Book notes - Con law

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Chapter 1 The Federal Judicial Power
(1) The authority for judicial review
 The Constitution is silent as to whether the Supreme Court and other federal courts
have the authority to engage in such judicial review
 Authority for judicial review was first announced by SC in Marbury v. Madison in 1803
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Marbury v. Madison (1803)
o OUTCOME: Ruled in favor of Jefferson, denied Marbury relief
o ISSUE: Does the Supreme Court have original jurisdiction to issue writs of
mandamus?
 He was seeking DELIVERY of his commission.
 Marbury is asking the Secretary of State, James Madison, to give him his
commission. Jefferson said to Madison NO—we are not going to deliver
those commissions!
 Marbury was asking for a writ of mandamus.
 Marbury’s argument for the court’s jurisdiction (power to hear a case) was
in the Judiciary Act of 1789, Section 13. This establishes that the Supreme
Court has authority to issue a writ of mandamus.
 Although the case established the traditions of judicial review and a
litigable constitution on which the remainder of the constitutional law
restas, it also transformed the Supreme Court from an inconsistent institution
to an equipotent head of a branch of government.
o 4 key takeaways
 1. Judicial review of executive acts
 Establishes authority for judicial review of executive actions
 Only the political process is the check on the executive branch
 2. Article III is the ceiling of federal court jurisdiction
 Congress cannot expand the original jurisdiction of the SC
 Article III authorizes the maximum jurisdiction of federal courts
 3. Establishes authority for judicial review of legislative acts
 Does this by declaring unconstitutional a provision of a federal law,
the Judiciary Act of 1789, which the Court interprets as authorizing the
SC to exercise mandamus on original jurisdiction
 4. The Constitution is regulatory
 It controls and limits the powers of the three branches of the federal
government
o Has the applicant a right to the commission he demands?
 Yes, when the commission has been signed by the president, the
appointment is made; and that the commission is complete when the seal
of the US has been affixed to it by the secretary of the state.
 If there was right to commission, the Secretary of the State must deliver
commission.
 The Court was trying to avoid having to review the act of Congress.
o If he has a right, and that right has been violated do the laws of his country
afford him a remedy?
 It depends on the nature of the act
 Where the heads of departments are the political or confidential agents of
the executive, merely to execute the will of the president, or rather to act
in cases in which the executive possesses a constitutional or legal
discretion, nothing can be more perfectly clear than that their acts are
only politically examinable
But where a specific duty is assigned by law, and individual rights depend
upon the performance of that duty, it seems equally clear that the
individual who considers himself injured has a right to resort to the laws of
his country for a remedy
o Is he entitled to the mandamus he is applying for?
 A. The nature of the writ applied for
 Where he is directed by law to do a certain act affecting the absolute
rights of individuals, in the performance of which he is not placed
under the particular direction of the president, mandamus is
appropriate
o Can a statute in conflict in with the Constitution be the law of the land?
 No, because the Constitution is the Supreme law of the land—it is superior
to any other law (Article 6, Section II – the Supremacy Clause).
 The judge is saying our Constitution is the written (not to be changed)
Constitution, and in that document there are limits to the powers in each
branch.
 He’s trying to make a distinction between USA and Britain, who does
not have a written Constitution.
 None of Marshall’s arguments are in the Constitution.
 He invents the power of Judicial Review.
o Does a court have the authority to decide whether a law repugnant to the
constitution is void?
 Yes.
 Pg. 6 MOST IMPORTANT STATEMENT— It is emphatically the province
and duty of the judicial department to say what the law is.
 If we are the ones to determine the law, then those who apply the law
are those who must determine its validity.
 The judicial power of the US is extended to all cases arising under the
Constitution.
 It is also not entirely unworthy of observation, that in declaring what
shall be the supreme law of the land, the constitution itself is first
mentioned; and not the laws of the United States generally, but those
only which shall be made in pursuance of the constitution, have that
rank.
Writ of mandamus*a petition to a court asking it to order a government officer to
perform a duty
Declared the basic principle that federal judiciary is supreme in exposition of law of
the Constitution
Every state legislator and executive and judicial officer is solemnly committed by
oath, to support this Constitution
It is emphatically the province and duty of the judicial department to say what the
law is
Marbury’s Justifications/Arguments for Judicial Review
o The Constitution is written and has limitations
o It is up to the judges to apply and decide what the law is
o The Constitution gives to the courts the power to hear cases arising under
o The Supremacy Clause establishes that the Constitution is above any other law
of the land
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GPOLS:
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The province of the court is, solely, to decide on the rights of individuals,
not to inquire how the executive, or executive officers, perform duties in
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which they have a discretion. Questions in their nature are political, or
which are, by the C and laws, submitted to the executive, can never be
made in this court.
If Congress remains at liberty to give this court appellate J, where the C
has declared their J shall be original, and original J where the C has
declared it shall be appellate, the distribution of J, made in the C is form
w/o substance.
It is emphatically the province and duty of the judicial department to say
what the law is.
Authority for Judicial Review of State Judgments
 Martin v. Hunter’s Lessee (1816)
o OUTCOME: SC HAS AUTHORITY TO REVIEW STATE COURTS DECISIONS
o Facts: Two competing claims to land: (1) Martin claimed title based on
inheritance from a British citizen, US and England had two treaties protecting
rights of British citizens to own land, (2) Hunter claimed Virginia had taken
land before the treaties came into effect, thus Martin did not have claim to
property
o Justice argument for hearing case
 Constitution creates SC and gives Congress discretion whether to
create lower federal courts
 If Congress chose not to establish such tribunals, SC would be
powerless to hear any cases, except for the few fitting within its
original jurisdiction, unless it could review state court rulings
 Constitution presumes that the SC may review state court decisions
 Cohens v. Virginia (1821)
o OUTCOME: CRIMINAL DEFENDANTS COULD SEEK SC REVIEW WHEN THEY
CLAIMED THEIR CONVICTION VIOLATED CONSTITUTION
o Facts: Two brothers convicted of selling DC lottery tickets in violation of
Virginia laws
o Argument for hearing case
 State courts often could not be trusted to adequately protect federal
rights because in many states the judges are dependent for office
and for salary on the will of the legislature
o Reaffirmed Constitutionality of §25 of Judiciary Act and authority of SC to
review state court judgments
Judicial Review of State Judgments
Martin v. Hunter’s Lesee (1815) and Cohens v. Virginia (1821)
Arguments:
1. Structure of the Constitution
2. Parity: whether state courts are equal to federal courts in their ability
and willingness to protect deferral rights
3. Uniformity in the interpretation of federal law
(2) Limits on the Federal Judicial Power
 3 primary limits
o Interpretive*raise the question of how the Constitution should be interpreted
o Congressional*refer to the ability of Congress to restrict federal court
jurisdiction
o Justiciability*refer to a series of judicially created doctrines that limit the types
of matters that federal courts can decide
1. Interpretive Limits
 Issue of how courts should interpret Constitution
 Originalism
o Believe the Court’s discretion in interpreting Constitution be narrowly
circumscribed to limit the judicial power
o Democracy means rule by electorally accountable officials and judicial
review by unelected federal judges is inconsistent with this
o Limit unelected judges in a democratic society
o Constrain courts interpreting Constitution
o Court should find a right to exist in Constitution only if it is expressly stated in
text or was clearly intended by framers
o If Constitution is silent, it is for legislature unconstrained by courts to decide
law
o Constitution should evolve slowly by amendment
 Nonoriginalists
o Constitution should evolve by interpretation and not only amendment
o Go beyond set of references, and enforce norms not discoverable in four
corners of document
o Essential so Constitution does not remain static
o Evolve to meet needs of a society advancing technologically and morally
o Court can interpret Constitution to protect rights not expressly stated or clearly
intended
 District of Columbia v. Heller (2008)
o OUTCOME: Heller’s 2nd Amendment Constitutional right was violated, District
of Columbia cannot ban handgun possession in the home, and cannot
require homeowners to keep guns disabled, they should have them for the
purpose of self-defense
o Issue: Was Heller’s Second Amendment right violated when he was not
granted a license to have a handgun in his home, and is required to keep all
other guns disabled when in the home?
o Facts: DC generally prohibits possession of handguns (crime to carry
unregistered firearm, and registration of handgun is prohibited), chief of
police may issue a license for 1 year periods, DC law requires residents to
keep lawfully owned firearms unloaded and disassembled or bound by
trigger lock unless in place of business or being used for recreational activity
 Heller is DC special police officer authorized to carry while on duty,
applied for registration certificate wished to keep at home but DC
refused
 Filed suit in Federal District Court on 2nd amendment grounds to enjoin
(prohibit) city from enforcing bar on registration of handguns, licensing
requirement insofar as prohibiting carrying of firearm in home without
license, and trigger-lock requirement
o 2nd Amendment: A well regulated militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be
infringed
 Divided into 2 parts
 Prefatory clause - “A well regulated militia, being necessary to the
security of a free state”
o Does not limit but announces a purpose
o “Militia” = all able-bodied men, “well-regulated” = proper
discipline and training
“Security of a free state” = security of a free polity, NOT
security of each of the several states (dissents argument)
 Operative clause
o A. “Right of the People”
 Refers to individual rights not able to only be exercised
through participation in some corporate body
o B. “Keep and bear Arms”
 Arms are weapons not specifically designed for military
use and were not employed in a military capacity (just
as communication in first amendment applies to
modern communication today)
 “keep arms” = have weapons, “bear arms” = carrying of
weapons outside of an organized militia
o C. Meaning of Operative Clause: putting everything
together, meant o guarantee the individual right to possess
and carry weapons in case of confrontation
o BUT, there is limitations on this
 Limitation on the Amendment
 Prohibits the carrying of dangerous and unusual weapons
o Majority Opinion (Justice Scalia) and Heller: 2nd amendment interpreted to
mean, individual has right to possess firearm unconnected with service in
militia, and to use firearm traditionally for lawful purposes
 Court feels these two parts above are codified together to establish a
protection from having their right to arms taken away, so the same
thing that happened in England (having their right taken away)
doesn’t happen here
 Also backed by various states including arm-bearing rights in their
state constitutions after the 2nd Amendment passed
 Feels prohibiting handguns, the most preferred firearm in the nation to
keep and use for protection of one’s home and family, would fail
constitutional muster
o Dissenting opinion: 2nd amendment meant only right to possess and carry
firearm in connection with militia service
Justiciability Limits:
o Article III, §2 authorizes FCs to hear several types of “cases” and
“controversies.” The SCT has interpreted these words as giving rise to a series
of limits on the federal judicial power. These limits are frequently referred to as
justiciability doctrines. The justiciability doctrines are all judicially created limits
on the matters that can be heard in FCs. The SCT has declared that some of
these are “constitutional,” meaning that Congress by statute CANNOT
override them. The Court also has said that some of the doctrines are
“prudential,” meaning that they are based on prudent judicial administration
and can be overridden by Congress since they are not constitutional
requirements. These doctrines, by limiting the availability of FC review,
conserve judicial resources.
 Five major justiciability doctrines:
1. The prohibition against advisory opinions
2. Standing
3. Ripeness
4. Mootness
5. Political question doctrine
o
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In addition to the justiciability doctrines, the SCT has said that it would follow
certain “principles of avoidance” to ensure that it will reach constitutional
questions only when necessary.
(a) Prohibition of Advisory Opinions
o What are the characteristics that must be present in a lawsuit to avoid being an
advisory opinion?
o First, there must be an actual dispute between adverse litigants.
o Second, in order for a case to be justiciable and not an advisory opinion,
there must be a substantial likelihood that a federal court decision in favor
of claimant will bring about some change or have some effect.
(b) Standing: the second major and most important justiciability requirement.
o “In essence the question of standing is whether the litigant is entitled to
have the court decide the merits of the dispute or of particular issues.”
o There are several requirements that must be met in order for a plaintiff to
have standing.
1. The plaintiff must allege that he or she has suffered or imminently
will suffer an injury.
2. The plaintiff must allege that the injury is fairly traceable to the
defendant’s conduct.
3. The plaintiff must allege that a favorable federal court decision is
likely to redress the injury.
o In addition to these constitutional requirements, the Court has also
identified two major prudential standing principles.
1. A party generally may assert only his or her own rights and cannot
raise the claims of third parties not before this court.
2. A plaintiff may not sue as a taxpayer who shares a grievance in
common with all other taxpayers.
o
Limits on the Federal Judicial Review
 There are 3 major limits to the Federal Judicial Power:
o Interpretive Limits: How the Constitution should be interpreted
o Congressional Limits: To what extent may Congress restrict the jurisdiction
o DIDN’T GET THE THIRD ONE
Interpretive limits:
Why must the Constitution be interpreted?
1. Many important topics are not addressed in the Constitution at all.
2. Constitution is written in broad, open-textured language.
3. Constitution does not establish what interests are sufficient to override a constitutional
right.
Methods of Interpretation:
1. Originalism: when deciding constitutional issues, judges should limit to enforce norms that
are in the text of the Constitution or are clearly implicit from the framers intent.
o When the Constitution is silent, it is up to the legislature to decide what the law
should be.
o The meaning of a constitutional provision may only be changed by an
amendment.
What is the position of an originilast on gay marriage?
Will say no way were the framers thinking “gay marriage” when they wrote equal
protection in the 14th amendment clause—they were talking about blacks.
2. Non-Originalism: when deciding constitutional issues, judges may go beyond the text of
the Constitution.
--When the Constitution is silent, judges may interpret the Constitution to protect rights that
are not expressly stated or clearly intended.
--The meaning of a constitutional provision may evolve by interpretation.
Versions of Originalism:
1. Strict originilast believes that the Court must follow the literal text and the specific intent
of the drafters.
2. Moderate originilast are more concerned with the framers’ general purposes that with
their precise intentions.
3. Justice Scalia has advanced a different version of originalism: meaning is to be found in
the historical practices and understanding of the time, not in the views of the framers.
Versions of Non-Originalism:
o There are several versions of what should be looked at when deciding what should.
1. Tradition: Courts should protect a right only if there is a tradition of social recognition and
protection.
2. Process of government: Court’s primary role is to create a fair process of government,
but leave substantive value choices to majority decision-making.
3. Moral consensus in American society: Courts’ task is to identify and define values
regarded important as to be protected from majority.
Arguments in favor of Non-originalism:
1. Constitution should be able to evolve and not only by amendment to meet the need of
a changing society.
2. There is not an explicit and/or unique framers’ intent.
3. The framers did not intend their intent to govern the interpretation of the Constitution.
Where is it in the Constitution that the framers want us to follow their intent? NOWHERE.
District of Columbia v. Heller
--Right to bear arms in self-defense, against state laws, and hunting.
If Scalia was a strict originilast: he should have used the dictionary from the time & looked at the
intent of the framers by looking at the documents of the convention (legislative record).
o What were the discussions at the Constitutional Convention?
However, Scalia did not care what the legislative record says. He can get the substantive rights
from previous practices.
Stevens is more of an originilast here.
Justiciability:
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Art III: authorizes federal courts to hear several types of cases and controversies.
o The Supreme Court has interpreted these words as giving rise to a series of limit on
the federal judicial power.
o These limits are frequently referred to as justiciability doctrines.
Justiciability determines who can sue in federal court, when suit can be brought, and
what subject matter can be considered.
Justiciability Doctrines: are all judicially created limits on the matters that can be heard in
federal courts.
o All of the justiciability doctrines raise basic policy questions about the proper role
of the federal judiciary in a democratic society
o These matters include Constitutional and prudential.
o Constitutional: Congress by statute cannot override it. Interpretation of
Art. III, Section 2.
o Prudential limits: meaning that they are based on prudent judicial
administration and can be overridden by Congress since they are not
constitutional requirements. Although it is not a constitutional limitation,
the court has decided that prudent judicial administration militates
against judicial review
Main functions of Justiciability:
1. Make sure federal judiciary does not intrude in areas reserved for other branches;
a. Has everything to do with advisory opinions
2. Improve decision making by requiring concrete controversies; and
a. It is better for a court to have a real case in front f them because that person will
expose better for the court where the legal reasons behind the judgment or what
the judgment should be.
b. You can make a better legal determination when the people’s interests are at
stake.
c. Improves the decision making of the judges
3. Conserve judicial resources.
a. The Court will only take those cases that present a case or controversy.
There are 5 justiciability doctrines and all must be met for a FC to hear a case:
1. Advisory Opinions
2. Standing
3. Ripeness
4. Mootness
5. Political questions
(1)
o
o
Advisory Opinions:
Art. III, Section 2: The judicial interpretation of this clause has resulted in a long standing
prohibition on the federal courts:
o They cannot issue advisory opinions.
o Federal courts cannot render advice in theoretical matters.
For a federal court to find justiciable a claim, rather than advisory, two conditions must
exist:
1. An actual controversy between adverse parties.
2. A substantial likelihood that a ruling in favor of the claimant would have
some effect.
o Hayburn’s Case (1792)
o
o
o
The law allowed the secretary of war to change the
amount of the pension/or to deny it.
The court said that law is unconstitutional because
it renders our decision and advisory opinion.
Because there is no binding between the parties.
 Threatened the value of the federal
judiciary.
 Interferes with the power of the federal
courts to decide cases, in violation of Article
III and the principles of separations of
powers.
Justifications for prohibiting advisory opinions:
1. Separation of powers is maintained by keeping the courts out of the legislative
and executive process.
2. Judicial resources are conserved because advisory opinions might by requested
in many instances in which the law ultimately would not pass the legislature.
3. Helps ensure that cases will be presented to the Court in the terms of specific
disputes.
Plaut v. Spendthrift Farm (1995)
Facts: In 1991, the Supreme Court of the United States (Supreme Court) ruled that actions
brought under § 10(b) and Rule 10(b)(5) of the Act must be brought within one year of
discovering the facts leading to the violation and within three years of the violation itself. In
response, Congress amended the law to allow cases filed before the decision to go forward, if
they could have been brought under the previous law. Petitioner had brought suit prior to the
decision, but the suit was dismissed in accordance with the Supreme Court's ruling. Petitioner
attempted to resume prosecution of the dismissed case.
The law is retroactive—to pending and final cases
Congress is reviving cases that were already decided.
Procedural Posture: Petitioner investors sought review of the order from the United States Court of
Appeals for the Sixth Circuit, which denied petitioner's motion to reinstate its action against
respondent securities investment company, as the court found that § 27A of the Securities
Exchange Act, 15 U.S.C.S. § 78aa-1, was unconstitutional.
Issue: May Congress require Art III courts to reopen cases on which they have passed judgment?
Rule: Congress may not require the federal courts to reopen a case after a court has rendered
final judgment.
Holding: No.
 Congress may pass retroactive legislation that affects cases still pending appeal.
However, this amendment requires cases to resume prosecution after judgment has
been rendered.
 A judgment “conclusively resolves the case.” The statute in question offende this
postulate.
Overview: Petitioner investors previously brought an action against respondent securities
investment company for fraud and deceit in the sale and exchange of stock in violation of §
10(b) of the Securities Exchange Act of 1934, 15 U.S.C.S. § 78j(b) and Rule 10b-5 of the Securities
Exchange Commission, 17 C.F.R. 240. Petitioners' action was dismissed with prejudice and
became final after petitioner did not file an appeal. Subsequently, § 27A of the Securities
Exchange Act of 1934, 15 U.S.C.S. § 78aa-1, was codified. Petitioners then sought to have their
action reinstated pursuant to § 27A. The district court found that the section required the
reinstatement of petitioners' action, yet found the section to be unconstitutional and denied
petitioners' motion, which was affirmed by the appellate court. After granting certiorari, the
Court found § 27A to be unconstitutional and affirmed the decision of the lower court. Section
27A, by retroactively commanding federal courts to reopen final judgments, violated the
fundamental principle that a judgment conclusively resolves the case. Thus, the separation of
powers principle was violated by § 27A, when Congress codified the section.
Outcome: The court affirmed the lower court's finding that a provision of the Act was
unconstitutional. The provision required the federal court to reopen petitioner investors' action
against respondent investment company for violations of Securities Act that had previously been
dismissed with prejudice and became final after petitioner did not appeal. Thus Congress, in
codifying the provision, violated the separation of powers principle.
Notes from the case:
 Petitioners contend: that congress can always revise the judgment of Art III courts in one
sense: When a new law makes clear that it is retroactive, an appellate court must apply
that law in reviewing judgments still on appeal that were rendered before the law was
enacted, and must alter the outcome accordingly.
 A judicial decision becomes the last word of the judicial department with regard to a
particular case or controversy, and Congress may not declare by retroactive legislation
that the law applicable to that very case was something other than what the courts said
it was.
 Section 27A(b) is unconstitutional to the extent that it required federal courts to reopen
final judgments entered before its enactment.
JUSITICIABILITY
Art. III authorizes federal courts to hear several types of cases and controversies.
o The SCt has interpreted these words as limiting the power of the federal judiciary
o These limits are known as justiciability doctrines
o Justiciability determines who can be sued in federal court, when a suit can be brought,
and what subject matter can be considered.
Separation of powers as a limit on Congress’ authority:
 The primary Supreme Court decision finding a federal law unconstitutional on the
grounds that it violates separation of powers is US v. Klein
o
United States v. Klein (1871):
Procedural Posture: Defendant, the United States, appealed judgment from the
Court of Claims, which awarded the proceeds of deceased's cotton, which was abandoned to
the treasury agents of the United States during the Civil War, to plaintiff, deceased's
administrator.
Overview: Deceased had done acts considered to be acts in aid of the rebellion during the Civil
War. He had abandoned cotton to agents of the Treasury Department, who sold it and placed
the proceeds into the Treasury of the United States. After the war, the deceased took an
amnesty oath which would afford him a pardon and the restoration of his property pursuant to a
congressional provision. The Court of Claims pronounced him entitled to a judgment for the net
proceeds in the treasury and, subsequently, the United States appealed. On appeal, the Court
affirmed, holding that title to the proceeds of the property which came to the possession of the
government by capture or abandonment was in no case divested out of the original owner. The
Court concluded that (1) the congressional provision improperly denied the Court appellate
jurisdiction regarding decisions by the Court of Claims based on such pardons and (2) the
congressional provision infringed the President's constitutional power to grant pardons.
ISSUE: Is the statute in question a valid exercise of congressional authority under the Exceptions
and Regulations Clause of the Constitution?
RULE: Although Congress has the power to limit the appellate jurisdiction of the federal courts, it
may not use this power to effectively prescribe a rule for the decision of cases before the courts.
HOLDING: No
 By requiring the courts to make a specific finding of fact in a case over which the court
has jurisdiction and then removing the court’s jurisdiction after the finding, Congress is not
limiting jurisdiction, but rather prescribing a rule of decision for the courts.
 Congress impaired the presidential pardons by requiring that they be inadmissible as
evidence in these cases.
Outcome: The Court affirmed the decision to award the administrator the proceeds of
deceased's cotton.
Notes from the case:
 In 1893- Congress adopted a statute providing that individuals whose property was
seized during the Civil War could recover the property, or compensation for it, upon
proof that they had not offered aid or comfort to the enemy of the war.
 Supreme Court held that a presidential pardon fulfilled the statutory requirement of
demonstrating that an individual was not a supporter of the rebellion.
 In response to this decision and frequent pardons issued by the president, Congress
quickly adopted a statute providing that a pardon was inadmissible as evidence in a
claim for return of seized property.
 Moreover, the statute provided that a pardon without an express disclaimer of guilt, was
proof that the person aided the rebellion and would deny the federal courts jurisdiction
over the claims.
 “Proof of such pardon… the jurisdiction of the court in the case shall cease, and the
court shall forthwith dismiss the suit of such claimant.”
 Court of Claims in 1855- purpose of relieving Congress and protecting the government by
regular investigation, and benefiting the claimants by affording them a certain mode of
examining and adjudicating upon their claims.
 The court has jurisdiction of the cause to a given point; but when it ascertains that a
certain state of things exists, its jurisdiction is to cease and it is required to dismiss the
cause for want of jurisdiction.
 “The Supreme Court shall have appellate jurisdiction both as to law and fact, with such
exceptions and under such regulations as the Congress shall make.”
 The rule prescribed is also liable to just exception as impairing the effect of a pardon,
and thus infringing the constitutional power of the Executive.
 It is the intention of the Constitutional that each of the great co- ordinate departments of
the government: Leg, Ex, and Judicial- shall be, independent of the others.
 To the executive alone, is intrusted the power of pardon; and it is granted without limit.
 Pardon includes amnesty. It may be granted on conditions.
Justiciability Limits:
Art III: authorizes federal courts to hear several types of cases and controversies.
The Supreme Court has interpreted these words as giving rise to a series of limit on the
federal judicial power.
 These limits are frequently referred to as justiciability doctrines.
 Justiciability Doctrines: are all judicially created limits on the matters that can be heard in
federal courts.
o All of the justiciability doctrines raise basic policy questions about the proper role
of the federal judiciary in a democratic society
o These matters include Constitutional and prudential.
 Constitutional: Congress by statute cannot override the, interpretation of
Art. III section 2
 Prudential: meaning that they are based on prudent judicial
administration and can be overridden by Congress since they are not
constitutional requirements.
 Congress can override it
 Although it is not a constitutional limitation, the court has decided
that prudent judicial administration militates against judicial review
o It is very important to distinguish between constitutional and prudential
o 5 major justiciability doctrines:
1. Advisory opinions
2. Standing
3. Ripeness
4. Mootness
5. Political question doctrine.
 All must be met for any federal court, at any level, to hear a case.
MAIN FUNCTIONS:
1. Make sure federal judiciary does not intrude in areas reserved for the other
branches
2. Improve decision making by requiring concrete controversies
a. Is is better for a court to have a P that really has suffered injury to fight
against a D that the P says harmed him [CONCRETE]
i. 2 persons fighting a legal point
3. Conserve judicial resources
a. We are not going to let everyone come to court and fight a case
i. Only take cases that actually present a case or controversy
The Court developed, for its own governance in the cases confessedly within its jurisdiction, a
series of rules under which it has avoided passing upon a large part of all the constitutional
questions pressed upon for decision:
1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary,
proceeding, declining because to decide such questions “is legitimate only in the last
resort, and as a necessity in the determination of real, earnest and vital controversy
between individuals. It never was the thought that, by means of a friendly suit, a party be
beaten in the legislature could transfer to the courts an inquiry as to the constitutionality
of the legislative act.”
2. The Court will not: anticipate a question of constitutional law in advance of the necessity
of declining it. It is not the habit of the court to decide questions of a constitutional
nature unless absolutely necessary in a decision of the case.
3. The Court will not formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.
4. The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed
of. This rule has found most varied application. Thus, if a case may be decided on either


of 2 grounds, ne involving a constitutional question, the other a question of statory
construction or general law, the Court will decide on the latter. Appeals from the highest
court of a state challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an independent state
ground.
5. The Court will not pass upon the validity of a statute upon complaint of 1 who fails to
show that he is injured by its operation. Among the many applications of this rule, none is
more striking that the denial of the right of challenge to one who lacks a personal or
property right. Thus, the challenge by a public official interested only in the performance
of his official duty will not be entertained.
6. The Court will not pass on the constitutionality of a statute at the instance of one who has
availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain
whether a construction of the statute is fairly possible by which the question may be
avoided.
(A) PROHIBITIONS OF ADVISORY OPINIONS:
 The core of Art III’s requirements for cases and controversies is that federal courts
cannot issue advisory opinions.
 Characteristics that must be present in a lawsuit to avoid being an advisory opinion:
o there must be an actual dispute between adverse litigants
o there must be a substantial liklihood that a federal court decision
in favor of a claimant will bring about some change or have some
effect.
 The three departments of the government… being in certain respects, are
considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to.
ADVISORY OPINIONS—
o An opinion by a court or a commission like an election commission that does not have
the effect of adjudicating a specific legal case, but merely advises on the
constitutionality or interpretation of a law
o Art III Sec 2: The judicial interpretation of this clause has resulted in a long standing
prohibition on the federal courts:
o They cannot issue advisory opinions
o Federal courts cannot render advice in theoretical matters.
o For a federal court to find justiciable a claim, rather than advisory, 2 conditions must exist:
o An actual controversy between adverse parties
o A substantial liklihood that a ruling in favoe of the claimant would have some
effect.
Hayburn’s Case (1792)
o Veteran has pension claim
o Court awards pension to veteran $150 a month
o The law allowed the Secretary of war [executive power] award or change pension.
o The court says he should not be allowed to do so.
o
Contradicts branches because it changes the decision of the judicial branch—judicial
branch saying since you changed my decision, it does not matter.
Plaut v. Spendthrift Farm (1995)
Procedural Posture: Petitioner investors sought review of the order from the United States Court of
Appeals for the Sixth Circuit, which denied petitioner's motion to reinstate its action against
respondent securities investment company, as the court found that § 27A of the Securities
Exchange Act, 15 U.S.C.S. § 78aa-1, was unconstitutional.
ISSUE: May Congress require Art III courts to reopen cases on which they have passed judgment?
RULE: Congress may not require the federal courts to reopen a case after a court has rendered
final judgment.
HOLDING: No.
 Congress may pass retroactive legislation that affects cases still pending appeal.
However, this amendment requires cases to resume prosecution after judgment has
been rendered.
 A judgment “conclusively resolves the case.” The statute in question offende this
postulate.
Overview: Petitioner investors previously brought an action against respondent securities
investment company for fraud and deceit in the sale and exchange of stock in violation of §
10(b) of the Securities Exchange Act of 1934, 15 U.S.C.S. § 78j(b) and Rule 10b-5 of the Securities
Exchange Commission, 17 C.F.R. 240. Petitioners' action was dismissed with prejudice and
became final after petitioner did not file an appeal. Subsequently, § 27A of the Securities
Exchange Act of 1934, 15 U.S.C.S. § 78aa-1, was codified. Petitioners then sought to have their
action reinstated pursuant to § 27A. The district court found that the section required the
reinstatement of petitioners' action, yet found the section to be unconstitutional and denied
petitioners' motion, which was affirmed by the appellate court. After granting certiorari, the
Court found § 27A to be unconstitutional and affirmed the decision of the lower court. Section
27A, by retroactively commanding federal courts to reopen final judgments, violated the
fundamental principle that a judgment conclusively resolves the case. Thus, the separation of
powers principle was violated by § 27A, when Congress codified the section.
Outcome: The court affirmed the lower court's finding that a provision of the Act was
unconstitutional. The provision required the federal court to reopen petitioner investors' action
against respondent investment company for violations of Securities Act that had previously been
dismissed with prejudice and became final after petitioner did not appeal. Thus Congress, in
codifying the provision, violated the separation of powers principle.
Notes from the case:
 Petitioners contend: that congress can always revise the judgment of Art III courts in one
sense: When a new law makes clear that it is retroactive, an appellate court must apply
that law in reviewing judgments still on appeal that were rendered before the law was
enacted, and must alter the outcome accordingly.
 A judicial decision becomes the last word of the judicial department with regard to a
particular case or controversy, and Congress may not declare by retroactive legislation
that the law applicable to that very case was something other than what the courts said
it was.
 27A(b) effects a clear violation of the separation of powers. It is, retroactive legislation.
That is, legislation that prescribes what the law was at an earlier time, when the act
whose effect is controlled by the legislation occurred Section 27A(b) is unconstitutional to the extent that it required federal courts to reopen

final judgments entered before its enactment.
Pg. 44 Congress can change statute of limitations and it will effect pending cases. Why?
Because it is not finalo No problem of separation of powers
o It is true, as petitioners contend, that congress can always revise the judgment of
Article III courts in one sense: When a new law makes clear that it is retroactive,
an appellate court must apply that law in reviewing judgments still on appeal
that were rendered before the law was enacted, and must alter the outcome
accordingly.
 The work of the Supreme Court is not advisory in nature
(2)



STANDING:
Standing: the second major judiciability requirement.
o Capacity of a party to bring suit in court
o It is the determination of whether a specific person is the proper party to bring a
matter to the court for adjudication.
o Who is the plaintiff?
o You have to have standing when you file and when you appeal
In order for a plaintiff to have standing:
o Plaintiff must allege that he or she has suffered or imminently will suffer an injury
o The plaintiff must allege that the injury is fairly traceable to the defendant’s
conduct.
o The plaintiff must allege that a favorable federal court decision is likely to redress
the injury.
The court also has identified 2 major prudential standing principles; (Congress may
override prudential limits by statute.)
1. Party mat assert only his or her own rights and cannot raise the claims of 3 rd
parties not before the court.
2. A plaintiff may not sue as a taxpayer who shares grievance in common with
all other taxpayers.
Standing General Principles:
-
-
It is the determination of whether a specific person is the proper party to bring a matter
to the court for adjudication.
Standing requirements are meant to police the boundary between law and politics by
requiring that those challenging governmental actions have a particular legal grievance
rather than an abstract policy dispute.
The party invoking federal court jurisdiction has the burden to satisfy the standing
components.
Because standing is jurisdictional, federal courts can raise it on their own, and it may be
challenged at any point in the federal court proceeding.
Standing Purposes:
1.
2.
3.
4.
5.
Ensure that controversies are based on concrete facts
Ensures vigorous advocacy
Promotes judicial restraint
Limits the quantity of litigation
Ensuring that people will raise only their own rights and concerns and that people cannot
be intermeddlers trying to protect others who do not want the protection offered.
Standing Requirements:
Constitutional Requirements:
1. Injury in fact: Has plaintiff suffered some actual injury?
2. Causation: Is the injury “fairly traceable” to the challenged action?
3. Redressability: Will a favorable decision redress the injury?
Prudential requirements:
1. Prohibition against generalized grievances
2. Limitation on third-party standing
Standing: Injury in fact
- The injury in fact requirement means that a plaintiff must show that he or she personally
has suffered or will suffer some injury.
- Definition: an invasion of a legally protected interest which is concrete and particularized
and actual or imminent, not conjectural or hypothetical.
-
Three important questions arise in implementing the injury requirement:
1. What types of injuries are sufficient for standing?
2. When harm is actual or imminent?
3. What does it mean to say the plaintiff must allege that a favorable federal court
decision is likely to redress the injury?
-
Types of injuries:
1. Injury to a constitutional right
2. Injury to a common law right
3. Injury to a statutory right
4. Injury to a personal interest
a. Allen v. Wright (1984).
Allen v. Wright (1984)
Procedural Posture: Petitioner private schools obtained a writ of certiorari to review a judgment
of the United States Court of Appeals for District of Columbia Circuit, which held that
respondents, parents of black public school students in districts undergoing desegregation, had
standing to challenge the procedures of the Internal Revenue Service (INS) regarding the
granting of tax-exempt status to private schools under Rev. Proc. 75-50, 1975-2 C.B. 587.
Respondents allege two injuries in their complaint to support their standing to bring this lawsuit.
First, they say that they are harmed directly by the mere fact of Government financial aid to
discriminatory private schools. Second, they say that the federal tax exemptions to racially
discriminatory private schools in their communities impair [753] their ability to have their public
schools desegregated.
ISSUE: Does the harm alleges by the respondents fulfill the constitutional requirement of
standing?
RULE: Art III standing required that a plaintiff allege a harm directly traceable to specific action
on the part of the defendant.
** The IRS policy requires that a school applying for tax-exempt status show that it "admits the
students of any race to all the rights, privileges, programs, and activities generally accorded or
made available to students at that school and that the school does not discriminate on the basis
of race in administration of its educational policies, admissions policies, scholarship and loan
programs, and athletic and other school-administered programs.
HOLDING: No
 O’Connor- as asserted right to have the government act in accordance with the law is
insufficient to grant jurisdiction. Extending this line of argument, she says- a black person
in Hawaii could challenge the grant of a tax exemption to a racially discriminatory
school in Maine. Furthermore, the issue of funding the schools does not harm the
respondents directly.
 2nd allegation- does not present harm, that the respondents’ children are being denied
an integrated educational experience. However, the IRS’s actions are too far attenuated
from this harm. There is no evidence that denying tax- exempt status to the private
schools in question would result in a more integrated public education system.
Overview: Respondents challenged the IRS guidelines and procedures with respect to granting
tax-exempt status to private schools under Rev. Proc. 75-50, 1975-2 C.B. 587. Respondents
alleged that the IRS violated their rights by granting tax-exempt status to discriminatory private
schools. The district court dismissed the action for lack of standing. The court of appeals
reversed, holding that respondents had standing and enjoined the IRS from granting tax-exempt
status to any racially discriminatory schools. Petitioners sought review. The Court granted
certiorari, and reversed the court of appeals' ruling and vacated the injunction. The first basis for
standing alleged by respondents, that they were harmed directly by the mere fact of
government financial aid to discriminatory private schools, did not constitute a judicially
cognizable injury and second basis, that their children were being deprived of an opportunity to
receive an education in racially integrated schools, although a judicially cognizable injury, was
not fairly traceable to the government conduct that respondents challenged as unlawful.
Outcome: The court of appeals' ruling was reversed and an injunction enjoining the IRS from
granting tax-exempt status to discriminatory private schools, was vacated. Respondents did not
have standing to sue as their first basis for standing failed because it did not constitute a
judicially cognizable injury and their second basis failed as the alleged injury was not fairly
traceable to government conduct that respondents challenged as unlawful.
The first basis for standing alleged by respondents, that they were harmed directly by the mere
fact of government financial aid to discriminatory private schools, did not constitute a judicially
cognizable injury and second basis, that their children were being deprived of an opportunity to
receive an education in racially integrated schools, although a judicially cognizable injury, was
not fairly traceable to the government conduct that respondents challenged as unlawful.
2 theories of 1st Injury:
The first basis for standing alleged by respondents, that they were harmed directly by the mere
fact of government financial aid to discriminatory private schools, did not constitute a judicially
cognizable injury
 Theory 1: Stigmatizing. By the government not taking action then you are stigmatizing
“African American’s.”
Parents of black public school children who allege that the government is unlawfully granting
tax exemptions to racially discriminatory schools do not have standing to litigate their claims
based on the stigmatizing injury caused by racial discrimination since they do not allege a
stigmatic injury suffered as a direct result of having personally been denied equal treatment.
o Court says: not enough to have standing because cant bring it about as a whole;
if stigma is injury then the whole race could bring suit

Theory 2: Government violating the law.
o Court says: no good to have standing
The Second basis, that their children were being deprived of an opportunity to receive an
education in racially integrated schools, although a judicially cognizable injury, was not fairly
traceable to the government conduct that respondents challenged as unlawful
 Difficulty: how to plead the injury
 Injury: kids cannot go to desegregated schools
 Court: yes injury
Outcome: The court of appeals' ruling was reversed and an injunction enjoining the IRS from
granting tax-exempt status to discriminatory private schools, was vacated. Respondents did not
have standing to sue as their first basis for standing failed because it did not constitute a
judicially cognizable injury and their second basis failed as the alleged injury was not fairly
traceable to government conduct that respondents challenged as unlawful.
- The Court could mean 1 of 3 things by its invocation of the separation of powers.
1. It could simply be expressing the idea that if the plaintiff lacks Art III standing
to bring a lawsuit, then there is no case or controversy within the meaning of
Art III and hence the matter is not within the area of responsibility assigned to
the Judiciary by the Constitution.
2. The Court could be saying that it will require a more direct causal connection
when it is troubled by the separation of powers implications of the case
before it. That approach confuses the standing doctrine with the justificiability
of the issues that respondents seek to raise.
3. The Court could be saying that it will not treat as legally cognizable injuries
that stem from an administrative decision concerning how enforcement
resources will be allocated.
Notes from the case:
 Like the prudential component, the constitutional component of standing doctrine
incorporates concepts concededly not susceptible of precise definition.
 Determining standing in a particular case may be facilitated by clarifying principles or
even clear rules developed in prior cases.
 The idea of separation of powers that underlies standing doctrine explains why out cases
preclude the conclusion that respondents’ alleged injury “fairly can be traced to the
challenged action” of the IRS.
 When transported into the Art III context, that principle, grounded as it is in the idea of
separation of powers, counsels against recognizing standing in a case brought, not to
enforce specific legal obligations whose violation works a direct harm, but to seek a
restructuring of the apparatus established by the Executive Branch to fulfill its legal duties.
-
The Court could mean 1 of 3 things by its invocation of the separation of powers.
4. It could simply be expressing the idea that if the plaintiff lacks Art III standing
to bring a lawsuit, then there is no case or controversy within the meaning of
Art III and hence the matter is not within the area of responsibility assigned to
the Judiciary by the Constitution.
5. The Court could be saying that it will require a more direct causal connection
when it is troubled by the separation of powers implications of the case
before it. That approach confuses the standing doctrine with the justificiability
of the issues that respondents seek to raise.
6. The Court could be saying that it will not treat as legally cognizable injuries
that stem from an administrative decision concerning how enforcement
resources will be allocated.
Massachusetts v. Environmental Protection Agency (2007)
Procedural Posture: Petitioners, environmental organizations and state and local governments,
brought an action challenging the determination of respondent Environmental Protection
Agency (EPA) not to regulate motor vehicle emissions which allegedly contributed to global
warming. Upon the grant of a writ of certiorari, petitioners appealed the judgment of the U.S.
Court of Appeals for the District of Columbia Circuit which upheld EPA's determination.
Issue: Whether the EPA has the statutory authority to regulate greenhouse gas emissions from
new motor vehicles; and if so whether its states reasons for refusing to do so are consistent with
the statute.
Rule: A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful
conduct and likely to be redressed by the requested relief.
- States are not normal litigants for the purpose of invoking Federal jurisdiction
Overview: The EPA argued that the Clean Air Act (CAA) did not authorize the EPA to address
global climate change and that, in any event, executive policy specifically addressing global
warming warranted the EPA's refusal to regulate in such area. The U.S. Supreme Court first held
that petitioners had standing to challenge EPA's denial of their rulemaking petition since at least
one petitioner state properly asserted a concrete injury from the potential further loss of its
coastal land, much of which was owned by the state, from rising sea levels caused by climate
change. Further, because greenhouse gases were clearly within the CAA's broad definition of
an air pollutant, the EPA had the statutory authority to regulate the emission of such gases from
new motor vehicles, and there was no showing of any congressional intent to bar the EPA from
addressing global warming. Also, it was undisputed that global warming threatened serious
harms, and policy considerations were irrelevant to the EPA's statutory mandate to determine
whether the greenhouse gases contributed to global warming and whether motor vehicle
emissions of such gases actually or potentially endangered public health or welfare.
Outcome: The judgment upholding EPA's determination to decline rulemaking was reversed,
and the case was remanded for further proceedings.
Notes on the case:
 Congress has the power to define injuries and articulate chains of causation that will give
rise to a case or controversy where none existed before.
 In exercising this power, 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 to suit.
 EPA’s argument: because greenhouse gas emissions inflict widespread harm, the
doctrine of standing presents an insuperable jurisdictional obstacle.
 The Court does not agree
o “The gist if the question of standing is whether petitioners have “such a personal
stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so largely
depends for illumination.”
 Only one of the petitioners needs to have standing to permit us to consider the petition
for review.
 States are not normal litigants for the purposes of invoking federal jurisdiction.
 When a state enters the Union it surrenders certain sovereign prerogatives.
INJURY:
- Injury is a core requirement of Article III in order for there to be a case or controversy
- It must be an injury that the plaintiff personally has suffered or imminently will suffer
-
The injury the Court looks to is the asserted loss of land.
Conclusion:
The Court contends that regulating domestic motor vehicle emissions- to some
indeterminate degree, given events elsewhere- the Court never explains why that makes it
likely that the injury in fact- loss of land- will be redressed.
City of Los Angeles v. Lyons (1983)
Pg. 60
FACTS:
 Lyons filed a complaint for damages, injunction, and declaratory relief against the City of
Los Angeles and 4 of its police officers alleging that at 2AM Oct. 6, 1976 Lyons was
stopped by the defendant officers for a traffic or vehicle code violation and that
although Lyons offered no resistance or threat, the officers, without justification seized
Lyons and applied a chokehold rendering him unconscious and causing damage to his
larynx.
 Lyons failed to demonstrate a case or controversy with the City that would justify the
equitable relief sought.
 Lyons standing to seek the injunction requested depended on whether he was likely to
suffer future injury from the use of the chokeholds by the police officers.
 In order to establish an actual controversy in this case, Lyons would have had not only to
allege that he would have another encounter with the police but also to make the
incredible assertion either (1) that all police officers in LA always choke any citizens with
whom they happen to have an encounter, whether for the purpose of arrest, issuing a
citation or for questioning or (2) that the City ordered or authorized police officers to act
in such manner.
Could he prove that he is likely to suffer damages? NO.
Injury in fact: Harm actual or imminent?
1. Does this person suffer an injury? Yes, of course. He alleged that he suffered from a chokehold.
2. Is the injury actual or imminent? Actual. It is HAPPENING.
3. Has, that the plaintiff personally will suffer or has suffered.
- Lujan v. Defenders of Wildlife (see below).
Lujan v. Defenders of Wildlife (1992)
Pg. 62
 Challenge was brought to a rule promulgated by the Secretary of the Interior interpreting
Section 7 of the Endangered Species Act concerning when the federal government
could comply with the Endangered Species Act—only for actions taken in the US or on
high seas.
 Under the rule, the federal government would comply with the Act only for actions
 Respondents’ claim to injury is that the lack of consolidation with respect to certain
funded activities abroad “increases the rate of extinction of endangered and
threatened species.”





Past exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief… if unaccompanied by any continuing, present adverse
effects.”
Besides failing to show injury, the respondents failed to demonstrate redressability
[compensation for injuries]
The most obvious problem in the present case is redressability. Since the agencies
funding the projects were not parties to the case, the DC could afford relief only against
the Secretary: He could be ordered to revise his regulation to require consultation for
foreign projects.
A further impediment to redressability is the fact that the agencies generally supply only
a fraction of the funding for a foreign project.
The litigant must demonstrate that is has suffered a concrete and particularized injury
that is either actual or imminent, that the injury is fairly traceable to the defendant, and
that it is likely that a favorable decision will redress that injury.
DISSENT: Blackmun, O’Connor:
 Affidavits and deposition testimony- Kelly or Skilbred will soon return to project sites,
thereby satisfying the “actual or imminent” injury standard.
 By requiring a “description of concrete plane” or “specifications of when the some day
return will be”, the Court demands what is likely an empty formality.
United States v. Hays (1995)
 Gerrymandering: manipulating the boundaries of an electoral constituency so as to
favor one party or class
 Demonstrating the individualized harm our standing doctrine requires may not be easy in
the racial gerrymandering context, as it will frequently be difficult to discern why a
particular citizen was put in one district or another.
Federal Election Commn. V. Akins (1998):
 Congress, by statute could create a right to information and that the denial of such
information was an injury sufficient to satisfy Art III.
 Group of voters brought suit challenging a decision by the Federal Election Commission
that the American Israel Public Affairs Committee is not a political committee subject to
regulation and reporting requirements under the Federal Election Campaign Act of ‘71
 Court granted standing and concluded that Congress had created a right to
information about political committees and that the plaintiffs were denied the
information by virtue of the FEC’s decision
 Inuury- inability to obtain information.
CAUSATION AND REDRESSABILITY:
ALLEN and LUJAN make it clear that there are 2 other constitutional requirements for standing:
1. The plaintiff must allege and prove that the defendant caused the harm so that it
is likely that a favorable court decision will remedy the injury
2. Causation and redressability- distinct constitutional requirements and obviously
interrelated
 On the one hand, it can be argues that this requirement simply implements the
prohibition against advisory opinions; if a federal court decision will have little effect, if it
will not redress the injuries then it is an advisory opinion.
 On the other, it can be argues that causation and redressability are inappropriate
determinations to make on the basis of the pleadings.
Standing: causation

Causation examines the connection between the alleges injury and defendant’s
challenged behavior
1. Is the injury fairly traceable to defendant’s conduct?
2. Did defendant’s alleged action cause plaintiff’s injury?
3. Would plaintiff continue to enjoy her interest but for defendant’s conduct?
Standing: Redressability
 Deals with the remedy
 Redressability considers whether granting the remedy requested by the plaintiff would
address the alleged harm
Duke Power Co v. Environmental Study Group:
 But for the Price- Anderson Act the nuclear plant will not be built and the injury will not
happen.
 Court found standing to exist; injuries= exposure to radiation, thermal pollution, and fear
of a major nuclear accident
 Court Price- Anderson Act- constitutional
PRUDENTIAL STANDING REQUIREMENT:
1. Prohibition of 3rd party standing
a. Even when the plaintiff has alleged injury sufficient to meet the case or
controversy requirement, the Court has held that the plaintiff generally must
assert his own legal rights and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties.
b. The Sct has recognized exceptions to this requirement—where a P who meets the
other standing requirements may present the claims of a third party.
2. Prohibition of generalized grievances


Prudential requirements are judicially created
The difference between prudential requirement and standing requirements of injury,
causation, and redressability—is that congress, by statute, can overrule the prudential
requirements because they are not derived from the Constitution, but instead from the
Court’s view of prudent judicial administration.
Limitation on 3P standing:
 The prohibition against 3P standing means that a plaintiff cannot assert injuries suffered
by a 3P who are not before the court
o Tim cannot go to the court and file a lawsuit on behalf of Sarah’s rights being
infringed
Reasons for the prohibition:
o Court should not adjudicate rights unnecessarily
o The rights’ holder is usually the best defender of her rights
 The individual seeking to advocate the rights of 3Ps must meet the constitutional standing
requirements of injury, causation and redressability
3P standing: exceptions
1. Close relationship between plaintiff and 3P
2. Where the 3P is likely to be able to sue
3. Overbreadth doctrine
 When trying to apply for exception, P must apply to injury, causation, redressability
Singleton V. Wulff (1976):
 The United States Supreme Court has distinguished two distinct standing questions in prior
cases, and they are these: First, whether the plaintiff-respondents allege "injury in fact,"
that is, a sufficiently concrete interest in the outcome of their suit to make it a case or
controversy subject to a federal court's U.S. Const. art. III jurisdiction, and, second,
whether, as a prudential matter, the plaintiff-respondents are proper proponents of the
particular legal rights on which they base their suit.
 Ordinarily, one may not claim standing in the United States Supreme Court to vindicate
the constitutional rights of some third party. Like any general rule, however, this one
should not be applied where its underlying justifications are absent. The Supreme Court
has looked primarily to two factual elements to determine whether the rule should apply
in a particular case. The first is the relationship of the litigant to the person whose right he
seeks to assert. If the enjoyment of the right is inextricably bound up with the activity the
litigant wishes to pursue, the court at least can be sure that its construction of the right is
not unnecessary in the sense that the right's enjoyment will be unaffected by the
outcome of the suit. Furthermore, the relationship between the litigant and the third
party may be such that the former is fully, or very nearly, as effective a proponent of the
right as the latter.
 When determining the ability of a litigant to bring the claim of a third party, the second
factual element to which the United States Supreme Court looks is the ability of the third
party to assert his own right. Even where the relationship is close, the reasons for requiring
persons to assert their own rights will generally still apply. If there is some genuine obstacle
to such assertion, however, the third party's absence from court loses its tendency to
suggest that his right is not truly at stake, or truly important to him, and the party who is in
court becomes by default the right's best available proponent.
 The matter of what questions may be taken up and resolved for the first time on appeal is
one left primarily to the discretion of the courts of appeals, to be exercised on the facts
of individual cases. Certainly there are circumstances in which a federal appellate court
is justified in resolving an issue not passed on below, as where the proper resolution is
beyond any doubt or where injustice might otherwise result.
 Court concludes that generally it is appropriate to allow a physician to assert the rights of
women patients as against governmental interference with the abortion decision.



The injury is to the doctors- not getting paid for the abortions they are performing
The right is of their patients: right to an abortion
The court stand because of their close relationship that obtains the right itself, the doctors
allowed to bring the suit
o Obstacles:
i. The woman may be chilled from such assertion by a desire to protect the
very privacy of her decision from the publicity of a court suit
ii. Imminent mootness, of any individual woman’s claim
Barrows v. Jackson (1953):
 Barrows- white person who signed a racially restrictive covenant, was sued for breach of
contract for allowing nonwhites to occupy the property
 Barrows argues- rights of blacks, who were not parties to the lawsuit, to be free from
discrimination.
 Court allowed 3P standing, permitting the white defendant to raise the interests of blacks
to rent and own the property in the community


Court stated: it would be difficult if not impossible for the persons whose rights are
asserted to present their grievance before the court.
Because blacks were not parties to the covenant, they had no legal basis for
participating in the BOC suit.
Craig v. Boren (1976):
 Oklahoma law permitted women to buy 3.2% beer at age 18, but men couldn’t until 21
 Bartender challenged the law on behalf of male costumer btw age 18 and 21
 Injury: economic loss
 Court allowed the bartender standing to assert the rights of his customer. Vendors and
those in like positions have been uniformly permitted to resist efforts at restricting their
operations by acting as advocates for the right of 3rd parties who seek access to their
market or function.
Gilmore v. Utah (1976)
 Gilmore sentenced to death but chose not to pursue habeas corpus [writ for its object to
bring a person before a court] relief in federal court
 Mother sued for a stay of execution on his behalf
 Court issued per curiam [an opinion issued from the name of the court that does not
identify any specific judge who may have written the opinion] and said that the
defendant had waived his rights by not pursuing them
 Burger in concurring opinion: mother should be denied standing
Elk Grove Unified School Dist v. NewDow (2004)
 Pledge of Allegiance at school
 Newdow- atheist whose daughter participated in exercise each day at school
 “under God”- Newdow views the Allegiance as a religious indoctrination of his child that
violates the 1st Amendment
 Court of Appeals: agreed
 Supreme Court reverses
 The command to guard jealously and exercise rarely the United States Supreme Court's
power to make constitutional pronouncements requires strictest adherence when
matters of great national significance are at stake. Even in cases concededly within the
Supreme Court's jurisdiction under Article III, the Supreme Court abides by a series of rules
under which the Supreme Court has avoided passing upon a large part of all the
constitutional questions pressed upon the Supreme Court for decision. Always the
Supreme Court must balance the heavy obligation to exercise jurisdiction against the
"deeply rooted" commitment not to pass on questions of constitutionality unless
adjudication of the constitutional issue is necessary.
 The United States Supreme Court's standing jurisprudence contains two strands: Article III
standing, which enforces the United States Constitution's case or controversy
requirement, and prudential standing, which embodies judicially self-imposed limits on
the exercise of federal jurisdiction. The Article III limitations are familiar: The plaintiff must
show that the conduct of which he complains has caused him to suffer an "injury in fact"
that a favorable judgment will redress
 Although the United States Supreme Court has not exhaustively defined the prudential
dimensions of the standing doctrine, the Supreme Court has explained that prudential
standing encompasses the general prohibition on a litigant's raising another person's
legal rights, the rule barring adjudication of generalized grievances more appropriately
addressed in the representative branches, and the requirement that a plaintiff's
complaint fall within the zone of interests protected by the law invoked. Without such
limitations -- closely related to Article III concerns but essentially matters of judicial self-



governance -- the courts would be called upon to decide abstract questions of wide
public significance even though other governmental institutions may be more
competent to address the questions and even though judicial intervention may be
unnecessary to protect individual rights.
One of the principal areas in which the United States Supreme Court has customarily
declined to intervene is the realm of domestic relations. The whole subject of the
domestic relations of husband and wife, parent and child, belongs to the laws of the
States and not to the laws of the United States.
There are good and sufficient reasons for the prudential limitation on standing when
rights of third parties are implicated -- the avoidance of the adjudication of rights which
those not before the court may not wish to assert, and the assurance that the most
effective advocate of the rights at issue is present to champion them.
It is improper for the federal courts to entertain a claim by a plaintiff whose standing to
sue is founded on family law rights that are in dispute when prosecution of the lawsuit
may have an adverse effect on the person who is the source of the plaintiff's claimed
standing. When hard questions of domestic relations are sure to affect the outcome, the
prudent course is for the federal court to stay its hand rather than reach out to resolve a
weighty question of federal constitutional law.
THE PROHIBITION OF GENERALIZED GRIEVANCES:
 The prohibition against generalized grievances prevents individuals from suing if their only
injury is as a citizen or taxpayer concerned with having the government follow the law.
 The prohibition against generalized grievances is a prudential principle preventing
standing when the asserted harm is a generalized grievance [an injury, injustice, or wrong
which gives ground for complaint] shared in a substantially equal measure by all or large
class of citizens
United States v. Richardson (1974)
 Whether the respondent has standing to bring an action as a federal taxpayer alleging
that certain provisions concerning public reporting of expenditures under Central
Intelligence Agency Act
 Judicial power may be exercised only in a case properly before it, a "case or
controversy" not suffering any of the limitations of the political-question doctrine, not then
moot or calling for an advisory opinion. This limitation means a federal court cannot
pronounce any statute, either of a state or of the United States, void, because
irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights
of litigants in actual controversies.
 A party who invokes the judicial power must be able to show not only that a statute is
invalid but that he has sustained or is immediately in danger of sustaining some direct
injury as the result of its enforcement, and not merely that he suffers in some indefinite
way in common with people generally
 A taxpayer will have standing consistent with U.S. Const. art. III to invoke federal judicial
power when he alleges that congressional action under the taxing and spending clause
is in derogation of those constitutional provisions which operate to restrict the exercise of
the taxing and spending power. U.S. Const. art. III requirements are the threshold inquiry.
The gist of the question of standing is whether the party seeking relief has alleged such a
personal stake in the outcome of the controversy as to assure that concrete adverseness
upon which the court so largely depends for illumination of difficult constitutional
questions.
 In a taxpayer suit, a two-pronged standing test requires allegations (a) challenging an
enactment under the Taxing and Spending Clause of the U.S. Const. art. I, § 8 and (b)
claiming that the challenged enactment exceeds specific constitutional limitations

imposed on the taxing and spending power
A taxpayer may not employ a federal court as a forum in which to air his generalized
grievances about the conduct of government or the allocation of power in the federal
system.
Generalized Grievances:
-
-
A generalized grievance refers solely to a situation where a plaintiff’s only claim is:
1. As taxpayer to unconstitutional or illegal expenditures; or
2. As a citizen to unconstitutional or illegal acts.
A generalized grievance is presented when a plaintiff does not claim an injury to a
personal right, but instead objects as a taxpayer or a citizen to a governmental policy.
When a plaintiff alleges an to SHE CHANGED THE SLIDE WAY TOO FAST…
Example: Congress enacts a law requiring every citizen over 21 to be a member of a
Christian church. Joes challenges the law alleging that the Constitution protects his freedom of
religion. Is this claim a general grievance?
No, his direct injury is that it infringes on his religious freedom by forcing him to choose
Christianity as his religion. All citizens will be affected by the law but just because the law affects
everyone, it is not a general grievance. He has an injury-in-fact.
Reasoning behind the limitation:
- The more generalized the grievance, the more easily it can be expressed through politics
and the less the claimant needs the protection of the courts. United States v. Richardson
(1974).
Taxpayer Standing: Exception
-
In Flast v. Cohen the Supreme Court created an exception for claims under the
Establishment Clause.
Requirements for taxpayer standing under Flast:
1. Plaintiff must be challenging an act of Congress under the Taxing and Spending
Powers (Art. 1, § 8, Cl. 1).
2. Plaintiff must claim that the expenditure violates the Establishment Clause.
Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc.,
et al., 454 U.S. 464 (1982).
Brief Fact Summary. The Respondents, Americans United for the Separation of Church and State,
Inc. (Respondent), brought suit as taxpayers. They alleged that the Department of Health
Education and Welfare grant of United States property to a religious college violated the
Establishment and Free Exercise clause of the First Amendment of the United States Constitution
(Constitution).
Synopsis of Rule of Law. Taxpayer standing is appropriate when the plaintiff challenges an
enactment under the taxing and spending clause and the enactment exceeds specific
constitutional limitations on taxing and spending.
Facts. Under the property clause, Art. IV, § 3, cl. 2 of the Constitution, Congress may dispose of
and regulate property belonging to the United States. Under the Federal Property and
Administrative Services Act of 1949 (the Act), the Department of Health, Education, and Welfare
conveyed a 77-acre parcel to the Petitioner, Valley Forge Christian College (Petitioner).
Respondent sued on behalf of its 90,000 "taxpayer members," alleging that Congress violated
the Establishment Clause with its grant of property.
Issue. Does the Respondent have standing as a taxpayer to bring this suit?
Held. No. Reversed and remanded. Because Respondents sue on an administrative action
authorized under the property clause of the, they fail the first prong of the standing test
developed in Flast v. Cohen, 392 U.S. 83 (1968), requiring Congressional action under the taxing
and spending clause.
Dissent. Justice William Brennan (J. Brennan) sees the rise of standing jurisprudence as a means
to sidestep deciding important rights issues by effectively slamming "the courthouse door against
plaintiffs who are entitled to full consideration of their claims on the merits."
Discussion. Regardless of the dissent's moral and fair play arguments, the majority holding in this
case is a straightforward application of the rule developed in Flast v. Cohen, which has yet to be
overturned.
Hein v. Freedom from Religion Foundation
Procedural Posture: Respondents, an organization and three of its members, sued petitioners,
Executive Branch officials, in district court, alleging that the officials violated the Establishment
Clause. The district court dismissed for lack of standing. The United States Court of Appeals for
the Seventh Circuit reversed. The Supreme Court granted certiorari.
Overview: The officials directed the White House Office of Faith-Based and Community Initiatives
and Executive Department Centers for Faith-Based and Community Initiatives within several
federal agencies and departments. Respondents alleged that the officials organized
conferences at which religious community groups were promoted over secular ones.
Respondents asserted taxpayer standing. The Court held that respondents lacked standing
under U.S. Const. art. III, although there was disagreement over whether the Flast v. Cohen
exception to the general prohibition against taxpayer standing should remain viable. A plurality
of the Court found that the Flast exception applied only to challenges directed at exercises of
congressional power under the Taxing and Spending Clause, U.S. Const. art. I, § 8, and did not
apply to respondents' challenge to the use of funds that were appropriated for the general
discretionary use of the Executive Branch. The challenged expenditures were not expressly
authorized or mandated by any specific congressional enactment; as a result, the action lacked
a logical nexus between taxpayer status and the type of legislative enactment attacked.
Outcome: The Seventh Circuit's judgment was reversed.
(3)
-
RIPENESS:
Ripeness doctrine asks whether the lawsuit has been brought too soon.
o It seeks to separate matters that are premature for review because the injury is
speculative and may never occur.
-
-
How to distinguish ripeness from standing?
o Ripeness involves the question of when a party may seek pre-enforcement review
of a statute or regulation.
What does this mean?
When a person challenges the constitutionality of a law before he or she is either
prosecuted or punished by the law.
Criteria for evaluating RIPENESS:
(1) Hardship the plaintiff will suffer without pre-enforcement review: the greater the hardship,
the more likely that the court will grant review
o Abbott Labs v. Gardner (1967)
o Poe v. Ullman (1961)
(2) Fitness for review: are the issues adequately focused and presented for review?
o The more you can convince the court that issues properly focused, that nothing is
gained by waiting in terms of useful information, the greater likelihood of finding
ripeness.
o Abbot Lab v. Gardner (1967)
o United Public Workers v. Mitchell (1947)
Poe v. Ullman Citation. 367 U.S. 497 (1961).
Brief Fact Summary. The Appellants, several couples and their physician (Appellants), brought
suit, seeking the overturn of a Connecticut statute prohibiting the use of contraceptive devices
and the giving of medical advice on the use of such devices.
Synopsis of Rule of Law. A penal statute is not ripe for constitutional challenge unless it is
enforced by the state enacting the statute.
Facts. The Connecticut Supreme Court of Errors construed a state penal statute as prohibiting
the use of contraceptive devices and the giving of medical advice on their use. Appellants
included a couple who had several pregnancies result with severely abnormal progeny which
died shortly after birth, a couple whose wife had experienced a severely traumatic pregnancy
and their physician, who believes the safest course of treatment for the couples includes using
contraceptive devices.
Issue. Is the petitioners' claim ripe for judicial review?
Held. No. Judgment affirmed. Connecticut has never attempted to fully prosecute any case
under the statute. Because of this, not only have the Appellants not suffered injury in fact from
the statute, but there is no evidence that they would be prosecuted for acting in violation of the
statute.
Dissent. Justice William Douglas (J. Douglas) argues that the mere threat of prosecution is injury in
fact, that it is "not the choice worthy of a civilized society" to require individuals to risk penalty for
their behavior to have their constitutional rights determined.
Discussion. Although ripeness is the central issue in Poe, the Supreme Court of the United States
(Supreme Court) does not articulate any clear guidelines to evaluate ripeness. Nonetheless, the
Supreme Court seems to articulate that a penal statute that has not been enforced is not ripe
for judicial review.
NO HARDSHIP BECAUSE ANYONE CAN GO BUY THIS OVER THE COUNTER.
Abbott Laboratories v. Gardner Citation. 387 U.S. 136 (1967).
Brief Fact Summary. The Petitioners, Abbot Laboratories (Petitioners), sought declaratory
judgment on the 1962 amendment to the Federal Food, Drug, and Cosmetic Act (the Act) that
required prescription drug manufacturers to print the "established name" of the drug on labels
and other printed materials that referred to the drug.
Synopsis of Rule of Law. Declaratory judgment is appropriate when the issues are fit for judicial
decision, and there is undue hardship to the parties if such consideration were withheld.
Facts. The amended Act required pharmaceutical manufacturers to display the "established
name" (to be established by the Secretary of Health, Education, and Welfare) in type at least
half as large as that used for any proprietary name or other designation for the drug on all
printed materials referring to the drug. A group of 37 drug manufacturers (representing more
than 90% of the nation's prescription drug suppliers) brought this suit, alleging the Commissioner
exceeded his authority by requiring the use of the established name every time the trade name
was used in all printed matter relating to the drug.
Issue. Have appellants brought an action ripe for judicial review? Held. Yes. Reversed and
remanded.
•
The Supreme Court of the United States (Supreme Court) found the challenge
appropriate at the current time, as all parties agreed that the issue was purely legal.
The issue was, did the Commissioner properly construe the statute by requiring the
establish name to be used every time the trade name is?
•
The Supreme Court also found undue hardship on the parties involved in postponing a
judicial decision. The companies would have to spend a large amount of money
changing typefaces and printing new materials, or large penalties if they refuse to
make the changes and a court determines the Commissioner was proper his
construction of the regulation. Discussion. The general guidelines of Abbott
Laboratories continue to apply in ripeness cases. Note that the concrete nature of
the question (did the Commissioner overreach his statutory authority?) allowed the
issue to be fit for judicial decision by an Article III court.
(4)
-
MOOTNESS:
Asks whether the suit has been brought too late.
The mootness doctrine is derived from Art. III prohibition against advisory opinions.
o By definition, if a case is moot, there is no longer an actual controversy between
adverse litigants.
o If events subsequent to the filing of the case resolve the dispute, the case should
be dismissed as moot.
Mootness: Exceptions
1. Wrongs capable of repetition yet evading review
Areas where the Court has found cases to fit within the exception:
o Court orders imposing prior restraints on speech
o Challenges to election laws: Moore v. Ogilvie (1969)
o Challenges to bans on reproductive rights: Roe v. Wade (1973)
2. Voluntary Cessation: a case is not to be dismissed as moot if the defendant
voluntarily ceases the allegedly improper behavior but is free to return to it any
time.
- Friends of the Earth v. Laidlaw (2000)
3. Class Actions - a properly certified class action suit may continue even if the
name plaintiff’s claims are moot.
The Court has reasoned that the class of unnamed persons described in the certification
acquired a legal status separate from the interest asserted by the plaintiff, and thus the case
can continue as long as the members of the class have a live controversy.
o Parole Commission v. Geraghty (1980)
-
-
United States Parole Commission v. Geraghty
445 U.S. 388 (1980)
Rule of Law
A properly certified class action suit may continue even if the named plaintiff’s individual claims
are rendered moot.
Facts
Geraghty (plaintiff) was a federal prisoner who, after twice being denied parole from a federal
prison, brought suit challenging the validity of the United States Parole Commission’s Parole
Release Guidelines. Geraghty requested the district court to certify the suit as a class action on
behalf of a class of “all federal prisoners who are or who will become eligible for release on
parole.” The district court denied this request and granted summary judgment for the United
States Parole Commission (defendant). Geraghty appealed but was released from prison while
his appeal was pending in the court of appeals. The court of appeals ruled that his release did
not make the case moot and reversed the district court’s denial of the class certification. The
United States Supreme Court granted certiorari to consider the issue of mootness.
Issue
Does the expiration of a named plaintiff’s claim in a class action suit render the entire suit moot?
Holding and Reasoning (Blackmun, J.)
No. The class of unnamed persons comprising the remainder of the class action has a legal
status that is completely separate from the interest asserted by Geraghty. Thus, as long as those
members have a live controversy, the case can continue. In this case, it is evident that other
federal prisoners still have a personal stake in this controversy because they moved to be
substituted or to intervene as named respondents. Additionally, Geraghty still continued to
advocate vigorously for his right to have a class certified. Vigorous advocacy is a factor in
determining whether a plaintiff has a personal stake in the outcome of litigation. Thus Geraghty’s
claim is not moot. If the denial of class certification is reversed on appeal, the case could be
litigated fully on the merits.
Dissent (Powell, J.)
The majority’s holding is a significant departure from its Article III precedents on what is required
for holding the case as an active controversy. Secondly, because Geraghty’s substantive
interest in the case became moot when he was released from prison, he had no personal stake
in litigating the procedural issue of class certification.
Baker v. Carr
United States Supreme Court, 369 U.S. 186 (1962)
Rule of Law
A challenge to malapportionment of state legislatures brought under the Equal Protection
Clause is not a political question and is thus justiciable.
Facts
Baker (plaintiff) was a Republican living in Shelby County, Tennessee. The Tennessee Constitution
required that legislative districts be redrawn every ten years to adjust for changes in population.
Baker brought suit against Carr (defendant), Secretary of State in Tennessee, in his official
capacity alleging that because Tennessee had not actually redistricted since 1901, the urban
Shelby County district had ten times as many residents as did the more rural districts. As a result,
Baker argued that rural votes counted more than urban votes, and that he was thus denied
equal protection of the laws. The State of Tennessee argued that legislative districting issues
were not judicial questions but political questions, and were thus not capable of being decided
by the courts based on the Constitution’s prohibition on the Court’s deciding political questions.
Issue
Does an equal protection challenge to malapportionment of state legislatures qualify as a nonjusticiable political question?
Holding and Reasoning (Brennan, J.)
No. Under Luther v. Borden, 48 U.S. 1 (1849), challenges to the malapportionment of state
legislatures brought under the Guaranty Clause of the Constitution are inappropriate political
questions. Unlike Luther, the case at bar is brought under the Equal Protection Clause There is no
question the Court is meant to adjudicate plaintiffs’ rights to equal protection under the laws
due to its precedent. For an issue to be a non-justiciable political question, one of six tests (listed
in descending order of importance and certainty) must be satisfied: (1) a textually demonstrable
constitutional commitment of that issue to another political branch; (2) a lack of judicially
discoverable and manageable standards for resolving the issue; (3) an impossibility of deciding
the issue without making an initial policy determination of a kind not suitable for judicial
discretion; (4) a lack of respect for the other branches of government in undertaking
independent resolution of the case; (5) an unusual need for unquestioning adherence to a
political decision already made; or (6) the potential for embarrassment for differing
pronouncements of the issue by different branches of government. In the present case, there is
no textually-demonstrable commitment of Equal Protection issues to other branches of
government. There are certain judicial standards already in place for adjudicating such claims,
and because Baker is an individual person suing a state government, there is no separation of
powers concerns implicated. This claim does not fall under one of the six tests of a political
question and therefore the claim is justiciable. The case is remanded to the district court for
consideration of the merits.
Dissent (Frankfurter, J.)
The majority’s decision is not based on history or precedent, and it seriously violates judicial
restraint and separation of powers concerns under the Constitution. Prior cases dealing with the
relationship of population to legislative representation have been uniformly decided to the
contrary as being nonjusticiable political questions. No meaningful difference exists between a
challenge brought under the Equal Protection Clause and the Guaranty Clause.
Concurrence (Douglas, J.)
The issue presented in this case deals more with the extent to which a state is allowed to weigh
one citizen’s vote more heavily than another’s. The right to vote is inherent in the Constitution.
Each vote should count equally. Designing legislative districts such that one vote counts more in
one district than in another represents the exact kind of invidious discrimination by states that the
Equal Protection Clause was designed to prohibit. Baker should be given a chance to prove his
claim in court.
Concurrence (Clark, J.)
The disparate weight given to votes from different districts constitutes an actionable violation of
the Equal Protection Clause. It is wrong to remand the matter to the Tennessee courts with no
clear guidance as to how to proceed in granting relief, and thus the majority’s holding, while
appropriate, should have gone farther.
Concurrence (Stewart, J.)
The concurring and dissenting opinions confuse the issue presented in this case as well as the
holding. The majority makes three rulings: that the jurisdiction is proper over the subject matter;
that Baker states a justiciable cause of action under which he should be entitled to relief; and
that Baker has standing to challenge Tennessee’s apportionment statutes. The holding must be
narrowly and clearly defined for future jurisprudence.
Dissent (Harlan, J.)
The majority’s analysis is clouded by too many tangential issues to focus on the real issue at
hand. The only real issue in the case is whether the complaint sufficiently alleged a violation of a
federal right such that a district court would have jurisdiction over the case. The complaint,
taken as a whole to be true, does not state a claim upon which relief can be granted under
Federal Rule of Civil Procedure 12(b)(6). Nothing in the Equal Protection Clause of the
Fourteenth Amendment suggests that state legislatures must deliberately structure their districts
so as to reflect absolute equality of votes. Additionally, the complaint does not adequately show
that Tennessee’s existing system of apportionment is so arbitrary and capricious as to violate the
Equal Protection Clause. Without more facts alleging a violation, Baker does not state a claim
upon which relief may be granted.
[Chapter 3 | The Federal Executive Power]
OVERVIEW: This chapter examines the powers of the presidency and the executive branch. It
particularly focuses on the tensions between the executive and legislative powers.
Six topics are examined:
(1) Section A: focuses on the issue of inherent presidential power and the question of when,
if at all, the president may act without constitutional or statutory authority.
(2) Section B: The ability of Congress to expand presidential powers beyond those
enumerated in the Constitution, specifically examining the SCT’s recent decision in the
line-item veto case.
(3) Section C: the constitutional problems posed by administrative agencies.
(4) Section D: looks at the allocation of decision-making authority in the area of foreign
policy. In particular, responsibilities with regard to treaties and war powers are
considered.
(5) Section E: examines executive power and the war on terrorism.
(6) Section F: Examines checks on the executive, including civil suits for money damages
and impeachment.
SECTION A. INHERENT PRESIDENTIAL POWER
If there is a statute authorizing the president’s conduct, then the question is whether the law is
constitutional. But what if there is neither constitutional nor statutory authority? The debate over
this question began in the earliest days of the nation and had impeccable authorities on each
side of the dispute.
- Alexander Hamilton argued that the difference in the wording of Articles I and II reveals the
framers’ intention to create inherent presidential powers. He argued that the president has
authority not specifically delineated in the Constitution.
- James Madison disputed this interpretation of Article II, contending that the opening
language of Article II was “simply to settle the question whether the executive branch should
be plural or single and to give the executive a title.”
o According to this position, the president has no powers that are enumerated in
Article II and, indeed, such unenumerated authority would be inconsistent with
a Constitution creating a government of limited authoritiy.
-
Section 2, Art. II of the Constitution specifies the powers of the President.
The question is when may the president act without constitutional or statutory authority act?
o The Constitution is silent on the question and the debates of the framers are
ambiguous.
Youngstown Sheet & Tube Co. v. Sawyer
United States Supreme Court, 343 U.S. 579 (1952).
Rule of Law
The President of the United States may not engage in lawmaking activity absent an express
authorization from Congress or the text of the Constitution.
Facts
In late 1951, steel mill owners and their employees had disagreements over the terms of
collective bargaining agreements. Unable to reach an agreement, the steel mill employees’
representative gave notice of intent to strike after the expiration of their current agreement. The
federal government unsuccessfully entered the negotiations, and on April 4, 1952, the steel mill
employees’ union gave notice of its intent to strike on April 9, 1952. The importance of steel as a
component in weapons and war materials led President Truman to believe that a reduction in
steel production from a nationwide strike would jeopardize the nation’s security. The President
issued Executive Order 10340 directing Sawyer (defendant), the Secretary of Commerce, to take
control of and continue operating most of the nation’s steel mills. Sawyer carried out the order,
and Youngstown Sheet & Tube Co. (plaintiff), along with other steel mill operators, brought suit in
district court alleging that the President’s order amounted to an exercise of lawmaking, a
legislative function reserved expressly for Congress. Therefore, the President’s exercise of
lawmaking was unconstitutional. The district court granted an injunction in favor of the
Youngstown Sheet & Tube Co., on the grounds that the President acted unconstitutionally, but
the court of appeals stayed the injunction. The United States Supreme Court granted certiorari.
Issue
May the President of the United States, under his constitutional executive powers, issue a
lawmaking order directing the Secretary of Commerce to take possession of and operate most
of the nation’s steel mills?
Holding and Reasoning (Black, J.)
No. The President’s power to issue executive orders must come from either an act of Congress or
the Constitution. Congress expressly rejected the use of seizure to solve labor disputes as
unconstitutional when it considered the drafting of the Taft-Hartley Act in 1947. Here, the
President does not rely on any statutory authority to seize real property. Since Congress has not
acted to grant seizure powers to the President in labor disputes, the President’s authority must
come from the Constitution. Sawyer admitted that there is no express authority in the
Constitution that justifies the President’s actions, but argues that the President’s power to do so
should still be implied from powers granted to the President in Article II of the Constitution. This
argument is not constitutionally supported since the link between the power to make war
decisions and the power to seize private property for the resolution of labor disputes is
attenuated. Additionally, the President’s actions cannot be supported by his general executive
powers, as the Constitution charges the Executive with “faithfully executing the laws,” not
making the laws themselves. The decision of the district court is affirmed.
The President’s power, if any, to issue the order must stem either from an act of Congress or from
the Constitution itself.
Concurrence (Jackson, J.)
The President and Congress have distinct powers, but the Constitution allows for some overlap of
authority in different scenarios. The President may act pursuant to executive powers,
congressionally-granted powers, or a combination of both. When the President acts under an
express or implied grant of power, he can rely on both his own powers and Congress’. When the
President acts without an express grant or denial of Congress’s powers, he acts under the
aggregate of his own independent powers. When the President acts in a way that is
incompatible with the express or implied will of Congress, he may rely only on the powers
expressly granted to him by the Constitution. Since Congress denied power to the President in
the present case under the Taft-Hartley Act, the third scenario is implicated. The President may
be deemed to have acted constitutionally only if he is acting based on an express grant of
power from the Constitution. The Constitution does not grant the President such powers, and the
President's power to “faithfully execute the laws” does not cross into the function of lawmaking.
The President is checked by the Fifth Amendment’s prohibition on depriving citizens of life,
liberty, or property without due process of law. The President has clearly deprived steel mill
owners of their property without due process.
Concurrence (Douglas, J.)
Congress is the only branch of government that can appropriate money to pay for a program
involving a nationwide seizure of property. Hence, Congress is the only branch that may
authorize such actions. It is important to keep this power within Congress to avoid the possibility
of a future President abusing the power.
- The President’s actions are unconstitutional when he is doing something that is assigned
to Congress.
- If the Constitution does not assign that particular power to Congress, who is to say that
the President’s acts in doing it are unconstitutional?
Concurrence (Frankfurter, J.)
The President has been given powers to seize production, transportation, communication, or
storage facilities on sixteen separate occasions since 1916. However, the difference between
these occurrences and the present case was that, in all prior instances, Congress granted
temporary powers to the President to act in times of war or national crisis. Additionally, the
powers were only granted for a specific, limited time frame. In the present case, the President
was acting to remedy only an industrial problem that was not connected with wartime or a
national emergency. Additionally, Congress specifically withheld this type of power from the
President, in labor relations settings, when it passed the Taft-Hartley Act in 1947. The President
acted unconstitutionally because the facts surrounding the present case are different than prior
instances of presidential grants of power and because Congress could have given the President
power but chose instead to withhold it.
Concurrence (Burton, J.)
In the Taft-Hartley Act, Congress passed specific procedures for the President to follow when
responding to a labor relations crisis. Such procedures did not include the seizure of private
property by the President. In times of national emergency, Congress has previously granted
limited authority to the President to seize property for a discrete period of time. However, in the
present case, the President did not follow the prescribed procedures outlined by Congress in the
Taft-Hartley Act, and no state of national emergency existed whereby Congress could grant the
President limited seizure powers. An examination of the Constitution does not reveal any
independent seizure power granted to the President at his or her own discretion. The President
acted outside the Constitutional bounds of the executive branch.
Concurrence (Clark, J.)
This case is controlled by the holding in Little v. Barreme (1804), which held that when Congress
has laid down specific procedures to deal with the type of crisis confronting the President, he
must follow those procedures in responding to that crisis. However, in the absence of such
procedures from Congress, the President’s independent power to act depends on the gravity of
the situation confronting the nation. The President’s actions are unconstitutional because
Congress already prescribed procedures for use in this particular situation, and the situation is
not so grave as to warrant his acting without a grant of power from Congress.
Dissent (Vinson, C.J.)
The President acted in a necessary way to prevent a crisis of national defense that could result
from a lack of steel production. The Constitution delegates to the President the duty to execute
legislative programs. The implementation of a steel seizure program designed to preserve
production and promote the national defense qualifies as a legislative program. The President is
uniquely qualified to step in and implement this program, as no other branch of government has
the ability to act so quickly by releasing an Executive Order. The President’s actions are fully
within the actions given to the executive branch by the Constitution, as the Framers necessarily
made the executive branch a robust one so it could serve as an actual check and balance to
the other branches of government. The majority’s decision is improperly aimed at “straw men”
as it seeks to prevent the evils of potential future presidents. This scenario is not at issue. The
President is both authorized and uniquely qualified to perform this function.
KNOW FOR NEXT CLASS:
***If what the president is doing is NOT in the constitution we should strike that down as
unconstitutional. However, not all of the judges agree and think like this – hence the
concurrence opinions. DIFFERENTIATE what these concurring opinions want and what the content
is. What is the answer to the problem given by each different judge?
THE SCOPE OF INHERENT POWER: THE ISSUE OF EXECUTIVE PRIVILEGE
THE WATERGATE SCANDAL!
United States v. Richard M. Nixon, President of the United States
United States Supreme Court, 418 U.S. 683 (1974)
Rule of Law
Presidential communications are not entitled to an absolute privilege in a court of law based on
a generalized interest in confidentiality, and such communications are discoverable when
demonstrably relevant in a criminal trial.
Facts
The Watergate scandal surrounding President Richard M. Nixon began during the 1972
presidential campaign between Nixon and Senator George McGovern. Before Nixon won reelection, five burglars broke into the Democratic headquarters at the Watergate Building
complex in Washington, D.C. President Nixon appointed Archibald Cox as a Special Prosecutor
to investigate the break-in, but fired him shortly after. Nixon then appointed a second Special
Prosecutor, Leon Jaworski (plaintiff), to conduct the Watergate investigation on behalf of the
executive branch of the Government. Five men were indicted for the robbery. Jaworski
obtained a subpoena in United States v. Mitchell, 463 U.S. 206 (1974), compelling President Nixon
to turn over tapes and documents that he believed contained damaging information relating to
the five indicted men and the President. President Nixon (defendant) turned over several
partially edited tapes and documents, and then he filed a motion to quash the subpoena in the
District Court for the District of Columbia. President Nixon argued that he was protected from
subpoena on the grounds that communications of the executive branch are absolutely
privileged from discovery in court. The district court denied the motion, and both Jaworski and
Nixon appealed directly to the United States Supreme Court.
Issue
Whether communications of the President are entitled to a generalized absolute privilege from
discovery in a court of law.
LEGAL ISSUE: Who should decide the extent, nature and scope of executive privilege?
LEGAL HOLDING: The judicial branch.
Holding and Reasoning (Burger, C.J.)
No. The Attorney General granted the Special Prosecutor complete authority to prosecute these
cases and to determine what evidence was admissible in court. There is a sharp division of
opinion on what evidence should be admissible between the President and the Special
Prosecutor, and thus this dispute represents an adversarial controversy as required for
justiciability under Article III of the Constitution. The President argues that his executive
communications are absolutely privileged from discovery in a court of law based on the fact
that executive officials have a general interest in confidentiality. The President further argues
that denying this privilege would possibly reduce candor among the executive branch in
necessary discussions, and that judicial resolution of the issue violates separation of powers
concerns. Responding to the second argument first, the precedent established in Marbury v.
Madison, 5 U.S. (Cranch 1) 137 (1803), rejects such an argument on the grounds that the
judiciary is vested with the ultimate power to determine what the law is in any given area. Thus,
the judiciary possesses the sole authority to determine the state of the law regarding a possible
executive privilege. In previous cases, certain pieces of evidence the President claimed
revealed military or diplomatic secrets have been upheld as absolutely privileged from
discovery. However, there has never been a general recognition of an absolute privilege for
executive communications absent a claim that such communications contain military of
diplomatic secrets. In determining whether to grant the privilege, the President’s interest in a
general, absolute privilege must be weighed against the competing interests of the Sixth
Amendment right to confront witnesses and the Fifth Amendment right to due process. There is a
strong interest in the fair administration of criminal justice that ultimately outweighs the
President’s interest in an unqualified, general privilege. The decision of the district court to deny
the motion to quash Jaworski’s subpoena is upheld.
**Whatever the nature of the privilege
B. THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER
-
Inherent presidential power focuses on when President may act without constitutional or
statutory authority.
This topic focuses on whether Congress may increase executive power.
Main issue:
Is separation of powers appropriately left to the political branches to work out or is
there a conception of separation of powers that courts should enforce?
William J. Clinton, President of the United States v. City of New York
United States Supreme Court, 524 U.S. 417 (1998)
-
Art. I §7, cl. 2
Line Item Veto Act
Rule of Law
The Constitution does not permit the president to repeal or amend laws without the approval of
both houses of Congress.
Facts
In 1996, Congress passed the Line Item Veto Act (LIVA) to permit the President to strike down
single items of Congressional spending in otherwise constitutional appropriations bills. In 1997,
President Clinton (defendant) struck down two provisions in congressional acts relating to New
York’s Medicaid funding and a capital gains tax elimination provision for cooperative farmers.
New York and a group of Idaho farmers (plaintiffs) filed two separate actions in district court
alleging that the LIVA was an unconstitutional delegation of legislative power to the President by
Congress. The district court held that LIVA was unconstitutional and President Clinton appealed
directly to the United States Supreme Court.
Issue
May a President veto part of a bill or law under the Line Item Veto Act?
Holding and Reasoning (Stevens, J.)
No. Congress may grant legislative powers to the executive, but all executive power is ultimately
derived from Articles I and II of the Constitution. The Executive power of the President is subject
to the limitations contained in those provisions. The text of the Constitution requires all laws to
pass a vote of both houses of Congress and to be presented to and ultimately approved by the
President before they are enacted. The Constitution requires this procedure for all laws
amended or repealed by the President. Although the Constitution is silent on the proper
procedures for only the partial amendment or repeal of laws by the President, the text’s silence
is significant. The Constitution was formed after serious debate over its provisions. The Framers did
not intend for the President to ever deviate from prescribed Article I and II procedures when
performing lawmaking functions. The LIVA improperly permits the President to engage in
legislative activity without receiving the approval of both houses of Congress. The LIVA is
unconstitutional and the decision of the district court is affirmed.
Dissent (Breyer, J.)
It is a constitutionally proper objective for the President to have some, but not all, authority over
spending provisions in massive appropriations bills because the scope of information contained
in these bills has greatly expanded since the time the Framers drafted the President’s executive
powers in the Constitution. The changing times necessitate a changing scope of power for the
President.
Concurrence (Kennedy, J.)
The dissent’s conclusion that the LIVA poses no threat to the liberty of individuals is incorrect. The
LIVA does potentially threaten individual liberty through its violation of the separation of powers
doctrine.
Concurrence/Dissent (Scalia, J.)
None of the plaintiffs in the action concerning the cooperative farmers tax limitation provision
allege a sufficient personal interest in the case to have standing to challenge the President’s
actions. Thus the majority should not have considered the President’s actions in striking down
that provision. The President’s action striking the Medicaid funding provision is a constitutional
exercise of the President’s power. Congress has the constitutional power to delegate the
authority to decline to spend appropriate sums of money.
In essence:
-
The Line Item Veto Act gives the President the power to “cancel in whole” three types of
provisions that have been signed into law:
(7) Any dollar amount of discretionary budget authority;
(8) Any item of new direct spending; or
(9) Any limited tax benefit.
The Act requires the President to adhere to precise procedures whenever he exercises his
cancellation authority. The President must determine, with respect to each cancellation, that
it will:
Reduce the Federal budget deficit;
Not impair any essential Government functions; and
Not harm the national interest.
---MOREOVER, he must transmit a special message to Congress notifying it of each cancellation
within five calendar days (excluding Sundays) after the enactment of the canceled provision.
-
-
A cancellation takes effect upon receipt by CONGRESS of the special message from the
President. If, however, a “disapproval bill” pertaining to a special message is enacted into
law, the cancellations set forth in that message become “null and void.”
-
The Act does not grant the President the authority to cancel a disapproval bill, but he does,
of course, retain his constitutional authority to veto such a bill.
-
There are important differences between the President’s “return” of a bill pursuant to Article I,
§7, and the exercise of the President’s cancellation authority pursuant to the Line Item Veto
Act.
i.
Constitutional return (usually described as veto): BEFORE the bill becomes law & is of
the ENTIRE bill.
A president’s “return of bill” is subject to being overridden by a two-thirds vote in each
House.
ii.
Statutory cancellation: AFTER the bill becomes law & is of only a PART of the bill.
-
C. THE CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE
FEDERAL ADMINISTRATIVE AGENCIES
·
One of the most dramatic changes in American government since the Constitution has been the
growth of administrative agencies
i. These agencies exercise all of the powers of government, including …
1. Legislative – Promulgate rules that have the force of law
2. Executive – Enforce actions against those who violate the relevant federal laws and regulations
3. Judicial – Employ administrative law judges who hear cases brought by agency officials against
those accused of violating the agency’s regulations
Solution
#1 to the constitutional problems:
The Nondelegation Doctrine:
·
The principle that Congress may not delegate its legislative power to administrative agencies.
·
The nondelegation doctrine forces a politically accountable Congress to make the policy
choices, rather than leaving this to unelected administrative officials.
· Congress may not delegate its legislative power to administrative agencies: ALA & Panama
A.L.A. Schechter Poultry Corp. v. United States (1935):
FACTS: ALA Schechter Poultry Corp (defendant), a slaughterhouse in NYC, was sued under the
“Live Poultry Code,” which regulated the poultry industry by requiring collective bargaining, a 40
hour work week, and a minimum wage, among other provisions. ALA was indicted for an alleges
conspiracy and for violations of this Code. At the time, NYC was the largest live poultry market in
the US. ALA slaughterhouse operators bought poultry from the contractors in NYC and
processed the birds in Brooklyn. The processed birds were sold directly to retailers in NY state.
ALA did not sell poultry interstate.
ISSUE: May Congress delegate unrestrained law making authority to the executive branch? (The
question turns upon the authority which section 3 of the Recovery Act vests in the President to
approve or prescribe.)
HOLDING: No.
RULE: Congress may NOT delegate law- making authority to an executive agency without
prescribing specific standards for the exercise of that authority.
ANALYSIS: The legislature may not delegate to the executive branch the unfetted authority to
make law. Since there was not standards or guidelines for creating the codes, the Congress
improperly delegated legislative power To determine whether the passage of these codes was
an improper delegation of legislative authority, 2 grounds should be examined. (1) in
determining what limits Congress set for the president, look to trade and industrial groups that
propose the codes because they must be “truly representative” if the industry members. (2) the
NIRA sets up no monopolies or be oppressive to small enterprises, nor any specific standards for
the President to apply in determining whether to accept or reject the proposed codes. Thus, the
code- making authority granted to the President is an unconstitutional delegation of power. In
view of that broad declaration and of the nature of the few restrictions that are imposed, the
discretion of the President in approving or prescribing codes, and thus enacting laws for the
government of trade and industry throughout the country, is virtually unfetted. We think that the
code- making authority thus conferred is an unconstitutional declaration of legislative power.
Panama Refining Co. v. Ryan (1935):
FACTS: Congress delegated to the President the power to restrict or prohibit the interstate and
foreign transport of petro. Congress enacted a provision of the National Industrial Act that gave
the President the power to prohibit the transportation of petro products in excess of the amount
permitted by state law. Based on this provision, the President made an Executive Order enacting
such a probation. The P (Panama Refining Co) brought suit to enjoin the Defendants, certain
government officials, from enforcing the Ex Order. The DC granted a permanent injunction
against enforcement, but the Court of Appeals reversed.
ISSUE: May Congress delegate unrestricted law- making authority to the President?
HOLDING: No, congressional delegation of power to the executive branch must be specific and
limited.
RULE: It is a violation of the separation of powers doctrine for Congress to delegate law- making
authority to the President without imposing standards or rules limiting that authority. The
Constitution provides that “All legislative powers herein granted shall be vested in a Congress of
the US, which shall consist of a Senate and House of Reps.” And the Congress is empowered “To
make all laws which shall be necessary and proper for carrying into Execution.”
ANALYSIS: The NIRA did not include any policy guidelines for prohibiting or not prohibiting the
transportation of petro production in excess of state allowances. The President was granted
unfetted discretion. Congress let the matter to him “to be dealt with as he pleased.” Under the
Constitution Congress is not allowed to abdicate or transfer its essential legislative powers.
Congress simply left the matter to the President in decidint the circumstances and conditions
under which the transportation of petro products should be prohibited without setting standards
or rules to be followed. Congress cannot delegate to others the essential legislative functions
with which it was vested. If the Supreme Court were to hold the legislation valid, Congress would
be free to delegate authority at will to the President, another officer, or an administrative body.
The delegation of authority was unlawful and invalid.
Whitman v. American Trucking Assn. (2001):
When congress delegate decision-making authority upon agencies it must law down by
legislative act an intelligible principle to which the person or body or authorized to act is
directed to conform.
FACTS: Section 109(a) of the Clean Air Act ("CAA") mandates that the Administrator of the
Environment Protection Agency ("EPA") promulgate, National Ambient Air Quality Standards
("NAAQS"). The NAAQS must be issued for each air pollutant for "which 'air quality criteria' have
been issued under § 108, 42 U.S.C. § 7408." Section 109(b)(1) of the Act requires the EPA to set
"ambient air quality standards the attainment and maintenance of which in the judgment of the
Administrator, based on [the] criteria [documents of § 108] and allowing an adequate margin of
safety, are requisite to protect the public health." These NAAQS must be reviewed by the
Administrator at "at five- year intervals" and make "such revisions ... as may be appropriate." The
District of Columbia Circuit found that §109(b)(1) improperly delegated legislative power to the
Administrator in violation of Article 1, §1 of the United States Constitution (the "Constitution"). The
district court found specifically that the EPA's interpretation of the statute provides no "intelligible
principle" to guide the agency's exercise of authority. The district court however found that the
EPA "could perhaps avoid the unconstitutional delegation by adopting a restrictive construction
of § 109(b)(1), so instead of declaring the section unconstitutional the court remanded the
NAAQS to the agency." The Court of Appeals affirmed the district court.
ISSUE: Whether §109(b)(1) of the Clean Air Act delegates legislative power to the Administrator
of the Environmental Protection Agency? Whether this provision of the CAA was an
inappropriate delegation of Congressional authority to an agency?
HOLDING: No
ANALYSIS:
Scalia writing the opinion states, “The court of Appeals held that 109(b)(1) as interpreted by the
Administrator did not provide ‘intelligible principle’ to guide the EPA’s exercise of authority in
setting NAAQS. The EPA claimed it lacked any determinate criteria for drawing lines. It had failed
to state intelligibly how much is too much. The court hence found that the EPA's interpretation
(but not the statute itself) violated the nondelegation doctrine." When analyzing a delegation
challenge, the court must determine whether a statute has delegated a legislative power to an
agency in violation of Article 1, §1 of the Constitution. The Supreme Court has consistently
recognized that when allocating decision-making authority to agencies Congress must "lay
down by legislative act an intelligible principle to which the person or body authorized to [act] is
directed to conform." The court also disagreed with the lower courts suggestion "that an agency
can cure an unlawful delegation of legislative power by adopting in its discretion a limiting
construction of the statute." The court recognized certain minimum requirements or limits in the
text of §109(b)(1) of the Act. J. Scalia compared the limits in this statute to those limits present in
recognized by the court in [Touby v. United States] concerning the Attorney General's right to
designate a drug a controlled substance and those limits in the Occupational Safety and Health
Act upheld by the Supreme Court in [Industrial Union Dept., AFL-CIO v. American Petroleum
Institute]. Based on these precedents and others, the court recognized the " the scope of
discretion that § 109(b)(1) allows is well within the outer limits of the Court's nondelegation
precedents." Further, the court recognized "[i]n the history of the Court we have found the
requisite 'intelligible principle' lacking in only two statutes, one of which provided literally no
guidance for the exercise of discretion, and the other of which conferred authority to regulate
the entire economy on the basis of no more precise a standard than stimulating the economy
by assuring 'fair competition.'" J. Scalia then laid out various other statutes, which the Supreme
Court has upheld. J. Scalia then recognized, the court has never " even in sweeping regulatory
schemes [ ]demanded, as the Court of Appeals did here, that statutes provide a 'determinate
criterion' for saying 'how much [of the regulated harm] is too much.' " Based on these principles,
the Supreme Court found that "Section 109(b)(1) of the CAA, which [the Supreme Court]
interpret[ed] as requiring the EPA to set air quality standards at the level that is "requisite" that is,
not lower or higher than is necessary--to protect the public health with an adequate margin of
safety, fits comfortably within the scope of discretion permitted by our precedent." This case
provides an interesting discussion of the non-delegation doctrine and how hard it is to prove that
a delegation was improper.
#2
Solution
to the constitutional problems:
The Legislative Veto and its Demise:

Checking Administrative Power
- Congress created the “Legislative Veto” as a check on the actions of
administrative agencies by overturning agency’s action or rules
1. HOWEVER … Legislative Vetoes and Line Item Vetoes are always unconstitutional …
UNLESS … there is a bicameralism from Congress–AND- presentment to the President
(Chada (1983)
a. Bicameralism – to enforce a legislative act, both the House
of Representatives –AND- Senate must equally approve by
a majority vote.
b. Presentment – refers to once Congress has voted to pass a
bill, they must present it before the President, who can
either pass the law, veto the law, or allow the law to be
signed without his signature
i. HOWEVER … The Congress can also override a
President vetoing a bill if they still agree with the bill
… if Congress approves the bill by a 2/3 votes, then
the bill will become a law
2. Thus … The Legislative Veto violated the Constitution, because it allowed only one
house of Congress to pass a legislative act, without Bicameralism or Presentment
3. Thus … The Line-Item Veto violated the Constitution because it gave the President the
power to amend or repeal only parts of statutes (Clinton v. City of New York 1998)
Immigration & Naturalization Service (1983):
FACTS: The Plaintiffs, Chadha and others (Plaintiffs), challenged a federal statute, which
purported to authorize one House of Congress, by resolution, to invalidate the decision of the
Attorney General of the United States (Attorney General) to allow a specific deportable illegal
immigrant to remain in the United States. Chadha was an alien who was lawfully admitted into
the United States on a non- immigrant student visa. Chadha overstayed his visa and the
Defendant, the Immigration and Naturalization Service (Defendant), began deportation
proceedings. The Immigration judge found that Chadha met the requirements set out in the
Immigration and Nationality Act (the Act) for suspension of deportation. Under the Act, the
Attorney General reported the suspension of deportation to Congress. However, the House of
Representatives passed a resolution that Chadha did not meet the statutory requirements for
suspension of deportation. Neither the Senate nor the President reviewed the decision. Chadha
filed a petition with the Defendant and the Defendant agreed that the statute was
unconstitutional. The court of appeals held that the separation of powers doctrine was violated
by the
ISSUE: Is the one-house "legislative veto" unconstitutional, even when authorized by a properly
enacted statute?
HOLDING: Yes, the legislative veto is unconstitutional.
RULE: Legislative action is not legitimate unless there is bicameral approval and presentment to
the President of the United States.
ANALYSIS: Congress delegated the Attorney general the power to determine, whether a
particular deportable alien could remain in the United States. The United States Constitution
(Constitution) does not permit Congress to then delegate the same authority to one House of
Congress. Since the action of deciding whether to deport a given alien is legislative, it is subject
to both the bicameralism and presentment requirements of Article 1 of the Constitution.
Bicameralism and presentment were built into the Constitution to act as a check on each
branch and to protect the people from the improvident exercise of power by mandating
certain prescribed steps. Nearly every legislative act, in order to have force and effect must be
considered and passed by both houses of Congress and then presented to the President for his
signature. The framers of the Constitution found bicameralism and presentment to be essential.

A question to consider is whether Congress was taking "legislative" action. The Act allows
one house of Congress to deport an alien who would otherwise be granted permanent
residency. This is legislative in character. However, Congress previously made a
deliberate choice to delegate authority to the executive branch to determine which
deportable aliens will be allowed to stay in the United States.

The structure of the Constitution allows one house to make a unicameral decision in only
four instances, none of which are present here. Bicameralism keeps the people free from
the arbitrary exercise of governmental power. The one-house legislative veto is
unconstitutional. You need bicameralism & presentment in order to make a law.
DISSENT: Justice Byron White (J. White) found that the legislative veto in the Act is one of
approximately 200 statutes, in which Congress has reserved a "legislative veto" to ensure
accountability of the executive and independent agencies. J. White also argues that the
concept of a "legislative veto," is not the type of action that bicameralism and presentment
applies. Only bills and their equivalent are subject to bicameralism and presentment. Here,
Congress's initial delegation to the Attorney General of the deportation decision was done with
bicameralism and presentment. Thus, since Congress did not write a new law when allowing one
House of Congress to override the Attorney General's decision, then bicameralism and
presentment were not necessary. Concurrence. Justice Lewis Powell (J. Powell) thought the
case should have been decided on a
Immigration and Naturalization Services v. Jagdish Rai Chadha
narrower separation of powers ground. The House impermissibly assumed a judicial function
when reviewing the INS's decision over Chadha's deportation.
Other mechanics that exist to check administrative agencies include ….
4. Congress can control administrative agencies through statutes
5. Congress can overturn agency decisions by statute … following the prescribed
procedures for bicameralism and presentment
6. Congress controls the budge of administrative agencies and can sue this to exercise
an important check on their work
Another important check on agencies is the Appointment and Removal
Power
1. The Appointment Power
a. The President selects members of agencies … BUT … the
Senate is subject to confirmation
-
i. Article II* – The President shall nominate, and with
the Advice and Consent of the Senate, shall
appoint …
1. Ambassadors
2. Ministers and Consuls
3. Judges of the Supreme Court
4. Officers of the U.S.
ii. Article II* - Congress may appoint Inferior Officers,
as they think proper in the…
1. President
2. Courts of Law
3. Heads of Departments
2. The Removal Power
a. The President may remove executive officials … UNLESS …
removal is limited by statute
i. Congress (by statute) may limit removal if …
1. It is an office where independence from the
President is desirable
2. Where good cause is shown
b. Impeachment of Andrew Johnson: The vote in the Senate
was one vote short of the two-thirds necessary for removal
so Johnson completed his term as President



B. Separation of Powers and Foreign Policy
Foreign Policy are political questions … meaning the Supreme Court has NO judicial authority
Article II* – The President shall have power to make Treaties … with a 2/3 approval by the
Senate
- Treaty – an agreement between the U.S. and a foreign country, that is
negotiated by the President … and is effective when ratified by the
Senate
- Executive Agreement – an agreement between the U.S. and a foreign
country, that is effective when signed by the President –AND- the signed
head of the other governments
1. Thus, NO Senate approval is required!!!
2. Anything that can be done by a “Treaty” can be done by an “Executive Agreement”
a. Amazingly, Never in American History has the Supreme
Court declared an executive agreement unconstitutional as
overpowering Senate’s treaty-approving function
3. HOWEVER … The President does NOT have the power to settle claims against foreign
governments through an Executive Agreement … UNLESS … Congress approves the
president’s actions (Danes & Moore 1981)
Are Foreign Policy and Domestic Affairs Different?
- YES … The powers of the federal government regarding Foreign Affairs
are more expansive than those regarding Domestic Affairs (Curtiss-Wright
1936)
- The President’s powers over international relations are NOT restricted by
the Constitution as much as Domestic Affairs
1. The President has the exclusive power to Negotiate Treaties
2. The President can speak or listen as a representative of the country
C. Presidential Power and the War on Terrorism
The President and Congress always struggle over control of the war power in the Constitution
Article I* – Congress has the power to Declare War –AND- the authority to raise and support
the army and the navy
- HOWEVER … Article II* makes the President the Commander in Chief of
that army
- Thus, the President may import troops into foreign nations (for any reason)
without interference
 In 2004, the Supreme Court decided a major case concerning civil liberties and the war on
terrorism … A U.S. citizen designated and detained as an enemy-combatant has a Due
Process Right to challenge the underlying factual support for that designation before a
neutral arbitrator (Hamdi 2004)





Military Tribunals
-
Military Tribunal – refers to a military court designed to try members of
enemy forces during wartime (Ex Parte Quirin 1942)
D. Checks of the President
The President has absolute immunity from civil damages lawsuits while in office (Nixon 1982)
- HOWEVER … The President is NOT immune from civil damages lawsuits
prior to taking office (Clinton v. Jones 1997)
Impeachment
-
Article II* – The President, Vice President, and all U.S. Officers shall be
removed from Office on Impeachment for …
1. Treason
2. Bribery
3. High Court Crimes & Misdemeanors (acts that violate criminal law)
- The House of Representatives has the sole power to impeach
1. HOWEVER … The Senate must hold the impeachment trial
2. A 2/3 vote of Senate is needed to impeach a President.
Impeachment:
-
Article II, §4 states that:
o It is important to distinguish between impeachment and conviction; only the latter
results in an official being removed from office.
- Impeachable offenses are not limited to conduct that is criminally punishable.
- On the other hand, not every crime would necessarily constitute a basis for impeachment.
The high crimes and misdemeanors for which impeachment may occur involve conduct that:
1. Entails an abuse of power
2. A serious breach of trust, or
3. Demonstrates
an
official’s
unsuitability
for
office.
-
If the conduct that led to an impeachment conviction happens also to be criminal, Article
I, §3 makes clear that the official may be criminally prosecuted.
Impeachment: Process
1. The House of Representatives have the sole power of impeachment. If the House cotes
out articles…
2. The officer will be removed from office if two thirds…
3. During the Senate trial, members of the house serve as…
4. If the President of the US is being tried, the Chief Justice presides over the trial; otherwise,
the impeachment process rests entirely in the hands of Congress,
Prosecuting the President
- The President, VP, and other executive branch officials do not enjoy immunity from criminal
actions. Article §3, cl.7
Absolute Civil Damages Immunity:
- Nixon v. Fitzgerald
o “in view of the special nature of the President’s constitutional office and functions,
we think it appropriate to recognize absolute Presidential immunity room damages
liability for acts within the ‘outer perimeter’ of his official responsibility.”
- The President’s absolute immunity from damages liability for acts within the “outer
perimeter” of his official duties does not extend to:
Lawsuits arising from conduct that occurred before the President took office. Clinton v.
Jones.
3. Checking Administrative Power
THE APPOINTMENT POWER
Morrison v. Olson
The difference between principal officers, inferior officers turns on an assessment of the amount
of authority attaching to the position in question.
Factors the Court has used to make the assessment:
1. Source of supervision
2. The amount of independence
3. The nature and extent of the official’s duties, and whether or not they include
policymaking functions;
4. The position’s tenure in terms of whether it is continuing, temporary, or intermittent, and
the circumstances under which the official may be removed.
Rule: Congress cannot reserve for itself the authority to appoint officers of the US.
- This conclusion flows directly from the language of the Appointments Clause.
- The menu of options contained in Article II, §2 does not include vesting the appointment of
principal or inferior officers in Congress or in any of its members.
THE REMOVAL POWER:


Nowhere in Constitution does it say President has authority to remove executive branch
officials
It comes from case precedent, unless the removal is limited by statute

-
-
Congress may limit by statute if both (1) the office is one where independence from the
president is desirable and (2) the law does not prohibit removal but rather limits removal to
instances where good cause is shown.
The Constitution is almost completely silent on the question of who possesses the authority to
remove federal officials from office.
o Impeachment is covered in Articles I and II
Most of the issues involving the removal process have arisen out of efforts by Congress to
restrict the President’s power to dismiss executive branch officials.
Issue: Without the ability to limit the president’s removal authority it would be impossible for Congress
to create independent agencies that operate free of partisan influence and executive control.
Congressional Participation in the Removal Process
- Congress has at times sought to reserve for itself a role in the removal of executive branch
officials.
- The court has flatly rejected these effort, holding that it violates separation of powers for
Congress to “draw itself” other than through impeachment, the power to remove or the right
to participate in the exercise of that power.
Assigning Removal Authority to an Executive Official Other than the President
- Congress may curtain the President’s ability to remove executive officers by vesting the
authority to remove to a particular official in some executive branch other than President.
- Example: Assistant US Attorneys.
Assigning Removal Authority to an Executive Official Other than the President
- Another way to limit the President’s removal power is to provide that a particular executive
branch official may be removed only for cause.
- This restriction is valid unless the nature of the position makes it “essential to the president’s a
proper execution of his Article II powers” that the officer be “removable at will.” Morrison v.
Olson.
The Impeachment of Andrew Johnson
-
Johnson was president at end of Civil War after Lincoln
People felt he was keeping the North from getting their benefits of winning
Congress passed the Tenure in Office Act so he could not fire any key members from his
cabinet
Secretary of War, Stanton challenged this and Johnson fired him (against the Tenure in
Office Act policy)
The House voted articles of impeachment because of this
The Senate was one vote short so Johnson finished his term as President
Myers v. United States (1926)(pg. 359)
Facts: Myers was appointed by President and consented by Senate to be postmaster in Oregon for
a four-year term. After three years the President demanded his resignation. He refused but was
removed from office anyway. Sues for amount of his salary for remaining year he was to serve.
Issue: Can President remove person from position once appointed and confirmed?
Holding: Yes, if it was meant for the President to not have this ability it would be stated
expressly…the fact that executive power is given in general terms, strengthened by specific terms,
and limited by direct expressions where limitation is needed; the fact that no express limit is placed
on power of removal shows that none was intended
Humphrey’s Executor v. United States (1935)(pg. 360)
o Facts: Humphrey was appointed by President Hoover as Federal Trade Commission and
confirmed by the Senate. But President Roosevelt wrote him a letter asking him to resign saying
he felt the office could be run most efficiently with his own personnel. Humphrey refused to
resign, and Roosevelt responded with a letter saying he was removed.
o Issue: Is the President allowed to remove a Federal Trade Commissioner for reasons other than
stated in the Act (any commissioner may be removed by the President for inefficiency, neglect
of duty, or malfeasance in office)
o Holding: No, the language of the act and purpose of the legislation is intended to form a body
who will gain experience over their length of service, and who shall be free to exercise their
judgment without worrying what an official might do
Weiner v. United States (1958)(pg. 362)
-
Same as previous case
Weiner was appointed by Truman and confirmed by Senate to the War Claims Commission (this
Commission had claims that compensated internees, prisoners of war, and religious
organizations). When Eisenhower got in office he requested his resignation so that Eisenhower could
have someone of his own selection on the commission. Weiner said no, President removed him
Holding: This is unconstitutional, this power to remove for basically no reason is not given to the
President in the Constitution, and is not implied by the statute either
Bowsher v. Syner (1986) (pg. 363)
Deals with the Comptroller General of the US who is a legislative office and carries out the functions
of the Balanced Budget and Emergency Deficit Control Act
Issue: Whether the removal of the Comptroller General by Congress is constitutional?
Holding: No, because this office is seen as an officer of the legislative branch (the President picks
from 1 of 3 guys, the 3 are recommended by the Speaker and President pro Tempe and confirmed
by Senate), and having someone who is responsible for executing a legislative act (Balanced
Budget and Emergency Deficit Control Act) by an officer who is subject to removal only by the
legislative branch (Congress), Congress has complete control over this entire Act and office, violates
separation of powers.
Myers à purely executive officials, must be removable by the President at will if he is to be able to
accomplish his constitutional role
Humphrey’s Executor and Weiner à quasi-legislative and quasi-judicial, not essential to the
President’s proper execution of his Article II powers that these agencies be headed up by individuals
who were removable at will
Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)(pg.366)
Facts: A new Public Company Accounting Oversight Board was created to regulate the accounting
industry. The Securities and Exchange Commission appoints this board. The problem is the President
can remove members from the Securities and Exchange Commission but only that Commission can
remove people from the Public Company Accounting Oversight Board, so the President doesn’t
have direct removal of that board.
Issue: Is the fact that the President does not have the ability to directly remove members from the
lower board an issue?
Holding: Yes, these board members multi level protection from removal violates the President’s
executive power found in Article II. The Securities Exchange Commission has the power to decide
whether the members are acting in good cause, and that commission is not answerable to the
President, thus he has no direct control over the lower board.
Dissenting (Breyer, Stevens, Ginsburg, and Sotomayor)
Chapter 2 The Federal Legislative Power
Guide for class The area of federal legislative power focuses on federalism and the allocation of power between
the national and state governments. When reading the materials assigned for Feb 24 think on
how the Court defined federalism in McCulloch v. Maryland.
The major questions of the unit are:
1. What is the proper allocation of responsibility between the states and national governments?
2. Are states just a historical anachronism or do they serve some continuing function?
3. What role should the courts play in enforcing the division of power between the federal and state
governments?
I hope these questions will help you to better navigate the materials.
McCulloch v. Maryland: Guide questions
1. Which 4 arguments Maryland uses to say that Congress does not have the authority to
establish a national the bank?
2. What is the Court’s answer to each argument?
3. Why Maryland says it can impose a tax on the bank? What is the Court’s answer to this
argument?
(1) The federal government has the power to create this bank – by taxing it gives the
states the power to destroy it! This is UNCONSTITUTIONAL – state cannot tax a
federal government.
National Federation of Independent Business v. Sebelius (2012) will be used to understand the
following topics:
 Necessary and proper clause
 Commerce power
 Spending power
McCulloch v. Maryland
- States didn’t create the national government. The people did; deferral power does not
emanate from the states, but rather from the people.
- This issue is of great importance: If states were sovereign they could say no to any federal
action:
o Federal government was to enact civil rights law and states didn’t like it, the states
could simply say no. Ultimately, state power would be supreme.
- McCulloch says no and establishes supremacy of federal law. “The government of the
Union is supreme within its sphere of action.”
-
The key case interpreting the Necessary and Proper Clause is McCulloch v. Maryland.
The Necessary and Proper Clause grants power to Congress to enact laws that are
convenient, useful or conductive to the implementation of an enumerated power.
o It is NOT a limit on Congressional power.
McCulloch v. Maryland
United States Supreme Court, 17 U.S. (4 Wheat.) 316 (1819)
Rule of Law
The Constitution specifically delegates to Congress the power to tax and spend for the general
welfare, and to make such other laws as it deems necessary and proper to carry out this
enumerated power. Additionally, federal laws are supreme and states may not make laws that
interfere with the federal government’s exercise of its constitutional powers.
Facts
In 1816, Congress passed an act that incorporated the Bank of the United States. In 1817, the Bank
opened up a branch in the state of Maryland (plaintiff). In 1818, the Maryland state legislature
passed an act to impose a tax on all out-of-state banks operating in the state of Maryland.
Although the act was general in nature, the Bank of the United States was the only such bank in
Maryland at that time and was thus the only establishment affected by the tax. James
McCulloch (defendant), head of the Maryland branch of the Bank of the United States (Bank),
refused to pay the tax. This lawsuit ensued and the case was appealed to the Maryland Court of
Appeals. The court of appeals upheld Maryland’s argument that because the Constitution was
specifically silent on the subject of whether the United States government could charter a bank,
the Bank of the United States was unconstitutional. The case was then appealed to the United
States Supreme Court.
Issue
(1) Does Congress have implied constitutional power to create a bank. (2) If so, may individual
states tax a federally-created bank?
Holding and Reasoning (Marshall, C.J.)
(2) Yes. Congress has the constitutional power to charter the Bank of the United
States. This power is ultimately derived from the Constitution’s grant to Congress of
the general power to “tax and spend” for the general welfare. However, in
addition to its enumerated powers, Congress is also given general powers under
the Constitution’s Necessary and Proper Clause, which states that Congress may
create laws it deems necessary and proper to help carry out its enumerated
powers. The Necessary and Proper Clause functions to expand, not limit,
Congress’s enumerated powers. Congress decided that chartering the Bank of
the United States was a necessary and proper method of raising revenue to carry
out its overall taxing and spending powers. (2) No. The Bank was created by
federal statute. Maryland may not tax the Bank as a federal institution because
federal laws are supreme to state laws. A federally-created institution may not be
inhibited by a state law. The Bank of the United States functions to serve the entire
nation. It is thus inappropriate for it to be controlled by one part of the nation (i.e.
Maryland) through a tax. The judgment of the court of appeals is reversed.
The Necessary and Proper Clause
Test: Whether the law constitutes a means that is rationally related to the implementation of a
constitutionally enumerated power.
Example: United States v. Comstock (2010)
-
The clause applies not only to the powers described in Article I, Section 8.
o Congress may rely on the Necessary and Proper Clause as a means to execute all
constitutionally granted powers including those vested in the executive and judicial
powers.
o In other words, the clause empowers Congress to provide the coordinate branches
with the means to carry out their respective constitutional responsibilities.
National Federation of Independent Business v. Sebelius
United States Supreme Court, 132 S.Ct. 2566 (2012)
Rule of Law
The individual mandate contained in the Patient Protection and Affordable Care Act of 2010 is a
valid use of Congress’s power to tax, but the Medicaid expansion provision is an unconstitutional
use of Congress’ spending powers.
Facts
The National Federation of Independent Business, 25 states, and a number of individuals and
businesses (collectively Plaintiffs) filed suit in several different federal district courts against
Kathleen Sebelius, Secretary of the Department of Health and Human Services and others
(collectively Defendants) challenging the constitutionality of the Patient Protection and
Affordable Care Act of 2010 (the Act) enacted by Congress. Specifically, Plaintiffs claimed that
two provisions of the Act, the individual mandate, which required U.S. citizens to pay a penalty if
they did not purchase a health insurance policy, and the Medicaid expansion provision, which
required the States to adhere to a number of restrictions in exchange for receipt of federal
funds, were unconstitutional. The several district courts reached different conclusions. The U.S.
District Court for Northern District of Florida held in favor of Plaintiffs and struck down the Act in its
entirety. The Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part. The
U.S. Supreme Court granted certiorari to review and to resolve the split among the appellate
courts.
Issue
Is the individual mandate contained in the Patient Protection and Affordable Care Act of 2010 a
valid use of Congress’s power to tax and is the Medicaid expansion provision an unconstitutional
use of Congress’ spending powers?
Holding and Reasoning (Roberts, C.J.)
Yes. Plaintiffs challenge the constitutionality of two provisions of the Act, namely, the individual
mandate and the Medicaid expansion provision. The individual mandate requires most
Americans to maintain “minimum essential” health insurance coverage. If an individual is unable
to secure health insurance coverage he must pay a “shared responsibility payment” or
“penalty” to the Internal Revenue Service (IRS) as part of paying annual taxes. The Medicaid
expansion provision tied federal funding to States to assist pregnant women, children, needy
families, the blind, the elderly, and disabled in obtaining health care to comply with a number of
restrictions. If the State fails to comply with the requirements it could lose all Medicaid funding.
Plaintiffs argue that Congress lacked the constitutional authority to enact the Act in its entirety,
but specifically the individual mandate and Medicaid expansion. Defendants claim that both
provisions are allowable under Congress’s power to regulate commerce and, in the alternative,
the federal government’s ability to tax and spend. The individual mandate, however, does not
regulate existing commercial activity. Instead, the mandate compels individuals to become
active in commerce by purchasing a product on the ground that their failure to do so affects
interstate commerce. In that regard, the mandate imposing a “penalty” is more akin to a tax.
The penalty is paid to the IRS when individuals file their tax returns, the amount paid is
dependent upon household income, and as a result, revenue is generated for the federal
government. It is therefore reasonable to construe what Congress has done as increasing taxes
on those who have a certain amount of income, but choose to go without health insurance.
Such legislation is within Congress’ power to tax. Plaintiffs next claim the Medicaid expansion
exceeds Congress’s authority under the Spending Clause and violates the principle that the
federal government cannot compel the States to enact or administer a federal regulatory
program like Medicaid. The Medicaid expansion violates the Constitution. Congress has no
authority to order the States to regulate according to its instructions. Congress may offer the
States grants and require them to comply with accompanying conditions, but the States must
have a genuine choice whether to accept the offer. The States are given no such choice here.
They must either accept a basic change in the nature of Medicaid or risk losing all Medicaid
funding. The entirety of the Act does not fail however as a result. The PPACA is constitutional in
part, and unconstitutional in part.
Dissent (Scalia, J.)
The entire Act must fail because Congress completely lacks the authority to require the individual
mandate and also to require the States to comply with the intentionally coercive restrictions
placed upon them by the Medicaid expansion provision.
Concurrence/Dissent (Ginsburg, J.)
With over 50 million Americans without health insurance coverage, by passing the Affordable Care
Act, Congress sought to assist over 50 million Americans who lack health insurance coverage
and to reduce the nation’s overall rising health care costs. The individual mandate, an integral
part of the overall Act, bears a reasonable connection to Congress’ authority to regulate
interstate commerce. Additionally, the Medicaid expansion provision simply requires states to do
what they have always done, namely, to continue to comply with the conditions Congress has
set forth to receive Medicaid funds.
The Commerce Clause:
Three questions:
1. What is congress? Congress can regulate commerce among STATES.
2. What is the meaning of “among the states” or interstate commerce?
- It means intermingled with
1. What role, if any, does the tenth amendment have?
Gibbons v. Ogden
United States Supreme Court, 22 U.S. (9 Wheat.) 1 (1824)
Rule of Law
If a state and Congress both pass conflicting laws regulating interstate commerce, the federal
law governs pursuant to Congress’s constitutional grant of power to regulate interstate
commerce.
Facts
Ogden (plaintiff) received a license under New York state law to operate commercial
steamboats on New York waters. Gibbons (defendant) was also given permission from the
United States Congress to operate steamboats in those same waters in an effort to help regulate
coastal trade. Ogden filed suit in the New York Court of Chancery to enjoin Gibbons from
operating his boats in New York waters. Gibbons argued that he was operating his boats
pursuant to an order of Congress, and that Congress has exclusive power under Article I, Section
8 of the Constitution to regulate interstate commerce. The New York Court of Chancery found in
favor of Ogden and issued an injunction to restrict Gibbons from operating his boats. Gibbons
appealed the case to the Court of Errors of New York, which affirmed the decision. Gibbons
appealed to the United States Supreme Court.
Issue
May a state regulate interstate commerce within its borders when Congress also chooses to
regulate interstate commerce in the same area?
Holding and Reasoning (Marshall, C.J.)
No. Congress is granted the power to regulate interstate commerce in Article I, Section 8 of the
Constitution. The word “commerce” includes traffic, intercourse and navigation, as well as
commodities associated with interstate commerce. With the exception of completely internal
commerce, Congress may regulate all commercial activities occurring between states but
within one state’s borders. Thus, Congress has the power to regulate the interstate commercial
activity of steamboats on navigable waters within the state of New York. Since Congress has the
power to regulate this activity and New York passed conflicting regulations of the same activity,
federal supremacy principles dictate that the federal regulation trump the state regulation. Thus,
the New York regulatory law is deemed unconstitutional. The decision of the Court of Errors
prohibiting Gibbons from operating steamboats in New York is reversed.
Concurrence(Johnson, J.)
The only issue that ultimately needs to be determined is the intent of the framers in construing
Congressional powers. The grant of power by the framers to Congress to regulate interstate
commerce is absolute. Additionally, when the framers gave Congress the power to regulate
commerce, they gave it the power to regulate all subsidiary activities that accompany it, such
as shipbuilding, carrying trade, and the propagation of seamen. Gibbons’ power to run his boats
is derived from the framers’ intent to accord Congress the power to regulate all areas of
interstate commerce, not the states.
History/Evolution Timeline:
19th Century: Expansive view: Congress may regulate Commerce that has interstate Effects,
even if the activity occurs within a single state
19th Century to 1890 – Gibbons v. Odgen (1824)
What is commerce?
- Commerce is traffic (buying, selling, interchange) but it is something more: it is
intercourse.
- Commerce includes navigation.
What is among the states”?
- Commerce that has interstate effects.
- Congress cannot regulate purely internal commerce.
- But for Commerce that has interstates effects Congress can even regulate that which
ccurs within state.
10th Amendment role?
- The 10th Amendment does not reserve a zone of activities for exclusive state control
- If Congress has the authority to act, the power is complete and acknowledges no
limitation.
1890s- 1937: DUEL FEDERALISM: Congress may regulate commerce only if there is a direct effect
on interstate commerce.
What is commerce?
 Narrow definition of commerce.
 Mining, manufacturing, production are NOT commerce.
o Carter v. Carter Coal
What is “among the states”?
 Commerce that have a direct effect on interstate commerce.
 Congress may regulate when there is a direct effect on interstate, but it can’t if the
effect is indirect.
o Schechter Poultry
10th Amendment role?
 Reserves control of activities of “production: to the states even if the activity is
commerce among the states.
o Hammer v. Dagenhart
 What is left for the states to regulate?
The pressures that led to broad Federal Commerce Power
1. Roosevelt believed that his reelection in 1936 was a mandate for a national economic
recovery plan.
2. Economic pressures of the depression:
 The depression created a need for a national economic policy. There were 13 million
people unemployed. 32 million had no source of income whatsoever. The average
weekly wage for those with jobs was $16. Welfare was virtually non-existent.
3. Roosevelt’s Court Packing Plan:
 Justice Roberts switched from voting with majority to voting with the dissent---- this is
how we got rid of the Dual Federalism era and the Lochner era.
1937- 1990: Expansive view: Commerce includes all stages of business. Congress may regulate
any activity that has an effect in interstate commerce
1937- 1990’s BROAD FEDERAL COMMERCE POWER:
What is commerce?
 Commerce includes all stages of business.
 The distinction between commerce and production is discarded
o NLRB v. Jones Laughlin
o US v. Darby
o Wickard v. Filburn
What is “among the states”?
 Any activity that has an effect in interstate commerce.

TEST: Congress can regulate if it rationally believes there is an effect
on interstate commerce.
o Wickard v. Filburn
o Heart of Atlanta Motel
o BBQ Case
10th Amendment role?
 Just a truism (the obvious), reminder that for Congress to act it must have authority
under the Constitution
o US v. Darby
o Garcia v. San Antonio: The only limit is that of political process.
Current Test: Lopez and Morrison
Three categories of valid intestate commerce regulation:
1. Regulation of the channels of interstate commerce
 Examples: highways, waterways, bridges, railroad tracks
2. Regulation of the instrumentalities, persons or things on interstate commerce
 Examples: buses, trucks, airplanes, boats, goods
3. Regulation of intrastate activities that substantially affect interstate commerce.
Part I
 An intrastate activity is economic when:
1. The activity itself is economic in nature, or
2. The activity is an essential part of a larger regulation of economic activity.
Part II
 Does the activity substantially affect interstate commerce?
 Test: May Congress could have rationally concluded that the regulated activity has
a substantial economic effect on interstate commerce?
o This test shows great deference to the judgment of Congress,
 The substantial economic effects can be found in the aggregate
o Wheat and marijuana for personal consumption; travelers who stay at
hotels that discriminate based on race.
 When Congress validly regulates intrastate activities that substantially affect I
interstate commerce, it can regulate every instance of the activity.
Regulation of non-economic intrastate activities that substantially affect interstate commerce
 When Congress regulates an intrastate non-economic activity, the court is less
deferential.
 The Court will be more likely to uphold the regulation if the statute contains a:
1. Jurisdictional element establishing the connection of the non-economic
activity to the interstate commerce, or
2. Congressional findings demonstrating the existence of a substantial economic
effect on interstate commerce.
 The presence or absence of Congressional findings are not determinative, but may help
to demonstrate the existence of a substantial economic effect on interstate commerce.
 The substantial effect cannot be based on an attenuated series of links in a chain that
may connect the non-economic activity to interstate commerce.
1990’s - Present Federalism as a Limit to Congress CC Powers
What is commerce among the atates?
 Channels of interstate commerce
 Instrumentalities, persons or things in the interstate commerce
 Intrastate activity that substantially affects interstate commerce
o US v. Lopez
o US v. Morrison
 Division between economic and non-economic activity
o Gonzalez v. Raich
10th Amendment role?
 Is a limit to Congress’ power
o
NLRB v. Jones & Laughlin Steel Corp.
United States Supreme Court, 301 U.S. 1 (1937)
Rule of Law
Congress may regulate labor relations under its Commerce Clause power because labor
relations have such a close and substantial relationship to interstate commerce that their control
is essential to protect that commerce from burdens and obstructions.
Facts
In 1935, Congress passed the National Labor Relations Act (NLRA) which created the National
Labor Relations Board (NLRB) (defendant) to enforce federal fair labor practice standards,
including the right of employees to unionize. After Jones & Laughlin Steel Corp. (JLSC) (plaintiff)
fired ten employees that attempted to unionize at one of its Pennsylvania plants, the NLRB
sanctioned the company for engaging in discriminatory employment practices in violation of
federal standards. JLSC brought suit alleging that the NLRA was an unconstitutional exercise of
Congress’s interstate commerce power, and the lower courts agreed. The NLRB appealed to the
Supreme Court.
Issue
May Congress regulate labor relations under its Commerce Clause power to regulate interstate
commerce?
Holding and Reasoning (Hughes, C.J.)
Yes. The power to regulate interstate commerce is plenary and is vested solely in Congress. The
power to regulate commerce includes the power to enact all appropriate legislation for its
protection or advancement; to adopt measures to promote its growth and insure its safety; and
to foster, protect, control, and restrain interstate commercial activities. The activity in question
involved the ability of employees to unionize without facing discriminatory measures. While JLSC
argues that this activity deals purely with the production of commercial products and is thus
local in nature, JLSC needs to consider the overall effect on interstate commerce of the labor
practice involved. The stoppage of operations due to industrial strife between employers and
employees could have a significant detrimental impact on interstate commerce. Thus, because
of the potential for harm to the stream of interstate commerce stemming from unfair labor
practices and disgruntled employees, it is within Congress’s plenary power under the Commerce
Clause to regulate labor relations. The decision of the lower courts is reversed.
Dissent (McReynolds, J.)
The majority departs from settled principles established in precedent cases such as A.L.A.
Schechter Poultry Co. v. United States, 295 U.S. 495 (1935), and Carter v. Carter Coal Co., 298 U.S.
238 (1936). In each case, the Court held that Congress did not have the power to regulate
employment issues because labor matters only affect production of goods and thus have no
bearing on interstate commerce. Congress may regulate interstate commerce only. In
departing from these precedents, the Court risks empowering Congress to regulate even the
smallest businesses in the smallest of industries. The majority should have followed precedent and
affirmed the decisions of the lower courts.
United States v. Darby
United States Supreme Court, 312 U.S. 100 (1941)
Rule of Law
Congress may regulate the labor standards involved in the manufacture of goods for interstate
commerce and may exclude from interstate commerce any goods produced under
substandard labor conditions.
Facts
Congress passed the Fair Labor Standards Act (FLSA) to prevent the introduction and shipment
of goods produced under labor conditions that failed to meet federal standards from entering
the stream of interstate commerce. The United States government (plaintiff) brought suit in the
District Court for the Southern District of Georgia against Darby Lumber Company (defendant)
alleging that the company engaged in labor practices that fell short of the FLSA’s standards with
the intent of manufacturing goods to be sold in interstate commerce. The district court quashed
the indictment of Darby, and the court of appeals affirmed. The United States government
appealed to the United States Supreme Court.
Issue
May Congress prohibit the shipment of goods in interstate commerce made by workers in unfair
employment conditions and the employment of such workers in manufacturing goods for
interstate commerce?
Holding and Reasoning (Stone, J.)
Yes. While manufacturing is not itself interstate commerce, the shipment of manufactured goods
between states falls within the definition of commerce and is thus capable of regulation by
Congress under its plenary Commerce Clause powers. Hammer v. Dagenhart, 247 U.S. 251
(1918), holding that Congress may regulate only articles of commerce themselves and not the
conditions under which they are produced, is overruled. The power of Congress over interstate
commerce is absolute and is subject only to limitations prescribed by the Constitution. The
present holding has no effect on the Tenth Amendment’s assertion that all powers not given to
the federal government are reserved to the states. In passing the FLSA, Congress merely
exercised powers accorded to it under the Constitution and did not usurp power from the states.
The decision of the court of appeals is reversed.
Wickard v. Filburn
United States Supreme Court, 317 U.S. 111 (1942)
Rule of Law
Congress may regulate local activity if that activity exerts a substantial economic effect on
interstate commerce.
Facts
During the Great Depression of the 1930s, President Franklin Roosevelt and the Democraticcontrolled Congress passed many “New Deal” programs designed to improve the poor
economic climate in the United States. One such program was the Agricultural Adjustment Act
of 1938, which limited the area that farmers could devote to wheat production in an effort to
stabilize the national price of wheat. Filburn (plaintiff), a small farmer, was penalized pursuant to
the Act for producing wheat in excess of the Act's quotas. Filburn filed suit against Secretary of
Agriculture Wickard (defendant), seeking to enjoin enforcement against himself of the penalties.
Filburn argued that because the excess wheat was produced for his own private consumption
and never entered the stream of commerce, his activities could not be regulated by Congress
under the Commerce Clause. The district court agreed with Filburn that Congress’s regulations
were unconstitutional, and the circuit court affirmed. Wickard appealed to the United States
Supreme Court.
Issue
May Congress regulate, under the Commerce Clause, the production of wheat designed wholly
for individual consumption and not for sale in commerce, interstate or otherwise?
Holding and Reasoning (Jackson, J.)
Yes. Congress may regulate local activity if that activity exerts a substantial economic effect on
interstate commerce. By growing his own wheat, Filburn decreases the amount of wheat
purchased in the market and negatively impacts the price of wheat grown for interstate
commerce. It does not matter that Filburn himself only exerts a small impact on the wheat
market. When taken together with all the other farmers similarly situated, Filburn’s activity has a
substantial economic effect on interstate commerce. On account of the aggregate effect of
homegrown wheat on the commercial wheat market, Congress may regulate Filburn’s activities.
The decision of the circuit court is reversed.
Heart of Atlanta Motel, Inc. v. United States
United States Supreme Court, 379 U.S. 241 (1964)
Rule of Law
Congress may enact regulations that prevent racially discriminatory policies in hotel
accommodations because of the negative effects of those policies on interstate commerce.
Facts
In 1964, Congress passed the Civil Rights Act (CRA). Title II of the CRA forbids racial discrimination
by places of public accommodation such as hotels and restaurants. The Heart of Atlanta Motel,
Inc. (plaintiff) in Atlanta, Georgia advertises to and hosts primarily out-of-state guests. The motel
practices a policy of refusing to rent rooms to African Americans and brought this suit against
the United States government (defendant) in the District Court for the Northern District of
Georgia to challenge the CRA as an unconstitutional extension of Congress’s power to regulate
interstate commerce. The district court upheld the CRA as constitutional. The court of appeals
affirmed. Heart of Atlanta appealed to the United States Supreme Court.
Issue
May Congress enact the Civil Rights Act as a measure to regulate interstate commerce?
Holding and Reasoning (Clark, J.)
Yes. Under the Commerce Clause, Congress has the power to remove obstructions and
restraints to interstate commerce. The unavailability to African Americans of adequate
accommodations interferes significantly with interstate travel. Moreover, evidence shows that
racial discrimination has a disruptive effect on commercial intercourse. Passage of the CRA is a
constitutional use of Congress’s plenary power to regulate interstate commerce. The decision of
the district court upholding the CRA is affirmed.
Concurrence (Black, J.)
Congress has the power to regulate the motel’s activities because of the potential for its
discriminatory policies to have a substantial effect on African American travel and thus interstate
commerce. Heart of Atlanta operated a very large establishment. Its continual discrimination
would ultimately have a large impact on interstate commerce. Additionally, Heart of Atlanta’s
argument that the Civil Rights Act violated its due process rights under the Fifth and Fourteenth
Amendments is rejected. The purpose of provisions such as the Fifth and Fourteenth
Amendments is largely to protect marginalized groups from discrimination. African Americans
have been exposed traditionally to significant discrimination, which was largely the reason
Congress passed the Fourteenth Amendment. Hence it would be highly inappropriate and ironic
to permit Heart of Atlanta to use the guarantee of due process under the Fourteenth
Amendment to strip Congress of its power to protect African Americans from further
discrimination.
Concurrence (Douglas, J.)
The majority should have rested its decision on Section 5 of the Fourteenth Amendment, which
protects the right of all persons to move freely from state to state. This reasoning is sounder than
resting the Court’s decision on the Commerce Clause which has traditionally been interpreted
to allow Congress to pass regulations promoting the free movement of goods and commodities.
Concurrence (Goldberg, J.)
Congress had a responsibility to pass the Civil Rights Act in order to uphold human dignity.
Section 5 of the Fourteenth Amendment authorizes Congress to pass anti-discrimination
legislation. The majority’s decision should rest on both the Fourteenth Amendment and the
Commerce Clause.
Katzenbach v. McClung, Sr. & McClung, Jr.
United States Supreme Court, 379 U.S. 294 (1964)
Rule of Law
Congress may regulate the discriminatory policies of restaurants through Title II of the Civil Rights
Act if those policies have a substantial effect on interstate commerce.
Facts
In 1964, Congress passed the Civil Rights Act (CRA). Title II of the CRA forbids racial discrimination
by places of public accommodation such as hotels and restaurants. The McClungs (defendants)
own and operate Ollie’s Barbecue in Birmingham, Alabama and refuse to serve African
American customers. Approximately half of the food served by the restaurant has moved in
interstate commerce. Katzenbach (plaintiff), acting for the United States government, brought
suit to enjoin the McClungs’ discriminatory practices in federal district court. The district court
issued an injunction preventing enforcement of the Act against the McClungs. The United States
government appealed. This case was decided by the United States Supreme Court along with
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
Issue
May Congress regulate a restaurant receiving a significant amount of food purchased in
interstate commerce under Title II of the Civil Rights Act of 1964?
Holding and Reasoning (Clark, J.)
Yes. Extensive testimony given before Congress in the adoption of Title II of the CRA suggests that
established restaurants in areas known for discriminating against African Americans sell less
interstate goods because of the discrimination; that interstate travel is obstructed directly by it;
that business in general suffers; and that many new businesses avoid the location as a result.
When legislators, in light of the facts and testimony before them, have a rational basis for finding
a chosen regulatory scheme necessary to the protection of commerce, the judicial inquiry ends.
Here, in light of the testimony before the legislature, Congress had a rational basis for finding that
racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate
commerce. This, combined with the lower court’s finding that a significant portion of the food
served at Ollie’s Barbecue traveled in interstate commerce, permits Congress to regulate the
McClung’s actions pursuant to its Commerce Clause power. The district court’s holding that
there is no connection between discrimination and the movement of interstate commerce is
overruled.
Garcia v. San Antonio Metropolitan Transit Authority
United States Supreme Court, 469 U.S. 528 (1985)
Rule of Law
Congress’s application of the Fair Labor Standards Act to the employment actions of a state
municipal transit authority is a constitutional exercise of its Commerce Clause power.
Facts
Congress passed the Fair Labor Standards Act (FLSA) in 1938, but ruled in National League of
Cities v. Usery, 426 U.S. 833 (1976), that the FLSA did not grant authority to Congress to regulate
the wages, overtime pay, and hours of state government employees. The San Antonio Metro
Transit Authority (SAMTA) (defendant) had previously paid its state employees according to the
federal standards established in the FLSA, but ceased doing so after the Supreme Court’s
decision in National League of Cities. In 1979, the Wage and Hour Administration of the United
States Department of Labor ruled that SAMTA could be regulated by the FLSA because its
actions were not a “traditional government function” reserved for the states under National
League of Cities. SAMTA then filed suit against the United States Department of Labor in the
United States District Court for the Western District of Texas seeking a declaratory judgment that
its actions were not subject to congressional regulation. Garcia (plaintiff) and other employees
of SAMTA also filed suit at the same time against SAMTA claiming overtime back-pay. The district
court allowed Garcia to intervene as a defendant in SAMTA’s suit against the United States
Department of Labor. The district court ruled for SAMTA. Garcia and the Department of Labor
appealed directly to the United States Supreme Court. The United States Supreme Court
remanded the case, and the district court again ruled for SAMTA. On appeal the second time,
the United States Supreme Court considered the case.
Issue
May Congress apply the Fair Labor Standards Act to govern the employment actions of a state
municipal transit authority?
Holding and Reasoning (Blackmun, J.)
Yes. The lower courts have had difficulty applying National League of Cities because of that
holding’s lack of clarity as to what state activities constitute “traditional government functions”
and are thus protected from congressional regulation under the Commerce Clause. National
League of Cities is overruled on the grounds that its holding is unnecessary to protect state
sovereignty as required by the Tenth Amendment. It is important, under true principles of state
sovereignty, that states be free to engage in any activities its citizens deem appropriate, not just
those approved on the grounds that they constitute “traditional government functions.”
Additionally, systems to protect state sovereignty are already built into the structure of the
federal government itself. States play a significant role in electing representatives to the
legislative and executive branches of the federal government. Elected representatives then
continue to represent the interests of their states while in office. States are also vested with
indirect control over the House of Representatives and the Presidency by virtue of their control of
electoral qualifications. Moreover, the fact that states have been able to channel federal
funding into their respective treasuries to finance public works programs indicates that the
political process is adequately functioning to provide for their needs. The decision of the district
court is reversed.
Dissent(Powell, J.)
The Court’s decision substantially alters the federal system designed by the framers and
embodied in the Constitution to protect states’ rights. The majority completely ignores principles
of stare decisis in overruling National League of Cities and greatly weakens the power of the
Tenth Amendment to stand as an important safeguard of state sovereignty. The Court does not
adequately explain how states’ role in the electoral process protects them against exercises of
the Commerce Clause power infringing their sovereignty. While members of Congress are
elected from various states, once in office they are members of the federal government; and
although states participate in the Electoral College, the President is not a representative of
states’ interests against federal encroachment. Indeed, the Court’s decision makes federal
political officials the sole judges of their own power.
Dissent(Rehnquist, J.)
Both Justice Powell’s and Justice O’Connor’s dissents outline a more prudent way of deciding
the case that one day will be recognized by a majority of the Court.
United States v. Lopez
United States Supreme Court, 514 U.S. 549 (1995)
Rule of Law
Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the
possession of a gun near a school.
Facts
In 1990, Congress passed the Gun-Free School Zones Act (GFSZA), making it a federal offense
"for any individual knowingly to possess a firearm in a place that the individual knows, or has
reasonable cause to believe, is a school zone." Lopez (defendant), a student who brought a gun
to his high school, was confronted by school authorities, arrested, and charged with violating the
GFSZA. Lopez was tried and convicted. In his appeal, he brought suit against the United States
government (plaintiff), challenging the constitutionality of the GFSZA as a regulation based on
Congress’s Commerce Clause power. The Court of Appeals for the Fifth Circuit agreed with
Lopez and reversed his conviction. The United States petitioned for certiorari to the United States
Supreme Court, which granted the petition.
Issue
May Congress, pursuant to its Commerce Clause powers, pass a law that prohibits the
possession of a gun near a school?
Holding and Reasoning (Rehnquist, C.J.)
No. While Congress has broad lawmaking authority under the Commerce Clause, this power
does not extend so far as to authorize the regulation of the carrying of handguns, particularly
when doing so has no clear effect on the economy overall. Congress may regulate only three
broad categories of activities: the channels of interstate commerce; the instrumentalities of, or
persons or things in, interstate commerce; and activities that substantially affect or substantially
relate to interstate commerce. Here, the GFSZA does not regulate the channels or
instrumentalities of interstate commerce. Therefore the analysis must focus on the third category:
whether the activity at issue substantially affects interstate commerce. The mere carrying of
handguns (not the buying or selling) in a school zone in no way affects commerce, either
substantially or otherwise. The GFSZA is a criminal statute having nothing to do with “commerce”
or any economic enterprise. The United States argues that the presence of guns in school zones
affects commerce because crime in schools affects education, which in turn affects job
prospects and productivity. If this argument were accepted, Congress could regulate virtually
any activity. The court of appeals’ decision is affirmed.
Concurrence (Thomas, J.)
The new “substantial effects” test is problematic because it makes the Commerce clause
“surplusage.” Congress is not meant to regulate commercial activity to the full extent suggested
by the majority’s holding. The majority’s three-part definition of commerce is misguided. Instead
the word “commerce” should be limited only to encompass the buying and selling, and possibly
the transportation of goods. The Court’s expansion of the term in Gibbons v. Ogden, 22 U.S. 1
(1824), was wrong. A narrow construction of the term should be applied.
Concurrence (Kennedy, J.)
The GFSZA upsets the balance of power between the federal and state governments. Education
is a traditional concern of the states. It is for states to determine whether harsh criminal sanctions
are necessary to deter students from carrying guns on school premises. The GFSZA prevents
states from exercising their own judgment and experimenting with their own gun prevention
programs.
Dissent (Stevens, J.)
Congress should have the power under the Commerce Clause to regulate the carrying of guns
near schools. Guns are both articles of commerce and articles that can be used to restrain
commerce. Indeed, guns cannot be possessed at all without some sort of commercial activity.
Congress should be able to regulate the possession of guns at any location because guns relate
to commercial activity and have such a potentially harmful use.
Dissent (Souter, J.)
Congressional regulations promulgated under the Commerce Clause are reviewed under a
rational basis standard. A deferential view of congressional actions is important to preserving the
separation of powers. However, the majority’s decision harkens back to a time when the
judiciary gave less respect to Congress. The majority’s invalidation of a congressional act
unwisely goes against important principles of judicial restraint.
Dissent (Breyer, J.)
Firstly, Congress’s power to regulate commerce among the several states encompasses the
power to regulate local activities insofar as they significantly affect interstate commerce.
Secondly, the Court must consider not the effect of an individual act, but rather the cumulative
effect of all similar instances when determining whether an activity affects interstate commerce.
Thirdly, the Constitution requires the judiciary to give a very deferential review of Congress’s
determination that a regulation relates to its requirement of furthering and protecting interstate
commerce. Based on these principles, the proper inquiry should have been whether Congress
rationally could have found that violent crime in school zones, through its effect on the quality of
education, substantially affects interstate commerce. When all practical realities surrounding the
problems of guns near schools are considered, the answer could not be anything other than in
the affirmative. A significant logical connection exists between gun regulations and promoting
interstate commerce.
United States v. Morrison
United States Supreme Court, 529 U.S. 598 (2000)
Rule of Law
(1) Congress does not have the authority under the Commerce Clause to regulate violence
against women because it is not an economic activity.
(2) Under § 5 of the Fourteenth Amendment, Congress may only regulate the discriminatory
conduct of state officials, not private actors.
Facts
In 1994, Congress passed the Violence Against Women Act (VAWA), which contained a
provision for a federal civil remedy for victims of gender-based violence, even when victims did
not file criminal charges. That same year, Christy Brzonkala, a female student at Virginia Tech
University, was allegedly assaulted and raped by Antonio Morrison (defendant) and James
Crawford. Morrison was temporarily suspended from school, but a state grand jury did not find
enough evidence to indict him. Brzonkala and the United States government (plaintiffs) brought
suit against Morrison, Crawford, and Virginia Tech under the VAWA in federal district court.
Morrison challenged the VAWA as an unconstitutional exercise of Congress’s Commerce Clause
powers. The district court held that Congress lacked authority to enact the VAWA, but a threejudge panel of the Fourth Circuit Court of Appeals reversed. The Fourth Circuit then reheard the
case and upheld the district court’s decision that Congress lacked authority. Brzonkala and the
United States appealed to the United States Supreme Court.
Issue
(1) May Congress, pursuant to its Commerce Clause powers, create civil remedies for victims of
gender-based violence to sue their attackers in civil court?
(2) May Congress regulate the discriminatory conduct of private actors under §5 of the
Fourteenth Amendment?
Holding and Reasoning (Rehnquist, C.J.)
(1) No. In United States v. Lopez (1995), the Court held that Congress may regulate only three
broad categories of activities: the channels of interstate commerce; the instrumentalities of, or
persons or things in, interstate commerce; and activities that substantially affect or substantially
relate to interstate commerce. The United States argues that Congress may regulate genderbased violence because it is an activity substantially affecting interstate commerce. However, a
key consideration in Lopez was the criminal, non-economic nature of the conduct at issue.
Similarly, gender-based violence is a non-economic activity. No legislative history or other
findings indicate that gender-based violence has an effect on interstate commerce. Any link
between the two is attenuated. The United States argues violence against women affects the
travelling, engaging of business, and employment in interstate commerce of women as a group.
This argument is rejected as Congress cannot regulate non-economic, violent criminal conduct
based solely on that conduct’s aggregate effect on interstate commerce. The decision of the
district court is affirmed.
(2) No. The Fourteenth Amendment places limitations on the manner in which Congress may
attack discriminatory conduct. For example, it is a well-settled principle from the precedent
decisions in United States v. Harris, 106 U.S. 629 (1883), and The Civil Rights Cases, 109 U.S. 3
(1883), that the Fourteenth Amendment only prohibits discriminatory state action, not private
action. The United States government argues that this principle should be overturned and
applied to private action of the type prohibited in the VAWA. However, this argument is
dismissed on the grounds that the principle of stare decisis does not justify overturning those
decisions and thereby greatly expanding the scope of the Fourteenth Amendment. The VAWA
attempts to provide a remedy against private individuals accused of gender-based violence
and not state officials. Thus it is an unconstitutional exercise of both Congress’s Fourteenth
Amendment and Commerce Clause powers.
Concurrence(Thomas, J.)
The majority correctly applied its reasoning in Lopez to the present case. Any kind of “substantial
effects” test that would allow non-economic activity to be regulated by Congress under the
Commerce Clause is inconsistent with early Commerce Clause jurisprudence and thus should
not be permitted.
Dissent(Souter, J.)
The majority’s decision departs from settled Commerce Clause jurisprudence. Congress has the
power to regulate activity that, in the aggregate, has a substantial effect on interstate
commerce. The right to determine what has a “substantial effect” on interstate commerce
belongs to Congress and not the courts. The present case differs from Lopez because in this
case, Congress passed the VAWA after hearing substantial testimony about the negative effects
of gender-based violence on women’s ability to maintain employment and be productive
members of society engaged in interstate commerce. Thus, Congress made a well-informed
decision in deciding to regulate an activity that it believed had a substantial effect on interstate
commerce. The majority should have honored that decision.
Dissent(Breyer, J.)
The majority’s opinion is flawed in that it does nothing to help create a workable standard for
Commerce Clause jurisprudence. Firstly, the distinction between economic and non-economic
activity is very difficult to define. The majority does nothing to clarify this distinction. Secondly, the
majority disregards principles of federalism in overruling Congress’s determination, supported by
legislative history, that violence against women has a substantial impact on interstate
commerce. Finally, the majority’s holding fails to set a standard for determining the constitutional
limits of Congress’s regulatory activity.
Gonzales v. Raich
United States Supreme Court, 545 U.S. 1 (2005)
Rule of Law
Congress may regulate the use and production of home-grown marijuana as this activity, taken
in the aggregate, could rationally be seen as having a substantial economic effect on interstate
commerce.
Facts
In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act to
combat illegal drug use in the United States. Shortly after, Congress enacted the Controlled
Substances Act (CSA)which categorized illegal drugs into different “schedules” and prevented
their sale, purchase, and possession in the United States. In 1996, California enacted the
Compassionate Use Act that allowed the use of medical marijuana within the state by persons
needing it for legitimate medical purposes. Angel Raich and Diane Monson (plaintiffs) were
California residents who both legally used marijuana to treat legitimate medical issues. Despite
receiving approval from California state officials, federal agents seized and destroyed Raich’s
marijuana plants. Raich brought this suit against Alberto Gonzales, Attorney General of the
United States (defendant), seeking injunctive and declaratory relief prohibiting the enforcement
of the federal CSA. The court of appeals ruled that the CSA was an invalid exercise of
Congress’s Commerce Clause power, and Gonzales appealed to the United States Supreme
Court.
Issue
May Congress regulate the use and production of homegrown marijuana?
Holding and Reasoning (Stevens, J.)
Yes. The Court held in Wickard v. Filburn, 317 U.S. 111 (1942), that Congress has the power to
regulate purely local activities that are part of an economic “class of activities” that have a
substantial effect on interstate commerce. In this case, Raich’s activity of growing marijuana for
home use can be seen rationally as having a substantial effect on interstate commerce
because there is an established, albeit illegal, interstate market for marijuana. The present case
is comparable to the homegrown wheat in Wickard. In Wickard, Congress sought to regulate
the national market for wheat by controlling homegrown commodities. Likewise, in the present
case, Congress sought to regulate and eliminate the national market for illegal drugs by
eliminating home-grown varieties. Just as the addition of homegrown wheat to the overall
market frustrated Congress’s attempts to regulate the entire market in Wickard, Raich’s addition
of homegrown marijuana to the national scheme, when taken in the aggregate with others
similarly situated, has a significant effect on Congress’s ability to eliminate the national illegal
marijuana market. Therefore, the CSA is a valid exercise of Congress’s Commerce Clause power
because Congress acted rationally in determining growing marijuana was an economic activity
with a substantial effect on interstate commerce. The decision of the court of appeals is
reversed.
Dissent(O’Connor, J.)
The majority’s decision essentially trumps states’ rights and federalism concerns, and it violates
the previous decisions in Lopez, 514 U.S. 549 (1995), and Morrison, 529 U.S. 598 (2000). The
majority’s decision risks opening the door for Congress to improperly regulate any intrastate
activity deemed “essential” to interstate commerce.
Dissent(Thomas, J.)
Raich’s activities in growing marijuana for home use is not properly categorized as “commerce.”
The marijuana in question was never bought or sold; never crossed state lines; and had no
demonstrable effect on the national marijuana market. Congress has broad authority to
regulate local activities that have a substantial effect on interstate commerce, but this provision,
even when amplified by the Necessary and Proper Clause, has limits. Congress did not
demonstrate that regulation of medical marijuana is necessary to combat the interstate drug
trade. Accordingly, Congress’s actions violate the Tenth Amendment.
Concurrence(Scalia, J.)
Congress’s power to regulate activities having a “substantial effect” on interstate commerce is
derived not only from the Commerce Clause, but primarily from the Necessary and Proper
Clause, which allows Congress to do whatever it deems necessary to accomplish its regulatory
objectives. In deference to this constitutional provision, Congress may regulate even those
intrastate activities that do not substantially affect interstate commerce. Congress’s power
under the Necessary and Proper Clause is far-reaching.
New York v. United States
United States Supreme Court, 505 U.S. 144 (1992)
Rule of Law
Congress may not compel states to enact or administer a federal regulatory program.
Facts
In 1985, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act (the Act)
to help address issues of low-level radioactive waste disposal among the states. The Act
encouraged states to adopt programs to dispose of their own waste by creating three
incentives: a monetary incentive to encourage states to open waste sites, an access incentive
to allow states without sites to be denied access to other states’ sites, and a take-title provision
which required a state, upon request of a waste-generator within its borders, to take title to the
waste and pay damages to the generator for any harm caused by the state’s failure to take
title. The State of New York (plaintiff) brought suit against the United States government
(defendant), alleging that the three provisions of the Act were unconstitutional under the Tenth
and Eleventh Amendments, the Due Process Clause, and the Guarantee Clause. The federal
district court dismissed the complaint, and the court of appeals affirmed. The United States
Supreme Court granted certiorari.
Issue
May Congress compel states to enact or administer a federal regulatory program?
Holding and Reasoning (O’Connor, J.)
No. Congress may not pass regulations that have the effect of “commandeering” states’
legislative processes. There are two ways Congress may urge a state to adopt a legislative
program consistent with federal interests: (1) as part of its spending powers, Congress may
attach conditions on states’ receipt of federal funds, or (2) where Congress has the authority to
regulate private activity under the Commerce Clause, Congress may offer states the choice of
regulating that same activity according to federal regulations or having state law preempted by
federal regulations. These options allow states to decline compliance with federal regulatory
standards if state citizens decide a federal policy is contrary to local interests. However, the take
title provision deprives states of such a choice by requiring them to adopt federal regulations or
take title to their waste. Hence, the take title provision does not present states with any option
other than implementing the Act. Under the Supremacy Clause, Congress could preempt state
radioactive waste regulation. However, Congress violates the Tenth Amendment where it directs
states to regulate in that field.
Concurrence/Dissent(White, J.)
The Act is a constitutional exercise of Congress’s Commerce Clause powers. The Act does not
violate the Tenth Amendment because it represents a compromise worked out between and
among the states with Congress as a referee. In invalidating the Act, there is a lack of respect for
the lengthy negotiation process among the states. Additionally, the take title provision merely
requires New York to be held liable for its own waste, as imposing liability would most likely
encourage New York to reduce its waste production and lessen the burden of waste on other
states. The majority’s current decision, as well as precedent, leaves open the possibility for
Congress to enact a similar provision according to the Court’s new standards for constitutional
regulatory schemes.
Concurrence/Dissent(Stevens, J.)
The Act is a constitutional exercise of Congress’s Commerce Clause powers. The federal
government already regulates state actions in the administration of various environmental
programs, public services, military drafts, and a host of other state functions. No distinction exists
between Congress’s ability to regulate these programs according to federal standards and its
ability to enforce federal standards for the disposition of low-level radioactive waste.
Printz v. United States
United States Supreme Court, 521 U.S. 898 (1997)
Rule of Law
Congress may not compel state officials to participate in the administration of federal programs.
Facts
Congress enacted the Brady Handgun Violence Prevention Act (Brady Act) in 1993 as an
amendment to its Gun Control Act of 1968. The Brady Act was a federal gun-control provision
that required the United States attorney general to implement a nationwide handgun
background check system. While moving towards a national system, in the interim, state and
local officials were required to conduct background checks of prospective firearm purchasers.
Under the Brady Act, sellers of firearms would report sales to their county Chief Law Enforcement
Officers (CLEOs). The CLEOs would then conduct background checks and confirm the
lawfulness of the sales. Printz and Mack (plaintiffs) were CLEOs in Montana and Arizona,
respectively. Printz brought suit in federal district court against the United States government
alleging that the Brady Act was an unconstitutional exercise of Congressional power because it
compelled state officers to participate in federal service. The district court held that the provision
of the Brady Act requiring CLEOs to perform background checks was unconstitutional, but held
that this provision could be separated from the rest of the act, leaving a constitutional, voluntary
background check system in place. The Court of Appeals for the Ninth Circuit reversed, holding
that none of the Brady Act’s interim provisions were constitutional. The Supreme Court granted
certiorari.
Issue
May Congress compel state officials to participate in the administration of federal programs?
Holding and Reasoning (Scalia, J.)
No. Congress may not compel state CLEOs to administer federal programs. Firstly, no clear
evidence exists that historical Congresses believed they had the power to compel state
executives into federal service. Secondly, the Constitution creates a system of dual sovereignty
whereby the states and the federal government are independent entities with different
governmental functions. Thus, the Constitution’s structure suggests that it is inappropriate for the
federal government to violate states’ status as separate entities by compelling their officials to
perform federal roles. Additionally, the Constitution clearly states the execution of the laws is the
responsibility of the President. The Brady Act transfers this responsibility to thousands of CLEOs,
who are not subject to Presidential control or oversight. Hence, empowering each CLEO to
make background check decisions would reduce the power of the executive branch and strain
the constitutional separation of powers. Finally, the present case is governed by New York v.
United States, 505 U.S. 144 (1992), which held Congress may not require states to legislate
according to federal standards because doing so constitutes a commandeering of traditional
state policy making functions. Thus the provision of the Brady Act allowing the federal
government to directly control state officers conflicts with the New York decision and is
unconstitutional. The decision of the court of appeals is affirmed.
Concurrence(Thomas, J.)
Under the Commerce Clause, Congress has the power only to regulate commerce among the
several states, a power that does not extend to regulating wholly intrastate, point-of-sale
transactions. Under United States v. Lopez, 514 U.S. 549 (1995), Congress does not have the
authority to regulate the intrastate transfer of firearms. Congress lacks both the underlying power
to make firearm regulations under the Second Amendment, as well as the ability to compel
state officers to enforce such regulations under the Tenth Amendment.
Concurrence(O’Connor, J.)
The provisions in the Brady Act compelling state officials to carry out federal objectives are
unconstitutional. However, state and local officials might choose to volunteer under the Brady
Act to carry out its provisions in an effort to improve gun control. Additionally, the background
check provisions in the Brady Act are only required in the interim until the attorney general
successfully implements a nationwide, federally-administered system. This could encourage state
and local officials to voluntarily comply with the Brady Act, despite this decision.
Dissent(Stevens, J.)
When Congress exercises powers delegated to it by the Constitution, it may impose obligations
to act on state and local officials, and even ordinary citizens. There are no constitutional
restrictions in this area explicitly placed on Congress’s ability to regulate firearms. Nothing in the
Tenth Amendment grants the ability to state and local officials to ignore a command from
Congress given pursuant to its Article I, Section 8 enumerated powers. Additionally, the framers
envisioned a system in which the national government has the power to make demands on
local officials and individual citizens. The framers’ goal of empowering the national government
does not mean that states must surrender their sovereignty under the Tenth Amendment; the
national government is simply authorized to act for the benefit of the union as a whole. Finally,
the New York decision is not controlling in the present case. New York dealt with the issue of
whether state legislators—as opposed to state executive officials—may be enlisted to implement
federal policy.
Dissent(Souter, J.)
The text of Federalist No. 27, written by Alexander Hamilton states that, because the new
Constitution would authorize the national government to bind individuals directly through
national law, it could “employ the ordinary magistry of each [state] in execution of its laws.” The
Supremacy Clause of the Constitution and state officer oath requirements of the Constitution
combine to stand for the proposition that state governments are incorporated into the national
government, and that state officials, because of their oath, are also incorporated into national
government service. This and other provisions from the Federalist Papers suggest that Congress,
when acting pursuant to its constitutional powers, may require state government or state officials
to act in furtherance of those constitutional powers.
Dissent(Breyer, J.)
Other nations have successfully implemented a system whereby local authorities are
commissioned to carry out regulations created by a national, federal body. The success of other
nations with this model could be instructive in upholding the constitutionality of a similar model in
the United States.
Reno v. Condon
United States Supreme Court, 528 U.S. 141 (2000).
Rule of Law
Congress may regulate states’ activities, using its Commerce Clause powers, provided that the
regulation does not require the state to enact any laws or regulations and does not require state
officials to assist in the enforcement of federal statutes regulating private individuals.
Facts
In 1994, Congress passed the Driver’s Privacy Protection Act (DPPA) to regulate the disclosure of
personal information retained by state Departments of Motor Vehicles (DMVs). Congress passed
this legislation because states routinely obtained significant personal information from individuals
in connection with those individuals obtaining driver’s licenses and then sold that information to
private entities at a profit for the state. The private entities could also further resell this
information. The DPPA was designed to prohibit the selling or reselling of individuals’ personal
information by DMVs or private entities without obtaining the individual’s consent. South Carolina
and its Attorney General, Condon (plaintiff), brought suit against the United States government
and its Attorney General, Reno (defendant), in the United States District Court for the District of
South Carolina, alleging that the DPPA violated the Tenth and Eleventh Amendments of the
Constitution. The district court granted summary judgment for Condon, and the court of appeals
affirmed. Reno appealed to the United States Supreme Court.
Issue
May Congress use its Commerce Clause powers to regulate a state’s use of its citizens’ personal
information?
Holding and Reasoning (Rehnquist, C.J.)
Yes. Personal information collected from individuals by DMVs is an article of commerce. The
information is sold interstate to various private entities both within and outside South Carolina.
Thus, Congress may regulate the information because of its constitutional authority to regulate
interstate commerce. However, to be constitutional, Congress’s regulations must not run afoul of
the Tenth Amendment as demonstrated by the Court’s decisions in New York v. United States,
505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997). The present case is controlled
more by its decision in South Carolina v. Baker, 485 U.S. 505 (1988), than New York or Printz, as
Congress was merely seeking to regulate state activity and not the states’ regulations of private
actors or the actions of state officials. Congress has the power under the Constitution to regulate
state activity. This case does not present the same concerns about Congress commandeering
states’ legislative processes or state officials’ actions as in New York or Printz. Finally, South
Carolina’s argument that Congress cannot regulate state activity without making general
regulations applicable to private entities is rejected. The DPPA is generally applicable to both
states and private entities, making resolution of that issue unnecessary. The DPPA is constitutional
because Congress attempts to regulate state activity through a generally applicable measure,
and the decision of the court of appeals is reversed.
D. THE TAXING AND SPENDING POWER
Article I, §8, cl. 1 vests Congress with the authority to impose taxes and make expenditures
whenever doing so will, in the perception of Congress, be beneficial to the common defense or
general welfare of the nation.
Taxing Power - Article I* - Congress may regulate taxing matters of purely state concern and
clearly beyond its national powers (Butler 1936)
- Article I* – In addition, the absence of a rule on federal funding and prohibited conduct
does NOT result in a statute’s presumed unconstitutionality (Sabri 2004).
Spending Power – Article I* - Congress has the ability to place conditions on grants to state and
local governments for spending power concerns.
- “While the U.S. has NO power to regulate local political activities as such of state officials,
it does have power to fix the terms upon which its money to states shall be disbursed”
o For example - Congress may withhold federal highway funds to states with a
minimum drinking age of less than 21 years (South Dakota v. Dole 1987)
United States v. Butler
United States Supreme Court, 297 U.S. 1 (1936)
Rule of Law
Congress may not use its taxing and spending powers to obtain an unconstitutional result, such
as invading the reserved rights of the states under the Tenth Amendment.
Facts
In 1933, Congress enacted the Agricultural Adjustment Act (AAA) to allow the Secretary of
Agriculture to set limits on the production of certain crops and tax farmers that produced in
excess of those limits. The AAA also provided grants to farmers to control their production of
crops and thus regulate prices. Butler (plaintiff), a processor of crops, brought suit against the
United States government (defendant) in federal district court to challenge the constitutionality
of the AAA. The district court ruled that Butler was required to pay taxes under the AAA, but the
court of appeals reversed. The United States Supreme Court granted certiorari.
Issue
Is the tax imposed on farmers by the Agricultural Adjustment Act a constitutional exercise of
Congress’s taxing and spending power?
Holding and Reasoning (Roberts, J.)
No. Article I, § 8 vests in Congress the power to levy and collect taxes for the general welfare.
The framers held differing views on the scope of this power. Madison believed the clause merely
gives Congress the ability to tax and spend to carry out its other enumerated powers, whereas
Hamilton believed the clause gives Congress a wholly separate enumerated power to tax and
spend as long as it is in furtherance of the general welfare. Hamilton’s view is the correct one:
Congress’s power to tax and spend is a separate power not confined by Congress’s other
enumerated powers. However, this power is not without limits. Any congressional power to tax
and spend is limited by Tenth Amendment state sovereignty concerns. The AAA violates state
sovereignty by seeking to invade states’ rights to regulate and control their own agricultural
production. Since Congress has no power to regulate and control agricultural production, it
follows that Congress may not indirectly accomplish that end through its taxing and spending
powers. The decision of the court of appeals is affirmed.
Dissent (Stone, J.)
The present case should be guided by four principles that, when considered, justify upholding
the AAA as constitutional. Firstly, courts are limited in their inquiry into the constitutionality of
legislative and executive actions and may only determine whether those branches have the
authority to enact statutes or executive orders. It is not the place of the judiciary to question the
wisdom of these statutes if they were constitutionally enacted. Secondly, Congress
unquestionably possesses the power to levy an excise tax on the production of agricultural
materials. Thirdly, because national agricultural production is in a depressed condition, there is
no question that any tax enacted by Congress to improve production is in furtherance of the
general welfare. Finally, no questions of an unauthorized delegation of legislative power are
raised in this case.
Holding: the power to tax is NOT unlimited.
- Its confines are set in the clause, which confers it; not in those of section 8 which bestow
and define the legislative powers of Congress.
Effect: Congress may not be able to regulate an activity, but may nonetheless tax that activity,
or spend money to encourage it, as long as in doing so Congress is promoting the general
welfare.
NFIB v. Sebelius (2012)
Why does it matter if the mandate is a tax or a penalty?
If it is penalty, congress is regulating conduct through the mandate – which is
unconstitutional. WHY? Congress does not have the power to regulate the purchase of health
insurance through the Commerce clause because it is not economic activity.
-
Sabri v. United States
United States Supreme Court541 U.S. 600 (2004)
Rule of Law
Congress has the power to spend for the general welfare and may enact, under the Necessary
and Proper Clause, any provision rationally related to carrying out its spending powers for the
promotion of the general welfare.
Facts
Congress enacted 18 U.S.C. §666(a)(2) to provide federal criminal penalties for the giving and
receiving of bribes for the benefit of state, local, and tribal officials of entities that receive at
least $10,000 in federal funds. Sabri (defendant), a real estate developer, bribed a Minneapolis
city official on three separate occasions in an effort to obtain permission to circumvent local
licensing and zoning laws. The city official headed a Minneapolis public community
development organization, which received approximately $23 million annually in federal funds.
The United States government (plaintiff) prosecuted Sabri in district court under 18 U.S.C.
§666(a)(2) but Sabri moved to dismiss the indictment. Sabri argued that the statute was
unconstitutional because it did not require proof of a connection between the federal funds
and the alleged bribe in establishing criminal liability. The district court held for Sabri and
dismissed the indictment, but the court of appeals reversed. The United States Supreme Court
granted certiorari.
Issue
May Congress prohibit bribing of federal officials under its spending powers without requiring
proof of a logical nexus between federal funds and the alleged bribe?
Holding and Reasoning (Souter, J.)
Yes. Congress has authority under the Spending Clause to appropriate federal monies to
promote the general welfare. Congress has corresponding authority under the Necessary and
Proper Clause to ensure that taxpayer dollars appropriated under that power are actually spent
for the general welfare. The Constitution does not mandate that Congress require proof of a
logical connection between the elements of a regulated offense and federal monies for the
valid exercise of Congress’s Article I powers. Sabri’s argument that a logical nexus between an
alleged bribe and federal money is required for Congress to regulate bribes is dismissed.
Corruption committed by state and local government officials presents a sufficient threat to the
general welfare to justify congressional regulation of this activity. It is irrelevant that Congress’s
regulation would limit some corruption that did not directly impact federal money. The
Necessary and Proper Clause grants Congress broad spending powers that may be exercised to
promote the general welfare in any way Congress believes is rationally related to achieving that
goal. The decision of the court of appeals is affirmed.
Concurrence(Thomas, J.)
Congress must show more than a rational relationship between a statute and the exercise of an
enumerated power for it to be upheld. It is unnecessary to decide what Congress must
additionally show since the same holding can be reached under the Commerce Clause.
SPENDING POWER
-
An expenditure occurs whenever the federal government spends money.
If the spending is directed toward the common defense or the general welfare, then it
falls within the authority granted by the power to tax and spend.
o Remember that Congress may also spend money incident to its other powers
o The Court’s review of exercises of the spending power is quite deferential
Limits on Congress’ ability to induce state action:
- General rule: Congress may attach conditions on the receipt of federal funds upon
compliance by the recipient with federal statutory and administrative directives.
South Dakota v. Dole
United States Supreme Court483 U.S. 203 (1987)
Rule of Law
The receipt of federal funds may be conditional if the exercise of the spending power is for the
general welfare, the conditions are unambiguous, the conditions are related to a federal interest
in a particular national project or program, and the conditions do not violate any other
constitutional provisions such as the Tenth Amendment.
Facts
A South Dakota law permitted persons age nineteen or older to buy beer containing up to 3.2%
alcohol. In 1984, Congress passed 23 U.S.C. §158, which directed the Secretary of Transportation,
Dole (defendant), to withhold up to five percent of federal highway funds otherwise available to
states in which state laws permitted persons under the age of twenty-one to purchase alcohol.
South Dakota (plaintiff) sued Dole and the United States government in federal district court
seeking a declaratory judgment that Section 158 violated constitutional limits on Congress’s
spending power and the Twenty-first Amendment of the United States Constitution. The district
court ruled that Congress acted constitutionally, and the court of appeals affirmed. The United
States Supreme Court granted certiorari.
Issue
May Congress withhold federal funds to states that do not comply with federally-imposed
conditions?
Holding and Reasoning (Rehnquist, C.J.)
Yes. Congress has specific constitutional power to tax and spend for the general welfare of the
United States. In exercising this spending power, Congress may condition the receipt of federal
funds by states subject to the following four limitations: the exercise of the spending power must
be for the “general welfare;” the conditions on the receipt of funds must be unambiguous;
conditions must be related to a federal interest in a particular national project or program; and
conditions must not violate any other constitutional provisions such as the Tenth Amendment.
Section 158 clearly meets the first three limitations on Congress’s exercise of spending power as it
is designed to promote the general welfare, an unambiguous condition, and related to the
significant federal interest in promoting safe transportation on federal highways. While the Tenth
Amendment operates to limit Congress’s imposition of conditions on states’ receipt of federal
funds, when the effect of those conditions are coercive, that is not the case in Section 158.
Noncompliance only results in a loss of five percent of what states would otherwise receive. The
potential loss is not so great as to force states to comply with federal standards. Thus, Section 158
is a valid exercise of Congress’s spending power. The decision of the court of appeals is affirmed.
Dissent(Brennan, J.)
The ability to regulate the minimum age to purchase alcohol falls completely within the powers
reserved to the states by the Twenty-first Amendment of the Constitution. Congress improperly
attempted to regulate a power that the Constitution reserved to the states and the states
constitutionally exercised.
Dissent(O’Connor, J.)
Section 158 is not a condition on Congress’s spending power that is reasonably related to an
expenditure of federal funds. Instead, Section 158 is an attempt by Congress to regulate the sale
of liquor, and is thus a power reserved expressly to the states by Section 2 of the Twenty-first
Amendment of the Constitution. Setting the drinking age at twenty-one is not reasonably related
to the identified purpose of safe highway construction.
Dole:
1. It must be pursuit of the general welfare.
- Courts should defer substantially to the judgment of Congress on this aspect.
2. The condition must be stated unambiguously
- States should be able to accept the conditions knowing the consequences of their
participation.
3. Condition(s) might be illegitimate if they are unrelated to the federal interest in particular
national projects or programs.
- Drinking age – highway safety.
4. Other constitutional provisions may provide an independent bar to the conditional grant
of federal funds.
- 10th amendment – encouragement v. coercion
- NFIB v. Sebelius (2012)
Sources of limits on State Powers:
Supremacy Clause
Art. VI
US Constitution
- If there is a conflict between a federal law and a state law, federal law preempts state
law.
o State law will be declared invalid.
o Federal law involved
Dormant Commerce Clause
Art. I. §8
US Constitution
- State or local laws are invalid if they place an undue burden on interstate commerce.
o Notice that there is no federal law
o No federal law involved
- What is the dormant commerce clause?
o It is the principle that state an local laws are unconstitutional if they place an
undue burden on interstate commerce.
 No clause in the Constitution expressly says this. The Court has inferred it
from the grant of power to regulate commerce among the states.
- Differences between the commerce clause and the dormant commerce clause
1. The commerce clause focuses on Congress’ power and the emphasis is on
the scope of this authority.
 The issue is whether Congress has the authority to adopt a law.
2. The dormant commerce clause is a limit on what state and local government
can do.
 The issue arises when there is a challenge to something done by a state or
local government
- Even if Congress has not acted (or no preemption is found), a state or local law can be
challenged on the ground that it excessively burdens commerce among the states.
o WHY? The commerce clause, by its own force and without national legislation,
gives power of the Court to place LIMITS on state authority,
Modern Approach to the Dormant Commerce Clause:
- Balacing Test: the court balances the benefits of a law against the burdens that is
imposes on interstate commerce.
o South Carolina State Highway Dept. v. Barnwell Bros. (1938)
o Southern pacific Co. v. Arizona (1945)
When there is one federal law & one state local law regulating an area, we go to PREEMPTION.
Privileges and Immunities Clause
Art. IV, §2
US Constitution
- Limits the ability of states to discriminate against out of-state citizens with regard to
constitutional rights to important economic activities.
o Notice that there is no federal law.
o No federal law involved
Preemption: Supremacy Clause
“This Constitution, and the Laws of the US which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the US, shall be the supreme Law
of the Land…”
-
-
-
The language of the Supremacy Clause translates into a fundamental principle:
o State law must conform to the dictates of the Constitution and yield to
constitutionally valid federal law whenever a conflict between the two arises.
o WHY?
 To establish a hierarchy - if we don’t have this clause, then every state is
sovereign. Every state could decide for themselves the meaning of the
Constitution.
 Why must it YIELD?
What is preemption?
o When a
In absence of preemption language in the federal statute:
o The court will assume that the historic powers of the States are not to be
superseded by federal laws unless that is the clear and manifest purpose of
Congress.
Express Preemption:
- When Congress has the authority to legislate, it can make federal law exclusive in a field.
- The clearest way to do this is by expressly precluding state regulation in an area.
- Example:
o Employee Retirement Income Security (ERISA):
The statute reads:
- Problem: Even when the statute contains a preemption clause, the scope of the
preemptive effect is not that clear.
o Lorillard Tobacco Co. v. Reilly (2001).
Implied Preemption:
1. Conflict Preemption
2. Objective Preemption
3.
Conflict Preemption:
- When there is a conflict between federal law and state law, the state law is preempted.
-
-
o Compliance
Problem: how to determine if there is a conflict.
o If the federal law imposes only a minimum standard, states could impose stricter
standards.
o If the federal law is the standard, a differing state’s standard, a differing state’s
standard is preempted.
Florida Lime & Avocado Growers v. Paul (1963).
Objective Preemption:
- State law will be deemed preempted if it stands as an obstacle to the accomplishment
and execution of the full purposes or objectives of Congress.
- Problem: Determining what is the federal objective and whether the specific state law is
inconsistent with it.
o Pacific Gas & Electric v. State Energy (1983).
Field Preemption:
- State laws are preempted when there:
1. Is clear congressional intent that federal law should exclusively occupy (regulate) a field;
or
2. If comprehensive federal regulation evidences a congressional desire that federal law
completely occupy the field.
Lorillard Tobacco Co. v. Reilly
United States Supreme Court, 533 U.S. 525 (2001)
Rule of Law
(1) State cigarette advertising regulations are preempted by the Federal Cigarette Labeling and
Advertising Act, regardless of whether the state regulations are related to content or location.
(2) Under the First Amendment, a state may not constitutionally prohibit advertising, unless doing
so withstands the four-part analysis outlined in Central Hudson Gas & Electric Corp. v. Public
Service Commn. of New York, 447 U.S. 557 (1980).
Facts
A Massachusetts regulation of tobacco advertising prohibited the advertising of tobacco
products within one thousand feet of a school or playground and required that places selling
tobacco products place ads for these items at least five feet off the ground to avoid being at
eye level for children. Lorillard Tobacco Co. (plaintiff) filed suit in federal district court against
Reilly (defendant), the Massachusetts Attorney General, on the grounds that (1) cigarette
advertising regulations are preempted by the Federal Cigarette Labeling and Advertising Act
(FCLAA) which prescribes mandatory health warnings for cigarette packaging and advertising
and (2) the ban on advertising for cigarettes, smokeless tobacco, and cigars violated the First
Amendment. The district court held that the State restrictions on the location of advertising were
not preempted by the FCLAA, and that the ban was unconstitutional. The court of appeals
affirmed the preemption claim, but reversed the First Amendment claim. The United States
Supreme Court granted certiorari.
Issue
(1) Are state cigarette advertising regulations preempted by the Federal Cigarette Labeling and
Advertising Act?
(2) Whether a State regulation that prohibited certain advertising of tobacco products violates
the First Amendment under the four-part analysis outlined in Central Hudson Gas & Electric Corp.
v. Public Service Commn. of New York.
Holding and Reasoning (O’Connor, J.)
(1) Yes. Under the Supremacy Clause, the FCLAA preempts similar state requirements and
prohibitions regardless of whether the state regulations are content or location related. The First
Circuit held that the FCLAA only preempts regulations with respect to the content of the
cigarette advertising, and that the state regulations on location of cigarette advertising are a
form of zoning, traditionally a state power. However, we disagree and hold that § 1334 of the
FCLAA prohibits all state requirements and prohibitions related to both content and location,
and the new FCLAA regulations expressly target cigarette advertising and promotion.
Additionally, the FCLAA’s pre-emption provision does not limit states’ ability to enact generally
applicable zoning restrictions on the location and size of cigarette advertisements, or to regulate
conduct that relates to sale or use of cigarettes.
(2) Yes. Federal law preempts the state’s regulation of cigarette advertising. However, the
federal law only applied to cigarettes, and thus it is necessary to evaluate the constitutionality of
the state’s outdoor and point-of-sale advertising regulations for smokeless tobacco and cigars. It
is well established that commercial speech is still protected by the First Amendment. The
constitutionality of commercial speech regulations is ultimately determined by a four-part
analysis adopted by the Court in Central Hudson Gas & Electric Corp. v. Public Service Commn.
of New York (1980). The test states that courts must determine the constitutionality of
governmental regulations of commercial speech by considering the following: (1) Does the
speech advertise illegal activities or constitute false or deceptive advertising that is unprotected
by the First Amendment? (2) Is the government’s restriction justified by a substantial government
interest? (3) Does the law directly advance the government’s interest? (4) Is the regulation of
speech no more extensive than necessary to achieve the government’s interest? Despite
Lorillard Tobacco Co.’s and other courts’ arguments that the Central Hudson test should be
rejected; there is no reason to break from this standard. Regarding the third inquiry as to whether
the law directly advances the government’s interest, a significant amount of empirical data
accompanied by background information is not required to pass muster. The government
provides sufficient evidence of use of smokeless tobacco and cigars by young people to
demonstrate that the regulation of advertising is related to the government’s interest in reducing
the use of these products by young people. However, the government’s regulations fail to pass
the fourth inquiry because there is not a reasonable fit between the means and ends of the
regulatory scheme. The practical effect of the prohibition on outdoor advertising within one
thousand feet of schools or playgrounds is that tobacco advertising is essentially prohibited
within eighty-seven to ninety-one percent of Boston, Worcester, and Springfield, Massachusetts.
The substantial geographic reach of the regulations combined with the breadth of outdoor
advertising they prohibit, make it unlikely that they are not more extensive than necessary to
achieve the government’s interest. Thus, the state’s regulations of outdoor advertising of
smokeless tobacco and cigars violate the First Amendment. It should be noted that indoor
advertisements will often be visible from outside the store. The regulation’s breadth inadvertently
places indoor advertisements in the category of outdoor advertisements. Once indoor
advertisements can be regulated as outdoor advertisements, the regulation fails the fourth
inquiry of the Central Hudson analysis for being over-inclusive. The regulations are
unconstitutional under the First Amendment.
Concurrence(Thomas, J.)
When the government seeks to restrict truthful speech in order to suppress the ideas it conveys,
strict scrutiny is appropriate regardless of whether the speech could be properly characterized
as commercial. All of the state’s regulations should have been subject to strict scrutiny and
should have been found to violate the First Amendment. Under strict scrutiny, the advertising
ban could only be sustained if it is for a compelling government purpose and is narrowly tailored
to achieve that purpose. The state’s interest in protecting children from exposure to tobacco
products is arguably no more compelling than its interest in protecting children from exposure to
fast food and alcohol products. This is because tobacco, obesity, and alcohol use are the three
largest causes of preventable death in the United States. There are currently no regulations in
place for fast food and alcohol advertising that could possibly be viewed by children, and such
regulations would likely not be appropriate under the First Amendment. Thus, the government
fails to articulate a compelling purpose for regulating tobacco use in this manner, and its
regulations would not pass strict scrutiny.
Concurrence/Dissent(Stevens, J.)
The majority is correct in concluding that the state has important interests served by the
advertising restrictions. However, despite noble purposes, regulations may still be unconstitutional
if they are not narrowly tailored. The requirement that the regulation be narrowly tailored is
important because the means chosen by the statute may be insufficiently related to the ends
they purportedly serve. The statute may be so broadly drawn that, while effectively achieving its
ends, it unduly restricts communications that are unduly related to its policy goals. The onethousand foot rule prevents tobacco advertisers from lawfully reaching adult consumers with
their messages. The First Amendment does not permit states to overly regulate advertising of
legal adult material simply because the material is unfit for children. Since it is unclear whether
the use of protective zones is a proper tool for achieving the states’ purpose, the case should
have been remanded for consideration of this issue.
HOLDING:
---Advertisement placement may not include electronic media.
***”Congress pre-empted state cigarette advertising regulations like the Attorney General's
because they would upset federal legislative choices to require specific warnings and to impose
the ban on cigarette advertising in electronic media in order to address concerns about
smoking and health.”
Florida Lime & Avocado Growers, Inc. v. Paul, Director, Dept. of Agriculture of California
United States Supreme Court, 373 U.S. 132 (1963)
Rule of Law
When both federal law and state law are on point, federal law preempts state law if there is a
conflict between the two laws such that compliance with both is impossible.
Facts
Paul (defendant), Director of the Department of Agriculture of California, promulgated
regulations for the quality of avocados that could be sold in California markets. Under the
regulations, no avocados could be sold in California that had less than eight percent oil
content. However, under federal regulations, Florida growers were permitted to sell avocados
that had less than eight percent oil content. Florida Lime & Avocado Growers, Inc. (FLAG)
(plaintiff) was a Florida-based grower impacted by the California regulations. FLAG brought suit
in federal district court seeking to enjoin Paul from enforcing the California regulations against
them on the grounds that the regulations were preempted by federal law, violated the Equal
Protection Clause of the Fourteenth Amendment, and violated the Commerce Clause as an
unconstitutional burden on interstate commerce. The district court denied an injunction, and
FLAG appealed to the United States Supreme Court.
Issue
May California exclude Florida avocados from its markets when those avocados meet federal,
but not California standards of quality?
Holding and Reasoning (Brennan, J.)
Yes. The first issue to examine is whether there is a conflict between the California and federal
standards of quality for avocados such that it would be impossible for Florida growers to comply
with both standards. There is no conflict, as Florida growers could successfully comply with both
standards by simply leaving the fruit on the trees for a longer time period to increase the fruit’s oil
content through ripening. This would allow the fruit to meet California’s requirement of eight
percent oil content, while not compromising prime commercial marketing conditions for other
markets. As such, no conflict exists between the two standards that would require preemption of
the California standard by the federal standard under the Constitution’s Supremacy Clause.
Thus, the California standard is a constitutional regulation of avocado quality. The decision of
the district court is affirmed on the preemption and Equal Protection Clause issues, and is
remanded for further consideration as to whether the California regulation violates the
Commerce Clause.
Dissent(White, J.)
The California regulations conflict with the purpose of the federal regulations. Requiring
compliance with the California standard inevitably excludes some Florida growers from the
market, something that the federal standard is designed to prevent. Additionally, the federal
government already enacted a comprehensive regulatory scheme under the Agricultural
Adjustment Act, and therefore the California regulation is unnecessary.
Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commn.
United States Supreme Court, 461 U.S. 190 (1983)
Rule of Law
A federal law may preempt a state or local law, even if the laws are not mutually exclusive, if
the state law is deemed to impede the achievement of a federal objective.
Facts
The United States as a whole has made significant efforts to use atomic power as an alternative
source of energy. However, the use of atomic energy produces highly radioactive waste that
must be stored in nuclear power plants and storage facilities. California passed the WarrenAlquist Act to help regulate the storage and disposal of nuclear waste. Section 25524.1(b) of the
Act provided that before a nuclear power plant could be built, the State Energy Resources
Conservation and Development Commission (defendant) had to determine on a case-by-case
basis that there would be "adequate capacity" for interim storage of the plant's spent fuel at the
time the plant required such storage. Section 25524.2 of the Act imposed a moratorium on the
certification of new nuclear plants until the State Commission found that there had been
developed, and that the United States, through its authorized agency, approved a
demonstrated technology or means for the permanent and terminal disposal of high-level
nuclear wastes. Pacific Gas & Electric Co. (PG&E) (plaintiff), a nuclear power producer, filed suit
in federal district court seeking to enjoin enforcement of the California regulations, alleging that
the regulations were preempted under the Supremacy Clause of the Constitution by the Atomic
Energy Act of 1954 (AEA). The district court held that both Sections 25524.1(b) and 25524.2 were
preempted by the AEA. On appeal, the circuit court of appeals reversed and held that Section
25524.1(b) was not ripe for review, and that Section 25524.2 was ripe for review but was not
preempted by the AEA. The United States Supreme Court granted certiorari.
Issue
May a federal law preempt a state law even if they are not mutually exclusive?
Holding and Reasoning (White, J.)
Yes. State law is preempted if it stands as an obstacle to the accomplishment of the full purposes
and objectives of Congress. Through the AEA and its amendments, the federal government
sought to occupy the entire field of nuclear safety concerns, except the limited powers expressly
ceded to the states. Thus, a state moratorium on nuclear construction grounded in safety
concerns would fall within the prohibited field. A state judgment that nuclear power is not safe
enough to be further developed would conflict with the judgment of the Nuclear Regulatory
Commission (NRC) that nuclear construction may proceed regardless of the uncertainties
surrounding waste disposal. It would also conflict with the AEA’s objective to make nuclear
technology safe enough for widespread development and use. However, although the federal
government has ultimate authority in the area of nuclear safety issues, the assessment of need
for new power facilities, their economic feasibility, and rates and services are areas traditionally
governed by the states. PG&E argues that the AEA intended to make the federal government
the sole regulator of all matters nuclear, and that §25524.2 falls within the scope of this impliedly
preempted field. However, in passing the AEA, it is clear that Congress intended the federal
government to regulate the radiological safety aspects involved in the construction and
operation of a nuclear plant, but that states should retain their traditional responsibility in the
field of regulating utilities for determining questions of need, reliability, cost, and other related
state concerns. California maintained, and the court of appeals agreed, that §25524.2 was
concerned with the economic difficulties of waste disposal, not radiological safety hazards.
Therefore, because the rationale behind 25524.2 is economic in nature and not aimed at
radiological safety, it conflicts neither with the objective of the AEA nor the judgments of the
NRC, both of which are concerned primarily with nuclear safety. The decision of the court of
appeals is affirmed.
Concurrence(Blackmun, J.)
The AEA does not require states to adopt nuclear power. Rather, the goals of the AEA are to
promote the development of nuclear technology and to ensure the safety of that technology.
Although recognizing that the AEA reserves to the NRC decisions about how to build and
operate nuclear plants, the majority misreads the AEA to suggest that the AEA also limits the
states' traditional power to decide what types of electric power to utilize. Congress simply made
the nuclear option available through its legislation. A state may decline that option for any
reason. Thus the ultimate decision to build nuclear power plants rests with the states. A state may
validly decline to build nuclear power plants for safety reasons without crossing into the realm of
exclusive federal regulation.
***We are not going to allow more nuclear plants in our state until the commission says now we
have the tools to dispose of this energy waste. WHY does the court say was the purpose of this
state law?
Attorney for Nuclear Power plant is saying:
The federal law creates safety standards to promote nuclear power plants. The state law creates
a moratorium. That law contradicts the objective of the federal law. The federal law wants
people to develop nuclear power following these safety requirements.
The court read it as the SAME objective and thus the law is NOT preempted.
Field Preemption:
- State laws are preempted when there:
1. Is clear congressional intent that federal law should exclusively occupy (regulate) a field;
or
2. If comprehensive federal regulation evidences a congressional desire that federal law
completely occupy the field.
Arizona v. United States
United States Supreme Court, 132 S.Ct. 2492 (2012)
Rule of Law
A state law that addresses immigration and alien registration is preempted where Congress has
completely occupied the entire field.
Facts
The Arizona Legislature passed S.B. 1070, a law designed to deter the unlawful entry and
presence of illegal aliens in the state. The federal government (plaintiff) filed suit against the
State of Arizona (defendant) in district court and sought a preliminary injunction to prohibit the
implementation of four specific provisions of the statute. The district court granted the injunction
which prohibited the state law from taking effect. Arizona appealed. The court of appeals
affirmed. The U.S. Supreme Court granted certiorari to review.
Issue
Is a state law that addresses immigration and alien registration preempted where Congress has
completely occupied the entire field?
Holding and Reasoning (Kennedy, J.)
Yes. Congress possesses vast authority to enact laws and govern over immigration issues and the
regulation of aliens. Immigration policy can affect federal and international trade, tourism,
diplomatic relations, and other vital interests of the United States. The federal government
argues that four provisions of Arizona’s law are preempted by federal law covering the field of
immigration. Section 3 of the statute penalizes an individual for failing to carry an alien
registration document on his person. In Hines v. Davidowitz, 312 U.S. 52 (1941), the Court found
that Congress intended to completely occupy the immigration field with one all-embracing
system. There, the Court held that the States lacked the authority to complement or to enforce
additional regulations related to alien registration. Field preemption reflects a congressional
decision to foreclose any state regulation in the area, even if it is parallel to federal standards.
Thus, Section 3’s requirement that an individual possess an alien registration document is
preempted by federal law. Section 5(C) of the statute makes it a state misdemeanor for an
unauthorized alien to knowingly apply for or solicit work in a public place. The federal
government argues that § 5 upsets the balance struck by Congress’ passage of the Immigration
Reform and Control Act of 1986 (IRCA) and therefore must also be preempted. Congress
enacted the IRCA as a measure to combat the employment of illegal aliens – the laws make it
illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers.
Although the federal law does not impose criminal penalties, some civil fines may be assessed. It
is well settled that state law will be preempted if it stands as an obstacle to the objectives of
Congress. Here, § 5 clearly conflicts with the objectives of the IRCA and is therefore preempted.
Section 6 provides that a state police officer may arrest a person without a warrant if he has
probable cause to believe that the person may have committed any offense that makes him
removable from the United States. The federal government argues that § 6 creates an
obstruction to the alien removal process created by Congress. Under Arizona’s law, a police
officer may arrest someone if he has probable cause to believe the person has committed any
public offense that makes him removable from the United States. However, under the federal
immigration system, the illegal status of an alien alone is no basis for an arrest. Instead, an
administrative process kicks in with the filing of specific documentation to conduct a hearing. If it
is determined after such a hearing that the alien is removable, the Attorney General issues a
warrant to arrest the alien, which is executed by trained immigration officers. Section 6 attempts
to circumvent the federal process by allowing Arizona police officers to arrest suspected illegal
aliens. This would allow the state to have its own immigration policy in place of the federal
immigration system and is thus preempted by federal law. Finally, Section 2(B) requires Arizona
police officers to make a reasonable attempt to discern the immigration status of any person
they stop, detain, or arrest if there is a suspicion that the person is an illegal alien. The section
further provides that any person who is arrested will have his or her immigration status
determined prior to being released. Through its comprehensive immigration regulatory scheme,
Congress has obligated Immigration and Customs Enforcement (ICE) to respond to any request
made by state officials for verification of a person’s immigration status. The federal scheme
leaves some room for a policy requiring state officials to contact ICE as a routine matter.
However, there is no definitive interpretation from the lower courts of Section 2(B) to determine
whether it can be construed in a manner that conflicts with federal law. Therefore, §§ 3, 5(C),
and 6 of S.B. 1070 are preempted by federal law. It was improper, however, to enjoin § 2(B) until
such time as it may be shown that the provision in fact conflicts with federal law. The judgment
of the court of appeals is affirmed in part and reversed in part and remanded for further
proceedings consistent with the opinion.
Concurrence/Dissent(Scalia, J.)
The majority’s decision deprives Arizona, and any other State, from furthering its sovereign right
and power to exclude people who have no right to be in the state. Moreover, the mere
existence of federal action in the immigration field does not mean that a State is powerless to
also act in that field. The Arizona laws being challenged do not extend, alter, or revise federal
immigration restrictions, but merely enforce current federal restrictions more effectively.
***A state law that addresses immigration and alien registration is preempted where Congress
has completely occupied the entire field.
This means that there is no space for the states to regulate in this area.
H.P. Hood & Sons, Inc. v. Du Mond, Commissioner of Agriculture & Markets of New York
United States Supreme Court, 336 U.S. 525 (1949)
Rule of Law
Under its dormant Commerce Clause powers, the judiciary, in the absence of congressional
action, may invalidate state and local laws that place an undue burden on interstate
commerce.
Facts
H.P. Hood & Sons, Inc. (plaintiff) was a Massachusetts company that distributed milk and milk
products to Boston. In addition to the milk it received from Hood and other milk producers,
Boston received approximately eight percent of its milk supply from producers located in New
York. The present case arose when Hood sought to open an additional milk plant in Greenwich,
New York. Du Mond (defendant), the Commissioner of Agriculture & Markets of New York,
denied Hood’s application for a license to build the new plant. Du Mond sought to promote the
sale of milk from instate New York producers by denying the building of a new plant by an outof-state milk producer. The lower courts upheld New York’s denial of Hood’s application to build
a new plant, and the United States Supreme Court granted certiorari.
Issue
May the judiciary, in the absence of congressional action, invalidate a state law that denies
additional facilities to acquire and ship milk in interstate commerce on the grounds that those
state laws unduly burden interstate commerce?
Holding and Reasoning (Jackson, J.)
Yes. The controlling case is Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935). In that case, New
York placed limitations on the local sale of milk from Vermont, whereas in the present case, New
York sought to limit local facilities to ultimately reduce the export of milk produced instate by a
Massachusetts company. In Baldwin, New York acted unconstitutionally since New York sought
to impede the flow of interstate commerce even though Congress had not directly legislated
against New York’s actions. Baldwin stands for the proposition that a state may not promote its
own economic advantages by curtailing or burdening interstate commerce. The Framers were
very worried about competition and rivalries between states that sought to privilege their own
economic industries and burden interstate commerce. The Framers worried that this would
cause division among the union, and thus placed the authority to regulate interstate commerce
in the federal government through the Commerce Clause of the Constitution. Local producers
will be less inclined to produce unless they are guaranteed access to national markets for their
products. This assurance of free markets can be given only when markets are regulated by a
central federal authority. Moreover, Hood’s ability to produce milk would suffer without building
a new plant in New York. The decision of the lower court is reversed.
Dissent(Black, J.)
A new formula is created for evaluating the constitutionality of state commercial regulations that
makes it nearly impossible for them to pass constitutional muster. The consequences of the
majority’s ruling are far-reaching in that they would leave all local activities falling within the
formula subject to no regulatory controls whatsoever. Congress cannot be expected to pass
national, uniform regulations adequately controlling all local activities that might impact
interstate commerce. States should be allowed to regulate the local activities within their
borders that affect interstate commerce because of the impossibility of this task for Congress.
Dissent(Frankfurter, J.)
The majority’s opinion suggests an absolute rule without fully weighing the competing concerns
involved in allowing states to regulate important internal activities versus promoting interstate
commerce. In considering whether a state regulation impacting interstate commerce is
constitutional, there should be a balance between the state’s interest in preventing competition
from destroying its internal economy and the relative seriousness of the interstate commerce
interest at stake. If the competition would severely impact a state’s internal economy and have
little impact on interstate commerce, the state could constitutionally regulate competition. The
case should be remanded for further consideration at the district court level because the
relative strengths of the interests at stake are not clear from the current factual record.
Broken down:
-
Commerce Clause – is the federal law valid? Can congress regulate this area? Lopez.
-
Preemption – If this area is regulated by the state, depends on the supremacy clause. If
federal government has already said something about it, you apply the preemption test.
-
Dormant Commerce Clause – there is no federal law involved that has regulated the
area, may state step into this area? Yes; only if it does not place an undue burden on
interstate commerce.
South Carolina State Highway Dept. v. Barnwell Bros., Inc.
United States Supreme Court, 303 U.S. 177 (1938)
Rule of Law
When Congress has not acted, if a state regulation does not discriminate against interstate
commerce and the state legislature has a rational basis for adopting the regulation based on
safety or economic interests, the Court must defer to the judgment of the state legislature in
holding the regulation constitutional.
Facts
In 1933, South Carolina passed a regulation prohibiting the operation on its state highways of
certain motor trucks and “semi-trailer” motor trucks which exceeded width and weight
limitations. For purposes of the weight limit, the statute considered semi-trailer motor trucks,
which were composed of two pieces, as one single unit. Barnwell Bros., Inc. (plaintiff), an out-ofstate trucking company, brought suit in district court against the South Carolina Highway Dept.
(defendant), challenging the South Carolina weight restrictions as an impermissible restriction on
interstate commerce. The district court upheld the South Carolina regulations on the grounds
that Congress had not acted to regulate this area of interstate commerce, thus leaving all
regulation up to the individual states. The court of appeals reversed. The South Carolina Highway
Dept. appealed to the United States Supreme Court.
Issue
May a state enact legislation to regulate semi-trailor motor trucks on its highways even though it
might burden interstate commerce?
Holding and Reasoning (Stone, J.)
Yes. According to precedent, the judiciary may strike down state regulations that provide only a
limited benefit to local businesses and, in contrast, significantly burden interstate commerce.
However, in the present case, few activities within the states’ areas of regulation are as truly
local in character than the use of state highway systems. A state has a strong interest in ensuring
the safety and economical administration of those highways because a state’s highways are
entirely within its borders. Additionally, to successfully regulate the use of its highways, a state
must pass uniform regulations that affect all intrastate and interstate motorists equally. Thus, it is
impossible for state regulations to discriminate unfairly against interstate commerce. Judgment
must be deferred to state legislatures in this area because state legislatures make nondiscriminatory regulations of highways as policy choices based on their consideration of lengthy
evidentiary records. Thus, as long as a state legislature passes a non-discriminatory regulation of
an activity that Congress has not previously regulated, and has a rational basis for doing so, the
regulation should be upheld as constitutional. As Congress has not acted in the present case,
and South Carolina passed a non-discriminatory regulation for the purpose of providing for the
safety and economic administration of its highways, South Carolina acted constitutionally. The
judgment of the court of appeals is reversed.
Southern Pacific Co. v. Arizona Ex Rel. Sullivan, Attorney General
United States Supreme Court, 325 U.S. 761 (1945)
Rule of Law
In the absence of congressional legislation, when a state law purports to place equal burdens
on interstate and intrastate commerce, but the practical effect of the state’s regulation places
a greater burden on interstate economic interests, the judiciary may balance the relative
burden on the interests and strike down the state law.
Facts
In 1912, Arizona passed the Arizona Train Limit Law, which made it unlawful for any person or
corporation to operate a train of more than fourteen passenger or seventy freight cars in
Arizona, and authorized the state to collect a monetary fee from anyone that violated this
provision. Southern Pacific Co. (plaintiff) owned and operated many trains running throughout
the United States that were all longer than the limits required by the Arizona law. As such,
whenever Southern Pacific ran trains through Arizona, it had to shorten the length of its trains and
increase the train frequency to make up for the decrease in carrying capacity. This resulted in
large increases in operating costs and decreases in efficiency. Southern Pacific brought suit
against Sullivan (defendant), the Attorney General of Arizona, alleging that the Arizona state law
was an unconstitutional restriction on interstate commerce. The trial court agreed with Southern
Pacific, but the court of appeals reversed. Southern Pacific Co. appealed to the United States
Supreme Court.
Issue
Whether the Arizona law restricting the length of trains passing through its borders was an
unconstitutional limitation on interstate commerce.
Holding and Reasoning (Stone, C.J.)
Yes. The Arizona requirement treats interstate and intrastate interests equally on its face.
However, because other states permitted trains to cross their borders with over seventy cars, the
practical effect of the Arizona law is that trains passing through Arizona to other states are
required to either disassemble their cars into multiple trains, or bypass the state altogether. The
result in the present case is that Southern Pacific is required to disassemble its trains at the
Arizona border and run thirty percent more trains through the state. This amounts to a significant
increase in operating costs to Southern Pacific, and a decrease in efficiency of its interstate
commerce. Southern Pacific argues that it would face significant financial hardship by
complying with the regulations, whereas Arizona claims a safety interest in avoiding “slack
accidents” caused by longer trains running through its borders. The unlikely risk of accidents
makes Arizona’s interest in the case far less significant than the economic impact on Southern
Pacific. The Arizona law is unconstitutional because of the substantial burden on Southern
Pacific’s interstate commerce. The decision of the court of appeals is reversed.
Dissent(Black, J.)
The lower courts and the majority decided the present case based on an incomplete
evidentiary record in terms of understanding the safety of longer trains. The majority essentially
ignores the evidence presented by Arizona that longer trains are more likely to lead to “slack
action” accidents due to the way the train cars are linked together. The majority improperly
steps into a legislative role in terms of making policy judgments, based on the evidentiary record
in front of it, as to whether the Arizona regulation is justified by safety concerns. Congress, not the
judiciary, should have been tasked with hearing more evidence and ultimately concluding
whether the longer trains were permissibly safe.
Dissent(Douglas, J.)
Courts should only intervene in situations like the present case where state legislation
discriminates against interstate commerce or is out of harmony with laws enacted by Congress.
Congress already has regulated the field of railroad activity through its Interstate Commerce
Commission, and thus the Arizona law is preempted by federal laws.
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