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Con Law I Outline
Professor Giannini – Fall 2013
Chapter 1 – The Federal Judicial Power
A. The Authority for Judicial Review
 Art. III, § 2, cl. 2: The SC shall have original jurisdiction in all cases affecting ambassadors, other public ministers and
consuls, and those in which a State shall be a party. In all other cases, the SC shall have appellate jurisdiction.
 Marbury v. Madison (1803): THE CONSTITUTION IS NOW THE SUPREME LAW OF THE LAND
 Madison, Jefferson’s secretary of state, refused to deliver a commission granted to Marbury by former Pres Adams
to be a Justice. He wanted a court order forcing Madison to deliver. Marbury used The Judiciary Act of 1789, which
established and authorized US courts to issue writes of mandamus—a petition to a court asking it to order a gov’t
officer to perform a duty—to courts or persons holding office under US authority. But Art III of the Const does not
say this; instead it only allows SC to have original jurisdiction in certain circumstances and appellate review for
everything else. For the Court to issue a mandamus, it must be an exercise of appellate jurisdiction. To grant this
would be an unconstitutional exercise of original jurisdiction beyond the power of the SC. Mandamus denied.
 The court is solely to decide on the rights of individuals, not to inquire how the executive, or executive officers,
perform duties in which they can do at their discretion. Questions, in their nature political, or which are, by the
Constitution and laws, submitted to the Executive, can never be made in this Court.
 Art. III, § 2, cl. 2 [see above]
 The Constitution does not explicitly state that the SC may determine the constitutionality of acts of other branches
of gov’t; however, judicial review of other branches of the federal gov’t was established here
 Establishes the authority for judicial review of executive actions (draws a distinction between individual rights, and
the discretion of the Executive branch of how to act)
 Congress cannot expand the original jurisdiction of the SC and cannot authorize federal courts to hear cases
beyond what is specified in Art. III, and fed courts cannot gain jurisdiction by consent.
 Establishes the authority for judicial review of both federal Executive and Legislative acts (deciding between law
and constitution)
 Marbury does this by declaring the Judiciary Act of 1789 (federal law) unconstitutional, which the court
interprets as authorizing the SC to exercise a mandamus on original jurisdiction.
 Judicial review of executive conduct is appropriate when the conduct in question is MINISTERIAL—involves
nondiscretionary, non political functions—and thus, the judiciary can issue writs of mandamus against Executive
officials when they carry out clear nondiscretionary duties—like delivering a signed and sealed commission
 The court would not have the power to review acts that were political or involved in setting policy, as these are
at the discretion of the Executive.
 Federal courts can declare Legislative and [some] Executive actions unconstitutional
 SC serves as authoritative interpreter of the constitution—SC job is to say what the law is.
 Court can, in specific circumstances, review and/or command Executive and Legislative action
 Art. III creates a ceiling on SC original jurisdiction
 Martin v. Hunter’s Lessee (1816): Authority For Judicial Review of State Judgments
 Held that Art. IV Supremacy Clause required state judges to follow federal law, and thus, any decision a state judge
rendered that implicated the Constitution could trigger the SC’s jurisdiction to hear cases under Art. III.
 Federal law should not be subject to “state attachments, state prejudices state jealousies, and state interests,”
which might be perceived to “obstruct the regular administration of justice.”
 Structure of Constitution gives SC authority because of its appellate jurisdiction.
 SC review is essential to ensure uniformity in the interpretation of federal law
 Cohens v. Virginia (1821): Authority For Judicial Review of State Judgments
 Reaffirmed the constitutionality and authority of the SC to review state court judgments.
 Emphasized state courts could often not be trusted to adequately protect federal rights (judges had their own
agenda, motives, coercion, shady politics, money)
 Declared criminal D’s could seek SC review when they claimed that their conviction violated the Constitution.
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While the 11th Amendment does give states immunity from suit, when the state itself instituted the criminal suit,
it cannot claim that immunity.
B. Limits on the Federal Judicial Power
 Three primary limits exist:
1. Interpretive limits: it’s question of HOW the Constitution should be interpreted (broad v. narrow interpretation)
2. Congressional limits: refers to the ability of Congress to restrict federal court jurisdiction
3. Justiciablity limits: a series of judicially created doctrines that limit the types of matters that fed courts can decide.
1. Interpretive limits
 Much of the Constitution’s text is written in general broad terms and needs substantial interpreting
 Many constitutional questions are not addressed, and many principals underlying the Constitution are not
mentioned in the text (e.g., separation of powers or checks and balances) because it’s a historical document and
society has continually evolved over time.
 Originalism v. Nonoriginalism
 Originalism (interpretivism)
 considers the text (textualism) and the original intent (history) of the framers [drafters] and ratifiers as
authoritative for purposes of constitutional interpretation today [stays within the 4 corners of the doc]
 views Amend’s as only way to change constitution and do not want the SC to recognize rights outside of it
 if constitution is silent, then court should be silent and leave it to the Legislature to resolve
 limits what judges can review
 Nonoriginalists (Non-interpretivism)
 examines text (textualism) and original intent (history), but in addition interprets constitutional principles
in light of contemporary understandings [goes outside the 4 corners of the doc]
 Views Constitution as evolving over time
 Needs to be poised or directed towards today’s problems
 protects values that are not in the Constitution
 Textualism
 finds the meaning of the Constitution by examining the words of the text
 after examination of the words, the resulting reasoning is applied to resolve the legal problem at hand
 original meaning approach: looks at how the words would have been commonly used and understood at the
time they were written and adopted
 Structuralism
 involves drawing inferences from relevant parts of the Const as a whole and in relationship to one another
 Argues that the structure of the Constitution, the gov’t, and the institutional relationships it creates is
important when interpreting the Constitution.
 History
 can be used to resist change or be used to trace the arc of history and recognize the unfolding progress of
liberty and equality
 Original Intent
 Constitution should be interpreted in accordance with the specific intent of the Framers (members of
constitutional convention—drafters) and ratifiers (states)
 difficult to establish because few framers or ratifiers spoke to the issue
 Historical Context
 this approach seeks to understand a constitutional provision by examining the larger historical context
that gave rise to its drafting
 by understanding the social, economic and/or political problem the provision was designed to address,
the interpreter seeks to suppress the problem and advance the remedy, thereby achieving the purpose
underlying the provision
 Prudential Reasoning
 Premised on the argument that the court should consider the outcomes of its decision—it should be
pragmatic/sensible.
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Also called consequentialism because the consequences of a particular ruling should form the basis for any
valid evaluation of that ruling
Ethical or Moral Reasoning
 In addition to text, history, structure, and precedent, the judge employs the ethics or moral principles of the
Constitution when interpreting its provisions.
 It seeks to vindicate what is moral, just or desirable. It includes the natural or higher law approach.
Comparative Constitutional Theory
 Suggests that the ideas, practices, and experiences of other countries can inform the SC’s understanding not as
binding precedent but as persuasive authority
District of Columbia v. Heller (2008)
 Interpretation issue of the 2nd Amendment
 Justice Scalia employs an originalist approach to determine that the 2nd Amendment’s primary goal is to
protect individual rights to possess firearms even though there are certain limits on guns (i.e., not for mentally
ill, felons, or restrictions on certain types of guns—finds that it is for the common man to have for self defense)
 Justice Stevens (dissent) employs an interpretivist approach to conclude that the DC statue does not violate
the 2nd Amendment (finds that it is for a well armed and regulated militia).
3. Justiciability Limits
 Justiciablity means that a matter is appropriate for a court to decide
 Justiciability doctrines are all judicially created limits on the matters that can be heard in federal courts
 SC declared some Justiciablity limits are:
1. “Constitutional“: based on case and controversy requirements authorized by Art III § 2 and cannot be
overridden by Congress; and
2. “Prudential”: based on prudent judicial administration—not written in the Constitution—and can be
overridden by Congress
 Prudential Theories: prohibition against 3rd party standing, prohibition against generalized grievances, prohibition
against taxpayer standing, and domestic relations exemption
 Constitutional Requirements: [1] the prohibition against advisory opinions, [2] standing, [3] ripeness, [4]
mootness, and [5] political question doctrine. ALL MUST BE MET FOR A FEDERAL COURT TO HEAR CASE
 Avoidance principals used by the court determine constitutional questions (p. 41):
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding,
because declining to decide such questions is a last resort and necessary in the determination of real, earnest,
and vital controversy between individuals.
2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.
3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which
it is to be applied.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is
also present some other ground upon which the case may be disposed of.
5. The Court will not pass upon the validity of a statute upon the complaint if one fails to show that he is injured
by its operation.
6. The court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of
its benefits
7. When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is
raised, it’s a cardinal principal that the Court will first ascertain whether a construction of the statute is fairly
possible which the question may be avoided.
a. Prohibition of Advisory Opinions: fed courts cannot issue advisory opinions
 The characteristics that must be present in a lawsuit to avoid being advisory [meaning it is justiciable]:
1. There must be a case and controversy
2. There must be an actual dispute between adverse litigants; and
3. There must be a substantial likelihood that a federal court decision in favor of a claimant will bring about
some legal or effectual change
 Hayburn’s Case (1792):
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Stands for the principal that Congress cannot vest the review of the decisions of Art. III courts in officials of
the Executive branch because it would violate the separation of powers between governmental branches.
Plaut v. Spendthrift Farm, INC. (1995): application of #3 characteristic
 Congress can always revise the judgments of Art III courts only when a new law makes clear that it is
retroactive—legislation that prescribes what law is at an earlier time.
 An appellate court must apply that law in reviewing judgments still on appeal that were rendered
before the law was enacted, and must alter the outcome accordingly.
 A judicial decision becomes the last word of Judicial department and Congress may not declare by
retroactive legislation a case that has been decided
 Court ruled that the Statute of Limitations were up on a securities law and Congress amended to allow the
cases filed before the decision to proceed under the new law. This was retroactively asking the court to
re-open a final judgment. This would disrupt the finality of judgment and destroy separation of powers.
Nashville V. Wallace (1933): Declaratory judgment
 Declaratory judgment: a judgment that announces what the law is.
 A court does not award damages in declaratory judgments. It’s guided by 2 requirements when it
contemplates providing one:
 1) Is there a live legal dispute between the two parties? (is it ripe and not moot), and 2) Will the court’s
decision resolve the dispute? If either is missing, the opinion would be considered advisory.
 Suits for declaratory judgments are justiciable as long as they meet the requirements for judicial review
b. Standing [two types: Constitutional v. Prudential]
 The most important justiciability requirement because of the idea of the separation of powers
 Determines WHO is the proper party to bring a matter to the court for adjudication and whether they are
entitled to have the court decide the merits of the dispute of particular issues
 Constitutional Standing Requirements
1. Injury: P must allege that they have suffered or imminently will suffer an injury.
 an actual or imminent invasion of a legally protected interest of P that is concrete and particularized
 it needs to be distinct and palpable against a personal right, liberty, or privilege—NOT abstract,
hypothetical or conjectural—actual and imminent, concrete and particularized, or reoccurring injury
 must be an injury that P has personally suffered or imminently will suffer
2. Causation: P must allege that the injury is fairly traceable to the challenged action of D
 Sufficient link between D’s action and P’s injury—chain of causation cannot be speculative, it must be
concrete
3. Redressability: P must allege that a favorable federal court decision is likely to redress the injury
 Relief from injury is likely to follow from a favorable decision by the Court
1. Constitutional Standing Requirements
 Allen v. Wright (1984): NO STANDING
 Parents of black public school children allege that IRS has not denied tax exempt status to racially
discriminatory private schools and assert the IRS harms them directly and interferes with the ability of
their children to receive an education in desegregated schools
 Injury: the injury alleged must be distinct and palpable and not abstract or conjectural or hypothetical
(No)
 Causation: the injury must be fairly traceable to the challenged action of the D (No- it could be either
the parents or schools, not only the IRS)
 Redressability: the relief from injury must be fairly traceable to D’s allegedly unlawful conduct and
likely to be redressed by the requested relief (No- it’s the parents’ choices of where their kids go to
school, not the IRS’s choice)
 1st claim does not constitute judicially cognizable injury because the court held that an asserted right
to have the gov’t act in accordance with law is not sufficient as standing alone to confer jurisdiction
 2nd claim fails because the basis for standing are to persons who are personally denied equal
treatment
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2nd claim also fails because the injury alleged is not fairly traceable to the government conduct that
respondents challenge as unlawful
 The court looks at P's Complaint to determine standing. Need to carefully draft complaint with all 3
standing elements present to be heard by the court.
 Redressability: req more data collection which can only happen after the Complaint has been filed.
Massachusetts v. EPA (2007): STANDING.
 EPA argued Clean Air Act did not direct them to address global warming issue. Congress created a right
to action by a statute that gave a litigant standing.
 The litigant must demonstrate that it suffered a concrete and particularized injury that is either actual
or imminent; that the injury is fairly traceable to the D’s conduct; and that it is likely that a favorable
court decision will redress that injury.
 Injury: The loss of coastal property is sufficiently concrete and palpable. The injury was imminent
despite the prediction that global warming will cause sea level to rise 20-70 centimeters by the year
2100. It was inevitable because global warming is an injury that has already occurred and continues to
occur. [it is a step by step process just like how fed agencies implement regulations]
 Causation: while other countries contribute, ours does as well. The EPA argued that there was no
causation link of its decision not to regulate green house gas emissions from new motor vehicles
because the un-regulation contributed so insignificantly to the global climate changes it should not be
haled into court. However, Court found a causal connection btw the EPAs inaction and the MAs injury.
 Redressability: while the degree might not be imminently huge, the amount of remedy is not
measured. Since the US is only one among several other producers of greenhouse gas, the EPA’s
regulation of motor vehicle emissions would not stop global warming. Because the US is the 3rd
largest producer of greenhouse gas, Court concluded the EPA had a duty to mitigate the harm, even if
the EPA alone could not reverse global warming, it consequently found the injury to be redressable.
 Dissent: allegations of possible future injury do not satisfy the requirements of Art. III. A threatened
injury must be certainly impending to constitute injury in fact—Here, the connection from causation to
injury is far too speculative; causation is not traceable back to EPA's failure; and the asserted loss of
land as the injury in fact is not redressable by the court (it is pure conjecture the EPA regulations will
likely prevent the loss of MA coastal land).
City of LA v. Lyons: man was choked by the cops and seeking an injunction and declaratory relief against
police from using that policy again. While there was an injury, there was no standing because he could
not show that cops always choke, he will be choked in the future or it was the policy to choke.
 The causation and redressability failed.
Lujan v. Defenders of Wildlife: Animal rights activists allege that they are individually injured by funding
abroad that increased the extinction of animals.
 Injury: recognized that harm to the aesthetic beauty and recreational use of a river is the type of injury
that may support standing. However, the Court found the P’s alleged harm was not imminent because
they could not prove with concreteness and particularity of their plan[s] to return to the affected
area, so the Court denied standing.
 Causation: found that causation was too attenuated because the injury—harm to endangered
animals—was not directly caused by the Secretary of the Interior, but really by agencies funding the
projects of foreign third parties.
 Redressability: no, because they desired the Secretary of State to consult about the funding, there is
no guarantee that would stop the harm.
US v. Hays: claims LA’s has congressional district planning that is “racial gerrymandering” and violates the
14th Amendment. However, appellees do not live in the district that is the primary focus of the racial
discrimination. Therefore, the harm is not individualized to them personally.
 If you do not live in the area, can you still be injured?
 “where a P does not live in a such a district, he or she does not suffer those special harms, and any
inference that P has personally been subjected to a racial discrimination would not be justified
absent specific evidence tending to support that inference” [unless that evidence is present, P
would be only asserting a generalized grievance]
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Federal Election Comm v. Akins: P’s sued for disclosure of information about a political party under a
Federal Act. Court found that where there is a statutory right to obtain information [which exists because
of a statute] the infringement of that right is sufficient to show injury. This claim was a generalized
grievance that was not distinct and palpable, BUT WHENEVER CONGRESS GIVES YOU A RIGHT THROUGH
A STATUTE, AND IF YOU ARE DEPRIVED OF THAT RIGHT, YOU HAVE A SUFFICIENT INJURY.
 Linda R.S. v. Richard D: Unwed Mother wanted child support from father, and challenged the TX policy of
prosecuting fathers of legitimate children for not paying required child support, but not prosecuting
fathers of illegitimate children. NO STANDING.
 No Redressability: if the father was in jail, then he would not be able to pay child support; it’s only
speculative that prosecuting the father would result in redressing her harm.
 Claim an 11th Amendment violation and characterize with particularity that a TX law that allows
fathers who father children outside of marriage to refrain from paying child support is harmful and
injurious to P. LESSON: THINK ABOUT HOW TO FRAME THE INJURY.
 Warth v. Seldin: P’s challenged zoning in NY that would not allow multi-family or low income housing.
 No Redressability: if court allowed these homes to be built, who knows if the builders would even
build them there or if the families could even afford the housing anyway. NO STANDING.
 Simon v. Eastern Kent: P’s claim they were denied needed medical care because hospitals received taxexempt status for providing free health care to indigents. P’s challenged the IRS’s policy, but SC said it
lacked standing. Causation and Redressability are at issue here because it was purely speculative, and
there’s no way to know whether IRS was responsible for lack of medical care or if the patients would even
use the hospital (ARGUE THIS)
 Duke Power v. Carolina Envio: P’s claim that the Price Anderson Act violated Due Process because it
allowed injuries to occur without compensation in the event of a nuclear power accident.
 STANDING: while there weren’t any injury incidents known to date and it was purely speculative, the
construction of a nuclear power plant in the area did, however, subject them to many injuries
including: exposure to radiation, thermal pollution, and fear of a major nuclear accident.
 But for the Price-Anderson Act, the reactor would not be built and P’s would not suffer these harms
2. Prudential Standing Requirements
1. Prohibition of 3rd party standing: A party generally may assert only his or her own rights and cannot raise
the claims of third parties not before the court
 The grievance should be one’s own and not that of a third party
2. Prohibition Against Generalized Grievances: P may not sue as a taxpayer who shares a grievance in
common with all other taxpayers
 The grievance should be one within the zone of interest protect by a given statute
 Congress can override prudential limits by statute because they are not derived by the Constitution, but
instead come from the Courts view of prudent judicial administration.
 The Prohibition of Third-Party Standing
 Generally: P can assert only injuries that he or she has suffered [sufficient to meet the case or
controversy requirement]; a P cannot present legal rights or claims of third parties who are not a part
of the lawsuit
 There are exceptions to this requirement:
1. Close relationship between the P and the injured third-party
2. Third-party’s limited inability to assert own rights
 Singleton v. Wulff (1976):
 Abortion case. MO statute excluded abortions that were not medically indicated from the
purposes for which Medicaid benefits are available to needy people. Do P’s (physicians who
perform abortions) have a standing to maintain the suit? Yes. A physician may be allowed to assert
the rights of women patients against governmental interference with one woman’s decision to
have an abortion.
 Exception: The right to assert the rights of third parties depends upon a two factor test:
1. The closeness of the relationship between the P and the injured third party; and
 if the enjoyment of the right is tied up with the activity the litigant wishes to pursue, the
court can be sure that the construction of the right is not unnecessary
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 Courts are more strict and focused on this element
2. The likelihood the third party can sue on their own behalf—limited ability of third party to
assert own right
 believes there is a closeness of relationship that is apparent because a woman cannot get
an abortion without the aid of a Physician and an indigent woman cannot secure an
abortion without the Physician being paid by the state—the doctor is stepping in the shoes
of the women, that do not stand up for privacy reasons.
 Barrows v. Jackson:
 The Court allowed third party standing, permitting white D’s to raise the interests of blacks to rent
and own property against a discriminatory covenant. Because blacks were not parties to the
covenant, they had no legal basis for participating in the breach of contract suit.
 Craig v. Boren:
 Okla law outlawed 18 yr old men from buying alcohol until 21. A bartender challenged the law on
behalf of male customers btw 18-21. The bartender suffered economic loss fulfilling the injury req
 Court allowed standing because “vendors and those in like positions have the right to resist efforts
that restrict their operations by acting as advocates for the rights of third parties who seek access”
 This relationship can be strangers like this, as long as you can show the shared interest can be
resolved through the litigating party.
 Gilmore v. Utah:
 Mother is fighting for her son not to be on death row. Court said he waived his right, but his
mother wants it. There is a relationship, but since the court said he is of sound mind, the mother
cannot pursue his claim.
Organizational Standing Exception: An association has standing to bring suit on behalf of its members
when its:
1. members have standing to raise claims in their own right;
2. organizational claims it seeks to protect [in this action] are germane to the organization's purpose; and
3. participation by the organizations members is not required.
Domestic Relations Exception:
 Elk Grove United School Dist v. Newdow (2004): Father suing on daughter’s behalf not to say “under
God” during pledge of allegiance. SC reversed appeals because D lacked standing on behalf of his
daughter. It is improper for the Fed Courts to entertain a claim whose standing to sue is founded on
family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on
the person who is the source of P’s claimed standing.
 Rather, it is a state court issue whether Newdow has standing over his daughter from the mother who
has legal interests as well.
 A problem could be that the daughter is really not objecting, and therefore not an injured party
The Prohibition of Generalized Grievances [Taxpayer standing is usually integrated with this]
 Generalized Grievances: Prevents individuals from suing if their only injury is as a citizen or a taxpayer
concerned with having the gov’t follow that law.
 P may not sue as a taxpayer who shares a grievance in common with all other taxpayers.
 Can’t sue simply because the gov’t is violating/not fulfilling a statute. Must show a concrete injury.
 Taxpayer Standing: a citizen generally cannot sue if she believes tax monies are being spent in an
unlawful manner or by virtue of an unlawful statute.
 99% of the time, a wallet or psychological injury wont get you standing unless an exception applies
 US v. Richardson (1974):
 Richardson wanted to sue the CIA because he wanted to know where his tax money was going
within the CIA’s budget. He said this was harmful to his voting decisions.
 Denied standing: he has not alleged that, as a taxpayer, he’s in danger of suffering any particular
concrete injury as a result of the operation of this statute pursuant to Art. I § 9 of the Const.
 Court applied the prohibition against generalized grievances to preclude citizens from using the
courts as a forum to air grievances about the conduct of the gov’t. Court suggested that
dissatisfied citizens may assert their views through the political process at the polls.
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Here it doesn’t matter how many people are affected, instead, D was just merely complaining and
didn’t suffer a distinct concrete harmful injury.
Very Narrow Exception: standing is permitted to challenge gov’t expenditures as violating the
Establishment Clause of the 1st Amendment—the provision that prohibits Congress from making any
law respecting the establishment of religion.
 ONLY exception to the general rule: federal taxpayers have standing to challenge federal
appropriation and spending measures if she can establish that the challenged measure:
1. Was enacted under Congress’s taxing and spending power; and
2. Exceeds some specific limitation on power
 To date: the only limit that the SC has found on the taxing power is the 1st Amend’s Establish Cl.
 Flast v. Cohen (1968): Narrow Exception to Prohibition of Taxpayer Standing
 Permitted P’s to sue as federal taxpayers when gov’t funds were used to provide books to
religious schools in violation of the Establishment Clause as a result of Legislative action.
 This case has never been overruled as to giving taxpayers standing to challenge gov’t
expenditures as violating the Establishment Clause, but it also has not been extended. The
Court finds a narrow exception to a taxpayer's standing prohibition.
 The nexus demanded of federal taxpayers has 2 aspects that must be satisfied:
1. The taxpayer must establish a logical link between that status as a taxpayer and the type
of legislative enactment attacked; and
 As a taxpayer, I must show I’ve been affected by the tax and spending clause
2. The taxpayer must establish a logical nexus between that status and the precise nature of
the constitutional infringement alleged.
 The violation must be an Establishment Clause claim
 The court holds that taxpayers have standing only to challenge expenditures under Congress’s
Art I. § 8 spending power and the 1st Amendment Establishment Clause
 Hein v. Freedom from Religion Foundation (2007):
 The only basis for standing was that respondents were fed taxpayers who were opposed to the
use of Congressional taxpayer appropriations to advance and promote religion.
 In their capacity as federal taxpayers, respondents sought to challenge Executive Branch
expenditures for these conferences, which they contended violated the Establishment Clause.
 This case lacks the logical nexus required because it does not challenge the necessary
Constitutional article about Congress’ spending.
 Arizona School Tuition Org. v. Winn (2011):
 No standing: the funding of religion they challenge comes from a tax credit rather than an
appropriation. A tax credit, the court asserts, does not injure objecting taxpayers because it
does not extract and spend their funds in the service of an establishment.
 Court stated there is a difference between governmental expenditures and tax credits,
where the dissent says there is no difference because both achieve the same gov’t
outcome: to aid or provide financial support to selected individuals or organizations.
c. Ripeness
 Answers the question of WHEN a law suit takes place [it’s a timing issue]
 It seeks to separate matters that are premature for review because injury is speculative and may never occur.
 P must show that review is not premature—P must demonstrate harm has occurred or imminently will occur
 P generally is not entitled to review of a state law before it is enforced.
 A fed court will not hear a case unless the P has been harmed or there is an immediate threat of harm.
 On exam: do not confuse ripeness with imminent.
 Ripeness deals with Pre-Enforcement Review of a statute or regulation; you are asking the court to look at
the statute before the law is being enforced against you
 Poe v. Ullman: Conn. prohibits the use of contraceptive devices and giving medical advice on them. The case
was denied ripeness of Dr. wanting to give contraceptive devices to two of his patients who should not
become pregnant. No legal prosecutions had been found yet and it was open to whether or not that Conn. law
would prosecute them.
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Lacks ripeness: the fact that there is not enforcement of the law deprives this situation of the
immediacy—no harm or imminent harm.
 The state really wasn’t enforcing this law yet; the court wanted the law violated first.
 5 years later, the law was declared unconstitutional against privacy after the same Dr. and patients
were charged for violating the law.
Abbott Laboratories v. Gardner: Congress amended the Food and Drug Act and was making medical
companies change their labels on drugs, which caused their cost prices to go up. Not ripe, because they were
not penalized/prosecuted yet.
 TEST to determine Ripeness:
1. the fitness of the issues for judicial review; and
 Are the issues fit for legal review?
2. the hardship to the parties caused by withholding court consideration
 Is there a delay caused to the parties when the court does not consider the hardship?
 The delay/hardship cannot just be financial.
 This case is a ripeness issue, although they were not cited for violating the law.
 the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the
issue appropriate for judicial review
 either they comply with the requirement every time and incur the costs of changing their promotional
material and labels, or they must follow their present course and risk prosecution.
International Longshoremen’s & Warehousemen’s Union v. Boyd: Alaska was not a state yet and some US
resident aliens went to work there in the summer. Aliens sued to ensure they would be allowed back to the
US, so they wouldn’t risk forcing to choose between giving up a job or risking permanent exclusion from the US
 Found not ripe: the case arose before Alaska was a state, so the situation was deemed hypothetical.
United Public Workers v. Mitchell: found not ripe. They had a hypothetical threat. They could not speculate to
the kinds of political activity they wished to engage in. These acts were described, but not happening yet.
Regional Rail Act Cases: Railroads bring a lawsuit on a plan that had not yet been formulated, so DC said not
ripe. However, SC said it was ripe: where the inevitability of the operation of a statute against certain
individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay
before the disputed provisions will come into effect.
Lake Carries v. MacMullan: Although enforcement was many years in the future, the Court found that the suit
was ripe because it was inevitable that the law would be enforced and that as a result the boat owners had to
begin installing new facilities on their boats in anticipation of the time when the law was implemented.
d. Mootness
 P must present a live controversy AT ALL STAGES of federal court litigation
 if anything occurs while a lawsuit is pending to end P’s injury, the case is to be dismissed as moot
 Mootness established if:
 D dies during appeal process
 P dies where the cause of action does not survive death
 Parties settle the matter
 challenged law is repealed or expires
 Derived from Art. III’s prohibition against federal courts issuing advisory opinions
 if a case is moot, there is no longer an actual controversy between adverse litigants
 SC has applied this doctrine in a less strict manner
 The question is usually: “whether the case falls into one of the moot exceptions?”
 Four Exceptions to Mootness:
1. Wrongs capable of repetition but evading review
 Broad issues focusing on injury—i.e., abortion
2. voluntary cessation
 usually arise in zoning cases
3. class action suits
4. collateral consequence
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 usually arise in criminal cases
 EXCEPTIONS:
1. Wrongs capable of repetition but evading review: issue has gone away because of the [short] timeframe and
has not been solved yet, so it can come back again.
 Policy arguments: want to be able to create a place in court even though timing of the situation is a
problem
 Moore v. Ogilvie: Ill law required that a petition to nominate candidates for the general election for a new
political party be signed by 25k qualified voters. P’s filed for inclusion on the ballot but was denied because
they did not meet the requirement.
 Reasoning: while the 1968 elections is over, the burden allowed to be placed on the nomination of
candidates for statewide offices remains and controls future elections as long as Illinois maintains her
present system.
 The problem is “capable of repetition but evading review.” The need for its resolution reflects a
continuing controversy in the federal state area where our one man one vote decisions have thrust.
 Roe v. Wade: Roe started lawsuit about abortion laws while she was pregnant, when the case was
decided, she was no longer pregnant and D wanted to dismiss on mootness grounds. Pregnancy is often
and happens in order to keep the human population alive; as long as we are here, pregnancy will be also.
 Exception: Capable of repetition yet evading review:
 Where there is a reasonable expectation the same complaining party will be subjected to the same
action again and would again be unable to resolve the issue because of the short duration of the
action, the controversy will NOT be deemed moot.
 concerns issues of short duration (pregnancy, elections, divorce) and D voluntarily stops the
offending practice, but is free to resume it [voluntary cessation]
 Defunis v. Odegaard: a white male was denied admission to law school because affirmative action denied
him equal protection. He received a preliminary injunction and was allowed to attend law school while the
suit was pending. By the time case reached SC he was in his third year.
 Reasoning: P will never again have to go through the law school admission process so he is not subject
to a reoccurring injury. This injury will not evade review because there will be another person who can
raise this issue. He has been allowed to complete his law school studies regardless of the outcome of
the case so there is no need for redress.
2. Voluntary Cessation: a case is not moot if D voluntarily ceases the allegedly improper behavior but is free to
return to it at anytime. Heavy burden on the D to prove that they will not restart the behavior again [must
provide concrete reasons why they will NOT restart behavior again—if you trust D’s answer the case IS moot].
 The injury is really out of P’s control, while D is causing the injury and is on a short cycle to continue
 Policy argument: we don’t want to create a judicial environment where D stops an act but is free to start it
again. Also don’t want parties spending so much time in litigation that they should be allowed to go on
with review so there will not be this problem again
 Friends of the Earth v. Laidlaw Envir Serv: Environmental groups brought suit against the National
Pollutant Discharge for violating mercury discharge limits. Laidlaw asserts that the closures of their
facilities make this moot, but the prospect of future violations keeps this open.
 Voluntary cessation: a case is not to be dismissed as moot if the D voluntarily ceases the allegedly
improper behavior but is free to return to it at any time. Only if there is no reasonable change that the
D could resume the offending behavior is a case deemed moot on the basis of voluntary cessation.
3. Class Action Suits: a properly certified class action suit may continue even if the named P’s claims are rendered
moot, so long as the members of the class have a live controversy the case can continue
 US Parole Comm v. Geraghty: P brought suit challenging the validity of the Parole Commission’s Parole
Release Guidelines. DC denied P’s request to certify the suit as a class action on behalf of “all federal
prisoners who are or who will become eligible for release on parole,” but granted SMJ for P on the merits.
P was released from prison while his appeal to the court of appeals was pending.
 Reasoning: The purpose of the “personal stake” requirement is “to assure that the case is in a form
capable of judicial resolution.” The named representative retains a personal stake in obtaining class
certification to satisfy the case or controversy requirement. More importantly, however, the absence
of the named P does not destroy the format of the dispute as appropriate for judicial determination.
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e. The Political Question Doctrine
(i) The Political Doctrine Defined
 this an issue that is better addressed by another branch of government (even if you have standing)
 idea is that some matters are political and not legal and are thereby left to the political branches to solve
 minimizes judicial intrusion into the operations of the other political branches of gov’t [Legislative/Exec]
and it allocates decisions to the branches that have superior expertise in particular areas
 Political Questions are:
 Those issues committed by the constitution to another branch of gov’t
 Those inherently incapable of resolution and enforcement by the judicial process
 General areas of application: [Ask Baker v. Carr factors in each of these area’s]
 Republican form of gov’t clause and the electoral process;
 Foreign affairs;
 Congress’s ability to regulate its internal processes;
 Process of ratifying constitutional amendments;
 Instances where federal court cannot shape effective [complicated] equitable relief;
 Impeachment process
 Baker v. Carr: found that legislative malapportionment is no longer a political question. P’s, residents of
several counties filed a complaint against state officers and election officials alleging that the appointment
of representatives was not logical and violated the Guaranty Clause. P’s asserted rights under the Guaranty
Clause, and if discrimination was to be sufficiently shown, the right to relief under the 14th Amendment
would not be diminished by the fact that discrimination related to political rights
 Article IV § 4 [Guaranty Clause]: The US shall guarantee to every State in this Union a Republican form
of government and shall protect each of them against invasion.
 Under the clause, it’s the relationship between the judiciary and other branches of the fed gov’t
and not the fed judiciary’s relationship to the States, which gives rise to the political question—
NOT JUSTICIABLE
 Independent factors in determining whether a dispute is a prudential political question which a court
should avoid hearing to adhere to the gov’ts separation of powers. If any of these factors exist, make
the argument for a political question doctrine:
1. A textually demonstrable constitutional commitment of the issue to a coordinate political power;
 if the text of the const indicates that either the Leg or Exec branch is responsible, then political
2. A lack of judicially discoverable and manageable standards for resolving it;
 This test is based on a principled distinction between legal issues that the court can apply and
legal standards and political issues, where legal standards cannot be applied to resolve but
need a political resolution
3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion (legislative makes polices);
4. The impossibility of a court’s undertaking independent resolution without expressing lack of the
respect due coordinate branches of government;
5. An unusual need for unquestioning adherence to a political decision already made; or
6. The potentiality of embarrassment from multifarious pronouncements by various departments on
one question
 Other issues the court should not handle are:
1. foreign relations
2. Dates and duration of military activities
3. validity of enactments
 Vieth v. Jubelirer:
 Pennsylvania’s General Assembly passed a redistricting plan after the state lost two seats in the House
of Reps. Vieth alleged that the plan violated the “one person one vote” requirement of Art I § 2 of the
US Const, and that the plan was a political gerrymander in violation of Art I and the Equal Protection
Clause of the 14th Amendment.
 Issue: Is political gerrymandering non-justiciable?
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
Holding and Rule (Scalia): Yes. Political gerrymandering is nonjusticiable.
 No judicially discoverable standard for adjudicating claims of gerrymandering exist. The plurality
therefore would overrule Davis v. Bandemer. In Bandemer, the Court held that such claims are
justiciable but could not agree upon a standard for assessing political gerrymandering claims
under the facts.
 The Framers provided a remedy for the problem of gerrymandering: the Constitution gives State
legislatures the initial power to draw fed election districts, but authorizes Congress to “make or
alter” those districts. In Bandemer, the Court held that the Equal Protection Clause also grants
judges the power and duty to control that practice. However, neither Art I, §2 or §4, nor the Equal
Protection Clause, provides a judicially enforceable limit on the political considerations that the
States and Congress may take into account when districting.
(ii) The Political Question Doctrine Applied: Congressional Self-Governance
 Powell v. McCormack: NY voted Powell into the House of Rep, but he was not permitted to take his seat
because of some investigations that lead to possible unethical work behavior.
 Is this case justiciable? House of Rep states through Art I § 5, that they have broad power and may
determine which qualifications are necessary for membership of age and citizenship. P states the
Const. provides this and an elected rep may be denied his seat only if the House finds he does not
meet one of the standing qualifications expressly prescribed by the Const.
 The intention of the framers and the basic principles of our democratic system show that the Const.
does NOT vest in Congress a discretionary power to deny membership by a majority vote
 The only way for them to remove someone from the House of Reps is by 2/3 vote (Const)—court said
they didn’t even follow their own rules which is why the Court heard the case
(iii) The Political Question Doctrine Applied: Foreign Policy
 Goldwater v. Carter: Pres Carter rescinded A US treaty with Taiwan. Goldwater, a senator, brought a Const
challenge arguing that the Senate must rescind a treaty just as they must ratify the making of one.
 Court denied it saying: the case is a political question and nonjusticiable because it involves the
authority of the Pres in the conduct of our country’s foreign relations and the extent to which the
Senate or the congress is authorized to negate the action of the President. This should be left only to
the Legislative and Executive Branches
(iv) The Political Question Doctrine Applied: Impeachment and Removal:
 The question is whether any aspects of the impeachment procedure could be subjected to judicial review?
No, impeachment and removal are nonjusticiable.
 Nixon v. US: a fed dist Judge had been convicted of perjury and given a prison sentence and challenged the
procedure used by the Senate in his impeachment trial. Nixon asserted the Senate violated the Const by
having a committee of Senators take evidence against him, and having the full Senate decide his case on
the basis of a report filed by the committee.
 Court held the Const gives the Senate—not the courts—the power to decide the rules for an
impeachment trial.
 Judicial review would be inconsistent with the system of checks and balances
Chapter 2 – The Federal Legislative Power
A. Introduction: Congress and The States
 Congress may act only if there is expressed or implied authority in the Const and which is necessary to carry out the
enumerated powers
 States may act unless the Constitution prohibits it
 Art. I § 1: explicitly creates, by permission, the vested federal legislative power given to Congress
 Art. I § 8: creates what type of powers Congress has
 10th Amend: reminds Congress that the States have power limited by the prohibition of what is written in the Const
which allows the gov’t to act. [if Const does not say it, States [theoretically] can do it]
 14th Amend § 5: the congress shall have power to enforce, by appropriate legislation, the provisions of this article.
 Broad analytical structure [TTTA]:
 Is a congressional act constitutional?
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 Does Congress have authority under the Constitution to act? [THEN ask]
 Does the law violate any other constitutional provision or doctrine?
 Is a state act constitutional?
 Does the State legislation violate the US Constitution?
 Police powers: [state law that furthers the] health, welfare, safety and morals of the state [technically fed
gov’t does not have police power]
 the court has used the 10th Amend as the basis for the protection of state gov’ts from federal encroachment
 Test for scope of authority for Congress when acting under the Necessary and Proper Clause:
1. let the end be legitimate, let it be within the scope of the constitution
 [Meaning] The execution of the foregoing end result or to further the legitimate goal that Congress can create
 Is the power enumerated?
2. by appropriate (reasonable) means clearly adapted to that end
3. which are not prohibited; and
4. within the letter and spirit of the constitution are constitutional
 Is it rational or reasonable?
 If these criteria are present, the court will defer to the legislature’s judgment
 If there is a conflict between the state and fed gov’t and the fed gov’t is working within its enumerated power; then
the fed gov’t will prevail under the Constitution because it’s the supreme law of the land.
 McCulloch v. Maryland: Delineates the relationship between the fed gov’t and States.
 Facts. Congress chartered the Second Bank of the US. Branches were established in many states, including one in
Maryland. In response, the Maryland legislature adopted an Act imposing a tax on all banks in the state not
chartered by the state legislature.
 The power to tax, is the power to destroy [see preemption]
1. Does Congress have the power to incorporate a bank? Yes, the Const. does not exclude incidental or implied
powers, it does not require that everything be granted expressly and minutely described. The Necessary and
Proper Clause gives Congress the power to make “all laws which shall be necessary and proper for carrying into
execution.”
2. Does a state have the power to impose fees on the operation of an institution created by Congress pursuant to
its constitutional powers? No. The federal constitution and laws made in pursuance thereof are SUPREME. They
control the constitution and laws of the States, and cannot be controlled by States. Here, Maryland’s statute in
effect taxes the operation of the US bank, a bank properly created within Congress’s power. The states have no
power, to impede by taxation or control the operations of Constitutional laws enacted by Congress.
1. Enumerated powers: Specific powers mentioned in, and granted by the Constitution to the gov’t
2. Federalism: a scheme of gov’t whereby the power to govern is divided between a central and localized gov’ts.
3. Necessary and Proper Clause, Article I §8: enables congress to make all laws that may be necessary and
proper (appropriate) to execute its enumerated powers. This clause grants Congress the power to make all
laws necessary and proper for carrying into execution any power granted to any branch of the fed gov’t. This
clause is not itself a basis of power; it merely gives Congress power to execute specifically.
 Rule: Congress may enact laws that are necessary and proper to carry out their enumerated powers. The US
Constitution is the supreme law of the land and state laws cannot interfere with federal laws enacted within the
scope of the Constitution.
 Arguments against using the fed courts as a means to protect state interests and prerogatives from Congressional
action is:
1. States should serve as laboratories for new ideas;
2. National legislation is needed to address national issues;
3. States are closer to the people and more likely to be responsive to public needs and concerns.
 Looking at the Necessary and Proper Clause, Commerce Clause, and Tax and Spending Clause
 Commerce Clause:
 Art 1 § 8, cl. 3: “Congress shall have the power to regulate commerce with foreign Nations, and among the several
States, and with the Indian Tribes.”
 What is Commerce? Congress can regulate [Lopez Case]:
1. The Channels: Congress can regulate the use of “channels” of interstate commerce and anything that is
reasonably related to such channel
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
Congress can regulate highways, waterways, and air traffic and it can regulate the use of these
channels within the states.
2. The Instrumentalities: Congress can regulate the instrumentalities and persons or things of interstate
commerce.
 Congress can regulate trucks (drivers on roads), ships and boats (captains driving boats), which travel
through channels to carry out commerce.
3. Activities which substantially affects interstate commerce: Congress can regulate those activities that
(e.g., local farm production) have a substantial affect/impact on interstate commerce (e.g., impact on the
supply, price and viability of the nations agriculture products).
 Aggregate Activities [principle]: To bring together; to collect into a mass or sum. Congress can
regulate whole categories of “activities” that are not themselves either interstate or commerce.
 Ask:
 What is considered economic v. non-economic activity?
 Is there a jurisdictional element/jurisdictional “hook” [legislative nexus] in the regulation?[“hook”
must be written in the language of the statute]
 What’s the role of legislative findings?
 Are these areas traditionally left up to the States to decide?
 Great deference given to Congress when dealing with economic activity
 Rational Basis Test: the Court defers to congress, accepting any conceivable, rational argument that the
means chosen furthers a legitimate gov’t purpose.
1. Is congress furthering a legitimate interest? [and]
2. Are they doing it in a rational way?
National Fed of Independent Business v. Sebelius:
 Congress passed The Patient Protection and Affordable Care Act (PPACA)—known as Obamacare. The law requires
individual citizens of the States not covered by a corporate plan, Medicare, Medicaid, or a gov’t sponsored plan to
buy into a federally approved health insurance plan or face a penalty imposed by the federal gov’t.
 Issues: (1) Whether a Congressional law that requires states to choose between complying with the PPACA or loss
of federal funding for Medicaid is constitutionally valid; and (2) Whether a Congressional law requiring all citizens
to obtain health insurance or pay a penalty is unconstitutional.
 Holding/Analysis:
 Yes, this provision violates the 10th amendment through the provision that withdraws all Medicaid funding
unless the state adheres to the parameters of the Act’s Medicaid expansion program. The court stated that
while such a mechanism is unconstitutional, the correct solution for the court is to redact such a penalty,
thereby giving states a choice as to whether they want to create the exchange without the threat of Medicaid
funding being lost. The court held that the grant withholding provision was unconstitutionally coercive. The
Medicaid expansion provision violates the Const by threatening states with the loss of their existing Medicaid
funding if they decline to comply with the expansion.
 No, the Act is not justified under the Commerce Clause. The court has never permitted Congress to use its
power to regulate interstate commerce so as to mandate the purchase of a particular product. In order for
congress to “regulate” interstate commerce, there must be something to regulate. Essentially, the Act creates
commerce, by regulating inactivity into activity [it summons or creates commerce]. Although the mandate is
not authorized under the Commerce Clause, it is nonetheless a valid exercise of Congress’s power under the
Taxing Clause.
 The court looks at the “tax” and used the “substance and application” test to determine whether it met the
parameters necessary to fall under the taxing and spending clause. Finding that it did meet such a definition,
recognizing that the fine is imposed by the IRS and levied on individual taxpayers through their income taxes.
 The fine is collected by the Treasury and produces revenue for the gov’t. The individual mandate is much more a
tax than a penalty, according to the court. The court interpreted a “penalty” to mean a fine imposed on unlawful
conduct. Because the individual mandate leaves consumers with a rational choice between a fine or payment, it
can hardly be seen as a “penalty.” The court also held that it was not a direct tax imposed equally on all
individuals and therefore need not be struck down due to “lack of apportionment” among the states.
 The court held that the notion of taxing “inactivity” is a legitimate power of Congress. This did not create a limitless
taxing power, according to the court, because the court would not support such a tax that was so severe as to be
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“putative.” The attendant law was not “putative,” as it gave citizens a reasonable and rational choice between
activity and inactivity. The court did not clarify at what point a tax on inactivity becomes “putative” as opposed
to remaining a “rational choice.”
B. The Necessary and Proper Clause
 The Court interprets the necessary and proper clause in Art. 1 § 8 as a grant of power to Congress, not a limitation.
 Congress has the power to use any means, not prohibited by the Constitution, to carry out its authority.
 US v. Comstock:
 A group of convicted sex offenders sought to dismiss petitions that attempted to indefinitely “commit” them under
§ 4248. At trial, the fed DC dismissed the petitions. On appeal, the US Court of Appeals affirmed the dismissal,
holding the Act exceeded the scope of Congressional authority by enacting a law that imprisons/confines a person
solely because of “sexual dangerousness,” where the prosecution never even alleged that the “dangerousness”
violates a fed law.
 Issue: Does the Adam Walsh Child Protection and Safety Act violate the necessary and proper clause of the Const?
 Holding/Analysis: No reversed and remanded. The necessary and proper clause is broad in its scope. Citing
McCullough v. Maryland, the Court argued that Congress may enact laws that are “convenient or useful” or
“conducive” to the enumerated power’s “beneficial exercise.” The court must determine if the means used are
rationally and actually calculated to achieve the constitutionally desired end. Moreover, Congress has passed
laws affecting mental health prisoners and crimes involving mental health deficiencies, despite there being no
expressly authorized power to do so.
 Many of the prisoners were already committed under a similar statute. The additions proposed by the new
statute at issue are modest and affect only a few prisoners. “The Fed Gov’t, as custodian of its prisoners, has
the constitutional power to act in order to protect nearby [and other] communities from the danger such
prisoners may pose.”
 Thus, far from a ‘general police power, §4248 is a reasonably adapted and narrowly tailored means of pursuing
the Gov’ts legitimate interest as a federal custodian in the responsible administration of its prison system.
 Five Considerations to determine if a Statute is “Necessary and Proper”:
1. The breadth of the Necessary and Proper Clause;
2. History of federal involvement in area;
3. Is law reasonably adopted to achieve goals;
4. Does federal law take into account State interests; and
5. Statutory scope/links to an enumerated power.
C. Commerce Clause
a. What is Congress’s Authority to Regulate “Commerce among States”?
 Article I § 8, cl. 3: Congress shall have the power to regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes.
 10th Amend: The powers not delegated to the US by the Constitution, nor prohibited to it by the States, are
reserved to the States respectively, or to the people.
 Interstate Activity: activities between states (crossing state lines)
 Intrastate Activity: activities within one state
 Core Questions:
 What is “Commerce”?
 What is “among states”?
 Does 10th Amend limit Congress Commerce Clause powers?
 Lopez & Morrison demonstrate: a tightening Congressional power with the 10th amend to avoid the question of
whether the Court exceeds the scope of Congress under the Commerce power.
 US v. Lopez:
 Facts: boy arrested for carrying a firearm to school in violation of the Gun Free School Zones Act of 1990.
Under the Commerce Clause, Congress made it a federal offense to carry a firearm near a school zone. A
federal law enacted under Commerce Clause authority must substantially affect interstate commerce.
 Justice Rehnquist opinion
 Placed limits on the scope of Congress Commerce Clause powers
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Categories of activity that Congress may regulate under its commerce power [General Test]:
1. Regulate the use of the channels of interstate commerce (highways, airways, waterways, internet)
2. Congress is empowered to regulate and protect the instrumentalities and persons or things in
interstate commerce (vehicles used in intrastate commerce)
 Role of Jurisdictional hook: The way the goods get from point A to point B [interstate v. intrastate]
3. Regulate activities having substantially affects on interstate commerce
 Examples of activities that “substantially affect”:
 Manufacturing
 labor relations (child labor, minimum wage, work place safety)
 Court believed that the Act only related to the 3rd activity
 Gov’ts theories of costs of crime and national productivity converts congressional authority—under the
commerce clause—to a general police power that is retained by the States
 The fed gov’t is a gov’t of enumerated powers, not general powers. Simply because education affects
interstate commerce, congress cannot enact all legislation relating thereto.
 O’Connor and Kennedy: Are we trying to solve a state problem [?] because they can solve their problems and
regulate them on their own.
 Thomas: has a problem with the modern meaning of the substantial affect “test.” He wants it to reflect the
text and history of Commerce Clause without rejecting recent Commerce Clause jurisprudence.
 Aggregation principle: congress can regulate whole categories [as opposed to the individual] of activities
that are not themselves either interstate or commerce
 Aggregate? Do we build the problems up to see if they are substantial? Just because you compile the
effects together, does not mean Congress would ordinarily have the reach over that issue.
 Dissent:
 Souter: Supposed to give Congress the benefit of the doubt.
 Rational basis test: standard of review is the court looks at the legislation involving congress
(threshold is the lowest). Congress must have a legitimate purpose and the legislation must be
reasonably related to that general purpose [Court defers to Congress accepting any conceivable,
rational argument that means chosen furthers a legitimate government purpose].
 Breyer: finds that Congress acted well within its authority under the Commerce Clause
US v Morrison: A college student filed suit alleging sexual assault in violation of the Violence Against Women Act. P
argued that this suit falls under the third category.
 Rule: Commerce Clause regulation of intrastate activity may be upheld only where the activity being regulated
is economic in nature.
 the court will uphold the regulation if it’s economic or commercial activity and the court can conceive a
rational basis on which Congress could conclude that the activity in the aggregate substantially affects
interstate commerce
 Holding: Gender-motivated crimes of violence are not economic activity
 The Court rejected the argument that Congress may regulate non-economic, violent criminal conduct based
solely on that conduct’s aggregate effect on interstate commerce.
1. The primary issue here is that the fed gov’t is seeking to regulate areas traditionally regulated exclusively
by the States. The majority concludes that the regulation and punishment of intrastate violence is not
directed to the instrumentalities of interstate commerce which is the exclusive jurisdiction of local gov’t.
2. The Court rejected the argument that Congress may regulate non-economic, violent criminal conduct
based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a
distinction between what is truly national and what is truly local.
3. Dissent: argues that congress has amassed substantial findings to demonstrate that such intrastate
violence does have an effect on the instrumentalities of commerce [over $3 billion in aggregate effect
would build up].
Solid Waste Agency v. US Army Corps: Looking at “Substantially Affects” element
 Issue: whether the Clean Water Act, which applies to “navigable waters,” could be applied to intrastate water
because of the presence of migratory birds.
 Holding: No because they interpret the statue as written to avoid constitutional doubts. Court would get
involved if such statute construction is plainly contrary to the intent of Congress.
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
The CWA, which requires those discharging fill materials into navigable waters to obtain a permit from the
Corps, does not extend to isolated, abandoned sand and gravel pits with seasonal ponds, which provide
migratory bird habitats. "[T]he term 'navigable' has the import[ance] of showing us what Congress had in
mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made." Congress intended this result.
Gonzalez v. Raich: CA has a law allowing the growing of marijuana for medical purposes, but the Controlled
Substances Act prohibits the local cultivation of marijuana in order to combat the interstate traffic in illegal drugs.
Does Congress have the power to trump CA law? If the regulated intrastate activity is noncommercial and
noneconomic, it cannot be regulated under the Commerce Clause unless Congress can factually show a
substantial economic affect on interstate commerce.
 Big Question: Can Congress come and regulate what CA has already regulated [intrastate activity]? Yes, before
you can trump a state law, you have to prove Congress’s law/regulation is valid within its Commerce power
 Holding: Congress had a rational basis, when viewed in the aggregate, for believing that failure to regulate the
intrastate manufacture and possession of marijuana would leave a gaping hole in the Controlled Substance
Act. The local supply of marijuana has a substantial effect on the supply and demand in the national
market. The activities being regulated are economic in nature for—production, distribution and consumption.
 The aggregation would have substantial effect: a single person with two plants—no, but the aggregation of all
the sick people and their plants—yes.
 Congress may regulate non-economic intrastate activities only where the failure to do so could undercut its
regulation of interstate commerce.
 Here, Congress is not exercising police power within the State; it’s regulating the substantial affect[s] on
economic activity that could result if that “activity” was not regulated.
D. The Taxing and Spending Power.
 Art. I § 8 cl. I: Congress 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 US; but all duties, imposts and excises shall be uniform
throughout the US.
 This is very broad
 can regulate things by giving tax incentives
 Congress can regulate States, but they cannot commandeer the States which would undermine State sovereignty
as well as compelling them to implement legislation on behalf of Congress
 Uniformity: is a requirement in the levy of indirect taxes
 Direct Taxes: Must be apportioned among States
 Export Taxes not Permitted
 Taxes are Generally Valid: absent a specific restriction such as those about, be very hesitant to rule against a tax
measure on the exam. A tax measure will be upheld if it bears some reasonable relationship to revenue
production or if Congress has the power to regulate the taxed activity
 Spending:
 Art I § 8: Congress may spend to “provide for the common defense and the general welfare”
 This spending may be for or too further any public purpose
 For What purposes May Congress Tax and Spend?
 United States v. Butler: The Agricultural Adjustment Act states that there is a national economic emergency arising
from the low price of agricultural products. To remedy this, a tax will be collected from processors of a product and
the revenue raised will be paid to farmers who curtail the production of that product.
 Tax invalid. Tax is an exaction for the support of the gov’t; not an expropriation of money from one group for
the benefit of another. It invades the rights of the states and goes beyond the federal gov’t power.
 Production regulation now overturned; substantially affecting States through Congress’s commerce clause
power.
 The gov’t has to tax and spend for the general welfare but not to regulate State’s police power
 The general welfare is left for the States to police. This tax would disrupt the separation of powers
 Chas Steward v. Davis: The SS Act on employers of eight or more is a federal taxing power. While employment is
an alienable right and not a privilege; Congress is allowed to tax rights of less importance as well as natural rights.
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Affirmed Congress’s expansive authority under the taxing and spending clauses—employment for lawful gain is
a natural or inherent right and not a privilege which is subject to taxation
 Sabri v. US: 18 USC §666(a)(2) imposes a fed crime when a person bribes a gov’t official and the official receives an
excess of $10K under a federal program. D argues that the law cannot be applied constitutionally because statute
has no expressed element to require proof of any connection btw a bribe or kickback and some federal money.
 Re-affirms a broad scope for Congress’s authority under the Spending clause. Congress has authority under the
Spending clause as well as the Necessary and Proper clause to appropriate federal money to promote general
welfare if there is a rational/reasonable nexus between the fed funds and furthering the general welfare.
Conditions on Grants to State Governments
1. appropriation [grant] must serve a general welfare purpose
2. conditions on states in law must be unambiguous
3. conditions on spending must relate to a federal interest
4. conditions must not violate any other constitutional provision
 South Dakota v. Dole: SD allows individuals 19 years and over to purchase beer with up to 3.2% alcohol. SD sued
gov’t because 23 USC § 158 allowed the Sec of Transportation to withhold a percentage of fed highway funds
otherwise allocable from the States through the drinking law. As a consequence, the Dept of Transportation will
withhold approximately 5% of the federal highway funds earmarked for the State.
 Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to
“further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient
with federal statutory and administrative directives.
 the provision serves the general welfare because it is directly related to one of the main purposes for which
highway funds are expended: for safe interstate travel
 States were not being commandeered because they were only going to lose 5% of funding
 Limitations of Spending Power
1. Must be in pursuit of the general welfare
2. If Congress desires to condition the States’ receipt of federal funds; it must do so unambiguously, enabling
the States to exercise their choice knowingly cognizant of the consequences of their participation.
3. Be related to a federal interest
4. [Must not violate any other constitutional provision]
 How do the courts decide whether the act promotes the general welfare?
 It defers to Congress, and they have a low threshold to show a rational basis.
E. Congress’s Powers Under The Post-Civil War Amendments
 13th Amendment: prohibits slavery and involuntary servitude, except as a punishment for a crime whereof the party
shall have been duly convicted.
 §2 states: “Congress shall have power to enforce this article by appropriate legislation (does not have the "no
state" restriction like 14th and 15th Amendments)
 SC said Congress can use 13th Amend to regulate private transactions like refusing to sell property to another
based on race discrimination.
 14th Amendment: all persons born or naturalized in the US are citizens and no state can abridge the privileges or
immunities of citizens; nor may any State deprive any person of life, liberty, or property without due process of law or
deny any person of equal protection of laws.
 §5 states: “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
 SC held that Congress cannot enforce private behavior; but states cannot pass law that applies to one group of
people and not another
 States can’t take life, liberty, or property without due process of law
 States can’t deny person equal protection of laws
 States cannot violate most of the rights in the Bill of Rights
 15th Amendment: the right of citizens of the US to vote shall not be denied or abridged by the US or by any State on
account of race, color, or previous condition of servitude.
 §2 provides that Congress has the power to enforce it by appropriate legislation
 SC held that Congress cannot enforce private behavior
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The Const. does not protect what individuals do towards each other. The 13th Amendment is the only one that
protects against individual behavior. Congress’s power to control directly is through the Commerce Clause and the
Taxing and Spending Clause.
United States v. Morrison:
 Is §13981 of the Violence Against Women Act constitutional as to allow congress to act under its Commerce Clause
power?
 The government argued in the alternative that Congress' power under §5 of the 14th Amendment made the law
constitutional. [trying to use laws against gender, like the laws against race—it’s not the same]
 SC said the 14th Amend by its terms prohibits state actions; the Amendment erects no shield against merely
private conduct, however discriminatory or wrongful.
 §13981 is not aimed at public officials or state actors, but at individuals who commit crimes motivated by gender
bias [trying to criminalize private behavior, through a federal statute, when they can’t].
 Congress' efforts in §13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause
nor under §5 of the 14th Amend. The remedy must be provided by the State [of VA]
 Cause of action should have been brought to the State not the US.
 Breyer Dissent: Congress used §5 to provide a remedy where states do not provide adequate remedy for
discriminated women; the Commerce Clause provides Congress with a basis to pass the law.
Scope of Congress’s §5 of the 14th Amendment Power [2 different views/approaches]
1. Congress can only enforce, redeem, prevent the violation of existing constitutional rights [NARROW VIEW]
 Congress cannot expand the scope of rights or provide additional rights
2. Congress can expand rights (but not dilute) and define meaning of Constitutional rights [BROAD VIEW]
 Congress may create/expand rights by statute where the Court has not found them in the Const, but Congress
cannot dilute or diminish constitutional rights
Katzenbach v. Morgan & Morgan: BROAD VIEW
 Overview: A law that ensured Puerto Ricans the right to vote upon successful completion of the sixth grade was
upheld as a valid exercise of Congress’s power through §5 of the 14th Amendment.
 Facts. §4(e) of the Voting Rights Act of 1965 (the Act) ensures the right to vote to all Puerto Ricans who
successfully complete the sixth grade. The Appellees, Morgan and other registered voters in NY brought this suit to
challenge the constitutionality of §4(e) alleging it prohibits the enforcement of the election laws of NY that
required voters to possess an ability to read and write in English.
 Rule: Congress may create/expand rights by statute where the Court has not found them in the Const, but
Congress cannot dilute or diminish constitutional rights
 Issue. Whether such legislation is, as required by §5 of the 14th Amend, appropriate to enforce equal protection?
Whether the congressional remedies adopted in §4(e) of the Act constitute means which are not prohibited by,
but which are consistent with the constitution?
 Held. Yes. There can be no doubt that §4(e) of the Act may be regarded as an enactment to enforce equal
protection. §4(e) may be viewed as a measure to secure for the Puerto Rican community residing in NY,
nondiscriminatory treatment by the government, both in the imposition of voting qualifications and the
administration of governmental services. §4(e) of the Act can be readily seen as “plainly adapted” to furthering
these claims of equal protection.
 § 4(e) does not restrict or deny the franchise (a privilege of a public nature conferred upon an individual), but
in effect extends the franchise to persons who would be denied it by state law. The limitation on relief effected
in §4(e) does not constitute a forbidden discrimination since these factors may have been the basis for the
decision of Congress to go “no farther than it did.”
 Harlan Dissent. §4(e) of the Act cannot be sustained except at the sacrifice of the fundamentals in the American
constitutional system: the separation of powers—worried that giving Congress authority to extend rights would
give them license to erode rights.
City of Boerne v. Flores: NARROW VIEW
 Overview: Congress’ enactment of the Religious Freedom Restoration Act (RFRA) of 1993 was held by the SC to be
an excessive use of power under §5 of the 14th Amend and therefore unconstitutional.
 Facts. A decision by local zoning authorities to deny a church a building permit was challenged under RFRA. The
Act’s stated purposes are: “(1) to restore the compelling interest test and to guarantee its application in all cases
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where the free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons
whose religious exercise is substantially burdened by government.”
Rule: When determining the scope that Congress can only enforce, redeem, prevent the violation of existing
constitutional rights; While preventive rules are sometimes appropriate remedial measures, there must be a
congruence (agreement) and proportionality between the (1) means used and (2) the ends sought to be achieved.
 No clear evidence of what congruent and proportional mean
Issue: Whether RFRA is a proper exercise of Congress’ §5 power to “enforce” by “appropriate legislation” the
constitutional guarantee that no state shall deprive any person of “life, liberty, or property without the due
process of law” nor deny any person “equal protection of the laws?”
Held: The Act forbids the government from “substantially burdening” a person’s exercise of religion unless the
government can demonstrate that the burden “[1] is in furtherance of a compelling state interest; and [2] is the
least restrictive means of furthering that state interest [RBT not strict scrutiny test].”
 Specifically, this case calls into question the authority of Congress to enact the RFRA. Congress’ power under
§5 extends only to “enforcing” the provisions of the 14th Amend, not enforce the 1st Amend.
 Further, RFRA cannot be considered remedial, preventive legislation. Rather, it appears to attempt a
substantive change in constitutional protections.
 Remedial legislation under §5 should be adapted to the wrong which the 14th Amendment was intended to
protect against. RFRA is not so confined.
 The stringent test RFRA demands of state laws reflects a lack of proportionality between the means adopted
and the legitimate end to be achieved.
 Therefore, RFRA is not a proper exercise of Congress’ §5 power to “enforce” by “appropriate legislation” the
constitutional guarantee that no state shall deprive any person of “life, liberty, or property without the due
process of law” nor deny any person “equal protection of the laws.”
This case signals that the Court is unlikely to be too deferential to Congress under enforcement sections of the
13th, 14th, and 15th Amends. Especially if it looks like Congress is making power decisions that are granted to
another branch of gov’t by the Const [ie: changing the law without checks and balances from other gov’t branches]
F. Congress’s Powers To Authorize Suits Against State Governments
 Background on the 11th Amendment and State Sovereign Immunity
 11th Amendment: "The Judicial power of the US shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the US by Citizens of another State, or by Citizens or Subjects of any
foreign state."
 Prohibits suits between state and citizens of another state
 Prohibits diversity or federal question action between state and citizen of the same state
 Three ways around the 11th amendment to hold state governments accountable in federal court
1. State officers may be sued in federal court, even when state governments cannot be sued
 State officers may be sued for injunctive relief or damages to be paid by them but state officers cannot be
sued where it is the state treasury that will be paying damages for compensation
2. State may waive their 11th Amend immunity and may consent to be sued in fed court [waiver must be explicit]
3. SC HAS HELD CONGRESS, ACTING PURSUANT TO §5 OF THE 14TH AMENDMENT MAY AUTHORIZE SUITS
AGAINST STATE GOV’TS
 Congress’s Power to Authorize Suits Against State Governments
 Rule: Congress may authorize suits against states pursuant only to §5 of the 14th Amendment because it tempers
11th Amend powers in some situations.
 Fitzpatrick v. Bitzer
 In 1972, Congress amended Title VII of the Civil Rights Act of 1964 (the Act), authorizing private suits against
states for monetary damages. In doing so, Congress cited its authority under §5 of the 14th Amend.
 Issue: Can Congress abridge state sovereign immunity by exercising its authority under §5 of the 14th Amend?
 Yes. SC notes that §5 of the 14th Amendment allows Congress to exercise authority that infringes on areas
otherwise relegated to other entities under the Constitution. Because of §5 grant of this authority, the SC
allows Congress to abrogate state sovereign immunity under the section, as well.
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Congress may determine what’s “appropriate legislation” for the purpose of enforcing the provisions of the
14th Amendment, and provide for private suits against states or state official[s] which are constitutionally
impermissible in other contexts.
 Penn v Union Gas
 Congress may override the 11th Amendment and authorize suits against state gov’ts pursuant to any of its
constitutional powers, as long as the law in its text expressly authorizes those suits.
 Seminole Tribe of Florida v. Florida
 Congress passed the Indian Gaming Act in 1988 in order to provide a statutory basis for the operation and
regulation of gaming by Indian tribes
 The Act, passed by Congress under the Indian Commerce Clause—US Const., Art 1, §8, cl. 3—Imposes upon the
States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact and
authorizes a tribe to bring suit in fed court against a State in order to compel performance of that duty
 Held: notwithstanding Congress’s clear intent to abrogate the States’ sovereign immunity, the Indian
Commerce Clause does not grant Congress that power, and therefore §2710(d)(7) cannot grant jurisdiction
over a State that does not consent to be sued
 Overruled Union Gas because it expanded beyond Marbury v. Madison
 Says you can’t expand limits of federal question jurisdiction based on the 11th Amendment
 Congress has no authority to subject a state to the jurisdiction of Federal Court for the benefit of the
individual asserting a federal right.
 Dissent.
 J Stevens believes the 11th Amendment only prohibits suits against a state by citizens of another state.
 J Souter argues that the majority gives the states sovereign immunity that they did not enjoy, even prior to
the ratification of the constitution.
 RATIONAL BASIS: is a test used in some contexts to determine a law's constitutionality.
 To pass RBT review, the challenged law must be rationally related to a legitimate governmental interest.
 RBT review is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are
considered more stringent.
 RBT is generally used in cases where NO fundamental rights or suspect classifications are at issue, like: Age
Discrimination and Disability Claims
 STRICT SCRUTINY: is a form of judicial review that courts use to determine the constitutionality of certain laws.
 To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental
interest, and must have narrowly tailored the law to achieve that interest.”
 For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right
with the law's enactment or have passed a law that involves a suspect classification.
 Suspect classifications include: race, national origin, religion, alienage, and poverty.
 INTERMEDIATE SCRUTINY: is a test used in some contexts to determine a law's constitutionality.
 To pass intermediate scrutiny, the challenged law [1] must serve important governmental interest and [2] the
discriminatory means employed must be substantially related to the further achievement of those interests.
 As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than RBT
review. Intermediate scrutiny is used in equal protection challenges and gender discrimination cases, as well
as in some First Amendment cases. States do not have as much freedom as they do under the RBT.
Cases Denying Congress Authority to Act Under §5 to Authorize Suits Against State Gov’ts
 Ask when analyzing whether Congress has acted properly in the abrogation of state sovereign immunity?
1. Is Congress enforcing, redeeming, or preventing constitutional violations under the 14th Amendment?
2. Was Congress absolutely clear of intent to abrogate? [Congress must be absolutely clear of intent to
abrogate—Clear Statement Rule]
3. Is Congress’s response to the alleged Constitutional violation proportional and congruent?
a. What is the alleged harm?
 What type of evidence [is there] to support [a] claim[s] of state based violations?
b. How would such a harm be evaluated by the courts?
 What standard of review should be used? RBT, Strict Scrutiny, or Intermediate Scrutiny Test?
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c. How good of a "fit" is congress’s response to the harm via its legislation? (i.e., is the legislation
proportional and congruent to the alleged constitutional problem?)
Florida Prepaid Postsecondary Education v. College Savings:
 Facts. College Savings Bank sued a Florida state agency for infringing its finance methodology, for which it had
obtained patent protection under the Patent Remedy Act. Florida Prepaid alleges that it is protected from suit
by state sovereign immunity. Florida Prepaid argues that Congress cannot abrogate its state sovereign
immunity in the Patent Remedy Act, even acting through §5 of the 14th Amendment.
 Rule: Congress may not abrogate state sovereign immunity in patent infringement cases under §5 of the 14th
Amend.
 Issue. May Congress abrogate state sovereign immunity in the Patent Remedy Act through §5 of the 14th
Amend of the Const? Did Congress express intent to abrogate State immunity and did Congress "act pursuant
to a valid exercise of power."
 Held. No. Ruling reversed and remanded. Although Congress clearly meant to abrogate sovereign immunity by
enacting the Patent Remedy Act under its 14th Amend power to enforce, the SC finds the legislation
inappropriate under Boerne. Congress may not abrogate state’s immunity under its Art I powers nor the
Commerce and Patent Clause. It is the unremedied patent infringement by the State that must give rise to
the 14th Amend violation (has to show that there are no sufficient remedies for patent rights).
 Here, Congress identified no pattern of patent infringement by the states, let alone a pattern of
constitutional violations.
 Specifically, SC finds that the legislation is neither preventative nor remedial and as such is not
congruent or proportional as required by Boerne.
 SC notes that only eight patent infringement suits were brought against the states over the past century
[which is not enough violations]. SC also notes that College Savings Bank may still have state law remedies
available.
 Here we have a 14th Amend Procedural Due Process issue—Gov’t taking away property [patent] without
fair due process
 Dissent. J Stevens notes that the Constitution gives Congress the power to regulate patents, making state law
remedies inappropriate. He also notes that the SC had never before required Congress to find a pattern of
deprivation of a specific right before it passes an act.
Kimel v. Florida Board of Regents:
 Facts: Petitioners, including Kimel, brought suit against the Respondents, the Florida Board of Regents, a state
employer under the Age Discrimination in Employment Act of 1967 (ADEA). Respondents argued that the ADEA
does not effectively abrogate their sovereign immunity. Petitioners alleged they were fired by their state
employers because of their age.
 Rule: Legislation must be congruent and proportional to a legitimate end to abrogate sovereign immunity
under §5 of the 14th Amend.
 Issue: Does the ADEA effectively abrogate state sovereign immunity?
 Held: No. SC holds that the ADEA punishes very few behaviors that are unconstitutional and it is not congruent
or proportional to its purported ends.
 J O’Connor describes a 2 part test to determine whether an act of Congress abrogates 11th Amend immunity:
1. Whether Congress unequivocally expressed its intent to authorize suits against the states, AND
2. Whether it acted pursuant to a valid grant of constitutional authority.
 The ADEA clearly authorizes suits against state and local governments. However, Congress may only do so
under §5 of the 14th Amendment. Congress does not have the power to determine the substance of the
rights guaranteed by the 14th Amendment (that authority is left to the federal courts), and age discrimination
is not a suspect classification, like race and gender. As such, the language of the ADEA is neither proportional
nor congruent to its purported ends because the legislative history does not support a finding of violations to
an extent that permits Congress to act—i.e. the remedy is larger than harm.
 Evidence is looking at public v. private industry age discrimination, here Congress is concerned with public
[state]
 USE RATIONAL BASIS TEST WHEN REVIEWING AGE DISCRIMINATION
 Dissent: J Stevens argued once more that the boundaries of federalism are best left to the political branches.
Board of Trustees, University of Alabama v. Garrett:
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Facts: State Employees brought separate actions under the Americans with Disabilities Act (ADA) against
trustees for U. of Ala and Ala Dept of Youth Services. Garrett was the Director of Nursing for U. of Ala and was
diagnosed with breast cancer; and because of her treatment, lost time at work. Her supervisor informed her
that she would have to step down. She then became a nurse manager. Ash worked as a security officer with
Ala Youth Service Dept. Initially he informed his employer that he suffered from asthma and that his Dr. stated
he should avoid carbon monoxide and cigarette smoke. He was later diagnosed with sleep apnea and
requested dayshift assignments. D’s separately moved for summary judgment. US DC, granted both motions
on the ground of state sovereign immunity. Employees appealed, Ct App reversed.
 P’s Argument: Unconstitutional discrimination extends to the local units of gov’t, cities and towns, because
they are state actors.
 D’s Argument: P’s are barred by the 11th and 14th Amends from recovery of money damages against the
states for failing to adhere the practices of the ADA; it’s not a valid exercise of Congress 14th Amend §5 power.
 Issue(s): Whether employees of the State of Alabama may recover money damages by reason of the State’s
failure to comply with the ADA requirements?
 Rule: In order to authorize private individual’s recovery of money damages against a state, there must be a
pattern of discrimination by the State which violates the 14th Amend AND the remedy must be congruent and
proportional btw the injury to be prevented or remedied [the targeted violation] and the means adopted to
that end.
 Holding: No. Reversed. The Act’s application to the States would allow Congress to rewrite the 14th Amend
law laid down by Cleburne.
 The first step is to identify the Constitutional right at issue. Here, it’s the limitations of the equal
protection of the 14th Amend placed upon the States’ treatment of the disabled. Previous decisions
concluded that under a RBT review, where a group possesses distinguishing characteristics relevant to
interests the State has the authority to implement, a State’s decision to act on the basis of those
differences does not give rise to a constitutional violation.
 Special accommodations requirements for the disabled come from positive law and do not come from the
14th Amends equal protection clause. Moreover, it puts a heavy burden on the employer to fill the need
for that position.
 Second, [analyze] the history and pattern of the practice involved by the State’s against the disabled.
Here, the legislative record only has minimal evidence to support a pattern by the states or local govt.
Historically, society has isolated and segregated the disabled, but that is a social problem.
 USE RATIONAL BASIS TEST WHEN DEALING WITH DISABILITY CLAIMS.
 MINORITY: the record is saturated with evidentiary accounts, made to Congress prior to passage of the Act, of
individual and adverse treatment of persons with disabilities. The record indicates that state gov’ts subjected
those with disabilities to seriously adverse disparate treatment. There’s nothing wrong with a remedy that in
response to an unreasonable employer’s behavior; requires the employer to make reasonable
accommodations
 Cleburne: “States are not required by 14th Amend to make special accommodations for the disabled, so long
as their actions toward such individuals are rational.”
Congress’s Greater Authority to Legislate Concerning Types of Discrimination and Rights That Receive Heightened
Scrutiny
 Nevada Dept of Human Resources v. Hibbs:
 Facts: Hibbs is seeking damages as well as injunctive and declaratory relief under the FMLA of 93’, claiming his
employer’s wrongfully terminated him while he was caring for his ailing wife and denied him his rights under
the family-leave provision. FMLA of 93’ gives eligible employees 12 weeks of unpaid leave annually for any
number of reasons including the onset of a serious health condition of a family member or spouse. In April &
May of ’97, Hibbs sought leave under the FMLA to care for his ailing wife, recovering from a car accident and
neck surgery; he was granted his 12 week leave, which allowed for intermittent use, but he exhausted his
leave and was terminated for not returning to work by Nov 97’.
 Issue[s]: Whether Congress acted within its constitutional authority when it sought to abrogate the State’s
sovereign immunity for purposes of the FMLA’s family-leave provision.
 Rational: FMLA seeks to eliminate gender-based discrimination in the workplace; statutory classifications that
distinguish between sexes is subject to an INTERMEDIATE SCRUTINY review and [1] must serve important
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governmental interest and [2] the discriminatory means employed must be substantially related to the
further achievement of those interests. The persistence of the States unconstitutional discrimination justifies
Congress’ passing of the prophylactic [safeguard] legislation.
 There is a disparity of private sector employees who receive maternity as opposed to paternity leave, with
the latter being given only half as much.
 Congress had evidence of state laws and policies that were being applied in a discriminatory way; it was
aware of the problems that arise when discretion for granting leave is given entirely to one supervisor:
unequal treatment is inevitable.
 Congress’s chosen remedy, the family-care leave provision of the ACT, is “congruent and proportional to
the target violation.”
 “By creating an across the board, routine employment benefit for all eligible employees, Congress
ensured that family care leave would no longer be stigmatized as an inordinate drain on the workplace
caused by female employees, and that employers could not evade leave obligations by hiring men”
 “By setting a minimum standard of family leave for all eligible employees, regardless of gender, the Act
attacks formerly state-sanctioned stereotypes that only women are responsible for family care-giving,
thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion
decisions on stereotypes ”
 USE INTERMEDIATE SCRUTINY TEST WHEN ANALYZING GENDER DISCRIMINATION.
Holding: Employees of the State of Nevada may recover money damages in the event of the State’s failure to
comply with the family-care provision of the Act.
Dissent:
 Scalia: Not all states are guilty and treating them as a collective unit in terms of a violation is wrong.
 Kennedy: Court is unable to show the states engaged in a pattern of unlawful conduct that warrants the
remedy of opening the states to suit. The Acts findings of purpose are lacking of any discussion of the
relevant evidence.
Tennessee v. Lane
 Facts: Mr. Lane and Ms. Jones are both paraplegics who are seeking damages and equitable relief pursuant
to Title II of the ADA because they had been denied access to the courts because of their disabilities. Lane
had to crawl up to the second floor to appear on criminal charges and refused to return for a hearing to be
carried in or to have to crawl again. He was jailed for failure to appear. Ms. Jones is a court reporter who
has been unable to get into some courthouses and has lost out on work opportunities because of it.
 Issue: Whether Title II exceeds Congress’ power under §5 of the 14th Amendment.
 Holding: Yes, it does exceed Congress’ power.
 Rationale: In Garrett the Court observed that classifications based on disability violate the constitution if
they lack a rational relationship that is proportional and congruent to a legitimate governmental
purpose. 76% percent of public services and programs housed in state-owned buildings were inaccessible
to people with disabilities; these people testified before Congress to describe the reality of the situation in
detail. Congressional findings make it clear that unequal access to public facilities was an appropriate
subject for prophylactic legislation. Congress required States to take reasonable measures that do not
fundamentally alter the nature of the service provided, or compromise eligibility criteria for access to
programs.
 Here, the RBT isn't appropriate because this case involves the state’s denial of a citizens fundamental
right so it imposes a higher standard of review. As long as the state does what is reasonable, it's
okay—they were only asked to make reasonable accommodations, thus proportional and congruent.
United States v. Georgia:
 Facts: Pet, disabled inmate Tony Goodman, is suing Resp, the state of GA and its dept of corrections,
alleging his confinement conditions violated Title II of the Americans with Disability Act of 1990 (ADA).
Allegations of his treatment by prison officials amount to suffering cruel and unusual punishment.
 Issue: Whether a disabled inmate in a state prison may sue the State for money damages under Title II of
the ADA.
 Holding: A prisoner who alleged unconstitutional state behavior could sue the state because Congress
under §5 of the 14th Amend can provide a remedy for unconstitutional state conduct.
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Rationale: §5 of the 14th Amend authorize[s] Congress to create private remedies against the States for
actual violations of enforceable provisions. Title II validly abrogates state immunity, but Goodman’s claim
must first be amended. Once that is done the lower courts can determine which conduct violated Title II;
to what extent; and whether Congress’ abrogation of state immunity is valid.
Chapter 3 – The Federal Executive Power
A. Inherent Presidential Power
 Art. II §1: “the executive Power shall be vested in a President of the United States” . . . [Art. 1 §3] “he shall take Care
that the Laws be faithfully executed” . . . and [Art. 1 §2] that he shall be Commander in Chief of the Army and the Navy
of the US.
 Youngstown Sheet v. Sawyer:
 The indispensability of steel for war effort led Pres Truman to believe that work stoppage would jeopardize
national defense in the Korean War. Consequently, Truman directed the Secretary of Commerce, by presidential
order, to take possession of and operate steel mills [seizure of private industry]. The next day, he sent a message
to Congress notifying of his action. Even after a second message 12 days later, congress was still silent and took
no action. The Court found that the seizure was not supported under Commander in Chief power because no
statute expressly authorized the President to take such action. Also, Congress had previously refused to adopt
this type of measure of settling labor disputes because it would interfere with collective bargaining.
 Court could not faithfully hold the Commander in Chief power to take possession of private property in order to
keep labor disputes from stopping production because the steel factories are not a “threat of war.”
 This is a job for the Nations lawmakers [Congress], not for its military authorities [President].
 Rule: The President can act in absence of constitutional or statutory authority unless Congress disapproves of such
action
 Justice Jackson’s [concurrence] Three Levels of Executive Authority [How to examine presidential behavior]:
1. When President acts pursuant to the constitution to express or implied authorization of Congress, authority is
greatest [President’s power is at its highest if Congress’s authorization is constitutional]
2. When President acts in absence of either congressional grant or denial of authority [When Congress is silent]
he must rely on his own independent power . . . however, we may be in a twilight zone in which he and
Congress may have concurrent authority so we must look at congressional authority [need to assess whether
president is usurping powers of other branches].
3. When the President takes measures incompatible with the expressed or implied will of Congress [If Congress
prohibits it], then President’s power is at its lowest ebb. [& his actions are probably deemed unconstitutional]
 This situation is number 3. If it was in the middle category, then sometimes silence could mean
acceptance. But congress enacted the Taft-Harley Act a few years before, prohibiting the seizure of
property during emergencies.
 Because the Constitution expressly gives Congress the primary responsibility for supplying armed forces,
Congress alone controls the raising of revenues and how it’s appropriated; and may determine in what
manner and by what means it shall be spent for military and naval procurement.
 Douglas’s Concurrence: Efficiency does not mean constitutionality. There is no doubt that the labor/strike
emergency of steel mills bore heavily on the country and caused the President to act. However, that emergency
did not create power; it merely marked an occasion when power should be exercised. Although the Pres can act
more quickly, it did not give him constitutional authority to act because that’s Congress’s job. We have the
separation of power to abide by.
 Dissent: President was acting within his powers. This was only a temporary taking because of the impending
immediacy of the strike to shut down steel production during war time efforts. President not only acted, he also
immediately informed Congress of his actions [to which Congress was silent two separate times] and was willing
to do whatever Congress wanted to do. Congress needs to respond and actually voice its disapproval of such
Presidential actions. This was not an arbitrary act to demolish the idea of the separation of powers because to
further the health/safety of the Nation, the Pres acted in conformity with his duties under the Constitution.
 The Scope of Inherent Power: The Issue of Executive Privilege
 Exec privilege refers to the ability of the Pres to keep secret conversations with or memoranda to or from advisors.
 Not constitutional but inherent privilege necessary to protect the confidentiality of presidential communication
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Documents and conversations are presumptively privileged
 In criminal proceedings, presidential communications will be available to the prosecution, where a need for
such information is demonstrated (Nixon case)
 National secrets: military, diplomatic, or sensitive national security secrets are given great respect by court
 In civil trial the scope of privilege is broader
US v. Nixon:
 Should a subpoena be quashed because it demands confidential conversations between the Pres and his close
advisors in that it would be inconsistent with the public interest to produce?
 The doctrine of separation of powers or the need for confidentiality of high level communications can alone
sustain an absolute, unqualified presidential privilege of immunity from judicial process
 Here, however, President claims that the Executive branch acts independently from other branches of gov’t
 In designing the structure of our Gov’t and dividing and allocating the sovereign power among 3 co-equal
branches, the framers of the Constitution sought to provide a comprehensive system, but the separate
powers were not intended to operate with absolute independence.
 The President’s general privilege of confidentiality did not extend from an absolute privilege from the judicial
process, especially when he acts outside the scope of the inherent duties of office.
 Nowhere in the constitution is there an explicit reference to such a privilege of confidentiality. However,
the extent of confidentiality relates to the effective discharge of a Pres powers: it’s constitutionally based.
 Here that privilege clashed with the specific 6th Amend constitutional right of a D in a criminal trial to
be confronted with the witnesses against him and to have compulsory process for obtaining witnesses
in his favor and was overcome by those rights.
 judicial branch has the power to determine scope of privilege and when it can be invoked
Cheney v. US DCt for Dist of Columbia:
 Court distinguished this case from US v. Nixon by saying that civil litigation does not have the same sense of
exigency that criminal cases have.
 Holding: instead of requiring Cheney to assert executive privilege, the lower courts should have asked
whether permitting discovery constituted an unwarranted impairment of another branch in performance of its
constitutional duties.
B. The Authority of Congress to Increase Executive Power
 Clinton v. City of NY:
 The Line Item Veto Act of 1996 allowed the Pres to veto particular provisions of Bills that had been signed into law
while allowing the rest to go into effect. Clinton canceled a provision of the Balanced Budget Act of 1997 which
forced NY to pay back certain funds and removed a tax benefit to food processors acquired by cooperative farmers
 In order to veto a portion of a Bill, the president must determine that the cancellation will:
(i) Reduce the Fed budget deficit
(ii) not impair any essential Gov’t functions; and
(iii) not harm the national interest
 Line-Item Veto Act is not constitutional.
 Must send a special message to Congress notifying it within 5 days after law has passed
 A cancellation takes effect upon receipt by Congress of the special message from the President
 Congress can pass a “disapproval bill” by a majority
 A majority vote of both Houses can make the cancellation null and void
 Although the Const expressly authorizes the Pres to veto bills under Art I, §7, it is silent on unilateral presidential
actions that repeal or amend parts of duly enacted statutes as authorized under the Line Item Veto Act.
 For the Line Item Veto Act, Congress consented for the President to have Legislative Power. This is
unconstitutional because the Constitution labels out what the President can do for laws. If Congress wanted this
action, then there would be a need for an amendment in the Constitution.
 President can only approve or reject an entire Bill; he cannot cancel part and approve other parts
 President’s veto power does not authorize him to amend or repeal laws passed by Congress
 How a bill is passed under the constitution
 Art. I, § 7, cl. 2:
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Bill having passed both H of R and Senate
Must be “presented” to President
President can sign/approve, return/object (veto)
Congress can override approval/veto by 2/3 majority vote
C. The Constitutional Problems of the Administrative State
 1887: Creation of the Interstate Commerce Commission created a new fed administrative agency with broad power.
 These agencies exercise all of the powers of gov’t: legislative, executive, and judicial.
 Admin agencies generally have legislative power; they possess the authority to make rules that have the force of law.
 Admin agencies have executive power; they are responsible for bringing enforcement actions against those who
violate the relevant fed laws and regulations.
 Admin agencies frequently have judicial power in that they employ administrative law judges who hear cases brought
by agency officials against those accused of violating the agency’s regulations
 Agencies with this combination of power is a problem [Madison called it tyranny]
 Ways to check administrative agencies:
 By statute
 By controlling the budgets of the agency
 Appointment and removal powers
 The Non-delegation Doctrine and Its Demise
 Art 1 §1: All legislative Power herein granted shall be vested in a Congress of the US, which shall consist of a Senate
and H of Rep’s.
 At the time of enacting the Constitution, the framers did not predict us having administrative agencies, such as
FDA, EPA, FTC, SEC, etc. We have them now because of their expertise in the field.
 What extent can Congress Extend Power to Agencies?
 Non-Delegation Doctrine: when congress confers decision making authority upon agencies congress must lay
down by legislative act an intelligible principle to which the person or body authorized to act is directed to
perform [forces Congress to make the policy choices, rather than leaving this to unelected administrative officials]
 Schechter Poultry Corp v. US: §3 of The Industrial Recovery Act vests the Pres power to approve or prescribe to
regulate petroleum products.
 Unconstitutional delegation of legislative power. The Act authorized Pres power that Congress gave him to
approve codes and standards of fair competition. Congress tried to delegate its legislative power to the Pres.
Making code sets out regulations, so there were no intelligible standards here. These codes were policies
which is something that congress should legislate
 Panama Refining v. Ryan: Congress authorized the Pres to prohibit transportation of petroleum that exceeded the
amount permitted by a state. Again, Court found this delegation unconstitutional. Congress did not provide
conditions or guidelines for the Pres to determine which transportation of petroleum should be prohibited.
 Schechter & Panama: President is lacking parameters/guidelines/restrictions by Congress of taking over
Congress’s role.
 Although the Courts say that when Congress delegates it legislative power it must provide criteria to guide the
agency’s exercise of discretion, some delegations, even without criteria, have been upheld.
 Whitman v. American Trucking Assoc: The Clean Air Act delegates legislative power given by Congress to the
Administrator of the EPA to control the Air Quality. Because the act charged the EPA with the task of determining
air quality standards needed to protect the public’s health from air pollutants, the Court found that the act
provided sufficient guidelines. The EPA was guided by the criteria that the standards be sufficient for public
health. Congress feels that the EPA has “clear intelligible principles” that help the public interest.
 In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to
the agency
 When Congress confers decision-making authority upon agencies, congress must “lay down by legislative
act an intelligible principle to which the person or body authorized to act is direct to conform.”
 Here, you have a wide area; Congress can only delegate an intelligible principle, which is lacking in the
previous two cases. This is also an agency case where the past two were Presidential.
 The Legislation Veto and its Demise
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INS v. Chadha: D overstayed on his visa, but the judge said he met the requirement to pass it, so he can stay. But
there is a statute that gives the H of Reps the sole power to veto.
 Held: Reversed, you cannot allow a one-house veto that is not severable from the Act. Both Senate and the H of
Reps have to make the law.
 This case deals with the conflicts of:
 Congress and the Executive, and
 Congress and the Judiciary
 To be constitutionally valid, all acts of legislative nature must be passed by both Houses of Congress and
presentment of the Bill to the President for approval as a check on congressional power.
 The Const. specifically enumerates those areas where single house is valid, and deportation is not among
them. To fix it here, Congress would have to come in and enact a new law.
 Only 4 provisions in the Constitution by which one house may act alone with unreviewable force:
1. The H of Reps alone has the power to initiate impeachments
2. The Senate alone has the power to conduct trials
3. The Senate alone is given final power to approve presidential appointments
4. The Senate alone is given power to ratify treaties
 Holding: The federal statute authorizing a one house veto of the Atty General’s decision to allow an alien to
remain in the US is unconstitutional. It constitutes an exercise of legislative power, without subjecting it to the
bicameralism (to the H of Reps) and presentment (presenting to the Pres) requirements of Art I of the Const.
 Concurrence: This case is so unusual, because it is invalidating 200 laws. He wants to look at this hardship
factor and feels like this decision should be narrowly fixed.
 The Doctrine of Separation of Powers may be VIOLATED in two ways:
1. One branch may interfere impermissibly with the other’s performance of a constitutionally assigned
performance (Nixon); or
2. When one branch assumes a function that is more properly entrusted to another (Youngstown Sheet)
 When Congress applied its rules to Chadha, it exceeded the scope of its constitutionally prescribed
authority because authority of this sort is left up to another branch to check.
 Possibly all legislative vetoes are invalid under the Presentment Clause.
 Dissent: This law negatively affects over 200 statutes. Without the legislation veto, Congress is faced with:
either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws to
specifically cover endless special circumstances across the entire policy landscape; OR to renounce its law
making function to the executive branch and independent agencies.
Checking Administrative Power
1. Congress can control administrative agencies through statutes
2. Congress can overturn agency decisions by statute, following the prescribed procedures for bicameralism and
presentment
3. President can veto such statutes
4. Congress controls their budget
5. Appointment and Removal: President, subject to confirmation by Senate, appoints/remove members
The Appointment Power
 Art. II, §2 cl. 2: “The president shall nominate and by with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministries and Consuls, Judges of Supreme Court, and all other Officers of the US
(Principal Officers), whose Appointments are not herein otherwise provided for, and which shall be established by
Law: but the Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, OR in the Heads of Departments.”
 Morrison v. Olson:
 Principal Officers: [Only] President is empowered with the advice and consent of the Senate to appoint all
ambassadors, other public ministers and consuls, judges of the SC.
 Appointment: Congress does not have the power to appoint; only the power to create agencies and
appoint the appointees
 Inferior Officers: Congress may vest appointment of inferior officers by Pres alone in the Courts of Law OR, in
the Heads of Depts or judiciary
 The Independent Counsel provision DID NOT violate the Constitution because an Independent Counsel is an
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inferior officer who is subject to [TEST to determine principal v. inferior officer when appointment power of
the President of the Constitution is silent]:
1. Whether the officer can be removed by a higher executive branch official [besides the President];
2. Whether the officer has limited duties;
3. Whether the officer has limited jurisdiction; AND
4. Whether the officer is limited in tenure.
 If all 4 factors are present: INFERIOR OFFICER
 Court found that the independent counsel was an inferior officer because he could be removed for good
cause by the Atty General, a higher ranking official, and his duties were limited to investigating and
prosecuting federal crimes (he did not make general policy).
 Furthermore, the independent counsel had limited jurisdiction because he was restricted to investigating
officials who were suspected of crimes.
 He also had limited tenure bcuz his temporary role ends when investigation ends [not fixed term for position]
The Removal Power
 nothing in Constitution states anything about powers to remove
 President has the power to remove executive officials unless removal is limited by statute
 Congress by statute, may limit removal if it:
1. An office/officer where independence from the President is desirable; and
2. Removal is limited to good cause
 Congress cannot appoint but CAN place limits on quasi legislative/quasi judicial function [quasi = seemingly]
 Myers v. US:
 Myers was appointed to be postmaster of ORE [a purely executive position] by the Pres who had advice and
consent from Senate. His resignation was demanded before his 4 year term was up. He challenges the
constitutionality of his removal.
 While there is no express provision, the nature of the laws implies so.
 Holding: When the Pres appoints someone who is clearly engaged in an executive action, the Pres should have
the power to remove because the Pres will have better knowledge or practicality of the executive’s
intelligence, loyalty, etc. because the Pres works more closely with the executive than congress who has
administrative control.
 Because the Executive branch does have the power to take care that the laws be faithfully executed, it
emphasizes the necessity for including the exclusive power of removal.
 Does the position change if they are either principal or inferior officer? No, that only has to do with
appointment. Here, we look to see who is more familiar with this job.
 Rule: The President may remove any member of the executive branch who has purely executive duties
 Humphrey’s Executor v. US:
 Found that the President may not remove a FTC officer. In order for the Commission to be nonpartisan,
independence was necessary; the FTC’s duties were not political or executive but were quasi judicial and
quasi legislative. The court allowed a limitation on the President’s removal power because a fixed term was
needed for the officer to gain experience and for the fair and effective administration of the law.
 The FTC is an administrative body created by Congress to perform duties as a legislative or as a judicial aid.
This position was not intended to aid the Executive, it is to be nonpartisan.
 By looking at 1) language of the act 2) the legislative reports and 3) the general purposes, Congress
intended to have a position here that gains experience by length of service
 Quasi-legislative and Quasi-judicial: [because] it aids the legislative power as a legislative agency and
it authorizes the commission to act as a master in chancery under the rules prescribed by the court.
 They control trade, when they find it, and when they have to adjudicate.
 Since this is quasi legislative/judicial, they want this to function with independence from the
President without coercion or fear from him so it can be non-partisan.
 Expertise: Not anyone can step into this role, and there is tenure for their experience. Administrative
agencies are agencies of expertise. By giving it to an admin body, the better the policies are.
 Wiener v. US:
 Congress created the War Claims Commission Act (to handle claims as a result from war) which functioned as a
quasi-legislative and quasi-judicial body, which the Court found required independence from the President
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and supported the limitation of the President’s removal power.
Similar analysis to the Humphrey’s case. Just because the President wanted his own officers on the War
Claims Commission, the court is compelled to conclude that no such power is given to the Pres directly by the
Constitution (lacked good cause for removal), and none is impliedly conferred upon him by statute simply
because Congress said nothing about it.
Bowsher v. Synar:
 Does Congress having assigned to the Comptroller General functions of the Balanced Budget and Emergency
Deficit Control Act violate the doctrine of separation of powers?
 The Act is being viewed as a part of the Legislative Branch, and therefore, the Comptroller General, an officer
of the Legislative branch, cannot be removed by the same legislative branch, unless through impeachment.
This is an unconstitutional issue of separation of powers.
 “He may be removed not only by impeachment but also by joint resolution of Congress AT ANY TIME for:
(i) permanent disability; (ii) inefficiency; (iii) neglect of duty; (iv) malfeasance; or (v) a felony or conduct
involving moral turpitude.”
Morrison v. Olson:
 This Act is different from the other cases because it puts the removal power directly in the hands of the
Executive Branch; and independent counsel may be removed from office, “only by the Atty General and only
for good cause.”
 Congress could limit the removal of the independent counsel and concluded that the limit on removal power
did not prevent the President’s ability to perform his constitutional duty.
 These analysis’s in removal cases is not to define rigid categories of those officials who may or may not be
removed at will by the Pres, but to ensure Congress does not interfere with the President’s exercise of the
executive power and his constitutionally appointed duty to “take care that the laws be faithfully executed”
 Does removing the President’s removal power affect his job to faithfully execute?
 Not here; because the independent counsel may be terminated for “good cause,” the Executive,
through the Atty General, retains ample authority to assure that the counsel is competently
performing his statutory responsibilities in a manner that comports with the provisions of the Act.
REMOVAL, THE BIG PICTURE: These removal cases seem to establish that the President may fire an executive
official. Congress, however, can limit removal by statute if both if independence from the President is desirable
and the statute does not prohibit removal, but limits it to where there is good cause.
May the president’s removal be unconditionally prohibited?
 There are conditions on removal; but if there is not a case where there is a blanket prohibition of the President
to remove—it’s only prohibited if it affects his duty to faithfully execute the law
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D. Separation of Powers and Foreign Policy
 Are foreign affairs different than domestic affairs under the Constitution?
 Does the President have more inherent power, discretion in one area over the other? Why?
 Are there any constitutional limits on executive agreements with foreign nations?
 What is the allocation of decision making over war powers?
 What is the relationship btw Congress’s power to declare war and the President’s authority as Commander in Chief?
 Art I, §8: Congress has the power to regulate commerce with foreign nations, to declare war, grant letters of
Marque and Reprisal, and make rules concerning Captures on Land and Water, to raise and support armies, to
define piracies on the high seas, and offenses against Law of Nations
 Art II: President shall be Commander in Chief of the Army and the Navy of the US and of the Militia of several
States, when called into the actual Service of the US . . . The President also has power, by and with Advice and
Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.
1. Are Foreign Policy and Domestic Affairs Different?
 US v. Curtiss-Wright Export Corp:
 The Senate and the H of Reps passed a joint resolution to permit the President to prohibit the sale of arms to
foreign nations by Presidential proclamation “as he may deem necessary.” Thus, Roosevelt issued a
proclamation forbidding arms to be sold to groups involved in Chaco dispute. D violated this. D now challenges
the power of the Pres to issue the proclamation on the ground that is was an improper delegation of legislative
power to give the Pres authority to prohibit the gun sales. Court dismissed.
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Selling arms to foreign nations is a matter of foreign affairs. The President has powers in the realm of foreign
affairs that he is without in the area of internal affairs. This is expected and obvious result of the necessity of
the country’s speaking with one voice to other countries. In internal matters, where the President and the
Congress have no constitutionally granted power, the 10th Amendment reserves power for the States.
 Previously in Schecter & Panama Refining, Congress passed the non delegation of powers unless there is a
clear intelligible principal. So, if you look at the delegation, then that probably won’t uphold, because it is in
the power of the President.
 The President has plenary [absolute] foreign affairs powers. In foreign affairs, Pres is going to have more
power than that of domestic.
 If any issue is relating to the US, then the Constitution has to specifically grant power to Congress or the
President. It’s okay with foreign affairs, because not everything needs to be spelled out in the Const.
 The President is the US’s sole representative to foreign nations because we want a sole rep and figure-head as
a final voice. In order to achieve the US’s foreign policy aims, the Pres is better able than Congress to judge
conditions that exist in foreign nations because he works closely with foreign leaders and ambassadors and is
afforded substantial discretion and wide latitude in those decisions.
 The President also has confidential information as well as consular, diplomatic and foreign affairs officers
to help in his decision
 When the Pres is acting in foreign affairs there is more inherent authority to the President [than Congress]
2. Treaties and Executive Agreements
 Art II, §2: President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties
provided 2/3 of the Senators concur
 Treaty: an agreement between the US and a foreign country that is negotiated by the President and is effective
when ratified by the Senate (Senate ratification is necessary)
 Executive agreement: an agreement between the US and a foreign country that is effective when signed by the
President and the head of that foreign gov’t [this will always supersede law] (No Senate ratification necessary)
 Anything that can be done by treaty can be done by executive agreement. While the constitution does not
mention executive agreements, it is well established that they are constitutional.
 Timing is usually a factor for an executive agreement—EX: 2 countries going to war and time may be of the
essence, so an executive agreement will act faster then waiting on a 2/3 Senate vote.
 Dames & Moore v. Regan: Iran owes P nearly 3.5 mill in assets. Upon the release of American hostages by Iran,
Reagan ratified an Executive Order by Carter to free Iranian assets from all attachments for submission to a Claims
Tribunal [essentially bar them from suit] and the sheriff refused to execute on Iranian assets securing Dames’ claim
 The President, with the implicit approval of Congress, has power to settle claims of the US citizens against
foreign gov’ts through an executive agreement.
 While there is no statute for congressional authority, the general tenor of Congress, makes it clear that the
President was acting with the acceptance of Congress.
 An Executive Agreement has the same force and effect as a treaty and can alter the rights of the US Citizens.
 The President usually does not have the plenary power to settle claims against foreign governments through
an Executive Agreement.
 However, where Congress is seen to assent to the president’s action, the Pres can then settle such claims.
 Here, although what Pres Carter previously did was not specifically sanctioned, Congress gave the
President substantial powers to seize and handle foreign assets, so Carter’s actions were appropriate.
 Congress also implicitly approved the Settlement Act; and amending it in 1980 in the wake of the Iranian crisis,
permits the settlement of claims against foreign assets in situations of this type.
 This is not a blanket of power for the President. But, this is in time of hostage negotiation, which is a
NARROW decision affecting these circumstances
 In narrow circumstances, the President does have the right to terminate legal proceedings and settle claims of
US Citizens against foreign gov’ts
3. War Powers
 When could President, as Commander-in-Chief, use troops in a war situation without Congressional approval?
 Title 50 [below] tried to answer this question.
 What is a declaration of war?
 What is Court’s role in looking at these 2 questions?
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Art. I: Grants Congress the power to declare war and authority to raise and support the army and navy.
Art. II: makes the President the Commander in Chief
Title 50. War and National Defense; Chapter 33- War Powers Resolution-1973:
 §1541 (c): Presidential Executive Power as Commander-in-Chief; Limitation
 President cannot introduce forces into hostilities, unless and only if there is:
1) a declaration of war,
2) statute authorization; or
3) national emergency created by attack upon the US, its territories or possessions, or its armed forces
F. Checks on the President
 Suing and Prosecuting the President
 When can a President be sued civilly?
 Nixon established absolute immunity—complete protection from civil suit—for a President for all official
actions that took place while in office
 Clinton rejected any immunity for acts that occurred before the president took office.
 immunity is intended to enable the President to perform his designated functions without fear of personal liability
 Executive Immunity
 Nixon v. Fitzgerald: Fitzgerald is suing the President civilly after being fired from the Armed Forces after a
Congressional hearing. Court affirmed a summary dismissal. The Court refused to subject the President to potential
liability on every employment decision which could be traced back to the President as head of the Exec Branch.
 The Court has ruled that a President has absolute immunity from civil damages based on liability for his acts,
as long as the President was acting within the outer perimeter of the duties of the office.
 Does this leave the nation without immunity from the Chief Executive? NO:
 Impeachment
 Formal and informal checks on Presidential action
 Constant scrutiny by the press
 Incentive to avoid misconduct to be reelected and to maintain prestige
 President’s traditional concern for his historical stature
 Clinton v. Paula Jones: Clinton wanted to dismiss case on Presidential immunity to protect the office for the terms
he is in there from a claim Jones has on him from before he was Pres. The President’s argument for the court to
defer a civil case until he leaves office was rejected because it would not necessarily interfere with the President’s
ability to carry out the duties of office.
 The rationale for affording certain public servants immunity from suits for money damages arising out of their
official acts is inapplicable to unofficial conduct.
 If the judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official
conduct; and if it may direct appropriate process to the President himself, it must follow that the federal
courts have power to determine the legality of his unofficial conduct.
 If she did have the delay, the problems that could arise are:
 Statute of limitations
 Her due process rights
 Timing of evidence
 Criminal Prosecution: No case has addressed whether a sitting President can be criminally prosecuted
 Nixon and Clinton came close, but it did not occur either because the Independent Counsel believed that the
President had immunity from criminal prosecution or because of a judgment about the merits of the case
 One argument is that impeachment and removal should be the sole remedy, because criminal prosecution
proposes a danger that would interfere with the President’s ability to perform
 Another argument is that no person is above the law, and like others, Pres should be charged and tried for crimes
 Impeachment
 Art I, §2: the H of Reps has the sole power to impeach, then trial in Senate
 Art I, §3: the senate has the sole power to try impeachments and prescribes that no Person shall be convicted
without the concurrence of 2/3 of the Members present.
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Art II, §4: The President, vice and all civil officers of the US, shall be removed from Office on Impeachment for
conviction of Treason, Bribery, or other high Crimes and Misdemeanors.
 Two major unanswered questions from provisions:
1. What are other high crimes and misdemeanors?
2. What procedures must be followed when there is an impeachment and removal proceeding?
Impeachment Process:
 Articles of impeachment need a majority vote (H of Reps draft and approve the articles)
 Trial (Senate’s job to conduct the impeachment trial) needs two-thirds vote to convict
 Chief Justice of SC serves as the judge or overseer
Chapter 4 – Limits on State Regulatory and Taxing Power
B. The Dormant Commerce Clause [DCC]
 Another check on the states (Some courts call it the Negative Commerce Clause)
 Congress has this power, because they have a power to regulate commerce, then you are violating the supremacy that
is enumerated in the Constitution.
 SC infers this from Congress’s power to grant commerce amongst the states [Art. I § 8]
 The DCC seeks to limit the states legislature’s ability to pass legislation which may discriminate against; or have an
incidental undue burden upon, interstate commerce.
 State law: [1] Does not discriminate against out of state competition to benefit local economic interests AND [2] is
not unduly burdensome (the incidental burden on interstate commerce does not outweigh the legitimate local
benefits produced by regulations)
 is the principle that the state and local laws are unconstitutional if they place an undue burden on interstate
commerce
 If Congress has not acted- even if its commerce power lies dormant, state and local laws still can be challenged as
unduly impeding interstate commerce.
 Two Distinct functions:
1. An authorization for congressional actions (scope of Congress’ power to legislate under the Comm. Clause)
2. Is in limiting state and local regulation. (negative Comm. Clause)
 Laws that discriminate an out-of-staters fundamental right can be challenged by the Privileges and Immunities clause
of Art. IV, 2 and the Equal Protection clause of the 14th Amendment.
 Two exceptions to the Dormant Commerce Clause:
1. When congress itself authorizes the states to act; AND
2. When the state is not regulating interstate commerce but is an active participant in the market
 A Commerce Clause challenge is when one challenges an action by Congress. A Dormant Commerce Clause challenge
is when one challenges an action by a state.
 To determine whether a law violates the dormant commerce clause
1. Whether it discriminates on its face against interstate commerce?
 discrimination means differential treatment of in state and out of state economic interests that benefits the
former and burdens the latter
 discriminatory statutes will be held invalid under strict scrutiny unless there is a compelling interest and there
are no non discriminatory ways to accomplish goal
2. Whether the ordinance imposes a burden on interstate commerce that is clearly excessive in relation to the
putative local benefits (pike test)
 use pike test when dealing with Non discriminatory laws
 Why a Dormant Commerce Clause?
 State laws will be struck down if they place an undue burden on interstate commerce.
 H.P. Hood and Sons v. DuMond:
 NY denied applications for any more milk facilities, because D shipped all of their milk to Mass. while NY is
undersupplied.
 A state may not deny a nonresident a license to purchase products for sale in other state solely to protect
that state’s own supply to the detriment of interstate commerce.
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Three Traditional Arguments for having Dormant Commerce Clause:
1. Historical: The framers intended to prevent state laws that interfered with interstate commerce
2. There is an economic justification: economy is better off if state laws impeding interstate commerce
are invalidated.
3. political justification: States and their citizens should not be harmed by laws in other states where
they lack political representation
 NY is trying this economic protectionism [protecting its financial interest], and they are not allowed to do
this. It will separate the different states instead of making them United. Here, you must look to the
statute’s primary purpose where here it is the prohibition of competition where the states are only
allowed to protect health and safety
The Dormant Commerce Clause Before 1938
 Cooley v. Board of Wardens:
 PA passed a law which required that every ship enter/leaving Philly was to use a local pilot. A penalty was
imposed if not.
 State law is valid and does not conflict with anything in the Constitution; Congress’s right to regulate
commerce did not regulate the state’s right to regulate pilots.
 Here, PA was trying to regulate its state police power [to further the general welfare/safety] because it had
local concerns for its ports so it implemented an un-uniform national aw [not followed by the Nation as a
whole] for its own citizens (PA was NOT stepping on Congress’ Commerce Clause shoes)
 States may regulate those areas of interstate commerce which are local in nature and do not demand one
national system of regulation by commerce.
The Contemporary Test for the Dormant Commerce Clause
 South Carolina State Highway Dept. v. Barnwell Brothers: South Carolina enacted a statute prohibiting the
operation on their highways of trucks wider than 90 inches and heavier than 20,000 lbs.
 This is a matter of local concern, the regulation of which unavoidably involves some regulation of interstate
commerce. This statute is designed to promote safety, a local concern, and no federal statute in this area has
preempted South Carolina’s power to regulate traffic to this extend (not an undue burden on interstate comm)
 Balancing test of state health and safety local interest v. undue burden placed on the out-of-state participants;
and safety won.
 Southern Pacific Co. v. Arizona: Arizona is allowed to collect a penalty because it is unlawful for any person or
corporation to operate a RR train of more than 14 passenger cars or 78 freight cars.
 When the regulation of matters of local concern is local in character and effect, and its impact on the national
commerce does not seriously interfere with its operation, and the consequent incentive to deal with them
nationally is slight, such regulation has been generally held to be within state authority.
 However, this train limit law imposes a serious burden on the interstate commerce. It materially impedes the
movement of interstate trains through that state and interposes a substantial obstruction to the national
policy proclaimed by Congress, to promote adequate, economical and efficient railway transportation service.
 The serious impediment to the free flow of commerce by the local regulation of train lengths and the practical
necessity that such regulation, if any, must be prescribed by a single body having nation-wide authority.
Determining Whether a Law is Discriminatory
 whether the state or local law discriminates against out of staters or treats in staters and out of staters alike
 deal with attempts by state and local governments to conserve their natural resources for use by their own
residents
 Balancing Test:
 If the Court concludes that a state is DISCRIMINATORY against out-of state[r]s, then there is a
1. Strong presumption against the law [per se invalid] and it will be upheld only if the state can show [its
burden] the law necessary to further/achieve an important purpose; AND
2. It is the least discriminatory means available.
 In contrast, if the Court concludes that the law is NON-DISCRIMINATORY, then the presumption is in favor of
upholding the law, and it will be invalidated only if it shows that the law’s burdens on interstate commerce
outweigh its benefits.
Facially Discriminatory Laws
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Reciprocity requirements: a state allows out of staters to have access to markets or resources only when the out
of staters are from states that grant similar benefits (facially discriminatory)
 City of Philadelphia v. New Jersey: NJ has a statute that prohibits the importation of waste either originating or
collected outside the state. Court found the statute to be discriminating against other states. It imposes an out-of
state commercial interest by the burden of conserving the State’s remaining landfill space. Cities in PA and NY
finding it necessary to send their waste into NJ for disposal.
 Where simple economic protectionisms is effected by state legislation, a virtually per se rule of invalidity has
been erected.
 On its face, [this NJ law] imposes on out-of-state commercial interests the full burden of conserving the states
remaining landfill space.
 It blocks the importation of waste in an obvious effort to saddle those outside the state with the entire burden
of slowing the flow of refuse into NJ’s remaining landfill sites.
 “Although the Const. gives Congress the power to regulate commerce among the States, many subjects of
potential federal regulation under that power inevitably escape congressional attention because of their local
character and their number and diversity ”
 “In absence of federal legislation, these subjects are open to control by the States so long as they act
within the restraints imposed by the Commerce Clause itself.”
 The Commerce Clause will protect NJ in the future just as it protects their neighbors now, from efforts by one
State to isolate itself in the stream of interstate commerce from a problem shared by all.
 Hughes v. Oklahoma: OK has a statute that prohibits anyone from transporting or shipping minnows for sale
outside the state which were seined or procured within the waters of the state.
 VERY HIGH BURDEN is on the challenging party to show that the statute discriminates, and once that is
proved, the burden then shifts to the state to justify it.
 If it discriminates either facially or by effect, there must a legitimate purpose [a low standard] and it has to be
necessary to achieve that purpose [high standard]
 THERE HAS TO BE AN ABSENCE OF ANY OTHER DISCRIMINATORY ALTERNATIVES, otherwise the statute will
be held as discriminatory
 There are nondiscriminatory alternatives (limits on number of minnows)
Facially Neutral Laws
 can be found to be discriminatory if they either have the purpose or the effect of discriminating against out-ofstaters or if they were enacted for a protectionist purpose: helping in-staters at the expense of out-of-staters
 Hunt (of NC) v. Washington State: WA accounts for 30% of all apples grown domestically and the economy relies
on it. They have above par standards and their labels say they surpass the WA standards. NC wants the apple to
have been approved by USDA instead of WA's system. It is discriminatory because it treats out-of-staters
differently.
 North Carolina has a legit interest of protecting citizens from fraud [worried about consumer confusion about
misleading advertisements about the apples quality], BUT, they could not show it was necessary and that
there were no other non-discriminatory alternatives.
 This was NOT facially discriminatory, but facially neutral
 But then the test is analyzed, it is discriminatory
 When discrimination against commerce of the type we have found is demonstrated, the burden falls on the
State to justify it both in terms of the local benefits flowing from the statute and the unavailability of
nondiscriminatory alternatives adequate to preserve the local interests at stake. [NC failed to sustain that
burden]
 Exxon v. Gov of Maryland: MD statute provides that a producer/refiner of petroleum products 1) may not operate
any retail service station within the State and 2) must extend all “voluntary allowances uniformly to all service
stations it supplies. Facially neutral because it applied equally to in-state and out-of-state producers/refiners
 Does not discriminate or favor local because:
1. All gasoline flows in interstate and there are no local producers
2. It does not prohibit the flow of interstate goods, place added costs upon them, or distinguish between instate and out-of-state companies in the retail market.
 DISSENT: no one owns a refinery in state, therefore all are out-of-state . . . so there is discrimination
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West Lynn Creamery v. Mass: Mass was taxing all the milk that came into the state, then disbursing the funds as a
subsidy to the dairy farmers in the state. Therefore, some of the local producers were paying the tax and receiving
a subsidy as a local farmer; the out-of-state producers were not eligible to receive a subsidy.
 They did 2 legitimate things separately, but when placed together they were found not to have a legit
purpose.
 Fear of state farmers going out of business was not a legit purpose.
 You are allowed to tax and you are allowed to proved subsidies.
 A State may not benefit in-state economic interests by burdening out-of-state competitors.
 Policy: out-of-staters do not have the power to vote, yet they are taxed.
 State of Minn v. Clover Leaf Creamery: State enacted a statute for milk only to be sold in cardboard or reusable
containers to help with waste management, promoting energy waste, and depleting natural resources. Local
benefits outweighed the discrimination. There were no other approaches with a lesser impact on interstate
activities.
 When legislating in areas of legitimate local concern [like environmental protection and resource
conservation], States are nonetheless limited by the Commerce Clause.
 Even if a statue regulates “even-handedly.” And imposes only “incidental” burdens on interstate commerce,
the courts must nevertheless strike it down if the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits. [court held it is not]
 Moreover, the extent of the burden that will be tolerated will depend on the nature of the local interest
involved and on whether it could be promoted as well with a lesser impact on interstate activities.
 Here there was an incidental undue burden placed on the “milkers,” however it was not enough to make it
unconstitutional
 Use Pike Balancing Test: balancing the interest/benefit to the state v. burden to the out-of-state participants
Analysis If a Law is Deemed Discriminatory
 Dean Milk Co. v. City of Madison, WI:
 The city has a law that all milk bottled and pasteurized for the city has to come from within a 5 mile radius. P is
around 70 miles outside the city and was denied a license to sell it products within Madison solely because its
pasteurization plants were more than 5 miles away.
 Court found that they erected an economic barrier against competition from outside state[s]
discriminating against interstate commerce; there were reasonable alternatives.
 This case illustrates the rigorous scrutiny used when laws are deemed discriminatory when the state is not
furthering local health interests by placing a burden on interstate commerce [the ordinance imposed an
undue burden on interstate commerce]
 Principle: “one state in its dealings with another may not place itself in a position of economic isolation”
 Maine v. Taylor & US:
 ME made it a federal crime to import, export, transport, sell, receive, acquire, or purchase in interstate or
foreign commerce, any [live] fish or wildlife taken, possessed, transported, or sold in violation of any law or
regulation of any State.
 Maine’s purpose was to keep out-of state parasites out of their water; and, non-native species may
become predators and effect the natural resources of the state
 No other alternatives unless the state searches every single container which would be impractical
 Maine has a legitimate interest in guarding against imperfectly understood environmental risks, despite
the possibility that they may ultimately prove to be negligible.
 THIS IS THE ONLY CASE THAT IS FACIALLY DISCRIMINATORY BUT PASSES THE TEST
Analysis If a Law is Deemed Non-Discriminatory
 If the court concludes that a state’s law is not discriminatory, that it treats in-staters and out of staters alike, then
it is subjected to a much less demanding test. Non-discriminatory laws are upheld SO LONG AS THE BENEFITS TO
THE GOV’T OUTWEIGH THE BURDENS ON INTERSTATE COMMERCE.
 Loren Pike v. Bruce Church:
 AZ controlled that cantaloupes offered for sale must be packaged a certain way, forcing others to build new
plants.
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Here, facially neutral but here they are not dealing with state legislation in the field of safety where the local
legislation has long been recognized, or with an Act designed to protect AZ consumers from contaminated or
unfit goods.
 Acts legitimate purpose and design are simply to protect and enhance the reputation of growers within AZ.
However, AZ cannot constitutionally justify the req that a company build and operate an unneeded $20K plant.
 Rule: “Where the statute regulates even-handedly to effectuate a legitimate local public interest; and its effect
on interstate commerce are only incidental, it will upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.”
 Pike Balancing Test: balance between the benefit to the state v. the burden on commerce
 Failed test because incidental consequence of the legislation did not have a compelling interest.
 If the law is not outright or intentionally discriminatory or protectionist, but still has some impact on interstate
commerce, the court will evaluate the law using a balancing test. The Court determines whether the interstate
burden imposed by a law outweighs the local benefits. If such is the case, the law is usually deemed
unconstitutional.
 A state regulation having only "incidental" effects on interstate commerce "will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the putative local benefits." When weighing
burdens against benefits, a court should consider both "the nature of the local interest involved, and ... whether it
could be promoted as well with a lesser impact on interstate activities.
 Bibb v. Navajo Freight Lines:
 ILL requires the use of a certain type of rear fender mudguard on trucks and trailers operated on the highways
of ILL.
 On a facially neutral law, we look at the burden against the benefit
 Benefit: safety and the burden: time/costs
 Safety is legitimate, but burden [time/costs] outweighs the permissible limits even for safety regulations
 Consolidated Freightways Corp. Of DE v. Kassel: Iowa prohibits the use of certain large trucks on highways within
the state. The company uses Iowa to get through to a lot of other states, but Iowa insists it is the State’s
responsibility to promote safety.
 Too big of a burden on commerce, safety is a legit concern, but the burden on commerce far outweighs and
there is no proof that the alternative is much safer.
Exceptions to the Dormant Commerce Clause
 Two exceptions where laws that otherwise would violate the DCC:
1. Congress approves the state law (plenary power to regulate commerce among the states [even a clearly
unconstitutional discriminatory state law will be approved])
2. Market participant exception: a state may favor its own citizens in receiving benefits from gov’t programs or
in dealing with gov’t owned businesses. The state has to be a buyer or seller just like any other private
individual/organization. If it is participating, then the state can make laws that benefits citizens and itself.
Congressional Approval
 Congress may confer upon the States an ability to restrict the flow of interstate commerce that they would not
otherwise enjoy.
 If congress ordains that the States may freely regulate an aspect of interstate commerce, any action taken by a
State within the scope of the congressional authorization is rendered invulnerable to a Commerce Clause challenge
 Western & Southern Life Ins v. St Board of Equalization of CA: CA Ins. Code imposes a higher tax on out of staters
doing business in CA.
 Allowed, Congress removed all Commerce Clause limitations on the authority of the States to regulate and tax
the business of insurance when it passed the Mc Arran-Ferguson Act.
 This act states that taxation of insurance is a public interest and the business of insurance shall be subject
to the laws of the several States which relate to the regulation or taxation of such business. (unequivocal
language)
 Only protects on a DCC; fed gov’t may never waive for other constitutional issues like Equal protection
Market Participant Exception
 Provides that a state may favor its own citizens in dealing with gov’t owned business and in receiving benefits from
government programs.
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If the State is literally a participant in the market, such as with a state-owned business, and not a regulator, the
DCC does not apply. Discrimination against out of staters is allowed that would otherwise be impermissible.
Reeves, Inc. v. William Stake:
 SD, in a time of shortage, confined the sale of cement it produces solely to residents. Reeves, a company in WY
is suffering from this. This is discriminatory because out of staters are treated different than the residents.
 Market participant exception: Restraint in this area is counseled by considerations of state sovereignty of each
States “as guardian and trustee for its people”
 If a private company can engage in a preferential treatment, then SD can do the same if it acts like a private
business owner [i.e., a cement seller].
 Dissent: this SD policy is the protectionism the Commerce Clause is meant to protect. The creation of a free
national economy was a major goal of the States when they resolved to be united under a federal constitution
White v. MA of Construction Employers:
 Boston was allowed to have construction projects funded by city funds and should be performed by a work
force consisting of at least half of bona fide Boston residents.
 They are a market participant and are using state funds.
 Allowed because they are acting as local builders
South Central Timber Dev. v. Comm. Dept of Natural Resources of Alaska:
 AK required that all timber taken from the land was required to be partially processed within the state before
shipping it out. The State’s purpose was to protect existing industries, to provide for new industries, derive
revenue from all timber resources, and manage the State’s forests on a sustained yield basis. P operates a
plant that has mills in Japan.
 AK is regulating here, not being a participant. They are trying to keep revenue in AK. You may have
preferential treatment if you are a market participant. The court is looking at that type of market, if a state is
acting outside its market, then it becomes a regulator.
 This restriction on private economic activity takes place after the completion of the parties’ direct commercial
obligations, rather than during the course of an ongoing commercial relationship in which the city retained a
continuing proprietary interest in the subject of the contract.
 YOU MAY BE DISCRIMINATORY WHEN YOU ARE A MARKET PARTICIPANT, BUT YOU MAY NOT BE
DISCRIMINATORY IN A MARKET YOU ARE NOT A PARTICIPANT IN [i.e. when regulating it instead].
C. The Privileges and Immunities Clause of Article IV, §2
 “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,”
 Limits the ability of a state to discriminate against out-of-staters with regard to fundamental rights or important
economic activities.
 Section prevents a State from discriminating against citizens of other States in favor of its own—usually involves
challenges to state and local laws that discriminate against out of staters ability to earn a livelihood
 Such discrimination will be allowed only if it is substantially related to achieving a substantial state interest.
 Key differences between DCC and P&I Clause:
1. P&I Clause can only be used if there is discrimination against out of staters. DCC can only be used to challenge
state and local laws that burden interstate commerce regardless of whether they discriminate against out of
staters [DCC laws that discriminate are much more likely to be invalidated]
2. Under P&I Clause “citizen” means individual US citizens; thus corporations & aliens cannot sue under it, where
they can under the DCC.
3. DCC’s two exceptions ([1] congressional approval & [2] market participant) DO NOT apply to P&I Clause.
 Two Basic questions to ask if it discriminates against the Privileges and Immunities Clause:
1. Has the state discriminated against out of staters with regard to privileges and immunities that it accords its
own citizens?
2. If there is such discrimination, is there sufficient justification for the discrimination?
 The Test [from questions above broken down]:
1. Discrimination of a fundamental purpose/privilege?
2. Is there a substantial purpose for the discrimination?
3. Is the discrimination substantially related
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The P&I Clause is NOT absolute. The Court primarily applies in two contexts, when a strong presumption against
state and local laws are discriminating against out-of-staters:
1. with regard to fundamental/constitutional rights; and
2. with regard to important economic activities
What are the “Privileges and Immunities of Citizenship”?
 It may be comprehended under the following general heads:
 Protection by gov’t; The enjoyment of life and liberty; Right to acquire and possess property; Pursue and
obtain happiness and safety; and Subjects to such restraints as the gov’t may justly proscribe for the general
good of the whole [Nation]
 Toomer v. Witsell: South Carolina law charges shrimp boat residents 10x less than out-of-staters. Is the purpose to
conserve shrimp? Or to create a monopoly and extra money for SC residents?
 The Court found that there was not enough compelling reasoning that they were conserving the shrimp
 The Privileges and Immunities Clause is not absolute; it does bar discrimination against citizens of other States
where there is no substantial reason to discriminate beyond the mere fact that they are citizens of other states
 But it does not preclude disparity of treatment In the many situations where there are perfectly valid
independent reasons for it, thus there must be an inquiry in each case on whether such reasons do exist.
 It violates the DCC and also the Privileges and Immunities Clause.
 Here they use their economic privilege to pursue a livelihood and the purpose they elicited of
conservation of shrimp was not a permissible purpose, instead it created a commercial monopoly for
residents.
 United Building & Construction v City of Camden: The city of Camden requires that at least 40% of the
construction workers on city projects be from the city of Camden. P challenges saying it is a violation of P&I Clause.
 Does the P&I Clause apply to discrimination based on municipal residence? Yes, if a citizen is denied because
they do not live in a city; then they are denied if they do not live in the state.
 Because the pursuit of a livelihood is a fundamental privilege protected by the P&I Clause, the ordinance was
unconstitutional. Reversed and remanded.
 Test:
1. Fundamental privilege denied? -- yes; livelihood
2. Substantial purpose? -- money, jobs for residents, taxes (was legitimate under the Commerce Clause)
3. Substantially related? (was necessary with lack of other alternatives with Commerce Clause)
 Case is remanded for invalidation of not having enough information to answer the test.
 If this ordinance were analyzed solely under the Commerce Clause, it would have been upheld because
Camden, as a market participant, rather than a market regulator, could discriminate against out-of-state
business.
 Lester Baldwin v. Fish & Game Commission of MT: There are different fees for nonresidents and residents to hunt
elk in MT.
 Recreational elk hunting is not a fundamental right of non-residents and does not threaten a basic right in a
way that offends the Privileges and Immunities Clause.
 Facts like Toomer, but different result
1. Fundamental privilege?- had to prove hunting was for livelihood, which it was not—they just want
trophy animals.
2. Substantial purpose?
3. Substantially related?
 Justiciability issues:
 Third party to show injury to his clients who are out-of state
 This wouldn’t work because you would have to show an obstacle for the D’s too not to it himself.
Therefore the guy would not people to sue under the P&I Clause because it would be his clients
suffering the injury; and not him, and it would not pass to get into court.
What Justifications are sufficient to permit discrimination?
 Sup Ct. of New Hampshire v. Piper: Piper lived very close to NH on the VT border. She wanted to take the bar to
the state that was allowed for only residents. She sent in letter of intent to move and was allowed to take it; but
would only be sworn in if she established a residence. She passed the NH bar and was denied admission.
 Test:
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1. Fundamental privilege? Yes, livelihood
2. Substantial purpose? Local rules, short notice travel time to courts, volunteer work, ethical behavior—
court didn’t buy these reasons argued by NH
3. Substantially related? No, because they would get disbarred if they violated what they need to do if they
became a lawyer
The P&I Clause was intended to create a national economic union.
There is nothing suggesting that the practice of law should not be viewed as a privilege—but the practice of
law is important to the national economy. The legal profession has a noncommercial role and duty to reinforce
the view that the practice of laws falls within the ambit of the P&I Clause.
This holding does not interfere with the ability of the States to regulate their bars. The nonresident who seeks
to join a bar, unlike the pro hac vice applicant, must have the same professional and personal qualifications
required of resident lawyers and are subject to that State’s rules.
DISSENT: the practice of law is fundamentally different from those other occupations that are practiced across
state lines without significant deviation from State to State. NH should be able to choose who it deals with
their governance.
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