Constitutional Law
Spring 2022
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1.) INTRODUCTION—FOUNDING VALUES
AND STRUCTURES
Five Questions to consider:
 Can a government do a particular thing or take a particular action (scope of government
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authority)?
o Are there things no government can do?
o Scope of government action/authority
 Section 1, article 10
Which government can do what thing?
o Can our government, either through state or federal, do a particular thing?
o Vertical Federalism
o BALANCE OF POWERS
Which branch of government can do a particular thing?
o Executive
o Legislative
o Judicial
o Youngstown
o What means can be used by each branch?
What actions can one state take with respect to one or more other states?
o Horizontal Federalism
o Articles of Confederation
If we have a two-strata of governments, then where does that leave us as citizens?
o 14th Amendment – Dual Citizenship
o Citizen rights
o ROLE OF CITIZENS AND MEANING OF CITIZENSHIP AS A
CONSTITUTION ROLE
o Lawyers expanding/contracting concepts
What is the constitution about?
 Trying to develop a workable government, not an oppressive one
o Went to war with Britain over kings for independence
 Trying to aggregate authority in a strong central government
 Allocating authority to the new central government and the states
Consent
 Preamble
 Declaration of Independence
 Articles of Confederation
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PREAMBLE TO THE CONSTITUTION (1787)
We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defense, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution for the United States of America.
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The Preamble of the Constitution is about…
o Consent
 Voting
o “We the people”
o Purpose: to link together consent with effective countervailing authority
 In essence, whole idea of constitution
 To form a more perfect union; establish justice; domestic tranquility;
provide for the common defense; promote the general welfare; secure the
Blessings of Liberty to ourselves and our Posterity
 6 purposes
 People voted and debated on Constitution
 Needed people to consent
Preamble to the Constitution...
o Where we get the idea of we got a government of countervailing authority
 Three branches of government
 Divided authority
 Centralized authority, but divided power among three powers
o CONSENT
 Where did sovereignty come from?
 It came from us because the people agreed; people today agree
when they stay and are a part of it
 Consent to government of countervailing authority
 To keep making it working
o System of accountability
o Government is subject to change
o This links us with the declaration of independence
o Lays out aspirations
o Constitution presented as a product of the people of the United States
o Drafted as a proposal—then sent out for people to debate and argue over
 Delegates (voted upon) in the 13 states debated vigorously
o Ratification required consent of each sovereign state that wanted to be part of “a
more powerful union.”
 Through the ratification process, the American people exercised not only
their consent, but also asserted general rights “retained by the people” to
determine the way they shall be governed
o We consented to it as a people
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Consent is at the heart of the Constitution—it’s what it is about
 Who can consent? How is it enforced? How can one consent? How
do we express our consent?
o Voting
o Continuing consent is provided to the people by voting
Theme: Constitution as an aspirational document; living and breathing
o Aspirations:
 To form a more perfect union
 To establish justice
 To ensure domestic tranquility
 Harmony amongst the states and people
 Provide for the common defense
 National security
 Promote the general welfare
 Government supposed to be useful
 To secure the blessings of Liberty to ourselves and our posterity
 Freedom
o Aspirations don’t talk about equality, protecting religion, etc.
Balance: The sovereignty of the people against the representative government
Constitution provides for Countervailing Authority and stands against tyranny (and that
we should not be deferential to those who govern)
DECLARATION OF INDEPENDENCE (1776)
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Declaration of Independence: 1776
o Was written before Constitution
What it wanted to do:
o Explain why we were annoyed with King
o Explain why we wanted to be independent
o This is why we’re kicking the British out
o Bill of Particulars
 Historical record of abuses
 Reason to form a different Government
 Cross reference abuses from this to Constitution***
 Where this Bill of Particulars can be found in the Constitution
o Explains political theory of where they’re going
o It is not a dead document (even though it was never ratified by anyone)
 It’s language/concepts can be seen in Constitution
Declaration of Independence
o Purpose
 Making a public announcement of a shared agreement of all 13 states of
USA, that we are saying goodbye to our colonial leaders (Britain)
 We are independent now and we are going to explain what we’re doing
 To explain why we are separating
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What is the political theory on which WE are acting?
 Consent
 1-8 explanations
o Unspoken
 Slavery?
o Bill of particulars
 28 accusations toward the King
DOI (by paragraph)
o Explain why we’re separating
o Political theory on which we’re acting
o Dismissal of the current King of England (call him a tyrant)
o Bill of particulars
 All the bad acts of the King of England
o Hoping England will let us go and leave us be
o Recap of what the states are doing
o Signatures
England did not agree to let us go—led to war
By the 1770’s, there were generations of us born in the US
Declaration of Independence was written by Thomas Jefferson
o Not a good dude
o Slave wife who lived in his basement
Did not take a firm stance on slavery at this point
o Led to civil war down the line
Lays out facts/complaints against the King:
o King was refusing to allow laws that colonial legislatures enacted become actual
law
o King refused to do his job; stalling, delaying, getting nothing done
 Suggesting he’s doing it on purpose to oppress them
o Was annoyed with colonial legislature bothering him—he’s lazy
o He was not letting legislature meet in the usual places; forcing them to go to
meetings at places where it would be inconvenient
o Was annoyed that colonials had a voice in their own governance
 Abolishing representative bodies
 Imposing on peoples’ rights
o Not allowing participation through representation
 Not allowing others to be elected
 Accusing King of a plot to weaken the colonies
o Obstructing laws for the naturalization of foreigners; hindering migration into the
colonies
 Obstructing people from becoming landowners (high prices)
o Not enough courts and judges (because of King)
o Made judges dependent on his will, for tenure of their offices, and their salaries
o King was sending more officials to colonies and they were acting like a swarm to
harass the people
o Had a land army (even during peace) in colonies
 Soldiers were quartered in people’s homes
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 Dangerous; took what they wanted
o Rendered the military independent of and superior to the civil power
o The way he was running Canada was the way he was intending to run us
o Quartering troops among us
o Protected said troops by running mock trials that protected them from murders
they committed against the people
o Cutting of our trade with all parts of the world
o Imposing taxes on us without our consent
o Deprived us of the benefits of trial by jury
 Jurors would’ve been other colonials—protection against King-owned
judges
o Transporting colonials beyond seas to be tried for pretended offenses
o King thought he could expand Canada and gobble up the 13 colonies
o For taking away our Charters, abolishing our most valuable laws, altering the
forms of our government
o King was ruling through legislature
 Suspending our own legislatures
o Waging war against us
o King caused great destruction in attempt to bring us to heel
o Brought mercenaries to the colonies
o Committing war crimes
o King was looking to enter into alliances with Native Americans
Asking for colonies to be free and independent
Want to be absolved from all allegiance from Britain
o We are no longer your colony
Declaration of independence moves from why we ought to be free to that they have
authority from the people to be free and independent
Doesn’t talk about how they would rule once they are free—just states their freedom and
independence
o Articles of Confederation deals with that
Articles of Confederation failed
o Led to Constitution
THE ARTICLES OF CONFEDERATION (1781)
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Articles of Confederation
o Purpose
 The beginnings of what WE wanted as a Nation
 Government derives its powers from the idea of…
 Consent
Plan for Government
o Confederacy
Confederation of States with maximum sovereignty
Adopted by Continental Congress in 1777
o Wasn’t ratified by states until 1781
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Article 6
o Things states can’t do
Article 9
o What federal government can do
Weak centralized government
o Very concerned of replicating a King
You see ideas from this in Constitution (there’s a surprising amount):
o Enumerated powers
o State rights
o War powers and Commander in Chief
Realized they couldn’t fix Articles, thus ended up writing the Constitution
Looking at these three documents allows us to understand where we went
I) Articles of Confederation did not work very well
II) James Madison and Jefferson went to Washington to have him chair the committee
 Wrote a replacement for Articles of Confederation
III) A confederation is a fairly loose arrangement of members
 13 colonies when it was written
IV) They want states to be preeminent, but coordinating with each other
 This is where it fell apart; states became competitive
V) No real reference to executive branch or courts
VI) Basically just deals with states and congress assembled
VII) Intention was to write what states could not do (article 6) and what Congress can do
 Everything else and in between was left to the states
VIII) States were supposed to be sovereign
IX) Tells us what Congress can do and what the states can’t do
 Doesn’t tell us what states can do (the problem)
X) Fails and is replaced by the Constitution
o Article IV: don’t want poor moving around from state to state
o Slaves are not mentioned in Articles
o Freedom of movement for travel and also goods from state to state
o Interstate commerce clause
o Article V: Central government—Congress
o Term limits
 Because they did not want a political class—in Congress forever
o No one in Congress gets a salary
 Problem is only people who can afford to live without earning a living in
Congress—reflects wealth
o Article VI:
o States can’t enter treaties with other countries, Kings, etc.
o Titles of nobility cannot be granted
o What the states may not do
o States were intended to very much be in control of process
o States have no war powers (outside of a few exceptions)
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 Congress has war power
Article VII:
o All officers of or under the rank of Colonel are appointed by legislature of each state
 Senior officers are appointed by Congress
Article VIII:
o All charges of war and other expenses (allowed by Congress) are to be defrayed out
of a common treasury, supplied for by the several states
 Congress was going to decided how much money was necessary and how
much each state would raise—state was then supposed to raise this
 Shows why Articles of Confederation failed
 States rarely ever paid and added it to the common treasury
 Amount asked for was proportionate to land surveyed and
improvements on it
Article IX:
o Congress has sole power on determining peace and war
 Except in exceptions
o Mentions courts
 Talk about creating a judicial system
 But not a judicial branch of government (that’s the distinction here)
 Not a balance of power approach
o Congress controls coin (setting standards)
o Congress regulates trading with Native Americans
o Congress regulating post offices
o Managing committee (one delegate from each state)
 President of committee has term limit of three years
Article X:
o 9 of 13 states have to agree to execute an action
 Committee can execute powers of Congress in recess of Congress with 9
states in agreement
Article XI:
o Welcomes Canada to join
Article XII:
o War debt supposed to be paid by states (never happened)
Article XIII:
o Changes can only be made if agreed on by all the states (after Congress agrees)
o Supposed to be perpetual (it was not because this failed)
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Overlap of the Constitution with the Articles of Confederation
 Full faith and Credit
o C: Article IV § 1
o AC: Article IV
 Privileges and Immunities
o C: Article IV § 2
o AC: Article IV
 Commerce
o C: Article I § 8 clause 3
o AC: Article IV
 One Vote
 Taxes
o C: Article I § 8 clause 1
o AC: Federal government could not impose taxes; could request
EXAMPLES OF DISTINCTIONS BETWEEN THE AoC AND THE CONSTITUTION
Articles of Confederation
Constitution
Levying taxes
Federal courts
Regulation of trade
Executive
Amending document
Representation of states
Congress could request states to
pay taxes (Article VIII)
Congress has right to levy taxes on
individuals
Court system created to deal with
No system of federal courts
issues between citizens, states
No provision to regulate interstate Congress has right to regulate
trade
trade between states
Executive branch headed by
No executive with power.
President who chooses Cabinet
President of U.S. merely presided
and has checks on power of
over Congress
judiciary and legislature
2/3 of both houses of Congress
13/13 needed to amend Articles
plus 3/4 of state legislatures or
(XIII)
national convention
Upper house (Senate) with 2
Each state received 1 vote
votes; lower house (House of
regardless of size
Representatives) based on
(Article V)
population (Article I, section 2)
Raising an army
Congress could not draft troops
and was dependent on states to
contribute forces
Congress can raise an army to deal
with military situations
Interstate commerce
No control of trade between
states
Interstate commerce controlled by
Congress
Disputes between states
Complicated system of
arbitration
Federal court system to handle
disputes between states and
residents of different states.
Sovereignty
Sovereignty resides in states
Constitution was established as the
supreme law of the land
Passing laws
9/13 states needed to approve
legislation
50%+1 of both houses plus
signature of President
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Introduction to the Balance of Powers
Article 1, § 1: “All legislative Powers herein granted shall be vested in a Congress of
the United States, which shall consist of a Senate and House of Representatives.”
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Deals with the legislative branch
o Legislative powers granted to Congress
Doesn’t include President, who is a part of the legislative process
The three branches overlap (Judicial, Legislative, Executive) in balance of powers
o James Madison claims they are all separate, but in reality they overlap
Purposes behind separation of powers and checks and balances:
o Prevention of Tyranny
 Accumulation of all powers, legislative, executive, and judiciary in the
same hands is tyranny
o Efficiency of Administration
 The three-part federal structure was originally seen as a move towards
efficiency
 A modern complaint is that separation of powers creates inefficiency
Youngstown Sheet & Tube Co v. Sawyer (1952)—BALANCE OF POWERS
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Any question on the exam about the executive authority, talk about this case
o Jackson’s concurrence if President is trying to expand authority
o Dissent as well—flipside of Jackson (in favor of President’s power)
Facts:
 In 1951, steel mill owners and their employees had disagreements over the terms of
collective bargaining agreements. Unable to reach an agreement, the steel mill
employees’ representative gave notice of intent to strike after the expiration of their
current agreement.
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Executive order 10340 ordered the secretary of Commerce to take possession of and keep
steel mills functioning in order to prevent a labor strike (higher wages) from reducing
wartime manufacturing. President issued E. Or. 10340 directing Sawyer (D), the
Secretary of Commerce, to take control of and continue operating most of the nation’s
steel mills. Sawyer carried out the order.
o Context was the Korean War was going on
o Truman didn’t go through Congress; issued this order via executive power
 Deals with scope of authority of the President
 Taft-Hartley
o Labor regulation act that President could have used but didn’t want to appear antiunion
Mill Owner Argument:
 The President’s order amounts to lawmaking, a legislative function which the
Constitution has expressly confided to the Congress under Article I, and not to the
President.
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Steel company argues that President is working outside of his constitutional authority
(legislation)
o That authority goes to Congress via article I
o Power issue
The Government:
 (1) Art. II, § 1, Cl. 1: vesting clause, unitary executive theory
 (2) Art. II, § 2, Cl. 1: Commander in Chief
 (3) Art. II, § 3: Take Care Clause
 (4) Inherent Powers
The Court (Black):
 (1) president may not engage in legislative activity without authorization by Congress or
express constitutional authority
o President can veto legislation but can’t vote on it in Congress
 Doesn’t have power for law-making
 (2) Cannot use emergency to invent a new war power
 Fear of Tyranny (Douglas)
 There is no emergency power provision in the Constitution
 (3) Commander-in-Chief of the military but not the country’s industry
 Analogous situation (backdrop of this case): Roosevelt ordering the internment of
Japanese-Americans during WWII
 War time (crisis) decision
 They let it happen
 Not going to make the same mistake this time
Jackson, J. Concurring (most important part of the case)*****
 Test: (No Mutual Exclusivity among the branches)
 Three types of Authority:
 Strongest: Express/implied grant from Congress
 Combines with Presidential authority
 Has his own authority and all that Congress can delegate
 If this had been case, it would’ve brought the strongest presumption
 Burden of persuasion would rest heavily with anyone who would
try to challenge the President’s authority
 Medium: Inherent
 Aggregate of his own power without express grant OR denial from Congress
(silent)
 “Zone of twilight” where both the legislative and executive branches have
powers
 Ex: Matters of Foreign Affairs
 Weakest: Acts in a way that is incompatible with the express or implied will of
Congress
 Must rely on express grant of executive authority
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(Here Taft-Hartley Act explicitly did not contemplate using seizure
to resolve labor dispute and there is no explicit executive authority
that makes this ok. The 5th Amendment prohibits deprivation of
life, liberty, property.)
 Jackson sees this category as a crisis
 Says this case falls into third category
 Points out that the Constitution has no clause for emergency powers
 Say emergency powers have no beginning and no end (no limit)
Justice Douglas Concurring:
 This is a legislative act
 Says only Congress can appropriate money to pay for a program involving a nationwide
seizure of property
 Concerned with creeping tyranny
 Potential for President to abuse power
Vinson, J. Dissenting:
 Executive Authority should be expanded in times of war (Take Care Clause)
 The Executive branch is the only branch that can act swiftly to meet national emergencies
 Interpreted the case as a war powers case
 Says President should have this power because of crisis (war)
 To act quickly
 Claims President’s actions are fully within the actions given to the executive branch by
the Constitution
 Says world has changed and we should change with it
Themes:
 Limits on Executive Authority
 Overlap of the Executive & Legislative Branches
 Constitution in a living document
 Staying faithful to the text of the Constitution
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What we learn: balance of powers is not a fixed concept in the constitution, what is an
emergency? What authority does exec. Order have?
Issue Spotting on Exam: Look for a fact pattern to talk about executive authority (e.g.
National Emergencies Act, war times etc.), discuss using Jacksons concurrence why the Act
expands the president’s power too broadly, then discuss Vinson’s dissent arguing why the
president has the power to expand the executive authority.
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2.) ARTICLE I: THE LEGISLATIVE BRANCH
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Art. I, § 1: Legislative Powers
o §8: enumerated powers of congress
 “if its enumerated, it’s on the list and they have the explicit authority”
 Some are broad, some limited
Article I § 1:
 Broad power BUT limited to what is in the constitution
 (States of legislative powers too)
Article I § 8:
 Preamble in operation
 Enumerated Powers
Article I § 10:
 Understanding the binding nature of the powers enumerated in 8
Article I 9 Cl. 7:
 President cannot take from treasury
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Overlap of the Constitution with the Articles of Confederation
 Full faith and Credit
o C: Article IV § 1
o AC: Article IV
 Privileges and Immunities
o C: Article IV § 2
o AC: Article IV
 Commerce
o C: Article I § 8 clause 3
o AC: Article IV
 One Vote
 Taxes
o C: Article I § 8 clause 1
o AC: Federal government could not impose taxes
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Section 1:
o Legislative powers are granted to the Congress
 Defines boundaries of what power is granted
 Senate and House of Representatives
Congress has a lot of authority
o Defined legislative authority
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o Deals with representation
Section 2:
o House of Representatives
o Tells us who can serve
o Amount of representatives and taxes would be determined by population size of
each state
 Excluding Native Americans and 3/5 of all other people (i.e. slaves)—
3/5ths clause
 To protect slave run economy
o The House can choose its own speaker and officers
 Also, have sole power of impeachment
 Snuck it in
Section 3:
o Talks about the Senate
o Two senators from each state
 Disproportionate representation with every state having two
 Chosen by legislature (voted on by the people today)
o Requirements of age and citizenship
 Need to be a citizen for nine years
 Has to live in state that he represents
o Senate chooses own officers
o Senate judges impeachments
 Can be removed from office
 Party convicted can still be indicted (hasn’t happened yet)
Section 4:
o Time, place, and manner clause
o Deals with elections
 State laws
 If Congress doesn’t like these state laws, can make or alter such
regulations
 Except as the place of choosing Senators
Section 5:
o Each house of Congress determines its own members
o Each house writes the rules of its own proceedings
Section 6:
o Senators and Reps Shall receive compensation for their services (a salary)
Section 7:
o All tax bills must originate in House
 It was thought the House was closer to the people and had a better feel for
what was tolerable/reasonable in eyes of the people
o Talks about voting procedure
 President’s veto
Section 8 (very important):
o Enumerated powers of Congress
 Only those that are written down
o Power to tax and spend
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o Clause 3 is commerce clause
 Was basically the same as Articles of Confederation
o Clause 8 provides for patent law
o Clause 9 allows for Congress to constitute lower courts
o Clause 18 is the necessary and proper clause
Section 9
o Deals with slave trade
Section 10
o Deals with federalism
THE NECESSARY AND PROPER CLAUSE
“Congress shall have the power to… make all laws which shall be necessary
and proper for carrying into Execution the foregoing Powers, and all other
powers vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof.”
ARTICLE I, SEC. 8, CL. 18
McColloch v. Maryland (1819)—national bank; implied powers under N+P
Facts: Establishing the National Bank: The Federal Government establishes Hamilton’s national
bank; Maryland passes a tax on all banks established in the state which were not chartered by the
state legislature; McCulloch was the cashier of the National Bank and refused to pay the tax.
Rule: The constitution specifically delegates to Congress the power to tax and spend for the
general welfare and to make such other 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 its constitutional powers
Issues:
 What authority has been allocated to Congress?
o Do they have the authority/power to create/establish a bank?
o May individual states tax a federally created bank?
Maryland Argument: The constitution was ratified by the states so the federal government is
subordinate state- so by definition the federal government should get its power from the states.
 Necessary limits congressional action to things that are indispensable (narrow reading)
 However, that was the article of confederations, not constitution (thus argument is wrong)
 Marshall rips this argument apart
o It was a convention for the proceedings
 Ordinary people
o The people of the US consented to powers granted to government
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Reasoning:
 Constitution says nothing about banks or corporations
o No express authorization from the Constitution
 Marshall was interested in this case because it was opportunity to extend scope of the
government’s authority
o Uses proper and necessary clause
 Article I, section 8, clause 18
 Necessary and Proper clause
o Very broad clause
 “all other powers vested by this constitution in the government of the
United States, or in any department of officer thereof”
 Not just talking about legislative powers; Any role in Federal
Government (i.e. executive branch) falls under necessary and
proper clause
 Marshall admits there is no mention of banking in the enumerated powers
o But mentions general power to “tax and spend” encompasses this (banking)
 Marshall: implied powers is consistent with the very idea of a constitution
o Gives post office example
 Led eventually to inferred power to deliver the mail—postal workers
 Inferred from implied powers
 You may need to do more things then are written down in article 1, section
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 Marshall talks about ratification by the people and what a constitution is
o All of this wraps around the idea of implied powers—you can’t write everything
down
 Marshall was after a reason for allowing implied powers to flourish under section 8
o Necessary and proper clause would support that approach
o That is what this case is arguing
 In the end, it is about Federalism
 Marshall argues “The power to tax is the power to destroy”
o Arguing that a state could not tax the bank of the US because it was chartered by
Congress, thus that would protect it against state taxation
 Marshall’s reasoning for tax argument
o Supremacy of the constitution over a state law
 Marshall’s summary of case: let the end be legitimate, within the scope of the
constitution, and all means which are appropriate—are constitutional
o Necessary and proper clause being an enumerated power
 Marshall held that it had the implied power to do so under the Necessary and Proper
Clause in order to realize or fulfill its express taxing and spending powers.
Compatible Cases:
 Youngstown (implied authority)
 Comstock (Expansion of Government Authority)
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Themes:
 Federal Legislative Power
 Federal supremacy BoP
 Vertical Federalism
Test:
 Courts interpreting necessary and proper will uphold congressional action so long as
o 1.) Congress employed a means which is not prohibited by the constitution.
o 2.) Is rationally related to the objectives that are within congress’ enumerated
powers under art 1 sec 8
Takeaways:
 Federal government is superior but not supreme
 The necessary and proper clause is congress basis for implied power
o Marshall cleverly convinces the court that the necessary & proper clause was a
limit to Congressional power, but in reality he was using this case as an
opportunity to establish a broad interpretation of federal power similar to the way
he expounded judicial review in Marbury. He didn’t even need the necessary &
proper clause to justify his expansive interpretation!
 Marshall makes clear it is the people not states that ratify the constitution
United States v. Comstock (2010)—indefinite confinement of sexually dangerous
Facts: A federal statute (Adam Walsh Child Protection and Safety Act) authorized federal courts
to order the indefinite confinement of individuals (even after their sentence was served) in the
custody of the federal bureau of Prisons who are deemed to be “sexually dangerous”.
 Government has to prove with “clear and continuing evidence,” and has to first make
every effort to get the state of the individual’s domicile to take responsibility for the
treatment. If they don’t government will place them in a federal facility until (a) he’s no
longer dangerous or (b) state takes over responsibility.
Issue:
 whether the necessary and proper clause grants Congress authority sufficient to enact the
statute before us?
o Individual freedom vs. states’ rights vs. federal power
Rule: The federal statute of indefinite civil commitment of “sexually dangerous” persons is
constitutional.
Majority: Justice Breyer upheld the federal statute by reasoning:
 The N&P clause is broad
 Therefore, statute fits within the scope of congress’s permissible exercise of power
 History of federal involvement
 Balancing test (test has never been cited to)
18


o Necessary and Prop clause allows Congress to do this
o This law is similar to other federal laws
o It protects the communities from dangerous prisoners
o And it respects state interests.
o It is not too sweeping in its scope
Accommodation of State interest
o Does not usurp powers reserved to states (10th Amendment)
Statute’s narrow scope
Reasoning (Breyer):
 Court concluded that the Constitution grants Congress legislative power to enact the
statute
o Use necessary and proper clause
 Breyer writes that the necessary and proper clause is very broad
Implications:
 Civil commitment here—could have widespread implications
o Government power
 Telling us what we can do and think
 Tendency for a power to expand
o Concern that dealing with this narrow issue (with government power) could have
greater implications
o Risk that this will expand
Concurrence (Kennedy):
 Saying that the necessary and proper for congress to protect the public from dangers
created by the federal criminal justice and prison systems
o Says there is a substantial link to Congress’ constitutional powers
 This is a small expansion of N&P clause
 Let’s just deal with this issue as a very narrow issue and small increase of government
power (not in general)****
 They’re saying it only applies narrowly; won’t have much of a difference in the grand
scheme of things
 State powers are not being ignored – so no big deal
Concurrence (Alito):
 Saying that the necessary and proper for congress to protect the public from dangers
created by the federal criminal justice and prison systems
o Says there is a substantial link to Congress’ constitutional powers
 But doesn’t explain that link
Dissent (Thomas):
 Believe N&P is NOT an enumerated power
 Must infuse N&P with an actual enumerated power
 N&P has a limitation this is it
19




Fear federal government expanding
Textualist theory
Necessary and proper clause in Article I, section 8 is much more broad then other clauses
in the section
Says the government identifies no specific enumerated power that allows for this statute
o Limit to the protection government can offer
Test:
 When thinking about government power think this case
 Ask yourself
o What is the risk involved if Congress expands its power to this extent
 Under N&P clause Congress has the power to prescribe sanctions for crimes it creates
Compatible Cases:
 Youngstown (implied authority)
 McCulloch (basis for implied power for Congress)
o Reaffirms the approach taken in McCulloch
Themes:
 Federal Legislative Power
 10th Amendment – Vertical Federalism
FOR EXAM—N&P:




Look for fact patterns that indicate Congress is regulating something
No such thing as federal police power
o If congress is regulating something it has to be acting pursuant to some other
enumerated power
Usually, the government cites an enumerated power and/or inherent powers outlined in
the structure of the Constitution and then uses the Necessary & proper to fill in the gap or
latch on.
Comstock tries to maintain Marshall’s attitude about Federalism but ends up trying to
codify McCulloch’s analysis into a 5-step approach.
THE COMMERCE CLAUSE (ARTICLE I, SEC. 8, CL. 3)
“Congress shall have the power to… regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.”


20
Most Powerful enumerated power
Commerce describes the commercial intercourse between nations and parts of nations, is
regulated by prescribing rules for carrying out





Having barriers to trade amongst the state hindered the economic growth of the US and
the articles of confederation did not provide sufficient powers for the central
government to eliminate those barriers
What did Congress want?
Question: what is moving???
THE COMMERCE CLAUSE HAS 2 DISTINCT FUNCTIONS:
o (1) To authorize congressional actions.
o (2) to limit state/local regulations
Again the main focus is on the scope of government authority and the conflicts that
arise in settings of balance of powers and federalism. Commerce clause cases often
implicate Nec. & Prop. Clause as the court’s way of expanding government’s implied
authority under commerce clause.
MAIN QUESTIONS SURROUNG THESE CASES:
1.) What is Commerce?
2.) What does “among the several states” mean?
3.) Does the 10th Amendment Limit Federal Government power?
ARGUMENTS YOU CAN MAKE AGAINST THE COMMERCE CLAUSE- Statutes that regulate the
‘individuals’ not the states- FEDS CAN’T DO THIS… IT’S UNCONSTIUTIONAL
BECAUSE…
1. THAT’S NOT COMMERCE!
2. THAT’S WITHIN OUR STATE NOT INTERSTATE COMMERCE!
3. THAT’S A ‘POLICE POWER!’ (Health, Safety, Welfare, Morals)
Gibbons v. Ogden (Steamboat license) (Marshall 1824)—broad power under
commerce clause
Facts: Ogden filed suit against Gibbons to enjoin him (got an injunction) from operating his
steamboats in NY waters because he was authorized under NY state law to operate his
steamboats in NY water exclusively (gives value). The disputed route is from NY into NJ.
Gibbons was given the same authorization but by the federal government. Gibbons argues he
was given permission by congress, who under Art. I §8 cl. 3 has the authority to regulate
commerce.
 Two states here: NY and NJ
Rule: Federal Statute trumps state statute and commerce includes intercourse between states
Ogden Argues: NY state statute does trump the constitution, NY upheld, NY state had the right
to regulate their waters as an inseparable attribute of sovereignty, wants federal government to be
limited, government applies only to the space between the states once we get into other state it
goes to that government
21
Marshall: says this is so stupid
 This is Marshall starting to narrow the commerce clause
 Congress has power to regulate this activity; federal regulations trump state regulations
(supremacy)
 Marshall (court): does commerce include the business of transporting goods?
o Comes up with the term “intercourse”—any lawful dealings with another person
o Marshall shows how broadly one can make commerce be defined as
 Very big and inclusive
 Did NYS overstep constitutional bounds by regulating interstate commerce? Court says
yes – NYS statute is invalid! (supremacy clause)
 This case sets the courts on a path—broad interpretation of commerce
Compatible Cases
 McCulloch
 Wickard
Themes:
 Horizontal Federalism
o NY vs. NJ
 Vertical Federalism – Supremacy Clause
o Art. VI cl. 2
o NY vs. the US constitution
Test:
 What is Commerce?
o Commercial intercourse between nations and parts of nations
Takeaways:
 This commercial power does NOT stop at state boarders (intra as well as inter)
 Congressional power to regulate interstate commerce included the ability to affect
matters occurring within a state
 BROAD view of commerce clause power
o Not just buying and selling things but ALL intercourse
 After this
o Post new deal, the court is very deferential to commerce clause power and will
usually uphold activity which “substantially affects” interstate
Wickard v. Filburn (Depression-era wheat farming) (Jackson 1942)—cumulative
effect doctrine; broadening of commerce clause power
Facts: Due to the depression and wartime restriction, the Agricultural Adjustment Act placed a
wheat quota on wheat cultivation and stabilization of prices, Filburn, an Ohio Farmer, exceeded
his quota and was penalized, even though he was using for personal consumption and not selling
it.
22

Agricultural Adjustment Act attempts to control volume of interstate crops to avoid
surplus and shortages, which will negatively affect wheat prices.
o Act regulates production and consumption, not just purchase and sale.
Filburn Argues: That his excess wheat was not being sold in the market, rather he was using it
for his own purposes and therefore it should not be regulated as “interstate commerce”; the
regulation of his wheat is a deprivation of property without due process.
Jackson: Cumulative affect/aggregation doctrine.
 The effects of Filburn (P) failing to be a customer of other’s crops by using his own
wheat
o Failed to be a consumer
o Affected the wheat market
 Affecting demand by not selling wheat and growing in excess for personal consumption
 Movement of the effects of P’s decision to not sell his wheat
o Moved across state lines
o Commerce—commerce clause
 Unanimous Jackson court here agrees – holds up constitutionality of the Act. Controlling
price of wheat means controlling how much is grown, even if it’s grown particularly for
consumption.
 Filburn is producing/eating his own wheat, so he doesn’t have to buy it (this affects
interstate commerce – basic supply/demand)
o Regulation by nature limits self-interest for “greater good”
 Note: nothing here crossed state lines, but was still about the effects of the market as they
would cross state lines.
Compatible Cases:
 Gibbons
Themes:
 Expansive Federal Power
Test:
 Cumulative effect/ Aggregation Doctrine
o is a legal principle that says that commerce clause can regulate a transaction
affecting interstate commerce in a trivial way if this taken together with other
similar transactions establishes a combined effect on interstate commerce that is
not trivial
Takeaways:
 What was moving?
o Effect of his decision
 Reasonably related to protecting commerce
 Furthest court has gone in expanding commerce clause power
 The major underlying tension in this case appears to be one of an individual’s right to
liberty and property vs. the need for government regulation especially in times of
emergency.
23
Heart of Atlanta Motel v. US (racist hotel) (Clark 1962)—broadening commerce
clause; used to right a moral wrong; people as commerce
Facts: Title II of the CRA (Civil Rights Act) held that places of public accommodation
affecting commerce could not discriminate on the basis of race; HAM didn’t allow black patrons;
HAM was accessible to two state highways (contact w/ interstate travel), solicited out of state
business etc.
 Motel advertised broadly
o Billboards, etc.
Issue:
 the constitutionality of the Civil Rights Act of 1964
o Can Congress enact this statute and can it claim the commerce clause (and the
14th amendment) as the reason for enacting it?
HAM argues:
1. The business was purely local so no federal right
a. We are only impacting the heart of Atlanta so federal gov should not apply
2. People CANNOT be commerce; they engage in Commerce.
a. Really?????In the south? What about slavery??!
3. Involuntary servitude (you’re joking)
Reasoning:
 For interstate commerce, you need something that moves
o Here, it is people (paying customers)
 This case became the go-to reasoning for enforcing civil rights through Civil Rights Act
(commerce clause)
 This statute was enacted to deal with a moral wrong
o Invoked power to regulate commerce to do so
Compatible Cases:
 Wickard
o Rule: if we permit them to do this it will substantially affect commerce.
 Katzenbach v. McClung (notes case)
o Ollie’s BBQ (in Alabama) only served whites
o Customers were exclusively local
o Didn’t advertise outside of local clientele
o Court noted that the restaurant purchased 46% of food from a local supplier who
had received it from out of state ($150,000)
o Court upheld the application of Title II of the Civil Rights Act
o The court said, in isolation, the food purchased by Ollie’s from out of state
sources was insignificant in the grand scheme of commerce
o Nonetheless, Court held that Ollie’s affects commerce by getting supplies from
out of state suppliers
24


Upheld Congress’ conclusive presumption that restaurants meeting the
criteria set out in the Act affect commerce”
If African Americans were allowed to eat there, Ollie’s would have to buy
more supplies from out of state
Themes:
 Expansive Commerce Clause:
Test:
 Substantial effect/relation: the test of exercise of power by Congress is whether the
activity sought to be regulated is “Commerce which concerns more States than one” and
has real and substantial relation to the national interest (even in the aggregate)
Takeaways:
 Hotel isn’t moving but the GUESTS are
 The Guest can be commerce too
 Called into question whether the CC had limits at all
 is another example of Commerce acting as a “countervailing doctrine”- functioning as a
means to an end point- here to end racial discrimination.
NFIB v. Sibelius (pt. 1: individual mandate) (Roberts 2012)—stops expansion of
commerce clause to inactivity
Facts: Part of the PPACA (Patient Protection and Affordable Care Act) of 2010, the individual
responsibility payment, required purchasing a minimum level of coverage (individual mandate)
Obama Admin Argues: commerce clause because
1. Hospital cost-shifting
2. Everyone is active in the healthcare market because of the inevitability of sickness and
injury.
3. It is necessary and proper because the individual mandate is a means by which to exercise
CC power
a. It is what you are NOT doing that affects the market
 Inverse of Wickard reasoning = INACTIVITY negatively affects market
Majority (Roberts):
 Freeride problem
o that for people who don’t want health insurance, free riding on those who have
insurance
 Will increase premiums
 People who are not sick at the moment do not need insurance
 Sees this as an infringement of the freedom of the individual
 Congress has a power to regulate commerce, and this presupposes that commerce exists
 You can’t regulate inactivity
25

o Here, people who haven’t bought health insurance
Essentially states that people who aren’t presently sick don’t have need for insurance
Dissent (Ginsburg):
 There may be a short term and long term market, but we will all need health care
insurance at some point
 Question of when, not if
 Sees this as regulation of the market
Compatible Cases:
 DISTINGUISHES Wickard >existing activity
Themes:
 Limit to CC power: Role of Congress
Test:
 Congress cannot use Commerce Clause power to regulate inactivity by compelling
market participation
 Roberts wanted to uphold the act just not using CC so he uses Tax clause
Takeaways:
 Roberts refused to open the door to this expansion of Congressional authority
 Uphold ACA while drawing boundaries around CC
 If under CC this would have been an enormous expansion
 This case: clipping the wings of the commerce clause
o Think commerce clause has gotten too big/expansive
Implications of the Commerce Clause
 Generally, expands congressional authority
 Commerce as having a fixed and flexible meaning
o Fixed:
o Flexible:
 Implicating Issues of Federalism
o Horizontal: States wanting to isolate themselves from other states like
Heart of Atlanta (see also state immunity intra)
o Vertical: Federal Government imposing on states like Gibbons v. Ogden
and Wickard v. Filburn (regulating even local level/individual commerce)
 Marshall in McCulloch vs. Marshall in Ogden:**
o Similarities: Federal wins over state
o Differences: in Ogden, he admitted the states have more power than he
did in McCulloch.
26
Case
Gibbons v.
Ogden
(Federalis
m Case)
Statutes
(1) NY State
(2) U.S.
Congress
Issues
Implications of
Action by Congress
Whether the state
can act once
congress has (is
congress’ power
plenary)
What Moved
Ships and Cargo
(Goods)
Outcome
Congress wins
Wickard v.
Filburn
(1)Agricultural
Adjustment Act
of 1938
(1) What is
Commerce:
Designing a Market
and Economic
Effects
(2)
Farmer
Filburn as
producer/seller and
consumer/buyer
What is Commerce:
legislating morality
Economic
Effects
(Broader Concept
of Commerce =
inactivity)
Unconstitutional
on its face vs.
Unconstitutional as
Applied
Guns? (court
disagreed that
guns were
commerce)
Economic Activity
as an effect on
commerce
(could work under
the Heart of Atlanta
schema?)
Effects of
gender-based
violence
[and arguably the
entire common law
of property]
Heart of
Atlanta
Motel v.
United
States
(1) Federal Civil
Rights Act (and
United
States v.
Lopez
§922 Gun Free
School Act
United
States v.
Morrison
Statute
providing a
legal remedy for
victims of
gender-based
violence
27
(the entire U.S.
market for wheat,
and potentially the
global market)
People/Customer
s
past laws re:
segregation)
(and some Texas
state law that
would’ve been)
(congressional authority
is plenary—NY
claimed they could give
a monopoly)
Congress has
authority because
racial
discrimination itself
has been shown to
effect interstate
commerce.
Congress does not
have authority
because the statute
is too remote from
affecting interstate
commerce.
Congress doesn’t
have the authority
to regulate violence
against women
because it’s not an
economic activity.
Gonzales
v. Raich
NFIB v.
Sebelius
28
California
enacted the
Compassionate
Use Act that
allowed the use
of medical
marijuana
within the state
by persons
needing it for
legitimate
medical
purposes.
[Obama Care]
California residents
wanted injunctive
and declarative
relief against the
federal statute
prohibiting personal
medical use of
home-grown
marijuana
Marijuana profits
Argued that
Costs of
Congress had the
Healthcare
power to enact this
under the commerce
clause because the
health care market
is characterized by a
cost shifting
problem because
everybody
eventually needs it
though many don’t
have it
Congress does have
the power to
regulate home
grown marijuana
because if not, it
would frustrate the
Controlled
Substances Act and
its purpose.
Congress does not
have the power to
regulate the nonexistence of activity
SPENDING POWER
“Congress shall have the 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.”
ARTICLE I, SEC. 8, CL. 1
 Broad reading
 The spending power gives Congress leverage over states
South Dakota v. Dole (highway funds/drinking age) (Rehnquist 1987)
Facts: 23 U.S.C sec. 158 directed the Secretary of Transportation to withhold 5% of federal
highway money from states with a drinking age under 21 y/o to combat drunk driving.
 Federal funding for highways would be taken away if state didn’t switch drinking age to
21
o 5% would be taken away (not a huge amount in grand scheme)
SD Argues: alcohol is a special case; the 21st Amendment leaves drinking regulation to the states
 South Dakota argues this is an unconstitutional congressional exercise of spending power
and a violation of the 21st Amendment.
Reasoning:
 Court: Percentage of funds they would lose is small
o Not enough to be coercion
 Court holds that this is a legitimate use of the spending power
 Congress doesn’t have the power to directly regulate drinking ages, but they can attach
stipulations to receipt of federal monies as long as it’s in the pursuit of the “general
welfare of the United States,” states have the opportunity to exercise choices knowingly,
and conditions are somewhat related to the federal interest.
o Creating an incentive
 The withholding of 5% is not so coercive such as to force states to comply.
Compatible Cases:
 DISTINGUISHED from NFIB pt. 1
Themes:
 Vertical Federalism
Test:
 Spending power use is constitutional if... REHNQUIST 4-part test
1. Promotes the general welfare
2. Conditions are unambiguous
3. Relates to federal interest in a particular national project/program
29
4. Conditions imposed cannot be coercive, this is where the problem comes
a. This is a difficult decision, it is not coercive
b. Federal government is not entitled to give money to states
Takeaways:
 O’Connor Dissent:
o Nexus is insufficient--- not reasonably related to interstate construction of the
highway system; (3) above
o establishment of a minimum drinking age isn’t sufficiently connected to interstate
highway construction to justify funds being spent for that purpose.
o Accident rate
o Agrees in principle not application
 This is still the central case of spending clause jurisprudence
 This case shows there are no real limits on the spending clause
o They don’t have to be authorized to spend money for particular thing
 Federal government can use its spending power to implement federal law and get the
state to comply with federal law as long as it IS NOT coercive
Exam: Think about how implied powers in the relationship in authority to broad powers of the
spending clause, differentiate, or say how they work together
NFIB v. Sebelius (pt. 2; Taxing power) (Roberts 2012)—boundaries around
spending clause
Facts: Constitutional challenge to the Medicaid expansion part of the ACA, which gives funds to
the states on the condition that they provide specified healthcare services to people with income
below a certain threshold.
 Generally, to get money from Medicaid, states need to comply with federal regulations,
but the ACA expands Medicaid and also gives states more funding. If states fail to
comply with new coverage requirements, they’ll lose all funding for Medicaid (all or
nothing)
 States say this exceeds congressional authority under the spending clause (coercion,
similar arguments as South Dakota v. Dole)
Obama Admin Argues:
1. The mandate imposes a tax on those who don’t buy the product
State Argues:
1. Compelled to do something because it is such a good offer
a. This is coercive/compulsory
2. Federal government is paying too little
a. Federal government is putting so much money on the table that you have to take it
but then paying 10% is not enough money
30
Roberts (majority court):
 states need to have a legitimate choice whether to accept regulations or not in exchange
for federal funds. Here, there’s no choice – loss of over 10% of a state’s overall budget is
way too much.
o Gun to head of states
 “danger is heightened when Congress acts under the spending clause because congress
can use that power to implement federal policy it could not impose directly under its
enumerated powers”
 Roberts narrows the doctrines of the boundaries of the commerce clause directly, with the
taxing power, and now puts “mouse traps” in the jurisprudence around the spending
power.
Concurrence (Scalia): the large tax and grant will leave some states with no other choice than to
participate. Congress would be allowed to dictate police in state and local levels which oversteps
their power. Moreover, courts should not conclude that legislation is unconstitutional on this
ground unless the coercive nature is unmistakably clear.
 Consistent with Dole
Dissent (Ginsburg):
 Spending clause permits the Medicaid expansion exactly as congress enacted it.
 States do not enjoy a right to this money, they enjoy only the opportunity to accept it.
 Temptation is not coercion.
 The states themselves are choosing to exclude their own people
Compatible Cases:
 DISTINGUISHED Dole (coerciveness)
Themes:
 Federalism –federal—state collaboration
Takeaways:
 Commerce clause was trying to be used at an expansion in NFIB pt. 1 so Roberts used
Taxing power
 Use Rehnquist 4-part restrictions test: (1) must promote “the general welfare”; (2) must
be unambiguous; (3) relate “to the federal interest in particular national projects or
programs”; and (4) other constitutional provisions may provide an independent bar to the
conditional grant of federal funds.
o Builds boundaries around spending clause
o This was unduly coercive-not constitutional under spending power
NOTES:
 How does this compare and contrast with South Dakota v. Dole?**
o Connect Commerce Clause in tension with the spending clause in this case
o How would MARSHALL have decided this case?
31
 He probably would’ve been on Team Dissent with Ginsburg
o Do we think Roberts was more concerned about coercion than Rehnquist was in
Dole?
 Yes. Roberts was very concerned with the cost, and talks about coercion,
because of the states would lose 10% their entire funding for Medicare.
o How to make the spending clause work: Suspend the idea that states have a choice
Exam: think about the ways courts have approached the building of constraints around
enumerated powers
32
3.) Article II—Executive Branch

Article II Sec. 1, cl. 8
o The Oath of Office
o Acknowledgement that the president has a moment of humility, he is serving us,
he is working for the people (limitation)
o Reading that suggest that there are limits to the executive branch “not a king—a
man doing his best”
o Does it limit or expand the role of the executive?
 Article II, Sec. 1, cl. 1
o Vesting Clause
o Interpreting THE
 The powers discussed in this article
o Doesn’t tell what executive powers are
 Broad
 Article II, Sec. 2
o Commander-in-Chief
o Clear and not clear that there are more “war powers” (not constitutional, it is an
informal concept of the aggregate that all the government can do to have a war)
elsewhere
o The President cannot declare war (Congress)
o But President can make war
o Executive Oversight
 Expansion of authority
o Treaty Power
 Article II, Sec. 2, cl. 2
 But not fully..
 Yes, the president is entrusted to negotiate treaties but congress has to
enforce/sign off
o Pardon Power
 Article II, Sec. 2, cl. 1
 Always do this at the end of every administration
 Limitation: can only pardon someone charged federally
 Article II, Sec. 3
o Take Care Clause
 Huge pillar of the executive
 Assignment of an obligation and grant of authority
 He can suggest legislation
 He can take care, make suggestions, urge things be done
Limits and Overlap?
 Congress
o Art. I sec. 8: war power
33
o Art. I sec. 7: Presentment Clause
 Bill must be presented to President
Big three powers of the president:
 Vesting Clause
 Take Care Clause
 Commander-in-Chief power
In which of these powers does the legislative branch have a role?
 Making treaties
 Appointment power
 Declaration of war
 Funding and regulating military forces
 Conducting foreign policy
Roles of the President in the Legislative Process
 Propose legislation and provide information to Congress
 Presentment and decision to sign or veto legislation
 Response of Congress to veto by president
o Try to override presidential veto
SIGNING STATEMENTS
A Written pronouncement issued by the president of the US upon the signing of a bill into law.
They are usually printed along with the bill in US Code Congressional and Administrative News.
Purposes
1. Explaining: provides guidance to the public on relevant legislation
a. Explaining to the public what the President believes to be the likely effects of its
adoption
2. Directing: subordinate officers on how to administer (and interpret) the new legislation
a. *Very Controversial- (i.e. because Agencies begin enforcing statues in
accordance w/ amended interpretation & not how Congress intended)
3. Informing: congress and the public as to the administration’s interpretation of the
constitutionality of the legislation
a. If something isn’t constitutional; DON’T SIGN IT
Theme: collaborative federalism
Creating Legislative History
 Most controversial use BECAUSE
o Courts give weight when construing enactment  creating a record
34
Argument For:
 The president as a matter both of constitutional right and of political reality plays a
critical role in the legislative process
 If president thinks its iffy, he can say that in the signing statement- I am going to
implement in a way that mitigates dangers
o Can also not sign if he thinks it’s unconstitutional
 Give the president a broad scope and some might say he is authorizing outside his power
o Other may like this and say yay you are going to make this better
Argument Against
 The president cannot speak for congress, which is an independent constitutional actor and
is specifically vested with all legislative powers herein granted
The Point: Interrelation of the three branches
 We care about what the president thinks, but he doesn’t have unilateral authority to sign
outrageously unconstitutional bills
 But it’s also up to Congress to make laws, not the president
 And the judiciary’s job to interpret whether or not something is unconstitutional

Additional Important Notes:
o Can be argued that it is akin to LINE ITEM VETO POWER.
 Line item veto: not allowed because president is actually striking
language from the law
 Difference in signing statements: the language still exist, the pres has just
offered his opinion (persuasive opinion) but the law will still be on the
books
o Almost every administration has used signing statements dating back to Pres. Jackson
(1800’s)
o Memo gives FAR more latitude to the Executive than the court in Clinton v. NY
 Says it’s consistent but then says constitutionality interpretations are ok after
legislation is enacted
Are Signing Statements constitutional?
 Maybe Yes, for uses 1 & 2- explanatory, directions to its agencies on how to execute
President can choose to ignore/disagree with the Court.
 Probably not for uses 3 & 4. Exceeds scope of the Article II powers; President is getting
around Congress to promote his own agenda
EXECUTIVE ORDERS

35
A Signed, written, and published directive from the President of the U.S. that manages
operations of the Federal Government.
Executive orders do have the full force of law since issuances are typically made in
pursuance of certain Acts of Congress, some of which specifically delegate to the President
some degree of discretionary power or are believed to be based in a power inherently granted
to the Executive by the Constitution. It is these cited or perceived justifications made by a
President when authoring Executive Orders that have come under criticism for exceeding
Executive authority.
Executive Orders v. Signing Statements
1. EO DOES NOT depend on any legislation
2. Signing Statements are executive interpretations/implementation of Congressional action
whereas executive orders are executive action BASED EITHER on powers delegated by
Congress or executive powers
3. Congress also can’t do a lot about signing statements but can about executive orders
o Not grounded in the Constitution: inherent/implied power/2 constitutions
o Carries the force of law IF SUPPORTED BY CONSTITUION/ACT OF
CONGRESS.
 Youngstown:
 Tripartite scheme in Jackson’s concurrence directs on when these
carry force of law
o Case-in-point: Truman didn’t want to stop the strike because
that would offend his base, so he took the nuclear option
o Negative Legislative History surrounding Taft-Hartley
o Presidents may: Repeal, revoke, or alter the executive orders of a previous
administration
WHEN EXECUTIVE ORDERS BECOME PROBLEMATIC: Too much power to the Unitary
Executive leads to creeping Tyranny
Frankfurter’s opinion in Youngstown: “The Framers with memories of the tyrannies
produced by a blending of executive and legislative power rejected that political
arrangement.”
EXECUTIVE AGREEMENTS
International agreements that enter into force without the advice and consent of the Senate.




36
Executive agreements are binding internationally if they are negotiated and entered into
under: the president’s authority in foreign policy, as commander-in-chief of the armed
forces or from a prior act of congress
o an agreement between the United States and a foreign government that is less
formal than a treaty and is not subject to the constitutional requirement for
ratification by two-thirds of the U.S. Senate.
May not CONTRADICT existing federal law or constitution
Broad flexibility because they don’t have to be ratified by the senate
The courts: have always ruled in favor of the president when there is an executive
agreement involved
o Massive expansion of Executive Foreign Affairs Power


Must notify Congress within 60 days
Does the constitution mention executive agreements?
 NO
 In Dames & Moore
Signing Statement
Executive Order/Memo
Executive Agreements
Definition
A written pronouncement
issued by the President of
the United States upon the
signing of a bill into law.
They are usually printed
along with the bill in
United States Code
Congressional and
Administrative News
A signed, written, and
published directive from
the President of the United
States that manages
operations of the federal
government
International agreements
that enter into force
without the advice and
consent of the Senate
Purpose?
1. To explain to the public
president's
interpretation
2. Direct subordinates in
the executive how they
should interpret bill
3. Can be used to inform
congress and the public
what provisions the
president finds
unconstitutional.
Timing
Effect
Constitutional?
37
Communicates a legal
directive + its rationale to
executive agencies and
subordinate officers.
Used to conduct foreign
affairs
Dames & Moore v. Regan (1981)—Iran hostages; executive agreements
Facts:
 Upon the seizure of American hostages from the embassy in Tehran, President Carter
seized all U.S.-Based Iranian assets, and authorized pre-trial attachment of Iranian
property pending final judgment. President Carter then entered into an Executive
Agreement with the Iranian government, securing the release of American hostages in
exchange for (1) the nullification of attachment of Iranian assets and (2) transfer of all
claims against the Iranian government to binding arbitration tribunal. The government in
Tehran refused to conclude the agreement with the Carter Administration, and so newlyelected President Reagan used executive orders to establish the incoming administration’s
support for and execution of the executive agreement.
o Part of the Exec. Agreement held that all lawsuits between Americans and Iran
would be arbitrated/terminated (to encourage diplomacy).
o Does the President have the authority to nullify claims pending in courts?
 Rehnquist majority says YES.
 Challenged by Dames & Moore, which filed a claim for breach of contract against Iran
for &3.5 million relating to construction work performed on Iranian nuclear powerplants
Were the President's actions constitutional in this case?
 Yes
Reasoning (Rehnquist):
 This case is about an extraordinary situation
 Congress never voted on this
 Executive agreement to end a diplomatic crisis
 Executive agreement for something that should be a treaty
o Something Congress/Senate should’ve been considering
o In warp speed with human lives on the line
 In this case remotely presidential for future cases?
o Precedent—highly unlikely here
 Do president (two presidents here) have the power to do this?
o Extraordinary circumstances
 This case deals with the question of emergency
 It came together because nobody objected and nobody thought it would be a repeatable
offense
Freezing assets:
 The president relied on IEEPA (which constituted specific congressional authorization)
38
o After our embassy was seized in Iran, President Carter declared a national
emergency pursuant the International Emergency Economic Power Act and froze
Iranian Assets to encourage the safe return of our hostages.
o Operating in ZONE 1 of YOUNGSTOWN
The Suspension of Claims Through Executive Agreement.
 The IEEPA did not explicitly authorize the president to do this.
 Failure of Congress to specifically allow this does not mean they disproved of the
President’s ability to do it
o Saw LEGISLATIVE INTENT to give the president discretion/independent power
o Silence as acquiescence.
 Operating in ZONE 1 OF YOUNGSTOWN
 References:
o Youngstown


Distinguishable from Youngstown
o Not a war issue; but a foreign affairs issue, framing important
NARROW HOLDING:
o Does not mean that the president has plenary power to settle all claims
o Only applicable when necessary to resolve a major foreign-policy dispute and
Congress acquiesces in the President’s action.
Medellin v. Texas (2008)—Executive Agreements; treaty
Facts:
 Medellin had been sentenced to death for murder in Texas. Medellin petitioned a Texas
court for habeas corpus on the ground that he was never notified of his rights under the
Vienna Convention (To contact his embassy). This was denied. The ICJ (International
Court of Justice)—addressing when one nationalist of another country commits a crime
in a different country---then ruled in Avena, that 51 Mexican nationals, including
Medellin, were entitled to have their convictions reviewed. President George W. Bush
issued a memorandum instructing the states to comply with U.S. obligations per Avena
(President said we are a member of the UN and therefore we should review these cases to
be consistent with the ICJ). Based on this, Medellin again petitioned for habeas corpus.
Issue:
 Whether the ICJ’s judgement was directly enforceable as domestic law in a state court in
the United States?
 Does the President’s memorandum independently require the States to provide review
and reconsideration of the claims of the 51 Mexican nationals named in Avena without
regard to state procedural default rules?
Holding (Roberts):
 No. Neither the presidential memo nor the ruling of the ICJ is enforceable on the states.
 ICJ said they should hear them and Bush agreed, BUT ICJ is not binding in the U.S.
39

In the absence of congressional legislation, the treaty at issue did not expressly or
impliedly vest the Prez w/ the unilateral authority to change it… It does not fall in the
first category of the Youngstown framework.
o Court also rejects the assertion that it is justified on the same grounds as Dames &
Moore- mainly long-standing Congressional acquiescence re: foreign affairs- but
this MEMO is unprecedented action!
Reasoning:
 Jackson Framework:
o Medellin wants to be in Zone 1
 Dames and Moore – congressional intent and acquiescence which the
court interpreted as implicit approval
o Actually operating in Zone 3
 This is not a self-executing treaty (treaty which requires no implementing
legislation per the terms of the treaty)
 Non-self-executing treaty: it had to be ratified under the laws of each
country, we ratify through senate, has to be enabled by domestic
legislation
 So it was made with the understanding that it would not have
domestic effect, unless there is some form of statute passed
 Theme: Federalism and Balance of Powers
 Refutes the idea ratifying parties vested the President with the
authority to unilaterally make treaty obligations binding on
domestic courts, and also implicitly prohibits him from doing so
o Notice here, implicit approval in the last case, disapproval
here
 Roberts: transforming an international obligation from a non-self-executing treaty into
domestic law falls to Congress
o This case deals with balance of powers (in part)
o The President can’t do this by an executive action
o This is akin to Youngstown
 Roberts: The requirement that Congress, rather than the president, implement a non-selfexecuting treaty derives from the text of the Constitution, which divides the treatymaking power between the President and the Senate.
o Congress makes the laws, President executes them
 Roberts: A non-self-executing treaty needs domestic authorization for it to have domestic
effect
o Congress authorizes this, not the President
 Medellin argues that the President’s memorandum is a valid exercise of his “Take Care”
power
o Roberts argues that this authority allows the President to execute the laws, not
make them
 Avena judgement is not domestic law, thus President cannot rely on his
Take Care powers here
 Is not US law
40


Silence as Prohibition
Take Care Clause?
Dissent (Breyer):
 Zone 2 Argument
o Says congress neither specifically authorized nor forbade the action in question
o Foreign affairs trump state
o Executive has inherent power to carry out treaty obligations
Youngstown
Domestic dispute
First time deciding issue
of its kind.

Dames and Moore
Issue: Executive settlement of
claims/Foreign Policy/Brink of
War
Had precedent to establish ability
to do so
Medellin
Issue: Treaty
No past precedent here
Exam: If congress is silent on an issue analogize to Dames and Moore or Medellin.
Compare and contrast how facts are the same or different. Look to how Youngstown
plays a role. What zone of authority are we in? Look to your themes.
LINE ITEM VETO
Clinton v. City of New York (1998)
Facts: Clinton issued line-item vetoes for one item of direct spending under the Balanced Budget
Act and two provisions of tax benefit under the Taxpayers Relief Act.
 Line Item Veto Acts—power of an executive authority (president, here) to nullify or
cancel specific provisions of a bill (usually a budget bill) without vetoing the entire piece
of legislation
The Line Item Veto Act:
 The Line-Item Veto Act gave the President the power to “cancel in whole” three types of
provisions signed into law.
o (1) any dollar amount of discretionary budget authority
o (2) any item of new direct spending; or
o (3) any limited tax benefit
 This gave the president too much power
Government Argues: LIVA (line item veto act) is ok because:
 (1) Cancelled items retain legal effect insofar as it prevents reallocation of the money
under a lockbox clause
 (2) Similar to discretionary suspensions of important duties
41

(3) Authority to cancel taxes is the functional equivalent of President exercising
appropriation power
Reasoning (Stevens):
 No provision in the Constitution giving the Prez power to enact, amend, or repeal
statutes, and use of the Line item Veto is equivalent to a partial repeal. While the Court
agrees that the Act violates the specificity of the Presentment clause, they are careful to
narrow its holding & not say that it necessarily disrupts the balance of powers among the
branches.
o Court (Stevens): no provision in Constitution that allows President to amend/alter bill
after it has been enacted
 Can the Congress and President (acting together) change the Constitution?
o This is what majority thinks is going on here
 Court: congress lacks authority to allocate enough authority to President to use this Line Item
Veto
o President can’t change meaning of act once bill is passed
Themes
 Balance of Powers, Textualism
Compatible Cases
 Youngstown (concerns; tyranny)
Tests
 Difference between return of a bill under the Presentment Clause and Cancellation of
already enacted legislation under the LIVAS
o Cancellation authority violates the Presentment Clause
o “The power to enact statutes may only be exercised in accord with a “ single
finely wrought and exhaustively considered, procedure
” (the constitutional design that is to carefully balance the branches of
government.)
Takeaways
 Holding did not have to do with whether Clinton did something wrong in regard
to the line-item veto act. The holding was that the line-item veto act is unconstitutional in
total.
 This case is a puzzle
o How we look at separation/balance of powers
 Conclusion: some things are beyond the scope of the ability to write a statute that go too far
o Dangers that could arise (don’t in this case, but could)
Concurring [Kennedy]:
 Separation of powers is central to ensuring that each branch of government is able to
vigorously assert its proper authority. The Act increases the power of the President
42

beyond what the Framers envisioned, thereby compromising the political liberty of
American citizens
We need centralized government for things to work: “effective but dispersed.”
Dissent (Scalia):
 BoP issue (balance of powers)
 Congressional cession of power dosen’t make it ok
 Delegation Doctrine: When it’s gone too far are the real issues
 this doesn’t violate the presentment clause, it just violates separation of powers if
anything. But, Congress has the right to tell states how to spend money, so president has
the right to do so as well.
o Problem with Line Item Veto Act is that it’s overbroad, and allows the President
to cancel more than items relating to spending But, president’s particular action in
this case is fine, because it relates to spending
 They suggest that the Separation of powers is the main issue here, not the Presentment Clause
43
4.) ARTICLE III—JUDICIAL BRANCH
Article III § 1
 Provides for the establishment of Supreme Court
 Provides for the establishment of the rest of the judiciary
 Doesn’t give us a whole lot of specifics
 We have our 3 level courts (trial court, appellate, supreme court)
Article III § 2
 Basis for Federal Question Jurisdiction
 What kind of cases these courts can hear
Two Functions of Federal Judicial Power :
1.) Review acts of Congress—judicial review (Marbury v. Madison)
2.) What kind of cases these courts can hear(Martin v. Hunter's Lessee)
Marbury v. Madison (1803)—judicial review; established the authority of the SC to
declare a law/statute unconstitutional
Facts: Adams makes midnight appointments (as his last day in office as President) and directs
MARSHALL (his Sec. State) to deliver them, which doesn’t happen because he was busy
swearing in Jefferson. Jefferson orders HIS Secretary of State, Madison, not to deliver them
upon taking office. Marbury, an appointee of Adams, seeking a Writ of Mandamus (basically
injunctive relief) to get his appointment, invoking the Judiciary Act of 1789. Pass this act so
that the midnight judges can be on the court. Not about the role of the court at all, but
Marshall decided that SCOTUS would decide what was constitutional or not.
 Congress had authorized the Supreme Court to issue writs of mandamus as part of the
Judiciary Act of 1789, so Marbury brought his action under the Court's original jurisdiction.
Themes:
o Balance of Powers: Restricted Legislature
Compatible Cases
44
o McCulloch
Reasoning:
 The Supreme Court has the authority to review laws and legislative acts to determine
whether they comply with the United States Constitution, and that we are all bound by
the constitution.
 The Court could not issue a writ of mandamus
o Legal rationale: article III (section 2, clause 2) and section 13 of the Judiciary Act
of 1789
o Judiciary Act of 1789 (instituted by George Washington)
 Is technically a lawful way of proceeding under the constitution (as this
was made by Congress)
 Mandamus is allowed to be issued under this act
o Article III (section 2, clause 2)
Holding:
 the court lacked jurisdiction, and the Judiciary Act was unconstitutional, so the entirety of
the opinion was dicta.
o BUT Marshall used the opinion to establish the judicial branch as having the
responsibility to weigh the constitutionality of laws and “say what the law is”
and declare laws void.
 Court has authority for judicial review
o However, Marbury doesn’t get commission, as it is ruled that the court does not
have the jurisdiction to give it to him
o Marshall’s real purpose in this case was the enlarge the purpose of the court and
get himself out of the spotlight
Issues and Tests (there are 3 issues but only the last one gives the case its famous
significance) It was about the conflict of laws.
o Do Plaintiff’s have a right to receive their commissions?
o Yes, they became entitled to their commissions once they had been signee by
Adams and sealed by the Sec of State
 Sec. State’s duty is not discretionary, it is required by law
 It is a Ministerial Act: An automatic act by virtue of the office,
whether someone wants it to happen or not
 Political act: Act that requires political judgment appointment,
we can’t enforce who is appointed but he must be appointed
o Does the failure to deliver the commissions entitle Plaintiff to judicial remedy?
o Yes.
 Political Question Doctrine: Courts have a right to hear not only a
right but an obligation
 Federal courts will refuse to hear a case if they find that it presents
a political question.
o Can the remedy sought by Plaintiffs, the application of a writ of mandamus to the
SCOTUS, be granted?
45
o If the SC identifies a conflict between a constitutional provision and a
congressional statute, the court has the authority and the duty to declare the
statute unconstitutional and to refuse to enforce it ***
 "It is emphatically the province and duty of the judicial department to
say what the law is"
 The Judiciary Act statue in this case is unconstitutional because of
jurisdictional issues because it was adding to Article 3 Sec 2 and they
would have had to amend the constitution and they didn’t want to
 Significant because Marshall says that the Supreme court is entitled to
declare whether a statute is unconstitutional
Takeaways:
 This case established the authority of the federal courts to declare a law passed by
Congress unconstitutional and therefore void.
o Marbury is about the balance of power at the national level, It claims that the
Judiciary is the final voice to interpret the C.
 This case is John Marshall using this platform to stake out the position that courts can
review actions taken to see if they’re consistent with the constitution
o This case is not really about writs of mandamus, is really about how broad is the
power of the Supreme to review action of the Congress
 Establishes political Q doctrine like in McCulloch
 This is a massive Balance of Powers issue cloaked by a jurisdictional conflict
between The Judiciary Act of 1789 § 13 and Article III, Section 2
 This case is at the heart of the power of the supreme court
Martin v. Hunter’s Lessee (1816)—Power of Federal courts to invalidate state laws;
appellate review
Facts: The Federal Jay Treaty reconciled land disputes with Britain who assigned VA land to
Lord Fairfax who assigned it to Martin. VA statute voided that and assigned it to Hunter’s
Lessee. Conflict between federal treaty and VA statue that invalidated the federal treaty
 two conflicting claims to own land within the state of VA. Martin claimed title based on
inheritance from Lord Fairfax (British Citizen, who under a treaty had protected
ownership in the land). Hunter claimed he had title before the treaties were in effect.
Ownership depended on interpretation of the treaty.
o Treaty of 1783 vs. Virginia Statute in 1789 that voided that treaty.
o 1794 federal treaty confirming British land titles
Issues:
 When can Supreme Court exercise appellate jurisdiction in a case that involves both state
and federal law?
VA Argues: State Sovereignty (oof)
46
Court reasoning:
 enough no more talking about this, we invoke supremacy clause this is asked and
answered
Themes
 Federal supremacy: national citizenship
 VERTICAL FEDERALISM
Compatible Cases
 McCulloch; Marbury
Tests
 Supreme Court may rely upon its appellate jurisdiction to review the constitutionality of
the decisions of the highest court of a state
 State supreme court cases can be viewed by the Supreme Court of the United States
1. Cites to the supremacy clause (Art. VI Cl.2)
Takeaways
 In Martin even if state has acted validly, the Fed G can enact retroactive regulation or
enter into a Treaty which nullifies state law… BUT the FED COURT WILL DECIDE
THE Constitutionality of the law.
 Role of the federal courts
 Marshall
 Central Importance: federal law can take precedence over state law interpreted by
supreme court of the state
Now _28 USC 1257_: Decisions by the highest court of a state may be reviewed by
the SCOTUS where it may be repugnant to the constitution
47
5.) HORIZONTAL VS. VERTICAL
FEDERALISM
VERTICAL FEDERALISM

relationship between inferior and superior elements of gov (fed to state, State to
municipal, municipal to people)
10th Amendment: “Reserved to the States”
“The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.”





Whatever is not explicitly allocated to the fed gov is given to the states
We know that there is a category of powers reserved to states just don’t know what they
are
If constitution is silent on a power, then it is a reserved power to either the states or the
people
Does the state legislature have the authority to declare someone, who the people did not
majority vote for, the winner of an election? (seeing this today)
Reinforces the principle that the powers of the federal government need to be specifically
authorized
Art. I § 10 Cl. 1-3: “No state Shall”
 Conduct Foreign Policy of its own
 Print its own Currency
 Make its own rules interfering in contracts
 Grants titles of nobility
 Impose excise taxes on trade
 What do all these rules have in common?
Art. VI Cl. 2-3: “Supremacy”
 2: This constitution (Federal Law) is supreme
 3: Judges will be bound to uphold it
o Also applies to military officers
 Includes treaties
 Has limits
 Doesn’t cover everything
48




Post-Civil War amendments (13, 14, 15)
XIII Amendment
o Abolishing slavery
XIV Amendment
o Section 1
 Citizenship—born or naturalization
 Much of the controversy is centered around this section
XV Amendment
o Voting rights will not be discriminated on the basis of race
o Everybody can vote
o This concept led to lots of violence
HORIZONTAL FEDERALISM
Dormant Commerce Clause
 refers to the prohibition, implicit in the Commerce Clause, against states passing
legislation that discriminates against or excessively burdens interstate commerce
 if you are two states and want to agree on something, you can if the federal
government hasn’t already acted
o Constitution does not address it
 Only addresses the commerce clause
 A-textual idea
o It is a limit on state powers
o Even if congress has not specifically passed something the DCC is
there
 The Federal Commerce Clause is what is “dormant” in this equation.
 Based on the premise that courts don’t like discrimination against out-of-state
residents and does not consider promotion of the locals’ interests legitimate policy
objective
 Tell-tale signs: NO federal statute at play; Congressional SILENCE
DORMANT COMMERCE CLAUSE
Wilson v. The Black Bird Creek Marsh Company (1829)
Facts: Delaware authorized the construction of a dam in a creek which flowed into the DE river.
A federally licensed ship broke the dam and were sued. There was NO FEDERAL LAW ON
THE ISSUE
 D was authorized by Delaware state government to construct a dam across a creek that
fed into the Delaware river
 P destroyed the dam
49
o He is subsequently faced with an action of trespass
 P turned to the commerce clause
Issue: does the commerce the clause state that Delaware violated the constitution by paying the
D to build a dam on this particular creek?
Delaware Argues: Police power to build dam to increase property value and improve health.
Boaters Argue: Dam interfered with interstate commerce
 Argued that the state can’t hire anyone to build a dam over a creek that was navigable
because it was akin to highway
 Commerce clause was built on access
 This action goes against the commerce clause
Court:
 Marshall (court): states may pass laws that have effects on commerce so long as they are not
repugnant to the power of Congress to regulate commerce among the states.
o No federal statute was enacted on this issue
o Not unreasonable against commerce
o Federal had not acted, thus the state can act
Themes:
 STATE POLICE POWER; Dormant Commerce Clause; interstate commerce
o police power is the capacity of the states to regulate behavior and enforce order
within their territory for the betterment of the health, safety, morals, and general
welfare of their inhabitants
Compatible Cases
 Distinguished Martin b/c no federal question/statute here
 Conflict with Gibbons where the court basically held the opposite.
o If asked to compare the two cases:
Tests
 States can pass laws which interfere with interstate commerce as a function of their police
power as long as they aren’t repugnant to the powers of Congress.
o Regulating matters of health or property are not normally construed as
interfering with interstate commerce/violating the DCC.
o Absence of discrimination against out of staters is BIG deal in cases like this
Takeaways
 Weighs the state police power against the DCC.
 Here was no federal statute that prohibited Delaware or any state from authorizing a dam
in a small but navigable creek.
 If it’s within the commerce clause, and the federal government has not acted on it, the state
may act
50
Philadelphia v. New Jersey (1978)—NJ trash case
Facts: NJ enacted a statute which prohibited the import of waste and private landfill owners sued
on the grounds that it discriminated against interstate commerce.
 State of New Jersey passes a law preventing anyone from bringing out of state waste into
New Jersey and leaving/dumping it there. Owners of private landfills in New Jersey, and
cities in other states (inc. Philly) that had agreements with these landfill owners sue.
Issue: whether the law is constitutionality permissible in light of the commerce clause of the
constitution?
 Question: whether the trash business is commerce?
o It is
NJ Argues: police power: general welfare, health, environment, economy. No trash from out of
state can be buried in their landfills, Court said that’s not a good enough reason. There was no
federal statute governing this.
Plaintiffs Argue: They have clients outside NJ and this is a barrier to commerce.
Court Reasoning:
 Court: doesn’t really think this is for health/environmental effects
 Judicial determination that the purpose of the action was to discriminate in favor of a
particular state (NJ here)
o Dormant Commerce Clause can’t be used for a state to pursue its own self interest
 can’t prefer own inhabitants interests and still call it a commerce clause
 idea of discrimination against outside commerce is still applied even if it is a dormant
commerce clause case
o And even if federal government hasn’t acted on the matter
 What NJ is doing violates the federal constitution
o This shows that the Dormant commerce clause must be consistent with the
commerce clause in the constitution
 Commerce clause violation here: restricting trash from other states from coming into NJ
o Court accused NJ of trying to cover up a state advantage—according own citizens
preferred access over customers from other states
 Supreme Court says statute is not quarantine law
o Economic harm, not health harm
 This case states that NJ may not solve its problems at the expense of other states
 This statute isolates NJ from national economy by discriminating against waste from
other states and not allowing it in; as such, it violates the commerce clause
Themes
51

Substantial effect in Comm CL.; Test: limit to state police power
Compatible Cases
 Wickard (substantial effect)(aggregation doctrine);
 Distinguished Blackbird
Tests
 A state may not restrict the flow of commerce on the basis of origin.
o Targeted solely out of state waste producers
 Per Se Rule against simple economic protectionism
o Legitimate goal does not salvage illegal means
o Violated DCC
Takeaways
 Not a quarantine statute (which would be ok) because it’s only harmful when buried and
by that point, it makes no diff where it comes from < Rehnquist dissent.
 Want to promote interstate commerce (New Federalism)
 This case shows horizontal and vertical federalism are very intertwined
o At any time federal government can make a federal statute that takes precedent
over state statutes
 Dormant commerce clause
Dissent (Rehnquist):



the majority’s opinion requires New Jersey either not to use the landfills at all for its own
waste disposal needs, or to accept waste from every single state in the union so as not to
discriminate based on the Commerce Clause.
Landfills cause significant health and safety problems
want it to be treated as a quarantine case
o Worried about health/safety danger
o Rehnquist will later try to limit commerce clause (and dormant commerce
clause)—thinks it’s overused
Kassel v. Consolidated Freightways (1981)—tractor trailer
Facts: Iowa created a statute prohibiting the operation of 65ft long trucks on its highways and a
major trucking company sued on the basis that it violated the CC
 Trucks in Iowa (pursuant to statute) must be less than 55 feet – the trucks that
Consolidated uses are 65 feet. There is an exception for Iowa trucking companies. Iowa
alleges authority via state police power, on the grounds that larger trucks are more
dangerous and cause more wear and tear on roads.
State Argues: Necessary for highway function > police power.
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Plaintiffs Argue: Unreasonably burdens interstate commerce b/c truckers must spend significant
time and money to change trailers at the Iowa border or divert trucks around the state
Reasoning:
 Justice Powell—believes strongly in American capitalism (writes majority opinion here)
 Iowa is focused on its own benefit
o Tired of interstate traffic
 Iowa tried to argue the purpose of the statute was for safety interests of Iowa and Iowa’s
highways
o Health and safety argument
o However, there was no evidence supporting the health and safety argument
 Court (Powell): you have no facts to treat this as a health/safety claim
o Iowa was shifting the costs of safety to out of state interests
 Costing trucking companies more
 More trucks, or drive further to go around Iowa
 Can’t use commerce clause to shift costs to people who don’t live in your state
 There is a deference to state highway regulations, so if they had a real claim of safety
here, it could’ve been allowed
o But no real safety concerns here
Holding: Iowa seems to have hoped to limit the use of its highways by deflecting some through
traffic. Because Iowa has imposed this burden without any significant countervailing safety
interest, its statute violates the Commerce Clause.
Themes:
 Commerce Clause; DCC
Compatible Cases
 Wickard (aggregation doctrine); Philadelphia
Tests
 Balancing Test: State interest v. Burden on interstate commerce
o Balance the safety regulations against interstate commerce interest and see if it
actually furthers those goals.
 Substantial effect/aggregation Doctrine > if every state did this, it would be bad
 Clearly meant to keep long-haul truckers out.
Concurring (Brennan):
 Iowa is using simple protectionism
o Shifting costs
 Treat this case as a protectionist case for the state of Iowa
Dissent (Rehnquist):
 Whether the Iowa legislature has acted rationally?
 Say it’s not our job to second guess the legislature
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
o It’s not the court’s job to balance any incremental safety benefits for the state.
Launching a new attack on dormant commerce clause
o The idea that neighboring states had too much authority before the court
True problem of decision that it gives no guidance to states if their law is valid or to
trucking firms
Takeaways
 Iowa was being disingenuous about their motives.
 Dormant Commerce Clause—looks at states
o But cases show it can shift to vertical federalism
FOR EXAM: THINK CRONOLOGICALLY
 Issues with DCC, textualists do not like it, talk about if DCC exam question
 No federal statute—triggers DCC
 Commerce clause analysis first, then go into DCC analysis
STATE PRIVILEGES AND IMMUNITIES; AND FULL
FAITH AND CREDIT AMONG THE STATES
“The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.”
ARTICLE IV, SEC. 2 CL. 1
 Available to out of state residents who are being discriminated against
 Prevents a state from treating citizens of other states in a discriminatory manner; a right
of interstate travel may be plausibly be inferred.
 Goes hand in hand with DCC Doctrine.
Articles of Confederation—Article IV
 “The better to secure and perpetuate mutual friendship and intercourse among the people
of the different States in this union, the free inhabitants of each of these States, paupers,
vagabonds, and fugitives from justice expected, shall be entitled to all privileges and
immunities of free citizens in the Several states”
o Shall have free ingress/egress from any other state
o Right to do business; take goods in/out of a state
o Articles make a big deal of privileges and immunities
 This is what was supposed to hold together the 13 states
 Horizontal federalism
 Similar to Constitution
 Full faith and credit clause in Articles (Article IV) is very similar to Constitution
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United Building and Construction Trades Council v. City of Camden (1984)
Facts: A municipal ordinance of Camden required that at least 40% of the employees of
contractors and subcontractors working on city construction projects be Camden residents;
Construction (out-of-state) sued alleging that it violated the P&I clause (REHNQUIST)
Issue: May a city enact an ordinance that discriminates on the basis of municipality and not state
residence in regards to the Privileges and Immunities Clause?
Camden Argues: ordinance is necessary to remedy problems in the city including urban decay,
high unemployment, a decline in the city’s tax base, and the flight of the middle class from the
city
Reasoning (Rehnquist)
 Does the clause even apply to municipal ordinances? What about laws that discriminate
on the basis of city, rather than state, residence (like this)?
o Rehnquist majority: YES, this applies – a person not residing in a city within a
state is ipso facto not residing in the state itself either
Holding: Remanded because “we find it impossible to evaluate Camden’s justification on the
record as it now stands” but:
 States interest in controlling is not absolute
 That they’re spending their own monies might be a crucial factor in deciding
whether the statutes discrimination violates the Privileges and Immunities clause,
but it doesn’t get them out of the water completely
 The opportunity to seek employment with private employers is basic to the
livelihood of the nation.
Themes
 Fundamental Right; DCC
Compatible Cases
 Philadelphia; Kassel
Tests :
 A state may not discriminate against out of state interest if those interests are
sufficiently fundamental to the promotion of interstate harmony
o To determine whether a state’s discrimination against out-of-state residents
violates the P&I Clause:
 consider whether any of the privileges or immunities outlined in the
Clause are actually impacted by the state regulation. (right to travel, right
to work, FUNDAMENTAL RIGHTS)
o States CAN regulate these things IF they have a substantial enough reason!
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Dissent (Blackmun): privileges and immunities clause doesn’t apply to discrimination based on
municipal residence, and there’s precedent backs this up as well as the actual text of the
Constitution.
Takeaway:
 Supreme Court did not decide this case; sent it back to district court
o Parties ended up settling (was dragging on too long)
 Horizontal Federalism
 This case is illustrative, not declaratory
o Shows us how nuanced the fact patterns are
o DON’T USE IT LIKE OTHER CASES
NEVER RESOLVED; REMANDED
NARROWING THE SCOPE OF THE COMMERCE
CLAUSE
ARTICLE 1, SECTION 10
 Limits on what states can do
Different phrases of Federalism:
 First Phase: Federalism in the original constitution
o Article 1, section 10
 Enumeration on limitations on the states
 Supremacy Clause, and privileges and immunities clause


Be prepared to compare constitution and articles of confederation on exam (where they
differed)
Look at additions to constitution in the bill of rights
o First ten amendments—1791
 Compare to bill of particulars from declaration of independence
o TENTH AMENDMENT
United States v. Lopez (1995)—gun free school zone act
Facts: Lopez brought a gun to school; charged under the federal GFSA; challenged.
 Statute involved is the Gun-Free School Zones Act of 1990 (GFSZA)
o Enacted by Congress—federal
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


o making it a federal offense "for any individual knowingly to possess a firearm in a
place that the individual knows, or has reasonable cause to believe, is a school zone."
Lopez (defendant) brought a gun to his high school
o Handgun with 5 bullets
o Not clear why he did it/had gun
 Was his dad’s gun
School called the San Antonio police
D was in a school zone
o As of 1990, school zones became subject to federal law
FBI showed up and claimed jurisdiction over the case because it was controlled by a
federal statute
o Other view was that it happened at a San Antonio school on state regulated
property
 Should’ve been San Antonio police jurisdiction
Issue/Question: did Congress have authority to enact the GFSZA and, therefore, did the FBI
have jurisdiction?
o Is this a constitutional action?
o Court says NO
U.S. Argues: Firearms in school substantially affects interstate commerce by:
 (1) raising national insurance rates and
 (2) discouraging travel to/occupation of school zones
o Also, that it would prevent people from wanting to live in San Antonio
Reasoning (Rehnquist):
 Rehnquist majority court says it does NOT substantially affect interstate commerce.
o There is no legislative or statutory evidence that bringing a gun into a school
affects interstate commerce in any way, much less a substantial way such that it
falls under the commerce clause
o Government can’t just regulate anything relating to violent crime/national
productivity
 Not unconstitutional “as applied” but unconstitutional on its face
 “to uphold the government’s position here, we would have to pile inference upon
inference in a manner that would bid fair to convert congressional authority under the
commerce clause to a general police power of the sort retained by the States.”
 HOLDING: While Congress has broad lawmaking authority under the Commerce Clause,
this power does not extend so far as to authorize the regulation of the carrying of handguns,
particularly when doing so has no clear effect on the economy overall.
Compatible Cases
 Distinguished: Wickard & Heart of Atlanta
Themes
 Smaller federal government; (NO) federal police power; restricting commerce
clause
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Tests:
 The effect on (nexus with) interstate commerce from the activity being regulated must be
substantial
 Cannot require “inference upon inference” or it would convert the CC power into
a federal police power which is a no-no
 New hard distinction between economic and non-economic act. (had been rejected
in Wickard)
Takeaways:
 Rehnquist says there must be some limits to the Commerce Clause
o Ex. This is way too broad of a power if we let this apply
o Wiki click test
 Criminal statute which has no economic dimension
o the relationship to interstate commerce was too attenuated and uncertain to uphold
as w/in Congress’s commerce power
 3 Categories of Federally Regulatable Act: Under the CC:
o The use of channels of interstate commerce
o Regulate and protect the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may come only from
intrastate activities
o Regulate those activities having a substantial relation to interstate commerce.
 US tried to use this, but Court found that it was not substantial enough
 SUBSTANTIAL EFFECTS TEST
Concurrence [Kennedy]: The GFSZA upsets the balance of power between the federal and state
governments. Education is a traditional concern of the states. It is for states to determine whether
harsh criminal sanctions are necessary to deter students from carrying guns on school premises. The
GFSZA prevents states from exercising their own judgment and experimenting with their own gun
prevention programs.
Concurrence (Thomas): The majority’s three-part definition of commerce is misguided. Instead the
word “commerce” should be limited only to encompass the buying and selling, and possibly the
transportation of goods. The Court’s expansion of the term in Gibbons v. Ogden, 22 U.S. 1 (1824),
was wrong. A narrow construction of the term should be applied.
 in general, need a narrow commerce clause
Dissents:
 [Stevens]: Guns are both articles of commerce and articles that can be used to restrain
commerce. Indeed, guns cannot be possessed at all without some sort of commercial activity.
Congress should be able to regulate the possession of guns at any location because guns relate
to commercial activity and have such a potentially harmful use.
 [Souter]: Congressional regulations promulgated under the Commerce Clause are reviewed
under a rational basis standard. A deferential view of congressional actions is important to
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
preserving the separation of powers. However, the majority’s decision harkens back to a time
when the judiciary gave less respect to Congress. The majority’s invalidation of a
congressional act unwisely goes against important principles of judicial restraint.
[Breyer]: We needed to analyze this against three basic principles:
o (1) Congress’s power to regulate commerce among the several states encompasses the
power to regulate local activities insofar as they significantly affect interstate
commerce.
o (2) the Court must consider not the effect of an individual act, but rather the
cumulative effect of all similar instances when determining whether an activity affects
interstate commerce. (Wickard)
o (3) the Constitution requires the judiciary to give a very deferential review of
Congress’s determination that a regulation relates to its requirement of furthering and
protecting interstate commerce.
 Based on these principles, the proper inquiry should have been whether
Congress rationally could have found that violent crime in school zones,
through its effect on the quality of education, substantially affects interstate
commerce. When all practical realities surrounding the problems of guns near
schools are considered, the answer could not be anything other than in the
affirmative.
United States v. Morrison (2000)—gender motivated violence
Facts: Congress passes the Violence Against Women Act (VAWA) in 1994 which contained a
provision for a civil remedy for victims of gender based violence. A female student at Virginia
Tech was assaulted and raped by two football players.
 US brought suit against Morrison, VT, and the other attacker under the VAWA
Government Argument: Congress may regulate gender-based violence because it is an activity
substantially affecting interstate commerce. Argued that violence against women affects the
traveling, engaging of business and employment in interstate commerce of women as a group.
 argued that it would make people less willing to live in Virginia or come to VA for
education
Morrison Argument: The VAWA was an unconstitutional exercise of Congress Commerce
Clause power.
Reasoning (REHNQUIST):
 Congress doesn’t have the authority to regulate violence against women because it’s not
an economic activity and “the constitution requires a distinction between what is truly
national and what is truly local”
 Still can’t just regulate anything that connects to violent crime
 Congress did fact finding in respect to the act and economic impact (commerce)
o Rehnquist states that the existence of congressional findings is not sufficient, by
itself, to sustain the constitutionality of Commerce Clause legislation
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
“whether particular operations affect interstate commerce sufficiently to
come under the constitutional power of Congress to regulate them is
ultimately a judicial rather than a legislative question”
 Judicial rather than legislative question according to Rehnquist
Rehnquist looks at Lopez standard
o However, a key consideration in Lopez was the criminal, non-economic nature of the
conduct at issue. Similarly, gender-based violence is a non-economic activity. No
legislative history or other findings indicate that gender-based violence has an effect
on interstate commerce. Any link between the two is attenuated.
o Congress cannot regulate non-economic, violent criminal conduct based solely on that
conduct’s aggregate effect on interstate commerce.
Compatible Cases:
 Lopez
 DISTINGUISH: Wickard and HOA
Themes:
 Federalism, Limits to Commerce Clause
Takeaways:
 Under CC there has to be some evidence of economic activity and how it impacts
economic activity
 Just because Congress has finding of facts does not make those facts so
 This is up to the state of Virginia to handle not a federal law
Concurrence (Thomas):
 Thinks dormant commerce clause shouldn’t be a thing because it’s not mentioned in the
constitution
 Any kind of “substantial effects” test that would allow non-economic activity to be regulated
by Congress under the Commerce Clause is inconsistent with early Commerce Clause
jurisprudence and thus should not be permitted.
Dissent (Breyer):
 Why should we give critical constitutional importance to economic or noneconomic
nature of a interstate commerce affecting cause?
o Economic vs. non-economic activity is a difficult distinction
 Uncertain results
 The majority does nothing to clarify this distinction.
o Secondly, the majority disregards principles of federalism in overruling Congress’s
determination, supported by legislative history, that violence against women has a
substantial impact on interstate commerce.
o Finally, the majority’s holding fails to set a standard for determining the constitutional
limits of Congress’s regulatory activity.
Dissent (Souter):****
 BoP issue
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


o Concerned about balance of powers—court having too much authority
Majority ignored a mountain of evidence
o Thinks court ignored a “mountain of evidence” from Congress hearings
Federalism changes over time—not the same as it used to be
The right to determine what has a “substantial effect” on interstate commerce belongs to
Congress and not the courts.
The present case differs from Lopez because in this case, Congress passed the VAWA after
hearing substantial testimony about the negative effects of gender-based violence on women’s
ability to maintain employment and be productive members of society engaged in interstate
commerce.
o Thus, Congress made a well-informed decision in deciding to regulate an activity that
it believed had a substantial effect on interstate commerce.
Gonzales v. Raich (2005)—medical marijuana
 NOT A LIMIT TO CC But a narrowing
Facts:
 Federal Statute- Controlled Substances Act (CSA) prevented the sale, purchase and
possession of illegal drug in the US.
o Makes weed a controlled substance—can’t be sold or bought under federal law
 State Statute- Compassionate Use Act (CA)
o allowed the use of medical marijuana within the state by persons needing it for
legitimate medical purposes.
 Gonzales is the Attorney General of USA (at the time)
 Raich was a CA resident
o Want injunctive/declarative relief from federal statute
 Raich was growing weed plants in her backyard with the approval of CA state officials
o Personal consumption—medical prescription
 Despite receiving approval from California state officials, federal agents seized and destroyed
Raich’s marijuana plants.
Question: could those who wanted to grow weed in their backyard in CA rely on the state
statute?
 May Congress regulate the use and production of homegrown marijuana?
o Court: YES
Raich: sued to prohibit the enforcement of the federal CSA
Reasoning (Stevens):
 This is like Wickard: If Congress doesn’t regulate the intrastate commerce, it will
frustrate the purpose of the Controlled Substances Act because it will inevitably affect the
interstate market.
 Unlike Lopez and Morrison, the controls here are economic.
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

Regulation is within congressional commerce clause powers for the same reasons as
Wickard
o Congress had a rational basis to believe failure to regulate intrastate possession of
marijuana would affect interstate commerce (activities regulated by the CSA are
“quintessentially economic”, as opposed to Morrison/Lopez)
 Increase supply lowers price (aggregate effect, as in Wickard)
In this case, Raich’s activity of growing marijuana for home use can be seen rationally as
having a substantial effect on interstate commerce because there is an established, albeit
illegal, interstate market for marijuana.
Compatible Cases:
 Wickard
 DISTINGUISH: Lopez and Morrison
Themes
 Federalism
 Commerce Clause
Takeaways:
 Aggregate Effect Doctrine
 CSA is a valid exercise of Congress’s Commerce Clause power
 Narrowing of CC
Concurrence (Scalia):
 Substantial effect
 Necessary and Proper
o Congress’ authority derives from the necessary and proper clause
 Goes on about how you apply it in the context of the scope of the federal
law in relation to commerce clause
 Authority comes from the Necessary and Proper Clause which is far
reaching because it allows Congress to do whatever it needs to reach its
objective.
o Sounding like Marshall from McCullough
o Gives broad authority to Congress based on the necessary and proper clause
o This is an unusual response from Scalia
Dissent (Thomas):
 this decision would mean that the commerce clause really has no limits, because
marijuana never entered the stream of commerce, it was grown and consumed for
personal use only
o This court has never held that Congress can regulate noneconomic activity that
somehow affects interstate commerce – this decision seems to say that (slippery
slope)
Dissent (O’Connor): The majority’s decision essentially trumps states’ rights and federalism
concerns, and it violates the previous decisions in Lopez, 514 U.S. 549 (1995), and Morrison, 529
62
U.S. 598 (2000). The majority’s decision risks opening the door for Congress to improperly regulate
any intrastate activity deemed “essential” to interstate commerce.
 Says Wickard isn’t a good case here
 if the court is right here, then what’s the point of the Lopez decision (limiting the
commerce clause)
o The marijuana was never in the stream of commerce – substantial effects test
failed
INVOKING THE 10th AND 11th AMENDMENTS TO
CRAFT A “NEW FEDERALISM”
The powers not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people.
10th Amendment
The Judicial power of the United States 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.
11th Amendment
INVOKING THE 10th AMENDMENT TO LIMIT FEDERAL
REGULATION OF THE STATES
Garcia v. San Antonio Metropolitan Transit Authority (1985)
Facts: The Dept. Labor held that SAMTA was not immune from the federal Fair Labor
Standards Act (FLSA) which applied to ALL workers and set wage/overtime standards. The
more general the regulation, the more permissible in the 10th amendment.
 San Antonio wasn’t paying their employees overtime pursuant to this rule, and the
employees sued.
 Garcia, an employee of the San Antonio Transit Company, is trying to get wages +
overtime for his work pursuant the Fair Labor Standards Acts (federal statute that was not
to apply to areas of ‘traditional government functions’ but didn’t define what that meant).
o Garcia argues that running a transit system is not a traditional government
function so that the federal law would apply.
 SAMTA is not a private company; it is a part of the San Antonio government
o Is a government entity, is kind of part of the state
 The problem was the Supreme Court precedent—National League of Cities v. Usery
o Stated that the FLSA did not grant authority to Congress to regulate the wages,
overtime pay, and hours of state government employees
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Employees that do traditional government functions
SAMTA Argues: This is a traditional government function so under Nat’l League of Cities
v. Usery, (the rule in this case does not make any sense because no one can decide what is a
traditional government function because anything can be that) Congress did not have the right to
regulate. The 10th Amendment is not necessary to preserve state power
Garcia argument: Garcia argues that running a transit system is not a traditional government
function so that the federal law would apply.
Reasoning (Blackmun):
 Supreme Court rejects a rule of state immunity from federal regulation that turns on
judicial appraisal of whether a particular governmental function as traditional
o Not going to look at activity itself, but commerce clause
 This case allows federal control by overruling Usery
 This case: if this applied to a private corporation, we wouldn’t think twice about it—
federal government can regulate it (wages, etc)
 State is running a business here with the transit authority
o Not impinging on authority of the state
 This case tells us that “this isn’t doing anything to the states”—treated just as a private
corporation would be treated
 Minimum Wage and Overtime laws aren’t violative of state sovereignty or the US
constitution, even when extended to state employees (it’s not unconstitutional for anyone
else – not for state either).
Themes:
 Federal Supremacy
 Commerce Clause
 Balance of Powers
Compatible Cases :
 Martin
Tests:
 Congress may regulate state action under the Comm. Clause power IF:
o The Regulation as applied to the state activity is not destructive of state
sovereignty or violative of any constitutional provisions
o If it is an otherwise valid exercise of the commerce clause if the 10th amend is
not going to stand in the way
 the 10th Am is not necessary to protect state sovereignty
 It does not carve out a sacred sphere of state autonomy
 The commerce clause allows this regulation so the 10th Am can’t block it
 Congress has the constitutional authority to regulate the wages and hours
of state employees under the Commerce Clause
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Dissent (O’Connor): The Court's actions survey the battlefield of federalism and call for a
retreat. National League of Cities was an attempt to define the limits of federal regulation on the states
and overruling it leads to a decisive victory for Congress’s ever-growing Commerce Clause powers.
 This decision doesn’t leave any space for checks and balances – Congress can just pass
anything they want via commerce clause.
o Same issue with separation of powers via necessary and proper clause?
Dissent (Powell): States role in our system of government is a matter of constitutional law, not
of legislative grace” The Court does not adequately explain how states’ role in the electoral
process protects them against exercises of the Commerce Clause power infringing their
sovereignty.
 This decision “reduces the Tenth Amendment to meaningless rhetoric.” There are
constitutional limitations on congressional acts and power for a reason.
o “Traditional government functions” don’t affect interstate commerce at all, so it’s
an overreach of congressional power to state minimum wages for workers in those
areas.
 National League of Cities shouldn’t have been overruled!
Dissent (Rehnquist): Both Justice Powell’s and Justice O’Connor’s dissents outline a more prudent
way of deciding the case that one day will be recognized by a majority of the Court.
Takeaways:
 Rigid Tests for whether a state is immune like under Usery are rigid and arbitrary
o Nobody knows what “traditional gov function” means
 Punches a hole in the 10th Amend state protection
 If congress has decided what they are trying to do is okay under commerce clause than
10th A can’t get in the way- instead of checking commerce and 10th amend to see if it’s
okay as long as it passes commerce clause no need to do a check list for the
10th Amendment.
 This case sets a standard that says it’s pretty hard to say we’re undermining federalism if
we have a system that also applies to private employers
New York v. United States (1992)—nuclear waste
Facts: As part of an effort to encourage cooperative federalism, the Low-Level Radioactive
Waste Policy Amendments Act asked each state to make its own or regional arrangements for
disposal of radioactive waste. Take-Title Provisions were included holding that any state that
did not so arrange would be forced to take title of the waste and also stand liable for damages
associated with it. The body of law that surrounds the commerce clause in vertical federalism is
that you cannot tell the states you have to do this or else, should be understood like the Dole case
when the penalty is okay (attaching finds to it) and when it’s not okay. (Can’t be Coercive)
 Statute involved: Low-Level Radioactive Waste Policy Act—1980
 Government trying to incentivize behavior that Congress had the authority to require
 Incentives from Act:
o Monetary
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
Payments to states that join a regional compact or develop disposal facility
in their own state
o Access
 If states don’t meet 1986 deadline, the cost will double and they may lose
access to site in another state moving forward
o The take title provision
 If states don’t meet the deadline, the states are then the owners of the
waste and are liable for it
 States take title
New York did not join a regional compact
o Enacted legislation saying they were going to build their own facility
 They did not build it
o They then went to court and sued regarding constitutionality of the act
Issue: May Congress compel states to enact or administer a federal regulatory program?
 Question: what authority do the state governments have; what authority do the federal
government have?
NY Argues: Take title provisions violative of the 10th Amendment by forcing state
regulation. Forcing them to be responsible for this waste was a violation of 10th Amendment.
 New York states that the Tenth Amendment states that their state is sovereign, therefore
Congress had no authority to order them around
Reasoning (O’Connor):
 O’Connor distinguishes this case from Garcia
o Garcia = laws of general applicability to state governments
o In this case, it is different, because Congress has not subjected a State to the same
legislation applicable to private parties
 Congress cannot use states as implements of regulation; and vice versa
 Congress can’t commandeer the legislative processes of the states by directly compelling
them to enact and enforce a federal regulatory program
o Congress has authority to reach out directly
 Doesn’t have authority to make states agents of the congressional program
 O’Connor Solutions:
o Monetary incentives to motivate a state
o Access incentives works as well
o Take title provision is unconstitutional
 Outside any enumerated power in article 1 (Congress doesn’t have
authority)
 Takes away state sovereignty
 Take title provision is inconsistent with the federal structure of our
government established by the Constitution
 O’Connor: the constitution simply does not give Congress the authority to require the
States to regulate
o (Constitution is silent on it actually)
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
o She says where a federal interest is sufficiently strong to cause Congress to
legislate, it must do so directly
How can a federal statute be found an unconstitutional infringement of state sovereignty
when state officials consented to the statute’s enactment?
o O’Connor: where Congress exceeds its authority relative to the States, therefore,
the departure from the constitutional plan cannot be ratified by the “consent” of
state officials
 Consent of state officials can’t overcome the requirements of the written
constitution
 Compare to Line-Item Veto Act (Clinton)
 Took presentment clause right out of the constitution
Themes:
 Cooperative federalism
 vertical federalism
 Limits on Fed government
Compatible Cases
 Printz
 Dole
 NFIB
 Distinguishes Garcia
Tests:
 Congress may not compel state to adopt federal regulatory scheme (violates
10th Amendment)
o Congress Can: Congress had a split decision
 Spending Power: Incentivize/attach conditions (Dole)
 Commerce Clause/ Supremacy Clause: Preempt waste regulation
Concurrence/Dissent (White):
 The take title provision (and Act in general) was created via cooperation of states –
Congress was just serving as an arbitrator to ensure states stick by their policies, which
end up benefitting everyone.
o Not coercion here, but collaboration
o Congress as arbiter/referee
o Trying to protect outcome in Garcia
 This is a neutral statute, not coercion of a state
o To O’Connor, this doesn’t work very well
Concurrence/Dissent (Stevens):
 federal government can impose its will on the states – it had this power under Articles of
Confederation, and still has this power now. They actually do regulate states in several
ways (prisons, elections, railroads) and can regulate states for environmental reasons too.
o Therefore, he sees no reason why Congress can’t also command the states to
enforce this statute (radioactive waste disposal)
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o Takeaway: taking us back to Articles of Confederation
 Was got rid of for being wimpy and we could do it under that
 Should be able to do it under Constitution (more muscular than Articles)
Takeaways
 Cannot coerce states/treat them as political subdivisions
 This case deals with HOW to regulate
Printz v. United States (1997)—gun background checks
Facts: Brady Act of 1993 made the USAG implement nationwide background checks; states
were required to conduct them for the first 5 years (state CLEOS would do it). Forced the states
to regulate fire arms in a specific way and the state branch to perform in a ministerial way, that’s
not okay.
 Gun Control Act of 1968 (GCA)
 Brady Handgun and Violence Prevention Act—1993
o Amended the GCA
o Requires the attorney general to establish a national instant background check
system by 1998 and immediately puts in place certain interim provisions until that
system is operative
 5 year interim period (1993-1998)
o CLEOs were to handle the background checks in the interim
 Chief Law Enforcement Officer
 Printz was a CLEO from Montana
o Challenging constitutionality of the Brady Act’s interim provisions
Issue: Whether certain interim provisions of the Brady Handgun and Violence Prevention Act,
commanding state and local law enforcement officers to conduct background checks on
prospective handgun purchasers and to perform certain related tasks, violate the Constitution.
State CLEOS Argue: Violates the 10th Amendment Per the holding NY v. US
Reasoning (Scalia):
 Congress has no constitutional right to do this (oversteps Article I powers, infringes on
10th Amendment states’ rights)
o President has power to “take care” that laws be faithfully executed, not Congress.
This case is similar to the previous case, in that it directs states to make policy to
implement a federal regulation and to take liability for costs and if/when
something goes wrong.
 State sovereignty means fed govt can’t control states AND state actors
even though they’re technically individual officers.
 Congress cannot commandeer the states to follow the directives of Congress; Congress’
power is to regulate individuals and not states.
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
o “Necessary and Proper clause is the last resort of those who defend ultra vires
congressional action.” (But see Gonzalez v. Raich where he USED Nec and Prop
Clause!)
o Ultra vires: Describes actions taken by government bodies or corporations that
exceed the scope of power given to them by laws
This case: argument that you cannot direct state (officials) to administer a federal
program
Themes:
 Vertical Federalism;
 State sovereignty:
 DUAL Sovereignty
Compatible Cases
 NY v. US
 Lopez
Tests:
 Congress may not
o (1)force a state to legislate or regulate in a certain way ; OR
o (2) require state executive-branch personnel to perform ministerial functions
No difference between compelling a state to make policy and compelling officers to perform
tasks in accordance with policies.
Dissent (Stevens):
 Congress can impose affirmative obligations on executive officers of state/local officers.
If Congress/President have the power to make a law, why don’t they have the power to
ensure it is effectively implemented?
o What’s the point of the former without the latter?
o The constitution doesn’t say anywhere that police officers can ignore
congressional commands either – why does the Court get to decide this?
 the framers envisioned a system in which the national government has the power to make
demands on local officials and individual citizens. The framers’ goal of empowering the
national government does not mean that states must surrender their sovereignty under the
Tenth Amendment; the national government is simply authorized to act for the benefit of the
union as a whole. Finally, the New York decision is not controlling in the present case. New
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York dealt with the issue of whether state legislators—as opposed to state executive officials—
may be enlisted to implement federal policy.
Dissent (Breyer):
 other countries have found it acceptable to use local control to implement a federal
regulation, and so should we (reconciles central authority with “liberty-enhancing
autonomy” of smaller govt entity enacting federal statutes)
INVOKING THE 11TH AMENDMENT TO CLAIM STATES
HAVE SOVEREIGN IMMUNITY
11th Amendment: Sovereign Immunity (Vertical Federalism)
 State may not be sued by its own citizens even if a Federal Q is involved
 Congress cannot overrule this and allow states to be sued in this way.
 Means by which Courts can LIMIT COMMERCE CL. POWER
 The Eleventh Amendment, despite its language, serves more as a limit on Congress’
power than the power of the Court.
 The amendment isn’t about federalism in governance, it’s about federalism in capitalism
 Rehnquist forming new federalism
Exceptions to State Sovereign Immunity:
 Suits by the Federal Government
 Suits against cities or other political subdivisions of states
 Suits against state officials for monetary damages
 Suits under civil rights/discrimination statutes/amendments
Seminole Tribe of Florida v. Florida (1996)—reservation gaming
Facts: Indian Gaming Regulatory Act of 1988 required the state to negotiate with Native
American tribes re: gaming activities and allowed tribes to bring suit in federal court against
states to compel performance of that duty to negotiate. The act said that citizens can sue the state
if it doesn’t incorporate the act
 The Indian Gaming Regulatory Act
o Federal statute
o Was passed under the Indian Commerce Clause
o Dealt with negotiations regarding gaming between Native American tribes and the
state where it resides
 Good faith negotiation requirement for states
 Allows tribes to sue states in federal court if states do not negotiate in
good faith
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
Seminoles sued Florida to compel them to negotiate
FL Argues: This directly conflicts with the 11th Amendment.
Reasoning (Rehnquist):
 Congress does not have the authority to grant jurisdiction over a state that doesn’t
consent to being sued (sovereign immunity).
 Court says the 11th Amendment stands for more than just its text
o That each state is a sovereign entity and
o That each state needs to give consent before being sued
 Did Congress unconstitutionally abrogate a state’s immunity to being
sued without consent by passing the Act? YES, but it’s not
constitutional.
 The Eleventh Amendment should be understood beyond its text (!!usually a textualist!!)
 Each state is sovereign and you can’t sue a state without its consent
 Seminoles can only look to Sec.5 and the Commerce Clause
 Eleventh amendment appears to only restrict diversity jurisdiction
 Rehnquist: presupposition of the eleventh amendment
o Not just what text says
o *Professor thinks they’re butchering the constitution here*
o Presupposition has two parts:
 Each state is a sovereign entity in our federal system
 It is inherent in the nature of ‘face right’ directions sovereignty not to be
amenable to the suit of an individual without its consent
Themes:
 The unwritten constitution (New Federalism) spirit of the constitution
Compatible Cases:
 Alden
 FMC v. SCSPA
Tests
 States are immune from private suits in federal court and congress lacks the authority to
abrogate that immunity
 Two assumptions of the 11th amendment:
o Each state is a sovereign entity
o It is in the nature of sovereignty that one need consent to be sued
 Suits of federal jurisdiction against states were not contemplated by the
constitution
Dissent (Stevens, J.):
 Congress has the power to create a private federal cause of action against a state, or its
governor, for the violation of a federal right. The majority holds that with the narrow
exception of statutes enacted pursuant to § 5 of the Fourteenth Amendment, Congress has
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no such power. Hence, the majority’s decision forecloses the possibility of future suits
against states by their own citizens asserting federal rights. In doing so, it prevents
Congress from providing a federal forum for a broad range of actions against states, from
copyright and patent law to the regulation of the national economy.
o This case is about power. This decision prevents congress from providing a
federal forum for a broad range of actions against States.
Dissent (Souter, J.):
 The Eleventh Amendment bars only citizen-state diversity jurisdiction (i.e. a suit between
a state and a noncitizen of that state). It does not bar federal-question jurisdiction in cases
in which the state is a party to the suit. In Hans v. Louisiana, 134 U.S. 1 (1890), the Court
held (wrongly) that a state could plead sovereign immunity against a citizen suing under
federal-question jurisdiction. The Hans court misread the Eleventh Amendment, and the
majority in the instant case “constitutionalizes” that misreading in its opinion.
o The 11th applies to diversity, not federal question. We’ve jumbled three questions
together and the consequence is the destruction of federally guaranteed rights
Takeaways
 Principles that matter
 “New Federalism” < per Rehnquist (???) (Holy shit what is going on Rehnquist is a
textualist!!!!!)
 Talk about preamble if you talk about this case because it says the assumptions are not
true—CONSENT
Alden v. Maine (1999)—probation officers suing state in state court
Facts: A group of probation officers sued Maine in state court under the Fair Labor Standards
Act of 1938 (same statute as under Garcia) alleging that the state had violated the overtime
provisions.
 Alden and other probation officers from state Maine are suing Maine (state employees)
o Alleging that Maine violated overtime provisions of the fair labor standards act
(for not employing a federal statute)
o Wanted overtime
 Seminole Tribe and this case are similar in that they are both suing a state directly
o Seminole Tribe had authorized the tribe to sue the state in federal court if they
don’t negotiate in good faith
 Probation officers (employees of state) going to state court here
o Raises eleventh amendment issues here
o No diversity problem
PO’s Argue: Immunity doesn’t apply in STATE courts.
Reasoning (Kennedy):
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









Congress Article I powers do not include power to subject nonconsenting states to
private suits for damages in state courts.
o Sovereign immunity/11th Amend immunity reigns supreme once again in this
case!
o 11th Amend technically only restricts nonconsenting states from being sued in
federal court, but judges extend it to state court in this case.
 Sovereign immunity is even more established within a state than between
a state and federal govt/courts
 Federal govt has immunity in both state and federal courts – states should
have the same!
You can still sue state actors (i.e., individual cops) but you can’t sue the state itself
Court: sovereignty comes from constitution, not eleventh amendment
o Can’t rely on eleventh amendment
Probation officers: we are citizens of the US and we work overtime
o Statute applies to us
Court limits necessary and proper clause
Court: question of first impression is whether Congress has the authority to aggregate a
state’s immunity from suit in its own courts
o Has to be grounded in structure of the constitution
Garcia has not been overruled
o Because San Antonio Transit Authority is not a state entity; it is metropolitan
o Here, brought suit against state
Garcia—municipality that provided a service that could’ve been provided by a private
corporation
This case leaves the probation officers no real remedy (can’t sue state in federal or state
court)
o Only option would be to convince federal government to sue on their behalf
 Very rare
Distinguished Garcia by saying that Garcia was about a municipality which is a “lesser
entity”
Themes
 Natural Law
 constitutional silence
 immunity
Compatible Cases
 Seminole
 FMC v. SCSPA
Tests
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

Congress may not authorize suits against state governments in state courts even on
federal claims
o Extends Seminole to state courts now
Natural Law Argument: State immunity is not just derived from the 11th amendment, it’s
a right the states enjoyed since pre-constitutional era (wow).
o Also, questionable: Sometimes, constitutional silence just means they forgot or
didn’t think about it.
o The constitution would never have been ratified if this wasn’t the case.
Takeaways
 Interpreting constitutional silence
 Not overruling Garcia
o A city is considered a part of the state without full sovereignty
o The SAMTA is an agency of a city
 Why do we care about this case: if private parties can sue state in that state’s court
o Majority said NO
 State dignity argument
o Different from Seminole, in which it was suing state in federal court
 Clash between judicial review and state sovereignty
o Judicial review and eleventh amendment clash
 No general resolution of these clashes
Dissent (Souter: this has got to stop):
 Seminole: blocks damages claims made against states by private suit in federal court.
 Alden: blocks the same in state court so what's left? Where do we go for justice?
 The authority of the united states is what is at issue here
 Problem here is now can’t go to federal court (Seminole tribe) or state court (here)
o Barriers
 Abandons principle of “when there is a right, there must be remedy”
o No solutions here
o This phrase was used in Marbury v. Madison (over and over)
 He is saying that majority has nothing to base its argument on
o Hatching it out of natural law (No one has any idea what that means)
 The majority incorrectly interprets sovereign immunity as understood pre- Constitution.
The Supremacy clause requires that states enact federal laws and because Seminole Tribe
made it so that you can’t bring these claims in federal court, the states have a
responsibility to hear such cases.
Federal Maritime Commission v. South Carolina State Ports Authority (2002)
Facts: Maritime Services asked South Carolina State Ports Authority to berth a cruise ship at the
SCSPA. SCSPA denied the request based on a policy of denying berths to vessels whose primary
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purpose was gambling. Maritime Services filed a complaint with FMC (federal agency) alleging
that SCSPA violated the Shipping Act of 1984.
 Administrative law judges are not article III judges (FMC)
o Are they under control of legislature or executive branch?
 Executive branch
SCSPA Argues: that the 11th A provided immunity against actions by private citizens before the
FMC.
 SCSPA filed a motion to dismiss, claiming that it (as an arm of the state) was entitled to
Eleventh Amendment immunity” (SOVEREIGN IMMUNITY)
o Argued that the Constitution prohibits Congress from passing a statute authorizing
Maritime Services to file this complaint before the Commission
Reasoning (Thomas):
 The framers could not have anticipated the vast growth of the administrative state
 Eleventh amendment as rewritten by the Rehnquist court (not just diversity jurisdiction)
to claim the sovereignty of the state
o Should control this
 Allowing private group to bring this claim would be intruding on sovereign immunity
and the framers would think it contrary to their constitutional design.
o Administrative adjudications “walk, talk and squawk very much like a lawsuit” –
if the Framers wanted to protect states from nonconsenting lawsuits, it stands to
reason they’d be protected from these proceedings as well.
 FMC should not intrude into the sovereignty of South Carolina
 Presumptions on top of presumptions in this case
 Simplified version of federalism here
Themes:
 New Federalism
 Immunity
Compatible Cases:
 Alden
 Seminole
Test:
 The 11th A provides immunity for states against actions by private citizens in federal
administrative proceedings
 The 11th A extends beyond its literal text and falls under the 11th A as rewritten by the
Rehnquist Court (New Federalism)—Have we abandoned textualism???
 The executive branch controls this
 Presumption-First Analysis of Hans
o Federal administrative proceedings against a state were anomalous (deviating
from the standard) and unheard of when the Constitution was adopted and thus,
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prohibited by the 11th Amendment. The SCSPA has sovereign immunity under
the 11th A.
Takeaways:
 States shouldn’t have to answer to citizens in administrative proceedings that resemble
federal court proceedings
 Rewriting of this amendment
o People not caring about text
Dissent (Breyer):
 The court’s concept of state sovereign immunity isn’t found in history nor in the structure
of the constitutions
 The 11th A limits judicial power of the US, not the executive power, which may be
exercised by administrative agencies
 1th Amendment specifically mentions “the judicial power of the United States.” Federal
agencies are run by the executive, not the judiciary – proceedings should not be subject to
11th Amend/sovereign immunity.
ELEVENTH AMENDMENT AND STATE SOVEREIGN IMMUNITY
Barriers to Justice/ Access to Justice
11th Amendment: The judicial power of the United States shall not be construed to extent 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.
Themes: Severely eroding access to justice for people who have federal rights; Federal power is far less extensive
than had been previously thought; is state sovereignty context specific?
Recall also: U.S v. Lopez (limits on commerce power) and U.S. v. New York (resurrection of 10th amendment)
Seminole Tribe v. Florida
Main Rule
Court
Congress may not abrogate the 11th
Amendment; The 11th restricts the
judicial power under Article III and
the Commerce clause cannot be
used to circumvent state
sovereignty.
Federal Court--> Supreme Court
(Rehnquist)
The Indian Gaming Act provided
that an Indian tribe can conduct
certain gaming activities if they had
a valid compact with the state
where they wanted to do business.
Congress authorized tribes to bring
suit in federal court against a State
Facts
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Alden v. Maine
Reminiscent of Garcia v. San
Antonio Municipal Transit
Authority except Garcia was
decided in federal court.
States have full sovereign
immunity from any private suit in
states own courts seeking
damages for violations of a
federal law.
Federal Maritime
Commission v. South
Carolina State Ports
Authority
State Court-->Supreme Court
(Kennedy)
Administrative Agency
Complaint --> Supreme
Court (Thomas)
Cruise ship company files
complaint w/ Federal
Maritime Commission,
administrative law judge
proceeding alleging that
the state ports authority is
The Fair Labor Standards Act said
that state employees could bring
suit in state court against the state.
Probation officers sought
compensation and liquidated
damages under FLSA from Maine
for overtime.
in order to compel it to perform its
duty of negotiating in good faith.
violating Shipping Act of
1984.
Issue
Federal Statute/Federal Court
Federal Statute/ Fair Labor
Standards Act (see also Garcia)
Claim/Remedy
Good Faith Negotiations (which
was a made a federal claim )
Compensation and liquidated
damages under federal statute
Shouldve been the Commerce
Clause Article I §8 cl. 3; but ended
up being 11th Amend.
- The Eleventh Amendment should
be understood beyond its text
(!!usually a textualist!!)
- Each state is sovereign and you
can’t sue a state without its consent
- Seminoles can only look to Sec.5
and the Commerce Clause
The Eleventh Amendment
“immunity”
- Maine Wins
- Sovereign immunity bars suits
against state governments in state
court without their consent.
- Distinguished Garcia by saying
that Garcia was about a
municipality which is a “lesser
entity”
Allowing private group to
bring this claim would be
intruding on sovereign
immunity and the framers
would think it contrary to
their constitutional
design.
Dissent
(Stevens): This case is about
power. This decision prevents
congress from providing a federal
forum for a broad range of actions
against States.
(Souter): The 11th applies to
diversity, not federal question.
We’ve jumbled three questions
together and the consequence is
the destruction of federally
guaranteed rights
(Breyer)It certainly does
not injure the dignity of
the state to face the US
gov’t in the form of a
gov’t agency; and here
the state is just facing the
fed gov’t, so if the agency
of a state is part of a state,
then certainly, the agency
of a fed gov’t is part of
the fed govt.
Notes:
A Four Part Big Picture:
1. Sources of State Sovereignty
2. What does sovereign immunity
do
3. how do we get around it—what
do we mean by it
4. how do we reconcile state
sovereignty and immunity with
other things seemingly in
contradiction
(Souter) Wait! Garcia is still
good law! Garcia settled that
federal legislation enacted
under the commerce clause may
bind the states without having
to satisfy a test of undue
incursion into state
sovereignty... so wtf
The majority incorrectly interprets
sovereign immunity as understood
pre- Constitution. The Supremacy
clause requires that states enact
federal laws and because
Seminole Tribe made it so that
you can’t bring these claims in
federal court, the states have a
responsibility to hear such cases.
Kennedy: “the indignity of
subjecting a State to the coercive
process of judicial tribunals at the
instance of private parties”
addressing soverienty of the
states…
Constitutional
Predicate
Majority
77
Does sovereign immunity
extend to a federal agency
?
Enforcement of the 1984
Shipping Act to allow
their ships to port.
The Eleventh Amendment
“immunity”
What happened to “lesser
municipality”?
Justice Thomas uses
dignity in a similar way:
“If the framers thought it
an impermissible affront
to a State’s dignity to be
required to answer the
complaints of private
parties in federal courts,
we cannot imagine that
they would have found it
acceptable to compel a
State to do exactly the
same thing before the
administrative tribunal of
an agency such as the
FMC”
6.) Post-Civil War Amendments
13th Amendment
 Ratified in 1865
 End of Civil War
 Ended slavery and involuntary servitude
14th Amendment
 § 1: Birthright Citizenship, dual citizenship, P or I, Due Process, Equal Protection, Sate
Action
 § 2: Representation and apportionment
 § 5: Enforceability
15th Amendment
 Ratified in 1870
 Provides the right to vote shall not be denied on account of race or previous condition of
servitude.
Privileges or Immunities Clause v. Privileges and Immunities
 P or I
o 14th A
o The rights citizens have by being citizens of the United States
 P and I
o Article IV
o The rights citizens have by being citizens of a state.
Privileges or Immunities Clause -> vertical federal rights
a. NOT the same as the privileges AND immunities clause discussed under Dormant
Commerce Clause doctrine
b. This appears in the 14th Amendment
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DUAL CITIZENSHIP UNDER THE 14TH AMENDMENT
SECTION 1: All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
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.
14th Amendment
Slaughter House Cases (1873)—butchers
Facts: Louisiana passes a law to centralize the location of butchering under a single corporation
so as to not contaminate the water supply; it functionally gave a monopoly to a particular
company, forcing other butchers to rent the space to operate. Act was passed under police power
(public health).



The Butchers’ Benevolent Assn. of New Orleans (plaintiff) brought several suits against the
company alleging that the Louisiana law was an unconstitutional violation of the servitude
prohibition in the Thirteenth Amendment to the United States Constitution, the Privileges and
Immunities Clause, Due Process Clause, and the Equal Protection Clause of the Fourteenth
Amendment to the Constitution.
The Act: The Slaughter-House Act
Regulation of slaughtering of the animals (police power)
o Inspection of animals to be slaughtered
o Inspection of meat after slaughter
Question: did this constitute one of the rights to pursue a particular a profession under the
fourteenth amendment? Was this one of the privileges and immunities?
o Excluding a lot of people from pursuing this profession
State Argues: Police power; legitimate way to protect health interests (cholera outbreaks)
Butchers Argue: The statute denies the privileges and immunities of LA citizenship, including
the right to practice one’s calling
Reasoning:


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The 14th Amendment was written to protect former slaves. This doesn’t mean only black
people can be protected under it, but it’s limited outside of that context.
Miller majority: distinguishes between privileges and immunities of citizens of the US vs.
privileges and immunities of the citizens of states – state action here is fine because the
14th Amendment protects privileges and immunities of citizens of the US, not citizens of
the states.
o What about the Camden ipso facto argument?





Miller says that the 14th Amendment doesn’t allow the government to protect citizens
from actions of the state, here – but isn’t barring state discrimination exactly what the
14th Amendment was made for?
Camden case
o Privileges and immunities clause Article IV
 Horizontal federalism (among the states)
Here we have a vertical federalism version
o Section 1 of 14th Amendment
o “No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States”
 States may not abridge any privileges/immunities we have as citizens of
the US
Supreme Court cared about limiting the power of the Central Government
o Found that section 1 of the 14th amendment was going to make the US
government too powerful
o So they wrote nonsense in this case
 That statute wasn’t violating the fourteenth amendment
Here, the SC nullifies the idea of US citizenship that would serve as a limit on state
authority
o Turned it upside down, allowed states to have power over the privileges and
immunities of its state’s citizens
Theme

Dual Citizenship
Tests

The 14th Amendment’s P&I Clause merely forbids state infringement of the rights of
national citizenship, not state citizenship
o Rights such as the right to practice one’s calling, were within the purview of the
STATES, not the federal gov.
Dissent (Field):
 the 14th Amendment protects privileges and immunities of both the citizens of the US and
citizens of the states (think of the Camden argument – aren’t all citizens of the US also
citizens of states?) as long as these rights are fundamental in nature. Right to pursue
employment IS fundamental. Plus, there are other clauses of the 14th Amendment and of
Article IV that prevent the states from creating monopolies, especially because
monopolies are de facto invasions on individual privileges and immunities.
Dissent (Bradley):
 the right to choose and pursue your own, chosen employment is a fundamental right. This
regulation vastly oversteps state police powers because of the monopoly. 14th
Amendment is supposed to protect at least fundamental privileges and immunities, which
are admittedly limited. But, this decision limits citizen privileges and immunities way too
much!
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Takeaways





Interprets the 13th and 14th Amendment so narrowly that it functionally destroys the PoI
clause
Makes it so that the federal government can’t protect citizens from their state
governments > and we see where that led
What does citizenship MEAN then???
Case is really about how federalism works
o How dual citizenship works
This case fucked up vertical federalism concept
o State legislatures can pass all these laws
o We’re seeing this today with voting problems
 Legislatures choosing who wins election
Saenz v. Roe (1999)—durational residency welfare requirements
Facts: CA passed a statute which limited the maximum amount of welfare benefits available to a
family residing in the state for less than 12 months



AFDC
o Aid to Families With Dependent Children
o Federal statute
o Provides aid to families with dependent children (lower income)
In 1992, California enacts statute limiting the maximum welfare benefit available to
newly arrived residents
o If you moved to CA, you got aid dependent on state you just came from for the
first 12 months (ex: if it was 98 in CA, but 27 in Arkansas, you got 27 for the first
12 months)
People who moved to California wanted to qualify immediately for CA level aid and did
not want durational residency
o That’s what fight was about
o Turned into class action suit
CA Argues: That the purpose of the statute is not to inhibit the migration of poorer citizens, just
save money. Therefore it should be subjected to rational relations test and not strict scrutiny
o Compared it to in-state college tuition compared to out of state
Out of state Residents Argue: Moved to CA to escape abusive situations and should be treated
as citizens
Reasoning (Stevens):


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Says this is going to be governed by American’s right to travel
o Concept of travel is an unenumerated right that is a privilege and immunity
Court: right to travel has three components
o Right of a citizen of one state to enter or leave another state





o Right to be welcomed as a friendly visitor
 Horizontal federalism privileges and immunities
o the rights of new citizens to be treated the same as long-term citizens living within
the state
 Article 4 privileges and immunities clause (horizontal federalism)
 Dual citizenship provision of the 14th amendment
We’re always a citizen of the US and of a state (ability to move around)
Stevens: accuses CA of trying to keep people out of their state who might become
indigent
o You can’t discriminate against people coming into your state
Durational residency requirement
o Stevens thinks Congress is kind of complicit in this
 Can’t give someone a waiver for this
o Violated 14th amendment
Stevens: Congress can’t give the states something to violate the constitution
o Approved waiver process
 Even so, this is not allowed
The welfare scheme is unconstitutional because it treats some California residents
differently than others (based on duration of residency) and therefore violates privileges
and immunities.
o State’s legitimate interest in saving money isn’t compelling enough.
Theme
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Dual Citizenship
Privileges and Immunities
Compatible Cases
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Distinguishes Slaughterhouse; Camden
Tests
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The P or I Clause protects the right to travel by:
o Allowing citizens to move freely between states,
o Securing the right to equal treatment in all states when visiting, and
o Securing the rights of new citizens to be treated the same as long-term citizens
By virtue of a person's state citizenship, a citizen of one state who travels in other states
is entitled to enjoy the P&I of citizens in the states he travels
The state's legitimate interest in saving money provides no justification for its decision to
discriminate among equally eligible citizens (also the basis for strict scrutiny analysis)
Dissent (Rehnquist):
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Argued that the right to travel and the right to become a citizen of a state are different
o Rational reason for durational residence
 How do we know if they’re really going to stay?
 Not really the point of this case
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Right to come and go
Dissent (Thomas):
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Right that citizens have privileges and immunities
Quotes Justice Bushrod Washington
o Unenumerated rights
o Privileges and immunities (not a defined list)
o the privileges and immunities will get too big—“will become another convenient
tool for inventing new rights”
Some limits to privileges and immunities
o Only fundamental rights belong to citizens of the US
There may be a case to take a closer look at privileges and immunities
o What framers really meant
Says majority here didn’t consider these questions
May be a tool to invent new rights
o Worried about opening floodgates
Takeaways
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Expands meaning of travel (travel > right to move)
Deliberate Move to expand meaning of federal citizenship
DOES NOT overturn Slaughterhouse cases, just makes right to travel a
fundamental right of national citizenship
Could argue for horizontal or vertical
Powerful right to move
Dual citizenship doesn’t give the state the right (even if approved by Congress) if it is
contrary to the Constitution
CRAFTING THE DOCTRINE OF STATE ACTION
UNDER THE 14TH AMENDMENT
14th Amendment
 § 1: Birthright Citizenship, dual citizenship, P or I, Due Process, Equal Protection, Sate
Action
 § 2: Representation and apportionment
 § 5: Enforceability- wanted congress to have an enumerated power to enforce in this
area
Test Generally: Formula for Civil rights fact pattern
 Must be a government actor
 The arguments for each side, generally:
o State/Gov’t: couldn’t have been a constitutional violation because there has been
no state action
o Plaintiff: if not an overt state action (which usually there won’t be, here) then the
state has in some way encouraged, benefited from, or at least acquiesced in the
private individuals conduct thereby furnishing the requisite state involvement.
The Civil Rights Cases (1883)
Facts: Civil Rights Act of 1875, where Congress prohibited all people from denying, on the
basis of race, any individual’s equal access to public places/accommodations/ modes of travel,
etc. (The statute was clearly applicable to private conduct)
o Civil Rights Act of 1875
 Part of the first sections of the Act prohibit discrimination against individuals
in establishments including restaurants, hotels, and stores on the basis of race.
o This case is a consolidation of five different cases from various lower courts heard by
the United States Supreme Court. In each case, plaintiffs alleged defendants violated
some aspect of the Civil Rights Act.
Issue: did Congress have the constitutional authority to enact this piece of legislation?
Reasoning:
 This was about whether Congress could enact to a statute regulating private actors
(private businesses)
o Court ruled they could not
 Need a state law discriminating/prohibiting; inconsistent with 14th amendment
o Then can Congress can assert its authority under the 14th amendment
o If no state law, then Congress does not have authority
 individual invasion of rights is not the subject matter of the 14th amendment
o If state hasn’t imposed this in legislation, then individuals can discriminate as
they see fit
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 Public vs. private
This case basically states Congress cannot provide remedy for people who are murdered
trying to vote
o Unless a state law authorizes the activity
Holding: congress may not pass an act such as the Civil Rights Act that prohibits discrimination
against individuals
 had the businesses implicated in the present cases been state or local governments,
Congress would have acted constitutionally. However, because all defendants in the cases
are private individuals accused of discriminating against African American patrons in
privately-owned businesses, Congress acted outside the scope of its Fourteenth
Amendment powers.
Tests
 The guarantees of equal protection and due process apply solely to state action
 14th Am. Does not authorize Congress to regulate solely private conduct - rather it can
only pass laws to prevent the states from interfering with these rights.
 13th Am is inapplicable here because though it prohibits private entities from holding
others in slavery, refusal to allow Black Americans to use public accommodations was
not a “badge of slavery” > just NORMAL discrimination (…um)
o Cannot preemptively regulate; must wait for there to be harm to remedy
o Didn’t want the federal gov or state gov to be reaching so far into the daily
lives of individuals
Dissent (Harlan):
 13th should apply because even if physical bondage is gone, it should provide for the
eradication of all “burden and disabilities” < institutional racism.
 13th amendment allows for the eradication, actively, not only of slavery but also of
badges and incidents (related servitudes). Discrimination in public accommodations is a
badge of this servitude, and Congress should therefore be allowed to regulate it. Also,
14th Amendment does allow federal govt to take affirmative steps as part of the
Enforcement Clause.
o Cites McCulloch – remember, it is a constitution we are expounding (broad
interpretations as opposed to originalist/formalist adherences)
 Harlan is stitching together these three post war amendments around the idea of US
citizenship and Congress enforcing these rights as rights of citizenship
o This is new but doesn’t mean it’s not enforceable
 He thinks 13th amendment does more than prohibit slavery
o This discrimination is a badge of servitude
th
 14 amendment
o They can impose a prohibition among the states
o Federal government can say state can’t pass a law that is being discriminatory
o Harlan is saying whatever white people can do, everyone else should be able to as
well
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Themes
 Role of Congress; What is citizenship?
Takeaways
 VERY narrow view of congressional power which allowed the Jim Crowe Era to happen
> Guts the various constitutional amendments.
o Court is gutting a civil rights act that seems to be the very thing the 14th
amendment intended to protect under the rubric of dual citizenship
 Leaving Civil Rights Act Cases on the books is costing lives like DeShaney’s
 Court is taking away Congress’s right of initiative (going first)
o Need state law first
o Really saying Congress can only react
DeShaney v. Winnebago County Department of Social Services (1989)—battered
child case
Facts: Deshaney was a little boy who was beaten and permanently injured by his abusive father
and is suing county social workers who failed to remove the boy from his father’s custody even
after receiving complaints and believing they were valid.
 Everyone acted too late
o Social services had many chances to help him, and allowed abuse to continue
 Petitioners suing on basis of due process clause of the 14th amendment
 Mother of DeShaney boy is suing on his behalf
Petitioner Argues: The County’s failure to act deprived him of his liberty in violation of the
Due Process Clause of the Fourteenth Amendment > duty to protect because of
special relationship.
State Argues: No such affirmative duty exists.
Reasoning (Rehnquist):
 Due Process Clause does not transform every tort committed by a state actor into a
constitutional violation. The harm was inflicted by Joshua’s father, not by the state of
Wisconsin
 Due Process Clause of the 14th Amendment only limits state powers to act such that those
actions limit individual life, liberty or property – it doesn’t place an affirmative obligation
on the states to ensure life, liberty and property don’t come to harm through other means
(i.e., private actors)
o Joshua’s father hurt him, not the state (chain of liability)
 DeShaney’s should try suing the individual CPS agents who negligently
allowed Joshua to remain in his father’s custody, under tort – there’s no
Con Law claim here.
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Theme
 State Action Doctrine
 Civil Rights
Compatible Cases
 NFIB because of INNACTION doctrine
Tests:
 The Due Process Clause does not impose a special duty on the State to provide services
to the public for protection against private actors, if the State did not create those
harms.
o It forbids the State itself from depriving individuals of life, liberty, or property
without "due process of law,"
 Only in limited cases (in situations of prison inmates or foster children) does the
constitution impose any affirmative action on the government.
Dissent (Brennan): malfeasance vs. nonfeasance argument (there was affirmative action, rather
than just a lack of action, that led to Joshua’s injuries)
o State “actively intervened” in Joshua’s life
Dissent (Blackmun): if the Constitution promises liberty and justice for all, why is Joshua being
neglected?
o Constitutional protection is guaranteed to Joshua via statute.
Takeaways:
 Follows the civil rights era playbook to dodge – the language in this and the other civil
rights cases was the same.
 This case turned on the concept of state action
 No state legislation is going to be passed allowing for child abuse
o Congress being reactive here isn’t realistic
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Notes:
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THEME: Denial of action to justice: Seminole Tribe, cases following Garcia
- Concern that people will have too many rights, claims that they can bring and
that it will create rights in public benefits that purport that the particular
version of the court did not want to see established.
- Failed to recognize any duty to the victim in the case
Seanz and Roe Dissents
- Rehnquist Dissents: expressing concerns are enlarging rights all show that the
court thought people were getting too many rights, and getting his way oint he
majority here.
ENFORCING THE 14TH AMENDMENT
“The Congress shall have power to enforce, by appropriate legislation, the provisions
of this article.”
14th Amendment, §5
Katzenbach v. Morgan (1966)—English speaking voters
Facts: In 1965, Congress passed the Voting Rights Act (VRA) of 1965. Section 4(e) of the Act
provided that no person that successfully completed the sixth grade in a public or private school
accredited by Puerto Rico, where the language of education was something other than English,
could be denied the right to vote in an election because of his inability to read or write English.
NY Statute however, required all voters to have the ability to read and write English as a
requisite to voting. Morgan & Morgan challenged the constitutionality of §4(e) in federal district
court on the grounds that it prohibited enforcement of New York’s election laws requiring an
ability to read and write English as a condition of voting.
 Morgan and other registered voters in New York City (plaintiffs) brought suit against
Katzenbach (defendant), the United States government official (Attorney General) tasked with
enforcing §4(e).
Issue & Holding:
 Does Section 4(e) of the Voting Rights Act of 1965 exceed the scope of Congress’s
power to enact legislation by infringing on powers reserved to the states under the 10th
Amendment?
o No
Reasoning (Brennan):
 Court held that passing this statute was a proper exercise of powers granted to Congress
(section 5 of 14th amendment and supremacy clause)
o NY English requirement literacy requirement cannot be enforced because it is
inconsistent with section 4 (e) of the Voting Rights Act of 1965
 Voting Rights Act (and the section in question) are a proper exercise of powers granted to
Congress via the 14th Amendment and, due to the supremacy clause, NYS voting statute
is unconstitutional and can’t be enforced.
o Counter argument was that passage of Voter Rights Act can’t be seen as a valid
enforcement of the Equal Protection Clause of the 14th Amendment unless the
court first rules that literacy/English requirement and NYS law violates the 14th
Amendment. Court disagrees – they don’t need to first determine constitutionality
of NYS law if the congressional Act is appropriate enforcement, under the
McCulloch v. Maryland standard.
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The law not only equally protects Puerto Ricans in Puerto Rico, it also
protects Puerto Ricans living in New York  clearly a fair enforcement of
Equal Protection.
§5 gives Congress “by a specific provision applicable to the 14th Amendment, the same
broad powers expressed in the necessary and proper clause.” Congress has the power to
enforce this specifically, directly. In fact, Congress’ ability to legislate was enlarged by
the 14th Amendment.
o Recall McCulloch: make inferences about the constitutional provisions to see how
far they extend. §4(3) of the VRA
Test/Outcome:
 The test in Marbury v. Madison for determining whether an act of Congress is valid
under the N&P Clause applies to actions taken under the Enforcement clause (§5) of
the 14th Amendment.
 Test for what Congress can do to enforce the Equal Protection Clause:
o The legislation passed is for the legitimate end of ensuring equal protection
o The legislation passed is plainly adapted to that end
o It is not prohibited by the Constitution
 Congress may pass legislation to enforce the Equal Protection Clause of the
Fourteenth Amendment even when the legislation conflicts with state law
 Same as Necessary and Proper analysis
Themes:
 Vertical Federalism
Dissent, Harlan:
 §4(e) does not respect the separation of powers between the judicial and legislative
branches and violates the federal and state boundaries of political authority
 As a state, NY has the authority to regulate who can and cannot vote since voting is a
state matter.
 the Court previously upheld English literacy requirements, and it’s not the role of
Congress to pass a law that then goes against those decisions, nor should the court uphold
that law (thus going against themselves).
 it is for the Court to decide—not Congress—whether the condition with which Congress has
sought to deal is truly an infringement of the Constitution. If it were otherwise, Congress
would be able to qualify the Court’s constitutional decisions under the Fourteenth and
Fifteenth Amendments, as well as other constitutional provisions, by resorting to the
Necessary and Proper Clause.
Takeaways:
 Real reason for this legislation is that NYC wanted to disenfranchise Puerto Ricans b/c
they would vote liberally even though they claimed that they wanted to encourage Puerto
Rican immigrants to learn English.
 The eligibility to vote is defined in the Constitution.
o 26th Amendment - (1971)
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Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote,
shall not be denied or abridged by the United States or any state on account of age.
§2. The Congress shall have the power to enforce this article by appropriate legislation
 Pushing back against a narrowing of the 14th Amend in prior cases
 The dissent in this case matters a lot b/c it becomes the majority opinion in the next case.
OVERRULING THE CORE OF THE 1965 VOTING
RIGHTS ACT
The right of citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or previous condition of
servitude.
15th Amendment, section 1
Shelby County, Alabama v. Holder (2013)—old voter data case
Facts: When the Voting Rights Act was originally passed, it established that some traditionally
more discriminatory states in the South were subject to probationary measures. In addition to the
nationally applicable Section 2 which banned any measure that limited a citizen's right to vote
based on race or color, these probationary states were also subject to sections 4 and 5. Section 4,
known as the coverage formula, determined which states were subject to Section 5 which
prohibited any changes in state voting procedures without federal approval. Section 5 was
regularly renewed by Congress until 2006 when statistics showed that voter registration was
essentially equal between white and black voters. In response to this finding, Shelby
County, Alabama filed suit claiming that sections 4 and 5 were facially unconstitutional and
seeking a permanent injunction to stop their enforcement. They were challenging whether
section 4 or 5 was still constitutional.
 Section 5 of the voting rights act requires States to obtain federal permission before
enacting any law related to voting
o Roberts claim this is a drastic departure from basic principles of federalism
 Section 4 applied section 5 requirement only to some states (states that had a problem—
i.e. a large portion of the south)
 Holder was the U.S. Attorney General at the time
Issue & Holding:
 Did Congress exceed the scope of its Fifteenth Amendment enforcement powers when
it relied on 40-year-old data to identify certain state and local governments required to get
preclearance for voting-related changes?
o Yes.
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Test:
 If in present day, Congress wants to use its 15th Amend enforcement powers to
prevent future violations of the Amendment—rather than punish past violations—
Congress must adjust the measures it uses to reflect current rather than
historical data on voting circumstances
Reasoning (Roberts):
 This requirement only impacts the sovereignty of a few states.
o This is a departure from the principle of equal sovereignty among the states.
 The drastic measures of these provisions were warranted in 1965 but now there is no
need for this since there is no longer a substantial disparity in voter registration or turnout
between whites and blacks as per the Census Bureau’s data from the 2012 elections.
 Congress must justify restrictions using current data, not old data.
 Roberts took equal sovereignty and repurposed it from admitting new states to the union
to as a critique of the pre-clearance process
o Idea that only some states are subject to pre-clearance
o Initially meant (for admittance into union) that you came in with the same rights
as the other states
 Roberts is acting like if you fix a problem once, you fix it for good
o Just not true
o Fundamental structural problem with the argument in this case
Dissent (Ginsburg):
 The majority had failed to give the requisite deference to Congress’ judgment about what
means were/are required to combat discrimination in voting.
o Congress’ powers to enforce the 15th Amendment should be construed
BROADLY because this deals with 2 major constitutional issues—racial
discrimination and the right to vote and therefore Congress’s power to act is at
its height.
 RBG rejected the majority’s conclusion that the coverage formula failed to consider the
current conditions because the current conditions are evidence of the efficacy of the rules
> “Like throwing away your umbrella because you aren’t getting wet”
o Looks at data that goes against what Roberts said about things being fine now
 Said we need to keep this because it shows that the provisions are working
 Says we should look at McCulloch
Takeaways:
 Majority: The 15th Amendment is not meant to punish the past but to make a better
future
 Exam: How stable is the area of law = how cohesive is the law and how they are
with each other
 State rights = 10th Amendment
 Assessing power of 14th Amendment Katzenbach v. Morgan counters the Slaughter
House cases
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This is a voting case that is a real challenge to the preamble and the Declaration of
Independence
This case set a dynamic in motion that looks like its heading in the same direction as the
Slaughter House cases
Pattern of US supreme court changing ground rules of federalism as we go