Judicial Review - Supreme Court has authority to review decisions by other branches (Marbury)
Prohibition of advisory opinions: (1) actual dispute between parties; (2) likely that favorable decision
would have effect – Court isn’t advice giver; Cong can’t ask if legislation is constitutional
Standing: determines if a particular person is the proper party to present particular issue to court.
Criteria:
 Constitutional: Established by Art. III. Cannot be overridden by Congress. ∏ must satisfy all 3x:
 INJURY IN FACT
o Actual or imminent – not hypothetical or speculative
 Lyons – chokehold case; injury had occurred in past so not actual (current) or
imminent
 Lujan – endangered animals; too speculative bc P didn’t even have tix to go to
Sri Lanka; aesthetic injury would be allowed tho
 Laidlaw – river pollution; injury was actual/imminent bc Ps were currently
visiting river
 Mass v EPA – bc P is a state, allows the risk of injury to count; scientific data
showed high risk of loss of coastal land
o Distinct/particularized – not abstract; individual to P
 Gill v Whitford – gerrymandering, P pleaded generalized grievances and not
individualized injury
o Concrete/palpable –de facto/real
 Spokeo – incorrect info posted; P did not plead an actual injury – merely
violation of his statutory rights; should have said he lost a job
 CAUSATION – fairly traceable to challenged action
o Lujan – issue that USAID didn’t actually control the project
o Mass – just because there are other contributing factors to injury, doesn’t mean
causation will be disallowed (but this was a state)
 REDRESSABILITY – injury likely to be redressed by favorable ruling (not speculative!)
o Lyons – couldn’t show that ruling would fix past injury
o Mass – redressability shown even though reduction in emissions may only be slight
o Lujan – USAID didn’t control so couldn’t change the outcome
o Gill – Statewide injury pleaded, but relief would have to be individual – mismatch; had
to go county-by-county fixing
 Prudential: not in C, can be ignored by Court, can be overridden by Congress.
o Prohibition on raising legal rights of another, except:
 Associational standing (Laidlaw – impact lit. firms)
 At least one member of organization has standing to bring suit on own
 Lawsuit relates to purposes of organization
 Claim asserted and relief requested do not require individual members’
participation
 Organizational standing
 Satisfy the IIF element if can show injury to org. itself thru:
o Diversion of resources (to something other than lawsuit)
o Loss of funding
 East Bay Sanctuary – asylum rule change; caused EBS to change from
asylum apps to removal defense; funding from state tied to asylum apps
 3rd party standing allowed if
 Party asserting right has close relationship to injured party
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

Hindrance to injured party’s ability to protect his own interest
EBS – disallowed because the asylum seekers had no cognizable legal
right to apply outside of ports
o Prohibition on raising generalized grievances
 Gill v Whitford – Ps alleged but did not prove individual harm/injuries; evidence
only of statewide harm. Considered generalized grievance
 Injury must be within zone of interests – statute covers you (East Bay)
Political Question Doctrine: federal courts abstain from matters deemed inappropriate for judicial
review because they should be left to the political branches.
 Baker Factors:
o Constitutional text commits issue to another branch**
o Lack of judicially manageable standard**
o Necessary to make threshold policy determination before deciding on legal issue (never
used)
o Disrespect of coordinate branches (4-6 = the prudential factors)
o Unusual need for unquestioning adherence (foreign policy factor)
o Embarrassment from multiple, conflicting pronouncements by different branches
(foreign policy factor)
 Baker v. Carr – racial gerrymandering
o Facts: moving district lines would dilute racial minorities so their voting power wouldn’t
be as strong. Gerrymandering , 1 person=1 vote
o Held: NO, not a PQ, have claim under Equal Protection Clause. (Guarantor=PQ)
 Vieth v. Jubelirer plurality– political gerrymandering
o Facts: Redistricting as punishment for political rivals.
o Held: YES, PQ. Lack of judicially manageable standards for resolving issue
 Powell v. McCormack – corrupt politician okay!
o Facts: P elected to office; Congress votes to kick him out.
o Held: NO, not a PQ. Baker Factor #1? Even though ∆s argue for right to kick P out under
Art. I, s.5 (each house shall be judge of qualifications of own members), P really ruled by
Art. I, s.2 (list of actual qualifications)
 SC read §5 in light of §2; history of convention; people choose reps, would
nullify the expulsion requirements to find otherwise
 Goldwater v. Carter – rescinding treaty with Taiwan
o Facts: Pres. Carter rescinds treaty with Taiwan. Sen. Goldwater files suit – although
Congress takes no actions against rescinding treaty.
o Held: YES, PQ. Baker Factor #2. There is no judicially manageable standard. This issue is
too political and should be resolved between branches. DISSENT: claim isn’t even ripe –
no constitutional impasse YET
 Nixon v. United States – impeaching judge
o Facts: Judge impeached by Senate. Argues process is unconstitutional.
o Held: YES, PQ. Baker Factor #1. Senate shall have SOLE power to try all impeachments.
Policy matter  impeachments tend to be of judges; wouldn’t be appropriate for
judicial branch to try. Holding suggests that SCOTUS can’t review any impeachments,
even if process was clearly inappropriate/wrong
 Zivotofsky v. Clinton – passport issue, Jerusalem recognition dispute
o Held: NO, not a PQ - ∏ asking Court to enforce a specific statutory right, which requires
Court to determine if statute is C. Court only considers first two Baker Factors.
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
Take Homes:
o Court emphasizes first two Baker Factors
 Important that there is a statute
 Factors 4-6 not enough to prevent SCOTUS from ruling
II. FEDERAL LEGISLATIVE POWER
 Congress may only act based on express or implied authority in Constitution
o States may act unless Constitution prohibits acts  more general
 “Police Power”: States have general authority to act for its people
 Statutory Interpretation Tool Kit:
o Text of Constitution
o Structure of Constitution
o History – original intent v. context
o Precedent
o Policy
 McCulloch v. Maryland - Does Congress have power to incorporate a bank? – YES; Can Maryland
tax the Bank? – NO
o N/P Clause creates grant of power to Congress, not limitation
o Supremacy Clause prohibits MD from taxing Bank; prohibits states from preventing
federal government from enacting constitutional legislation
 Necessary & Proper Formula:
o Ends must be legitimate (enumerated or implied)
o Means must be appropriate. Limits:
 Plainly adapted to constitutional end
 Not otherwise prohibited
 Consistent with “letter and spirit” of Constitution
 Cannot be pretext for legislating outside enumerated powers
The Commerce Clause
Congress has authority to regulate commerce with foreign nations and “among the states”
 A) Channels of IC B) Instrumentalities of IC [things] C) Activities having substantial effect on IC
EARLY PERIOD (through 1937)
 Gibbons v. Ogden – ferry/waterway regulation
o Commerce: not limited to actual transactions, but includes “channels” of commerce
including waterways (highways, skies, airwaves, cable, etc.)
o Among the states: not limited to commerce between states, but includes intrastate
activities that affect interstate commerce
EARLY PERIOD SHIFT: Court responds to industrialization with narrow interpretation of CC
 “Commerce”
o U.S. v. E.G. Knight – sugar refining monopoly
o Commerce: exchange or transaction; distinguishes from production
 Justifies with need to protect “zone of activities” for states
o Carter v. Carter Coal – regulation of production of coal
 Court strikes down law b/c it regulates production of coal and not commerce.
 Production is also local, so should be left to states
 “Among the States”
o Shechter Poultry v. U.S. – stream of commerce test
 Live Poultry Code prohibited sellers from forcing buyers to purchase all chickens
in coop rather than selecting those they wished to buy.
 Court said that this was commerce, but not among the states: no direct effect
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o
Shreveport Rate Cases – direct/indirect test
 Congress regulates intrastate railroad rates; Court upholds
 Direct effect: if intrastate railroads could charge a lower price, they could
undersell the interstate railroads and drive out business
th
 10 Amendment
o Lottery case – Court upholds statute banning interstate shipment of lottery tickets –
does NOT violate 10th Amendment
 Power to regulate commerce includes power to prohibit items from being in IC
 Congress can use its power to regulate commerce to achieve non-commercial
goals, even purely moral goals
o Hammer v. Dagenhart – child labor case [OVERRULED by Darby]
 Court strikes down law that prohibits interstate commerce of goods made with
child labor – violates 10th Amendment
 Unconstitutional because its effect is to control production, should be left to
states
 Distinguished from lottery case: power to prohibit interstate shipment of
inherently dangerous products, but not products that pose no inherent danger
MODERN PERIOD (1937-1990s) – very broad, zone of activities for states no longer relevant
 NLRB v. Jones & Laughlin Steel - J&L a nation-wide monopoly. Suit about firing union members
o Held: Court upholds the federal collective bargaining statute
o Commerce: Court rejects early period distinctions b/w trade and production
 U.S. v. Darby – shipment of lumber in IC made by ppl getting low wages
o Held: Court upholds FLSA providing minimum wage/maximum hours requirement.
 Court holds shipment of manufactured goods clearly commerce.
 States’ right to regulate wages? 10th Amendment “but a truism” and does not
limit Commerce power
 Wickard v. Filburn – growing wheat for yourself; aggregation principle
o Held: Court upholds Ag Adjustment Act limiting total amount of wheat farmers could
grow. Filburn violated act by growing more than his allotted amount even though he
used it for himself.
o No more direct/indirect effects for determining if “among the states”
o Single test: Does activity exert a substantial effect on interstate commerce?
o Aggregation principle: Even if the action standing alone has no effect on IC, Cong can
regulate if cumulative effect of similar actions would have substantial effect on IC
MODERN PERIOD CIVIL RIGHTS CASES:
 Heart of Atlanta Motel v. U.S. – motels discriminating [instrumentalities]
o Held: Court upholds public accommodations provision of Civil Rights Act.
o Substantial Effect Test: Purely local activities can be regulated if they “might have a
substantial and harmful effect upon interstate commerce”.
o Here, discrimination discouraged minorities from interstate travel.
o Congress allowed to regulate commerce to achieve purely moral, ethical goals
 Katzenbach v. McClung – Court upholds public accommodations provision applied to BBQ
restaurant when only gets 46% of meat from out of state vendors.
o Substantial Effects Test: Using the Aggregation Principle, can find SE.
o defer to Congress as long as it has a rational basis for believing SE exist
MODERN PERIOD WRAP UP:
 Hodel v Indiana – strip mining case; can only be struck down if no rational basis; doesn’t matter
if it’s maybe not most sensical policy choice
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
Perez v US – Upholds reg., loan sharks extract money from poor, feed into financing of national
organized crime; allows control of otherwise legitimate business
o Congress has rational basis for finding SE
“Commerce” = economic realities (J+L); all stages of business
“Among the states” = substantial effect via aggregation; defer to congressional findings (rational basis)
10th Amendment = “but a truism”; no independent limit
RETRENCHMENT (1990s-2000s)
 U.S. v. Lopez – Court strikes down Gun Free Schools Act (made it a federal criminal offense “for
any individual to knowingly possess a firearm” in a school zone). No congressional findings 
so no deference
o Substantial effects - Act is a criminal statute and not part of larger economic scheme;
possessing a gun is not economic activity. NO SE
 U.S. v. Morrison – Court applies Lopez to strike down Section of Violence Against Women Act in
spite of extensive congressional findings.
o Substantial effect on IC can still be measured by aggregating the effects of individual
activities, but only if those activities are themselves “economic” or “commercial”
POST-RETRENCHMENT – Necessary and Proper case where CC is the “legitimate end”
 Gonzalez v. Raich – Court upholds federal statute banning possession of marijuana as applied to
Californians growing marijuana for own consumption for medical purposes.
o Court uses N/P Clause. Congress can regulate intra-state, non-commercial activities
when it’s necessary to make its broader regulation of inter-state market effective.
Necessary and Proper modern analysis
 U.S. v. Comstock – Court upholds section of statute that authorized federal government to
civilly commit anyone in custody of Bureau of Prisons whom the AG certifies to be “sexually
dangerous”. Uses the N/P Clause
o Court uses McCulloch test and digs down to find constitutionally legitimate power
(Congress allowed to enact criminal laws  create prisons to enforce laws  establish
laws for safe running of prisons so that neighboring communities are safe). The statute
is “rationally related” to the legitimate end of ensuring safety of communities.
TAX & SPEND CLAUSE: “Cong shall have power to lay and collect taxes, duties, imposts and excises, to
pay the debts and provide for the common defense and general welfare of the United States.”
 LIMITS to SPENDING POWER: (articulated in Dole)
o Spending must be for the “general welfare” – but courts should defer to Cong
o Condition must be unambiguous
o Conditions must be rationally related to the federal spending program
o Other constitutional provisions may provide an independent bar
o Conditions cannot be so coercive as to compel state to accept
 U.S. v. Butler – taxation in the Ag Adjustment Act
o Power to tax is separate + distinct power restricted only by the general welfare, not
enumerated powers
 Sabri v. U.S. – Court upholds federal law that made it a crime to bribe a state official because (1)
Congress has authority under Spending Clause to spend for general welfare; (2) Congress has
authority under N/P Clause to ensure money is well spent and not used for illicit purposes; (3)
regulating bribes is rationally related legitimate end of ensuring money is well spent
 South Dakota v. Dole – Court upholds highway fund condition to raise drinking age to 21
because it is rationally related to expenditure of highway (legitimate end = ensuring safe travel
on federally funded highways, appropriate means = raising drinking age).
o Court rejects argument that 10th Amendment bars condition – no coercion
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o Dole factors (see above)
NFIB v. Sebelius – Obamacare
o COMMERCE CLAUSE:
 Regulating buying insurance is not activity – it’s inactivity; text of Commerce
Clause is only power to “regulate”—not to compel
o N/P CLAUSE:
 Uses McCulloch – says laws that are not “consistent with letter and spirit of the
Constitution” are not proper even if necessary
 Clarifies using McCulloch that Congress’ power under the N/P Clause is limited
by the requirement that the means selected by Congress – even to pursue
constitutionally legitimate ends – must be consistent with the spirit & letter of
Constitution
o SPENDING POWER:
 Court construes individual mandate as valid Taxing power for “general welfare”
– but Cong exceeded authority with Medicaid Expansion – would be coercive
 First Supreme Court decision ever to limit an act of Congress under its Spending
Power
 Narrow holding  constrains federal spending conditions in contexts
involving (1) ongoing intergovernmental partnerships; (2) with very
large federal grants
10th AMENDMENT and Anti-Commandeering - Principle that fed gov may not commandeer state
governments by imposing affirmative, coercive duties on states
 Congress CANNOT:
o Issue directives requiring states to legislatively enact a federal regulatory program
o Command a state’s officers to administer or enforce a federal regulatory program
 Congress CAN:
o Use spending power to give states economic incentives to follow federal policies
o Preempt state law with a federal regulatory program
o Regulate the non-sovereign activities of states (e.g., commercial activities), at least
when regulation is generally applicable to states and private actors
 National League of Cities v. Usery – Court said it was unC for Cong to require state and local
governments to follow federal minimum wages/max hours because statute infringes on state
sovereignty
o Cong cannot regulate “traditional” or “integral” government functions
 Garcia – Court overrules National League of Cities and holds FLSA does apply
o Why overturn? (1) “traditional government functions” test unworkable; (2) state
sovereignty is protected by political process, not courts
 New York v. U.S. – Court holds unC “take title” provision of waste removal scheme because (1) it
would force states to adopt laws/regulations (no legit. choice); (2) this is commandeering and
violates the 10th Amendment
o Justifications: (1) undermines accountability – voters see state acting, but don’t know
that it’s actually the feds who should be held accountable; (2) dictating the substance of
legislation a state must pass violates the fundamental principles of sovereignty
o Abandons Garcia’s political process approach to state sovereignty
o Distinctions – (1) Garcia act was generally applicable (state and private parties) –
capacity as employer; (2) New York act was targeted at states – capacity as sovereign
 Printz v. U.S. – unC, required state and local law enforcement officers to conduct background
checks for firearms while federal system was being developed.

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
Reno v. Condon – NC selling data from driver licenses; Court upholds because it does not
interfere with states’ sovereign capacities (just regulates commercial activities) and is generally
applicable to state and private entities.
SUPREMACY CLAUSE & PREEMPTION DOCTRINE
 Supremacy Clause declares federal law is supreme law of the land
 EXPRESS PREEMPTION: statute explicitly preempts, by its terms, some category of state law.
o Lorillard Tobacco v. Reilly – Mass tobacco advertising laws are expressly preempted by
FCLAA because it prohibits any state “prohibition based on smoking and health…with
respect to advertising or promotion of any cigarettes”
 IMPLIED – 2x:
 FIELD PREEMPTION: courts will infer a congressional intent to preempt state law where a
federal regulatory scheme is so pervasive as to “occupy the field”
o Arizona case, just know that feds typically occupy “field” of immigration
 CONFLICT PREEMPTION:
o Actual conflict = impossible to comply with both state and federal law.
o Florida Lime & Avocado Growers v. Paul – CA law regulating avocado oil content is NOT
preempted because federal law sets minimum standards for avocados – other states
can impose stricter standards if they want.
o Obstacle = state law poses “an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress”
o PG&E – CA restriction of nuclear plant construction not preempted by federal Atomic
Energy Act.
 Rejects PG&E’s argument that California’s law stands as an obstacle – purpose is
to regulate safety and encourage nuclear power only to the extent states
choose.
 NOTE: outcome of case turns on how purposes of state and federal statutes are
characterized
DORMANT COMMERCE CLAUSE - Judicially interpreted principle that state and local laws that place an
undue burden on interstate commerce are unconstitutional
 Discrimination Inquiry: Does state law discriminate against out-of-staters or does it treat instaters and out-of-staters alike?
o (1) Facial discrimination – legislation discriminates against out-of-staters on its face
 City of Philly v. NJ prohibited importation of waste from other states
 Note of reciprocity requirements: states cannot use reciprocity threats to
blackmail other states; considered facial discrimination
o (2) Discriminatory purpose – look to legislative history to see if purpose is economic
protectionism
 West Lynn Creamery v. Healy  dairy tax; clearly motivated by desire to
protect MA dairy industry from out-of-state competition
 Clover Leaf  plastic milk container ban; no discriminatory purpose bc
regulates even-handedly and spreads the burdens on both in and out of state –
no protectionism, out of state can benefit just as much
o (3) Discriminatory effect – the benefits and burdens are distributed unfairly
 Hunt v. WA Apple  raised costs of doing business for WA apple growers but
left NC growers unaffected
 Exxon  Although out-of-state bore most the burden bc there were no in-state
refinery owned stations, the law did not raise cost of doing bsns, did not favor
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local dealers; law shifts bsns from one IC dealer to another; several IC dealers
were unaffected by law; discriminates by business model, not state status
 Dean Milk  made it near impossible for IC milk producers to sell in WI due to
processing requirements
 C&A Carbone – required waste to be process by single, privately owned facility
in local jx; court says DE bc it shuts out IC competitors
 United Haulers – same as Carbone, but facility is gov owned. Ct says that’s ok
 Strict scrutiny = presumptively unconstitutional. Upheld only if state law is the 1) least
restrictive alternative 2) to achieve important state interest
o Maine v Taylor - facial discrimination; upheld bc the law was least restrictive alt (hard
to inspect fish) for important state interest (enviro)
o Dean Milk – fails SS bc state could have just raised standards for milk, inspected milk
o Hunt –fails SS, no important state interest; claims it’s to protect consumers but a) WA
labels are more informative and b) the labelling occurs before ever reaching consumers
 Balancing test = weigh the burdens on IC against the benefits to the State
o Clover Leaf – burdens on IC low (can make other kinds of plastic packaging, IC can
benefit from pulpwood) and high benefit (environmental concerns)
o Exxon – burdens on IC (it is burdensome, but doesn’t mean Shell can’t operate there at
all, just can’t own gas station) are less than the benefit to State (preventing price
gouging in oil crisis)
o Pike v. Bruce Church  struck b/c marketing AZ cantaloupes did not outweigh huge
financial burden on IC
o Navajo Freight  mud flap requirement gives little benefit (does not increase safety)
and imposes substantial burden (cost, delay due to complying with contrary
regulations)
o Consolidated Freightways  restriction on double trucks imposes little benefit (no
safety increase, actually increases accidents bc trucks must take longer route) and huge
burden (significant cost bc have to run smaller trucks, delay in substituting trucks,
having to route around Iowa, 48 other states allow)
 DCC EXCEPTIONS – 2x:
o Congressional Approval: where Congress has statutorily approved the state law
 Western & Southern Life Ins. - Court upheld CA’s retaliatory tax on insurers
because Cong had removed ALL CC limits on authority of states to regulate and
tax insurance agencies
o Market Participant: state may favor its own citizens in receiving benefits from (1)
government programs or (2) in dealing with government-owned businesses
 Hughes – Gov buying inoperable cars; OK to favor in-state sellers by requiring
less documentation
 Reeves - Court upheld law that limited sale of state owned cement to citizens
during shortage; state operating in market as seller of concrete
 White v. Mass – upheld requirement that 50% of construction crew be local
workers for city-funded projects; city spending money  participating
 South-Central Timber Dev. – Court strikes AK timber sale policy b/c state was
using its participation in one market to regulate activities in another market. AK
had other methods of achieving its goals (e.g., subsidies)
III. EXECUTIVE POWER
 INHERENT AUTHORITY: authority that President has to act even in the absence of express
constitutional or statutory authority; precise scope remains unsettled
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
Youngstown – 4x approaches: Can President act in absence of express constitutional or
statutory authority? [Youngstown – P seized steel mills to keep running bc war ongoing]
o Approach 1: NO. President can only act pursuant to express statutory or constitutional
authority. (majority opinion)
o Approach 2: YES, unless President’s action usurps the power of another branch.
o Approach 3: YES, unless Congress has forbidden President’s action.
o Approach 4: Yes, unless Constitution explicitly prohibits the action. (used in foreign
policy issues)
 Justice Jackson’s Zones
o All depends on what Congress has done so far; case by case
o Statute prohibits action: President’s power at “lowest ebb”
 President has a very high burden to prove constitutionality
o Congressional silence (no statute on point): “zone of twilight”
 IA depends on: imperatives of events and contemporary imponderables
o Statute authorizes action: “maximum” presidential power
 Action unconstitutional only if statute authorizing it is unconstitutional
 Trump v Hawaii – did P have authority under INA to issue Proclamation?
o Court found §1182(f) delegated P authority to suspend entry of all aliens if he finds
their entry detrimental; Proclamation falls w/i the act (MAX EBB)
 Executive privilege is NOT absolute - ability to avoid certain subpoenas or requests for evidence
o U.S. v. Nixon  need for evidence at criminal trial outweighed executive privilege.
Allowing Nixon to invoke executive privilege would have usurped power of J branch
o More forgiving if request is due to protection of military, diplomatic, or national security
secrets (Need for unvarnished advice); weigh ability of other branch to fulfill C duties
 Cheney  suggests EP can be invoked to avoid discovery in civil suit
Presidential Immunity: President is absolutely immune from civil liability for damages arising from
official actions during presidency. (dicta  criminal liability not immune)
o Why does P get absolute immunity?
 Lawsuits would be too distracting; Need to act “fearlessly”; Vexation of a high
profile, easy target
o Nixon v. Fitzgerald  Nixon immune from civil actions that took place in office, even
tho he is now out of office
o Clinton v. Jones  court refuses to apply Fitzgerald to dismiss civil liability case b/c
happened before presidency. Even tho in office, P can be held for civil action occurring
before
 Checks on exercise of inherent authority: (1) impeachment; (2) press scrutiny; (3) congressional
oversight; (4) desire for reelection; (5) need to maintain prestige; (6) concern for historical
legacy
 Impeachment:
 Constitutional Provisions:
o “the President, VP, and all civil officers of the US shall be removed from Office on
impeachment for, and conviction of, treason, bribery, or other high crimes and
misdemeanors”
o “the House of Reps …shall have the sole power of impeachment”
o “the Senate shall have the sole power to try all impeachments. When sitting for that
purpose, they shall be on oath or affirmation. When president is tried, the Chief Justice
shall preside: and no president shall be convicted without the concurrence of 2/3rd of
the members present”
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o
“judgment in cases of impeachment shall not extend further than to removal from
office…”
 Foreign Policy & War Powers Resolution –
o P commander in chief; Cong declares war + funds military
o US v. Curtiss Wright = Court finds that there is no nondelegation problem in Congress
authorizing President to stop sales of arms to countries involved in border dispute.
 Congress cannot delegate what it does not have (i.e., Executive power)
 Foreign policy lodges in President as “sole organ of the federal government in
the field of international relations”
 Youngstown #4 = President only limited in foreign relations by Constitution
o Zivotovsky v. Kerry – Israel passport dispute
 Recognition power – P’s power to receive ambassadors  P has sole and
exclusive power to recognize sovereign nations
 Cong cannot require P to contradict his own recognition decision
o How should treaty-making powers be allocated?
 Treaty = agreements between US and foreign countries that are negotiated by
the President and effective when ratified by the Senate
 Executive Agreements = agreements between the US and foreign countries that
are effective when signed by the President and the head of the foreign country.
 Court has broadly allowed executive agreements even for major foreign
policy initiatives
 Dames & Moore = EA to settle claims; Court suggests P’s power to enter into
executive agreements is not unlimited, but doesn’t apply any limits.
o War Powers Resolution:
 Limits ability of P to introduce troops into “hostilities” to three situations: (1)
declaration of war, (2) specific statutory authorization, (3) national emergency
created by attack on US
 Requires President to consult with Congress in all possible situations
 Requires President to report to Congress within 48 hours of introducing troops
 Requires Cong approval to continue military action for longer than 60 days
 Declaration of War
 Triggers statutes that confer special powers to President
 Based on factual findings made by Congress
 Does Court ever have a role to play in WPR?
 Court has never decided ANY issue relating to constitutionality or
appropriate application of WPR – cites ripeness or political question
ADMINISTRATIVE AGENCIES
o Nondelegation Doctrine: Based on the Vesting Clause – Art. I, s. 1 “all legislative powers herein
shall be vested in Congress” – that Congress and Executive cannot delegate their powers to
other branches. Current status = mostly dead.
o Test = Congress may statutorily delegate lawmaking power to admin agencies as long as
there is an “intelligible principle” guiding their discretion. Intelligible doesn’t equate to
determinate criterion.
o Panama Refining = Court strikes NIRA provision that placed quotas on amount of oil
that could be produced in each state b/c delegated authority to P to ban interstate
shipments of “hot oil”. Provision gave no guidance to determine which “hot oil” was to
be prohibited – President left with unfettered discretion.
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o
Schechter Poultry v. US = Court strikes another NIRA provision authorizing “Codes of
Fair Competition” drafted by private trade associations and endorsed by president b/c
provided no standards guiding the President’s discretion as to which codes to adopt.
Although the provision did have some constraints, the Court found that they were not
“intelligible” principles.
o Whitman v. American Trucking Association = Court upholds Clean Air Act provision for
having an intelligible standard under the word “requisite” regarding air quality levels
o Legislative Veto: Congress reserves right to overturn an executive action (agency rule) in
statute. Strategy was adopted by Congress to police how statutorily delegated power was being
used.
o INS v. Chadha (1983) = Court strikes legislative veto in s.244 of Immigration and
Nationality Act b/c violates explicit and unambiguous constitutional procedure for
legislating. Legislating=altered legal rights of a party outside legislature
o Constitutional steps for legislating – 2x:
 Presentment = President approves or vetoes all bills
 Bicameralism = two houses (House and Senate)
Appointment & Removal – Art. II, s. 2
 President and Congress have overlapping appointment and removal powers:
o President has power to nominate “officers of US”
o Senate has power to advise and give consent
 “Officers of the US” = office created by statute  Congress chooses head (person or
commission), how appointments made, provides restrictions on President’s ability to remove
 Appointment Power:
o Dual track procedure:
 (1) Principal Officer Track = President has sole power to appoint with advice and
consent of Senate
 (2) Inferior Officer Track = Congress can, as it sees fit, vest power to appoint in
P, courts of law, or heads of departments. But Cong cannot appoint itself.
Morrison Test
 Subject to removal by higher executive branch official (i.e., AG)
 Empowered to perform only certain, limited duties
 Position is limited in jurisdiction
 Position is limited in time
 Morrison v. Olson - Court upholds Independent Counsel’s appointment because
found IC is an inferior officer (reports to AG, limited duties, limited tenure)
 Lucia v SEC – Are SEC judges inferior officer or civil servant?
 Uses significant authority test – 1) Individual must hold a “continuing”
office established by law and 2) individual must wield “significant
authority”
o Unitary Executive Theory: Con Law theory that President has entire control over
executive branch and must have tight control over all agency decisions and officials.
o Independent Agencies: exist outside the departmental structure of the executive
branch. Headed by multi-member groups that serve fixed, staggered terms. Members
can only be removed for “good cause”. Groups are politically balanced.
 Removal Power: inherent power; is not contained in C but rather pulled from Appts.
o Old Tests:
 Myers Test = If agency performs purely executive functions, then no constraints
on President’s removal power are permitted
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Humphrey’s Executor Test = If agency performs legislative and adjudicative
functions, then Congress can place constraints on removal power
o New Morrison Test:
 Executive Interference Test  Statutory removal scheme cannot unduly
“interfere with the President’s exercise of ‘executive power’ and his
constitutionally appointed duty to ‘take care that the laws be faithfully
executed’”
Removal Cases Pre-Morrison:
o Myers v. US = Court rejects the argument that because Senate must approve
appointments, it also must approve removals.
o Humphrey’s Executor v. US = Court upholds statutory provision restricting President’s
ability to remove FTC Commissioners without cause. Significantly narrows Myers
holding.
o Wiener v. US = Court holds that even where Congress has not made removal restrictions
explicit in a statutory scheme, the Court will infer them if Congress has delegated quasilegislative or quasi-judicial functions to the agency.
o Bowsher v. Synar = Court places limits on Congress’ ability to control removal of
executive officers – cannot reserve for itself power to remove executive officials.
Morrison v. Olson REMOVAL = Court rejects Myers/Humphrey’s Executor test and creates new
“executive inference test.” Court upholds the statutory removal restrictions protecting
Independent Counsel because it can only be removed by the AG and only for “good cause”
Free Enterprise Fund v. PCAOB POST-MORRISON REMOVAL = Court upholds appointment
procedures in SOX, but strikes down statutory provision restricting removal of PCAOB members
(could only be removed by SEC for good cause)
o Appointment: It is permissible for the SEC to appoint Board members because they are
inferior officers and the SEC Commission is the head of a department
o Removal: Court applies executive interference test (Morrison) to invalidate SOX
restrictions on President’s power to remove Board members – Board members could
only be removed by Commission who are also protected by good cause. This multi-layer
protection failed the EIT by unduly interfering with the President’s exercise of executive
power. Court removes “good cause” protection from Board so SEC can remove at any
time.
Recess Appointments Clause – “P shall have power to fill up all vacancies that may happen
during the Recess of the Senate, by granting commissions which shall expire at the end of their
next session”
o Arguments for the Government:
o Take Care Clause  President must always take care that laws are faithfully executed,
but Senate is not obligated to be continually in session
o Practice = almost all presidents have used recess appointment power
o Arguments for Noel Canning:
o Under the President’s interpretation, he could make all appointments through the
recess appointments clause, evading Senate advice and consent entirely
o Congress’ advice-and-consent power is one of limited checks on executive power
through admin agencies
o Youngstown #2 = president is exercising implied authority in a way that usurps Senate’s
advice-and-consent role
o Court  pro forma sessions count as being “in-session” so not a true recess; appt
invalid
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