
Judicial Review
o A) Background
 Marbury v. Madison
 Rule:
o The Supreme Court of the United States has the authority to review laws and
legislative acts to determine whether they comply with the United States
Constitution.
o B) Introduction
 Interpretation
 Approaches:
o 1) original intent
 Looks to the direct text of the constitution or what can be clearly
implied from the framers intent when the constitution was written
o 2) modified/abstract original intent
 piece by piece interpretation of how to apply constitution
o 3) original meaning
 Not getting inside mind of framers, but instead get into meaning of
constitution on the ground when it was enacted
o 4) tradition
 Looks beyond courts original understanding of rights and looks to
practice
o 5) process-based theory
 Look to every advancement in process that has occurred and take that
into consideration
o 6) Aspirationalism
 Look to the aspirations of the society as a whole
 Basis of interpretation:
o Constitutional
 Amendment to constitution only way to override
o Prudential
 Congress can override with statutory legislation
 Policy Considerations
 Constitutional Avoidance  only address constitutional concern if no other way
 Advisory Opinoins:
o Must be an actual dispute with adverse parties
o Must have an effect on controversy
 Constitutional Standing
o Allen v. Wright
 To have standing to bring a lawsuit, plaintiffs must sufficiently allege
that they have personally suffered a distinct injury, and the chain of
causation linking that injury to the actions of a defendant must not be
attenuated.
o C) Standing
 Constitutional:
 Plaintiff suffers an Injury-in-fact
o Concrete/in-fact
o Segregate injury
o Cases:
 Lujan v. Defenders of Wildlife

o
Under Art III of the Constitution, a party does not have standing
to litigate a generalized grievance against the government in
federal court if she suffered no personal injury other than the
harm suffered by all citizens.
 Considered an aesthetic injury is an injury in fact but must
be imminent
 City of LA v. Lyons
 Lyons seeks injunction to end chokehold use by police
injunction refused on grounds that he is unlikely to suffer from
a subsequent chokehold
o To prove he is in imminent danger he would have to
show:
 1) all police officers always use chokeholds in
any situation they desire; or
 2) city authorized chokeholds to be used
 Mass v. EPA
 Direct cause by defendant; traceable
o Allen v. Wright
 Allen v. Wright
 To have standing to bring a lawsuit, plaintiffs must sufficiently
allege that they have personally suffered a distinct injury, and
the chain of causation linking that injury to the actions of a
defendant must not be attenuated.
o Mass v. EPA
 1) for standing to be appropriate, an actual case or controversy must be
present, which is characterized by a truly adversarial relationship.
 2) the Clean Air Act provides the EPA with the statutory authority to
regulate new motor-vehicle-emissions greenhouse gases as an “air
pollutant”
 Redressable by courts
o Warth v. Seldin
 Low income citizens seek injunction against multifamily home zoning
not permitted in Penfield NY
 Majority shows no redressability because even if zoning ordinance
wasn’t allowed, low-income persons would not likely be able to afford
to live there
 Removing ban on multifamily houses would still result in low
income persons being priced out of neighborhood
o EPA
 Prudential:
 Third-party standing
o Two exceptions:
 Third parties rights are affected by rights of injured party
 Genuine obstacles to third party asserting their rights
D) Ripeness
 Justiciability doctrine that regulates when a pre-enforcement challenge can be brought to
challenge in court
 Applies when specific enforcement can occur when speculation has been reduced by
knowing:
o
o
o
o
o
Parties involved
Actions in controversy
Location of action
E) Mootness
 1) Defined
 when standing was permissible but the cause of standing has been removed
o i.e. settlement, death, repeal of law, etc.
 2) Rationale
 Designed to prevent courts from issuing advisory opinions
 3) Exceptions
 A) capable of repetition/evade review
o Events unfold so quickly that adjudication cannot be completed before
resolution of event
 If reasonable expectation that problem would occur to the plaintiff,
then the case can proceed
 B) Voluntary cessation
o Allowed to proceed because alleged behavior may return
 C) Class Action
o As a representative of a class you must represent the interest of the class
 Must have standing at offset of case
 But case can proceed if and only if they had standing initially
and at least one member of the class still has proper standing
F) Political Questions
 Courts tend to abstain from deciding political interests because of other interests these cases
would be justiciable had there not been other branches of government that are better fit to
resolve the conflict as stated by the constitution
 Four rationales
o 1) courts need to step out of some disputes because some are so momentous,
so deeply affected by a human being that no judge can make quality, neutral,
decision making when it comes to rule of law.
o 2) legitimacy  court goes down the path of determining highly contentious
decisions that other branches have interest in
o 3) court doesn’t have experience in deciding such actions
o 4) too much of an interest to fairly adjudicate the dispute
 1) Historical Development
 Marbury
o Marshall difference between legal acts president is required to abide by and
discretionary political judgements based on policy
 Baker v. Carr
o Rule of Law:
 A challenge to malapportionment of state legislatures brought under
the Equal Protection Clause is not a political question and is thus
justiciable.
o Reasoning:
 Six part test to determine if case is non-justiciable (must be one):
 1) a textually demonstrable constitutional commitment of that
issue to another political branch;
 2) a lack of judicially discoverable and manageable standards for
resolving the issue;


3) an impossibility of deciding the issue without making an
initial policy determination of a kind not suitable for judicial
discretion;
 4) a lack of respect for the other branches of government in
undertaking independent resolution of the case;
 5) an unusual need for unquestioning adherence to a political
decision already made; or
 6) the potential for embarrassment for differing
pronouncements of the issue by different branches of
government.
 2) 5 categories of Political Question:
o A) Republican Guarantee Clause—Art 4 § 4
o B) Foreign Policy
o C) Qualified for Congress
o D) Impeachment Procedures
o E) Political Gerrymandering
Political Question Cases:
 Goldwater v. Carter
o President Carter rescinded US treaty with Taiwan as part of recognizing
Communist China; Goldwater said the Senate must rescind a treaty just as it
ratifies the making of a treaty
 This is political and nonjusticiable because it involves the authority of the
President in the conduct of the country’s foreign relations + extent to
which Senate is authorized to negate actions of President

Zivotofsky v. Clinton
o Statute provided that Americans born in Jerusalem may elect to have “Israel”
listed as place of birth on their passports, but State Dept. declined to follow that
law, citing policy of not taking position on status of Jerusalem
 Court framed this as deciding whether the statute is Constitutional –
decided that it is fully capable of determining that question. Political
question doctrine not implicated here; this is not the Court deciding
foreign policy but rather one’s right being enforced under the law

Executive Power
o A) Inherent Presidential Power:
 Youngstown:
 Black (majority): Affirmative Auth?
o Key objection to President’s action of seizing mills == President’s power must
arise from “affirmative authorization” – either by statutory or constitutional—
for a president to do something
 Absent either, the seizure is invalid
 President can only act on express powers
 Douglas: Usurp legitimate authority?
o It is within Congress’s power, not the President’s, to compensate for a “taking”
 Douglas is NOT saying there has to be affirmative/express power for the
President to act, but the President CANNOT usurp aurthority of another
branch
 Intermediate position less exacting than Black’s position
 Frankfurter/Jackson: Congress Disprove?
o Congress has already acting on this matter and decided not to give President
this power

o
o
o
Affirmative disapproval is required to stop a President from doing
something
 In the absence of express Congressional disapproval, the
President may act
 Fourth Model: National Emergencies
o Not from Youngstown 
 If there is a national emergency, the President can act as long as
President does not violate some express provision of Constitution
B) Executive Privilege
 Not absolute:
 Marbury set precedent of judiciary having access to material president claims privileged
o The court has a vested interest in ensuring the constitution is not violated in the
name of presidential privilege
 Exceptions to places where president can maintain privilege:
o 1) National security
o 2) Military interests
o 3) Diplomatic
 U.S. v. Richard M. Nixon, President of the US
o A presidential claim of privilege asserting only a generalized interest in
confidentiality is not sufficient to overcome the judicial interest in producing all
relevant evidence in a criminal case
 SCOTUS recognizes there is an executive privilege—but it has more to
do with a claim of military or diplomatic secrets
 When it comes to production of evidence in a criminal
proceeding, however, it is more important that President
produce the communication
C) Enlarging Executive Powe
 Line Item Veto
 Congress cannot delegate additional authority to the president
o Congress allowed for the line item veto no longer allowed
 Clinton v. City of New York
 Line-item veto is unconstitutional
o Even if congress and executive would like to re-allocate
power between them, constitution forbids such an act
D) Foreign Policy
 1) Inherent Presidential Power
 United States v. Curtiss-Wright Export Corporation
o An otherwise unconstitutional delegation of legislative power to the executive
may nevertheless be sustained on the ground that its exclusive goal is to provide
relief in a foreign conflict
 2) Treat-making/executive agreements
 Dames & Moore v. Regan, Secretary of the Treasury
o The President of the US has authority to settle judicial claims through an
executive order if the settlement of claims is necessary for the resolution of a
major foreign-policy dispute with another country and if Congress acquiesces in
the president’s action.
 Treaty must be submitted to senate for acquiescence
 Executive agreement exclusively through executives
o Rejection of originalism



3) War-Making
 A) Congress & Executive Powers
o Congress declare war and authorize treaties
o President commander in chief and forms treaties
 War Powers Resolution  50 USC CH. 33, p. 355
o Has not been constitutionally tested  cases typically dismissed on justiciability
issues
4) War Powers Resolved
 Constitutional
o Executive must inform president of military action within 48 hours
o President must order withdrawal of troops within 60 days unless congress
provides authority
 Enforceable
o Regularly ignore war powers act
o Congress can withhold funding to military
Federalism
o 1) Textual Basis
 Express:
 Art I § 8  all legislative power delegated to congress
 10th amendment  any power not given to congress is relegated to the states
 Implied:
 commerce clause
 2 questions:
 1) does congress have the authority under the constitution to legislate?
 2) if so, does the law violate another constitutional provision or doctrine?
o McCulloch v. Maryland
 Constitution specifically delegates to congress the power to tax and spend for the general
welfare, and to make such other laws as it deems necessary and proper to carry out this
enumerated power. Additionally, federal laws are supreme, and states may not make laws that
interfere with the federal government’s exercise of constitutional powers.
 2 Issues:
o 1) Does Congress have the Authority to Create a Bank?
 4 Arguments:
 1) Past Practice
o Past practices and acceptance of past practices provides
legitimate grounds for acceptance
 2) Sovereignty; states v. people
o People grant power to federal government
 3) Textual Authority
o Silence on the matter  no exclusion clause exists
o Means v. power  If the constitution gives certain
powers to the federal government then there are
implied means provided by the constitution to properly
exercise those powers
 4) Necessary & Proper Clause
o Necessity based on context of situation
o Limits reflected by needs of situation
o Limits on attenuation of connection
o 2) Can Maryland Tax the Bank?


1) power to tax derived from power to destroy
 States cannot tax federal government because states cannot
destroy federal government
 2) Power to tax unrepresented?
 If a state is allowed to tax the federal bans, then a party of the
whole is allowed to tax the whole, which affects members of
other parts of the whole
o Two key underlying normative issues in the debate of power between state and federal governments:
 1) how important is the protection of state sovereignty and federalism?
 2) should it be the role of the judiciary to protect state prerogatives or should this be left to the
political process?
Commerce Clause
o Gives congress power to “regulate commerce with foreign nations, and among the several states, and
with the Indian Tribes”
o 3 issues through the eras of interpretation
 1) defining Commerce  narrowly defined from 1890s-1937 and 1990s to present, broadly
defined from founding to 1890 and 1937-1990s
 2) defining “among the states” – narrowly defined from 1890s-1937 and 1990s to present,
broadly defined from founding to 1890s and 1937-1990s
 3) is the 10th amendment a substantive, independent restraint on federal power (or does it just
define relationship between states and fed)? – Yes from 1890s to 1937 and 1990s to present, no
from founding to 1890s and 1937-1990s
o Era 1: Founding to 1890s  Commerce Power broadly defined but rarely used
 Gibbons v. Ogden
 If a state and Congress both pass conflicting laws regulating interstate commerce, the
federal law governs pursuant to Congress’s constitutional grant of power to regulate
interstate commerce.
 Among the states broadly defined so that Congress can regulate entirely intrastate
commerce so long as it has substantial economic impact outside the state
o Commercial intercourse
o Broadest conception of commerce clause
o Era 2: 1890s-1937 “Lochner Era”  Narrowly defined commerce power and 10th amendment used to
limit Congress and promote laissez faire attitude
 Congress began advancing regulation that reflected needs of urbanized and industrialized
society
 SCOTUS blocks
 Narrow definition of Commerce
o Narrowly defined as one stage of business, separate and distinct from earlier
phases such as mining, manufacturing, and production
 States could regulate resource extraction and good production
 “Among the States” 
o Congress to regulate only when there was direct effect on interstate
commerce
 Congress can regulate intrastate activities if it is a part of a stream of
commerce
 E.g. stockyards
 Even if an activity was commerce and was among the states, Congress would not be
allowed to regulate if it intruded into the zone of activities reserved for the states
o Cannot regulate economy  child labor; can regulate morals  lottery

o
Cases:
 Commerce Clause
o E.C. Knight
 Manufacturing is not part of commerce.
o Carter Coal
 Formalist direct/indirect test from E.C. Knight used even when the
effect on commerce is greater, can’t apply C.C. to wholly intrastate
activity
o Schefter Poultry
 Congress has no authority to regulate local concerns with only indirect
effects on interstate commerce under C.C.
 Pensions of railroad workers have indirect effect—see Railroad
Retirement Board v. Alton R.R. Co.
o Swift & Co. v. U.S.  intrastate stockyards were in a current of commerce
among the States and the purchase of cattle were found part of and incident of
such interstate commerce
o Shreveport Rate Case  Commerce power extends to all matters “having a
close and substantial relation to interstate traffic”
th
 10 amendment
o Hammer v. Dagenhart (Child Labor Case) introduces the 10th Amendment as
an external constrain on Congress’s Commerce Clause power
o Champion (The Lottery Case) the only limitations on Congress to regulate
interstate commerce are those external limitations supplied in other parts of
the Constitution
Era 3: 1937-1990s Expansively defined commerce power and, the court refuses to use 10th
Amendment to limit Congress
 Significant effects test
 Although activities may be intrastate in character when separately considered, they
can still have significant effect on interstate commerce if they have such a close and
substantial relation to commerce, then congress cannot be denied the exercise of
control over that process
 Cases:
o NLRB v. Jones & Laughlin Steel Corp.
 Intrastate activity can be regulated by Congress if it has such a close and
substantial relation to interstate commerce that control is essential or
appropriate to protect commerce from burdens and obstructions
 Reasoning: labor disputes could disrupt interstate commerce
o US v. Darby
 Overrules Hammer v. Dagenhart
 10th amendment is not an external constraint on congressional
power
 Court will not examine congressional motives for regulation of channels
of interstate commerce and makes labor under the control of federal
regulation
o Wickard v. Filburn
 Wholly intrastate activity, even if it is not commerce, may be regulated
by Congress if the activity has a substantial economic effect on
interstate commerce
 Individual acts in aggregate can affect commerce
o
o
Heart of Atlanta Motel, Inc. v. United States
 If it is interstate commerce that feels the punch, it does not matter how
local the operation which applies the squeeze.
o Katzenbach v. McClung
 Cites Heart of Atlanta
 Racial discrimination in restaurants has a direct and adverse
effect on free flow of interstate commerce
o Refusal of service to Black Americans imposes burdens
both on the interstate flow of food and on the
movement of products in general
o 10th Amendment Cases:
 National League of Cities v. Usery
 Congress violates the 10th amendment when it interferes with
traditional state and local government functions
 Hodel v. Virginia Surface Mining & Reclamation Association
 Cites Usery
o Only applies when Congress is regulating State
Government, not when Congress was regulating private
conduct
 Garcia v. San Antonio Metro. Transit Authority
 Overrules National League of Cities v. Usery
o 2 grounds to overrule:
 Workability  the rule is not workable in
implementation
 Structural Argument  federal government
needs to be separated from state government
th
Era 4: 1990s-Present  revival of 10 Amendment as an independent limit on federal power
 Commerce and Among the States narrowly defined ; 10th amendment is substantive restraint on
federal power
 3 part test to determine what Congress can regulate:
 1) channels of interstate commerce
 2) instrumentalities of interstate commerce
 3) activities that substantially affect or relate to interstate commerce
 Major Issues:
 1) distinction between economic and non-economic regulated activity
 2) role an encompassing regulatory scheme plays in permitting regulation of
noneconomic activity that would otherwise be beyond the reach of the commerce
clause power
 3) commandeering concept that has been introduced into the 10th amendment
jurisprudence
 US v. Lopez
 Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits
the possession of a gun near a school.
o No substantial effect on interstate commerce
 Gun regulation is non-economic
o First time in 60 years SCOTUS found Congress to overstep its authority under
Commerce Clause
 Creates 3 part test:
 1) channels






2) instrumentalities
3) substantial relation
Concurrences:
o Economic nexus must be present
o Regulation of education is under State authority
o States are laboratories for experimentation
 Dissent:
o Stevens:
 State school system and extracurricular public activities have
traditionally ben regulated by states and localities
o Breyer
 3 problems with majority:
 1) at odds with Heart of Atlanta and Katzenbach
 2) Unworkable & Formalistic test
 3) unnecessarily calls into question many federal laws
US v. Morrison
 Rules:
o 1) Congress does not have the authority under the Commerce Clause to regulate
violence against women because it is not an economic activity.
o 2) Under §5 of the Fourteenth Amendment, Congress may only regulate the
discriminatory conduct of state officials, not private actors
 Extends prohibition of federal government from regulating behavior of private citizens
under 14th amendment.
o Non-economic activity that cannot be measured cannot be held in aggregate
 Only commercial activity can be regulated under the commerce clause
using the aggregate principle
 Private behavior cannot be regulated under §5 of 14th amendment
Gonzalez v. Raich
 Congress may regulate the use and production of home-grown marijuana as this
activity, taken in the aggregate, could rationally be seen as having a substantial
economic effect on interstate commerce.
 Seemingly non-economic activity can be treated as economic and be subject to
aggregation
o Combination of commerce clause and necessary & proper clause can justify
regulating non-economic activity with broad goal of regulating interstate
commerce.
 True if fungible goods
 Broad regulatory scheme might justify aggregation
 Scalia:
o Congress can regulate marijuana under Necessary & Proper Clause  triggered
through enumerated powers
 O’Connor:
o Congress needs to develop a regulatory framework if they wish to use the
Necessary & Proper clause
Commandeering Under the 10th Amendment
 Federal law applies to state government activities only if there is a clear statement from
Congress that the law was meant to apply
 New York v. United States
o Congress may not compel states to enact a federal regulatory program


 Problem with take-title provision
o It is commandeering for Congress to direct the state legislatures to pass
legislation and implement the federal statute
 Presents states with two unconstitutional options
 Printz v. US
o Congress may not compel state officials to participate in federal programs
 Analysis looked at 3 elements:
 1) history
 2) structure of Constitution
 3) Precedent
o Dissent:
 SCOTUS ignores history of Congress relying on state officials
o Commandeering state officials is prohibited in same way as commandeering
state government
 Murphy v. NCAA
o Congress may not issue direct orders to state legislatures
o Congress cannot tell states that they cannot do something just like they can’t
require a state legislature to do something
 Reno v. Condon
o Congress may regulate states’ activities, using its Commerce Clause powers,
provided that the regulation does not require the state to enact any laws or
regulations and does not require state officials to assist in the enforcement of
federal statutes regulating private individuals
o One way to get around the commandeering issue is by regulating through laws
that are “generally applicable” or laws “that apply to individuals as well as
states”
o Distinguishes New York and Printz
 Not requiring the states to regulate their own citizens; rather, it
regulates the states as the owners of databases. It does not require the
South Carolina legislature to enact any laws or regulations, and it does
not require state officials to assist in the enforcement of federal
statutes regulating private indviduals
Taxing & Spending Power: Text of the Constitution
 Art I § 8  “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 United States; but all Duties, Imposts and Excises shall be uniform throughout the
United States.”
 2 views on how Congress can tax and spend:
o 1) Congress can only tax and spend for powers specifically enumerated under
Article I.
o 2) Congress has broad authority to tax and spend for the general welfare.
 Courts go with this approach
US v. Butler
 Congress may not use its taxing and spending powers to obtain an unconstitutional
result, such as invading the reserved rights of the states under the 10th Amendment.
 May the federal government use its tax power to impose production caps?
o No
 Congress does have the power to tax and spend for the general welfare
and this power is divorced from the powers enumerated to Congress
under the constitution. However, congress’s power to tax and spend
may not violate the 10th amendment.

o
Sabri v. United States
 Congress can enact criminal laws under taxing and spending power
o Congress can criminalize corruption
 Congress has the power to spend for the general welfare and may enact, under the
Necessary and Proper Clause, any provision rationally related to carrying out its
spending powers for the promotion of the general welfare.
Conditions on Grants to State Government
 Congress may place strings on grants, as long as the conditions are expressly stated and as long
as they have some relationship to the purpose f the spending program
 Oklahoma v. Civil Service
o Congress gave grant to Oklahoma on condition state officials stop engaging in
political activity
 South Dakota v. Dole
 Upheld Fed gov’t withholding funds under spending power
o 21+ alcohol or lose 5% funds
 4 Part test
o 1) exercise of spending power must be for general welfare
o 2) congress must allow states to exercise clear choices with conditions on
federal money and whether to take them
 conditions must be unambiguous
o 3) Conditions on federal money must be connected to the underlying federal
interest in furthering the general welfare
o 4) Other Constitutional Provisions, like 10th Amendment, may provide an
independent bar on this
 The receipt of federal funds may be conditional if the exercise of the spending power is
for the general welfare, the conditions are unambiguous, the conditions are related to a
federal interest in a particular national project or program, and the conditions do not
violate any other constitutional provisions such as the 10th Amendment.

 NFIB v. Sebelius
 Rule:
o 1) Individual mandate can be upheld under Congress’s taxing & spending power
 Mandate not a tax for purposes of anti-injunction act
 Mandate not within commerce clause power or necessary and
proper clause because congress cannot regulate commercial
inactivity
 Invokes canon of construction to uphold the mandate as a ‘tax’
under tax & spending power
o Looks at legislative history
o 2) MEDICAID expansion is unconstitutional coercion of the states prohibited by
10th amendment
 Medicaid accounts for 10% of state budget on average
 Threatening to take away money leaves states with no choice
 Federal government cannot use taxing and spending power to
force states into policy without a reasonable alternative
o Distinguished from Dole, as Medicaid is a much higher
portion of revenue than highway funds
o


1) The individual mandate contained in the Patient Protection and Affordable
Care Act of 2010 is a valid use of Congress’s power to tax.
o 2) The Medicaid expansion provision of the Patient Protection and Affordable
Care Act of 2010 is an unconstitutional use of Congress’s spending powers.
Powers Under Post-Civil War Amendments
o 3 amendments:
 13th Amendment abolished slavery and indentured servitude
 Applies to private behavior
 14th Amendment  states may not abridge rights of any citizen
 Applies only to state governments
th
 15 Amendment  US and states may not bar individuals from voting based on previous
conditions of servitude
o 2 questions:
 1) who may congress regulate (private persons v state government)
 2) what is scope of Congress’ power
th
o 14 amendment cases:
 Guest Congress may regulate private discrimination
 Morrison  two rationals for striking down VAWA
 1) stare decisis
 2) judicial dicta
o All judges that ruled on 14th amendment were appointed by Lincoln or in
Reconstruction era
o 2 views on Congress’s Scope of power
 1) Broad interpretation  Congress can expand individual rights
 2) Narrow Interpretation  Congress can remediate and protect existing rights
 Scope of power cases:
 Katzenbach v. Morgan & Morgan
o Congress may pass legislation to enforce the Equal Protection Clause of the
Fourteenth Amendment even when the legislation conflicts with state law.
 City of Boerne v. Flores
o In exercising its remedial and preventative power to enforce a constitutional
right under §5 of the 14th amendment, Congress may enact only legislation that
utilizes congruent and proportional means for achieving that legislative purpose.
o Prior to Boerne
 Constitutional test for free exercise
 If any legitimate religious practice is seriously encumbered by
government policy, then the government would have to provide
extensive justification for such encumberment according to
public policy or objectives of government.
o Cite Employment Division v. Smith
o Use of power must be:
 Remedial only  Congruent & Proportional
o Congress can now only enforce the rights that courts have determined are
conferred by constitution
 Shelby County, Alabama v. Holder
o A federal law that departs from the fundamental principles of federalism must
be justified by current needs
Limits on State Regulatory and Taxing Power
o
o
o
Two possibilities when considering whether a state or local law is invalidated because of restrictions
imposed by existence of federal laws
 1) Congress has acted 
 If congress has passed a law and it is a lawful exercise of Congressional power, the
question is whether federal law preempts state or local law
o Article IV of Constitution  federal law supreme to state and local law
 2) Congress has not acted or judiciary has determined federal law does not preempt state or
local law
 Can still be challenged even if not preemption
o 1) Dormant Commerce Clause
 State and local laws are unconstitutional if they impose undue burden
on interstate commerce
o 2) Privileges and Immunities Clause
 Article IV §2  “Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the Several States.”
 Supreme Court interprets as limiting the ability of states to
discriminate against out-of-staters
Preemption of State and Local Laws
 Article IV Supremacy Clause
 Gibbons v. Ogden exemplifies such power
 2 major situations where preemption occurs:
 1) federal law expressly preempts state or local law
 2) preemption is implied by a clear congressional intent to preempt state or local law
 Gade v. National Solid Wastes Management Assn.
 Pre-emption may be either express or implied and is compelled whether Congress’
command is explicitly stated in the statute’s language or implicitly contained in its
structure and purpose.
o 2 types of implied preemption:
 1) field pre-emption  scheme of federal regulation is so persuasive as
to make reasonable the inference that Congress left no room for the
States to supplement it
 2) conflict pre-emption  where compliance with both federal and
state regulations is a physical impossibility, or where state law stands as
an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress
 3rd type also recognized) state law impedes achievement of a federal
objective
Implied Preemption
 1) Conflicts
 Florida Lime & Avocado Growers, Inc.
o When both federal law and state law are on point, federal law preempts state
law if there is a conflict between the two laws such that compliance with both is
impossible.
 2) Impediment
 Intent matters  two statutes do not clash but operate in same field and state statute
undermines federal objective
 Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development
Commission
o
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
A federal law may preempt a state or local law, even if the laws are not mutually
exclusive, if the state law is deemed to impede the achievement of a federal
objective
 California cannot regulate safety of nuclear power because federal
government regulates
 California can regulate economics of nuclear power because
federal government does not regulate economics
3) Field
 US v. Arizona
o AZ passes law allowing state and local law enforcement officials to detain any
individual on suspicion of immigration violations
 AZ law was found to be pre-empted because of federal government
occupying the entire field of immigration
 Hines v. Davidowitz
o PA cannot require aliens to register with the state and carry a state issued
registration card
Dormant Commerce Clause
o state and local laws are unconstitutional if they place an undue burden on interstate commerce.
 Inferred power by the supreme court conferred upon congress under Article I §8 (commerce
clause)
o Rationales
 1) historical argument  framers intended to prevent state laws that interfered with interstate
commerce
 2) economic justification economy is better off if state and local 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
o Critiques
 Dormant commerce clause follows the spirit but not the letter of the Commerce Clause
 Requires judges to act as legislators
o Judges must evaluate:
 1) whether a particular statute serves a legitimate local public interest
 2) whether the effects of the statute on interstate commerce are merely
‘incidental’ or ‘clearly excessive in relation to the putative benefits’
 3) the nature of the local interest
 4) whether there are alternative means of furthering the local interest
that have a lesser impact on interstate commerce,
 Partially rooted in argument regarding separation of powers
 Partially rooted in argument regarding federalism
o Analyzing whether a law violates the Dormant Commerce Clause
 A) Determining Whether a Law is Discriminatory
 3 types of discriminatory laws:
o 1) facially discriminatory
o 2) facially neutral but has discriminatory purpose
o 3) facially neutral but has discriminatory effect
 Balancing prescribed by Supreme Court is not same in all dormant commerce clause
cases
o Depends upon:
 State or local law treats out-of-staters different than in-staters; or
o
o
 state or local law treats out-of-staters the same as in-staters
 threshold question:
o does local or state law discriminate against out-of-staters
 concern because out-of-staters have no representation in political
process
 if local or state law treat out-of-staters and in-staters the same then
discriminated party had representation in political process
Facially Discriminatory Laws
 City of Philadelphia v. New Jersey
 A state may not discriminate against other states’ articles of commerce on the basis of
origin.
 Reciprocity requirements
 When a state requires states to engage in reciprocal trade in order to allow their goods
to enter the market
o Supreme Court has held facially discriminatory in nature
 Analysis of Discrimination  2 part test
 1) Serves Important interest
o Maine v. Taylor & US
 States may prohibit the importation of out-of-state goods moving within
the flow of commerce so long as the prohibition serves a legitimate
local purpose, and there are no available less discriminatory means to
accomplish that same purpose.
 2) Necessary to achieve it
o Dean Milk Co. v. City of Madison, Wisconsin
 A statute that discriminates against interstate commerce will be held
invalid if there are other less-discriminatory means by which the state
legislature can accomplish its objective.
Analysis if a law is deemed non-discriminatory
 If a state law is deemed non-discriminatory, then it is subjected to a much less demanding test.
 Upheld so long as benefits to government outweigh burdens on interstate commerce
 1) Balancing Test
 Loren J. Pike v. Brush Church, inc.
o A state law that furthers a legitimate local public interest and only incidentally
affects interstate commerce will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits.
 Because plaintiff lost large amounts of money because of regulation
courts held regulation was excessive in relation to putative local
benefits.
 If the state were to succeed they would have to show that local
putative gain is high and cost of implementation is low
 Bibb, Director, Department of Public Safety of Illinois v. Navajo Freight Lines, Inc.
o If a statute is facially neutral, the judiciary will balance the putative local
benefits with the burden the statute places on interstate commerce, and will
find the statute invalid if the burden substantially outweighs the local benefits
 2) Problems with Balancing
 Highly discretionary inquiry
o Requires court balancing things that are incomparable
 3) No regulation beyond borders
o


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States cannot enact regulations that have the effect of controlling out of state
activity
Exceptions to Dormant Commerce Clause
o 1) Congress can approve a state law
 Congress has express authority to regulate commerce  can approve law that comes in conflict
with interstate commerce as exercise of power to regulate commerce
 If congress acts then dormant commerce power become commerce power
o Congress has power to overrule supreme court decision on interstate commerce
this way
o 2) Market participant exception  a state may favor its own citizens in receiving benefits from
government programs or in dealing with government-owned business
 If the state is literally a participant in the market, such as with a state-owned business, and not a
regulator, the dormant commerce clause does not apply
 Hughes v. Alexandria Scrap Corp
o MD sought to purchase scrap vehicles from public
 Different purchasing requirements for in state v out of state
 Allowed because state acting as market participant
Privileges and Immunities Clause, Art IV
o Different from Dormant Commerce Clause because it only protects rights of individuals not corporations
 Non-citizens cannot invoke privileges and immunities clause
o Limitations:
 1) May not impede with fundamental right to earn a livelihood
 2) Economic Activities
 Toomer
o South Carolina cannot virtually exclude out of staters from earning a living
 Camden
o City cannot require 40% of city employees live in the city
 Develop 2 part test:
 1) substantial interest that is implicated by provision
 2) pursuit of common calling (livelihood)
 Baldwin
o Privileges and Immunities Clause does not apply to recreational activities
 3) Interests Sufficient to Overcome limitations?
 Supreme Court of New Hampshire v. Kathryn A. Piper
o States may discriminate against rights of out-of-state residents as long as there
is substantial reason for the difference in treatment, and the discrimination
practiced against nonresidents bears a substantial relationship to the state’s
objective.
 Court holds state must employ least restrictive conditions needed to
achieve objective of ensuring counsel has close proximity to court
houses in times of need.
 Employing relation of local counsel can overcome such a
concern  out of state attorney can contract with in-state
attorney to serve as local council in times of emergency
 4) no exceptions to Privileges and Immunities Clause
4 differences between privileges and immunities clause and dormant cc
 1) privileges and immunities clause  applies to fundamental rights and with respect to
economic activities applies to limited subset of discrimination against earning a livelihood
 Dormant Commerce Clause market participant exception
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
2) Privileges and immunities  must have discrimination present  must apply to out-ofstaters
 Dormant Commerce Clause does not need discrimination, can function on balancing test
3) Dormant Commerce Clause has exceptions
o Market participant
 Privileges and Immunities Clause has no exceptions
4) Dormant Commerce Clause generally applicable to anyone engaging in any economic
activities within the country
 Privileges and Immunities Clause only applies to citizens (not corporations) in their
ability to earn a livelihood.


Dormant Commerce Clause:
o
How to answer the essay:
o 1) Pull out plaintiffs and assess justiciability concerns for each plaintiff and with respect to each
potential claim you identify?
 Standing, ripeness, mootness, political question
o 2) Ask whether the fact pattern involves executive power or executive privilege
 Possibly assess executive power per Youngstown opinions formulation while keeping in mind
the view of some that the executive has virtually unfettered power wen it comes to foreign
affairs. E.g., Curtiss-Wright. If privilege, assess under US v. Nixon
o 3) Is there a federal statue involved? If so. . .
 A) Does it regulate private actors?

o
If so, is it within Congress’s article I powers to have enacted the statute? Evaluate
whether it could have been enacted under the CC under Lopez/Sebelius; evaluate
whether it could have been enacted under the Taxing and Spending power under
Butler, Sabri, and Dole/Sebellius; evaluate whether it could have been enacted under
the Necessary & Proper Clause under McCulloch/Sebilius.
 B) Does it regulate the States by taking away their immunity from suit for money damages in
federal or state court? If so, does the statute comply with City of Boerne test applicable to
Congress’s use of its § 5 authority?
 C) Does it create a 10th amendment commandeering problem under NY v US or Printz?
4) Is there a state statute involved? If so. . .
 A) is it either preemptd or authorized by a federal staute?
 B) Does it run afoul of dormant commerce clause doctrine or violate article IV’s Privileges and
Immunities Clause?