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Dualist Democracy
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2 Issues/problems
o Limited Government
o Hierarchy of popular sovereignty:
 Ppl Constitution Government ppl
o Problems w popular sovereignty:
 Dead hand problem: orig ratifiers (dead ppl) were the real sovereigns (Ppl), not us (ppl)
 Countermajoritarian problem: no matter how large the majority of ppl who support a law, still cannot
enact bc it could be unconst
 Tyranny of the majority
Limits Gov’t with Rights but has amendment process
o 2 Tracks of Law
 Higher: Constitution – Ppl
 Normal – Statutes, Common Law (can’t violate higher law) – ppl/government
 Supreme Ct = Preservationist. Preserves higher law
ppl Ppl
o Ammendment Process
o Mobilization i.e. Landmark Statutes: New Deal, Civil Rights etc.
Modalities
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Historical – what did it mean when written, intent of framers
Textual – what do words mean
Structural – Inferences from Constitution. Laws of Constitutional Physics.
Doctrinal – Case Law. Precedent.
Prudential – Policy Analysis. Pragmatism. (Activist/Legislative)
Ethos – Tradition i.e. Declaration of Independence, Gettysburg Address, MLK etc.
Federal Judicial Power
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Judicial Review
o Marbury v. Madison: auth for judicial review
 F: AS Adams leaving office, packs cts w/ Federalists. Jefferson’s Sec. of State, Madison doesn’t send
out judgeships. One of the to-be-judges (Marbury) goes straight to SC to get a writ of mandamus
(compelling a gov official to act)
 3 Qs
 Does Marbury have Right to Commission?
o Yes, signed/sealed. Senate confirmed.
 Is there a legal remedy? Yes
o Right  Remedy
o Executive Power (Political Q)
 Discretionary (Ct can’t interfere)
 Ministerial (Yes remedy at law) (Deliver, Not Political Discretion)
 Can the SC provide that remedy? No.
o Const [No]
 Orig Juris – Ambassadors, Public ministers/consuls, if state shall be a party
 Appellate Juris – All other.
o Vs. Statute [Yes[ (Sec. 13 of Judiciary Act) says SC has power
 Judiciary Act = Unconstitutional  No remedy
 Rule: although SC’s sppellate juris is derived from the Const, cong has power to make exceptions and
regs to this juris; Const supremacy
Congressional Limits on Judicial Power
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Expectations and Regulations Clause
 Ex Parte McCardle
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F: while appeal of habeas corpus petition was pending on the SC docket, cong passed legis
elim the SC’s appellate juris in habeas corpus cases
 Rule: Although SC’s appellate juris is derived from Const, cong has power to make
exceptions and regs to this juris
 US v. Klein: sep of powers
 F: cong passes law term fed ct juris in cases in which claim was made for recovery of prop
seized by US during Civil War and where claimant used prez pardon to show he had not aided
the enemy
 Rule: legis branch may NOT impair direct or excl power of judicial or exec branches
Limited to cases/Controversies
 No advisory opinions. Have to be π/D in adversary
 Standing: whether specific pers is proper party to bring matter to ct for adjudication
 Constitutional Requirements:
o Injury in fact (direct or personal injury) – Right π?
o Causation/traceability – Right D?
o Redressability – ct could grant relief
 Prudential Standing – (Congress can set aside)
o Prudential requirements:
 Cannot raise claims of 3rd parties
 May not sue as taxpayer who shares grievance in common w all other tps
o Prohibition of generalized grievances
 Any person can’t sue if Gov is spending $ wrong
 US v. Richardson
 F: taxpayer sued to compel CIA to release details of it expenditures
pursuant to A1, S9 of Const
 Doctrinal Arg
o Flast – Needs to challenge an enactment under
Taxing/Spending Clause
 Rule: taxpayer status is not suff to confer standing to challenge
Const of fed action unless: tp alleges direct injury from practice
and NOT gen grievances common to all members of public: apply
Flast exception 2-prong test
 Flast v. Cohen
 2-part nexus for taxpayer standing:
o (1): req showing that tp is challenging a cong
appropriation under taxing and spending clause
o (2): req that expenditure violate a specific Const limit on
taxing and spending power
 Taxpayer standing:
 2 types of claims:
o (1): allege they have Const right to have tax monies spent
in lawful ways
o (2): arg that gov conduct may increase tax burden and
cause injury by taking money
o Prohibition of 3rd party standing
 Only Primary π’s
 Singleton v. Wolff
 F: abortion Drs sued to rec Medicaid pmts though state for
abortions they had performed that were not “med indicated”
 Rule: persons may sue to protect 3rd party’s right only when:
o (1): relationship btwn parties is such that person suing
may advocate effectively for the right
 Special relationship: Dr/patient: more than $
o (2): there are genuine obstacles to the 3rd party asserting
the right in ct
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1st party can’t assert own right: privacy, poor
women, immanent mootness
Allen v. Wright
o F: Black parents sued IRS for granting tax-exempt status to discrim private schools
and t/b interfering w desegn of their public schools
o Rule: standing reqs a π to allege:
 personal injury
 fairly traceable to the ∆’s allegedly unlawful conduct and
 likely to be redressed by the requested relief
Massachusetts v. EPA
o F: States sue EPA for not following stat mandating they reg CO2
o Rule: litigant must demonstrate that he has suffered a concrete and particularized
injury that is either:
 “actual or imminent”
 That injury is fairly traceable
 That it is likely that a favorable decision will redress injury
Lujan v. Defenders of Wildlife
o F: cong passes stat protecting endangered animals, it auth any person to sue the
admin agency for violating it. Wildlife activists sued for animals in Sri Lanka:
agency claimed lack of standing
o Rule: cong stats cannot confer standing to πs who suffered no “actual” “injury in
fact”
City of LA v. Lyons: Police Chokeholds
o F: Sues for damages & injunction for no more chokeholds
o Rule: No immanence of injury. Won’t happen again  No standing
Ripeness
 Injury is immanent  Either occurred or very close to occurring
o NOT ripe when: injury is speculative and may never occur
o Do we have the right issue?
 Poe v. Ullman
o F: Dr and patients challenge CT law that forbade medical personnel from
disseminating info about contraceptives
o Rule: mere existence of state penal stat constitutes insuff grounds to support a fed
ct’s adjudication of its Const in proceedings brought against state’s prosecuting
officials if real threat of enforcement is wanting
 Threat must be: existing or imminent
 Abbot Laboratories v. Gardner
o Cong passed FDA bill: have to put generic name of drug on label
 Injury not immanent, bc law won’t go into effect
o Rule: case is consid “ripe” for fed ct resolution when:
 (1): issues presented are appropriate for jud decision
 “fitness for decision”: will have same decision if decided now v.
later
 (2): parties would face hardship if ct declined to hear case:
 “hardship of waiting”: now v. if waited
Mootness
 Has the problem already been solved?
 3 exceptions w in mootness doctrine:
o (1): wrongs capable of repetition but avoiding judicial review
o (2): voluntary cessation
o (3): properly classified class action suits may cont even if named πs claims are
rendered moot bc class of unnamed persons described in certification acq legal status
sep from int asserted by named π
 DeFunis v. Odergaard
o F: suing law school for not getting in b/c affirmative action
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Ct: prelim injunction to be admitted into school. By the time it gets to SC,
he’s in the 3rd year and school tells him he can graduate. No Injury.
o Rule: Is this the kind of Q capable of repetition but tends to avoid judicial review?
NO: here – moot
 Ex. Abortion: problem keeps evading ct bc constantly moot
Friends of the Earth v. Laidlaw
o Rule: case might become moot if subsequent events made it absolutely clear that
alleged wrongful behav could not be reas expected to occur
Political Q
 6 indep (disjunctive) tests for existence of political Q:
 (1): textually demonstrable Const commitment of issue to a coord political dept
 (2): lack of judicially discov and manageable standards for resolving it
 (3): impossibility of deciding w out initial policy determ of a kind clearly for nonjudicial
discretion
 (4): impossibility of ct’s undertaking indep resolution w out expressing lack of respect due
coord branches of gov
 (5): unusual need for unquestioning adherence to political decision already made
 (6): potentiality of embarrassment from multifarious pronouncements by various depts on 1 Q
 Baker v. Carr: set out 6 tests
 F: Supposed to redraw districts each 10 years. Sec of state didn’t. π uses equal protection
instead of “guarantee clause”
 Rule: Guaranty clause may NOT be used as source of const standard for invalidating state
action, BUT an equal protect claim may be so used where it does not implicate the political Q
 Goldwater v. Carter
 F: in conjunct w normalizing US relations w mainland Chinese gov, prez Carter terminated
US treaty w Taiwan
 Rule: senate’s role in terminating treaties is nonjusticiable political Q
 Zivotofsky v. Clinton
 Rule: NO policy underlying the political Q doctrine suggests that cong or exec can decide the
Const of a statute; that is decision for the cts
 Nixon v. US
 F: a fed judge, impeached by senate, challenged the const of senate’s impeachment proced
 Rule: jud may NOT review senate’s trial of impeached official
o 2 safeguards that make this check on judiciary valid:
 (1): HoR accuses and Senate convicts or acquits
 (2): 2/3 supermajority needed in each house of cong
Legislature
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Limited to enumerated powers
o Vs. states = Plenary power (power unless prohibition)
o Fed law supreme = supremacy clause
o 10th A: powers not delegated to US by Const nor prohib by it to states, remains to the states or ppl
o 11th A: enumerated powers in Const are not an exhaustive list
o Cong’s powers:
 Express powers: those found in Const: “the ends”
 What exactly is “necessary and proper”? (relationship btwn means and ends)
 Implied powers: that which is needed to exercise expressed powers: “the means”
McCulloch v. Maryland: generally
o F: MD (π) attempted to impose tax on fed bank. Bank’s cashier, McCulloch (∆) refused to pay the tax. π sued
∆, arg that: (1) estab of bank is unconst, and (2) bank may be forced to pay state taxes
o Does Cong have Power to create bank?
 Historical/Doctrinal: Prec: Had one before, despite some ppl who didn’t want it.
 Structural: The legis of Union alone can be trusted by the ppl with power of controlling measures
which concern all, in the confidence that it will not be abused
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Prudential: Cong needs these federal banks in states to establish public credit and to pay debts incurred
in far away places.
 Supremacy Clause permits cong to make all laws which are necessary and proper for carrying
into execution the foregoing powers.
 Express: Tax, borrow $, raise army etc.  Needs a bank
 Textual: Necessary/Propper = implied powers
 Necessary = convenient. Qualified term, i.e. “absolutely necessary”
o Rule: under N&P clause, cong may enact legis so long as its ends are legit under Const and legis is appropriate
and plainly adapted to those ends
Commerce Clause
o Pre-1937: narrow reading of Const
 Limit Definition of Commerce
 No manufacturing, production, or mining!
 Limit Definition of Interstate/Among the States
 Direct effect on interstate. Stops @ end of stream of commerce
 Schechter Poultry Corp. v. US
o F: cong enacted law governing wages, working conds, and prices for poultry
transported in interstate comm. Wholesalers that purch chxs after they’ve arrived instate challenged law as unconst
o Rule: once goods that have traveled in interstate comm are sold/disposed of in state
of final destination, they are NO longer in interstate comm and NOT subject to fed
law
 “Stream of Commerce” – Distinctions btwn interstates/intrastate parts of
companies
 Hammer v. Dagenhart: 10th A, trad state police power
o F: father wanting to put 2 minor children to work is suing on ground that cong use of
comm power to reg child labor in states by blocking interstate transport of childmade goods is unconst
o Rule: comm power does NOT allow cong to reg in areas trad left up to states’ police
power: ex. Child labor laws;
o New Deal Era (1937-1995): Broad Deference
 Principles:
 (1): substantial effect: NLRB Jones
o OLD: direct effect
 (2): reg private individ behav if “cumulative effect”
o Wickard wheat, Gonzal Raich marijuana
 (3): ct deferred substant to fact finding in defining “interstate comm” and scope of comm
o Heat of ATL (rational basis), McClung
 Manufacture IS Comm
 NLRB v. Jones & Laughlin Steel
o F: steel corp whose ops span nation is being sued by gov for violating national labor
relations act for committing unfair labor practices
o Rule: cong power to reg interstate comm extends to reg of intrastate acts that may
burden or obstruct interstate comm
 Policy: comm among states: “race to the bottom”
 Dec. in power of 10th A
 US v. Darby
o F: Fair Labor Standards Act: prohib interstate comm if employees don’t get min
wage; lumber comp violated fed min wage/max hr laws
o Rule: cong HAS auth, under CC, to excl any article from interstate comm, in
judgement that they are injurious to public health, morals, or welfare
 Substantial Effect in the aggregate on interstate comm
 Wickard v. Filburn: wheat
o F: π exceeded his allotted quota for wheat product, excess amt used for his own
personal consumpt. π fined by gov and seeks to have quota ruled unconst.
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Rule: cong comm auth extends to all acts having a substant effect on interstate
comm, incl those that do not have a substant effect individ, but do when judged by
their national aggregate effects
Civil Rights
 Heart of Atlanta Motel v. US
o Segregated Hotel  Civ Rights Act  CC
o Rule: Power to reg local acts, which might have substant and harmful effect on
interstate comm
 Katzenbach v. McClung
o Segregated Restaurant (less effect than motel)
o Rule: cong comm auth extends to any public comm estab selling good that have
moved in interstate comm and/or serving interstate travelers
 Federal Regulations
 Hodel v. Indiana: strip mining
o Env. Law (regulatory) = effect on commerce
 Criminal Law
 Perez v. US: loan sharks
o Criminal Law = commerce (effect on commerce)
o Rule: (rational basis) (Standard of Review): substantial effect
 10th A
 National League of Cities v. Usery
o F: an amend to fair labor standards act extended wage and hr reqs to state employees.
States seeking to have regs applied to be unconst
o Rule: comm clause does NOT empower cong to reg states of local govs in their
integral gov functions
 Intrusion into state power  Diff than Darby
 10th A = something diff (State sovereignty)
 Garcia v. SA Transit
o F: app of fair labor stands act to city’s mass transit syst fuels re-visitation of NLC v.
Usery
o Rule: cong HAS full auth under CC to reg trad or core functs of state and local govs
not w standing 10th A
 Usery overruled: generally applicable laws on state and local employers
Lopez Era, current era (1995-): Narrowing comm power; revival of 10th A as constraint
 US v. Lopez
 F: 12th-grade student was convicted of violating gun free school zones act of 1990, which
makes it fed offence to possess a gun near a school
o Gov arg: Edu = Comm (Substantial effects)
 Rule: cong auth to reg pursuant to CC extends only to those acts that rationally implicate:
o (1): channels of interstate comm
 Anything upon which or through which interstate comm conducted
o (2): instrumentalities of interstate comm
 Anything in which interstate comm is conducted
o (3): activities having substant effect upon interstate comm (4 considerations):
 Reg activities commercial in nature
 Jurisdictional element
 Phrase that connected reg act to interstate comm: exist of element
alone not conclusory
 Reas found reg act substant affects interstate comm (rational basis)
 Link btwn reg act and interstate comm is too attenuated
 US v. Morrison
 F: Woman raped by Virginia Tech football players, no criminal charges, still playing football.
Sues under violence against women act (civil remedy for gender motivated crime)
 Rule: cong may NOT, pursuant to CC, reg a local act solely on basis that is has substant
effect on interstate comm when viewed in its nationwide aggregate: too attenuated
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Jurisdictional element must:
 Limit stat’s reach to conduct which has “explicit connection w or effect on
interstate comm” OR
 Estab that stat is in “pursuance of cong’s power to reg interstate comm”
Pierce
 Rule: road safety = Channels of interstate commerce
 Gonzales v. Raich
 F: fed vs. state laws on Marijuana. Not selling it. Using for own use.
 Rule: cong may reg intrastate act if there is rational basis for concl that act may have substant
effect on interstate comm
o Prohibition  ^ Market ~~Economic Activity?
 10th A
o Cong cannot commandeer state legis
 New York v. US
 F: cong legis req states to either provide for radioactive waste
disposal or take title to waste generated w in borders. Legis
challenged as unconst exercise of fed power over states
 Rule: cong does NOT have auth to commandeer state govs by
forcing them to implement partic reg
o Distinct btwn not being able to reg a state, but being able
to reg ppl
o “Commandeering State Government”
 Although it is interstate commerce, violates 10th
 State has right not to purch something
o Cong cannot “impress” state executive
 Printz v. US
 F: Brady Act – Fed regMandated background check for
handguns. Req state police to do background check
 Rule: cong does NOT have auth to compel states to enact, enforce,
or administer fed reg progs, and cannot circumvent this prohib by
conscripting state officials directly
o CANNOT: “Conscript state executives into service”
For Test: Rule
 History back and forth.
 Now: Lopez: Interstate Comm=
 Channels
 Instrumentalities  
 Economic Activity, when taken in the aggregate, has a substant effect on interstate comm
o Comes from
 Econ Activity – Lopez, Morrison
 Effect - NLRB, Darby (manufacturing  commerce)
 In the Aggregate – Wickard
 Can’t be inactivity – NFIB
o Pro-Forma Reqs (Morrison)
 Cong has to put jurisdictional element in stat limiting act to interstate comm
 Cong has to put studies in to show impact on interstate comm
o McCulloch (effect on comm) N&P. Implied Powers
o Manufacturing  
 Schechter Poultry – Mfg NOT I/C. Steam of Comm. No substant effect on
interstate comm
 Wickard – Individ growing wheat. Yes, econ activity in aggregate. Yes,
substant effect on interstate comm
 Raich – Individ Growing pot. Yes econ activity, b/c interstate mkt.
 N.L.R.B. – Labor. Mfg = I/C. Econ Activity. Substant effect on I/C.
o Civil Rights   (b/c canonical)
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Morrison – VAWA. Not econ Activity
Heart of ATL– Hotel= Econactivity b/c travelers. Yes, effect on interstate
comm
 McClung – Restaurant= Yes I/C. Yes econ activity and effect. Very
expansive: There may be ppl who come from out of state who can’t eat here
b/c segregated.
Unless violates state sovereignty (X)  
o Hammer – Child Labor. Trad State Power. Not Interstate Comm.
o Usery – FLSA = internal gov funct. State Power. Not Interstate Comm.
o Printz – Brady Act = State Police Power. Not interstate Comm. “Conscripting state
executives into service”
o NY v US – Waste Reg can’t be forced by cong (monetary incentives, access
incentives, “take title”). State Power. Not Interstate Comm. “Commandeering State
Government”
o Garcia – Overrules Usery. FLSA can be reg. Yes Interstate Comm.
o Darby – Cong can excl any article from interstate comm if injured public health,
morals or welfare. Yes Interstate Comm.
Taxing/Spending Power
o Taxing and spending are OK when:
 For the general welfare
 Give states a meaningful choice – not overly coercive
 W holding of money is from a program that is related to a fed statute
o Tax
 Limited only to general welfare
 US v. Butler
 F: cong attempt to reg quantity of local ag product through use of taxing and spending
powers. Reg is challenged as outside cong enumerated powers.
 Rule: cong may NOT use tax/spend powers to force compliance in area where Const does not
give cong indep power to regulate
o Ag Adj Act falls under 10th A: tax power is limited only by general welfare
o Modern Era
 Sabri v. US
 F: Sabri (∆) challenged fed anti-bribery state and facially unconst
 Rule: cong has power to spend for gen welfare and may enact, under N&P clause, any prov
rationally related to carrying out its spending powers for promotion of gen welfare
o Bribes to local officials rationally related to fed monies and gen welfare
o Spending
 Can’t be “Coercive.” State has to have “real choice”
 Relation btwn spending and conduct cong targets
 South Dakota v. Dole
 F: SD challenges fed law w holding 5% of fed hwy funds from any state w drinking age limit
less than 21yo
 Rule: cong may w hold $ from states in order to achieve a cong objective
 Dole: 4 criteria for spending power analysis:
 Purpose to serve general welfare
 Clear stmt of the cond
 Germaneness: relationship btwn cond and purp of spending
 No inducement to states to violate any indep protected Const right
NFIB v. Seblius
o Limits comm power to activity (can’t be inactivity)
 Not interstate comm, bc targets ppl who have decided to not be involved … Inactivity (Doctrinal)
 Individ Mandate
o Expands tax power to incl this type of penalty
 Even though cong called it a penalty, Const interpret should be read broadly to find any way to
construe it as a tax.
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Medicaid Expansion
 Medicaid expansion is coercive, bc not complying would cut 22% of state budget. Too
dependent. More than 5% of federal hwy bill (Dole)
 Ct divides Medicaid into old Medicaid and new expanded Medicaid.
o If you want new prog, you will get more $, but fed can’t coerce states by taking away
if non-compliance.
US v. Comstock
o F: civil commitment of prisoners
o Rule: 5 consids for finding that Cong has power to enact under N&P Clause:
 (1) N&P grants cong broad auth to enact legis that is convenient or useful
 Enact law that is rationally related to implementation of Const enumerated power
 (2) the stat is modest add to fed stats already in exist
 (3) extension of stat is reas (bc fed gov is the custodian if its prisoners)
 (4) state does NOT violate 10th A by usurping powers reserved to states
 (5) stat is suff related to enumerated powers (article 1) and does NOT give cong general police powers
Post-Civil War Amendment Powers
 US v. Morrison: 14th A
 F: violence against women act
 Rule: cong auth to reg under 14th A extends only to state act, NOT act of private individs;
VAWA = privation action: unconst
o State action: violation of 10th A
o Private individ action: violation of 14th A
o Katzenbach v. Morgan
 F: NY voters challenge fed law prohib NY from enforcing its english literacy voting req
 Rule: §5 of 14th A: auth cong to enact remedial legis prohib enforcement of state laws found to
abrogate civil rights, even though such state laws are not unconst: Bc- (1) Remedy for discrim, remedial law
 (2) Cong has right to determ meaning of 14th A; similar to N&P
o Congress can only use §5 to enforce what Ct says violates 14th. Congress can’t say what violates 14th.
 Boerne v. Flores
 F: Flores (π), after city of Boerne (∆), denied permit to expand the church, is suing under
religious freedom restoration act (RFRA)
 Rule: §5 of 14th A: cong may enact only legis that utilizes congruent and proportional means
for achieving that legis purpose in exercising its remedial and preventative power
o RFRA Unconstitutional bc:
 Impermissibly expanded scope of rights
 Not proportionate or congruent as preventative or remedial measure
o Takeaway:
 Civil rights enforcement vs. sep of powers
 Current view: City of Boerne: protects role of ct as auth interpreter of meaning of const
 Fits in w: vision of limited fed gov/legis branch [Lopez]
 Restricts reach of cong to address 14th A violations
 SC restrains coord fed legis branch and simultaneously protects states
 Current ct: sect 5 is limited to remedies “proportionate and congruent” to remedying or
preventing state violations of ct declared rights
Executive
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“Inherent” Prez Power
o Jackson 3-Prong Test
 1) Acts auth by cong – cong delegates auth to prez: seizure executed by prez pursuant to act of cong
 Supported by strongest of presumptions and widest latitude of judicial interpretation
 2) Zone of twilight – prez acts w in own indep auth, but cong has auth too
 Zone of twilight where both cong and prez have concurrent auth
 3) Acts incompatible w cong– acts contrary to express and implied powers of cong
 Only way for this to be valid would be by disabling cong from acting on subject
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Youngstown Sheet & Tube v. Sawyer (Steel Seizure)
 F: in order to prevent (feared) interruption of supplies to troops in Korea, prez Truman on the
eve of steelworkers’ strike orders Sec of comm to take possession of nation’s largest steel
mills and keep them operating
 Rule: Prez does NOT have inherent auth to order involuntary surrender of private prop to gov
o Textua: Doesn’t say Prez can do this. Only can if: cong delegates power. Not war: a
labor dispute. = Legis Power
o Jackson Prong 3: cong prev disagreed
o Executive Privilege
 Not in Const.  Exists bc national security and candor of advisors
 Conditional: NOT Absolute
 (1) Related to Job as President
 (2) Criminal/Civil Distinction: different if criminal conduct
 US v. Nixon
o F: Cong subpoena Nixon for oval office tapes and Nixon claims exec priv
o Rule: conversations btwn prez and his advisors are gen priv, but priv is not absolute
o Can Congress Increase Executive Power?
 Legislature cannot delegate authority if it goes against Constitutional structure
 Line-item veto = unconstitutional
 Clinton v. NY
o Line-item veto – Distinct from regular veto, bc can veto cert elements of law: here
Clinton used line item veto to cancel 2 items of cong spending
o Rule: Line-item veto is unconst bc gives prez legis power
Administrative State
o Exec Agencies
 Seems to unite 3 gov powers (Regs, Enforcement, Quasi-Judiciary).  No Checks/balances
o Chevron deference: cts should defer to agency interpretations of such stats unless they are unreas
o Nondelegation doctrine: cong cannot give executive unfettered discretion
o Non-Delegation Doctrine
 Existed pre-New Deal Revolution
 A.L.A. Schechter v. U.S.
o F: cong delegated its auth to exec agency, which created crim regs that Schechter
was indicted for violating
o Rule: cong may NOT delegate law making auth to exec agency w out prescribing
specific standards for exercise of that auth
 Cong delegation to exec must: state nature and extent of guidelines or
limits on prez discretion
 Panama Refining v. Ryan
o F: cong delegated to prez the power to restrict or prohib the interstate and foreign
transport of oil
o Rule: it is violation of sep of powers for cong to delegate law-making auth to prez w
out imposing standards or rules limiting that auth
 Cong failed to articulate any standard governing the circs under which
oil allowed or prohib: too much discretion to prez
 Modern delegation: “intelligible principle”
 Whitman v. American Trucking Assn.
o F: Clean Air Act delegates auth to EPA to test Air Quality Standards. Trucking Assn
said this was unlawful delegation of legis power.
o Rule: any cong auth of decision making auth must estab an intelligible principle to
which person or body auth to act is directed to conform.
 Ct focus: whether cong has artic “intelligible principle” to guide agency in
exercise of its discretion
 For valid delegation today: cong must do 3 things:
o (1): delineate the “gen policy” to be executed
o (2): designate the agency that is expected to execute the policy
11
o
o
o
o (3): specify the limits of the delegated auth
Legislative Veto and its Demise
 Cong would write into stat ability for cong or a subcommittee to overturn agency’s action
 After 1937 as agencies increased, cong passed most laws w legis veto provisions
 Until 1983: Demise of Legis Veto
 INS v. Chadha
o F: pursuant to stat allowing for 1-houe “veto” of admin action, HoR passed a
resolution overriding the AG’s decision to allow a deportable alien to remain in US
o Rule: legis action is not legit unless there is bicameral approval and presentment to
prez; Legis veto = Unconst
 Prudential – doesn’t matter that it may be more efficient
 Structural: Is law making, bc
 Different than prez veto, bc can’t be overridden
 Changes rights = legis by nature
 Removing auth is the same as delegating it = legis
 Since it is law making. Const reqs:
o Presentment (present law to prez for signature)
o Bicameralism (passed in both houses)
Appointment Power
 Prez has right to appoint, but Senate has confirmation power
 Morrison v. Olson
 F: Appointments Clause: Prez has power to appoint superior officers, but cong has power to
vest power to appoint inferior officers in Prez, Cts, or heads of Depts
o AG appointed special investigator = Constitutional, bc inferior officer
 Rule: since indep counsel is an inferior officer, law giving judges auth to appoint indep
counsel did NOT violate Const
o Test for inferior officer (factors)
 Subject to removal
 Limited duties
 Limited Juris
 Limited Tenure
 NLRB v. Noel Canning:
 F: 3-day break btwn pro forma session, prez uses recess appointments clause to appoint 3
individs
 Youngstown (prong 2)
 Rule: recess must be “sufficiently long” to use this clause; here: unconst
o (1): recess incl both inter session and intra session
o (2): vacancies that happen during recess and vacancies that occur before recess but
remain vacant during recess are vulnerable to recess appointments made by prez
o (3): any breaks less than 10 days is too short to make a recess appointment
Removal Power
 No provision of Const concerning prez’s auth to remove exec branch officers
 Bowsher v. Synar
 Rule: cong cannot reserve for itself power of removal of an officer charged w execution of
the law except by impeachment
o Exception: cong could remove through joint resolution based upon:
 (1) permanent disability
 (2) inefficiency
 (3) neglect of duty
 (4) malfeasance
 (5) felony or conduct involving moral turpitude
 Morrison v. Olson
 Rule: there is no interference of prez’s const-granted mandate to take care that the laws be
faithfully executed when prez retains ample auth to act through AG or other subordinate
 Free Enterprise Fund v. Public Comp Accounting Oversight
12

-
-
Rule: bc Article 2 makes a single prez responsible for actions of exec branch, prez may not
delegate ultimate responsibility or active oblig to supervise that goes w it
Separation of Powers and Foreign Policy
o 3 issues:
 (1): are foreign policy and domestic affairs diff under Const? Does prez have more inherent auth
regarding foreign policy than as to domestic affairs?
 US v. Curtiss-Wright
o Rule: prez is sole organ of nation in external relations, sole rep w foreign nations
 This power is plenary and excl
 Zivotofsky v. Kerry
o Rule: Article 2 of Const: grants prez excl auth to formally recog foreign sovereign
through exec power that cong may NOT contradict via stat
o (1): Const assigns prez and NOT cong the means to effect recog of his own initiative
o (2): prez’s role in recog process if both central and exclusive
 Cong may NOT command prez to state recog position inconsistent w prez’s
own
 (2): what are the Const limits on agreements w foreign nations? In partic, may prez use exec
agreements rather than treaties?
 Treaty: agreement btwn US and foreign country that is negotiated by prez and effective when
ratified by senate
 Exec agreement: agreement btwn US and foreign country that is effective when signed by
prez and head of another gov
  treaty is law of land under supremacy clause of Const
 Dames & Moore v. Regan
o Rule: when settlement of claims has been determ to be necessary incident to
resolution of major foreign policy dispute btwn US and another country: concl that
cong acquiesced in prez’s action
 Ct could NOT say that prez lacks power to settle such claims
 (3): war powers
War Power
o Pre-9/11 Ct deferred to Leg/Exec on war issues.
o Post 9/11 War on Terrorism
 Detentions
 Hamdi v. Rumsfeld
o F: Hamdi was detained indefinitely as enemy combatant for allegedly forming an
alliance w Taliban while in Afghanistan
o Rule: citizen-detainee seeking to challenge classification as enemy combatant must
have: Due Process:
 Notice of why detained
 Fair Opp to rebut in front of neutral decision maker
 Hamdi = American citizen picked up fighting alongside TALIBAN 
“Enemy Combatant”  Gitmo  Military Tribunal  US prison
o Plurality says Cong has delegated appropriate auth in Authorization to Use Military
Force act (AUMF)
 Boumedine v. Bush
o F: Boumediene petitioned for a writ of habeas corpus to challenge his detention
o Rule: if priv of HC is to be denied, cong must act in accord w reqs of suspension
clause
 Unconst to Suspend: Military commissions act: operates as unconst
suspension of writ of HC
o TEST: exec auth in times of war:
 Cong check on prez:
 Text – is there inherent exec power? Or limited explicit powers?
o Cong power to declare wars, raise and support armies, appropriate $
o Prez commander in chief, power to make treaties
13

-
Originalism – what did founders intend
o Hamilton: strong prez (inherent exec power)
o Madison: weak prez (NO inherent exec power)
 Structural – checks and balances
 Prez’s strongest args:
 Pragmatism – some powers are N&P for modern prez to secure the nation
o Is inherent prez power stronger in times of emergency?
 Custom and practice – what has been the power of the prez to act in times of emergency/war?
Checks on President
o Suing and Prosecuting
 If event happens during official prez bus, then the prez has absolute privilege/immunity
 Richard Nixon v. Fitzgerald
 F: Fitz fired for talking (whistleblowing); sues prez for improper discharge
 Rule: Absolute Immunity for Official Acts Done in Office
o Policy: in view of visibility of prez’s office and effect of his actions on countless
ppl, prez would be easily identifiable target for suits for civil damages
 Clinton v. Jones
 F: sexual harassment suit from when prez was AK gov
 Rule: NO immunity for unofficial acts before becoming prez
o Impeachment
 House impeaches (indicts), Senate removes (jury)
o Criminal Suits
 Can’t be charged while in office
 Can impeach, remove and then tried
Federalism
-
Federal structure  certain state laws that cannot exist/are unconstitutional
o Reasons for having smaller, more localized govs:
 States act as social laboratories
 To be closer to ppl being governed
- FOR EXAM (to figure out federalism problems):
o Start w: is there a fed stat on point?
o If yes: is it preemption?
 Express?
 Implied?
 Conflict
 Field
 Impediment to fed gov purpose
o If no: DCC?
 Discrim?
 Express
 Effect
 Purpose
 If yes: then heightened scrutiny (important purpose, no nondiscrim alt)
 If no: them figure out clearly stated burden vs local int
o Privileges and immunities clause:
 Fundamental rights of person (not corp or comm)?
 State Const right?
 Right to make a living?
 If yes: then strict scrutiny (similar to heightened scrutiny)
 If no: then there is no coa
A) Preemption
- Acts of state legis that interfere w or are contrary to laws of cong are to be invalidated bc in every case, act of cong is
supreme; law of state must yield
1) Express Preemption – Federal Law explicitly preempts specific state laws
14
a) Lorillard v. Reilly
1. F: MA places limits on tobacco advertising. Fed law already exists that restricts tobacco
advertising w/ express preemption saying states cannot go beyond its restrictions
2. Rule: when cong expressly preempts state or local action on a specified matter, any conflicting
state reg must yield to fed law
a. Test to determine EP:
i. Language of Provision
ii. Congressional Intent or Purpose
2) Implied Preemption: opposite of express; 3 kinds
a) Conflict Preemption – compliance w fed and state law is phys impossible
1. FL Avocado Growers v. Paul
a. F: FL avocado producer challenged Const of CA stat that was more restrictive than fed
regs
b. Rule: when both state and fed reg can be satisfied, fed law does NOT preempt state reg;
if Fed law sets a req floor, states can raise standards
b) Impediment – state law impedes achievement of fed objective
1. PG&E v. State Energy Resources
a. F: CA: no new nuclear power plants unless demonstrated solution to waste. Fed Gov’t
promoting nuclear energy with minimum safety regulations.
b. Rule: state law is preempted if it stands as an obstacle to the accomplishment of the full
purposes and objectives of cong; however, the ct will not interfere where there is
permissible basis for state law
i. Here: NO preemption
c) Field Preemption – Cong occupies field  scheme of fed reg
1. AZ v. US
a. Rule: state law that addresses immigration and alien registration is preempted where
cong has completely occupied the entire field
i. Fed gov occupies field or has “pervasive regulatory scheme”
3) CASE ANALYSIS: look @ overarching goals of fed enactment – then to specific stat lang – then: lay them side by
side w state reg to see if there is any preemption
B) Dormant Commerce Clause (No Fed Law)
1) Principles that state/local laws are unconst if they place undue burden on interstate comm:
a) Balance: fed econ int v. state power to protect health, safety, and welfare of resids
b) Historical theory: framers building nation; intended to prevent protectionist state laws that would
interfere w comm
c) Econ theory: national economy better off if state laws don’t impede flow of interstate comm
d) Political theory: states and citizens not to be harmed by laws in other states where they lack political rep
2) TEST: modern doctrine (2 Qs): essential Q: is there protectionist purpose?
a) Is the law discriminatory? Does the law treat out-of-staters diff than in-staters?
1. Look @ if it is expressed as such in the law
2. Look @ if purpose or effect of law is discrim
b) If yes, then:
1. Important int?
2. Adequate nondiscrim
c) If no, then:
1. Balance – “burden clearly excessive relative to local int”
3) EXCEPTIONS:
a) Cong approves of state law
b) Mkt participation exception: ie. In-state tuition is discrim against out of staters, but this exception covers
it bc the state itself is in bus of edu: state acting as mkt participant
4) THEMES:
a) Respect for state power to reg in cert areas
b) Rejection of states curtailing comm
c) Recog that economic unit is the nation
d) Prevention of economic isolation: danger of each state having individ barriers
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5) Contemporary Test: Balancing Approach
a) Distinct btwn discrim purpose and effect, discrim impact of state laws on comm, level of scrutiny: 3
concepts:
1. Facially discrim: strictest scrutiny
a. Law must be necessary to achieve: important purpose
2. Facially neutral w protectionist in purpose
a. Stricken as: impermissibly burdening interstate comm
3. Facially neutral w disproportionate adverse effect
a. Intermediate scrutiny
b. PIKE test: weigh burdens on interstate comm against benefits to state
b) States can Regulate Trucks (Pre Fed Highway Act)
1. South Carolina State Highway v. Barnwell
a. F: SC prohibits big fat trucks on state hwys, Barnwell challenges as unconst
b. Rule: state law placing fat truck limitats on trucks op on state hwys does NOT impose an
unconst burden on interstate comm so as to violate CC
i. Non-discrim  applies to trucks from all states, not just out of states
ii. Const b/c state sovereignty > Free Mkt. (Non-discrim and state power on hwy)
6) Determining Discriminatory Law
a) Facially Discriminatory Laws
1. City of Philadelphia v. NJ
a. F: SC held that NJ stat, which prohib other states from disposing of solid and liquid waste
in NJ, violated the CC
b. Rule: state law that reg commercial activity may NOT, on their face or in effect, favor instate ints over out-of-state ints
i. No Fed Law  DCC
ii. Facially discrim outweighing state sovereignty
iii. Virtually Per Se Unconst (Economic)
2. Carbone v. Clarkstown, NY
a. F: local ord, which req all waste to be processed @ local waste transfer facility before
leaving town, was challenged as violating CC
b. Rule: state and local govs may NOT enact laws that favor local enterprise by prohib
patronage of out-of-state competitors of their facilities
i. Discrim bc no one else can process the waste
b) Facially Neutral Laws  Purpose OR Effect
1. Purpose – Hard to Determine
a. Legis History
2. Effect
a. Hunt v. Washington Apple
i. F: NC reqs no grade other than USADA; WA gives its own sticker as well.
1. Facially Neutral: doesn’t specify any state. WA would have to take of
WA sticker on all merchandise.
ii. Rule: facially neutral state law is unconst and violates the CC if it has a discrim
effect on interstate comm
1. Once Discrim: Burden is on state to show 2 factors to uphold law:
a. Local Benefit
b. No non-discrim alternatives
b. Exxon v. Governor of Maryland
i. Rule: under CC, a state may enact legis that creates hardships for some
interstate comps op in state, provided that stat does not discrim against or unduly
burden interstate comm
c. West Lynn Creamery v. Healy
i. Rule: reg violates CC if combo of a tax and subsidy discrims against interstate
comm, even if each component would be Const if separated
d. MN v. Clover Leaf Creamery
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i. Rule: state law that has practical effect of discrim against interstate comm will
not be struck down unless:
1. Burden it places on interstate comm is clearly excessive in relation to
putative local benefits it confers
7) Analysis for Discriminatory Law
a) Dean Milk Co v. Madison, WI
1. F: dean milk, upon being denied license to sell milk in Madison bc its pasteurization plants were
more than 5mi away, challenged city’s milk plant ord on ground that violated CC
2. Rule: where reasonable and adequate alts are avail: local health ord that places discrim burden
on interstate comm violates CC
b) Maine v. Taylor & US
1. F: ME crime to import live baitfish
a. Discrim on its face bc closes off ME mkt to out of state fishermen
2. Rule: state stat that affirm discrims against interstate comm passes vigorous strict scrutiny test
where it attempts to prohit sig damage to state’s environmental well-being
a. State Has Burden to Prove
i. Legitimate Local Purpose: Stopping disease from outside fish
ii. Lack of reasonable non-discriminatory alternative: Not reas to req state to
search all fish imports etc.
3. Only facially discrim case that is Const
a.  Facial Discrim ≠ “per se” invalid
8) Analysis for Non-Discriminatory Law
a) Pike v. Bruce Church
1. F: AZ requires packing requirements for cantaloupes
2. Rule: where state stat regs even-handedly to effectuate a legit local pub int, and its effect on
interstate comm are only incidental, it will be upheld unless the burden imposed on such
comm is clearly excessive in relation to putative local benefits
a. Non-Discrim
i. Burden on Comm has to be clearly excessive relative to local benefit to
overturn: AZ local benefit not strong – possible increase in safety/value of AZ
cantaloupes
1. Huge burden for small group of ppl who grow in AZ and package out
of state
2. Burden on Comm > Local Benefit
b) Bibb v. Navajo Freight Lines: Bibb balancing test
1. F: IL mud flap req law for trucks
2. Rule: in determ whether a state’s nondiscrim hwy safety law violates the DCC, ct will look at:
a. (1): importance of state int: pub safety is important int
b. (2): degree of burden: substant and time consuming
c. (3): avail of less burdensome alt to achieve state int: special mud flaps have no
advantages and created extra hazards
c) Consolidated Freight v. Kassel
1. F: Iowa stat banning trucks more than 60ft in length from using state hwys challenged by π which
preferred 65ft trucks
2. Rule: although state regs concerning hwy safety carry a strong presumption of validity, if
furtherance of safety is marginal/illusory or burden on comm is substant, the regs will be declared
invalid under CC: apply Bibb balancing
9) Exceptions to Dormant Commerce Clause
a) Congressional Approval:
1. If Cong says OK for states to make rules
2. Western & Southern Life Ins v. State Board of CA
a. F: ins comp challenged state law that imposed a retaliatory tax on out-of-state insurers
b. Rule: cong, by its auth to reg comm among the several states, may give states power to
enact laws that restrict flow of interstate comm
b) Market Participant Exception
1. Reeves v. William Stake
17
F: SD builds cement plant; sell out of state; demand increases  cement shortage  SD
gives pref for in-state citizens.
b. Rule: States that are “mkt participants” in buying or selling of goods, as opposed to
“mkt regulators” are NOT bound by CC and may favor in-state ints
i. Discrim? Yes, favors only SD.
ii. Exception: b/c state acting as participant in mkt, NOT regulator
2. South Central Timber v. Dept. of Natural Resources of Alaska
a. F: Alaska imposed restrict on buyers of Alaska timber that req them to process timber in
AK before export
b. Rule: although state-owned bus may favor resid purchasers, they may NOT attach conds
to the sale of products that will burden interstate comm
C) Privileges & Immunities Clause (PI)
1) 2- part inquiry to determ if state has violated PI clause in reg of comm:
a) (1) does the ord burden one of those PI’s protected by the clause?
1. Hold: yes: bc interfered w employment
a. This is fundamental PI bearing upon vitality of nation as single entity
b) (2): is there substant reason to justify the diff in treatment btwn in-state and out of state resids?
2) Toomer v. Witsell
a) F: SC imposed higher fishing license fee on out-of-staters based on PI clause
b) Rule: in determ whether a state law violates the PI clause, ct must determ whether:
1. Law discrims against citizens of other states, and if so
2. Whether there is substant reason for discrim beyond mere fact that they are out-of-state citizens
a. Livelihood – Out of state can’t make a living
3) United Building & Construction v. Camden
a) F: muni ord which req 40% of employees working on city-funded projects be city residents
b) Rule: PI clause prevents states and cities from discrim against non-resids if:
1. (1): the discrim burdens a “fundamental” priv (incl: employment)
2. (2): there is NO “substant reason” for disparate treatment
4) Baldwin v. Montana
a) F: MT resids can hunting license for $4, Out of stater $151.
b) Rule: higher license fee for out-of-staters is const bc: recreational hunting is NOT a “fundamental
right” entitles to protect under PI clause
D) Justifications sufficient to permit discrimination
1) New Hampshire v. Piper
a) F: NH limits bar admission to NH Residents; Can’t practice law in NH unless live there
b) Rule: (1) opp to practice law is “fundamental right”, (2) there is not substantial reason for denying bar
admission in state to non-resids, (3) such discrim does NOT bear close relationship to state’s objectives
1. Ok to discrim if:
a. substantial reason for diff in treatment
b. discrim practiced against non-resids bears substant relation to state’s objective
a.
Substantive Due Process
-
I.
Economic Substantive Due Process
o Freedom of contract was main issue in substant due process. Q: does the state have police power enough to
regulate? What about health, safety, welfare, morals? (considerations)
Lochner Era
a. Lochner v. NY
i. F: owner of bakery charged w violating state law restrict number of hrs bakery employees could work
challenged law on due process grounds
ii. Rule: legis enacted using state’s police powers that interferes w an individ’s right to K must directly relate to
goal of protecting pub health or safety and must have appropriate and legit end
1. Freedom to K = basic fundamental right: Gov can’t interfere unless legit police purpose
2. Ct can scrutinize – has to be fair, reasonable, appropriate
b. Laws Protecting Unionizing
i. Coppage v. Kansas
18
1.
2.
c.
II.
F: employer convicted of violating state law that prohib conditioning employment on not joining a
union
Rule: freedom of K incl right to make Ks affecting personal employment w out arbitrary interference
by the state
a. Due process clause of 14th A: prevents state from making laws that prohib employment Ks
barring employees from joining a union
Min Wage Laws
i. Adkins v. Children’s Hospital
1. Rule: const for states to set min wage laws
d. Nebbia v. Ppl of NY
i. F: milk price regulations of state law
ii. Rule: due process clause of 14th A: does not prevent states from enacting econ policies to promote public good,
as long as those policies are not unreas or arbitrary
1. Generally: use of prop and making of Ks are normally matters of private and not public concern.
a. Exception: when situation becomes detrimental to community; state may reas be deemed to
promote public welfare, and to enforce that policy be legislation adapted to its purpose
End of Lochnerism (Switch in Time)
a. Minimum Wages for Women
i. West Coast Hotel v. Parish
1. F: employee sued employer to recover diff btwn her actual wages and min wage state law req that she
be paid
2. Rule: reg that is reas in relation to its subject and adopted in the ints of the community satisfies the due
process clause of 14th A
a. Ct not longer to protect freedom to K as fundamental right free from gov reg
b. US v. Carolene Products
i. F: “Adulturated Milk” – Mixing milk with oil to be cheaper
1. Not as good for you
2. Cong passed “Filled Milk Act” to prevent sale of adulterated milk in interstate comm
ii. Rule: when review legis, existence of facts supporting the legis is to be presumed and such legis shall not be
pronounced unconst unless it is of such character as to preclude the assumpt that it rests upon some rational
basis
1. Rational Basis Test
a. If legis has any rational reason  upheld
b. But maybe something stricter/won’t be so deferential if [bc can’t get remedy through
legis/political process]
i. Fundamental rights – specific classes of ppl
ii. Political Process (conflict of int) – yes, ppl can speak through the ballot box, but
when machine is broken, cts may step in to prevent injustice
iii. Prejudice against discrete and insular minorities – stands for proposition that
minorities need to be protected
c. Williamson v. Lee Optical
i. F: optician brought suit to have law prohib him from dispensing lenses or fitting lenses in frames w out
prescript from a licensed ophthalmologist or optometrist and to enjoin state officials from enforcing the law
ii. Rule: economic legis will be upheld so long as there is any conceivable justification for it, ie. Rational Basis
1. So long as reviewing ct can glean some legit legis purp and law is reas: challenged law will be
upheld
d. BMW of N. America v. Gore
i. Rule: economic penalties that state inflicts on those who transgress its laws must be supported by state’s int in
protecting its own consumers and its own economy
e. State Farm Mutual Ins v. Campbell
i. Rule: due process clause of 14th A prohibs imposition of grossly excessive or arbitrary punishments on a
tortfeasor
f. Philip Morris USA v. Williams
i. Rule: juries may NOT base puni damages awards on their desire to punish a ∆ for harming persons not before
the ct bc such awards violate the due process clause of the 14 th A
g. Not raised in NFIB, bc rational basis test
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-
I.
II.
III.
IV.
The Contracts Clause
o “no state shall pass any law impairing the obligation of contracts”
 Rationale: not to allow debtors to run away from creditors w out consequences
 Does not apply to fed gov
TEST:
a. Modern test (rational basis) – when parties are private parties
i. Does the law substant interfere?
ii. Is there a significant and legit public purpose the law advances?
iii. Is there a reas relationship?
b. Struct scrutiny test – US Trust Co v. NJ – when states are party in the contract
i. Reasonable?
ii. Necessary?
a. Is the law essential?
b. Are there alt means of achieving the state’s goal?
c. Factors to consider:
i. Emergency? If you, then this is a power the state must already have.
ii. Is there a legitimate end?
iii. Are there reasonable conditions?
iv. Is the law temporary in nature?
Home Building & Loan Ass’n v. Blaisdell
a. Rule: in times of economic emergency or other exigent circumstances, states may impose increased limits on
freedom to contract if those limitations help address the emergency
Energy Reserves Group v. Kansas Power & Light
a. Rule: state may reg the contractual rights of bus’s in intrastate comm when those regs are based on sig and legit
state ints
US Trust co. v. NJ
a. Rule: impairments of a contract btwn a state and private bondholders may only be upheld if it is both reasonable and
necessary to serve an important public purpose