Constitutional Law 1
Mascott – Fall 2021
Table of Contents
Organization & Interpretive Methods .......................................................................................................... 3
Interpretation ........................................................................................................................................... 3
Originalism ................................................................................................................................................ 3
Non-Originalism ........................................................................................................................................ 4
Judicial Power ............................................................................................................................................... 4
Judicial Review .......................................................................................................................................... 5
Obstacles to Judicial Review ..................................................................................................................... 5
Political Question Doctrine ................................................................................................................... 5
“Case” or “Controversy” ....................................................................................................................... 5
Standing ................................................................................................................................................ 6
Congressional Authority over Federal Jurisdiction ............................................................................... 6
Federalism..................................................................................................................................................... 6
Governmental Powers Under the Constitution—A Foundation (Express v. Implied) .............................. 6
Limits on State Power ............................................................................................................................... 7
Preemption/Supremacy Clause ............................................................................................................ 7
“Dormant”/ “Negative Commerce Clause” Jurisprudence ................................................................... 7
Privileges & Immunities Clause ................................................................................................................. 9
Selected Congressional Powers, Their Scope, & Constraints ..................................................................... 10
Commerce Clause ................................................................................................................................... 10
History of the Commerce Clause ........................................................................................................ 10
Taxing ...................................................................................................................................................... 11
The Spending Power ............................................................................................................................... 11
Congressional Regulation Related to War & Treaty Powers .................................................................. 12
State Immunity from Federal Regulation ............................................................................................... 13
State Sovereign Immunity as a Limit on Federal Power ..................................................................... 14
Executive Privilege .................................................................................................................................. 14
Executive Immunity ............................................................................................................................ 14
Presidential Authority ................................................................................................................................. 15
Limits of Domestic Authority .................................................................................................................. 15
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Foreign Affairs & National Security......................................................................................................... 15
Separation of Powers .................................................................................................................................. 16
Character of Legislative Power ............................................................................................................... 16
Legislative and Executive Together......................................................................................................... 16
Character of Executive Authority ............................................................................................................ 17
State Efforts to Regulate the House & Senate ........................................................................................ 18
Legislative Power Versus Selected Individual Rights .................................................................................. 18
Bills of Attainder ..................................................................................................................................... 18
State-Law Impairment of Contracts ........................................................................................................ 18
Takings of Private Property ..................................................................................................................... 18
State Action Doctrine .................................................................................................................................. 19
General Requirement.............................................................................................................................. 19
Exceptions ............................................................................................................................................... 20
Public Function Exception ................................................................................................................... 20
Judicial Enforcement Exception .......................................................................................................... 20
Joint Participation (Entanglement) Exception .................................................................................... 20
Reconstruction Amendments ..................................................................................................................... 21
Early History ............................................................................................................................................ 21
Privileges or Immunities ......................................................................................................................... 21
Due Process............................................................................................................................................. 21
Incorporation .......................................................................................................................................... 22
Equal Protection...................................................................................................................................... 22
Substantive Due Process ............................................................................................................................. 23
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Organization & Interpretive Methods
Interpretation
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There is a need for Constitutional interpretation because the answers to our questions are not
always obvious
o The framers sought to preserve some degree of flexibility for subsequent generations to
address current/pressing problems and structure government accordingly
o Framers didn’t always agree so they wrote vague provisions in compromise on the
controversial questions
Constitutional silence: The plain text of the Const does not usually speak directly to questions
that are likely to arise today
o Response: if not expressly prohibited, then it’s permitted
The Const. tends to speak very generally
Dead-hand problem: to embrace constitutionalism is to accept that the men who wrote ad
ratified the Const. to govern them 200 years ago should be able to reach into the future (with
their now-dead hands) and tell us how to live our lives
o The Const.’s status as higher law, the difficulty to amend it, and its age stand in tension
with the notion of democracy
The Const. is “merely a collection of words with no independent force beyond our willingness to
follow it”
o A form of self- imposed paternalism
Tension over how to interpret the Const.
o Originalism: If we accept the Const. is a form of law, then there is a strong argument to
interpret it as any other law – fixed content determined by the intentions of those who
enacted it or the text at the time it was enacted
 A provision of the Const. must mean today what it meant when it was ratified
o Non-originalism: Or we could interpret the
Const. to serve contemporary values and update
Formalism v. Functionalism
the Const. in order to preserve it
Formalism: emphasizes the structure
o Most rely on the original meaning of the Const.
of the Constitution, more ruleto some degree at a high level of generality to
oriented, more closely follows the
leave room to evolve
actual provisions
If the Const. is a form of law, then its meaning to the
people who adopted is must be central to its meaning
Functionalism: looks at the purpose
today; but do those people have a right to bind us to
of the text, more concerned about
their choice?
the consequences
Originalism
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The meaning is sat at the time that it was put in place
Approach to interpretation that accords dispositive weight to the original meaning of the
Constitution
Whatever the Const. said when it was enacted (including the time of amendments) that is what
it says today
Five arguments in support:
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o
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To interpret it is to seek the original meaning of the text, by definition
Og is the only approach that recognizes the Const. as law
 Statutes do not evolve over time bc they are law, const. should not evolve bc it
is law
o Necessary to preserve democratic values
o Constrains the ability of judges to impose their own personal views
o Established by precedent
 There are disagreements about what the original meaning is, but S.Ct. justices
rarely reject the originalist meaning
Scalia: "[T]he central practical defect of nonoriginalism is fundamental and irreparable: the
impossibility of achieving any consensus on what, precisely, is to replace original meaning, once
that is abandoned. * * * [In contrast, originalism] establishes a historical criterion that is
conceptually quite separate from the preferences of the judge himself."
Non-Originalism
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Look to a range of sources to interpret
Might conclude that the original meaning of a provision provides very general guidance for the
relevant rule
Often look to judicial precedent
o Makes const. interpretation something similar
Natural law: understanding that there
to common-law decision making
are universal law-like standards for
Also look to state practices to find a broad consensus of
rights and wrong that never change,
interpretation for the provision
regardless of what statutes may say
Some problems with originalism noted: the Framers
at any particular time and place
often didn’t agree when they discussed provisions, and
Positive law: law like the Constitution
some were not discussed at all
which has been affirmatively enacted
Also noted, the dead-hand issue is not solved by
through defined law-making
originalism
processes
S.Ct decisions can’t all be supported by originalism and
sometimes go directly against original meaning
Judicial Power
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Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say
what the law is”
o Established principle of judicial review in American law
Martin v. Hunter’s Lessee (VA Ct. App. Refused to enter judgment consistent with S.Ct. on
remand, claimed S.Ct. appellate power did not extend to them): the appellate power of the S.Ct.
extends to all cases and controversies pending in the state courts
o State judges are subordinate to the Const. and bound to obedience to it, they are not
independent of it
o Congress must have the right to remove cases from state courts to courts of the U at
any time before final judgement but not after
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Judicial Review
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Marbury and Martin stand for the proposition that the S.Ct. has the power of judicial review,
which it can exercise in cases arising in state and federal court and in cases involving the
constitutionality of state or federal laws
Cooper v. Aaron (Governor and legislature of AR claim that there is no duty on them to obey
federal court orders): When the S.Ct. says x, the determination of un/constitutionality applies to
all similar cases
o The S.Ct. does not edit legislation; it tells us how things can/cannot be enforced
Obstacles to Judicial Review
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Four obstacles in attempting to persuade the courts to strike down legislation as unconst.
o Not justiciable – political questions that only the political branches can resolve
o Cannot give legal advice or make abstract decisions – must be an actual case or
controversy
 Must also be ripe and not moot (the government action has evaporated or the
issue is gone/resolved)
o Must have standing (stake in the litigation)
o Jurisdiction limited by statute
 Art I, sect 8; Art III, sect. 1; Art III, Sect. 2
Political Question Doctrine
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A case involving a political question will have
o A textually demonstrable constitutional commitment of the issue to a political
department
o Or a lack of judicially manageable standards for the court to resolve the issue
o Or the issue is impossible to decide without making an underlying policy decision of a
kind clearly not for judicial discretion
o Or the court’s act of determining would express a lack of respect of the other branches
o Unusual need for unquestioning adherence to a political decision already made
o Potentiality of embarrassment from multifarious pronouncements by various
departments on one question
Baker v. Carr (TN had not redrawn voting/district lines, allegedly debasing votes): lays out the
factors of the political questions doctrine
o If the claim is a violation of some form of government, S.Ct. can’t answer
o If the claim is a lack of equal protection, the S.Ct. can speak on it
Nixon v. US (impeached judge): A controversy is nonjusticiable [involves a political question]
where there is a textually demonstrable commitment of the issue to a coordinate political
department; or lack of judicially discoverable and management standards for resolving it
“Case” or “Controversy”
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Article III, Sect. 2:
The S.Ct. does not issue advisory opinions – risk of impeding separation of powers
Muskrat v. US (P wanted to complain about a new law): The questions of the validity of
legislations are properly brought before the court for consideration when they arise in suits
between individuals.
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We want to keep Congress from kicking the can to the S.Ct. – they need to make
Constitutional law to begin with
Standing
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Standing is a component of case or controversy
o Required by Article III
Only litigants who have standing may enforce constitutional provisions
Three requirements:
o Injury in fact by which we mean an invasion of a legally protected interest that is
 Concrete and particularized
 Actual or imminent, not conjectural or hypothetical
o A causal relationship between the injury and the challenged conduct, by which we mean
that the injury fairly can be traced to the challenged action of the D, and has not
resulted from the independent action of some third party not before the court
o A likelihood that the injury will be redressed by a favorable decision by which we mean
that the prospect of obtaining relief from the injury as a result of a favorable ruling is
not too speculative
These elements are the irreducible minimum required by the Const.
Allen v. Wright (IRS denies tax-exempt status to racist schools): there must be a strong enough
link between conduct and injury
Lujan v. Defenders of Wildlife (p complains that she might never see cool fish bc of regulation):
Congress spoke to the issue of bringing suit and specifically authorized it – S.Ct. says that doesn’t
create standing
Congressional Authority over Federal Jurisdiction
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Art III, Sect. 2, Clause 2
Sometimes the courts are disabled from action because Congress divests them of the power to
act
Ex Parte McCardle: suggests there isn’t a problem with Congress taking away jurisdiction to a
degree
o The appellate jurisdiction of the S.Ct. is conferred by the Constitution, but with
exceptions that can be created by Congress
Federalism
Governmental Powers Under the Constitution—A Foundation (Express v. Implied)
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Art I, Section 8, Clause 18: Grants to Congress the power “to make all Laws which shall be
necessary and proper for carrying in Execution of the foregoing powers” (Necessary and Proper
Clause)
10th Amendment: “The powers no delegated to the US by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.”
McCulloch v. Maryland (does Congress have the power to incorporate a bank?): The states have
no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the
operations of the constitutional laws enacted by Congress to carry into execution the powers
vested in the general government.
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Constitutional provisions that show the federal government is limited
o 10th amendment: powers reserved to the states; states have police power
o Art 7: 9 states required to ratify the Const.
o Art I, Sect. 1: “herein granted” suggests there is not just some overarching power to
legislate
o Sect 8, clause 18: necessary and proper clause
Limits on State Power
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Four limitations the Const. places on state law
o Supremacy clause – relationship between state and federal law
o Dormant Commerce Clause Doctrine – the power of states to regulate subjects that
Congress also may regulate
o Privileges and Immunities Clause (Art IV – relations between states and citizens of other
states
o State attempts to regulate Congress by setting qualifications for members of the House
and Senate
Constitutional provisions:
o Art I, section 10
 clause 1: state may never do x
 clause 2 and 3: state can’t do x without Congress
o Art I, sect 8, clause 3: commerce clause
Preemption/Supremacy Clause
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Supremacy Clause: Article VI, Clause 2
Preemption: Federal law will sometimes supplant state law that would otherwise apply to a
particular situation
Express preemption: Congress expressly dictates state regulation of a particular subject
o Federal Cigarette Labeling and Advertising Act
Implied preemption comes in two forms
o Conflict Preemption:
 (1) compliance with both federal and state regulations is a physical impossibility
 (2) when state law stands as an obstacle to the accomplishment and execution
of the full purposes and objective of Congress
o Field Preemption: Congress chooses to regulate a subject exclusively by federal law
 Rice v. Santa Fe
 No state laws may apply to the subject, even if the state laws do not directly
conflict with the specific requirements of federal law
Silkwood v. Kerr McGee Corp (exposed to radiation, died in sus car accident): Preemption in the
nuclear safety field didn’t preempt state-law regarding punitive damages for personal injuries.
Defenses of states against preemption claim:
o No conflict between federal and state law
o State does not interfere with field that’s been regulated
“Dormant”/ “Negative Commerce Clause” Jurisprudence
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We ask “is there a situation where Congress doesn’t act and states are still barred from acting?”
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Supreme Court has said that Art I Sect. 8, clause 3 imposes several implicit restrictions on state
regulations of commerce
A state cannot treat interstate commerce differently from intrastate commerce when there is a
reasonably, non-discriminatory alternative to further state interests (health, safety)
A power of Congress is “dormant” if the power exists but is not being exercised
Dormant commerce clause says even if Congress hasn’t used this authority, states may still be
prevented from it
Justification: state-law restrictions on trade caused discord between states
Dormant Commerce Clause Doctrine
o Threshold question 1: What category of commerce?
o Threshold question 2: Preemption?
o If no congressional regulation under the Commerce Clause and no preemption, what
claim?
Threshold: state area of regulation within potential commerce clause authority of Congress
o Congress has not acted or at least not in a way that preempts the state law
Claims: state law is unconstitutional
o (Threshold) Defense: not within Commerce Clause authority
o 3 broad categories of potential problems
 (1) need national uniform standard
 (2) discriminatory: facial or in its purpose or objectives
 Exception/defense: necessary and to further a legit state interest
(cannot be adequately served through alternate means)
 (3) undue burden – burden > interest
o Defense: congressional consent
Gibbons v. Ogden (steamboats in NY waters): Congress had not taken relevant action; the
express powers of the federal government may also be employed by the state in the exercise of
its powers
Congress can authorize states to pass legislation that otherwise would violate the Dormant
Commerce Clause Doctrine (Prudential Insurance co. V. Benjamin)
We have accepted the state’s taxing power as concurrent with federal (Camp Newfound)
o Taxes generally are not preempted or in the wheelhouse of the dormant commerce
clause
The Uniform National Standard Test
 Test: When something is national in character, a uniform national standard is required
 A uniform national standard is necessary so states cannot legislate, it’s important that Congress
create the standard
 Ct. says grant to regulate commerce would limit state laws when the states attempt to regulate
a subject for which a uniform national standard is necessary Congress to
 Cooley v. Board of Wardens (ship sailing to port without required local pilot): courts told us
uniform standard and said regulation of pilots not included; the mere grant to Congress of the
power to regulate commerce did not deprive the state of the power to regulate pilots
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Wabash St. Louis v. Illinois (RR charged different prices for same class of freight on same road): A
regulation of commerce must be national and can only be done by the US congress under the
commerce clause of the Constitution.
The Discrimination Against Interstate Commerce Test
 Test – State has to show:
o Discrimination
 On it’s face (“only VA residents can do x”)
 As applied – creates conditions that only let residents from VA benefit
o That it has a legitimate interest
o That can’t be served in another way
 not rational basis, must be necessary
 Another limitation in addition to the uniform national standard, not replacing
 Examples of discrimination: restrict imports to protect local producers from competition, limit
exports preserving goods for local
 Dean Milk Co v. City of Madison WI (ordinance that required milk be bottled within 5 miles):
discriminatory and not essential for the protection of local health (not serving a legitimate state
interest)
 Hughes v. Oklahoma (license to operate minnow business in TX): the discrimination is against
interstate commerce, not the individual
Excessive Burden on Interstate Commerce Test
 Test:
o Is there a burden?
o Is there a state interest?
 States may not impose a burden on interstate commerce that is excessive in relation to local
interest
 Southern Pacific Co v. State of Arizona (AZ law limits train length): there was a burden, interest
was trying to prevent accidents, but the risk was too low to support the burden
o “Beyond what is plainly essential for safety”
Privileges & Immunities Clause
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Found in Article IV, section 2, clause 1 of the Constitution
o “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the several States”
Privileges and Immunities Clause
o Bans discrimination by a state (against citizens)
o That may jeopardize interstate harmony (usually impacts economic activities)
o Unless necessary to promote a substantial state interest
 There needs to be a connection between the rule and the interest you say is
supported by the rule
 No threshold required to impact interstate commerce
A state law can survive Privileges and Immunities Clause if there is discrimination
o But is necessary to promote a substantial state interest
o Or may not jeopardize harmony
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o Or may not be extreme enough discrimination
Four important principles:
o Anti-discrimination measure: limits the ability of states to treat citizens of other state
differently from the state’s own citizens
o Limits discrimination only with respect to rights that are “fundamental to the promotion
of interstate harmony”
 Obtaining employment or medical services
 Does not extend to less essential matter like recreational hunting licenses or
admissions to a state university
o May allow a state to discriminate against non-residents, even with respect to certain
very important right if the state has a “substantial reason” for the discrimination
o “citizen” has a specific meaning – refers to US citizens not including aliens or
corporations
 Citizen and resident are essentially interchangeable for state purposes
Baldwin v. Fish and Game Commission of Montana (hunting licenses more expensive for out of
state): Equality to elk access is not basic to the maintenance of the well-being of the Union, not
a jeopardy to interstate harmony
Supreme Court of NH v. Piper (NH bar residency requirement): NH bar does not show a
substantial reason for its discrimination or demonstrate that the discrimination bears a close
relationship to their objective; violated PIC
Selected Congressional Powers, Their Scope, & Constraints
Commerce Clause
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Article 1, section 8, clause 3: The Congress shall have power to regulate commerce with foreign
nations, and among the several states, and with the Indian tribes
o “Among the several state” includes intrastate activity that is intermingled with
interstate commerce, but it cannot be exclusively within one state, must affect
interstate
Current law holds that Congress may regulate:
o interstate commerce itself
o the channels and instrumentalities of interstate commerce, and
o intrastate economic activities that in the aggregate have a substantial effect on
interstate commerce
Analysis on the Final:
o Does it fit within the term of the statute?
o Does Congress have the authority to enact the statute?
History of the Commerce Clause
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US v. EC Knight Co: violation of commerce clause by regulating manufacturing of an individual
state
Shreveport Rate Case: Congress has the authority to regulate intrastate matters that have such a
“close and substantial relation to interstate traffic control that is essential or appropriate to the
security of that traffic, efficiency or interstate service, and maintenance of condition under
which interstate commerce may be conducted upon fair terms”
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Champion v. Ames: There is no limitation in the Constitution regarding Congress’ regulation of
Congress, can be prohibitive in nature
Hammer v Dagenhart: Act of Congress prohibited interstate commerce of goods produced in
factories that utilized child labor; The Act found repugnant to the Constitution (two-fold
repugnancy): (1) transcends Congress’s authority over commerce; (2) exerts a power that is
reserved to localities/purely local in character
o Dissent: Congress actually does have the authority; The power to regulate commerce
and other const. powers could not be cut down or qualified by the fact that it might
interfere with the carrying out of the domestic policy of the state.
Carter Coal Co: Bituminous Coal Conservation Act of 1935 est’d maximum hours and minimum
wages; held act regulates areas that can only be regulated locally (production and manufacture
of a commodity)
NLRB v Janes and Laughlin Steel Corp: Acts which directly burden or obstruct interstate or
foreign commerce, or its free flow, are within the reach of congressional power
Lopez: no jurisdictional hook to bring in interstate commerce, if there was a hook, would survive
Sebelius: Congress cannot compel commercial action
Taxing
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Article I, Section 8, Clause 1: “The 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”
o Associated: 16th Amendment power to tax income (Art I power is to tax
consumption/sales)
More Constitutional provisions re: taxation in Art I – sect 2, clause 3; sect 9, clause 4 (limited by
16th amendment); sect 9, clause 5-6; sect 9, clause 1; sect 7, clause 1; sect 8, clause 1 (limited
by sect 9 cl 4)
Differs from commerce clause because lacks Congress doesn’t have to show an impact on
interstate commerce to act
Penalty Doctrine (Penalty v. Tax Test – Child Labor Law Case) – cannot be a penalty and a tax
o Exceedingly heavy burden
o Scienter requirement
o Collected by someone other than the IRS
US v Kahringer: Unless there are provisions, extraneous to any tax need, courts are without
authority to limit the exercise of the taxing power
o If it raises revenue, then it’s fine – undercuts the Penalty Doctrine
 If it doesn’t raise revenue, the law is invalid
NFIB v Sebelius: brings back the Penalty Doctrine to find the ACA “shared responsibility
payment” to be a permissible tax
The Spending Power
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Art I, sect. 8, clause 1 authorizes Congress to pay the debts and provide for the common defense
and general welfare of the United State
S.Ct has held that Congress has broad discretion to use the spending power
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Congress can authorize any spending that is necessary and proper for carrying out its express
powers under Art I section 8 and other thing unrelated to the express powers that promote
general welfare
US v Butler: Congress’s power to tax and spend is a separate power not confined by Congress’s
other enumerated powers but still has limits; Congress may not use its taxing or spending
powers to obtain an unconstitutional result, such as invading the reserved rights of the states
under the 10th amendment
There are three potential interpretations of the General Welfare Clause:
o Read the clause as a grant of authority that is separate from the preceding provision
that confers the power to tax
 Congress would have the power to pass virtually any regulation, subject only to
the requirement that the reg be in the general welfare
o Read the clause as a shorthand reference to the enumerated powers that follow in Art I,
section 8
 Congress would have the power to tax or spend only when it is acting
legitimately pursuant to one of its other enumerated powers, would have no
authority to spend beyond that which it is already authorized to do
o Read the clause to permit Congress to spend for the general welfare even if Congress
could not achieve its desired objective pursuant to its other enumerate powers
 Congress’s power to spend would be broader than its power to regulate
pursuant to its other enumerated powers
South Dakota v. Dole: Congress’s spending power is subject to some restrictions –
o Exercise of spending power must be in pursuit of the general welfare
o If imposes a condition on the receipt of funds, it must do so unambiguously
o Grants might be illegitimate if they are unrelated to the federal interest in particular
projects/programs
o Other Const. provisions may provide an independent bar to the grant of funds
NFIB v Sebelius: The federal gov’t cannot compel the states to enact or administer a federal
regulatory program
o Congress cannot penalize states that choose not to participate in a new program by
taking away their existing Medicaid funding
Congressional Regulation Related to War & Treaty Powers
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Article I, Section 8 gives Congress the power to declare war, to raise and support armies, to
provide for and maintain a navy, and to make rules for the regulation of those forces
Article II, Section 2 makes the President the Commander in Chief of the armed forces and give
the president the authority to make treaties, subject to the consent of 2/3 of the senate
(ratification)
o Why ratification? Senators are elected at large, they have a closer connection to the
interest of their state as a whole
Can a treaty authorize Congress to enact legislation that they would otherwise not have the
power under their enumerated powers?
o MO v. Holland and Necessary and Proper Clause say yes
Article VI, clause 2 makes treaties the supreme law of the law (Supremacy Clause)
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Woods v. Cloyd W Miller Co: The war power includes the power to remedy the evils which have
arisen from its rise and progress and continues for the duration of that emergency
o Whatever may be the consequences when war is officially terminated, the war power
does not necessarily end with the cessation of hostilities
o Held: Congress was invoking its power to cope with a current condition of which war
was a direct and immediate cause
Missouri v Holland: US and GB made treaty to protect certain bird – not self-executing; treaties
are supreme law of the land with the Constitution; Congress may be given powers in treaties not
enumerated in the Constitution
Sometimes instead of declaring war, Congress will enact a statute that authorizes force – why?
It’s faster, not as big of a deal
This topic isn’t built up because the judiciary isn’t competent to speak on it without an issue, the
issue itself is typically between Congress and the president
State Immunity from Federal Regulation
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Deals with instances in which Congress seeks to exercise its Article I power to regulate state,
either in the same fashion that is regulates private actors or in a fashion unique to state actors
o Goes both ways(?) – states can’t demand federal govt to do x because federal gov’t is
supreme
Three key principles:
o When acting pursuant to its powers under Article I, Congress may regulate the states in
the same fashion that it regulates private actors
o Congress cannot compel a state to enact legislation
o Congress cannot require state officials to implement or administer federal laws
National League of Cities v. Usery: Challenged provisions operate to directly displace the state’s
freedom (concern with sovereignty) to structure integral operation in areas of traditional
governmental functions, they are not within the authority granted to Congress – NO LONGER
GOOD LAW
Garcia v San Antonio Met Transit: There is no separate carve out for state when acting as an
employer, they are regulated as private actors; Congress has the constitutional authority to
regulate the wages and hours of state employees under the Commerce Clause
o Concerned about federalism structure and protection of states within
New York v United States:
o Two inquiries for federal questions:
 Whether an Act of Congress is authorized by one of the powers delegated to
Congress in Article I on the Constitution
 Whether an Act of Congress invades the province of state sovereignty reserved
by the Tenth Amendment
o Held: While Congress has substantial power under the Constitution to encourage the
State to provide for the disposal of the radioactive waste generated within their border,
the Constitution does not confer upon Congress the ability simply to compel the States
to do so
Printz v United States: Congress may not compel state officials to participate in the
administration of federal programs; you can’t make a state take state action
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Methods through which Congress can influence states:
o Garcia – can compel states to comply with regulations for private actors
o NY – can’t compel states to enact/enforce federal regulatory programs
o Can’t make states enact legislation
o Printz – congress can’t circumvent by commandeering state officers to enforce
State Sovereign Immunity as a Limit on Federal Power
Whether and where state can be sued and for what relief
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11th Amendment: The Judicial Power of the US shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by citizens of another
State, or by Citizens or subjects of any foreign state.
Alden v. Maine: Congress’s enumerated powers do not include the power to subject states to
suit
Sovereign immunity does not give states the right to disregard the constitution or valid federal
law, but with exceptions:
o States’ consent
 If states take money from the feds, they may be required to consent to a suit
 States have consented to constitutional challenges by ratifying the constitution
o Federal government seek consent of states
o 14th amendment, section 5 suits
o Suit not barred against municipal corps, counties, towns
o Certain suits not barred against state officers
Executive Privilege
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Presidents claim that the Const. creates an executive privilege that allows them to keep secret
their communications with close advisors
US v. Nixon: The generalized assertion of privilege must yield to the demonstrated, specific need
for evidence in a pending criminal trial.
Executive Immunity
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Nixon v. Fitzgerald: The president is entitled to absolute immunity from suits for damages based
on actions taken in his official capacity
Immunity is for officials, not the government itself like with state sovereign immunity
Three key things from Trump v. Mazars USA:
o Structure of the opinion – president is appearing in his personal capacity, solicitor
general is involved because there are governmental interests in play
o HR thinks what standard should apply? Subpoenas should be valid because essential and
appropriate auxiliary to legislative functions, related to an in furtherance of a legitimate
task of congress
o President and SG say the standard should be the one used in Watergate, need a
demonstrated and specific need for the particulate record
o Court picks neither standard
 should assess whether asserted leg purpose warrants the step of involving the
president and his papers
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cts should insists on a subpoena no broader than reasonably necessary to
support Congress’s legislative objective
 cts should be attentive to the nature of the evidence offered by Congress to
establish that a subpoena advances a valid leg purpose
 evidence must be detailed
 assess the burdens imposed on the president by the subpoena
 leaves room for other considerations – these req’s make it hard to get a
subpoena from the president
Court at the end of the day doesn’t determine if the house gets the records
Presidential Authority
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Article II, sections 2 and 3 detail executive powers:
o Commander in Chief of armed forces
o May grant pardons (not for impeachments)
o May make treaties with foreign nations (with A&C of Senate)
o May appoint judges, ambassadors, other officers of US (with A&C of Senate)
o May establish diplomatic relations with foreign nations by receiving ambassadors
o Must “take care that the laws be faithfully executed”
Limits of Domestic Authority
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When acting with respect to domestic affair, the President can clearly exercise powers
enumerated in Constitution of by federal legislation
Argument against finding implied powers of the president/executive: Article II doesn’t have an
equivalent of a Necessary and Proper Clause
o Even though Youngstown argues the Take Care Clause is one
Argument in favor: Article II vested in the President “executive powers”, but Congress is vest
powers “herein granted”
Youngstown Sheet & Tube Co. v. Sawyer: Not Act of Congress of Constitutional provision allowed
the President’s act, and it was therefore not constitutional; there was not enough of a need to
cross the line to allow the President to do this
o Jackson Concurrence: ebbs and flows of executive power
 Highest (1) – Congress has authorized the president
 Middle (2) – congress is silent, hasn’t told you not to do “there is a zone of
twilight in which he and Congress may have concurrent authority”; the test of
power will likely depend on the situation
 Lowest (3) – congress has told you something is not within your power;
president takes measures incompatible with the expressed or implied will of
congress
Foreign Affairs & National Security
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Dames & Moore v Regan (Iran hostages): Where the settlement of claims has been determined
to be a necessary incident to the resolution of a major foreign policy dispute between our
country and another, and where we can conclude that Congress acquiesced in the president’s
action, the President has the power
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o
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The President of the US has authority to settle judicial claims through an executive order
if
 the settlement of claims is necessary for the reduction of a major foreign-policy
dispute with another country
 and Congress acquiesces in the president’s action
United States v. Curtiss-Wright (war in Chaco): There is sufficient warrant for the broad
discretion vested in the President to determine whether the enforcement of the statute will
have a beneficial effect upon the re-establishment of peace in the affected countries; whether
he shall make proclamation to bring the resolution into operation; whether and when the
resolution shall cease to operate and to make proclamation accordingly; and to prescribe
limitations and exceptions to which the enforcement of the resolution shall be subject.
o Ct finds that congress gave the president the authority to do this – not actually a
separation of powers issue
 Congress has explicitly approved this action
 The only way it would be unconstitutional is if the president was barred from
doing this
The Constitution divides responsibility between the President and Congress over matters related
to war
Hamdi v. Rumsfeld (AUMF/Gitmo): Although Congress authorized the detention of combatants
in the narrow circumstance here, due process demands that a citizen held in the US as an enemy
combatant be given a meaningful opportunity to contest the factual basis for that detention
before a neutral decisionmaker
Whitney v. Robinson: statutes and treaties are on the same level, the most recent one prevails
Separation of Powers
Character of Legislative Power
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Bicameralism and Presentment
o Congress has oversight over the administrative state
o The most common method of congressional oversight involves calling executive branch
officials to testify before congressional committees
o Another option was the legislative veto, allowed congress to rescind certain actions
taken by agencies simply by passing a resolution
Immigration and Naturalization Service v Chadha: Legislation providing Congress with a onehouse veto over an action of the executive branch is unconstitutional because it does not meet
the constitutional requirement of presentment and bicameralism
o Deals with Art I, Sect 8, Clause 4: to establish a uniform rule of naturalization
Clinton v New York: Is the line-item veto constitutional? There is no provision in the Constitution
that authorizes the President to enact, amend, or repeal statutes.
Legislative and Executive Together
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Congressional influence on executive: subpoena, impeachment, spending
Congress acts to protect their states’ interests, president protects national interest
o So, we want a system that balances them both
Powers in Foreign relations
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Executive power: Commander in chief, make treaties, appoint ambassadors, receive
ambassadors
Congressional powers: regulate commerce with foreign nations, provide for and
regulate military, declare war, punish offenses against law of nations
Character of Executive Authority
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US Constitution Article II, Section 2, Clause 2: “The President shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint Ambassadors, other public ministers and
consuls, judges of the supreme court, and all other officers of the US whose appointment are
not herein otherwise provided for, and which shall be established by law; but the congress may
by law vest the appointment of such inferior officers, as they think proper, in the president
alone, in the courts of law, or in the heads of departments”
o Appointments Clause – where the executive gets its power to control
employees/officers
o No mention of removal – The Constitutional mechanism is impeachment by Congress, or
Art II, Section 4
Constitution doesn’t create administrative agencies; President gets the power from the vesting
clause subject to the take care clause
Myers v. United States: The provision of the law by which the unrestricted power of removal of
first-class postmasters is denied to the President is in violation of the Constitution and invalid;
The power to prevent the removal of an officer who has served under the president is different
form the authority to consent or reject his appointment
o The power to remove inferior executive officer, like that to remove superior executive
officers, is an incident of the power to appoint them, and it is in the nature an executive
power
Humphrey’s Executor v United States: The power of the President to remove officers is confined
to executive officer; the officers of other kinds cannot be removed by the President unless
allowed by the statute.
o Still governing precedent, but it has been criticized and diminished to these facts
Bowsher v Synar: Congress cannot reserve for itself the power of removal of an officer charged
with the execution of the laws except by impeachment; it also cannot grant an officer under tis
control what it does not possess
o Anyone engaged in an executive function cannot be subordinate to Congress
Morrison v Olson: Interbranch appointment of inferior officers is authorized by the excepting
clause; vesting the appointment power in the judiciary is both logical and permissible
o Allows some blending
Current day: Myers, Humphrey’s, and Morrison establish a muddle trio – the executive power
includes the significant power to supervise (and remove) officers
o Court finds more consistent with Myers that certain removal protections are
unconstitutional
o Reads them more narrowly with each subsequent case
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State Efforts to Regulate the House & Senate
Legislative Power Versus Selected Individual Rights
Bills of Attainder
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The portion of § 9, Article I of the United States Constitution that prohibits Congress from
passing any law purporting to divest an individual of property rights upon conviction for treason
or a felony crime and prohibits the passage of any law having retroactive effect, or the portion
of § 10, Article I that imposes the same prohibition upon the states.
State-Law Impairment of Contracts
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A provision in Article I, Section 10, Clause 1 of the United States Constitution prohibiting states
from enacting laws that impair contract obligations.
Must balance the states interest and interference based on the circumstances
o Interference can’t be too far
Takings of Private Property
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For a taking to be acceptable:
o Must be for a public use
o Must give just compensation
5th Amendment does not contain an affirmative eminent domain power
Eminent domain: the power of the government to force a transfer of property
o Presumably permitted by the Necessary and Proper Clause
Takings Clause: “nor shall private property be taken for public use, without just compensation”
o Court must decide what constitutes a taking
o Clause seems to limit the government’s power of eminent domain to instances where
taking is for public use
o When the gov’t have taken property for a public use, the clause requires the gov’t to
pay just compensation
What’s a taking?
o Government takes title, change in ownership
o Physical occupation (includes airspace)
o Regulation substantially impairs value (interest interfered with, permanence of taking)
Two types of takings:
o Physical occupation: the government actually takes title to the property; triggers
requirement of just compensation – the clearest case (ownership changes)
o Regulatory taking: the government merely regulates the use of the property;
compensation is required to the extent the owner is deprived of the economic use of
the property
Physical Taking: the court has also held that the gov’t takes property when it physically occupies
property that is otherwise held privately
US v Causby: Flights over private land are not a taking, unless they are so low and so frequent as
to be a direct and immediate interference with the enjoyment and the use of the land
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Yee v. City of Escondido: Because they voluntarily (no force) rented their land, the petitioners
cannot assert a taking or require compensation based on their inability to exclude particular
individuals
Penn Central v NYC: In deciding whether a particular governmental action has effected a taking,
this Court focuses rather both on the character of the action and on the nature and extent of
the interference with rights in the parcel as a whole
o The restrictions imposed are substantially related to the promotion of the general
welfare and not only permit reasonable beneficial use of the landmark site but also
afford appellants opportunities further to enhance not only the terminal site proper but
also other properties
Andrus v Allard (prohibition of sale of certain Native artifacts): The prohibition of the sale of
lawfully acquired property in this case does not effect a taking in violation of the 5th
Amendment.
Lucas v. South Carolina Coastal Council: "Where the State seeks to sustain regulation that
deprives land of all economically beneficial use, we think it may resist compensation only if the
logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use
interests were not part of his title to begin with"
Kelo v City of New London: The Court uses a broader test of public use being “public purpose”;
The State’s purpose of eliminating the social and economic evils of a land oligopoly qualified as a
valid public use
State Action Doctrine
General Requirement
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The Constitutional prohibition in 14th Amendment only applies to federal or state action, not
private action (with exceptions below)
14th Amendment: No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws
o Specifically oriented towards states, they are who we need to be protected against
because they control many areas of our lives
o If we don’t have state action, we don’t necessarily have the protection of the 14th
amendment
o Congress shall have the power to enforce by appropriate legislation the provisions of
this article
o Separate and additional power, not subject to commerce clause restraints, you do not
have to show any effect on interstate commerce to legislate
o Limitation of legislating under 14th amendment? Must be appropriate legislation under
provisions of this article
o But congress isn’t then powerless to legislate about interstate discrimination, you try to
get the issue under the commerce clause
The Civil Rights Cases (1880s): Congress doesn’t have the authority from the 14th Amendment
to bind private action
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Note: Plaintiffs use the civil rights act as an attempt to control private discrimination
because the view of the commerce clause was narrow at the time and would not cover
it
Exceptions
Public Function Exception
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Tradition public function exception: if private individuals are performing actions that have
traditionally been performed exclusively by the government, their actions may be deemed to be
state action
Marsh v State of Alabama: The 1st and 14th Amendment protections of speech and religion still
apply to individuals when operating in a privately-owned town if the town is open to the public
and used for public purposes
o Extreme end of the spectrum – state action
Hudgens v NLRB: Picketing within the confines of a privately-owned shopping center
o The other end of the spectrum – not state action
Judicial Enforcement Exception
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Judicial enforcement exception: a court’s decision to uphold a private action may violate the
Constitution
Shelley v Kraemer: racially restrictive covenant in neighborhood
Joint Participation (Entanglement) Exception
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Joint participation exception: sometimes when a private party and a state actor jointly
participate in an activity, they are both engaged in state action
Elements:
o (1) the deprivation must be cause by the exercise of some right or privilege created by
the State or by a rule of conduct imposed by the state or by a person for whom the state
is responsible
o (2) the party charged with the deprivation must be a person who may fairly be said to
be a state action (bc he is a state actor, acted with state, or obtained significant aid from
state)
In other words:
o (1) harm must be caused by the exercise of something for which the state is responsible
(landlord/tenant law, etc.)
o (2) not necessarily the gov’t but maybe a state official
Burton v Wilmington Parking Authority (private coffee shop in parking structure): The state has
so far insinuated itself into a position of interdependence with the coffee shop that it must be
recognized as a joint participant in the challenged activity.
Edmonson v Leesville Concrete Co, Inc: Defendant used peremptory challenges during voir dire
to remove black persons from the prospective jury – I don’t remember the conclusion
NCAA v. Tarkanian: UNLV has conducted its athletic program under color of the policies adopted
by the NCAA, rather than those policies were developed and enforced under color of NV law
o The person who actually fires Tarkanian is the university president who is a state official,
so why isn’t it state action? The school would not have done anything without the
NCAA’s action/rules
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UNLV has not delegated any power to NCAA, the parties are adversarial, the school did
not want to participate in the process – court relies on adversarial nature
Mirror image case: private action causes state official to do x; in other cases, private
individual takes action jointly with state to become state action (joint participation in
both)
Reconstruction Amendments
Early History
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Original constitution proposed had express limitations on federal authority: Article I, Section 9
o Suspension Clause – prohibits suspension of habeus corpus and prohibits bills of
attainder and ex post facto laws
Original constitution did not contain many express limits on the authority of the states
o Now we see the privileges and immunities clause as some sort of burden on the states
14th Amendment contains three clauses:
o Privileges and Immunities Clause (federal – state P&I in Art 4, sect 2)
o Due Process Clause
o Equal Protection Clause
Barron v Baltimore (claim city destroyed value of his wharf with diverted water): The 5th
amendment must be understood as restraining the power of the general government, not as
applicable to the states; Had the framers of the amendments intended them to be limitations on
the powers of the state governments, they would have imitated the framers of the original
constitution, and have expressed that intention
Privileges or Immunities
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Slaughter-House Cases: It is only the privileges and immunities of the citizens of the United
States which are places under the protection of the Constitution by the clause; The rights
claimed by the plaintiffs are not privileges and immunities of citizens of the US within the
meaning of the 14th Amendment
P&I is a substantive right in itself, not comparative; the core things that the gov’t is not
supposed to interfere with to a certain degree
Some determined privileges and immunities:
o Come to the seat of government to asset any claim he may have upon that gov’t
o To transact any business he may have with it
o To seek its protection
o To share its offices
o To engage in administering its functions
o To demand the care and protection of the federal gov’t over his life, liberty, and
property when on the high seas or in a foreign jurisdiction
o To peaceably assemble and petition for redress of grievances
Due Process
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5th and 14th Amendments; Procedural protections
Clause has been interpreted to also have some measure of inherent/substantive content to it –
protections against the states
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Incorporation
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Generally, means protection has been incorporated against the state with the same contours as
against the federal government
There is substantial historical evidence that those who drafted and proposed the Privileges and
Immunities Clause believed that it would “incorporate” the protections of the Bill of Rights
o The Court has never accepted this view
The Due Process Clause seems to require the states to provide appropriate process before they
can deprive a person of an important interest
o This takes the view that the DPC incorporates the procedural rights mentioned in the Bill
of Rights, thereby imposing limits on actions by states and state officials
The Bill of Rights is a limitation of federal power, not state power, but the Court has held that
most rights limit the state through the due process clause of the 14th amendment
Adamson v California: The 14th Amendment does not incorporate the 5th Amendment right
against self-incrimination
o The rights that are incorporated are those that are “implicit in the concept of ordered
liberty”
Selective incorporation asked which rights were necessary to ensure fundamental fairness to
determine if it was protected by the Due Process Clause
In decisions after Adamson, the Court decided that the Due Process Clause incorporates virtually
every provision in the first eight amendments
o Two not incorporated: right to a grand jury indictment; right to a jury trial in civil cases
o One never discussed: right not to have soldier quarters in home
McDonald v City of Chicago: The Due Process Clause of 14th Amend incorporates the Second
Amendment; Five features of the Court’s approach in the process of selective incorporation
o (1) viewed the due process question as separate from the question whether a right was
a privilege or immunity of national citizenship
o (2) explained that while some of the personal rights safeguarded by the first 8
amendments may also be safeguarded against state action, this is not because those
rights are in the first 8 amendment
o (3) asked whether some particular procedural safeguard was required of a state, if a
civilized system could be imagined that would not accord the particular protection
o (4) would hold that a right set out in the Bill of Rights failed to meet the test for
inclusion within the protection of the Due Process Clause
o (5) Even if a right was within the concept of due process, the protection or remedies
afforded against state infringement sometimes differed from the protection or remedies
provided against abridgement by the Federal government
Equal Protection
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Comparative rights – to gov’t doesn’t have to give welfare benefits, but if it does, it has to give
them equally
Have to look to find out what applies to federal gov’t, there is no provision in the original
constitution requiring the fed gov’t to give equal protection
o Congress can prevent violations through appropriate legislation
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How do we get from states to the federal gov’t being required? The framers were wary of
enumerated certain rights thinking it would bar certain others not enumerated
Thought to have a sliding scale, currently thought to give equal protection to a protected class
o So likely doesn’t cover citizens of other states, demand we treat them equally
Bolling v Sharpe: Segregation is not related to a governmental objective and deprives black
children of their liberty in violation of the Due Process Clause
The 5th amendment incorporates equal protection of 14th Amendment – like a reverse
incorporation
Brown v Board of Ed: When you see a term like “equal protection” you want to ask what the
meaning of that phrase was at the time of the enactment
o What was the established meaning used by the framers at the time?
Loving v Virginia (VA law against interracial marriage): state says that all who break the law are
punished equally, no discrimination
Substantive Due Process
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Substantive right exists and cannot be infringed regardless of procedure used
o Life, liberty, or property interests
o Goes beyond those protections and suggests within that clause there is a certain
residual rights that the gov’t cannot infringe unless it passes the strictest level of
scrutiny
Lochner v New York: One of the first cases that finds legitimacy in the argument that there are
substantive due process rights
Michael H v Gerald D: Scalia says this is not a case about procedural rights, but substantive and
he finds no tradition that this is a substantive right
o Tradition supports the interest of the marital couple to raise the children
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