1. Justiciability Doctrines
a. 5 standard legal arguments (in order of how they should be made)
i. Textualism- adhere to the text. BUT the const. is often vague (maybe deliberately
so)
ii. Intent- adhere to the intent of the framers. BUT how do we determine the framer’s
intent? Why do we care about what they think (they lived in a racist, sexist etc. era)?
iii. Precedent- adhere to court decisions. But which precedents? What about
bad/irrelevant precedents?
iv. Tradition- adhere to US tradition. But which traditions? This would mean no change.
v. Policy- Adhere to public policy.
b. Justiciability Doctrines (limits courts ability to hear cases)
i. Why have it?
1. Feasibility (can only hear so many cases)
2. Separation of powers (court doesn’t want to infringe on the other
branches).
ii. Advisory opinions/ Non-adversary Suits (has to be conflict)
1. Federal Courts will not resolve friendly suits where everyone agrees.
iii. Standing
1. Framework (don’t forget congress can create)
a. (1) Injury in Fact – must be concrete and particularized (person
suing needs to have been injured) and actual or imminent (not
hypothetical- Lujan).
i. Clapper created certainly impending standard (lawyer
communication possibly getting intercepted case)
ii. P can’t manufacture injury to get standing (taking steps to
avoid communication interception in clapper not injury)
b. (2) Casual Connection between the injury and conduct complained
of – injury has to be fairly traceable to the challenged action of the
D and not the result of some independent 3rd party
i. Allen: injury was not traceable to IRS (gave tax credit to
private schools)
c. (3) Redressability- injury would be redressed by favorable decision
i. Partial redressability okay (Mass v. EPA).
ii. Allen: we don’t know schools would desegregate at all if
take tax credit
iii. Focus on remedy, look at connection between injury &
relief requested
d. Congress can create standing
2. ASSOCIATIONAL STANDING (EX: NAACP)
a. (1) Your member would have standing on their own
b. (2) That the claim is germane to the organizations purpose
c. (3) You are an effective stand in for the members
3. Third party Standing
a. Generally court restricts standing to party directly injured rather
than 3rd parties. Some exceptions apply.
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i. More likely to be recognized the closer the relationship and
the greater the unity of interest w/ the rights holder and the
greater the unavoidable hindrance to the righsholder’s own
assertion of rights.
4. Generalized Grievances
a. Taxpayer suits generally no standing, see exception.
i. Frothingham: Each taxpayer has comparatively minute and
indeterminable interest. It would lead to floodgate of
litigation.
ii. AZ Christian Schools: tax credit relieves burden. Flast
exception does not apply because taxpayers spending own
money, not taxpayer money.
iii. Exception to taxpayer suits (Flast): allowing taxpayers to
challenge on Establishment clause grounds a federal statute
granting aid to religious schools.
iv. Mootness/Ripeness
1. Mootness
a. Case is no longer relevant. Moot only if subsequent events made it
clear that the allegedly wrongful behavior could not be reasonably
expected to reoccur.
b. Mootness may be decided differently for different issues in a case.
Ex: claim for injunction vs damages
c. Exception: cases that are capable of repetition yet evading review
(i.e. pregnancy litigation).
2. Ripeness
a. Concrete contest has not emerged yet
b. Lair v. Tatum
i. Group said that they were likely to be surveilled
ii. Court said that it wasn’t a ripe issue yet – haven’t shown
that they have been injured yet
2. Federalism & Necessary & Proper Clause
a. Federalism and Necessary & Proper Clause
i. If end is legitimate congress can use implied powers to accomplish its ends as long
as they are reasonable. Don’t have to adhere to enumerated powers, there are
implied powers predicated on necessary and proper clause.
ii. For N&P clause, we look to see whether the statute constitutes a means rationally
related to implementation of an enumerated power.
iii. Does not need to be “absolutely necessary.”
iv. Necessary proper is a located w/ powers in constitution so must have been meant
to expand legislative authority. Not its own power, just helps accomplish other
enumerated powers.
v. N&P Cases: McCulloch, Comstock, Kebodeaux
vi. Federalism Cases: Term limits
1. McCulloch v. Maryland: Maryland imposing tax on Federal bank of the US.
a. Enumerated power to lay & collect taxes. Can do what is N&P to
accomplish that, including setting up bank.
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b. N&P is power not limitation, doesn’t need to be absolutely
necessary
c. State Can’t tax Fed gov, causes externalities (taking money from
unrepresented people). Can still tax normal stuff (i.e. property
taxes)
d. Court held Fed gov can set up bank, it has enumerated power to
collect taxes and has implied powers. Fed gov can do whats
necessary and proper (power) as long as the activity is a means to
an enumerated power. Necessary and proper is a power of
Congress not a limitation. Does not need to be “absolutely
necessary.”
e. State can’t tax the operations of the US bank, causing externalities
by taking money from unrepresented people (out of staters). Can
still tax normal stuff like property tax on building. Power to tax is
power to destroy. State can’t impede the operations of the
constitutional laws passed by Congress (i.e. federal law is supreme).
2. US Term Limits v. Thorton:
a. Framers intended the Constitution to be the exclusive source of
qualifications for Congress and the Framers thereby divested States
of any power to add qualifications
b. Externalities would affect the nation as a whole - Idea that it would
dumb down Congress – due to the lack of experience and seniority
of the Arkansas members – the nation as a whole would suffer with
a less experience legislature
c. Dissent: 10th amendment doesn’t exclude states from changing
term limits. When constitution is silent states can do it, not just
powers they already had prior to constitution.
3. United States v. Comstock: allowed federal district courts to order the civil
commitment of mentally ill, sexually dangerous federal prisoners beyond
the dates they would otherwise be released.
a. For necessary and proper clause, we look to see whether the
statute constitutes a means rationally related to implementation of
an enumerated power.
b. Court held it was not commandeering because they are telling
states to take custody of the person but are not inquiring into
“suitability” of intended care and fed gov relinquishing their
authority when state asserts its own.
4. United States v. Kebodeaux: Does congress have authority to require a
convicted member of the Air Force to register as a sex offender under
SORNA, enacted after his conviction?
a. Constitution grants power to make rules for armed forces.
Necessary and proper clause grants broad power, here its extended
to the ability to make the statute
3. Commerce Power
i. Commerce Framework:
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1. What is the activity being regulated? Can’t regulate inactivity (Sebelius).
2. Does it fit one of the limitations?
a. Channels of interstate commerce (gibbons)
b. Instrumentalities of interstate commerce (things moving through
commerce)
c. Substantial effect on interstate commerce (aggregation is allowed
for intrastate economic activity)
i. Lopez Thomas concurrence: substantial affect test if taken
to its extreme gives federal police power and is boundless.
Should go back to traditional meaning of commerce.
3. Other Arguments/Considerations:
a. State sovereignty
i. Is the issue traditionally handled by the states? (i.e., family
and criminal law- Lopez, Morrsion)
b. Economic v. non-economic activity
i. Morrison said we can’t aggregate intrastate non-economic
activity even though there are congressional findings
showing it may have a substantial effect on interstate
commerce.
ii. Gonzales: classified as economic because market for drugs
(albeit illegal).
iii. Gonzales Scalia concurrence Congress can use necessary
and proper power to regulate interstate commerce.
Including regulating non economic intrastate activity if it’s a
necessary part of a more general regulation of interstate
commerce.
iv. Morrison Breyer dissent: economic/noneconomic
distinction is difficult to apply. Why should we give critical
constitutional importance to whether an activity is
economic or not when it affects interstate commerce?
Where do we draw the line? These distinctions seem
unlikely to help the object of protecting areas of traditional
state regulation from federal intrusion. Congress not the
courts should strike the appropriate balance.
c. Is there a jurisdictional element/nexus.
i. After Lopez congress added nexus and been upheld in
circuit courts.
d. Are there congressional findings?
i. Not dispositive, but can help show substantial effect on
commerce.
ii. Lopez
ii. Cases:
1. US v. Lopez: congress banning guns in school zones claiming cost of crime in
the aggregate affects interstate commerce.
a. Court held law did not regulate interstate commerce
i. (1) can’t aggregate non-commercial activity
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ii. (2) area traditionally regulated by the states (police power),
(3) Lack of jurisdictional nexus
iii. (4) No congressional findings of actual impact on commerce
b. After the case congress added jurisdictional nexus (gun has to move
through interstate commerce) and law has been upheld in circuit ct.
c. Thomas concurrence: substantial affect test if taken to its extreme
gives federal police power and is boundless. Should go back to
traditional meaning of commerce, drop 3rd prong.
d. Dissent: congress only needs to establish rational basis- loose
connection w/ commerce should be adequate. Commercial/non
commercial distinction will fail, it previously failed.
2. US v. Morrison: challenge against federal law imposing civil damages for
violence against women
a. Court held the law did not regulate interstate commerce
i. No nexus/jurisdictional element, non-commercial activity,
criminal/family law typically reserved to the states
b. Aggregation can only be used if economic activity
c. Congressional findings are not dispositive
d. Dissent Souter: any rational connection to commerce is enough.
Court should not be determining what is adequate.
e. Dissent Bryer: economic/noneconomic distinction hard to apply.
Congress should be responsible for striking appropriate
state/federal boundaries.
3. Gonzales v. Raich: CA law allows for possession and manufacture of
marijuana for medicinal purposes. Federal law prohibits this. Can congress
regulate local cultivation of marijuana? Court held congress can regulate.
a. Congress was regulating production and distribution of drugs, unlike
Morrison and Lopez theres no question congress can do that. Only
contested issue was whether applies to home grown MJ for own
use
b. Court held this is economic. There is an established, albeit illegal
interstate market.
c. Concerned w/ spillover effects & effect on interstate market(legally
grown mj getting into other states where its illegal). Enforcement
concerns, hard to distinguish home grown vs illegal grown MJ.
i. Like in Wickard congress is regulating national market of a
commodity and home grown MJ in the aggregate affects
supply and demand in the national market.
d. Scalia concurrence: Congress can use necessary and proper power
to regulate interstate commerce. Including regulating non economic
intrastate activity if it’s a necessary part of a more general
regulation of interstate commerce.
e. Dissent O’Connor: Lopez makes clear that possession is not itself
commercial activity. They grew it, so no commerce here. Wikard
concerned the growing of six tons of wheat in a crisis period- that
does not give congress the power to extend the commerce clause to
one's home garden.
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f.
Dissent Thomas: 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.
4. NFIB v. Sebelius (Individual mandate): requires people to buy insurance or
pay penalty. Congress says people not buying insurance increases costs of
premiums which has substantial effect on interstate commerce. Congress
also says everyone will one day participate in health care market.
a. Court held government can’t regulate inactivity (only pre-existing
economic activity). Government would be using commerce clause to
force people to enter a market, w/ that logic they could make fat
people buy vegetables instead of insurance.
b. Any police power to regulate people as opposed to their activities
remains vested w/ the states.
c. Dissent: everyone will enter healthcare market.
b. 10th Amendment Restraints on Commerce Power (Commandeering)
i. Framework
1. Who is being regulated? (all or just gov’t)
a. Traditional state function distinction proved unworkable- Garcia
b. Cannot compel only state’s to comply with federal regulation - NY
c. Cannot direct state officials to comply with federal regulation- Printz
2. Positive or negative command?
a. Reno: negative command and applied to everyone. Even though but
for the state not selling other actors would not be able to sell
anyway.
ii. Alternatives to Commandeering – Spending Power, Commerce Power, or
conditional preemption (threaten to enact federal law)
iii. Cases (Garcia, NY, Printz, Reno)
1. Garcia v. San Antonio: Congress: same facts as national league of cities.
Congress trying to extend wage requirements to state owned railroad
(already applied to private sector).
a. Court held effort to define “traditional government functions” that
are immune from federal regulation proved unworkable. It invites
unelected judicial officials to make decisions about which state
policies it favors or disfavors. Congress commerce power limited
internally and by our structure of government.
b. The political process ensures that the states will not be unduly
burden by regulations- the states have a direct influence over the
house, senate, and the Presidency." Each state is equally
represented in the senate- their interests are preserved.
c. Dissent: people instead of state legislatures now elect senators and
senators are not held as accountable by the people and try to
appeal to a national audience. Also the staff draft the laws not the
senators and they are less informed about state interests.
2. NY v. US: required states to provide for the disposal of such waste
generated within their borders and provided 2 incentives and a take title
sanction- state that failed to dispose of all internally generated waste by set
date must take title and become liable for all damages suffered by the
waste generator/owner.
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a. Court struck down law. Commandeering doctrine is premised on
singling out state government – basically forcing them to use its
legislative and regulatory authority to take title – different from the
Fair Labor Standards Act, because it also involved private actors.
b. Congressional alternatives to commandeering:
i. Spending power: Congress may condition the payment of
relevant federal funds on a state’s agreement to comply
with Congressional legislative acts.
ii. Commerce power: require states to limit production;
impose a federal tax on interstate commerce
iii. Conditional Preemption: Congress may threaten to pass
federal legislation under the Commerce Clause unless states
choose to regulate according to federal standards. In
upholding “access” incentives as involving such powers.
3. Printz v. US: court held invalid federal law that required state local cops to
conduct background check on prospective gun buyers. Appears permissible
under commerce clause (regulating instruments of commerce), but violates
anti-commandeering doctrine of 10th amendment.
a. Congress can’t compel State nor States’ officers directly
4. Reno v. Condon: Upheld federal act that bars states DMV (as well as private
resellers who get DMV info) from disclosing personal information.
a. Court upheld as it applies to everyone and is Negative command (do
not sell info)
b. This act does not require SC to enact any laws or regulations, nor
does it require state officials to assist in enforcement of a federal
law regulating private individuals.
c. It regulates the "entities that act as suppliers" of this information,
not the DMVs specifically.
d. regulated “state activities" rather than "seeking to control the
manner” in which states regulate activities.
4. Taxing Power
a. Framework (penalty not allowed):
i. Who is imposing the tax? Only congress can do it.
ii. Does it raise revenue?
1. If yes, then likely valid. Irrelevant if the amount is negligible (Kahriger)
iii. Is it regulatory? No less of tax just because has regulatory effect (Sozinsky)
1. Considerations
a. Size of tax, might a rationale economic actor choose to pay it
(Sebelius- yes & Bailey- no)
b. Who is collecting the tax & how is it paid (ex IRS vs. other agency)
c. Scienter requirement implicates acts like a penalty (Bailey)
d. Is it called a penalty? Not dispositive (Sebelius)
e. A tax statute does not necessarily fail because it touches on
activities that Congress might not be able to otherwise regulate
(Sanchez)
2. Valid factors:
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a. Is it to prevent an activity + revenue oriented?
b. Federal tax does not cease to be valid merely because it deters
activity taxed (Kahriger)
c. Court is not free to speculate motives of Congress if it raises
revenue.
d. Licensing regulation/rate structure okay (Sozinsky)
3. Invalid factors:
a. Can’t use constitutional hook as a pretext to regulate (Bailey).
i. i.e., we just want to get rid of child labor*
b. Is it meant to prevent the activity without being revenue oriented
(Bailey)?
c. Is it imposed upon the commission of a crime? (Sanchez)
iv. Note:
1. Taxing power not limited by other enumerated powers (Butler)
2. After Sebelius some say it’s not clear whether there is really a difference
between a tax and penalty.
b. Taxing power differences from Commerce Power
i. Broader than commerce power. Can tax more things. However, gives less power
over the individual. Can only make people pay taxes, commerce clause can give
greater control over the person such as restricting what they can grow in their yard
(wickard), discrimination, etc.
ii. Taxing power is its own distinct power and is not limited by the other enumerated
powers.
c. Cases
i. Bailey: federal tax of 10% of net profits if knowingly employ children
1. Doesn’t seem to be designed to raise revenue. Will produce no revenue if
successful. Huge tax 10% of net profits.
2. Scienter requirement & pretext to regulate child labor after failed in
Hammer
ii. Sozinsky v. US: court upheld $200 annual license tax on dealers in firearms
1. Court looked at the fact that every tax has a regulatory effect to some
extent
2. No less of a tax just because it has a regulatory effect
3. Court seems to be OK with general rate structures
4. Tax generated revenue so “we are not free to speculate as to the motives
which moved Congress to impose it, or as to the extent to which it may
operate to restrict activities taxed”
iii. US v. Sanchez: Marijuana Tax; Any person who transfer marijuana needs to be
registered with the Commission and pay a special tax of $1/oz; if not registered
$100/oz;
1. Tax does not cease to be valid merely because deters the activities taxed
2. A tax statute does not necessarily fail because it touches on activities that
Congress might not be able to otherwise regulate.
3. A persons tax liability does not rest on criminal conduct
iv. NFIB v. Sebelius: individual mandate tax- referred to itself as penalty in the act.
Amount due was less than cost of insurance would be.
1. Labeling as penalty is not dispositive. Court took functionalist approach
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2. Not regulatory, because rational person might choose to pay the tax instead
of insurance
3. No scienter requirement
4. Paid like a tax directly to IRS
5. Dissent: when an act adopts a criterion of wrongdoing then imposes penalty
then its regulatory
v. US v. Kahriger: imposed a tax on gambling and required gamblers to register with
the Collector of Internal Revenue. Challenger claimed Congress was trying to
penalize gambling under the pretense of its taxing power, and thus infringed upon
the police power reserved to the states.
1. A federal excise tax does not cease to be to be valid merely because it
discourages or deters the activities taxed.
2. Nor is the tax invalid b/c the revenue gained is negligible.
5. Spending Power
a. General description
i. Congress must exercise its power to tax and spend for the “general welfare.”
Congress can use spending power to condition grants for states to do things that
congress couldn’t otherwise require them to do.
b. Four Criteria for Spending Power (Dole test):
i. Who is using spending power? Only congress can use, unless delegated.
ii. (1) A purpose to serve the general welfare (easily met);
1. Courts should defer substantially to the judgment of Congress.
iii. (2) A clear statement of the condition (easily met)
1. “Must do so unambiguously … enabling the States to exercise their choice
knowingly, cognizant of the consequences of their participation.”
iv. (3) Germaneness: relationship between the condition and the purpose of
spending/activity being regulated.
1. Grants may be illegitimate if unrelated “to the federal interest in particular
national projects or programs.”
2. Broad standard, Dole- conditioned highway funds on alcohol age restriction.
“Drunk teens driving across border will cause more
v. (4) No inducement to states to violate any independently protected constitutional
rights.
1. Can’t induce states to engage in activities that would themselves be
unconstitutional. Dole 21st amendment was not barrier.
a. Can’t require someone to relinquish constitutional rights in
exchange of power.
i. EX: cruel and unusual punishment
ii. EX: we will give you $ if you relinquish search and seizure
privacy rights.
2. Financial inducement can’t be so coercive it turns into compulsion. Threat of
loss, not hope of gain.
a. Dole 5% of highway funds (.5% of total state budget) was ok even
though every other state took the grant.
b. 10% of total state budget was compulsion in Sebelius.
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vi. Note: Factors 1-2 easily met, 3-4 are usually where issues arise.
c. Cases
i. US v. Butler: majority struck down law that gave conditional grant to farmers for
restricting amount of crops that was funded by tax on processors
1. Dissent became modern theory: Threat of loss, not hope of gain, is the
essence of economic coercion. Spending power is not limited to achieve
enumerated powers; Congress has some leeway to spend in furtherance of
the general welfare as long as it does not violate other constitutional
provision.
ii. Steward Machine: tax imposed on employers of 8+, if they pay to state
unemployment fund they get 90% fed tax credit. Credit provision in the tax sought
to induce the enactment of state laws that complied with federal standards
1. Court held: not coercive, states have choice to establish the fund.
2. States were unable to give the requisite relief, collective action that must be
addressed. States were afraid if they set up unemployment fund employers
would move to states w/ out them.
3. The purpose of Congress here is to safeguard its own treasury and as an
incident to that protection to place the states upon a footing of equal
opportunity.
iii. Helvering v. Davis: Upholding the old age benefits provisions in Social Security act
which imposed fed taxes on employer/employees.
1. Court held: even when a broad view of the power to spend is accepted, the
line must still be drawn between local and general welfare, but this
discretion belongs to Congress unless their choice is clearly erroneous.
a. Problem is clearly national here, states couldn’t deal w/ it alone.
Needy people would move to states that had old age benefits,
employers move away.
2. Rehnquist: greater deference given under the Spending Clause than under
some of the other powers
iv. South Dakota v. Dole: congress passed act raising minimum drinking age act to 21
and states lose 5% of federal highway funds if they don’t comply.
1. Court held 5% was not coercive (actually only less than .5% total state
budget) even though every other state took the grant.
2.
v. NFIB v. Sebelius: Change to Medicaid provided that states must now cover people
up to 133% of poverty level (many states didn’t cover this high). Fed gov would
provide increased funding, but failure to cover these people would result in not only
loss in funding for those requirements, but also loss of all Medicaid funding.
1. Court held this crossed line from condition to coercion. Medicaid budget is
over 10% of many states total budget
6. DCC, P&I, & Premption
a. Dormant Commerce Clause
i. Definition: into the affirmative grant of the commerce power the courts have read
judicially enforceable limits on state legislation when Congress has not acted.
ii. Policy: we want to promote free markets between states.
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iii. Framework
1. Look at statute, pick category- don’t forget market participant exception
2. Facially discriminatory or facially neutral w/ protectionist purpose or
effect
a. State has to show compelling state interest and that there are not
less restrictive means. These laws are almost always struck down as
virtually per se invalid. (Exception Maine v. Taylor- baitfish case)
b. If any less burdensome (affect on commerce) or less discriminatory
(difference in treatment of in/out of staters) means are available it
will be struck down.
c. Noxious articles?
3. Facially neutral w/ disproportionate adverse effect on interstate
commerce
a. Rule: Where the State has regulated evenhandedly to effectuate a
legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the
putative local benefits.
b. Pike balancing test: balance putative local benefits vs. effects on
interstate commerce. Is the burden on commerce clearly excessive
in relation to the putative local benefits?
i. If less burdensome alternatives on commerce are available
the law can still be valid if those alternatives do not
promote the state interests as well.
4. Congress can consent to state regulations that would violate DCC.
iv. Home processing requirements: these can fall into any category above. We are
concerned w/ banning the importation of processing services.
v. Taxes & Subsidies
1. Subsidies to in state companies from general fund are okay.
a. Okay because residents can vote to use the money. Whereas other
2 categories below people can’t vote and are being charged higher
tax burdening commerce.
2. Cannot give tax break/credit only to instate co (charge higher taxes to out of
state co). Irrelevant if for profit/non profit co.
a. Differential tax may be okay if it merely compensates for costs
charged in other ways.
3. Can not charge tax then rebate part of that specific tax to only instate
companies. Essentially a tariff.
vi. Market Participant Exception
1. Rule: State or municipality can favor its own residents in the course of its
own dealings; but it does not permit that government to regulate other
private parties beyond the market in which it is a participant.
2. State can’t impose conditions after a sale (SC Timber). In White, restriction
occurred while the parties still had ongoing commercial relationship in
which state retained continuing interest in subject of the contract
3. Inquiry: Key to whether a state qualifies as a market participant lies in how
broadly or narrowly the relevant market is defined. The court has said that
in applying the market participant doctrine, it will define markets narrowly
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so as to keep the doctrine from “swallowing up the rule that states may not
impose substantial burdens on interstate commerce.
4. Cases
a. Alexandria Scrap: state can burden interstate commerce if they are
market participant.
b. Reeves: state can choose who to do business with just like private
companies.
c. White: city required city funded projects to be completed by 40%
local residents. Court rejected argument that the city was regulating
employment contracts between contractor and employees because
everyone effected in a substantial sense was working for the city
d. South Central timber: state can’t impose down stream regulations
with regulatory effect outside of particular market they are
participating in.
vii. Facial Discrimination Cases
1. Philadelphia v. NJ: banned import of out of state waste for “health”
a. Facial discriminatory. No difference between in/out of state waste.
Different from quarantine laws because they prevent movement
regardless of point of origin.
2. Granholm v. Heald: state ban wine shipment bought online from out of
state co. meant to reduce access to alcohol for teens
a. Struck down, there were less restrictive means.
b. 21st amendment lets states prohibit against interstate commerce,
but has to be evenhandedly.
3. Maine v. Taylor: ban out of state bait fish so don’t infect home ones
a. Ban held legitimate and no less restrictive means
viii. Tax/Subsidies Cases
1. Oregon Waste: higher tax on out of staters not allowed. Unless differential
2. West Lynn Creamery: Tax imposed on all milk co then rebate to in state not
allowed. Essentially a tariff. Concerned w/ taxing unrepresented people
3. Camps New found: can’t give tax breaks to in state only (non or for profit)
ix. Home Processing Cases (barring importation of processing services)
1. Dean Milk: did not matter that also discriminated against in state
2. C&A Carbone: private public partnership for landfill.
a. Facially neutral protectionist purpose Revenue generation not
compelling state interest. There were less restrictive means.
3. United haulers: Same as carbone but government already owned
a. Upheld, important state benefited from any burden placed on
interstate commerce.
b. Waste disposal traditional state gov activity. We abandoned this
distinction in commerce clause analysis yet we use it here.
4. Davis: Kentucky muni bonds exempt from state tax, but not other states
a. Similar to united haulers, government is benefiting & traditional
state function. Bonds used to shoulder civic welfare
b. Government function is not susceptible to standard dormant
commerce clause scrutiny owing to its likely motivation by
legitimate objectives distinct from the simple economic
protectionism the clause abhors
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x. Facially neutral w/ impermissibly protectionist purpose/effect cases
1. Baldwin: NY set min law for milk @ price NY produced.
a. Facially neutral /protectionist. State claims its to control
supply/demand. There are less restrictive means.
2. Hood & sons: NY denied MA milk co license to open 4th store because
market already adequately served. Struck down. Less restrictive means.
3. Hunt: Apple case. Protectionist. Less restrictive means available.
4. Bacchus: Tax on all alcohol except one from indigenous plant. Protectionist
5. Exxon: upheld law restricting producers of petroleum to operate retail. No
gas producers in state.
a. Court held neutral and doesn’t discriminate against interstate
commerce. Just limits everyone’s ability to own gas stations
6. Clover Leaf: Pulpwood case. Court held not protectionist because other
states would absorb increased pulpwood demand.
a. A nondiscriminatory regulation serving substantial state purposes is
not invalid simply because it causes some business to shift from
predominately out of state industry to a predominately in state
regulation
b. Applied Pike & burden was not clearly excessive in light of interest.
xi. Facially neutral w/ disproportionate adverse effect on interstate commerce
1. Pike: Az required melons grown in AZ packed/stamped in AZ
a. State’s tenuous interest in having cantaloupes identified as
originating in AZ cannot constitutionally justify the requirement that
the company build and operate an unneeded $200k packing plant in
the state
2. Kassel: Iowa prohibits trucks over 55ft. exemption for in state border cities.
a. Burden on interstate commerce clearly outweighs State interest in
highway safety and reduced wear on roads. Safety reasons not
rational hear, this law may be more dangerous & huge burden on
commerce.
3. Egar: court held unconstitutional Illinois business takeover act which
regulated tender offers made to target companies based in Illinois
a. held this imposed a substantial burden on interstate commerce,
that was not outweighed by its punitive local benefits. Pike
balancing test.
b. Discourages out-of-state buyers from buying in-state companies vs.
IL interest in preventing takeovers of its companies, many of these
protections already exist by SEC.
b. Privileges & Immunities
i. P&I Clause Art IV §2 2: “The citizens of each state shall be entitled to all P&I of
citizens in the several States.
ii. Purpose: to help fuse into one nation a collection of independent sovereign States.
It was designed to insure to a citizen of State A who ventures into State B the same
privileges which the citizens of State B enjoy.
iii. Framework:
1. Did state A (or city) discriminate against citizen of state B? Does not apply
to corporations & no market participant exception
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a. Just because there’s also in state discrimination does not mean it
does not apply - United Building.
2. Is it a traditional “fundamental right” (right to make a living) being
burdened?
3. If so, does the state have a substantial reason to discriminate against out of
staters? Virtually always struck down if violate fundamental right
a. Inquiry: whether such reasons do exist and whether the degree of
discrimination bears a close relation to them. As part of any
justification offered for the law, nonresidents must somehow be
shown to “constitute a peculiar source of evil at which the statute is
aimed.”
b. The inquiry must also be conducted with due regard for the
principal that the State’s should have considerable leeway in
analyzing local evils and prescribing appropriate cures.
4. Congress can’t give authorization to violate privileges and immunity
because constitutional right. No market participant exception
iv. Cases
1. Toomer: license fee for fisherman of $25 residents & $2500 non-residents.
Also 1/8 cent tax per pound of fish. State trying to conserve fish population
a. P&I violation, fundamental right to make a living.
b. State argued that they were trying to conserve shrimp supply &
claimed non-residents used larger boats – didn’t want those bigger
boats in the state waters taking up space, etc. There is no
reasonable relation b/w the danger presented by non-residents and
the severe discrimination practiced upon them.
2. Baldwin v. Montana Fish & Game: elk hunting = recreational activity.
3. United building city law required 40% of contractor’s employees working on
city projects to be city residents discriminated against in & out of staters.
4. New Hampshire v. Piper: Court held that a state rule limiting bar admissions
to in-state residents violated the P&I Clause.
a. Fundamental right violated, right to make a living
b. No substantial important state purpose for this law. None of the
states reasons for this law (out-of-staters are less likely to follow
rules, be available for court proceedings, or do pro bono work) are
"substantial."
c. Preemption
i. Preemption is derived from the Supremacy Clause (Art. VI) which states that the
“Constitution, laws, treaties… are the supreme law of the land.”
ii. Framework
1. Analyze whether the statute is constitutional before talking about
preemption. Then assuming its constitutional is there preemption?
2. Express: federal law specifically, clearly, and unequivocally, states it
preempts state or local law.
a. When preemption is express, only issue is whether a statute falls
within the area preempted.
3. Implied: occurs in circumstances when a valid federal statute supersedes
even in the absence of Congress clearly stating preemption in express
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terms, but by perceived congressional intent and statutory language to
preempt state/local law.
a. Field Preemption
i. Look at what field Congress is occupying & whether the act
in question is regulating in that field.
ii. Court requires clear showing that Congress meant to occupy
a field and so displace the states from regulation on that
subject matter.
iii. States are precluded from regulating conduct in a field that
Congress has determined must be regulated by its exclusive
governance. The intent to displace state law altogether can
be inferred from a framework of regulation:
1. “so pervasive . . . that Congress left no room for the
States to supplement it” or
2. where there is a “federal interest . . . so dominant
that the federal system will be assumed to preclude
enforcement of state laws on the same subject.
iv. Pacific Gas: court should not try to determine state true
intent for what “field” state says its regulating.
1. Consider: How comprehensive is the federal regime
- are there many agencies and statutes passed?
v. Cases: Arizona, Pacific Gas (wasn’t field), Florida Lime
b. Conflict Preemption
i. Physical Impossibility to comply w/ both
1. State law is preempted when “compliance with
both federal and state regulations is a physical
impossibility.
2. Consider: is one or more of the laws compelling
someone to do something prohibited by the other
law
3. Cases: Pacific Gas (not but discusses), Florida Lime
ii. Obstacle to accomplishment of federal objective
1. State law stands as an obstacle to the
accomplishment and execution of the full purposes
and objectives of Congress.
2. What is a sufficient obstacle is a matter of
judgement, to be informed by examining the
federal statute as a whole and identifying its
purpose and intended effects.
3. Cases: Arizona, Crosby
4. Overarching rule
a. In preemption analysis courts should assume that the historic police
powers of the states are not superseded unless that was the clear
and manifest purpose of congress.
5. Don’t forget to look for other issues assuming not preempted like DCC
iii. Congressional Consent to state regulations
1. Mccaran act:. No act of congress shall be construed to supersede or
invalidate a state law for purposes of tax/regulation of insurance companies
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iv. Cases
1. Pacific Gas: fed statute over safety of nuclear & purpose of act to promote
nuclear. CA law imposed moratorium on certificates for new nuclear plants
until safe disposal methods in place. No express preemption here.
a. Court held CA said state act was for economic not safety reasons so
it was not field preemption.
b. Need for new power facilities/economic feasibility are areas that
have been characteristically governed by the States.
c. Not physical impossibility preemption.
d. Not obstacle preemption because promotion of nuclear power
under fed act is not to be accomplished at all costs. Congress has
allowed state to make economic decision of having fossil fuel vs
nuclear
e. Takeaway: what field is congress occupying. Does the act in
question assert a right to act in a matter regulated by fed gov.
2. Florida Lime & Avocado Growers: CA had higher avocado standards than
fed gov.
a. Not field preemption, the federal law here was just minimum rather
than uniform standards. The fed regulation in this area is not so
comprehensive to be exclusive and displace state law.
b. Not physically impossible to comply with both.
3. Gade v. National solid waste: court found state law provisions for licensing
workers who handle hazardous waste preempted by OSHA regulations.
Court found there was conflict preemption and couldn’t physically comply
with both.
4. AZ v. US: SB 1070 found preempted because national gov has power to
establish uniform standard for immigrant registration.
a. Section 3 imposed misdemeanor for failure to comply w/ state
registration requirements: court held there is field preemption.
Congress regulates entire field of immigrant registration including
penalties.
b. Section 5 makes it misdemeanor against employee for working
unlawfully. Conflicts w/ federal sanctions. Found to be obstacle to
the regulatory system congress chose.
c. Section 6: conflict preemption, violates principle that Fed gov
determines who is removable/process for removal. Creates obstacle
to full purpose.
d. Section 2: could be potentially interpreted in way that’s allowed so
was upheld.
5. Crosby: state law barred entites from buying goods from Burma.
a. Court held congress's passage of federal law imposing mandatory
and conditional sanctions on Burma preempted state law since the
state's more stringent standards presented an obstacle to
accomplishment of Congress's full objectives to impose sanctions
but limit economic pressure. States sanctions would interefere w.
that purpose.
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7. Separation of Powers: concern regarding concentration of power in 1 branch; spread out
authority; slow things down/making it harder to make changes; impose checks and balances;
preserve individual liberties and the people.
a. Executive Powers: Vesting (he is “vested), protect/defend constitution, take care/faithful
execution, veto, pardon, appointments, reception clause, treaties (w/ consent of senate),
commander in chief
b. Executive Assertions of Power Youngstown Framework – look here if President acting
i. (1) Acts pursuant to express or implied authorization of Congress. Presidents
authority is at its maximum here, it includes his powers and all that congress can
delegate. If a law is held unconstitutional in this category it usually means that the
fed gov as an undivided whole lacks power
1. Dames & Moore: in category 1 if congress has given implied authorization
through acquiescence.
2. If in time of war then may be able to do things not allowed in times of peace
(Korematsu).
ii. (2) Acts on which Congress is silent, president can rely on his own independent
powers but there is a zone of twilight where congress may have concurrent powers,
or in which distribution is uncertain. Power likely to depend on imperatives of the
event rather abstracts theory of law.
1. Test of power here depends on the facts.
2. Look at enumerated + inherent + gloss of presidential power. Things
executive has done over time and not been questioned about. Exec
Agreements allowed w/ out consent/approval of Congress.
iii. (3) Acts incompatible with the express or implied will of Congress. His power is at
the lowest ebb, he can rely only on his own powers minus any constitutional powers
of congress over the matter.
1. Consider enumerated + inherent powers.
2. No power if not self executing treaty
iv. Factors to consider: more deference to president in foreign policy, but can’t use
foreign issues as pretext to do things domestically. Has congress declared war?
Theatre of war does not expand power.
v. Cases
1. Youngstown: Exec order to seize steel co’s - labor dispute b4 Korean war
a. Majority: Congress has not declared war and “theatre of war” does
not expand so far as to taking of private property. Foreign/domestic
distinction? Executive has more power in foreign affairs, but can’t
use foreign issues as pretext to do things domestically.
2. Zivotofsky: birth certificate in Isreal/Jerusalem. Category 3
a. President has enumerated power to receive ambassadors and
inherent in that the power to recognize foreign state.
b. Congress’s act unconstitutionally violates President’s inherent
power to recognize nations (survived category 3)
c. Thomas concurrence: roots authority in vesting clause. President
executive power doesn’t say “herein granted” like congress’ verting
clause so it’s not limited.
d. Roberts Dissent: reception clause is duty not power, can’t expand.
This isn’t recognition anyway, passport doesn’t recognize country.
e. Scalia: congress has power of naturalization so they control here.
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3. Belmont Exec Agreement suspending w/ USSR assigning claims to US
against Americans holding Russian co funds seized after revolution
a. Executive agreements are valid and trump state law (supremacy
clause). Don’t require approval/consent of Senate
4. Dames & Moore: Exec agreement w/ Iran to release hostages & US would
terminate all litigation in US courts involving claims against Iran
a. Upheld: Category 1 through acquiescence & realm of foreign policymore deference to President.
5. Medellin v. Texas: Bush declared US would comply w/ treaty under Vienna
Convention/ICJ judgement.
a. Bush lacked authority because not self-executing treaty (not
requiring congress to act to make law)
b. Congress has power to make treaties, no gloss argument (category 3)
6. Korematsu: internment camps based on 1942 congress act (category 1)
a. We have had recent occasion to quote approvingly the statement of
former Chief Justice Hughes that the war power of the Government
is “the power to wage war successfully.” The validity of action under
the war power must be judged wholly in the context of war
b. Frankfurter Concurrence: just because this wouldn’t be allowed in
time of peace doesn’t mean its unconstitutional in time of war… this
is slippery slope
c. Executive Discretion in times of War or Terrorism
i. Congress power to declare war & raise armies/navies
ii. President power= commander in chief.
iii. Suspension Clause Art I §9 cl.2: "the privilege of the writ of Habeas Corpus shall not
be suspended, unless when in cases of rebellion or invasion the public safety may
require it.
iv. Habeas corpus: It gives detained right to have a court direct the government official
holding him in custody to produce him and provide good reason for "having the
body" - or else release him. When it is suspended, a detainee ordinarily has no
immediate legal recourse, even if his detention is unlawful.
v. Ex parte Merryman: Court held only congress can suspend writ of habeas corpus
even in time of war. Court described its role as declaring the law and leaving its
execution to the President.
vi. War Powers Resolution of 1973: Limitation on presidential war powers—Congress
asserts power to declare war, save in emergency situations of attack where the
President MUST respond quickly.
1. President may introduce troops into hostilities pursuant ONLY to:
a. (a) Congressional declaration of war
b. (b) Specific statutory authorization, or
c. (c) A national emergency created by an attack upon the US, its
territories or possessions, or armed forces
2. If President introduces troops into hostilities, President must:
a. (a) Within 48 hours notify Congress of the reasons for the action
(submit report), and
b. (b) Within 60 days terminate the use of force, UNLESS Congress has
approved use, extended period, or can’t physically meet (then 30
more days).
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vii. Obama Libyan Incident: claimed not in hostilities, just logistical support.
viii. Miligan: Even when Habeas Corpus is constitutionally suspended, non belligerent US
citizens are entitled to trial by art III court if they are open (as opposed to military
commission).
ix. Quirin: US citizenship does not protect you from consequences of a belligerency and
US citizen can be subject to trial by military commission. President can order trial by
military commission, when as here, he has congressional approval (articles of war)
x. Eisentrager: non-citizen, unlawful enemy combatant, captured & held in nonsovereign territory, tried by commission outside US, conduct was outside US.
Habeas petition not extended here.
xi. AUMF gives President authorization to detain citizens as enemy combatants by
stating he can use "all necessary and appropriate force." (Category 1 of
Youngstown). However, citizens should be given a meaningful opportunity to
combat factual allegations of status as enemy combatants (Hamdi).
xii. Hamdan: Even if the President can order trials by military commission solely relying
on his powers, his power is limited by restrictions placed on him by Congress. Only
certain violations of the law of war can be tried by military commission. Even if
conspiracy is one of them he has to comply with the UCMJ and laws of nations
(Geneva convention), which he did not here. DTA did not strip court of jurisdiction
over Habeas petition
xiii. MCA (response to Hamdan): sought to give president authority to try any violation
of the law of war by military commission. Expanded DTA's removal of habeas
petition review over all enemy combatant detainees regardless of where they are
held
xiv. Habeas Corpus (Boumediene rules)
1. If you are within the reach of the suspension clause you are entitled to
Habeas corpus unless:
a. The writ has been formally suspended; or
b. You have been given adequate substitute process
2. Factors to consider in determining if detainee is in reach of suspension
clause:
a. Citizenship and status of detainee and adequacy of process through
which the status determination was made;
i. Non-citizen/citizen and lawful/unlawful enemy combatant.
ii. CSRT did not provide adequate substitute process
b. Nature of site where apprehended and detention took place; and
i. Sovereign territory or not? Guantanamo w/ in US
jurisdiction for habeas review
c. Practical obstacles inherent in resolving the prisoner’s entitlement
to the writ.
i. Eisentrager: was in occupation zone, needs troops. Similar
threats not apparent in Guantanamo.
3. If detainee is w/ in reach of suspension clause, analyze if there was
adequate process or a constitutional suspension of the writ:
a. If the writ is to be denied Congress must act in accordance w/
requirements of the Suspension Clause (has to be time or rebellion
or invasion and public safety requires it). MCA = unconstitutional
suspension of the writ.
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b. DTA did not provide adequate substitute process. Detainee must be
given opportunity to present relevant exculpatory evidence that
was not made part of the record in earlier-proceedings.
d. Congressional Control over actions of the Executive
i. Nondelegation Doctrine: so long as Congress lays down by legislative act an
intelligible principle to which the person or broadly authorized act is directed to
conform, such legislative action is not a forbidden delegation of legislative power.
ii. One House veto: not allowed it violates bicameralism & presentment.
1. Chadha: one house veto
a. Congress must abide by its delegation once made. Can legislate to
take it away or write law more specifically.
b. Dissent: leaves impossible choice of giving away too much power or
not writing specifically enough to cover every circumstance
iii. Line Item veto: not allowed, gives President unilateral power to amend bills,
effectively creating new ones (Clinton v. NY).
iv. Nixon v. Adm’r General Services: Can congress regulate disclosure of exec docs?
1. Rule: in determining whether the act disrupts the proper balance between
the 3 branches, the proper inquiry focuses on the extent to which it
prevents the Executive Branch from accomplishing its constitutionally
assigned functions. Only where the potential for disruption is present must
we then determine whether the impact is justified by an overriding need to
promote objectives within the constitutional authority of congress.
2. Relevant exec retained control of docs & previous acts have regulated
disclosure of exec docs.
3. Framers sought to provide a comprehensive system, but the separate
powers not intended to operate w/ absolute independence. Law upheld.
e. Appointment & Removal of Executive Officers
i. Appointments Clause: President shall appoint Superior officers (such as cabinet
heads) w/ the advice and consent of the Senate. Congress can vest appointment of
inferior officers in President, heads of depts (e.g. cabinet heads), or Court of law.
ii. Congress can not vest appointment power in themselves
iii. Who is an inferior officer?
1. Nature of the duties (i.e., executive or adjudicative/judicial character);
2. independence;
3. scope: tenure (i.e., we only keep them so long as needed); limited
jurisdiction, lacked significant administrative authority, lacks policymaking
authority
iv. Congress can restrict President removal power when:
1. Real question is whether the removal restrictions are of such nature that
they impede the President's ability to perform his constitutional duty, and
the functions of the officials in question must be analyzed in that light.
(Morrison)
a. Morrison: President retained sufficient control over IC because AG
can remove IC for good cause.
2. Double tenure requirement not allowed. That impedes his duties (Free
enterprise)
v. Mistretta: Congress created commission in judicial branch to create uniform prison
sentences. 3 members to be appointed by President & removable for good cause
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f.
1. Congress could delegate legislative authority to judiciary.
2. The constitution at least as a per se matter does not forbid judges from
wearing two hats; it merely forbids them from wearing both hats at the
same time
3. We cannot see how the service of federal judges on the commission will
have a constitutionally significant practical effect on the operation of the
judicial branch.
Executive P&I + Impeachment
i. Text: no exec privileges or immunities mentioned in constitution.
ii. Stronger presumption of exec privilege when doc sought by congress rather than
court
iii. US v. Nixon: several Nixon associates being criminally prosecuted after Watergate.
Prosecutor requesting docs from Nixon and he tries to claim generalized privilege.
1. The President does not enjoy an absolute generalized privilege which would
allow him to shield all communications from a subpoena in a criminal
proceeding.
2. Utmost deference from the courts when executive communications are
regarding military, diplomatic, or national security secrets (none of those
here)
3. Criminal Suits: Court balances the type of claim asserted (general v. specific
privilege) against the needs of the fair administration of criminal justice.
iv. Comm. On Oversight & Gov’t relations: ATF had questionable tactics, did not
respond to congress’ subpoena for documents.
1. The President does not have blanket privilege from Congressional demands.
2. mere fact that there is a conflict between the branches over a congressional
subpoena does not preclude judicial resolution of the conflict.
v. Nixon v. Fitzgerald
1. President permanently immune for official acts taken while in office. Don't
want to worry about him being sued for official actions
vi. Clinton v. Jones: no presidential immunity for unofficial acts taken prior to
becoming president.
vii. Impeachment
1. Article II, Section 4 states: “The President, Vice President and all civil
Officers of the United States, shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.”
2. A majority vote in the House is necessary to invoke the charges of
impeachment. A two-thirds vote in the Senate is necessary to remove. No
one has every been removed. Andrew Johnson and Clinton impeached but
not removed
8. Trump Section
a. Emoluments
i. Foreign Emoluments Clause: “no person, holding any Office or Profit or Trust
under [the United States], shall, without the Consent of Congress, accept any present,
Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign
State.”
ii. Text: sweeping and unqualified and evinces an intent on the part of the Framers to
adopt a prophylactic rule governing foreign gift giving.
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iii. Tradition reveals that presidents have almost invariably sought legal guidance or
congressional consent before accepting foreign gifts, even for rugs, or elephant
tusks. Exception: Obama book sales
iv. Policy: A republican form of government relies, to a large degree, on transparency,
on the ability of the voting public to hold elected officials accountable for their
actions.
b. Pardon power
i. Article II recognizes the power of the President to “grant Reprieves and Pardons for
offenses against the United States, except in Cases of Impeachment.
ii. Limits on Pardon Power:
1. Has to be federal crime, anything but impeachment, can't increase
punishment. Can impose any conditions, even if not authorized by statute
iii. US v. Arpaio: trump pardoned arpaio. Criminal contempt is a pardonable offense.
1. President's pardon must be accepted to be effective. D accepted pardon here
after being held in contempt. A pardon releases the wrongdoer from
punishment, it does not erase a judgement our conviction
2. Problematic because pardoning for violation of the constitution
iv. Schick v. Reed: death row inmate sentence changed to LWOP. Death penalty banned
after he’s pardoned so he tries to get Life w/ parole instead since that what death row
inmates changed to.
1. conditions he can impose are boundless, he can't increase punishment, but
can put any condition he wants, even if not authorized by statute
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