for the protection of the President, including compensation if the records were found to be his
(he won). Moreover, there were still ongoing criminal cases and the government had a substantial need for access
to many other records, especially in the area of foreign affairs, not to mention filling in major voids in the history of
the country. The fact that Congress and the two relevant Presidents agreed that the law did not seriously
undermine the ability of the President (past & future) to carry out his functions supported the Court’s finding that
the balance of interests sustained the law.
Nixon v. Fitzgerald, 1982
(President Has Absolute Immunity From Civil Liability for Official Acts)
 The Court held that the President has an absolute immunity from CIVIL liability for any official act
done while carrying out the presidency, at least where Congress has not expressly provided otherwise
by statute
 Since there is no constitutional provision saying that the President is immune from civil suits for his
official actions, the Court based its decision on 2 issues:
(1) CHILL DISCRETION
 If the President doesn’t have civil immunity for his official actions, might be unduly cautious
in his duties
(2) DISTRACTION
 Might sap up the President’s energy and job in running the country if we opened up the
floodgates / allowed people to sue President for his official actions
37


White’s Dissent This puts the President above the law!
BUT—this isn’t that broad because people just sue the President’s subordinates who have qualified
immunity.
ABM Q&A
The creation of an absolute immunity for the President from lawsuits in Nixon v. Fitzgerald was a major
step back for the rule of law and will potentially harm many innocent persons who will be unable to sue for
violations of their constitutional rights.
At least something of an overstatement. Presidents can still be sued (at least indirectly as in Youngstown) for
violations of law (not just the constitution) so long as the plaintiff is seeking injunctive relief and not money
damages. Second, in most of these cases, other government officials will have participated in the wrongful acts,
and they have at most qualified immunity. Finally, in some ways it is too easy to blame the President for
everything that goes wrong, and hence sue him (her), with all the burden involved even to gain qualified immunity.
Or least the Court could so conclude. If Congress disagreed, because too many injured persons were not being
compensated, it could create a remedy against the United States, rather than the President
Clinton v. Jones
(No Absolute Civil Immunity for President’s Actions Taken Before Office)
 Paula Jones filed a civil lawsuit for private damages against President Clinton while he was in office
o Clinton argued that he should have “temporary immunity,” to last while he is in office, against
virtually all civil litigation arising out of events that occurred before he took office
 The Court held that there was NO immunity, not even qualified immunity, for acts that the President
takes that are completely unrelated to the carrying out of his job (i.e. unofficial acts)
 Why should we give the President immunity from civil suits for nonofficial action?
PRO-IMMUNITY
o Permitting the judicial branch to oversee executive actions will have a tremendous effect n the
ability of the President to carry out his responsibilities / convey too much power
o The Executive branch concentrates its power in just ONE person!
o Clinton is not asking for permanent immunity, just a STAY of the proceedings until his office expires
AGAINST-IMMUNITY
o The Court has long overseen actions of the President through judicial review
o Judicial review / allowing the case to proceed will not unduly undermine the ability of the executive
branch to function
o While the office of the President is demanding, important, and time-consuming, separation of
powers does NOT bar the judiciary from compelling the President to defend the suit against him
 Breyer’s Concurrence The President should be able to present to the court his need for postponement
in cases like this one
Did the Court get it right in Clinton v. Jones?
 One concern raised was that sitting Presidents would be deluged w/ politically motivated,
harassing, and frivolous civil lawsuits, and that in the aggregate, those suits would impose a significant
burden on President’s ability to perform his duties
 In response, the Court said that dismissals on the pleadings and summary judgment will eliminate
most frivolous litigation, including sanctions against parties who bring such suits as a safeguard
 BUT, a few years later, Monica Lewinsky scandal happened, leading to the House impeachments which
took a large chunk of President Clinton’s time w/ a large price tag for the country as a result of Kenneth
Star’s investigation
 Thus, in the short term, the Court in Clinton v. Jones seems just plain wrong about the ability of such a suit
to distract the President, because the civil suit really did
38
5. CONGRESS AND THE LEGISLATIVE POWER
Whitman v. American Trucking Associations, 2001
 EPA revised standards for pollution—this is prospective and has penalties—why isn’t this Legislation?
 Despite the NON-DELEGATION Doctrine—the court has held that Congress CAN delegate lawmaking
authority to executive officials as long as Congress provides an “intelligible principle” with which to
guide the executive agency’s exercise of that authority
o REASONING: Agencies are specialized—whereas Congress has to do it all; Agencies better at fact
gathering; Congress elected so accountable for policy choices of agencies.
 EPA has long history of doing this and courts can look to PAST BEHAVIOR of agencies to see if delegation
is appropriate.
 Court gives EXTREME DEFERENCE to delegation by Congress to agencies and the executive—but are
mindful of the non-delegation doctrine.
ABM Q&A
The result in Whitman v. ATA is totally inconsistent with Youngstown because it allows EPA to affect the
economy to a far greater degree than the President sought to do in Youngstown.
Wrong. The key difference is that the power exercised in Whitman was delegated to EPA by Congress whereas the
issue in Youngstown was whether the President could seize the steel mills on his own, when Congress had
provided for other, different remedies for dealing with issues of labor unrest.
At the very least, what EPA did in Whitman was to write legislation, just like the Executive Order in
Youngstown, which is something that only Congress can do.
Significantly mistaken. Whatever may have been the expectations of the Framers, our Government is much too
complicated today to insist that everything that looks like a law – because it prescribes future conduct and has
penalties for non-compliance – can only be done by Congress. Agencies, checked by Congress’ directions that form
an “intelligible principle,” plus judicial review of final rules, are here to stay. And even though the delegation in
Whitman gave considerable discretion to EPA (far more than to the President in Curtiss-Wright), it was given
against a background of similar delegations and implementations by EPA that provided an additional check on the
agency.
INS v. Chadha, 1983
(One-House Leg. Veto is Unconstituional b/c it Violates Presentment / Bicameralism)
 Congress delegated to the Attorney General, in the Immigration and Nationality Act, the authority to
suspend deportation of aliens in certain situations (if alien is of good moral character and would suffer
“extreme hardship” if deported)
o To retain some control over this delegated power, Congress reserved to itself a legislative veto
over each decision by the Attorney General suspending deportation
 The veto could be exercised by a resolution passed by EITHER house within a certain time after the
Attorney General’s decision to suspend deportation
o House of Representatives used its veto power to reverse the Attorney General’s suspension
of deportation b/c they thought he didn’t meet qualifications.
 The Supreme Court struck down the legislative veto as unconstitutional, because All exercises of
LESIGLATIVE power MUST comply with the constitutional requirements of the Bicameralism and
Presentment and the legislative veto FAILED to do so
o BUT, the real issue here is whether the House’s issuance of the legislative veto is an exercise
of legislative power, which require bicameralism / presentment, or executive power, which
does NOT require bicameralism / presentment
39



Under Burger’s formalistic majority opinion, overruling of the Attorney General’s decision on a
deportation matter did constitute the exercise of legislative power, since it had the “purpose and
effect of altering the legal rights, duties, and relations of persons….outside the legislative branch”
o Congress could reverse the Attorney General’s decision on a deportation matter only by
passing a law, in the constitutionally prescribed manner. How to checkWill status quo remain
the same?
White’s FUNCTIONALIST Dissent The legislative veto here is a necessary CHECK on the
unavoidably expanding power of the agencies, both executive and independent, as they engage in
exercising authority delegated by Congress
o The legislative veto is NOT an offensive measure by Congress, trying to steal power form other
branches, but a DEFENSIVE move to preserve some of its own powers that it has already given
away
We should permit the Constitution to be flexible on this issue if its use maximizes efficiency (and
Constitution doesn’t expressly forbid the legislative veto)
Implications of INS v. Chadha
 Significance If Congress wants to reserve power to undo the action of an administrative agency,
both houses will have to pass the same bill and present it to the President for a possible veto
o Without legislative vetos, Congress has less of an incentive to give broad delegations of their
authority to executive agencies
 There are only 4 actions which the Constitution permits a single house to take, without possibility
of presidential veto:
(1) Power of Senate to initiate impeachments
(2) Senate’s power to conduct trials on impeachment charges
(3) Senate’s power over Presidential appointments
(4) Senates power to ratify treaties
 In what other ways could Congress exercise control over executive agencies?
(1) Enact a statute reversing the agency’s action
 But, this might not always be very effective because of Presidential veto or objection
(2) Congress can use the power of the purse over funding
 Congress could tell an agency that if they are going to continue to regulate in this fashion,
then Congress is going to cut their funding the following year
 This may end up being counter-productive though / create a game of chicken / may
be no political will to cut off funds
(3) Congress can exercise the power of oversight
 Call the agency head before the committee and place pressure on him to comply / grill him
with questions
(4) Congress could write statutes more specifically
 Instead of delegating the whole store to the executive branch, Congress could constrain the
decision of executive actors so that there is a lesser likelihood of a decision to which
Congress will disagree
 BUT, it’s difficult to predict in advance which delegation will be more problematic
(5) Congress has the power of advise and consent over appointment
 Congress can shape the type of decision-making that will be done by executive officials by
refusing to confirm those officials who Congress has reason to think won’t be amenable to
their view of good public policy under the statute
 BUT, once that official is already in the position, this exercise doesn’t do much good
ABM Q&A
The majority in Chadha held that the House’s exercise of its veto there was a legislative act and all
legislation requires two Houses of Congress plus the President (or an override of his veto). It is highly
dubious that the Court was correct in its characterization and for that reason the decision was wrong.
40
Partially right. The description of what the Court said and did is correct, but the conclusion does not follow. That
is because if the veto is either judicial or executive, the only two other choices, it was still unconstitutional because
the express grants of judicial and executive power elsewhere, coupled with general principles of separation of
powers, preclude Congress from acting outside its governmental function unless specifically authorized to do so.
The Court in Chadha also observed that there are several places where the Constitution allows or requires
one House to act alone, from which it should have concluded that the Famers contemplated such one House
activity and thereby upheld the veto.
Probably mistaken conclusion. The authority of one House to act alone arises in two situations, neither of which
helps sustain this veto. In some, as in each House writing its own rules, the primary impact is on that House; in
others there is an express grant of limited one House power, from which the Court correctly concluded that the
express exceptions to basic separation of powers principles are exclusive and not to be enlarged on by Congress, a
principle that has been applied in other contexts where the existence of a specific power was held to negate its
implication in another context.
The conclusion in Chadha that the use of a one House veto is unconstitutional underscores the illegitimacy
of the Court implying agreement from silence: if action via a one-House veto is constitutionally irrelevant,
silence cannot possibly be more relevant.
Correct.
The Line Item Veto
The line item veto is the ability to veto a particular part of a bill (typically a single item of spending) rather than the
entire bill
Clinton v. New York
(Line-Item Veto Violates Presentment / Bicameralism and is Unconstit.)
 The Line Item Veto Act allowed the president to sign an entire bill (containing multiple provisions)
into law, then to “cancel” any individual spending or limited-tax-benefit item he wished, provided
that he did so w/in 5 days after enactment
o The Act required the President to carefully consider any cancellations, making sure that each would
reduce the deficit, not impair essential government functions, and not harm the national interest
(i.e. the “intelligible principle” / very broad)
 At that point, the only way Congress could restore the vetoed item was re-enact it as a separate
“disapproval bill,” which the President could again veto
o The net effect of the Act was to let the President plus 1/3 of Congress (the percentage necessary to
uphold the president’s veto of the disapproval bill) veto any individual item of spending or limited
tax benefit
 When the President canceled a provision of the Balanced Budget Act that nullified a debt NY owed to the
federal govt. as part of the Medicaid program and canceled a tax benefit to food processors that had been
included in the Taxpayer Relief Act, parties sued
 Under Steven’s formalistic majority opinion, the Line Item Veto Act failed to follow the Presentment
clause’s method of enacting or repealing statutes
o The Presentment clause provides that after a bill has passed both houses of Congress, but before it
has become a law, it must be presented to the President, and if he approves it, “he shall sign it, but if
not he shall return it, with his objections, to that house in which it shall have originated, who
shall…proceed to reconsider it”
 The process laid down in that clause was, the majority concluded, the ONLY way authorized in the
Constitution to enact or repeal a bill
 The Line Item Veto Act violated Presentment Clause in TWO WAYS:
o The President’s “return” of the bill (his veto of it) occurred AFTER the bill had been signed
into law, rather than before, as the Presentment clause requires
41
The Cancellation could apply to only PART of the bill, whereas the Presentment clause
requires veto of the ENTIRE bill
If the act were valid, “it would authorize the president to create a different law- one whose text was not
voted on by either House or Congress or presented to the President for signature”
Scalia’s Dissent This is just a case about DELEGATION, NOT separation of powers!
o Through the line-item veto, the President is simply exercising the discretion that Congress has
conferred on him through delegation of authority to cancel a spending or tax item
BUT, under class analysis, the Line Item Veto’s broad intelligible principle of guidance (requiring the
President to carefully consider any cancellations, making sure that each would reduce the deficit, not
impair essential government functions, and not harm the national interest) might be TOO broad
Within 5 days provision also seems to short
o




Multiple Bills as Solution to No Line Item Veto?
 This approach would require literally thousands of spending bills per session, each of which would have to
be separately produced, and separately voted on by Congress – not likely to happen—no back-scratching.
Spending Power Discretion Argument
 The President can just choose to not spend the money?
o Yes, President is allowed some discretion in changes circumstances but that is not the case here. He
is in direct conflict with Congress.
ABM Q&A
Clinton v. New York involved a challenge to a law that both Congress and the President supported, thus
bringing it into the most favored of Jackson’s three categories. Because they agreed, the Court should have
sustained the law for that reason alone.
Partially correct. No branch of government can waive its powers under the Constitution because the dividing lines
are there to protect the public and those institutions, not just the people who happen to be currently occupying
them at the time of the dispute. Because there is agreement, the burden of finding the law unconstitutional is
greater, but not impossible, especially where there are express limitations in the Constitution that are allegedly
being violated.
The Constitution is clear that the President must either sign an entire bill into law or veto it entirely. Since
the line item veto act allows him to do indirectly that which he cannot do directly, that ends the debate
about its constitutionality.
Largely correct. The proposition is slightly overstated, but the indirect vs direct has special force when it is the
ends that are forbidden, as is the case here, but less so when there are alternative means of reaching an end
(commerce clause vs taxes in the ACA), which may enable one route to succeed, where another will fail.
42
6. CONGRESSIONAL CONTROL OVER EXECUTIVE BRANCH APPOINTMENTS
The Appointments Clause Article II, § 2
 Provides that the President shall “nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors…Judges of the Supreme Court, and all other Officers of the United States. The
Congress may by Law VEST the Appointment of such inferior officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments”
Principal Officers / Officers of the United States
 The President, NOT Congress, is given the power to appoint principal officers / officers of the United
States
o The President nominates a candidate, and the Senate must, as a constitutional matter, decide
whether to approve the nomination
 As to such officers, Congress may NOT take away the President’s right of appointment
o Top-Level Federal Officers:
 Members of the Cabinet
 Ambassadors
 Federal Judges
o Lower-level Officers / Inferior Officers
 As to inferior officers, Congress has the right to limit the President’s right of
appointment
 BUT, Congress can NOT make such appointments itself
o Congress may give the power of appointment to:
 (1) The President
 (2) The Judiciary / Courts of Law or
 (3) The Heads of Departments (i.e. Cabinet officials)(which indirectly brings
appointments in this class within the President’s powers)
Who is an inferior officer?
 Inferior officers are those who can be fired by officers of the United States
 Attorney General-> Officer
o Assistant Attorney General-> Inferior Officer
 Must be a subordinate official
No Appointments by Congress
Congress itself may not make any appointments of federal officials, whether “principal” or “inferior”
 But, in the case of lower-level officials, Congress can prescribe the procedures by which the executive or
judicial branch shall make appointments
Why is it Problematic to Cut the President Out of the Loop for Appointments of Inferior Officers?
 In theory, the President will have less control over the executive branch
 BUT, the President effective controls the appointment of inferior officials by appointing Heads of
Departments
The Removal Power
 The Constitution does NOT state whether and when the President, Congress, or both, may remove federal
appointees and employees (except the power of impeachment)
o It’s been left to the Supreme Court to determine the extent of the President’s right to make such
removals
 2 Circumstances in which Power of Removal Becomes an Issue:
(1) When Congress assigns itself the power to remove an official
(2) When Congress limits the grounds on which the President is able to remove (i.e. can only fire
official for certain reasons)
43

Quasi-legislative and quasi-judicial officers
o Where a federal appointee holds a quasi-judicial or quasi-legislative role, Congress may LIMIT or
completely BLOCK the President’s right of removal
Quasi Leg/Quasi Judicial
Humphrey’s Executor v. US
 The Court held that congressional control over the removal of quasi-legislative and quasi-judicial
officials was necessary in order to preserve their independence from the executive branch
 The Court upheld the Federal Trade Commission Act, which limited the President’s right to remove federal
trade commissioners
ABM Q&A
Humphrey’s Executor totally repudiates and effectively overrules Myers by denying the President the right
to fire an FTC Commissioner except for cause.
Largely wrong or at least overstated. There is a big difference in terms of both the power of the President and the
limited interference by Congress between a statute that permits the President to fire a high official, but requires
cause, and one that gives a veto to the Senate over any presidential firing. In the former case, no part of Congress
has any role in any particular discharge decision, and the role of Congress is limited to setting a legislative standard
for discharge. In addition, the FTC is an independent agency, separate in many ways from the President, and it is
not clear that a law like that in Humphrey’s Executor would be upheld if applied to officials like the Secretary of
State or the Attorney General.
Purely executive officers
Myers v. United States, 1926
 The rule seemed to be that if a purely executive officer had been appointed by the President,
Congress may not limit the President’s right to remove that officer
o The Court held unconstitutional a legislative provision that a regional postmaster could not be
removed by the President alone / had to be with the consent of the Senate
 BUT, under Morrison v. Olson, the Court changed the rule to be that Congress MAY limit the President’s
right to remove even a purely executive officer, so long as the removal restrictions are not “of such a
nature that they impede the President’s ability to perform his constitutional duty”
ABM Q&A
The holding in Myers is that Congress cannot prevent the President from firing any officer of the United
States who has been appointed by the President to a position in the executive branch with the advice and
consent of the Senate.
Partially right, but overstated. The opinion in Myers can be read to go that far, but the statute in Myers was also
problematic because it required the Senate to consent if the President wished to fire anyone subject that law. That
aggrandizement of Senate power, beyond the front end check of the advice and consent authority, cannot be
disregarded in assessing the constitutionality of a provision that could also be applied to cabinet officers as well as
local postmasters.
44
Removal by Congress
Bowsher v. Synar
(Congress Can Not Reserve to Itself the Power to Remove Executive Officer)
 The Balanced Budget and Emergency Deficit Act attempted to reduce federal budget deficits by setting a
“maximum deficit amount” for each fiscal year
 Act gave a key role to the COMPTROLLER GENERAL of the US in carrying out the automatic cut
provisions
o The Comptroller was to review budget estimates given to him by 2 federal agencies and then
submit to the President a report stating cuts on a program-by-program basis which the President
had to follow.
 Congress reserved to ITSELF the right to remove the Comptroller General from office, as removal of
the Comptroller could be achieved only though impeachment or joint resolution of Congress, subject
to a presidential veto
 Congressman Synar challenged the act, claiming that the Comptroller was an executive officer
o But, is the power to spend money an executive function or a legislative function?
 Burger’s majority EXECUTIVE
o Comptroller must exercise his judgment as to the budgetary facts / must interpret the Act in
deciding which budget cuts are required
 Dissent LEGISLATIVE
o The decision to spend money / make budgetary decisions is a policy question
o Whether or not to spend money on certain programs under the budget affects the legal rights and
status of many people
 The Court held that Congress can NOT reserve for itself the power of removal of an officer charged
with the EXECUTION of the laws, except for impeachment
(1) The Act uses the Comptroller’s “executive powers”
(2) Executive powers may not be vested by Congress in itself or its agents, because Congress is
limited to legislative rather than executive functions
(3) Because Congress can remove the Comptroller, he is an agent of Congress, therefore
(4) The Comptroller may not constitutionally exercise the executive powers given to him in the Act
and
(5) The Act’s automatic budget reduction mechanism, which is based on the Comptroller’s exercise
of his executive powers, must be invalidated
 Basically, the retention by Congress of the right to remove an executive officer for certain specified
types of cause converts that officer into an agent of Congress
o To permit the execution of the laws to be vested in an officer answerable only to Congress would, in
practical terms, reserve in Congress control over the execution of the laws
 The Constitution does NOT contemplate an active role for Congress in the supervision of officers
charged with the execution of the law it enacts
o BUT, the Constitution explicitly provides for removal of Officers of the US by Congress ONLY UPON
impeachment by the House and conviction by the Senate
 Justice Stevens’ Concurrence The Comptroller is an agent of Congress, but it is not Congress’ right to
remove him that made him such
o Rather, it is the fact that the bulk of his duties are directed at, and for the benefit of, Congress
instead of the executive branch
 White’s Dissent Congress could not easily remove the Comptroller General so no SoP Issue
o Congress has to pass a resolution to remove the Comptroller, subject to a presidential veto
Implications of Chada & Bowsher
 Both are formalistic opinions about separation of powers Both about attempts to control people
outside of Congress.
 Both cases stand for the proposition that Congress can NOT reserve power to itself unless Congress
strictly follows the Constitutional provisions guiding that power
45
ABM Q&A
Bowsher v. Synar is another example of CJ Burger’s rigid notion of separation of powers that fails to give
any leeway to Congress to create new ways to solve vexing problems.
Some truth, but also some overstatement. The majority opinion goes back to the “its legislative” theme from
Chadha, as the deciding factor, but the concurrences focus more properly on the fact that the Comptroller General
works for Congress since Congress creates the list from which the President makes the appointment and he is
subject to removal only by Congress. Perhaps more importantly, the Comptroller General has always been
understood to be working for Congress from which he takes his orders. The dissent, however, would surely agree
with the statement above, which is similar to Justice Breyer’s defense of the line item veto in Clinton v. NY.
Morrison v. Olson, 1988
(Cong Can Limit Presidnt’s Removal of Exec Offfcr if Doesn’t Burden Const Duty)
 The Ethics in Government Act provided for the appointment of an independent counsel, as needed,
by a 3 judge Special Division of the US Court of Appeals for the District of Columbia (Court of Law)
 The function of the independent counsel was to investigate and prosecute high-level government
officials who were suspected of breaking federal criminal laws
 An independent counsel could be appointed only a the request of the Attorney General and could be
removed only by the Attorney General, for good cause, or by Congress, through impeachment
o Subpoenaed Olson claimed that Act was unconstitutional b/c is not appointed by the President, not
removable at will by the Attorney General or the President, and was independent from the
President (all violating separation of powers)
 The Court held that neither the appointments or removal provisions nor the act taken as a whole so
restricted the President’s powers as to violate the separation of powers principle
o Vesting the appointment of the independent counsel in the judiciary does NOT violate the
appointments clause b/c the independent counsel is an inferior officer
o Attorney General can remove independent counsel (suggesting inferiority)
o Independent counsel has limited duties, tenure (job expires when investigation terminates) and
jurisdiction (can only investigate certain things)
 The “for good cause” removal power of the Attorney General removal clause does NOT
impermissibly interfere with the President’s constitutional duties to make sure that the laws are
faithfully executed
 Even though independent counsel is an executive officer, the court re-characterizes the inquiry from
Myers/Humphrey distinction to “does the removal provision impermissibly interfere with the
president’s constitutional duties to make sure that laws are faithfully executed?”
o Court says NO b/c the Act keeps the power to terminate within the executive branch (Attorney
General) and the good cause provision does not burden the President’s ability to control or
supervise the independent counsel, an executive officer, in the performance of his statutory
duties
o Moreover, AG is the one that decides whether to appoint in the first place.
 The Ethics in Government Act does NOT violate separation of powers, as it gives the executive branch
sufficient control over the independent counsel to render the President able to perform his
constitutional duty to ensure faithful execution of the laws
o Stands for the proposition that the Executive Branch may be deprived of the power to appoint, and
the untrammeled power to remove, an “inferior officer,” even where the appointment relates to
purely executive powers (this might not apply to principal officers though)
 Scalia’s Dissent As the independent counsel performs an executive function, the President should
have COMPLETE control over the independent counsel in the performance of his or her duties and
therefore this act should be held unconstitutional
o The independent counsel is a SUPERIOR officer (she is subordinate to no one!) and therefore the
power of appointment is vested w/ the President
46
o
o
The Constitution says that “the executive power shall be vested in a President of the United States,”
meaning that all the President must have full, unfettered control over the executive branch (this is
called the Unitary Executive Theory)
Even if practical effects should be taken into consideration, we should still find this act
unconstitutional b/c it won’t work (predicted the future)
ABM Q&A
Morrison v. Olson is consistent with prior separation of powers cases and most closely resembles Nixon v.
GSA because it utilizes a similar balancing kind of approach relied on there and it abandons the formalistic
approach taken in Chadha & Bowsher.
This is a close call. Morrison did not ignore the textual aspect (Appointments Clause) but it construed the inferior
officer provision in a way sympathetic to Congress. There was no congressional aggrandizement, but the
President’s powers – like in Nixon v. GSA – were cut back, and like that case, the Court said it was doing it for
reasons that Congress found significant and with which the Court did not disagree. Scalia’s dissent is less based on
textual objections than on his view of the inherent powers of the President that are essential to his office.
47