Constitutional Law Final Exam Outline – Barron – Spring 2011
FEDERAL JUDICIAL POWER  Judicial Review
I.
II.
III.
Judicial Review
a. Doctrine stating that the courts have the power to invalidate governmental action which is
repugnant to the Constitution because “it is emphatically the province and the duty of the
judicial department to say what the law is”
General Information on Judicial Review
a. Constitution  Silent on Judicial Review
b. State and Federal courts have explicit power to review and invalidate actions of both the
executive and legislative branches (Marbury, Cooper)
c. Judicial Review applies to Executive Action
i. Courts may call executive officers to answer for their actions and review those
actions as to their constitutionality (Marbury, US v. Nixon)
1. ***NOTE***
a. Judicial discretion is precluded when the Executive possesses legal
or constitutional discretion, but not when suit involves nondiscretionary duties
d. SCOTUS also has appellate jurisdiction to oversee constitutional issues decided by state court
because there is a need for uniformity (Martin v. Hunter Lessee)
MARBURY v. MADISON (1803)
a. Facts
i. Jefferson took over the presidency from John Adams but in a last ditch effort
Adam’s presidency sought to appoint Federalist members to Justice of the Peace and
Government Positions.
ii. Some of those appointments were not delivered including Marbury’s and he passed
suit against Madison (Jefferson’s Secretary of State) for the commission.
b. Marshall J. Opinion
i. Marbury has a right to the commission because Congress passed a law creating the
office, gave him a term, it’s not revocable, it was signed by the President, and sealed
by the Secretary of State
1. It would be improper to withhold the commission
ii. Granting Marbury relief would be a violation of the Constitution because it would
require the Court to exercise original jurisdiction in an area not granted
iii. SCOTUS has power over non-discretionary decisions (duties imposed by Congress),
but not over matters that require executive discretion (political matters).
iv. Only judges can determine constitutionality (Found in 3 Provisions)
1. Article III § 2
a. Extends judicial power to all cases in law and equity arising under
the Constitution
2. Supremacy Clause
a. Supreme Law shall be the law of the Constitution and that is
superior to the laws of the Federal Government
3. Oath Clause
c. Decision establishes Congress’ power to limit jurisdiction, but it also establishes the power of
the Court to invalidate laws that they find unconstitutional
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IV.
d. Creation of the Doctrine of Judicial Review
i. It is the responsibility of the SCOTUS and the Federal Courts to set aside actions of
government that do NOT conform to the language of the Constitution
e. Paradox of Marbury
i. Marshall says that there must be authority for legislation in the text of the
Constitution, but there is NO textual authority for judicial review in the Constitution
MARTIN v. HUNTER’S LESSEE (1816)
a. Facts
i. U.S. confiscated English land in America while the American Revolution took place
and Hunter (US) got land of Martin (English)
ii. After a peace treaty was signed America agreed to return lands they had taken
iii. Martin tried to take back his land, but Hunter refused
1. Virginia Court of Appeals
a. The land belongs to Hunter who had title to the land
2. Supreme Court
a. Treaty took precedent and the land should be passed over to Martin
3. Virginia Court of Appeals
a. Refusal to recognize Supreme Court decision because Article III
only gave SCOTUS jurisdiction over the lower Federal Courts
(District Level) and thus the Court of Appeals did not fall under
SCOTUS’ jurisdiction
i. Judiciary Act of 1789
1. Provision giving SCOTUS appellate jurisdiction
over decisions from District Courts
ii. Compact Theory of the Constitution
1. States created the Constitution, hence they are
superior to it and only have to abide to it if they
consent
b. Holding
i. SCOTUS has appellate jurisdiction over the state appellate courts as well as Federal
Appellate Courts
c. Story J. Opinion
i. Article VI, Cl. 2  “The Constitution shall be the Supreme Law of the land, and the
Judges in every State shall be bound thereby” (Lower court judges bound by the
constitution)
ii. Article III, § 2  “The judicial power shall extend to ALL cases in law and equity,
arising under this Constitution, the Laws of the U.S. and Treatises made, or which
shall be made, under their Authority”
1. SCOTUS includes all cases and controversies arising under the Constitution
a. If VA was to say SCOTUS did not have jurisdiction over them, then
they could not hear any Federal Question arguments
2. It is the case and not the court that gives the jurisdiction
iii. The Constitution states that the judicial power in the US should be vested in one
Supreme Court and in such inferior courts as Congress may ordain and establish
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V.
VI.
VII.
1. Since lower Federal Courts are optional, if SCOTUS did not have appellate
jurisdiction over state courts then they would not have appellate jurisdiction
over anything
d. Johnson J. Concurring
i. The Court is supreme over persons and cases in terms of judicial power, but isn’t
deciding on the matter of asserting compulsory control over state tribunals
(Prophetic)
COHENS v. VIRGINIA (1821)
a. Facts
i. People arrested for selling DC lottery tickets in VA when the state did not allow
lotteries.
1. People appealed their conviction to SCOTUS
b. Issue
i. Does SCOTUS have appellate jurisdiction over criminal appeals coming from the
State Supreme Courts
c. VA Argues
i. Article 3, § 2, Cl. 2  “And those in which a state shall be a party, SCOTUS shall
have original jurisdiction”
1. Original jurisdiction precludes exercise of appellate jurisdiction
d. Marshall J. Decision
i. Expansive View
1. Court has appellate jurisdiction over anything arising under the Constitution
regardless of who the parties are
2. To achieve purpose of constitution, criminal appeals must be within
SCOTUS appellate jurisdiction
ii. Under Article III the appeals to State Supreme Courts also fall in line with the
appellate jurisdiction of SCOTUS
COOPER v. AARON (1958)
a. Facts
i. Arkansas Governor tried to fight integration of schools arguing that states can nullify
Federal Constitutional commands if they intrude too much on state sovereignty
b. Issue
i. Does SCOTUS have power to bind State Governments (not just state courts)
c. Holding
i. Constitution applies to governors
1. The legislature and governor CANNOT nullify the Constitution
ii. State and Federal Officials take an oath to uphold the Constitution and it is the arena
of the court to determine whether something is Constitutional
1. State officials CANNOT refuse to implement a plan the court has said its
constitutional
Techniques for Constitutional Interpretation
a. Originalism (Intentionalism) – Bork, Perry
i. Try to figure out what the people that wrote the Constitution meant by what they
wrote
1. Start with the Constitutional text, but take it based on the history
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a.
Then shape it so that it’s relevant today in settling Constitutional
issues
ii. Problem
1. Broader than textualism, but possible multiple views from the same theory
b. Textualism – Scalia, Thomas
i. Text is the only subject of inquiry
1. Although the language may be ambiguous, the text gives us something
concrete to hold on to
ii. Problem
1. Words can change their meaning
c. Interpretivism – Ely
i. Courts can interpret the Constitution when the result can be fairly implied or derived
from its language
1. Uses the Constitution as an anchor AND to provide some structure
d. Non-Interpretivism – Grey
i. When we have complex words found in the Constitution we should be open to
conceding
1. Fundamental issues in our society are protected by vague phrases and we
should concede that SCOTUS relies on norms and other sources
e. Neutral Principles – Frankfurter
i. The courts should interpret the Constitution in complete detachment
1. Look for the most neutral principles
2. Judges should be free from any kind of result oriented jurisprudence
f. Passive Virtues – Judicial Restraint
i. Even when courts have power to act they should be reluctant to do so
1. Legitimacy on the judiciary depends on its restraint
ii. It’s better for a complex problem to be solved by the Executive and Legislature
working together, than the Judiciary itself
g. Participatory Values
i. When there is a dispute of law, it is best to combine the view of the Judges with that
of the Legislature
FEDERAL JUDICIAL POWER  Limitations on Judicial Review
I.
II.
Limitations on Judicial Review
a. Types
i. Textual  Exceptions Clause (Congress can limit jurisdiction)
ii. Constitutional Limitations
1. Case or Controversy
2. Standing
3. Mootness
4. Ripeness
iii. Judicial Limitations
1. Political Question Doctrine
TEXTUAL LIMITATIONS - Congressional Control of Federal Court’s Jurisdiction
a. Exceptions Clause
i. Gives Congress power to LIMIT the appellate jurisdiction of the Supreme Court
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b. EX PARTY MCCARDLE (1869)
i. Facts
1. McCardle was arrested for disturbing the peace, inciting insurrection, and
impeding reconstruction, due to a story he published in his newspaper after
the Civil War
a. He sought the Writ of Habeas Corpus requiring the detaining
authority to explain the legal basis for the detention
2. In the middle of the case Congress exercised the ability to control SCOTUS
appellate jurisdiction and repealed law giving SCOTUS appellate review of
Habeas Corpus over “Reconstruction Program”
a. Article III, § 2  “With such exceptions... as the Congress shall
make
ii. Issue
1. Can Congress take away appellate jurisdiction of SCOTUS in the middle of
a case?
iii. Chase J. Decision
1. SCOTUS does NOT have jurisdiction because Congress has the right to take
away the Court’s power
a. However, SCOTUS does have Habeas Corpus jurisdiction pursuant
to other Congressional statutes that they have not repealed
2. This case does NOT stand for the proposition that an entire area of
jurisdiction can be taken away because that would interfere with divisions of
power between branches too much
a. Since SCOTUS has other Habeas rights the Congress’ decision to
take away Habeas Corpus within the purposes of Reconstruction
Statutes is ok
iv. Commentary
1. McCardle’s Principle
a. You can have minor withdrawals of appellate jurisdiction by
Congress, but NO major severe contractions that would violate
Separation of Power
2. Frankfurter  Congress may withdraw appellate jurisdiction at any time
3. Bork  McCardle is enigmatic
a. It is odd that the framers would have couched the general power to
control the court in the language of exceptions and regulations
c. EX PARTE YERGER (1869)
i. SCOTUS explicitly pointed out that it had Habeas Corpus power under other
provisions and could hear the case
d. U.S. v. KLEINS (1872)
i. Facts
1. President Johnson offered pardons to confederates who took an oath of
loyalty and they were able to get their land back.
2. Congress passed a law stating that evidence of existence of a pardon could
NOT be used in court proceedings to get land back and taking pardon
established guilt
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a.
III.
The statute also stated that SCOTUS did not have appellate
jurisdiction to hear the case
ii. Holding
1. SCOTUS struck down the statute
a. Congress can deprive SCOTUS of jurisdiction, but they CANNOT
dictate the result of a case or action, or the effect of a pardon (they
CANNOT tell the Court how to decide a case)
iii. Difference from McCardle
1. In this case Congress is trying to usurp the power of both branches, telling
SCOTUS how to rule and undermining presidential pardon power
iv. ***NOTE***
1. Can’t take McCardle too literally (McCardle & Yerger together)
a. Congress can limit jurisdiction, but they can’t destroy it
b. Congress can make modest contractions in the appellate jurisdiction
of the Supreme Court, but they cannot make major contractions
i. It would be in violation of the Separation of Powers
v. ***NOTE***
1. Barron thinks that if Congress tried this today, the court would strike it down
as a violation of Separation of Powers
CONSTITUTIONAL LIMITATIONS
a. Case or Controversy Requirement
i. Case or Controversy Requirement
1. Federal Judicial Power granted in Article III is limited to certain defined
“cases or controversies” requiring that a case be in “adversary form” that is
capable of judicial resolution and that resolution does NOT violate
separation of powers
a. Need present or possible ADVERSE parties throughout the entire
litigation
ii. MUSKRAT v. UNITED STATES (1911)
1. Facts
a. Congress sets aside land for one group of Cherokee Indians, but
then gave the same land to some other Indian Group
i. What Congress did was adjudicate land to a greater group
by adding others to the land given to the first group
b. Congress then enacted a law providing that Cherokees who objected
to the second land conveyance could bring a lawsuit against the
U.S.
2. Holding
a. SCOTUS dismissed the case for lack of standing due to no case or
controversy
b. For a true “case or controversy” you need the existence of present
or possible ADVERSE parties whose contention is brought to the
court for adjudication
i. The U.S. had no interest in the suit and was just trying to
get an advisory opinion on the constitutional validity of the
law
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c.
To bring a successful suit the Cherokees would have to bring a suit
of ejectment against someone “in their land”
i. The real party to this suit would be a member of the second
group which was given the land after the Cherokees
b. Standing
i. First and Most important Justiciability Requirement
1. Two types of Standing
a. Case or Controversy Standing
b. Prudential Standing (After 3 Requirements have been met)
i. Even though a case meets the constitutional requirements
of standing, the court feels that it’s inappropriate to grant
standing as a matter of judicial discretion
ii. Three requirements for Standing
1. Injury in Fact
a. Π must allege and prove that he has been or will be imminently
injured
i. If seeking injunctive or declaratory relief Π must show the
likelihood of future harm
2. Causation Requirement
a. The injury must be traceable to the challenged acts of the Δ
i. In other words, the injury was caused by the entity you are
suing “But For”
3. Redressability Requirement
a. The court must be in a position to redress the Π’s injury by
providing some form of relief
iii. NO Third Party Standing Allowed
1. Π cannot bring claims of others
2. Exceptions (Π must meet all other Standing Requirements)
a. Close relationship between Π and injured Third Party (i.e. DoctorPatient)
3. Injured Party unlikely to be able to assert his/her own rights
iv. NO Generalized Grievances Allowed
1. Π must NOT be suing solely as a citizen or taxpayer objecting to
government not following the law or using taxpayer money inappropriately
AND NO standing if challenging spending from general executive revenue
2. Exception
a. Taxpayer CAN challenge government expenditure of money
pursuant to Federal Statute as violating the Establishment Clause
(Only giving money, but NOT property)
3. MASSACHUSETTS v. MELON & FRONTINGHAM v. MELON (1923)
a. Facts
i. Maternity Act protects moms & infants, and states must
comply to get money
1. Both the State of Massachusetts and Frontingham
(Mass Citizen) sue the Secretary of State Melon
ii. Massachusetts
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1. Claim that they are affected by the legislature and
interferes with the reserved rights of the state
under the 10th Amendment
a. 10th Amendment  “The powers not
delegated to the U.S. by the Constitution,
NOT PROHIBITED BY IT TO THE
STATES, are reserved to the States
respectively, or to the people”
iii. Frontigham
1. A rich citizen of Massachusetts argues that she is
directly affected because she is a Federal Taxpayer
which argues that the Maternity Act increases her
tax burden without her consent
b. Issue
i. Should Federal Taxpayers have standing? (As individuals
or State)
c. Sutherland J. Decision
i. Both cases are DISMISSED for lack of standing
1. A state CANNOT bring suit on behalf of its
citizens, it is no part of its duty or power to enforce
its citizens rights in respect to their relations with
the federal government
2. A party who invokes a suit must be able to show
not only that the statute is invalid, but that he has
sustained or is immediately in danger of
sustaining some direct injury
a. A party CANNOT simply show that he
suffers in some indefinite way in common
with general people
3. When it comes to the Federal Level a tax payer
will NOT have standing simply based on the fact
that they are paying taxes
a. There are millions of other tax payers and
thus the amount they contribute to the
Federal Budget is very small
i. If this was allowed a single
person could tie down the Federal
Government by seeking
injunctive relief
ii. Massachusetts consented to the bill by taking money from
it and therefore they can’t complain about exercise of
Federal Spending Power
iii. The grievances here are political questions and thus nonjusticiable
d. Commentary
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i. It is not clear whether the impediment to Federal Taxpayer
Standing is based in Article III or is Prudential
1. May be Prudential because there is no “direct”
injury and the only injury happens in some
indefinite way in common with people generally
ii. Tax Payers CAN have standing if they can show direct
pocketbook injury, that something harmed them
specifically
v. Injury and Causation
1. Injury in Fact  “An invasion of a legally-protected interest which is (a)
concrete and particularized (b) actual or imminent, no conjectural or
hypothetical”
a. DOREMUS v. BOARD OF EDUCATION
i. Facts
1. Two plaintiffs (state and municipal tax payers)
challenged a NJ statute requiring certain portions
of the Old Testament to be read at the beginning of
a school day
ii. Holding
1. SCOTUS DISMISSED the case since the
claimants did not have standing
a. Reading portions of the Old Testament did
NOT cause an “injury in fact” sufficient
to give them standing
2. Standing will meet “case or controversy”
requirement ONLY when it is a good faith pocket
book action (direct dollars and cents injury)
a. In this case reading the Bible did not
affect the taxes of the Π
2. Association Standing
a. Associations can have standing EVEN if the association has not
suffered injury as a whole IF
i. One or more members would have standing independently
ii. Interests at stake are related to the issues that the
organization deals with
iii. Claim or relief is NOT dependant on member participation
1. As long as individual participation is NOT
required in order for the suit to go forward
3. SIMON v. EASTERN KENTUCY WELFARE RIGHTS ORG
a. Facts
i. IRS amended a tax-exemption rule to state that non-profit
Hospitals could have non-profit status if they only gave
outpatient services (emergency treatment) to indigents for
free
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ii. Eastern Kentucky challenged on grounds that the IRS is
encouraging hospitals to deny services to the Π and the
members of Π organizations
1. Hospitals are not being generous enough, so they
should not be able to receive favorable tax
treatments
b. Holding
i. Indigents and Organization have NO standing
1. Where injury at the hands of hospital by denial of
services is alleged, it is insufficient to establish a
case or controversy where NO hospital is a Δ
ii. Causal Connection
1. The indigents’ injuries were being caused by the
hospital NOT the IRS, thus the injuries were
caused by a third party not present in court
iii. Redressability
1. Organization CANNOT be sure that if the Court
rules for them, then their clients will be takenc are
of
a. The hospital could deny to give them
inpatient care due to lack of resources
c. Brennan J. Concurring
i. There is an injury in fact  “Opportunity and Ability of
indigents to receive medical services”
d. Commentary
i. First Question to ask the Judge in standing cases
1. What do you want me to do about it?
4. LUJAN v. DEFENDERS OF WILDLIFE (1992)
a. Facts
i. Endangered Species Act (ESA) was originally interpreted
to extend obligations to foreign actions
1. It was later amended to include only the U.S.
ii. Organizations got together and filed a suit against the
Secretary of Interior and sought two remedies
1. Declaratory Judgment  New Regulation was in
error
2. Injunction  Requiring the Secretary to
promulgate the new regulation to store the original
interpretation
iii. Witnesses
1. Ms. Kelly  Stated she traveled to Egypt in 1986
and observed the traditional habitat of the
endangered Nile Crocodile
a. She does not state when she will be going
back
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2. Ms. Skillbred  Averred that she traveled to Sri
Lanka in 1981 and “observed that the habitat of
endangered species (Asian Elephant, Leopard)”
a. She does not state when she will be going
back
b. Holding
i. Respondents lack standing to bring the action in court
c. Scalia J. Decision
i. Citizen Suit provision of the ESA allows citizens to
challenge a procedural failure, but in this case the Π are not
seeking to enforce a procedural requirement
1. Congress’ wording is too abstract to count as an
injury in fact
ii. Causation
1. Injury was to be traceable to the challenged action
of Δ NOT the result of an action by an
independent third party who is not before the court
iii. Injury in Fact is NOT shown
1. “An invasion of a legally-protected interest which
is concrete and particularized, and actual or
imminent, NOT conjectural or hypothetical”
2. Organization is complaining about a future
incident and it is entirely hypothetical that they
will be injured by the act
3. Party seeking review must be the one injured
a. Such “some day” intentions of going back
without any description of concrete plans
do NOT support a finding of the “actual
or imminent” injury
4. Π claiming injury from environmental damage
MUST use the area affected by the challenged
activity and not an area “roughly in the vicinity”
iv. Redressability
1. Even if the court wanted to issue a remedy it will
NOT be an effective one because some of the
parties necessary to fix the injury are not before
the court
a. Redressability would entail termination of
funding by the individual agencies, but
agencies ONLY supply a fraction of the
funding for a foreign project
v. Procedural Injury Issue
1. Allowing Congress to convert a public interest into
an individual right is to permit Congress to transfer
from the Executive (which created the act) to the
Judiciary
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a.
Executive has a duty to make sure the
laws are faithfully executed
d. Kennedy J. Concurring
i. Gives Legal Advice to Organization
1. Tells Π to buy a plane ticket to make the injury
more concrete
ii. Congress must at the very least identify the injury it seeks
to vindicate and relate the injury to the class of persons
entitled to bring the suit
e. Stevens J. Concurring
i. There is standing because a person who has visited the
critical habitat of endangered species has a professional
interest in preserving the species in the habitat
1. Scalia is focusing on the “future possible injury”
and instead he should be focusing in the present
time
f. Blackburn J. Dissent
i. The only issue to address here is that of harm
1. Unable to see how the distant location of the
destruction necessarily mitigates the harm
g. Commentary
i. Statutory broadening of categories of injury that may
qualify for standing is distinct from the requirement that the
Π must have injury to himself
5. FRIENDS OF EARTH v. LAIDLAW ENVIRONMENTAL (2000)
a. Facts
i. Agency stated that there were pollutants being released in a
river, but it turned out that the river was not polluted
1. Due to thought of pollution the value of housing
declined and people refused to fish in the river
ii. Π lived along the river and used this as a claim for injury
b. Holding
i. The Π has standing in this case
c. Ginsburg J. Decision
i. In this case people lived by the river that the agency
wrongfully termed as polluted
1. The injury was actual and imminent because the
thought of pollution in the river would affect the Π
daily lives
d. ***NOTE***
i. Barron does not think this case and Lujan are the same
because in this case there is a more continuing and serious
injury
6. DAIMLES CHRYSLER v. CUNO
a. Melon left open the possibility that there was municipality tax payer
standing
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c.
i. Court is not willing to say no to that however, here the Π
fails to point to any municipal action contributing to the
claimed injury
7. MASSACHUSETTS v. EPA
a. Facts
i. Massachusetts challenged an EPA provision denying a
petition for rulemaking to regulate greenhouse gas
emissions from new motor vehicles under the Clean Air
Act
1. State is concerned about it because of the effects of
Global warming in their Coastal Lands
ii. Massachusetts wants to compel the EPA to control this
emissions in Mass
b. Holding
i. Mass had standing because there was a Federal Statute that
gave them this right
1. Massachusetts owns coastal lands and this the
injury in fact harms them
ii. Causation takes place because EPA does NOT dispute the
existence of a causal connection between man-made
greenhouse emissions and global warming
iii. Remedy can work out because although EPA does not fix
the problem itself, they can take steps to slow down or
reduce it
vi. Other Standing Cases
1. ASARCO v. KADISH (Δ Standing)
a. When a State Court issues a judgment harming Δ, he will now have
standing to bring the case in a Federal Court even where Π did not
originally have standing
2. FLAUST v. COHEN
a. Where you have a specific prohibition in the Constitution against
the spending or taxing power, then the taxpayer has standing
Mootness
i. If events after filing end the Π injury then the case should be dismissed as moot
1. Π MUST present a live controversy and ongoing injury throughout entire
proceedings
a. There must be actual adversity that gives rise to the mootness
ii. DEFUNIS v. ODEGAARD (1974)
1. Facts
a. Π was denied admission to the University of Washington Law
School contending that they had an affirmative action program
which gave preferences to others who had lower LSAT and GPA
i. Claim that affirmative action was a violation of Equal
Protection Clause
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b. Lower Court agreed and instituted him as a student and by the time
the suit arrived to SCOTUS he was at the end of his third year of
law school
2. Holding
a. Case was moot because there was not a controversy anymore
i. The controversy between the parties had ceased to be
definite and concrete, and no longer touches legal issues
ii. Article III  “The Federal Courts are without power to
decide questions that can’t affect the rights of the litigants
before them”
1. Π will finish school no matter what, so there is no
case or controversy
b. There is not an exception to mootness in this case
i. Not voluntary secession of illegal activities because once
the Π got into law school the policy of affirmative action
does not intervene whatsoever
ii. Case is not capable of repetition for the plaintiff himself
because he could not reapply into law school again after
getting his J.D.
3. Brennan J. Dissent
a. This falls under voluntary secession because something could
happen to keep the Π from graduating or force him to leave school,
thus forcing him to reapply
b. Sympathetic to Sunk Cost Argument
i. All the expenses had been undertaken to resolve the case
and now they are throwing it out due to mootness
c. ***NOTE***
i. Barron thinks this arguments are good for why mootness
argument does not work, but since mootness is the law it
doesn’t matter
iii. Three Exceptions to Mootness
1. Voluntary Secession of Legal Rights
a. When the Δ decides to stop the offending practice, but is free to
resume at any time
2. Case Capable of Repetition but Evading Review
a. Two Requirements – FIRST NATIONAL BANK v. BELLOTTI
i. Challenged action was too short in duration to be fully
litigated prior to its secession of expiration
ii. There is a reasonable expectation that the same
complaining party will be subjected to the same action
again
b. ROE v. WADE
i. Although the case was moot because Roe was NOT
pregnant anymore at the time the case was being heard,
SCOTUS applied the capable of repetition exception and
allowed the case to go forth
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1. Her pregnancy was too short to be fully litigated
upon her giving birth
2. There is a reasonable expectation that she would
be subject to the same action again because she
could get pregnant again
c. HONIG v. DOE
i. Facts
1. Suit seeking injunctive relief against school district
officials who had suspended emotionally disturbed
students for violent and disruptive conduct
a. Violation of the Education of the
Handicapped Act (EHA) which
encompassed students age 3-20
2. One of the claims involved a student who turned
21 and another of a student who was 20, but not in
school at the moment
ii. Holding
1. The claim of the 20 year old was allowed to go
forth
iii. Reasoning
1. The claim of the 20 year old was allowed to keep
going because the factual situation is such that it
would be likely to happen again to the same Π if
he decides to enter school before he turns 21
3. Class Actions
a. Overall class action suit is NOT moot as long as there is a member
of that class that has a live controversy because he/she will be
speaking for other members that might go through that in the
future
b. SOSNA v. IOWA (1975)
i. Facts
1. Divorce law in Iowa required that a person live in
the state for one year before they could get a
divorce from a State Court
a. Π challenged this on Equal Protection
issues and brought as a class action suit
ii. Holding
1. Class actions suit should not be dismissed by moot
iii. Reasoning
1. The entire class serves as a Π
a. As long as a member from the class can
pass suit, she/he is speaking for all other
people that have not moved to Iowa but
will do so in the future
d. Ripeness
i. May the Federal Court grant pre-enforcement review of a statute or legislation?
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IV.
1. Look at:
a. Hardship that Π will suffer without pre-enforcement review
i. Pre-Enforcement  There has not been an event that has
caused the statute to be enforced
b. Fitness of issues in record for judicial review
i. Does Federal Court have ALL it needs to effectively
decide the issue OR is it better to wait for an actual
prosecution?
ii. Case is not in such a state of development that it should be resolved by the Court.
JUDICIAL LIMITATIONS  The Political Question Doctrine
a. BAKER v. CARR (1962)
i. Facts
1. TN constitution required re-apportionment every 10 years but it had not
happened in over 60 years.
a. After the Civil War there was a migration to the cities and some of
the areas in the countryside were over-represented
2. Π challenged this as a violation of the 14th Amendment, Equal Protection
Clause because their right to vote was being violated
ii. Holding
1. The question of whether state legislative apportionment satisfies Equal
Protection is not political and the court is able to avoid past problems with
apportionment questions by just asking TN to abide by its own constitution.
iii. Brennan J. Decision
1. Decides that (1) the court possesses subject-matter jurisdiction, (2) Π states a
justiciable Cause of Action and (3) Π has standing to challenge the
apportionment statute
2. Jurisdiction
a. There is subject matter jurisdiction because the complaint is an
issue arising out of the Constitution
3. Justiciability
a. To determine if something is justiciable the court considers
appropriateness of the court making the final determination and
whether there are satisfactory criteria for a judicial determination
b. This case involves the Equal Protection and thus it is justiciable
i. By ignoring the constitution, Tennessee is denying people
the equal protection of the laws and their right to
equivalent representation
c. ***NOTE***
i. Political Questions are NON-JUSTICIABLE
4. 6 Criteria for Identifying a Political Question – All are basically nonjusticiable due to separation of powers concerns (Only one criteria necessary
for the issue to be a political question)
a. Judicial Functions (What is appropriate for Judicial Branch?)
i. Textually demonstrable constitutional commitment of
the issue to a coordinate political department
16
1. Non-Justiciable because Article V leaves this to
Congress
ii. Lack of judicially discoverable and manageable
standards for resolving the issue
b. Deference to Other Branches
i. Impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion
1. EX  Courts hold that it’s not appropriate for
them to determine when a war is over because they
lack ALL the information that the political
branches have
ii. Impossibility of a Court’s undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government
iii. Unusual need for unquestioning adherence to a political
decision already made
iv. Potentiality of embarrassment from multifarious
(diverse) pronouncements by various departments on one
question
iv. Frankfurter J. Dissent
1. The Guarantee Clause Case should govern in this case and this clause states
that the issue here is non-justiciable
2. The court is making a determination here which is inconsistent with the role
of the judiciary
a. Many Factors go into re-districting: geography, demography, etc
3. There is no reason for the complaint because the people of TN still go out to
the polls and vote, therefore their voting right has been given
4. Frankfurter worried that the court may be undermining its own power
a. If TN legislature ignores them, they will lose their power
b. Passive Virtue Argument
i. Only power of SCOTUS is the willingness of people to
adhere to their decisions
5. Geographically proportioned representation is NOT necessarily an element
of equality under the 14th Amendment
a. Never in this country has it been demanded that there must be
proportionality between the population and the weight of their votes
v. Clark J. Concurring
1. If TN had any other relief available, the Court should not get involved
a. However, TN does not allow for referendum and people in the
legislature will NEVER vote themselves out of office and the Court
MUST intervene
b. APPORTIONMENT
i. COLEGROVE v. GREEN (1946)
1. Facts
a. Illinois had not reapportioned after a population shift into the cities
and Chicago was under-represented
17
i. The state was dominated by rural Republicans who refused
to redistrict because then Chicago would take over
2. Issue
a. Does the under-representation violate the 14th Amendment?
3. Frankfurter J. Decision (Plurality)
a. This is a non-justiciable matter because the courts should NOT
enter the political thicket of issues about mal-apportionment
i. There are NO standards by which to judge the validity of
state’s apportionment schemes
4. Rutledge J. Concurring
a. The issue is not usually a non-justiciable one, but this case is nonjusticiable
i. There is little time to reapportion
ii. GOMILLION v. LIGHTFOOT (1960)
1. Facts
a. Town was gerrymandered to exclude black families
2. Frankfurter J. Decision
a. This is unconstitutional because it is discriminatory
c. PARTY GERRYMANDERING
i. DAVIS v. BANDEMER (1986)
1. Facts
a. Republicans dominated Indiana legislature and they reapportioned
districts in the state to disadvantage Democrats
i. Democrats sued for illegal gerrymandering
2. Issue
a. Does the Equal Protection Clause prohibit gerrymandering on the
basis of political parties?
3. Holding
a. The question of political gerrymandering is justiciable
i. In order to violate the Equal Protection Clause you MUST
show a pattern of un-representation over many years, which
is not the case in this suit
1. Suggestion that political gerrymandering is nonjusticiable
4. O’Connor J. Dissent
a. This is a non-justiciable area because it is a political question
5. This case is different than Baker (lack of representation) because the issue
here is gerrymandering and whether the appropriate way to redistrict is
justiciable
d. FOREIGN AFFAIRS
i. GOLDWATER v. CARTER (1979)
1. Facts
a. Communists took over China and the right wing government moved
over to Taiwan to form their own nation
18
e.
b. Carter took position that the People’s Republic of China
(Communists) were the legitimate nation and abolished the treaties
that it had with Taiwan
i. The Constitution says the President can make treaties, but
is silent on treaty termination)
c. Senator Byrd passed a measure requiring for Senate approval if the
President wanted to terminate a treaty (Byrd Amendment)
i. Goldwater needed measure so that he would have a case or
controversy, otherwise there would be NO standing
d. Senator Goldwater brought suit stating that there is NO
constitutional authority for Carter to abrogate a treaty and sought
declaratory judgment
2. Issue
a. Who can terminate a treaty?
b. Is it justiciable for the Court to decide if the President can
unilaterally terminate a treaty?
3. Holding (Per Curium)
a. Question of the President’s power to unilaterally terminate a treaty
should be treated as a political question and is non-justiciable for
the following reasons:
i. There is NO constitutional provision directly controlling
the issue
ii. The political branches have adequate resources to decide
the issue
iii. The issue involves foreign affairs
4. Powell J. Concurring
a. The case was justiciable, but NOT ripe for review
i. Ripeness
1. Case is not in such a state of development that it
should be resolved by the Court.
b. The reason the case is not ripe for review is because Congress had
NOT done everything in their power to solve the situation
i. Congress would have to show that the Senate supported the
Byrd Amendment retroactively
5. Rehnquist J. Concurring
a. This case is a non-justiciable one regardless of ripeness
i. The court had NO unique competence in the area of foreign
relations and ought to keep out of it giving deference to
other branches
6. Brennan J. Dissenting
a. This is a constitutional issue about which branch holds a particular
power and the Court can decide this question
i. Therefore it is a judicial question as to whether what the
President did was textually committed in the Constitution
and NOT a political question
IMPEACHMENT AND REMOVAL PROCESSES
19
i. POWELL v. MCCORMACK (1969)
1. Facts
a. Congress refused to seat a Congressman from NY who was reelected despite legal problems
i. House argues that they get to decide the qualifications of
who to seat
2. Powell’s Claim
a. Article I, § 2  states that the requirements are a person 25+ that is
a U.S. Citizen and has established a residence in the state they are
running in
3. Congress’ Claim
a. Article V, § 5 “Each house shall be the judge of the
qualifications of its own members
i. Non-Justiciable political question because there is a textual
commitment to a coordinate branch of government
4. Issue
a. Was Powell excluded or expelled?
5. Warren J. Decision
a. The House was adding to the qualifications for being seated in
Congress
i. Powell met all qualifications, so the House CANNOT
refuse to seat him
1. They can remove him by 2/3 vote if they find him
unfit
b. SCOTUS is NOT deciding a political question because
“qualifications” are expressly defined in the Constitution and they
are just enforcing them
ii. NIXON v. UNITED STATES (1993)
1. Facts
a. Federal Judge was in prison still collecting pay
i. The House impeached him and the Senate convicted him
2. Nixon’s Claim
a. Challenging the judicial proceedings against him based on Article I,
§ 3, Cl. 6  ”The Senate shall have the SOLE power to TRY all
impeachments”
i. Nixon argued that the entire Senate had to sit in all the
proceedings instead of having a Committee to do the
evidentiary work and then submitting a report to the whole
Senate
3. Rehnquist J. Decision  This is a non-justiciable question
a. Based on the Constitutional convention and commentary, the
framer’s didn’t want SCOTUS to decide impeachments (Not
Representative)
i. The Framer’s also did not want the possibility of the same
“branch” trying the issue twice if impeachment was also a
criminal matter
20
f.
1. Separation between forums to avoid raising the
specter of bias and to ensure independent judgment
ii. System of Check and Balances
1. Impeachment is the sole check of the legislature on
the judiciary
b. No need for judicial involvement because there are already
Constitutional safeguards to keep the Senate in check during
impeachments
i. Whole impeachment power is divided between the House
and Senate
ii. There is a 2/3 supermajority vote requirement in
impeachment proceedings
c. Article I, § 3
i. First sentence is a grant of authority to the Senate and the
word “sole” indicates that authority is reposed in the Senate
only
1. They have the sole authority to convict of
impeachment with a 2/3 vote
4. Steven J. Concurring
a. It’s not about words, but more about the Framer’s intent to assign
power to the legislature
5. White J. Concurring
a. The issue is justiciable and the Constitution doesn’t prohibit judicial
review of impeachment
i. The word “try” and any class of concepts having to do with
procedural justice can fall within the definitional abilities of
the judiciary
b. The term “sole” was added to avoid interference by the House of
Representatives and not the Judiciary
i. The Court reviews legislative actions all the time
6. Souter J. Concurring
a. This case does NOT need an answer because it was a judicial trial
i. However, this doesn’t mean the Court should say it’s never
reviewable
b. Even though the Framer’s wanted to take the process of
impeachment and leave it in the political branch of the government,
the judiciary knows better
OTHER POLITICAL QUESTION CASES
i. LUTHER v. BORDEN (1849)
1. Facts
a. Rhode Island (RI) had no state constitution and operated under a
charter that was given to them by King Charles II
i. Charter very descriptive on who could vote
b. RI had its own constitutional convention to provide more people the
right to vote and they established a new government and a new
constitution
21
c.
A sheriff (Borden) broke into the house of one of the election
committee chairs (Luther)
i. Both the charter and the newly established government
were operating so there was confusing on who should
handle this
2. Issue
a.
Is the charter government of RI a “Republican” form of
government and if it is, which government is the appropriate one?
3. Taney J. Decision
a. Determination of what is a republican form of government NOT a
matter for judicial decision because it is a non-justiciable issue
i. The issue is a Congressional responsibility
ii. COLEMAN v. MILLER (1939)
1. Facts
a. Attempt at a constitutional amendment against child labor
2. Issues
a. How long does a proposed Constitutional amendment with no limit
remain open to ratification?
b. If the state legislature first refused to ratify it, can they accept
ratification later?
3. Holding
a. This is a political question because it is for Congress to decide this
i. The Court has NO criteria or guidance for deciding this
4. ***NOTE***
a. Baker distinguished this case because this has separation of powers
issues
i. Finality of action attributed to a particular political
department
ii. Lack of criteria for judicial determination
iii. BUSH v. GORE
1. Issue
a. Whether there should be a remand to the Florida Supreme Court so
that they should figure out a way for the uniform counting of votes
in the 2000 Presidential Election
2. Holding
a. Remand would threaten the state’s ability to reach a final electoral
decision by December 18 (date prescribed by Federal Statute) for
insuring that the state’s electoral votes would be counted
3. Breyer J. Dissent
a. Uses Political Question as a sword
i. Some issues are too important for judicial review and
should not be seen by the judiciary
b. This is a highly politicized matter and it would be better for the
court not to be involved in it
22
FEDERAL LEGISLATIVE POWER – National Powers and Federalism
I.
The Nature of Federal Power
a. Themes
i. Compact Theory of the Constitution
1. The Constitution is the creation of the States and thus the Federal
Constitution and government are subordinate to the wishes of the state.
(Hunter’s Lessee)
ii. Enumerated Powers
1. Article I, § 8  Sets out Enumerated Powers of Congress
iii. Doctrine of Implied Powers
1. Powers implied from Enumerated Powers
a. Article I, § 8, Cl. 18  Necessary and Proper Clause
iv. Pretext Theory of the Constitution
1. If Congress used an enumerated power as a pretext to do something that they
CANNOT do, the Court would have to set it aside. (Marshall in
McCulloch)
a. EX  Police Power is a reserved power of the States despite the
Commerce Clause (Hammer v. Dagenhart)
v. Scope of Federal Legislative Power
1. “Let the end be legitimate, let it be within the scope of the Constitution, and
all means which are appropriate, which are plainly adopted to that end,
which are NOT prohibited, but consist with letter and spirit of the
Constitution, are constitutional”
vi. Taxation
1. Concurrent power between Congress and the States
vii. Intergovernmental Immunities
1. State CANNOT tax Federal Instrumentalities, and the Federal Government
CANNOT tax State Instrumentalities. (Equal Sovereigns)
a. Marshall rejects this view
viii. Process Theory of the Constitution (Democratic Political Theory)
1. It is appropriate for Congress to legislate for the State, but not for the State
to legislate for the Federal Government because all Federal Citizens are
NOT represented by the State legislature
ix. Pre-Emption
1. Article VI – Supremacy Clause
a. Laws of the U.S. are Supreme Laws of the land, so when there is a
conflict between Federal and State laws, the Federal Law prevails.
2. Express Pre-Emption
a. If Federal Statute or Law says that Federal Law is exclusive in an
area, State/Local laws are pre-empted
3. Implied Pre-Emption
a. If a Federal Law and State Law are mutually exclusive, State Law is
deemed pre-empted
b. If a State Law interferes with achievement of Federal objective,
then State/Local law is pre-empted
23
c.
If Congress evinces a clear intent to pre-empt state/local laws, then
State/Local laws are deemed pre-empted
4. States may NOT tax or regulate Federal Government Activity
b. Necessary and Proper Clause
i. MCCULLOCH v. MARYLAND (1819)
1. Facts
a. There was no specific power under the Constitution to create a bank
and Hamilton created one regardless of this.
i. Maryland established a statute imposing a tax on the face
value of notes issued by banks and branches located in the
state to drive the bank out of business
1. The Baltimore Branch controlled by the Bank of
the United States refuses to pay
ii. Maryland insisted that they had a right to tax the bank, but
the bank said the state had no such right
b. Issue
i. Can Congress create a bank of the United States? If so, can
Maryland tax the Bank of the United States?
c. Holding
i. Law passed by the state of Maryland taxing the Bank of the
United States is unconstitutional
d. Marshall J. Decision
i. Congress has Legislative Power to Incorporate a Bank of
the United States
1. Framers were very clear about what Congress
could NOT do and one of those things was NOT
creating a bank
a. Therefore, Congress has the legislative
power to create and incorporate a Bank of
the United States (Nothing Stopping
Them)
2. Rejects Compact Theory by stating that the
Constitution is the creation of the people and NOT
the states
a. The government is NOT subordinate to
the States
3. Congress have ENUMERATED and IMPLIED
powers but NOT inherent
a. “Express” (Constitution) is not the same
as “Delegated” (Articles of
Confederation)
b. Congress has incidental and implied
powers necessary to accomplish their
purpose
c. Necessary and Proper Clause is a grant
and not a restriction of powers
24
i. Necessary and Proper =
Convenient, Useful, Essential
4. Although there is nothing explicit saying Congress
can create a bank, their actions are justified
because a bank is a proper way of enacting some
of their enumerated powers
a. Enumerated Powers
i. Borrowing Money
ii. Regulating Commerce
iii. Raising/Supporting an Army
iv. Declaring War
v. Collecting Taxes
5. Pretext Theory of the Constitution
a. If Congress adopts measures prohibited by
the Constitution or passes laws to
accomplish goals that aren’t the job of the
Federal government, the Court MUST
strike down these laws
6. Creation of a Bank is NOT prohibited by the 10th
Amendment because the amendment only reserves
those powers NOT delegated and not those
“expressly delegated
ii. Maryland CANNOT tax the Bank of the U.S. because it
lacks the power to tax a Federal Instrumentality
1. States have concurrent power to tax but NOT to
the point of burdening or limiting Congress’ ability
to execute laws
a. Constitution makes clear that the state
power is NOT absolute
2. Process Theory
a. Federal government can tax state
institutions because everyone is
represented in the Federal Government
i. States CANNOT tax Federal
Institutions because taxation
would hurt people who aren’t
their citizens and whose tax
money goes toward creating a
Bank of the United States
ii. UNITED STATES v. COMSTOCK
1. Facts
a. Statute that allowed the Government to hold mentally ill and
sexually dangerous people after their sentence was over
i. Prisoners bring suit claiming that this statute is
unconstitutional and exceeded Congress authority of the
Necessary and Proper Clause
25
c.
2. Holding
a. SCOTUS held the statute was constitutional
3. Reasoning
a. Necessary and Proper Clause granted Congress “broad authority to
enact Federal Legislation found within their enumerated powers”
b. The statute was simply a “modest addition” to long standing federal
prison-related legislation
i. This Congressional extension was reasonable even if they
were detained beyond the term of their criminal sentence
1. Congress as the Federal custodian or prisoners has
the power to protect “nearby communities from the
danger that Federal prisoners may pose”
Establishing the Foundations/Early Commerce Power
i. Articles of Confederation didn’t give specific power to Congress over commerce,
which resulted in trade barriers from State to State
ii. The U.S. Constitution created a national economy vesting the powers in Congress
1. Article I, § 8, Cl. 3  “Congress shall have Power to regulate Commerce
with foreign Nations, and among the several states, and with the Indian
Tribes”
iii. Evolution
1. Commerce power was born strong  Devolved  Gaines Strength
Starting to be more limited
2. Began with Organic Theory and turned into Territorial Test
3. Stream of Commerce Test
a. Local activities can be regulated if part of the stream of Commerce
(Stafford v. Wallace)
4. Indirect/Direct Test
a. Congress could regulate local activities having a direct effect on
interstate Commerce, but not those that have an indirect effect
(Carter v. Carter Coal)
iv. Themes/Definitions
1. Marshall’s Organic Theory of Commerce
a. Interstate Commerce is ANY commerce that affects more than one
state, not just those that cross state lines
2. Territorial Test
a. Only looks at the crossing of state lines
i. If it crosses a state line, then Congress has the power to
regulate it (REJECTED IN GIBBONS)
3. Police Power
a. Legislation dealing with health, welfare, and morals of the people.
(Historically reserved to states)
i. Issues arise when matters involve both commercial
enterprise and the police power
4. Congressional Power over Commerce is PLENARY
a. Congress has FULL/COMPLETE power so long as it’s within the
scope of commerce
26
i. Marshall thinks the only limitation is for people to vote
legislators out of office
th
5. 10 Amendment
a. Powers not given to Congress are reserved to the people and State
6. Interstate Commerce
a. Commerce affecting more than one state
i. Federal Government should regulate it
7. Intrastate Commerce
a. Commerce within a single state
i. State Government should regulate it
v. GIBBONS v. OGDEN (1824)
1. Facts
a. NY gave exclusive right to Ogden to run a steamboat within
jurisdictional waters of the state
i. He sought to enjoin Gibbons who operated under a Federal
license based on an act of Congress
2. Holding
a. Congress has the power to regulate interstate commerce, thus
Gibbons is allowed to operate
3. Marshall J. Decision
a. Uses Organic Theory of Commerce
i. Commerce is any commercial intercourse, not just limited
to buying, selling, and exchanging commodities
1. Navigation is an essential part of commerce and
Federal government has been regulating navigation
since the beginning of times
b. Those things that are completely internal are NOT interstate
commerce
i. However, commerce among the states CANNOT stop at
the external boundary line of each state, but may be
introduced into the interior
c. The power of Congress over commerce is PLENARY
i. Full, Entire, Complete
1. If it is related or falls under commerce, then
Congress can do whatever they wish
ii. Only limitation is for people to vote their representatives
out of office
d. ***RULE***
i. Federal Commerce Power extends to ALL commerce,
except that which is totally intrastate
vi. THE DANIEL BALL (1871)
1. Facts
a. Ship operated only on a river in Michigan
2. Issue
a. Can Congress dictate Federal Safety Regulations in the boat?
3. Holding
27
a.
Congress CAN regulate the boat because the ultimate destination of
the goods was interstate
i. The boat is just an instrumentality of interstate commerce
and one of the many means of transportation to get goods
to the ultimate destination
d. Modern Interstate Commerce Power
i. Exercise of Independent State Power can be a problem in 3 situations
1. When Externalities Exist and a State’s Action/Inaction Causes Big
Problems in Another State
2. When States Reduce Commerce or Environmental Regulations as a
Means of Attracting Industry
3. When Individual States choose to Depart from a Broader National Moral
Consensus
ii. FEDERAL POLICE POWER
1. Champion v. Ames – Lottery Case (1903)
a. Facts
i. Champion was arrested and indicted for violation of the
Federal Lottery Act of 1895 which made an interstate
transportation of lottery tickets unconstitutional
b. Issue
i. Can Congress regulate interstate commerce in order to
prohibit this?
c. Holding
i. Federal Lottery Act was constitutional
d. Harlan J. Decision
i. Commerce power is PLENARY and not subject to
limitations
1. Power to regulate includes prohibition of actions
involving interstate shipment of goods
a. It does not matter that it’s also a police
power so long as there is some commerce
nexus
ii. 10th Amendment is NOT a bar because it only reserves
those powers not delegated and Commerce power is
delegated to Congress
1. Power to delegate includes power to prohibit
iii. Both State government and Congress are able to legislate to
the same effect, so long as they each have power to do so
1. States can use police power, Congress the
Commerce Power
iv. Cooperative Federalism
1. Some stats didn’t want lottery and Congress is
helping them with this
v. ***RULE***
28
1. Congress may use Commerce power to prohibit
the interstate shipment of evil or pestilent items in
order to protect channels of commerce
2. HAMMER v. DAGENHART (1918)
a. Facts
i. Dagenhart filed suit on behalf of his two minor sons to
enjoin the enforcement of the act of Congress intended to
prevent interstate commerce in the products of child labor
ii. Three attacks on the legislation
1. Not a regulation of interstate commerce
2. Contravenes the 10th Amendment to the
Constitution
3. Conflicts with the 5th Amendment to the
Constitution
b. Holding
i. It is unconstitutional for Congress to get involved in state
matters
c. Day J. Decision
i. This statute is an invasion of state police power
1. Production and Manufacturing of goods come
prior to commerce and therefore, are matters of
local regulation
ii. The evil that commerce is trying to regulate with this
statute is Child Labor
1. The Child Labor is done prior to the shipment of
goods across state lines and the goods themselves
are harmless (Harmful Commodity Doctrine)
iii. Congress was trying to deal with unfair labor in those states
that were seeking to industrialize
1. States had police power and Congress getting
involved would be unconstitutional because it
would interfere with state’s rights
iv. Doctrine of Dual Federalism
1. There are 2 sovereigns that are equal in nature and
not hierarchal
a. The national government is one of only
enumerated powers, and it may only
promote a few purposes constitutionally
2. The relation of the two centers with each other is
not one of collaboration, but one of tension
v. Harlan’s Cooperative Federalism in Champion will destroy
the system because it could destroy any state legislative
jurisdiction
vi. Congress can’t use commerce as a means of effectuating
policy goals because this should be left to the State
d. Holmes J. Dissent
29
i. The existence of state police power DOES NOT mean that
Congress CANNOT regulate
ii. Once states seek to put their products across state lines, the
federal government can regulate
iii. Day’s distinction between preceding/following
transportation is poor reasoning
1. The Court should not look at other purposes of the
statute because as long as there is interstate
transportation then Congress’ power is plenary
e. ***RULE***
i. Congress may NOT use the Commerce Power in areas
traditionally left to the state police power
1. They can only regulate the harmful commodities
themselves
iii. STREAMS OF COMMERCE
1. Local activities can be regulated if they are part of the interstate commerce
2. STAFFORD v. WALLACE (1922)
a. Facts
i. Congress passes legislation regulating conditions in
Chicago stockyards
b. Holding
i. Court upheld the constitutionality of the statute because a
stockyard is in the stream of commerce and transactions
can’t be separated from the national movement of the
goods they relate to
c. Reasoning
i. Broad Reading of Commerce Clause
1. The local activities were only a part of the
interstate commerce the Congress has the power to
regulate
ii. “Stockyards are the throat through which interstate
commerce flows”
iii. Similar to Organic Theory in that it is not necessary for
goods to cross state lines
iv. DIRECT AND INDIRECT EFFECTS
1. Congress can regulate activities with a direct effect on interstate commerce,
but CANNOT if it’s only an indirect effect
2. Houston E&W TX RR v. U.S.
a. Facts
i. Sate regulated RR was further and cheaper than interstate
trip which was regulated by Federal Government
1. Rates between Tyler (TX) and Dallas (TX) were
less than rates between Tyler (TX) and Shreveport
(LA) despite the distance between Tyler and
Shreveport being less
30
a.
This resulted in cotton and other products
being shipped to Dallas to be processed
b. Holding
i. SCOTUS upheld federal controls over rates charged by a
RR for trips wholly within the state of Texas
c. Reasoning
i. Shreveport Doctrine
1. Congress could regulate a purely intrastate activity
as long as the activity had a close and substantial
connection to interstate commerce
3. U.S. v. E.C. Knight & Co. (1895)
a. Facts
i. DOJ sought an injunction to keep sugar company from
acquiring a monopoly (98% sugar production)
b. Holding
i. SCOTUS rejected DOJ’s attempt to restraint further
acquisitions by the company
c. Reasoning
i. This case dealt with manufacturing which is a local activity
subject to State police powers
ii. Commerce is only directly affected if something actually
crosses a state line
1. Manufacturing only affects commerce incidentally
and indirectly
iii. Follows Hammer in that Congress CANNOT regulate
activity preceding interstate activity
v. NEW DEAL CASES
1. CARTER v. CARTER COAL (1936)
a. Facts
i. Congress was trying to deal with constant coal strikes, so it
passed legislation requiring collective bargaining
(effectively a regulation of manufacturing)
b. Issue
i. Does this directly or indirectly affects commerce?
c. Holding
i. Court rejected regulation based on the Direct or Indirect
Test from E.C. Knight
d. Reasoning
i. The wages an employee receives in a coal mine have NO
direct effect on interstate commerce
ii. Mining precedes commerce and is not Commerce in of
itself, so it CANNOT be regulated
2. NLRB v. JONES & LAUGHLIN STEEL CORP (1937)
a. Facts
i. Congress wanted to set minimum wage-maximum hour
provisions, however, this was an intrastate activity
31
b. Holding
i. Upheld the act allowing Congress to deal with collective
bargaining, minimum wages, and maximum hour
provisions
c. Reasoning
i. Court uses Shreveport Doctrine to sustain national
intervention in the economy
1. Although activities may be intrastate in character,
when separately considered they have a close and
substantial relation to interstate commerce
vi. U.S. v. DARBY (1941) – Overturns HAMMER
1. Facts
a. Darby was in the lumber business and was ignoring the Fair Labor
Standards Act pertaining to minimum wage and maximum hour
provisions
2. Issues
a. Can Congress prohibit the shipment in interstate commerce of
lumber made by employees whose wages/hours violate the Act?
(YES!) – Overrules Hammer
b. Can Congress prohibit the employment of workmen in the
production of a good for interstate commerce at other than the
proscribed wages/hours? (YES!)
3. Holding
a. The Fair Labor Standard Act is upheld to be constitutional
4. Stone J. Decision
a. Shipment
i. Congress’ power under the Commerce Clause is plenary
1. They have a power to regulate, so they have the
power to prohibit and restrict as long as they can
satisfy Affectation Doctrine and show it affects
interstate commerce
ii. Manufacturing is not itself in interstate commerce, but the
shipment of such goods is a channel of interstate commerce
and Congress can regulate the conditions
1. Motive & Purpose are irrelevant (so long as the act
regulates commerce)
2. Congress can use Commerce Clause for police
powers regardless of whether states have/could
have regulated in this area
3. Hammer and the harmful commodities doctrine are
REJECTED
iii. Known that a substantial amount of buyers that seek
Darby’s business come from outside GA
1. However, some parts of the plywood that is
produced by the lumberyard is sold to them within
GA and manufactured in the state
32
b. Employment - Affectation Doctrine
i. Congress’ power over interstate commerce “extends to
those activities intrastate which so affect interstate
commerce or the exercise of the power of Congress over it
as to make regulation of them appropriate means to the
attainment of a legitimate end”
ii. Interstate manufacturing substantially affects interstate
commerce and so Congress can regulate it
1. It does not matter that some of the timber never
leaves the state
iii. Affectation Doctrine is the ONLY remaining limit on
Congress’ power
c. Enterprise Doctrine
i. If Congress can regulate the business as a whole, the fact
that some portion of it is meant for intrastate commerce is
irrelevant
1. If it can be regulated as a class then courts don’t
have to inspect every part
d. Ends McCulloch’s pretext theory that Congress can’t pass laws for
the accomplishment of objects not entrusted to the Government
under the pretext of executing its powers (Intentions Don’t Matter)
5. ***RULE***
a. Commerce power is plenary, and may reach intrastate activities that
substantially affect interstate commerce
b. 10th Amendment is merely a truism that places NO additional limits
on Congress’ Authority
vii. WICKARD v. FILBURN (1942)
1. Facts
a. Amendment to the Agricultural Adjustment Act creating limitations
on how many acres of wheat people could plant including wheat for
the market and for home consumption
b. Farmer challenged this on the basis that it was completely internal
(local issue)
2. Holding
a. The amendment is a valid exercise of the Commerce Clause
3. Jackson J. Decision
a. Congress can regulate activity that is local in nature as long as it
exerts substantial economic effect on interstate commerce
b. Consumption of home grown wheat affects market price and
therefore, substantially affects interstate commerce
c. Cumulative Effects Doctrine
i. Although the farmer’s contribution to the demand for wheat
may be trivial by itself, when taken together with the
demand of many others who are similarly situated its far
from trivial (Multiplier Effect)
33
d. Congress ONLY limited by Affectation Doctrine and Cumulative
Effects Doctrine (Continues Today)
4. ***RULE***
a. Otherwise trivial acts of commerce may be regulated under the
Commerce Power due to the Cumulative Effect they would have on
commerce
viii. CIVIL RIGHTS CASES
1. HEART OF ATLANTA v. U.S. (1964)
a. Facts
i. Petitioner who was a political man and very racist, operated
a motel in Atlanta
1. The Motel had substantial interstate business and
he was found in violation for not giving “full and
equal enjoyment” to all persons
ii. Petitioner challenged the Civil Rights Act of 1964 as
unconstitutional
b. Holding
i. Court upheld the Civil Rights Act of 1964
c. Clark J. Decision
i. Reliance on Affectation Doctrine (Racial Discrimination
has an adverse economic impact on interstate commerce)
1. Congress can legislate something that has
substantial effect on interstate commerce
2. Congress may deal with racial discrimination
under the Commerce Clause because when
minorities are discouraged from traveling to
certain parts of the country, this can burden
interstate commerce both qualitatively and
quantitatively
ii. Cumulative Effect of similarly situated motels would have
a substantial effect on interstate commerce
d. ***RULE***
i. Congress may prohibit discrimination by private actors if it
has a substantial effect on interstate commerce
2. KATZENBACH v. MCCLUNG (1964) – Companion Case to Heart of
Atlanta
a. Facts
i. Family owned restaurant in Birmingham located on a State
Highway and 12 blocks away from interstate highway
ii. The majority of the meat that was used was bought from a
local supplier who bought the meat from out of state
iii. Civil Rights Act 201(b)(2)
1. Applies to any restaurant engaged in selling food if
they serve a substantial interstate traveler or if a
substantial portion of the food it sells comes from
out of state suppliers
34
e.
b. Clark J. Decision
i. Rational Basis Test  Standard of Review for Commerce
Clause Statute
1. Whether there is a rational basis for Congress’
assertion that what is being regulated affects
commerce
ii. In this case the restaurant is in the stream of commerce
because it sells a substantial portion of food that has
traveled in interstate commerce, and it serves interstate
travelers
c. Black J. Concurring (For Both)
i. Recognizes there may be some lunchroom entirely local,
but in cases such as these, the Court must also consider the
similarly situated restaurants and the total effect
(cumulative effect doctrine)
d. Douglas J. Concurring (For Both)
i. Reluctant to only rest opinion on Interstate Commerce
Clause and thinks this case should also involve the 14th
Amendment (Equal Protection & Due Process)
e. Goldberg J. Concurring (For Both)
i. Thinks act is Constitutional under both Interstate
Commerce Clause and 14th Amendment
f. ***RULE***
i. Congress may prohibit discrimination at any establishment
that sells goods that have traveled in interstate commerce or
that serve interstate travelers
Limits on Commerce Power
i. Three Broad Types of Activities that Congress may Regulate under its Commerce
Power
1. Channels of Interstate Commerce
a. Any way that Commerce can travel between the states
i. EX  Highways, Rivers, Pharmaceuticals, Labor
b. U.S. v. Darby, Heart of Atlanta
2. Instrumentalities of Interstate Commerce & Persons/Things in Interstate
Commerce
a. Includes trucks, planes, internet
b. Gibbons v. Ogden
3. Activities which Taking Cumulative have Substantial Effect on Interstate
Commerce (AFFECTATION DOCTRINE)**
a. Congress may regulate activities, which if taken cumulatively, have
a substantial effect on interstate commerce
b. Wickard v. Filburn
ii. AFFECTATION DOCTRINE** - Substantial Effects on Commerce
1. Police Power (Non-Economic) uses of the Commerce Clause
a. A strength of American Federalism is that there is NO central
police, and the policing is a function of state and local governments
35
b. The following cases are ones in which the commerce clause is
used to make something a crime
2. U.S. v. SULLIVAN (1948)
a. Facts
i. Food, Drug and Cosmetic Act of 1938 prohibited the
relabeling of pills, food, cosmetics
ii. Sulfa tablets were shipped from Illinois to a person in a
cosignee in Atlanta
1. A druggist in Columbus, GA bought the tablets
from the consignee and sold some of those tablets
under the wrong label
iii. Druggist is prosecuted and his lawyer claims that the Act is
unconstitutional
b. Holding
i. Act is constitutional (Druggist is guilty) and Congress has
the power to enact the statute
c. Reasoning
i. Congress CAN regulate this channel of interstate
commerce in order to accomplish its purpose
ii. It is irrelevant that the purpose if based on health (police
power) because there is an interstate jurisdictional nexus
and the power of Congress when it comes to Commerce is
plenary
3. PEREZ v. U.S. (1971)
a. Facts
i. Consumer Credit Protection Act was passed to criminalize
loan sharks because as a class they had an effect on
interstate commerce
1. They were organized crime and therefore, they
hurt legitimate businesses
ii. Plaintiff was a loan shark and he was convicted for
engaging in extortionate credit transaction
b. Holding
i. Act is Constitutional (Perez is guilty) because Congress has
ability to regulate this class of activities (harmful to
commerce)
c. Reasoning
i. Even when activities by Δ are wholly intrastate, the court
looks at the class of activities
ii. ***Affectation Doctrine***
1. Where the class of activities is regulated and
within the reach of federal power, the fact that a
single violation is entirely local is irrelevant
iii. The operations of a loan shark in organized crime have a
direct effect in interstate commerce because they are
associated with the national economy
36
d. Stewart J. Dissent
i. Under the statute, a person can be convicted with no proof
of any connection to interstate commerce
e. ***RULE***
i. If any activity is generally subject to regulation under
Commerce Power, the fact that a particular instance is
wholly intrastate does NOT make it immune to regulation.
ii. National police power seems fine as long as crime has
impact on interstate commerce
1. In the future the court adds that it also should be
commercial/economic in nature
4. U.S. v. LOPEZ (1995) –
a. Facts
i. Gun Free School Zones made it a crime to carry a gun
within 1000 ft of a school zone
ii. Lopez got caught carrying a gun within this range, but he
moved to struck down the statute as unconstitutional
b. Holding
i. The statute was unconstitutional (Lopez Not-Guilty)
c. Rehnquist J. Decision
i. Reasons for Rejecting the Provision
1. Doesn’t regulate interstate activity
2. Not connected to interstate commerce in any way
ii. Congress must show that legislation will substantially
affect interstate commerce
1. Court refuses to accept that guns at school hurt
national economy
iii. Act should have jurisdiction nexus with interstate
commerce
iv. Congressional findings concerning interstate commerce
would be helpful, but not dispositive
v. The government’s arguments are too broad and if the court
was to hold for the government then claims could be made
about pretty much anything relating to interstate
government
d. Kennedy & O’Connor J. Concurring
i. Damage Control
1. Supports the majority by stating that precedent
cases have regulated commercial activities
e. Thomas J. Concurring
i. Doesn’t accept the idea that intrastate transactions that
affect commerce can be regulated by Commerce
ii. Commerce Clause should only cover things like buying,
selling, transporting, bartering and navigation.
f. Souter & Breyer J. Dissent
37
i. Congress could have rationally shown that there was a
connection between school violence (threat of violence)
and a variety of impacts in the national economy
g. ***RULES***
i. Limits Commerce power to regulating the channels,
instrumentalities, and activities which have a substantial
effect on interstate commerce (Limited Affectation
Doctrine)
5. U.S. v. MORRISON (2000)
a. Facts
i. Girl was raped by two football players
1. One of the football players was let off but the other
one was suspended 2 semesters
a. School vacated the suspension
ii. Victim sued under Federal Violence Against Women Act
for gender-biased violent crimes which provided a Federal
Civil Remedy for gender motivated violence
1. Defense counsel moved to say that the legislation
was invalid because it was NOT authorized under
the Commerce Clause
b. Holding
i. The Act was held to be unconstitutional
c. Rehnquist J. Opinion
i. Congress failed to show a substantial economic effect and
they lacked Commerce authority
1. No jurisdictional nexus because the activity and
the effect are too attenuated
ii. Like in Lopez there are no findings that substantially affect
interstate Commerce
1. Commerce Clause requires economic/commercial
activity
a. Gender motivated crimes of violence are
NOT economic activity
i. Simply because Congress may
conclude that a particular activity
substantially affects interstate
commerce does not make it so
iii. This is NOT an economic matter and the court seems to
adopt a slightly stricter standard of review
1. Even though there are findings, it will NOT be
enough
iv. The regulation of gender motivated violence has been
traditionally regulated by the states
1. The statute is NOT directed toward state officials,
but toward private individuals
38
v. Congress tried to use 14th Amendment, but this only applies
to state actors (i.e. school administrators)
d. Thomas J. Concurrence
i. Doesn’t want to use the affectation doctrine or the
substantial effects case
1. Although the court’s use of the substantial effects
case is very limited, they are still using it
a. Thomas doesn’t like this case because it is
very malleable and can be extended into
almost anything
e. Souter J. Dissent
i. Thinks the Court should be applying a Rational Basis Test
because under the Affectation Doctrine Congress could
have found that these actions were necessary in order to
regulate Interstate Commerce
ii. Compared with other cases, this case had many findings
and they even came up with a specific dollar amount for
how much this action hurt the economy
f. ***NOTES***
i. Barron thinks Souter’s reasoning is very similar to that of
Heart of Atlanta and that the court could have used the
same reasoning as they did in that case to uphold this as
valid
g. ***RULE***
i. Commerce Power may NOT be used to regulate a local
activity solely on the basis of its cumulative effects on
interstate commerce
ii. Affectation Doctrine still applies but it requires something
economic/commercial in nature
6. LOPEZ-MORRISON TEST
a. Economic Endeavor?
b. Jurisdictional Nexus?
c. Congressional Findings?
7. JONES v. U.S.
a. Facts
i. Jones uses a Molotov Cocktail to burn down his cousin’s
home and is convicted under a Federal Arson Statute
making it a crime to damage or destroy by fire any building
used in interstate commerce
b. Holding
i. Court upholds the act, but says that it does NOT apply to
this case
c. Reasoning
i. Statute did NOT explicitly extend to private homes
39
1. Congress did not intend to cover private houses
because then every single building in the country
would be covered under the statute
8. BUT... JUST WHEN YOU THINK THE COMMERCE POWER IS
LIMITED.........................................................................................................
GONZALES v. REICH (2005)
a. Facts
i. California passed the Compassionate Use Act of 1996
which allowed for the grow and consumption of weed with
a doctor’s prescription
ii. Federal government had Controlled Substances Act
preventing the possession, obtaining, or manufacturing of
weed for personal or medical use
iii. Federal Agents raised the house of Gonzales and destroyed
all her marijuana plants
1. Gonzales passed an action against Attorney
General and DEA seeking declaratory and
injunctive relief prohibiting the enforcement of the
Federal Government Controlled Substances Act
b. Holding
i. Upheld Federal Regulation and Rejected State Regulation
c. Reasoning
i. Brings back Rational Basis Test
1. Even a small amount of a home grown substance
can affect the market
ii. Congress can regulate purely intrastate activity that is not
itself commercial, if it concludes that failure to regulate
would undercut the regulation for interstate market in that
commodity
iii. Distinction between this case and Lopez/Morrison
1. In this case Π was challenging only a part of a
comprehensive statute
a. The petitioner is just arguing that its
application in this instance is NOT
authorized by the Commerce Clause
iv. ***NOTE***
1. Barron says that there was some tension because
Lopez and Morrison undermined affectation
doctrine, but Gonzales restores it
d. Scalia J. Concurring
i. Contemplates the activities that “substantially affect”
interstate commerce
1. Congressional power of intrastate activities that are
not in itself part of interstate commerce can be
regulated under the Necessary and Proper Clause
40
ii. A non-economic intrastate activity may be regulated if it
was an essential part of a larger Constitutional regulation
iii. Makes a distinction between Congress’ ability to make
regulation effective and to regulate economic activities that
substantially affect interstate commerce
e. O’Connor J. Dissent
i. “States as Laboratories”
1. Distinguishes from Wickard because here there is
NO evidence that medical marijuana would
actually affect larger market
ii. Majority opinion is a drafting charge on how to avoid
problems with the Commerce Clause
f. Thomas J. Dissent
i. Still wants to limit commerce to buying/selling and
transporting things
ii. Thinks that the correct question here is whether the
Necessary and Proper Clause applies to users like
Gonzales
g. ***RULE***
i. This is the latest case, so if there is a Commerce Clause
question discuss the Rational Basis Standard
41
STATE LEGISLATIVE POWER  State Power in American Federalism
I.
Congressional Power to Regulate States
a. 10th AMENDMENT
i.
NATIONAL LEAGUE OF CITIES (1976)
1. Facts
a. 1974 Congress amended the Fair Labor Standards Act to extend
minimum wage and maximum hour provisions to almost all public
employees employed by the States and their various political
subdivisions
b. This created concern among small towns in the country because
they would not be able to afford to meet the Act
i. Thus they would not have services such as firefighters,
policemen, etc
Cities and Governors challenged the FLSA
2. Holding
a. Court rejected the legislation
3. Rehnquist J. Decision (5-4 with Burger, Rehnquist, Stewart, Powell
joining)
a. “Insofar as the challenged amendments operate to directly displace
the State’s freedom to structure integral operations in areas of
traditional governmental functions, they are NOT within the
authority granted to Congress by the Commerce Clause”
i. Traditional government functions include fire prevention,
police protection, sanitation, public health, and parks and
recs.
th
b. 10 Amendment states that Congress CANNOT exercise its power
in an ability to interfere with state interest
i. Congress should not tell the states how to manage their
intrastate functions
1. Setting state employee salaries would impair
state’s ability to perform its duties
c. State sovereignty is an inherent check on Commerce Clause
i. The problem is NOT that Congress lacks an affirmative
grant of power, but rather that the structure of the
Constitution prohibits it from exercising this power
d. The Court is NOT passing judgment on Congress’ ability to
regulate state employee salaries under spending power
4. Blackmun J. Concurring
a. Court has adopted a balancing test and state sovereignty would
NOT be a bar to Federal Regulation under the Commerce Clause if
the Federal interest is demonstrably greater than state interest
5. Brennan J. Dissent (Joined by Marshall, White)
a. Nothing in the Commerce Clause says that States are immune to
Congress’ power
i. 10th Amendment is just a truism
b. Relies on the Process Theory
42
i. Extent of Federal Intervention in state affairs is determined
by the representatives of the state in Congress
c. Essential Function Test is unworkable
i. The Court will be constantly arguing about what is an
essential function
6. Stevens J. Dissent
a. Thinks there is nothing different between this regulation and others
that have been found valid
7. ***RULE***
a. Congress may NOT use its Commerce Power to pass regulations
that would interfere with the “traditional governmental functions”
of the state
ii.
HODEL v. VIRGINIA SURFACE MINING RECLAMATION ASS (1981)
1. Facts
h. Federal Mining Statute tried to regulate strip mining
i. States could either pass their own regulations or adopt
Federal regulations
i. This Statute was challenged on the basis that it was too restrictive of
State sovereignty
2. Holding
j. The statute was upheld
3. Reasoning
k. Requirements for a Federal Law to violate the 10th Amendment
i. Challenged statute regulates the “States as States”
ii. The Federal regulation must address matters that are
indisputably “attributes of State sovereignty”
iii. It must be apparent that States’ compliance with the federal
law would directly impair their ability “to structure
integral operations in areas of traditional governmental
functions”
iv. The nature of the Federal Interest cannot justify state
submission
l. This claim failed on the first element because it regulate coal
mining operators who are private economic actors
iii. EEOC v. WYOMING (1983)
1. Facts
a. Action against State for age discrimination, requiring mandatory
retirement for game wardens at 55, when Federal Law prohibited
mandatory retirement before 77
2. Holding
a. SCOTUS rejected 10th Amendment challenge to the Act
3. Reasoning
a. Under the Act the wardens could show in a hearing that they were
still fit to do their job (State still had control)
iv. GARCIA v. SAN ANTONIO METROPOLICAL TRANSIT (1985)  Overrules
NLC v. Usery!!!
43
1. Facts
a.
SAMTA was originally complying with Fair Labor Standard Act
and paying overtime
i. After National League they decided overtime was exempt
b. In 1982 SCOTUS decided Transportation Union v. Long Island RR
stating that the commuter rail service did NOT constitute a
“traditional government function” and thus was NOT immune
from National League
c. Department of Labor said that they had to comply with FLSA and
SAMTA decided to sue
2. Issue
a. Would Long Island RR apply here or would SAMTA be seen as an
essential function of the regulated powers of the state?
3. Blackmun J. Decision
a. National League was overruled because NONE of the rests offered
by it provided workable standards
b. There does NOT seem to be a bright line between a local activity
that could be regulated under Federal Law and an essential State
function
c. State sovereignty is NO longer a substantive restriction on
Congressional Commerce Clause Power
i. Process Theory
1. The Federal government can legislate for the states
because they are elected from the states
d. Tests to Determine Traditional Government Functions
i. Historic Test
1. What tasks would government have always
considered to be a function of state government?
a. Test is unworkable and undesirable
because what is NOT a traditional
government function may NOT have
always been that way
ii. Uniquely Governmental Test
1. Unmanageable because anything can be contracted
out
iii. Necessary Test
1. Services that would be provided inadequately
UNLESS government provides them
a. Same problems as Unique Test
e. These unworkable tests CANNOT be faithful to ideals of
Federalism and instead allow an unelected judiciary to make
decisions about policies it favors versus those it disfavors
i. Tests need to be able to allow states to experiment
4. Powell J. Dissent
a. 10th Amendment was reduced to meaningless rhetoric
44
v.
b. The majority ignores the role of judicial review and fails to show
how political process will protect states
c. SAMTA is clearly a local activity of the kind that should be exempt
(classic local service)
d. Process Theory
i. This doesn’t work because politicians have changed and
members of Congress are part of Federal Government with
other concerns than what is best for the States that they
come from
e. Proposed Balancing Test
i. Balance the strength of the federal interest in the
challenged legislation against the impact of exempting the
states from their reach
ii. Barron
1. Powell’s test is a true balancing test and more
interested in how central the regulation is and the
impact of the regulation
5. Rehnquist J. Dissent
a. State sovereignty principle should be a limitation of the commerce
power, as applied to the states
6. O’Connor J. Dissent
a. Proposed Balancing Test
i. Weight state autonomy as a balance to the federal
regulation
1. Sympathetic to state interests because state
autonomy is weighed as its own equivalent interest
b. Framers intended the Commerce Power to be important, but limited
7. ***RULE***
a. Rejects traditional government functions test
b. Unclear about limitations imposed by state sovereignty, but very
narrow
i. Political process, not judicial determination protects our
federalist values
ii. State sovereignty does impose some process limitation on
Congressional regulation of states, it’s just unclear what
iii. State sovereignty should be protected by the political
process, rather than by determinations of an unelected
judiciary
SOUTH CAROLINA v. BAKER (1988)
1. Facts
a. Congress passed a Federal Regulation saying that unregistered
bonds would not be exempt from Federal Taxation
i. These bonds were used to launder money and tried to get
rid of them
b. South Carolina challenged saying that the act violated the 10th
Amendment because it eliminated a source of state funding
45
2. Holding
a. The Statute was upheld
3. Reasoning
a. Congress can pass regulation like this because it is necessary to the
National Economy
b. Although Garcia said that there may be defects with the Process
Theory there were no standards here for the court to second guess
the substantive basis of Congressional legislation
c. Reinforces Rational Basis Test and Plenary Power
4. O’Connor J. Dissent
a. 10th Amendment should protect this as essential to the states
because States rely on this for financing
vi. GREGORY v. ASHCROFT (1991)
1. Facts
a. Missouri state law required judges retire by the age of 70
i. A judge challenged the constitutionality of the provisions
stating that it was pre-empted by Age Discrimination and
Employment Act
2. Holding
a. Although Garcia is the law, State sovereignty principle is
gaining preference
i. The Missouri Statute is upheld
3. O’Connor J. Decision
a. Statute did not apply to judges and if Congress wants to impose a
burden on States by means of the Commerce Clause it has to do so
by a clear statement
b. Clear Statement Rule
i. When Congress is going to enact legislation that will
impose a burden on the State, it must do so in
unmistakable language
1. It is ok do infringe on State sovereignty, but state
infringement must be stated in clear, plain
language
a. Otherwise the court will assume Congress
did not mean to infringe
c. Doctrine of Avoidance
i. When there could be a constitutional or non-constitutional
interpretation of a statute, the court must choose
constitutional interpretation
4. ***RULE***
a. Regulation imposing a substantial burden on state government will
only be upheld if Congress makes that intent with a plain statement
vii. NEW YORK v. U.S. (1992)
1. Facts
a. States got monetary incentive for disposing of radioactive waste,
but had to take title if they didn’t dispose of it
46
b. Since 1979 there are only 3 states that have places to dispose of
radioactive material
i. Two of those sites had to be shut down provisionally
leaving South Carolina as the only one available
c. Government of South Carolina was upset and ordered a 50%
reduction of the amount of radioactive waste allowed
2. Holding
a. Court rejected the “take title” provision
i. Garcia not controlling because statute applied only to states
and was NOT subjecting states to same legislation as
private parties (employees)
3. Reasoning
a. Congress does not have the ability to require states to govern
according to their instruction
i. Even having the power to pass laws requiring or
prohibiting certain acts, Congress lacks the power to
compel States to require or prohibit those acts
b. Congress is allowed to encourage states to regulate by
i. Attaching conditions under Spending Power
ii. Giving states a choice to regulate or be pre-empted by
Federal Legislation
c. “Take Title” provision is invalid because Congress is
commandeering a state legislative process
i. Unconstitutional because
1. Congress lacks the power under its Enumerated
Powers to require states to legislate
2. The provision is inconsistent with the Federal
Structure of the Constitution
4. White J. Dissent
a. Federal Government directs state governments in many realms (RR,
Schools, Jails, Elections)
i. This is a run-around Garcia because if waste was in
interstate commerce then Congress’ power would be
plenary and they could regulate
5. ***RULE***
a. Congress may NOT pass regulations which commandeer state
legislative power by forcing them to implement particular
regulations
viii. PRINTZ v. U.S. (1997)
1. Facts
a. Brady Act required the establishment of a firearms database
i. Required filling out a form, verifying the buyers, providing
forms to chief state law enforcement officers
b. Two chief law enforcement officers in different states bring suit
challenging the Constitutionality of the Act
2. Issues
47
a.
3.
4.
5.
6.
Whether Congress can require state officials to implement Federal
Legislation? NO!
b. Whether the concept of state sovereignty can limit Congressional
authority, even in areas that no one denies are in interstate
commerce? YES!
Holding
a. Court rejected the Brady Act
Scalia J. Decision
a. Congress CANNOT require local officials to perform these duties
without the consent from the State
b. Three Factors to Determine Constitutionality
i. Historical Understanding and Practice (Textual)
1. Early Federal Statutes imposing obligations on
state courts do NOT imply a power of Congress to
impress the state executive into service
2. Congress can impose rules on State Judges (Article
VI) but nothing imposes Federal Legislation on
states without consent
3. Court says that the history is inconclusive, but it
doesn’t support the government’s position
ii. Structure of Constitution (Structural)
1. Dual Sovereignty
a. Provisions would undermine the
independence of states
2. This act shatters the unity of the Federal Executive
by having legislature command state executive
officers
3. Federal structure of the constitution requires state
sovereignty
iii. Case Law (Jurisprudential)
1. Federal government may NOT compel the states to
enact a federal regulatory program (NY v. US)
2. Too difficult to draw the line between making and
enforcing the law
3. Size of burden does NOT matter, Federal
government CANNOT compel states to enact or
administer federal regulatory program
O’Connor J. Concurring
a. Ways in which Federal Government can achieve enforcement
i. States can consent, Federal government can attach it to
spending, or Federal Government can contract with State
for program
Thomas J. Concurring
a. Revisionist View
i. Doesn’t believe the firearms are interstate commerce and
Brady Act is unconstitutional
48
b. Reject Organic Theory of Commerce
i. Limits regulation to those things that cross state lines
7. Stevens J. Dissent
a. When exercising Constitutional powers, Congress can impose an
affirmative obligation on executive and judicial officers of the state
as well as ordinary citizens
b. Textual  Majority ignores the text
i. 10th Amendment poses NO restriction when there is a
Congressional Enumerated Power (No Applicable Here)
ii. Article VI  Affirmation and Oath of State officials to
uphold Federal Law
c. Structural  This is just going to force the Federal Government to
have a large bureaucracy
i. Failure of early Congress to address the scope of a
particular power has never been an argument that such a
power does NOT exist
ii. 11th Amendment
1. Shows there is a distinction between states and
individuals since states have sovereign immunity
d. Jurisprudential  Reliance on NY is dicta because the case was
about coercion of legislatures and this case is about Executives
i. Doesn’t make sense to say that Federal government has the
power to press state judges into service but not other
officials
e. Congress could surely enlist state and local government employees
in times of National Emergency
8. Souter J. Dissent
a. Doesn’t care about paucity of early examples, relies on Federalist
Papers
i. Federalist 27  Oath Clause
1. Framers intended State Officials to uphold Federal
Law
ii. Federalist 44
1. State magistrates have to swear allegiance to
Federal Government because it is assumed they
have Federal responsibilities
9. ***RULE***
a. Congress may NOT use its Commerce power to compel states to
enact, enforce, or administer Federal Regulatory programs, and
CANNOT circumvent that prohibition by conscripting State
Officials
ix. RENO v. CONDON (2000)
1. Facts
a. DMV’s in some states sold databases to insurance companies so
they could direct mail drivers
49
i. Congress passed the Driver’s Privacy Protection Act to halt
that practice
b. States sue because this Act results in loss of state financing
2. Holding
a. The court upholds the statute as constitutional
3. Reasoning
a. The Act was simply commanding the states to keep them from
doing something, not requiring a positive action
i. It was not requiring states to affirmatively legislate or
enforce
b. The Act was applied to everyone (states and private companies with
the information)
4. ***RULE***
a. Imposition of Costs on States will NOT invalidate otherwise
Constitutional legislation
x. ALASKA DEPT OF ENVIRONMENTAL CONS v. EPA (2004)
1. Facts
a. Federal Statute required the state to employ the best available
control techniques
i. State agencies determined what was the “best method” but
EPA could stop construction if it disagreed
2. Issue
a. Whether a Federal Agency could override a determination by a state
agency?
3. Ginsburg J. Decision
a. EPA has power to review state agency because Congress can review
state agency decisions
4. Dissent
a. Does not think that Congress intended to confer ultimate decision
making authority to Federal Agencies
b. TAXING AND SPENDING POWER
i. Article I, § 8  “Congress shall have the power to lay and collect taxes, duties,
imports, and excises, to pay the debts and provide for the common defense and
general welfare of the U.S.”
1. This can be viewed as two distinct powers
a. To lay & collect taxes AND to provide for the general welfare &
national power
2. Can also be viewed as one power
b. To raise money for general welfare
ii. U.S. v. DOREMUS (1919)
1. Facts
a. $1 Licensing Tax on the sellers of Narcotic Drugs
2. Holding
b. Court upheld legislation
50
i. So long as the means were Necessary and Proper it did
not matter if the tax was more regulatory than revenueraising
iii. BAILEY v. DREXLER FURNITURE (1922)
1. Facts
a. Congress imposed a 10% tax n businesses that used Child Labor
2. Holding
a. Court rejected tax
3. Reasoning
a. Federal government CANNOT institute a regulatory tax for areas
NOT within their regulatory control
i. Furthermore, the tax had a knowledge component that
made it look punitive and similar to a criminal sanction
4. ***RULE***
a. Even if it generates revenue, a tax is unconstitutional if its real
purpose is to regulate or penalize (until Kahriger)
iv. U.S. v. BUTLER (1936)
1. Facts
a. Tax on processors of commodities used to give incentives to
farmers to reduce production, so government could regulate the
amount produced
i. Cotton processors brought suit
2. Holding
a. SCOTUS rejected the Statute imposing the tax
3. Reasoning
a. Tax-payer standing was allowed because the tax was levied against
a particular group (pocket book injury)
i. They were getting injured more than the “normal” tax
payer
a. Tax was forcing the farmers to get involved with the Act because
NO farmers would pass on this opportunity to receive money
b. Does NOT ascertain the scope “general welfare” because the act
invades an area reserved to the states, since the statutory plan to
regulate is beyond the powers delegated to the Federal Government
4. ***RULE***
a. Congress may NOT use tax/spending power as a Constitutional
means for achieving a non-delegated end
v. STEWARD MACHINE CO. v. DAVIS
1. Facts
a. Social Security Act imposed a payroll tax on employers of eight or
more persons
i. The proceeds of this tax went to the general revenue fund
2. Holding
a. SCOTUS held the tax to be constitutional
3. Reasoning
51
a.
Temptation does not rise to the level of coercion (employers could
say NO)
b. Court will be strict about striking down a spending measure if it is
completely unrelated to a Federal Interest
c. Tax-Payer Standing allowed because tax is on specific parties
4. ***RULE***
a. Congress may impose conditions on receipt of Federal Grants
i. States are subject to the conditions if they accept the funds
1. ***Charter of Modern Spending Power***
vi. U.S. v. KAHRIGER (1953)
1. Facts
a. Congress required bookies to register with IRS to try to regulate
illegal gambling
2. Holding
a. Court upholds act because it produces some revenue regardless of
the fact that is also regulatory
3. Reasoning
a. When regulation rests on other basis (i.e. Commerce Clause) then
Court will generally uphold it even if it intrudes into an area of state
concern, but when its taxing power there has been greater variation
b. Court will generally give strong deference to Congressional choice
c. Just as Darby established judicial deference to Congress for
Interstate Commerce Clause, this case did so for taxing power
vii. SOUTH DAKOTA v. DOLE (1987)
1. Facts
a. Congress enacted Federal Legislation that directed the Secretary of
Transportation to withhold Federal Highway Funds in exchange for
states raising their drinking age
i. Congress withheld 5% of these Federal Highway funds
b. South Dakota let people 19+ buy beer of 3.2% alcohol, so they did
not receive Federal Highway Funds
i. Passed suit under the 21st Amendment  Left distribution
of alcoholic beverages to the states
2. Issues
a. Does the 21st Amendment give Congress the power to impose this
condition?
b. Does South Dakota have absolute control over alcoholic beverages
within its jurisdiction
3. Holding
a. Court upheld the Act as constitutional
4. Rehnquist J. Decision
a. It is Constitutional for Congress to attach conditions even if it
couldn’t regulate directly
b. This is an indirect regulation within the Spending Power and the
states could refuse the Federal Highway Funds, thus the 21st
Amendment issue does not need to be decided on
52
c.
Four Limitations on the Spending Power
i. Must be in Pursuit of the General Welfare
1. Courts should defer substantially to the judgment
of Congress
ii. There must be a Plain Statement of the Conditions
1. The States should know of the limitations and the
act or Federal Law should NOT be ambiguous
a. Unless Congress speaks with a clear
voice and manifests an “unambiguous”
intent to confer individual rights, Federal
funding provisions provide NO basis for
private enforcement
iii. Conditions must be related to the Federal Interest, in
Particular Federal projects or programs
iv. Conditions must NOT infringe on ANY independent
Constitutional provisions
d. In this case the condition imposed by Congress is directly related to
a Particular Federal Project/Program (Safe Interstate Travel)
e. States can always refuse to accept the funds and not yield their
Constitutional rights
5. Brennan J. Dissent
a. Thinks 21st Amendment is an independent Constitutional bar that
gives South Dakota sole control and violates the 4th element
6. O’Connor J. Dissent
a. Takes issue with the third element and would like to add something
else for the courts to make an additional inquiry as to when the
spending measure is constitutional and when it is not
i. She does not think that the drinking age is related to the
construction of highways
b. Proposes that instead the line for what’s permissible for Congress to
do under the spending power should be based on whether the
spending regulation is a CONDITION ON A GRANT or a
REGULATION
i. “While Congress has the power to spend for the general
welfare, it has the power to legislate ONLY for delegated
purposes
c. In this case SCOTUS is dealing with a regulation because it is not
really related to the way that Federal Highway Funds are spent
d. ***NOTE***
i. Barron thinks this test would be too difficult
7. LAW AFTER DOLE
a. Grants to States can be conditions on State acceptance, as long as
they are areas of accepted Federal regulatory interest.
i. The requirement is NOT that it be related to a Federal
Interest in the statute because it can be another Federal
Interest
53
c.
b. Under Necessary and Proper Clause, Congress can spend for the
purpose of achieving any of its delegated regulatory powers
c. Spending Clause is an independent source of Fiscal Power
authorizing Congress to spend for general welfare objectives
i. Includes ALL matters of National Concern
d. Courts will substantially defer to Congress in determining scope of
general welfare
e. Constitutional provisions may provide an independent BAR to
conditional grants
i. 10th Amendment = Not a bar because states are free to
reject money
1. BUT, it amount of money is significant to become
a compulsion then it violates the 10th Amendment
viii. Deference to Congress for Spending Power still exists
1. GONZAGA UNIVERSITY v. DOE (2002)
a. Facts
i. Family Educational Rights and Privacy Act (FERPA)
conditioned grants to state agencies and educational
institutions upon compliance with requirements regarding
the privacy of student records
b. Holding
i. Case is dismissed because there are NO independent cause
of action
c. Reasoning
i. Unless Congress speaks with a clear voice and manifests an
unambiguous intent to confer individual rights, Federal
funding provisions provide NO basis for private
enforcement
ii. No enforceable rights because it lacks “rights-granting
language” focusing instead on aggregate policy goals
2. SABRI v. U.S. (2004)
a. Facts
i. Law made it a crime to offer bribes to city officials that
received Federal Funds
b. Holding
i. SCOTUS upheld legislation even though it did not have a
connection between bribes and Federal Funding
c. Reasoning
i. Congress has the power to see that Federal Funds are not
wasted and that public officials are NOT corrupt
1. The Spending Power can be sued to make grantrelated behavior criminal
ix. Inherent Limit on Spending Power is Congress has to give money in order to
have conditions
FEDERAL LEGISLATION IN AID OF CIVIL RIGHTS AND LIBERTIES
54
i. 14th Amendment, § 5  Gives Congress’ power to enforce the guarantees of Due
Process and Equal Protection
1. Congress may ONLY regulate state and local conduct, not private partiesB
ii. 15th Amendment  Congress has the power to enforce the voting rights of Citizens
iii. Katzenbach v. Morgan (1966)
1. Facts
a. NY had an English Literacy Requirement
b. The Voting Rights Act of 1965 gave right to vote to people
educated in Puerto Rico who had been taught in school in which the
language of instruction was Spanish
i. NY voters challenged the act on the basis that it diluted
their votes in excess of Congress’ power
2. Holding
a. SCOTUS held the Voting Rights Act to be constitutional
3. Reasoning
a. The Act was constitutional because
i. It may be viewed as a means of securing nondiscriminatory treatment
ii. Congress could have found it to be unconstitutional and
thus eliminated it before it came through
b. SCOTUS allowed Congress to determine what constituted a
violation of the 14th Amendment
4. Dissent
a. If Congress can interpret what constitutes an Amendment, then it
strips the Court of judicial review (Separation of Powers Problem)
5. ***RULE***
a. Congress has the wide latitude to regulate pursuant to its remedial
power under the 14th Amendment, as long as there is a rational basis
for the regulation
iii. Extends to Federal abrogation of state laws that might
otherwise be constitutional
iv. FITZPATRICK v. BITZER (1976)
1. Court held Congress had authority to include States as employers in Title
VII because the regulation was enacted under the 14th Amendment which
was specifically designed to intrude in state sovereignty
v. CITY OF BOERNE v. FLORES (1997)
1. Facts
a. Church wanted to expand but was denied a permit because the
building was a historical landmark
i. Sued under the Religious Freedom Restoration Act (RFRA)
2. Holding
a. The court holds that RFRA exceeds Congress’ power
3. Reasoning
a. Sherbert v. Verner
i. Where a generally applicable law imposes a heavy burden
on a person’s free exercise of religion, the law should
55
ONLY be upheld if there is a compelling governmental
interest that would justify its application against the
citizen’s free exercise claim
ii. Strict Scrutiny  Compelling governmental interest and
narrowly tailored view
b. Employment Division-Dept. of Human Res. Of Or v. Smith (1990)
i. NEW TEST
1. If the law is one of general applicability and NOT
designed to inhibit or promote any religion, then
Court should use Rational Basis Test
c. Congress used this case to restore the Strict Scrutiny Test requiring
Congress to show a compelling governmental interest and narrowly
tailored law to impose a burden on exercise of religion
i. The Act prevented government from substantially
burdening a person’s exercise of religion
4. Kennedy J. Decision
a. RFRA is unconstitutional because it exceeded government power
under 14th Amendment, § 5 (Does more than just prevent
Discrimination)
i. Congress power under 14th Amendment, § 5 is to enforce
and not to determine/define what constitutes a
Constitutional violation
b. When Congress is framing a remedy, it must be congruent and
proportionate to the violation they are addressing
5. Stevens J. Concurring
a. Act gives advantage to members of religious groups that are
Atheists
6. O’Connor J. Dissenting
a. Agrees that the Court should have the last word on the meaning of
the Constitution
7. ***RULE***  Overturns Katzenbach
a. Congress CANNOT declare the substance of the 14th Amendment’s
restrictions, can only act in ways that would be considered remedial
or preventative
i. Can only act remedially, and must use “least restrictive
means”
d. ELEVENTH AMENDMENT
i. Keys to Understanding 11th Amendment
1. A state will be liable in Federal Court without its consent, for violations of
the Federal Constitution or Federal Law, as long as the parties asserting
claims are ONLY seeking injunctive relief (if allegations are proven)
a. 11th Amendment only applies to States (Not County, City)
2. If a party seeks retrospective damages, the 11th Amendment will bar this
UNLESS it is covered by an exception
ii. Chisholm v. Georgia
1. Facts
56
a. Citizen of state A suing state B in the Federal Court
2. Holding
a. Court held that the diversity jurisdiction of the federal courts under
Article III permitted a citizen of one state to sue another in Federal
Court, rejecting an argument for sovereignty immunity
iii. Hans v. Louisiana
1. Facts
a. Citizen of state B suing state B in the Federal Court
2. Holding
a. Principal of sovereignty in the 11th Amendment does NOT let a
citizen one a state sue the own state at the Federal Level
iv. Ex parte Young
1. Procedure
a. The federal court issued an injunction against the attorney general
and the railroad companies
i. As soon as this was done the attorney general went to the
state court for a writ of mandamus
1. When this happened the federal court held him in
contempt of court for disregarding the injunction
(charged him $100 a day and threaten him with jail
time)
b. The attorney general sought a writ of habeas corpus with the
Supreme Court of the United States
i. This was based on the 11th Amendment stating that this was
a suit against the regulations of the state
2. Facts
a. Beginning of the 20th Century the railroad rates were very critical
when it came to prospering in trade
b. Minnesota legislation stated that the railroad rates were too high and
reduced them by statute
i. They provided very severe penalties if the railroads did not
comply with the statute
c. Shareholders of the railroad sued the railroad companies and the
attorney general from Minnesota in the Federal Court
i. Wanted to enjoin them from enforcing the law stating
lower rates because it violated the 14th Amendment
d. Response from the State
i. This was confiscatory legislation and deprived them of
their property, thus violating the 14th Amendment
3. Holding
a. Not granting state of Habeas Corpus
4. Reasoning
a. State would NOT authorize this unconstitutional conduct from any
of the state officials
i. Therefore, you can sue ANY state official if they are acting
unconstitutionally DESPITE the 11th Amendment
57
II.
v. Edelman v. Jordan
1. If you are looking for accrued monetary damages to be paid to the state
treasury, the 11th Amendment is a bar
vi. Milliken v. Bradley
1. Where a Federal court orders a city to take certain actions and those actions
have future consequences, then those future consequences are not a bar
vii. Seminole Tribe of FL v. Florida
1. Unlike Fitzpatrick v. Bitzer, the Commerce Clause does not provide
language for states to be sued against their will at the federal court level due
to the 11th Amendment
Federal Restrictions on State Power
a. States have plenary jurisdiction over anything NOT exclusively delegated to Congress
b. Main Issue in Cases
i. If Congress has NOT acted, can the States, in exercise of their police powers,
regulate matters charged to the national government?
1. Or does the Dormant Grant of Power itself limit the regulatory power of the
states?
c. The Constitution is Silent on the negative implications of the Commerce Clause, and whether
Congress’ silence precludes states from regulating
d. Historical Rationales for Resolving Conflicts of Power
i. Concurrent Power Theory
1. States have general power for regulating commerce
ii. Dormant Power Theory
1. States CANNOT touch an area, even if Congress left it untouched
iii. Mutual Exclusiveness Theory
1. Congress and the States have distinct authority, and may accomplish it by
using the same means
a. State’s power to regulate is NOT through Commerce Clause, but
instead through Police Power
b. Allows for the possibility that you could have the same piece of
legislation from different powers
iv. Selective Exclusiveness Theory (Adopted Over Time)
1. Some types of regulations were left for Congress and nobody else, but some
areas where Congress has not regulated can be regulated by the States
v. Exclusiveness Theory
1. If Congress can regulate an area but has not, nobody else can regulate it at
all
e. EARLY CASES – DORMANT COMMERCE CLAUSE
i. When Congress has NOT regulated (in an area it has the right to) the state may still
NOT be able to regulate
1. Discriminatory Purpose  Unconstitutional
2. Not Discriminatory on its Face, but Discriminatory on its Means
a. Strict Scrutiny Test
i. Addresses a compelling state interest that is NARROWLY
tailored
58
3. Even Handed Regulation that Only INCIDENTALLY affects Interstate
Commerce
a. (Pikev. Brace Church) If the burden on interstate commerce is
excessive in relation to local benefit, the regulation will be struck
down
ii. ***NOTE***
1. Barron’s View
a. Congress can regulate interstate commerce and States can regulate it
as well
i. However, States CANNOT regulate it too much
iii. GIBBONS v. OGDEN
1. Marshall J. Decision
a. Congress had acted, so NOT actually Dormant Commerce Clause
b. Congress has broad power to regulate commerce, with no outside
limits
i. Because of state sovereignty, states may exercise the same
power themselves.
1. This creates situations in which both Congress and
the States will try to regulate
c. When States attempt to regulate interstate or foreign commerce,
they are exercising a power granted to Congress
d. States have authority to regulate in certain areas due to their Police
Power (health, welfare, morals)
i. Supremacy Clause
1. If the State Police Power conflicts with Congress’
Commerce Clause Power, then Federal Power
overrides (pre-empts).
ii. If both Congress and State pass laws within their power
then it will be fine because the measures flow from
different powers, and the different powers may be used to
accomplish the same ends
e. Accepts Mutual Exclusiveness Theory
i. States and Federal Governments have distinct authority, but
may use the same means to accomplish it
f. Rejects Concurrent Power Theory
i. Congress has the power to regulate Commerce among
states and foreign nations
2. Johnson J. Concurring
a. Adopts the Exclusiveness Theory
i. A state regulation is invalid if it is an area that Congress
can regulate, but has NOT regulated
3. ***RULE***
a. Only when State Regulation intrudes on actual Federal Regulation
will it be found unconstitutional under pre-emption doctrine.
iv. WILLSON v. BLACK BIRD CREEK MARSH CO. (1829)
1. Facts
59
a.
Delaware authorized a company to build a dam across a Navigable
Creek going into the Delaware River
i. The River affects two states
2. Holding
a. The Delaware law authorizing this was upheld
3. Marshall J. Decision
a. Applies the Mutual Exclusiveness Theory
i. Because Navigation is Commerce, Congress could have
regulated in this area BUT IT DID NOT
ii. Because there is NO Federal regulation in place and there
are health risks of stagnant water the State is allowed to
regulate in absence of Federal Regulation
b. If Congress has NOT regulated in an area of Commerce, a state
regulation of the area is valid if it involves the Police Power
f. THE COOLEY DOCTRINE – DEVELOPMENT OF DORMANT COMMERCE
CLAUSE
i. COOLEY v. BOARD OF WARDENS (1851)
1. Facts
a. Penn law required vessels entering or leaving the Port of
Philadelphia to have a licensed pilot operating the vessel
i. Federal statute authorized the states to regulate pilots in the
harbors and ports of the U.S.
2. Issue
a. Is this a matter that the states are allowed to regulate
3. Holding
a. Court upheld the Penn law
4. Reasoning
a. Whether or NOT a state regulation is valid will frequently depend if
you want a national uniform regulation or whether dangerousness of
waters is of appropriate local concern
b. Applies Selective Exclusiveness Theory
i. In some areas Congress is ONLY allowed to regulate,
while in some others states are allowed to regulate
1. Particularly in those that Congress has not ruled
c. ***RULE***  LOCAL v. NATIONAL SUBJECT MATTER
i. If National Uniformity is of main importance then States
may NOT regulate in areas even where there is NO Federal
Regulation
1. But if subject is better suited to local regulation
and NO Federal Regulation exists to the contrary
then States CAN regulate
g. RATIONALES FOR DORMANT COMMERCE CLAUSE
i. Redish
1. State power to regulate interstate commerce is designed to be limited only
by Congress’ political judgment
a. If Congress has not regulated the states can
60
b. No Role for Courts because if Congress does not like this, they can
regulate and pre-empt the states
ii. Regan
1. The purpose for the grant of commerce power to Congress was to disable the
states from regulating themselves
a. There must be negative implications of the commerce clause that
are enforceable by the courts
iii. Eule
1. When legislation in this area falls principally on those outside the state, the
state legislation will be seriously examined.
a. Legislators are not as careful with legislation that affects people
who are not their constituents
iv. Other Rationales
1. Preserve Congressional authority over Interstate Commerce
2. Preserve the principle of free trade, without governmental regulation or
interference
a. States should not regulate in an area within which Congress has
chosen NOT to regulate because we have national free trade
3. Avoid the “Balkanization” of the states
a. Preserve the union by preventing the development of interstate
friction that would derive from one state’s imposition of burdens on
commerce affecting other states
4. Process Theory
a. (Modern Scholars) Preserve the Democratic process by preventing
the legislature from one state from imposing special burdens on
citizens of other states, who have NO say on the makeup of
legislature
h. MODERN FOCUS – DORMANT COMMERCE CLAUSE
i. DISCRIMINATION
1. States seeking to Sustain Legislation will argue that is even-handed
2. In order to invalidate legislation, you argue that it has discriminatory means
Type of State Legislation
Discriminatory Purpose:
1. Intention to Discriminate is clear on the face of
the statute
2. EX  To satisfy needs of VA citizens
Discriminatory Means: (Facially)
1. Non-Discriminatory Purpose, but the
means used are discriminatory
2. EX  Phil v. NY
Even Handed Regulation to Affect a Legitimate Local
Purpose
1. Out of state citizens argue that the statute has a
burden on interstate commerce, whether or not
it’s intended
Standard of Review/Test
Per Se Invalid
Strict Scrutiny
Legitimate Local Purpose AND Absence of NonDiscriminatory Alternatives
**Always Ask  Any Less Discriminatory
Alternatives for Regulation?**
Valid UNLESS the Burden Imposed in Interstate
Commerce is Clearly Excessive in Relation to the
Putative Local Benefits (Pike v. Bruce Church)
1. Even-handed legislation that serves a
legitimate local purpose with an incidental
burden on interstate commerce is VALID
61
3. CITY OF PHILADELPHIA v. NEW JERSEY (1978)
a. Facts
i. Solid Waste coming into NJ form out of state and NJ
decides to ban the importation of this waste
1. They were concerned that they were going to run
out of green space and land for landfills
ii. City of Philadelphia brings suit because it has been using
NJ as solid waste disposal
1. They challenge the NJ statute prohibiting out of
state waste
b. Holding
i. Court rejected the NJ state statute as unconstitutional
c. Stewart J. Decision
i. The statute is discriminatory on its face!
1. Even if the purpose of the legislation is valid, a
state CANNOT accord its own inhabitants with a
preferred right of access to natural resources
within its borders, over consumers in other states
ii. Discriminatory Means
1. The entire burden is shifted on out-of-state
residents
iii. If the state owned the landfills, then the State itself would
be in the market and the Dormant Commerce Clause
Restrictions may not apply (Market Participant Doctrine)
1. The State could restrict shipments from out of state
if they bought all privately held landfills
a. They could say only state waste accepted
d. Rehnquist J. Dissent
i. Out of state waste is a health hazard to the residents of NJ
so they should be allowed to use Police Powers to keep
waste out
ii. For matters of general health and welfare of the population,
the states should be given latitude
iii. ***NOTE***
1. Barron thinks the problem with this dissent is that
disease is immediately harmful and dangerous,
whereas trash does not immediately harm citizens
e. Although the purpose here was legitimate, the means were
unconstitutional
f. If regulation had been even handed, then it would be upheld unless
the burden on interstate commerce was excessive in relation to local
benefit
g. ***RULE***
62
i. Regulation that employs discriminatory means requires
Strict Scrutiny of (1) any legitimate local purpose, and (2)
that there are non-discriminatory alternatives.
4. HUGHES v. OKLAHOMA (1979)
a. Facts
i. Statute prohibited the out of state transportation or
shipment of minnows for sale which were procured within
the waters of the state
1. Oklahoma claimed the statute served the state’s
interest in maintaining ecological balance in state
waters
b. Holding
i. Court rejects the statute as unconstitutional
c. Reasoning
i. This statute has a discriminatory purpose and is
discriminatory on its means!
1. Purpose
a. Maintain an ecological balance
i. This was NOT happening in
reality because people could take
as many minnows as they wanted
as long as they were OK citizens
2. Means
a. All burden to conserve was placed on out
of state citizens.
i. They would achieve their purpose
in a less discriminatory way
ii. “The statute must serve a legitimate local PURPOSE and
the purpose must be one that CANNOT be served as well by
AVAILABLE NON-DISCRIMINATORY MEANS”
5. MAINE v. TAYLOR (1986)
a. Facts
i. Criminal statute that banned the importation of live baitfish
from out of state because these fish may harm environment
and infect native fish
b. Holding
i. SCOTUS upholds the statute
c. Blackmun J. Decision
i. The statute has a legitimate local purpose and the means are
valid because there is no other way to keep parasites out
1. If you have enough evidence that supports the
finding that there’s a legitimate local purpose and
no alternative means, you can WIN a
discriminatory means case despite strict scrutiny
d. Stevens J. Dissent
63
i. There is NOT enough evidence to support Maine’s claim
that there are harmful effects on the environment
ii. The real purpose here is economic protectionism of the
local baitfish industry and environmental reason is just an
excuse!
1. When it is NOT clear that there is a legitimate
local purpose, the state should NOT be given the
benefit of the doubt and the measure should be
defeated rather than sustained
6. CHEMICAL WASTE MANAGEMENT v. HUNT (1992)
a. Facts
i. Alabama statute imposed a special fee on out of state
hazardous wastes disposed of inside the state
1. They tried to distinguish from PHI v. NJ by stating
this waste was hazardous
b. Holding
i. Court rejected the statute as unconstitutional
c. Reasoning
i. SCOTUS acknowledged the legitimate local interests but
stated that AL was unable to explain why only interstate
hazardous waste was charged to meet this goals
ii. A surcharge on out-of-staters may be valid because those
citizens don’t pay taxes
1. However, it must be reasonably differential
iii. The statute was NOT even handed because the burden is
ONLY placed on out of state users
d. Rehnquist J. Dissent
i. This was a health measure
1. For issues that concern public health and the
environment, the Court should defer to the State
and NOT use negative implications of the
Commerce Clause
7. FORT GRATIOT SANITARY LANDFILL v. MICHIGAN DEPT. OF
NATURAL RESOURCES (1992)
a. Facts
i. Michigan Solid Waste Act imposed waste import
restrictions which provided that solid waste generated in
another county, state, or country would NOT be accepted
for disposal UNLESS it was explicitly authorized in the
receiving county’s 20 year disposal plan
1. Michigan argued this differed from Phi v. NJ
because it imposed restrictions to in-state residents
as well
b. Holding
i. SCOTUS finds the Act to be unconstitutional
c. Stevens J. Decision
64
i. A state CANNOT avoid Dormant Commerce Clause by
curtailing the articles of commerce through the
subdivisions of the state, rather than through the state itself
1. Legislation is still invalid because of its
discriminatory means, despite the fact that it’s not
as discriminatory
d. Rehnquist J. Dissent
i. Michigan is actually facing the solid waste problem by
asking the local counties to come up with a plan
1. They are being penalized as a result of having a
plan, despite their good-faith efforts to deal with
the waste problem
8. C & A CARBONE v. CLARKSTOWN (1994)
a. Facts
i. Town of Clarkstown had a recycling and waste
management station ran by a local contractor
1. There was a contract that the contractor would run
this waste management station for 5 years and then
the Clarkstown would buy it for $1
ii. In the meantime, the town allowed an above market tipping
fee and required ALL solid waste to be processed at a
designated transfer station before leaving the municipality
iii. Carbone challenged statute since they had to bring their
already sorted recyclables and pay the fee on the grounds
that it violated the Dormant Commerce Clause
b. Holding
i. The town’s flow of control ordinance was violated as
unconstitutional
c. Kennedy J. Decision
i. Ordinance violates Dormant Commerce Clause because
although the immediate effect of the ordinance is local, the
economics effects are interstate violating interstate
commerce
1. Carbone had to pay double and drove up the cost
for any non-state people bringing waste
2. Ordinance deprived waste facilities in other states
from contribution to the market that Carbone was
making
ii. This deprives out of state businesses of access to a local
market
1. Ordinance is similar to a mall that requires
everyone in the town to go shopping there
iii. Strict Scrutiny Standard
1. By requiring people to use Clarkstown, the statute
closes the market to interstate commerce and does
NOT allow competition
65
d. O’Connor Concurring
i. Even though Clarkstown may argue that this is an evenhanded regulation to affect a legitimate local purpose, the
burden on interstate commerce is excessive (shuts out out
of state business)
e. Souter J. Dissent
i. Ordinance does not extend a benefit to local private actors
1. It is being used to advance an interest that the
government originally controls (trash collection)
and it must be acceptable
ii. The waste plant is quasi-public because it is contracted but
the town will buy it in the future
9. DEPARTMENT OF REVENUE v. DAVIS
a. Facts
i. Kentucky law that exempted people buying Kentucky
stocks from putting them in the Federal Income Taxes
b. Holding
i. Statute was upheld as constitutional
c. Reasoning
i. Issuance of bonds has been a historical State responsibility
ii. Market Participant Doctrine
1. Here a state was entering the market for bonds at
an equal stage
a. It has chosen to deal with their own
citizens in a different way than the citizen
of other states
2. However, you CANNOT be a market participant
and a market regulator
a. Souter says that you should NOT look at
taxation as a regulation in this context
because the commercial activity of the
statute complemented it
10. WEST LYNN CREAMERY v. HEALY (1994)
a. Facts
i. In 1980’s and 1990’s the Massachusetts Dairy Farmers
were losing the market share to their out of state
counterparts
1. It was clear that the Massachusetts Farmers would
be run out of business by the out of state farmers
ii. Mass passed an order that anyone who sold or distributed
milk within the state had to pay money into a fund
1. The proceeds of this fund would then be handed to
the farmers so that they would survive
b. Claim
i. Mass stated that the tax was an even-handed regulation
1. Using Subsidies  Giving Money to Farmers
66
a.
Once they collect taxes they can do
whatever they want
2. Non-Discriminatory Tax  They were taxing
everyone the same way
a. Both in and out of state people tax
c.
Holding
i. The statute imposing a tax and then a subsidy to the Mass
farmers is held to be INVALID
d. Stevens J. Decision
i. Discriminatory Means
1. The effect of the tax is to make out of state milk
more expensive so that the MA dealers can use the
subsidies to keep prices the same
ii. ***NOTE***
1. Barron thinks a flaw in Stevens’ opinion is that if
MA had gone about it slightly differently and
separated the money, then it would have been fine
2. States are allowed to support local industries, they
just needed to route it through general revenue
funds
iii. The farmers in state are getting the protection that out of
state farmers are not
e. Scalia J. Concurring
i. Already doubts the existence of the Negative Commerce
Clause, but since it clearly exists in precedent he CANNOT
get rid of it entirely
1. He wants to limit it and make it only applicable
when it clearly falls within precedent OR is
discriminatory on its face
f. Rehnquist J. Dissent
i. MA pricing plan serves a desired land use within the Police
Powers and since Congress has said nothing to the contrary
he would uphold the state statute
11. GRANHOLM v. HEALD (2005)
a. Facts
i. Challenged laws favoring in-state wineries to other in-state
wineries, but prohibited in-state sale by out of state
wineries
1. MI  Producers could only sell to in-state
distributors, but in-state wineries could ship
directly to consumers
2. NY  local wineries allowed to ship directly to instate consumers on terms NOT available to out-of
state wineries
b. Holding
i. BOTH laws are held to be unconstitutional
67
c.
Reasoning
i. Where there are extra steps required based on whether or
NOT the shipper has a physical presence in the state, then it
is unconstitutional
ii. ***NOTE***
1. Barron thinks this would be an example of Per Se
Discrimination
ii. MODERNIZING BALANCING TEST
1. Application of Balancing of State Interests v. Burden on Interstate
Commerce
2. PIKE v. BRUCE CHURCH, INC (1970)
a. Facts
i. Arizona passed a statute that required all cantaloupes
grown in the state and offered for sale, to be packed within
the state in closed standard containers approved by
government officials
1. Company passed suit because they had a plant in
Arizona but they would be required to build a new
plant to pack the cantaloupes (200K)
b. Issue
i. Can a non-discriminatory state law violate the negative
implications of the Commerce Clause?
c. Holding
i. Arizona Law was declared unconstitutional
d. Stewart J. Decision
i. Pike Balance Test
1. Where the statute regulates even handedly to
effectuate a legitimate local public interest, and its
effects on interstate commerce are only
incidental...
a. It will be upheld unless the burden
imposed on such commerce is clearly
excessive in relation to the putative local
benefits
ii. This case promotes a legitimate local purpose, but it’s
excessive e because it would cost Bruce Church 200K or
more to follow the act
1. AZ minor interest is outweighed by the heavy
burden
a. Burden OUTWEIGHS benefits to the state
iii. ***NOTE***
1. Barron thinks that one could argue that this was a
discriminatory means case
3. SOUTH CAROLINA v. BARNWELL
a. Facts
68
i. South Carolina state law prohibited trucks of a certain size
on state highways
1. Interstate trucking companies protested
b. Holding
i. States are uniquely responsible for interstate highways
c. Reasoning
i. If a State makes a judgment that a particular regulation is
necessary on its highways, then the Court will NOT
interfere with is AS LONG AS it is reasonably related to
safety
1. If you put a highway regulation it will apply to
both in and out of state residents
4. BIBB v. NAVAJO FREIGHT LINES
a. Facts
i. All trucks on Illinois Highways had to use the contour mud
flaps
1. Most states required the straight mud flaps
a. This was a nuisance for truck companies
b. Holding
i. Although safety measures were non-discriminatory this
statute was unconstitutional because the burden was
excessive and it did not provide any benefit to Illinois
5. RAYMOND MOTOR TRANSPORTATION v. RICE (1980)
a. Facts
i. Wisconsin requires the use of singles (except for certain
narrowly defined exceptions where they accept doubles) for
safety purposes, but interstate trucking companies used
doubles
b. Holding
i. Wisconsin law was held to be unconstitutional
c. Powell J. Opinion
i. The state here failed to present evidence to rebut the
showing that the 65 feet trucks are just as safe as 55 feet
singles
ii. There are exceptions made for in-state industries when it
comes to the use of doubles
iii. The burden imposed in interstate commerce by
Wisconsin’s regulation is greater than the benefits that
Wisconsin receives from prohibiting doubles
d. Blackmun J. Concurrence
i. Clarifies that the court is NOT adopting a new test for
highway safety regulations
1. Regulations in State Highways are still deferential
to the States
ii. Brennan  Court’s shouldn’t second guess economic
regulation (Legislative Function)
69
iii. Rehnquist, Burger  Court should defer to state police
justification
6. KASSEL v. CONSOLIDATED FREIGHTWAYS CORP. (1981)
a. Facts
i. Iowa presented evidence about safety of singles v. doubles,
but they were still sued on the theory that their preference
posed a burden on interstate commerce
b. Holding
i. Iowa law is held to be unconstitutional
c. Powell J. Decision
i. Although SCOTUS normally gives special deference to
state highway regulations, this regulation would bear
disproportionately on out of state businesses
1. Deference to state highway law derives from the
assumption that they don’t discriminate, but affect
all drivers similarly
a. However, where there are exemptions for
in-state entities and the burden is
disproportionate on out of staters the court
will strike it down
ii. Although Iowa produces evidence of how singles are safer
than doubles, SCOTUS is not persuaded by it
iii. Iowa makes exceptions when it comes to the use of double
in its highways
1. Iowa allows the use of doubles when it is in their
benefit
iv. The burden to interstate commerce outweighs Iowa’s
benefit for mandating singles
d. Brennan J. Concurring
i. Does not accept balancing test, where the safety benefit is
not illusory or insubstantial, then the court must defer to
state’s lawmakers
e. Rehnquist J. Dissent
i. The state’s evidence was good enough to justify the law
and the Court should give deference to the States in
highway regulation
1. Unless legislation is discriminatory it should be
deferential
iii. MARKET PARTICIPANT DOCTRINE
1. REEVES v. STAKE
a. Facts
i. South Dakota’s cement plant was built originally to supply
the state during a time of shortage
1. When there was a shortage, the commissioner of
SD stated that they would provide the state
companies first and then all the other ones
70
ii. Reeves claimed that this is a discrimination claim
b. Issue
i. Whether SD in a time of shortage may confine the sale of
the cement it produces solely to its residents
c. Holding
i. Court upholds the SD statute because the state is a Market
Participant and NOT a Market Regulator
d. Blackmun J. Decision
i. Market Participant Exception
1. The negative implications of the Dormant
Commerce Clause do NOT apply when the state
acts as a market participant
ii. Hughes v. Alexandria Scrap
1. Court upheld state actions that gave subsidies for
removal of old cars parked in state interstates
a. This made it harder for out of state
distributors to benefit
2. Court held that when the state is not acting in a
regulatory capacity, but is participating itself in
the marketplace as a buyer or seller it may
regulate free of restrictions from Dormant
Commerce Clause
iii. Π Contentions
1. Preference to SD customers is protectionist and
violates free trade, thus violates Dormant
Commerce Clause
a. State program was funded by state
taxpayers, so they should allow the people
who pay for it to benefit from it
2. The state can’t horde natural resources for its own
residents
a. Any state can have a cement plant because
it is NOT a natural resource
i. State didn’t restrict access to
limestone to make the cement
3. This program puts SD developers and contractors
in a better position than neighboring builders and
developers in Wyoming
a. Problem for out of state people comes
from the fact that their states didn’t act to
guard against shortages by building their
own plants or entering into long-term
contracts
4. Market Forces can generate an appropriate level of
supply at market prices
a. Speculative in nature
71
i. The plant was built in the first
place because the free-market
failed to allocate the resources
iv. Basis for the Market Participant Doctrine
1. Concern for state sovereignty
2. Ability of an enterprise to choose its customers
3. Complexity of adjusting competing interests when
the state engages in proprietary action
v. ***NOTE***
1. Barron thinks that Oklahoma v. Hughes is a
stronger argument than Reeves because cleaning
up a state highway is a traditional governmental
function and it has a beneficial environment result.
e. Powell J. Dissent
i. Interesting that Powell dissents because he wrote the
opinion of Hughes
ii. Thinks this is just the type of protectionism that Dormant
Commerce Clause was intended to protect against
iii. The application of the Commerce Clause to this case
should turn on the nature of the governmental activity
involved
1. Integral Governmental Function
a. State is immune from Dormant Commerce
Clause
iv. In Hughes the state was trying to do something that was
part of their responsibility as a state
1. But this case involves a commercial activity that
discriminates
a. In these situations the Market Participant
Doctrine should not exempt the state
v. If a state enters the private market and operates a
commercial enterprise for the advantage of its private
citizens, the commerce clause should apply
1. The state would become a Market Regulator
f. ***RULE***
i. Market Participant Doctrine may NOT extend to exempt
state discrimination with respect to the use of natural
resources (hoarding)
2. Is the Market Participant Doctrine Still Good Law?
a. Reeves was decided in 1980 after National League and Garcia
i. NLC
1. Held that the Commerce Clause does NOT
prohibit the state marketplace from regulating
conduct in the sphere of integral governmental
functions
b. Market Participant Doctrine is COROLLARY to this principle
72
i.
i. Dormant Commerce Clause does NOT apply when market
participant deals with traditional governmental functions
because those aren’t the subject of the commerce clause
c. Because NLC was overturned and this relies heavily on NLC’s state
sovereignty principle that was reversed, this may no longer be good
law
d. ***NOTE***
i. Barron thinks you could argue that although Garcia
reversed NLC the state sovereignty principle has been seen
in other contexts (Printz) so it is NOT dead
3. WHITE v. MASS COUNCIL OF CONTR. EMPLOYERS (1983)
a. Facts
i. Mayor of Boston issued an executive order requiring that
ALL construction projects funded in whole or in part by
funds given or controlled by the city had to be performed
by a work force consisting of at least 50% Boston residents
b. Holding
i. Court upheld legislation, allowing extension of Market
Participant Doctrine to reach sub-contractors who don’t
deal with the city directly
c. Reasoning
i. When a state or local government enters the market as a
participant it is not subject to the restraints of the Dormant
Commerce Clause
ii. In this case the city is a “major participant” and so
everyone is “working for the city”
d. Blackmun J. Dissent in Part & Concurring in Part
i. This went beyond a permissible exception because the city
imposed a condition on private firms to hire 50% Boston
residents curtailing private resident’s access to jobs with
private employers
1. Fears this makes the Market Participant Doctrine
so large that it could it up the protection of the
Dormant Commerce Clause
iv. BUT... even if a discriminatory law survives Commerce Clause scrutiny, it may
violate the Privileges and Immunities Clause
INTERSTATE PRIVILEGES AND IMMUNITIES
i. Privileges and Immunities Clause
1. Article IV, § 2  “The Citizens of each State shall be entitled to ALL
privileges and immunities of Citizens in the several States”(Comity Clause)
a. State A CANNOT treat State B’s citizens that are in State A
differently than it would treat its own citizens, UNLESS there is
substantive justification for doing so
i. State universities are an example of substantive
justification because they are paid by tax payers
2. Difference from Dormant Commerce Clause
73
a.
Privileges and Immunities does NOT apply to corporations or
aliens, only applies to individual citizens
3. HICKLIN v. ORBECK (1978)
a. Facts
i. Alaska passed a legislative act for the purpose of reducing
unemployment
1. Key provision stated that there should be
preference for residents to work on state owned oil
and gas
ii. Π passed suit because they were denied resident cards
b. Holding
i. Court rejected legislation because the discrimination of the
act did not bear the substantial relationship to the particular
evil the out of state residents were said to present
c. Reasoning
i. Privilege and Immunities is concerned with states treating
everyone fairly when it comes to fundamental rights like
livelihood & travel
d. ***RULES***
i. Its fine to charge a reasonable differential where there is a
substantial reason
1. Substantial Reason exists when there is something
to indicate that non-state citizens constitute a
peculiar source of evil at which the discriminatory
statute is aimed
a. There must be a reasonable relationship
between danger presented by non-citizens
and the discrimination practiced upon
them
ii. TEST for Legislation Challenged under P&I Clause
1. Does regulation affect fundamental right? (Added
Later)
2. Are non-residents the source of evil with which the
state is concerned?
a. Evil here is historically high
unemployment
3. Is the law that addresses the problem substantially
related to solving the problem that the state is
concerned with?
4. UNITED BUILDING & CONSTRUCTION TRADES COUNCIL v. CITY
OF CAMDEM (1984)
a. Facts
i. City passed a statute stating that at least 40% of the
employees had to be from the municipality
b. Holding
74
i. Remand to determine if there is a substantial relationship
between legislation and source of problem
c. ***NOTE***
i. Both Commerce Clause and P&I Clause have different
aims and set different standards for state conduct
1. P&I Clause
a. Imposes a direct restraint on state action in
the interest of interstate harmony
i. Discrimination against out of
state residents on matters
fundamental concern is what
triggers the clause, NOT
regulation affecting interstate
commerce
2. Commerce Clause
a. Acts as an implied restraint upon the state
regulatory powers
i. Such powers must give way
before the superior authority of
Congress to legislate on matters
involving interstate commerce
d. ***RULE***
i. City ordinances may violate the P&I Clause in spite of
their discriminating against in-state residents
ii. Giving preference to some in-state residents over non-state
ones violates P&I Clause
1. Discrimination if it is not substantially related to
the source of evil
5. BALDWIN v. FISH & GAME COMMISSION (1978)
a. Facts
i. Elk hunting license was only $9 to MT residents, residents
of other states would have to buy a comprehensive hunting
license for $225
b. Holding
i. Court upheld the statute
c. Reasoning
i. P&I Clause is limited only to those privileges and
immunities bearing upon the vitality of the Nation as a
single entity
1. Hunting Elk is not basic to the maintenance or
well-being of the union and did not involve any
fundamental rights
d. Brennan J. Dissent
i. Inquiry into whether a given right is “fundamental” has NO
place in the Court’s analysis of whether a state is
75
participating in unjustified discrimination against nonresidents
e. ***RULE***
i. States may discriminate against non-state citizens if they
are NOT dealing with a fundamental right
6. SUPREME COURT OF NEW HAMPSHIRE v. PIPER (1985)
a. Facts
i. Lawyer challenged NH’s residency requirement stating that
lawyers residents of other states could not get bar
b. Holding
i. Rejects NH residency requirement as violating the P&I
Clause
c. Reasoning
i. Applies the Test!
1. Fundamental
a. Pursuing the practice of the law
(occupation) is a fundamental right
2. Source of Evil
a. Out of state lawyers are NOT a source of
evil
3. Substantially Related
a. NH argued that law is unlike any other
professions, closely tied to laws of the
state and out of state lawyers are less
likely to comply and take it seriously
i. Court Rejected this
d. Rehnquist J. Dissent
i. Thinks it was a legitimate state interest since lawyers have
a close tie to laws of the state
e. ***RULE***
i. Pursuit of Employment is a fundamental right under P&I
Clause
7. SUPREME COURT OF VIRGINIA v. FRIEDMAN (1988)
a. Facts
i. Statute saying that if you practice in D.C. or Maryland for 5
years, you could be admitted by the means of a “motion” to
the Virginia Bar
1. Additionally you would have to establish an office
in VA
b. Holding
i. Law was rejected for the same reasons as Piper
8. BARNARD v. THORSTENN
a. Facts
i. Virgin Islands provided that applicants for bar admission
must have resided there for at least one year and must state
76
an intent to reside and practice law there following
admission
b. Holding
i. Court rejects this residency requirement as unconstitutional
1. “Evils” were legitimate, but could have been
addressed by less restrictive means
j.
PREEMPTION
i. Legitimization
1. In the exercise of its plenary powers, Congress can permit state regulation of
an area even though the State would be barred from such regulation by the
Commerce Clause in the absence of such Congressional authorization
a. But... Congress must expressly manifest an unambiguous intent by a
clear statement before discriminatory laws are allowed
ii. Preemption
1. Preemption problems occur when a State regulates something, but doesn’t
refer to the Federal Statute AND the Federal Statute does NOT state whether
Congress intended to have exclusive sovereignty over this area
2. Situations where Congress and the State are both acting under their powers
but their laws conflict
a. In these situations the Federal Act will preempt the State Law, if the
State Law is an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress
3. Problems arise when a Federal Statute does NOT claim to pre-empt, but
deals with a particular problem, and you have a state regulation that deals
with the same problem
iii. TESTS for Preemption
1. Is this an area which requires uniform national regulation, and can’t tolerate
any state regulation?
2. Is the Federal Law pervasive?
a. Is this an area that is so pervasive in regulations by the Federal
government that it’s clear there is not room for a local regulation
because Congress sought to regulate all the critical aspects of the
subject?
3. Can you have joint administration? Without the laws conflicting?
4. Is this an area where there is a federal agency regulating?
77
FEDERAL EXECUTIVE POWER  Separation of Powers
I.
II.
Formalism and Functionalism (Judicial Role in Separation of Powers Analysis)
a. Two Theories of Separation of Powers
i. Formalism
1. Sees the constitutional text as establishing bright lines separating the powers
and responsibilities of the three branches.
a. Literalist approach to interpreting the constitutional language
defining these separated powers
2. EX  Read the language of the Constitution very precisely and don’t allow
much interplay between the branches (Executive Enforces Only)
3. Black in Youngstown
a. All of the law making power comes from Congress, and if there is a
conflict then it is up to the courts
ii. Functionalism
1. Emphasizes the checks and balances principle more than strict separation
a. Tolerates a more fluid, flexible approach to the relations of the
branches AND perceives a greater open-ended, ambiguous quality
to the constitutional language
2. EX  If the US is engaged in a war and there is an emergency need for
steel, the emergency powers ought to be allocated to the President (even if
the constitution does NOT say this)
Perspective on Executive Powers
a. Executive Power Theories
i. Inherent Power
1. Powers that exist by virtue for the office (Not needing any other specific
language in the constitution entitling the person/body to do its job)
2. Three Possible Sources
a. Vestiture Clause - Article II, § 1  The Executive Power shall be
vested in the President of the U.S.
i. Implies that the President can do anything of an executive
nature
ii. Others disagree and believe that this is simply descriptive,
and is stating that the power is unitary
1. Not a grant of power (Youngstown)
b. Article II, § 2, Cl. 1  The President shall be Commander in Chief
of the Army and Navy of the U.S.
c. Article II, § 3  President “shall take care that the laws be fully
executed”
ii. Stewardship Theory – Teddy Roosevelt
1. President is a steward of the people and as such can do ANYTHING that he
is NOT specifically forbidden to do by the Constitution
iii. Taft Theory
1. President can ONLY do that which Federal Statute or the Constitution
specifically gives him the authority to do
b. In Re Neagle (1890)
i. Facts
78
III.
1. Attorney General assigned Neagle (U.S. Marshal) to protect the Supreme
Court Justice Fields whose life had been threatened
a. Neagle shot and killed Terry but he was then arrested
ii. Holding
1. Supreme Court granted the Writ of Habeas Corpus and ordered Neagle’s
release
iii. Reasoning
1. Although there was no statutory support for the act, the court concluded that
the executive branch had the inherent power to protect its officials as part of
the “faithful execution of laws”
a. The President’s oath to “preserve, protect, and defend” gives full
textual support
2. This is a generous interpretation of the President’s power (Functionalist)
c. In Re Debs (1985)
i. Facts
1. DOJ sought injunction to keep Debs and other strikers in the RR industry
from striking and obstructing interstate commerce and the mail
ii. Holding
1. Court granted the injunction indicating the executive’s broad power to act in
the public interest
iii. Reasoning
1. President has the power to use armed forces in cases of emergency to
enforce rights of public and preserve peace
2. “Whenever wrongs complained of are such that affect the public at large,
and are in respect of matter which by the Constitution are entrusted to the
case of the Nation (President), and concerning which the nation owes the
duty to all the citizens of securing to them their common rights, then the
mere fact that the government has no pecuniary interest in the controversy is
NOT sufficient to exclude it from the courts” (Functionalist)
d. U.S. v. MIDWEST OIL CO. (1915)
i. Facts
1. Congress had a statute that public lands should be open for commercial
exploitation by oil companies
a. Despite this, President Taft ordered withdrawal of the land to
prevent the depletion of oil reserves
2. Taft claimed that Presidents before him ignored the statute, so he should be
able to also
ii. Holding
1. Upheld President Taft
iii. Reasoning
1. Acquiescence Theory
a. Taft had been withdrawing lands for a while and Congress had not
done anything about it
Allocating the Law Making Power
a. EXECUTIVE LAW MAKING
i. YOUNGSTOWN SHEET & TUBE CO. v. SAWYER – Steel Seizure Case (1952)
79
1. Facts
a.
2.
3.
4.
5.
6.
Steel Workers were going to strike and shut down all the Steel
Factories in the United States
i. The President decided to take over all the Steel Mills and
keep them working
b. Steel Workers brought a suit asking for declaratory judgment stating
that the orders of the President were invalid and for a preliminary
injunction restraining the enforcement
Holding
a. Presidential powers did NOT invoke taking over the Steel Mills and
his actions were Unconstitutional
Black J. Decision
a. Lack of Statutory Authority
i. There is no statute on this and Congress considered an
amendment that would give president this power, but it was
rejected
ii. All law making power comes from Congress, and if there’s
a conflict, then it is up to the Courts
b. Lack of Constitutional Authority
i. Truman argued that inherent constitutional power gave him
ability to seize a critical industry to prevent stoppage
during was time
1. Court rejected this because the President can
execute NOT make the laws
c. Formalistic Approach
Douglass J. Concurring
a. Only Congress can compensate for property and therefore only
Congress can take property (No Inherent Power) - Formalistic
Frankfurter J. Concurring
a. Disagree a lot with Black
i. If there is a systematic unbroken practice that has never
been questioned then it becomes a Presidential power
1. However, here Congress specifically considered
this power and chose NOT to give it
b. Attack on Formalism
i. Constitution should be understood as how it has been
interpreted and NOT textually
c. Outcome due to decisive legislative action by Congress, NOT
comprehensive survey of President powers
d. More flexible and less formalistic approach (Functionalism)
Jackson J. Concurring (MOST IMPORTANT)
a. Three Levels of Classification of Presidential Power based on
Congressional/Executive Conflict
i. When the President Acts pursuant to an Express or
Implied authorization of Congress, his authority is at its
MAXIMUM
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1. Presidential authority here includes ALL that he
possesses in his own right plus all that Congress
can delegate
a. Under this scenario Presidential actions
are presumptively valid and challengers
bear a burden of demonstrating the
Federal Government (as a whole) lacks
the power that they claim
ii. When the President acts in absence of either a
Congressional grant or denial of authority
1. President can only rely upon his own independent
powers, but there is a zone of twilight in which he
and Congress may have concurrent authority, or in
which distribution is uncertain.
a. Sometimes silence is an invitation to
executive action
iii. When the President takes measures incompatible with the
Expressed or Implied will of Congress
1. President’s power is at its LOWEST because he
can only rely upon his own Constitutional powers
minus any Constitutional powers of Congress over
the matter
a. In this scenario upholding Presidential
actions would require Court to prohibit
Congress from acting on the subject
(Strict Scrutiny)
b. Truman’s actions fall under the third category because the President
is trying to effectuate an inherently legislative action which is
incompatible with Congressional intent
c. President does NOT have inherent powers
i. Vestiture Clause  Simply establishes allocation of
general powers
ii. Commander in Chief  Requires Congressional
declaration of war to legitimize actions
iii. Faithfully Execute  Must balance with 5th Amendment
d. President does NOT have Emergency Powers
i. Congress could easily grant powers in times of emergency
e. Functionalist
7. Burton J. Concurring
a. President does NOT have inherent power to seize land here since
there is NO emergency
8. Clark J. Concurring
a. Thinks there are Emergency powers, but not when Congress acted
otherwise
9. Vinson J. Dissent
a. Functionalist
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b. Highlight that this is a time where the President needs Emergency
Power
i. Affidavits stated that the Steel Mills stoppage would
immediately jeopardize National Defense
c. Presidents have acted with regards to land in the part and failing to
protest means that Congress has acquiesced by not addressing the
issue
d. Follows Stewardship Theory
i. The Executive is subject only to the people, and bund to
serve them wherever he is not explicitly forbidden by the
Constitution
Justice
Black
Douglas
Frankfurter
Jackson
Burton
Clark
Vinson (3 Others Joined)
View on Inherent/Emergency Presidential Power
No Inherent Power
No Inherent Power
Not Clear
No matter what you call it, President DOES NOT
have it
Emergency Power in Some situations – Invasion
The President DOES have Emergency Power
The President DOES have Emergency Power
10. Possible Holdings??
a. When Congress has failed to act, the President would be able to
exercise Emergency Powers
b. When Congress has expressly or implicitly declined to take a
certain course of action, President CANNOT act unless President
has independent Constitutional Authority
i. Supported by Majority
c. When Congress has declined to take a certain course of action, the
President may NOT take that course of action unless he has his
own Constitutional authority, However, he may have emergency
powers
i. Controversial Answer since Jackson rejected it
b. CONGRESSIONAL LAWMAKING – Limitations and Responsibilities
i. DELEGATION OF LEGISLATIVE POWER – Non-Delegation Doctrine
1. MISTRETTA v. U.S.
a. Facts
i. The Sentencing Commission was independent and placed
in the Judicial Branch under the Sentencing Reform Act of
1984
1. There was a challenge to the Constitutionality of
the act because the power to prescribe sanctions
for crimes under the Federal Law belonged to
Congress
b. Holding
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2.
3.
4.
5.
i. Court upheld sentencing guidelines for Federal Courts
promulgated by the U.S. Sentencing Commission
c. Reasoning
i. As society increases in complexity, Congress must delegate
its job “under broad general directives”
1. The broad delegation is “sufficiently specific and
detailed to meet Constitutional Requirements”
d. Scalia J. Dissent
i. Sentencing Commission is an unconstitutional delegation
of legislative power by Congress to another agency because
the guidelines established have the force of law
PANAMA REFINING CO. v. RUAN (1935)
a. Facts
i. Act which authorized president to prohibit shipment in
interstate commerce
b. Holding
i. This is unconstitutional because Congress was giving the
president something that was the responsibility of the
judiciary
SCHECTER v. U.S.  Sick Chicken Case (1935)
a. Facts
i. Involved the National Industrial Recovery Act (NIRA)
which allowed businesses inside the United States to
develop their own codes of conduct and sanctions
1. Congress would then uphold the codes of conduct
through the NIRA ACT
ii. Poultry Business in NY
1. Required the people to buy the entire chicken
coup, but many of these chickens were sick
2. Businesses could set the maximum hours for
people working in that industry
b. Holding
i. This is unconstitutional because Congress had delegated
essential legislative power
J.W. HAMPTON v. U.S.
a. “Shall long as Congress lay down by legislative act an intelligible
principle to which the person or body authorized to [exercise the
delegated authority] is directed to conform, such legislative action is
not a forbidden delegation of legislative power”
MISTRETTA v. U.S. (1989)
a. Facts
i. The Sentencing Commission was independent and placed
in the Judicial Branch under the Sentencing Reform Act of
1984
1. There was a challenge to the Constitutionality of
the act because the power to prescribe sanctions
83
for crimes under the Federal Law belonged to
Congress
b. Holding
i. Court upheld sentencing guidelines for Federal Courts
promulgated by the U.S. Sentencing Commission
c. Reasoning
i. As society increases in complexity, Congress must delegate
its job “under broad general directives”
1. The broad delegation is “sufficiently specific and
detailed to meet Constitutional Requirements”
d. Scalia J. Dissent
i. Sentencing Commission is an unconstitutional delegation
of legislative power by Congress to another agency because
the guidelines established have the force of law
6. WHITMAN v. AMERICAN TRUCKING ASSOCIATION (2001)
a. Facts
i. Clean Air Act stated the EPA to set primary ambient air
quality standards to protect the public health with adequate
margins of safety
b. Holding
i. Non-Delegation Doctrine does NOT apply here because if
it was applied strictly nothing could be delegated
ii. LEGISLATIVE VETO
1. Immigration & Naturalization Service v. Chadha (1983)
a. Facts
i. Student from India overstays his visa and the immigration
and naturalization service ordered Chadha to be deported
ii. Chadha filed for cancellation of deportation
1. Based on Section 244(a)(1) of the Immigration and
Naturalization Act
a. If he had resided in the country for over 7
years, was in good moral standing, and he
would suffer extreme hardship by moving
back
iii. The Immigration judge decided to cancel the deportation
1. There was a clause in the Immigration and
Naturalization Act in which Congress could veto
the order against the deportation
iv. The House of Representative vetoed and stated that Chadha
had to leave the country
1. The immigration judge reopen the proceedings and
Chadha sued stating that the legislative veto
provision was unconstitutional
v. The Court of Appeals held that the clause violated the
separation of powers and thus held it unconstitutional
b. Reasoning
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c.
i. Not all laws that are efficient and useful are constitutional
1. Even useful political infractions are still subject to
constitutional provisions
ii. Do we find in federal legislature examples of the legislative
veto?
1. There are more than 200 bills that have a
legislative veto
a. They may be useful but they should all be
subject to constitutional process
iii. Framers wanted to divide power between the three
branches of government and wanted legislation to be
deliberate
1. For legislation to have long and serious
consideration
a. Legislation has to be presented to the
president for his approval before it was
official
iv. What the veto power does?
1. Protects the president against the Congress
2. Increases the chances of the legislature to pass bad
law against the people
v. Bicameralism
1. Both houses have to be involved in the legislation
process
a. The House is more representative than the
people and the Senate is more
representative of the state
2. To determine whether an action is legislative in
nature you must determine the action itself and its
effect
a. In this case the executive branch, the
attorney general and Chadha (all who are
out of the legislative branch)
vi. When the framers wanted to permit one house to act alone,
they specifically provided for it in the Constitution
1. Four ways in which a single chamber of Congress
can act by itself
a. House  Power to initiate impeachment
b. Senate  Power to conduct and convict
impeachment trials
c. Senate  Given final unreviewable power
to approve or disapprove presidential
appointments
d. Senate  Unreviewable power to ratify
treaties
Powell J. Concurring
85
i. Decide this case on the separation of power issue
1. Congress has asserted a function that the federal
courts should be exercising
ii. This immigration clause is something that should be left for
the judiciary
1. What you are talking about here are the rights of
an individual person
a. When we consider an individual person
and sanctions against them, we want the
protection of judicial proceedings
i. Inappropriate for the legislature
here to act judicially
iii. The only effective constraint on Congress’ power is
political, but Congress is most accountable politically when
it prescribes rules of general applicability
d. White J. Dissent
i. Hobson’s Choice
1. Congress will either have to refrain from
delegating the necessary authority, leaving itself
with a hopeless task of writing laws with the
requisite specificity OR
2. To abdicate its lawmaking function to the
executive branch and independent agencies
ii. The president’s approval is found in the Attorney General’s
action in recommending to Congress that the deportation
order for a given alien should be suspended
e. ***NOTE***
i. What Congress was trying to do in this case was to bestown
the appointment power in themselves
iii. THE LINE ITEM VETO ACT
1. Clinton v. City of New York
a. Facts
i. Attempt by Congress to give the president the power to
veto selected portions of spending and tax laws
b. Holding
i. Supreme Court struck down the line veto act
c. Reasoning
i. Majority compared the resulting impact on legislation to
amending existing legislation
d. Dissent
i. There is not a dime’s worth of difference between
Congress’ authorizing the president to cancel a spending
item, and Congress’ authorizing money to be spent on a
particular item at the President’s discretion
1. If it is the same thing then let Congress choose
whichever way to do it
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IV.
iv. BUDGET CONTROL
1. Bowsher v. Synar
a. Facts
i. Gramm-Rudman Act where Congress assigned to the
Comptroller General the authority to specify spending
reductions binding on the president
1. It set a maximum deficit amount for each fiscal
year
ii. The OMB and CBO got together and independently
estimate the amount deficit for the upcoming year
1. The Comptroller General then reviews the
recommendations and report conclusions to the
president
b. Holding
i. The Gramm-Rudman Act was held to be unconstitutional
c. Reasoning
i. The Comptroller General here was not independent
according to the statute
1. Instead it is a creature of Congress because it can
be discharged by them
a. They could be discharged by
i. Permanent Disability
ii. Inefficiency
iii. Neglect of Duty
iv. Malfeasance
v. Felony or Conduct Involving
Moral Turpitude
ii. The Comptroller General here is more of an executive
figure
1. He is executing the laws of Congress
Appointment and Removal Power
a. Appointment Clause
i. Article 2, § 2, Cl. 2  “The President shall have Power, by and with the advice and
Consent of the Senate, to appoint all [principal] Officers of the United States... but
the Congress may by Law vest the Appointment of such inferior officers”
1. Superior Officers are appointed by the President
a. Congress has discretion to decide who gets to inferior officers
2. This estates NOTHING about removal
b. MYERS v. U.S. (1926)
i. President had authority to remove postmaster, the court characterized the act as
incident to the power of appointment
c. HUMPHREY’S EXECUTOR v. U.S. (1935)
i. Court REJECTS Presidential removal of FTC Commissioner
1. Based on classification he was a quasi-executive/quasi-legislative rather than
performing a FULL executive function
d. MORRISON v. OLSON (1988)
87
i. Facts
1. Challenge to the independent Counsel provisions of the Ethics in
Government Act
a. An official NOT appointed by the Executive or subject to executive
removal at will AND free of executive supervision of its
prosecutorial operations, COULD provide an effective mechanism
for promoting control and accountability
2. Independent Counsel could prosecute high ranking government officials
a. Special Court appoints Independent Counsel for investigatory
purposes and he CAN ONLY be removed for good cause
b. The Office terminates when the counsel submits finding (no set
time limit)
i. He sends report to Congress about investigation
3. Assistant Attorney General (Olson) was investigated, so Independent
Counsel (Morrison) issued subpoenas
a. Olson moved to quash the order saying it was unconstitutional
ii. Holding
1. Provisions of Act do not violate Appointments Clause of the Constitution,
limitations of Article III, nor do they impermissibly interfere with the
President’s Authority under Article II in violation of the Constitutional
provision of Separation of Powers
iii. Rehnquist J. Decision
1. Olson Claims the Act is unconstitutional because
a. Independent Counsel was appointed in violation of Appointment
clause because Morrison is a principal officer of the government
i. Thus, he can ONLY be appointed by the President with the
Senate Approval
1. Court rejects this and states 4 reasons why the
Independent Counsel is an inferior officer, thus
appointed by Court of Law
a. Subject to removal by a higher executive
branch official
b. Only limited duties for this specific
investigation
c. Office has limited jurisdiction
d. Office is limited in tenure
b. Appointment’s Clause doesn’t contemplate Congressional
Authorization of “interbranch appointments”
i. Court rejects this stating that the Constitution does NOT
say that interbranch appointments are NOT permitted
1. There is nothing incongruous with a Court
appointing a prosecutor because the Court is an
impartial arbiter
c. Powers of the Special Division conflict with Article III provisions
(where judges are NOT allowed to use executive or administrative
functions)
88
e.
i. Court rejects this because they state that an administrative
role does NOT pose a sufficient threat of judicial intrusion
and the judges involved are sufficient isolated as to
minimize risk of judicial independence
d. Ethics in Government Act and the creation of the Independent
Counsel violates the Separation of Powers because (1) limiting the
Attorney General power to remove Independent Counsel only for
good cause impermissibly interferes with the President’s exercise of
Constitutionally appointed functions AND (2) the Act as a whole
violates the Separation of Powers by reducing the ability to control
the prosecutorial powers wielded by the Independent Counsel
i. Court rejects this for the following reasons
1. Independent Counsel is more like a regulatory
commissioner in Humphrey’s Executor than
postmaster in Myers
2. The Act reduces control but the President can still
remove Independent Counsel, hence, it does NOT
interfere with executive duties
3. Independent Counsel investigating and prosecuting
high executive officials does not unduly interfere
with the rule of the Executive
4. Functionalist
a. Constitution DOES NOT require absolute
independence and here there is NOT
danger of usurpation
2. ***NOTE***
a. Policy Justification
i. Court felt it needed some way to hold the President
accountable so although this is a limitation on executive
power, it is NOT impermissibly large
1. Congress is not expanding their own power so its
fine
iv. Scalia J. Dissent
1. Two Questions to Determine if this is a violation of Separation of Powers
a. Is the conduct of a criminal prosecution the exercise of purely
executive power? (YES!!!)
b. Does the statute deprive the President of the U.S. of exclusive
control over the exercise of that power? (YES!!!)
2. The President CANNOT realistically and constitutionally be deprived of
ANY executive power by Congress
3. Constitution provides for impeachment and the ballot box as remedies
(Formalist)
a. This is an unnecessary and unconstitutional means of correcting
Presidential action
FREE ENTERPRISE v. PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD
i. Facts
89
1. Congress created the Sarbanes-Oxley Act composed of 5 members to
oversee tighter regulation in the accounting industry
a. The members are appointed by the SEC, which is appointed by the
President
i. The Members of the Senate authorizes the appointments
2. The SEC can remove the members due to “good cause” or a showing of
“inefficiency, neglect of duty, or malfeasance”
3. The plaintiffs represented a Nevada accounting firm and claimed that the
Board was unconstitutional
ii. Holding
1. There is only one thing wrong with the Act
a. The process for removing members of the Board was contrary to the
Constitution’s Article II (executive power) and it violated
traditional notions of separation of power
iii. Reasoning
1. The dual good cause removal situation deals with the problem of the
president controlling the board
2. Three Arguments against the Board made under the appointment clause
a. Plaintiffs argue that the SEC (independent regulatory commission)
is not a department
i. The court rejects this contention
1. Because the commission is a freestanding
component of the Executive Branch it constitutes a
department
b. Plaintiffs argue The SEC cannot constitutionally appoint Board
members because there is only 1 head
i. Court rejects this contention
1. As a constitutional matter the court sees no reason
why a multimember body may not be the “head of
a department” that it governs
c. Plaintiffs argue Board members are principal officers requiring
Presidential appointment and statutory restrictions on the
commission’s power to remove board members are unconstitutional
and void
i. The court rejects this contention
1. The Board members are inferior officers whose
appointment Congress may permissibly best in a
Head of a Department
3. About the two-layers of for-cause protection
a. The Act does not only protect Board members from removal except
for good cause, but withdraws from the President any decision of
whether that good cause exists.
iv. Dissent
1. The statute does not significantly interfere with the President’s executive
power
a. It violates no separation of powers principle
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V.
2. Congress and the President could reasonably have thought it prudent to
insulate the adjudicative Board members from fear of purely political based
removal
3. It is good that the Court did not outlaw this type of organization
a. If the Court was to reject the two level of for-cause protection, it
would sweep “hundreds or thousands of high level government
officials
i. It would put their job security and administrative actions at
risk
Privileges and Immunities in the Separation of Powers
a. EXECUTIVE PRIVILEGE
i. U.S. v. NIXON (1974)
1. Facts
a. Special Prosecutor moved for subpoena ordering the President to
produce designated tapes, memoranda, and other papers relating to
specific meetings between Nixon and others
b. President released the edited transcripts, but moved to quash the
subpoena based on “executive privilege”
2. Holding
a. President is subject to judicial process BUT can also assert
executive privilege
i. On remand the District Court judge must look at the
subpoenated evidence in camera, determine what info is
relevant, and only give the prosecutor relevant information
3. Burger J. Decision
a. Nixon argues this is a non-justiciable political question because it
was a intra-branch dispute
i. This falls under case or controversy because it is a matter
arising during the course of a regular criminal prosecution
and there are adverse parties
b. Nixon argues that there can’t even be judicial review of a claim of
executive privilege because based on separation of powers, the
court CANNOT consider the assertion or review the claim
i. Separation of Powers is not a bar to judicial consideration
of a claim of executive privilege
c. President should have Executive Privilege because the subpoena
demands confidential conversations between the President and his
close advisors that would be inconsistent with the public interest to
produce
i. This is a strong argument and a doctrine of Executive
privilege is recognized BUT NOT ABSOLUTE
1. If this were a (1) military, (2) national security, or
(3) diplomatic matter, the claim for privilege by
President would be must stronger
a. This is a criminal case where the Court
must weigh the claim for evidence that is
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essential to the fair administration of
criminal justice against the claim of
confidentiality
i. Criminal justice system takes
precedence
4. ***RULE***
a. The executive is subject to process by the Federal Judiciary
b. President enjoys an executive privilege to withhold information
i. The privilege is Constitutionally established, but the
privilege is conditional
1. It is absolute in 3 areas
a. Diplomacy
b. National Security
c. Military
ii. CHENEY v. U.S. DISTRICT COURT (2004)
1. Facts
a. Bush appointed a task force known as the National Energy Policy
Development Group to be chaired by Vice-President Cheney
i. Under Federal law a task or advisory group must disclose
the membership and make public announcement of the
meetings
b. Sierra Club and Judicial Watch passed suit alleging that a number of
private sector executives were regularly consulted (de-facto
members)
i. District Court ordered VP to disclose extensive information
about meetings and documents related to the work of the
group
c. VP sought a writ of mandamus from the Court of Appeals against
the Discovery order (C of App. Denied this)
2. Holding
a. Broad Claim of Executive Power did NOT apply in Civil
Litigation
3. Reasoning
a. Executive Officials were entitled to have their claim of privilege
heard in general before discovery proceeded
i. This is the need for civil cases
iii. NIXON v. ADMINISTRATOR OF GENERAL SERVICES (1977)
1. Facts
a. Presidential Recordings and Materials Preservation Act was passed
directing the General Services Administration to take possession of
Nixon’s White House papers and tapes recordings
i. Nixon had executed a depository agreement with the
Administrator of the GSA providing for the storage of his
White House papers and materials near his home in St.
Clemente
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b. The Act required for those papers to be stored and preserved by the
GSA in order for them to be available for judicial proceedings
i. Nixon sued challenging the constitutionality of the act
2. Holding
a. SCOTUS upheld the constitutionality of the act
3. Reasoning
a. The Act is NOT a violation of Separation of Powers
i. President Ford signed Act into power and President Carter
urged its validity
b. Screening by archivists is a “very limited intrusion by personnel in
the Executive Branch sensitive to concern”
c. Main Finding
i. The Act would not impede the Executive’s ability to
complete constitutionally assigned functions
4. Rehnquist J. Dissent
a. Act would frustrate candid and open discourse among the President
and its Advisors
5. Burger J. Dissent
a. This is a violation of Separation of Powers because the legislature is
trying to act within the means of the Executive by passing this act
b. PRESIDENTIAL IMMUNITY
i. NIXON v. FITZGERALD (1982)
1. Facts
a. Fitzgerald was a management analyst with the Air Force and was
dismissed from his job after he had testified before a Congressional
Subcommittee about cost overruns and unexpected technical
difficulties
i. He sued stating that his firing was retaliatory
2. Issue
a. Can Nixon be sued for the injury to Fitzgerald?
3. Holding
a. The President has ABSOLUTE IMMUNITY for Civil Damages
based on his official responsibilities
4. Reasoning
a. President does NOT have to defend decisions made in his official
capacity because he need not to be distracted of his public duties
i. This will be a detriment on the nation if he does NOT focus
solely on his responsibilities
5. White J. Dissent
a. The majority makes NO effort to distinguish categories of
presidential conduct that should be absolutely immune from other
categories of conduct that should NOT qualify for that level of
immunity
i. An appropriate test would be an essential function
immunity test
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VI.
1. If something is really essential to the President’s
office, then he would have absolute immunity
6. TESTS for Immunity****
a. Whether the official has reasonable grounds for believing that the
actions violated NO statutory or Constitutional provision
i. If there is reasonable belief  Official has immunity
b. Given your position and status, can it be said that you could NOT
have reasonably been expected to now that your conduct was
illegal?
ii. CLINTON v. JONES (1997)
1. Facts
a. Paula Jones filed suit against President Clinton alleging that she had
been a victim of improper sexual advances while he was governor
of Arkansas
b. Clinton told the court that he intended to file a motion to dismiss
due to presidential immunity
2. Holding
a. A sitting president has NO right to immunity regarding Civil
Lawsuits that arise from actions taken BEFORE his taking of office
3. Stevens J. Decision
a. The President does NOT have immunity for actions taken before he
took office (NOT in his official capacity)
b. It seems unlikely that litigation like this can engulf the President
and occupy a lot of his time
i. However, the Court should not interfere with the
President’s duties at home or abroad
THE WAR POWER
a. The Constitution mentions War Power only in Article I (Congressional Power)
b. PRIZE CASES
i. Facts
1. After South Carolina left the Union President Lincoln declared a blockade of
Confederate Ports
a. Union vessels captured and took as prizes some ships from the
Confederate South
i. The issue was whether the ships were illegally taken
ii. Holding
1. The court upheld the blockade and stated that the ships were not illegally
taken
iii. Reasoning
1. This was an insurrection and the president can respond to it without the need
for Congress to declare war
a. The taking of the ships was legal due to the rough times the nation
was going through
c. War Powers Resolution
i. Congress has enacted a War Powers Resolution which seek to limit Executive Power
to engage the armed forces in hostilities
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1. 60 days after the President sends troops abroad, if Congress does not
affirmatively acts (gives authorization) then the troops shall return home
ii. Not Very Significant
d. HAMIDI v. RUMSFELD (2004)
i. Facts
1. Hamdi was an American Citizen born in Louisiana who moved to Saudi
Arabia
a. When he was 20 years old he moved to Afghanistan
2. The U.S. states that he was apprehended holding a riffle in the battlefield,
and that he was aligned with the Taliban forces fighting against the United
States
a. The government only relied on a single affidavit stating that Hamdi
was an enemy combatant (Mobbs Declaration)
3. Upon captured Hamdi was taken to Guantanamo Bay but when they
discovered he was a U.S. Citizen they transferred him to another prison in
Virginia
a. In 2004 (3 years after) his father filed a Writ of Habeas Corpus in
the Eastern District of Virginia
i. He states that his son went to Afghanistan on a relief trip
1. That he was young and inexperienced, and was
trapped in Afghanistan once the military campaign
began and thus there is no legal basis for detaining
him
ii. That the government had held his son without any charges
against him and for an unlimited amount of time
ii. Legal Rule
1. 18 U.S.C. 4001(a)  “No Citizen shall be imprisoned or otherwise detained
by the U.S. except pursuant to an Act of Congress”
iii. Government Claim
1. The executive has the power to detain ANY enemy combatant and that U.S.
Citizens COULD BE enemy combatants
a. That they could hold an enemy combatant indefinitely without the
right to due process until after the armed conflict ended
iv. O’Connor J. Decision
1. AUMF (Authorized Used of Military Force Post 911) is a sufficient statute
under the meaning of 4001(a)
a. However, 5th Amendment “Due Process” gives a Citizen held in
the U.S. as an enemy combatant, the right to contest the detention
before a neutral decision maker
i. Rejects government claim that Separation of Powers and
Limited ability of courts in matters of military decision
making ought to restrict the judgment to whether there was
legal authorization for detention
2. Even when detained in the field of battle the U.S. still has to show that the
person is validly detained, thus Habeas Corpus is still appropriate
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a.
Filing of Mobbs Declaration in combination with interrogation is
NOT sufficient to satisfy the requirement of charging a party
3. Because these are times of war, when in front of the decision maker the
government is NOT required to abide by ALL the same procedures as a
criminal trial
a. Hearsay can be used and there is a presumption in favor of the
government (Hamdi has burden of proof)
i. This shows that O’Connor wanted to find a middle ground
4. Stated that when it came to Due Process the court should adopt the
Matthews Test
a. Court should consider the private interest that will be affected by
the official action
b. Court should consider What type of procedural safeguard must be
provided by the detaining authority to protect the interests of the
private person
c. Court should consider the interest of the government
5. Based on the Matthews Case Hamdi’s Due Process should be
a. A citizen-detainee seeking to challenge his specification as an
enemy combatant must receive NOTICE of the factual basis for his
classification & a FAIR OPPORTUNITY TO REBUT the
government’s factual assertions before a NEUTRAL decision
maker
6. Rejects Article II Argument
a. A state of War is NOT a blank check for the President when it
comes to the rights of the Nations Citizens (Youngstown)
v. Souter J. Concurring in Part & Dissenting in Part
1. Agrees that the government does NOT have unconditional power to detain
Hamdi but disagrees that AUMF satisfied 4001(a) requirement
a. 4001(a) was written out of fear of WWII internment camp repetition
i. AUMF lacks any clear statement of intent to allow
detention
2. Agrees with Due Process given by O’Connor
3. “The Branch that is in Charge of Security should NOT be the branch that is
in Charge of Liberty, they have different responsibilities in our system and
here they are in conflict with each other”
vi. Scalia J. Dissent – FORMALIST
1. Government only has two options
a. Charge Hamdi and try him with treason
b. Congress must authorize the President to suspend Writ of Habeas
Corpus – Article I, § 9, Cl. 2
2. AUMF is insufficient for detention of citizens (Not Clear Enough)
3. Does not Agree with Plurality Due Process
a. The 5th Amendment provides the appropriate rights
4. Opinion only applicable to citizens detained in the U.S.
5. ***NOTE***
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a.
Barron thinks this is reminiscent of another Scalia opinion
(Morrison v. Olson) where he throught that Independent Counsel
laws would lead to politically motivated independent counsel laws
vii. Thomas J. Dissent
1. Hamdi was detained as an enemy combatant apprehended with Taliban
forces in Afghanistan
a. This falls under the War Powers of the Federal Government and
therefore the Writ of Habeas Corpus should fail
2. Due Process requires NOTHING MORE than a good faith executive
determination
a. An Executive acting pursuant to statutory and Constitutional
authority may, consistent with the Due Process Clause, unilaterally
decide to detain an individual IF the Executive deems this necessary
for public safety EVEN IF HE IS MISTAKEN!
3. This is NOT an area for the courts because they are not adequately able to
protect security interests
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