I. Power to Interpret the Constitution
A. The Power of Judicial Review
1. Marbury v. Madison – creates the authority for judicial review, power to interpret the constitution
a. Judicial review – doctrine by which the actions of legislative and executive branches are subject to
review by the judiciary
1. The Supreme Court has the power to review these actions
2. Supreme Court has the power to review state court judgments because the constitution limits
cases/controversies
a. To prevent state biases
b. Martin v. Hunter’s Lessee (1816) – (VA seized land from loyalists) key to reviewing state court
decisions, SC review is essential to ensure uniformity in interpretation of federal law
1. Reaffirmed by Cohens v. Virginia
3. Federal Judiciary is supreme in the interpretation of the constitution
a. Based on Marbury v. Madison the courts inferred judicial supremacy from judicial review
b. Congress can’t change the Court’s decision by passing a federal law
1. Cooper v. Aaron – (Arkansas cases, desegregation) federal courts can review the
constitutionality of state court actions and laws and state officials are bound by orders of the US
Supreme Court
B. Constitutional Self-imposed limits on the judicial power
1. Congressional Restraints
a. Amendment process
1. Supreme Court decisions are binding on congress unless they pass an amendment to the
Constitution
b. Popular opinion
1. Court has only the good will of the people to enforce its decrees
c. Court packing
1. Structural interference: Congress gets to decide how many justices will sit on the supreme court
and sets the size and budget of the court
d. Court stripping
1. Procedural interference: Achieve change in substantive law by procedural device, strip the court
of its ability to hear certain cases which in turn messes with its appellate jurisdiction
e. Impeachment
1. Have to have some misconduct
f. Nomination/Confirmation by President/Senate
2. Interpreting the Constitution
a. Textualism
1. What the words mean
b. Historical intent- Originalism
1. What was the historical purpose and meaning when it was made
c. Constitutional structure and theory
1. Construe based upon the underlying principles of the type of government/how the constitution is
organized
d. Constitutional Policy
1. Reasoning based on contemporary societal needs and changing values
e. Precedent
1. Prior case law
f. Multipluralist
1. Apply every form of interpretation and determine the best answer
3. Requirement for Cases and Controversies
a. Case and Controversy – court is meant to be the judge of disputes, concrete controversies
1. Prohibition on advisory opinions – Courts do not decide constitutional laws unless they
arise from a real dispute
a. Federal courts cant issue advisory opinions because want to keep them out of the legislative
process
i.
The judicial role should be limited to deciding actual disputes
ii.
Want to present the court with actual specific disputes
b. Two criteria to be an actual dispute and not advisory
i.
Must be an actual dispute with adverse litigants
ii.
Substantial likelihood that a favorable court decision will have some effect
b. Justiciability Doctrines – All 4 have to be met for a federal court at any level the hear the case
1. Standing
a. Whether the P is the proper party to bring the matter to the court [Lujan]
b. Requirements for standing:
1. Injury in fact must be
a. Concrete – If it was really insubstantial it may not be concrete; “level” of injury
b. Particularized – affects that P in a personal or individual way
c. Actual and imminent
i. The injury had to have actually happened and imminent applies when you are
suing for injunctive or declaratory relief, must show likelihood of future harm
d. Invasion of a legally protected/cognizable interest
i. Tangible and Intangible
ii. Violations of constitutional rights, statutory rights, property, contracts, torts
2. Causation
a. Causal connection between the injury and the conduct complained of; burden on P
3. Redressability is likely
a. Must show that a federal action is likely to bring a remedy
c. Procedural-Injury Theory of Standing “Citizen Suits”
i.
Suit is against some government actor/party; i.e. Congress allows a party to bring suit
1. Apply 3 traditional aspects of standing (injury, causation, redressability)
a. Still won’t be able to bring forth a general grievance but may be more lenient in
terms of imminency and redressability
d. Associational Standing
i.
An organization may assert associational standing and claim an injury in fact so long as:
1. One of its members was injured and could themselves have standing
2. Claim is germane/relevant to the purpose of that association
e. Prudential Standing
i.
Court may still deny standing based on prudence even when they satisfy Article 3
requirements
1. Prudential standing can be waived (but constitutional standing cannot)
ii.
Third Party Standing requires:
1. P must meet Lujan themselves
2. Close relationship between P’s interests and interests of TP (closely aligned interests)
3. TP has some sort of hinderance that prevents them from being in front of the court.
a. Not to be confused with associational standing!!
iii.
iv.
Bar on Generalized Grievances
1. Not about large # of grievances present, P must not be suing solely as a citizen or as a
taxpayer looking for the government to follow the law
2. Exception – taxpayers have standing to challenge government expenditures violating
the establishment clause (narrow exception)
Cases
1. Lujan v. Defenders of Wildlife
2. Massachusetts v. Environmental Protection Agency
3. Hollingsworth – P’s lacked standing
2. Ripeness – Just gloss over, court will jettison soon.
a. Ripeness focuses on whether or not the injury has occurred yet (vs. standing which is about if
the injury is sufficient)
i.
If no standing P might be denied standing or deemed as not ripe
ii.
Seeks to prevent premature adjudication by preventing claims that are insufficiently
developed to warrant judicial action
b. How to overcome it?
i.
Would it create hardship for the party if the court were to deny the case? (constitutional
requirement that can’t be waived)
1. More substantial the hardship more likely to find ripeness
a. Collateral injuries, enforcement certain, compliance/conviction
b. If minimal harm likely not ripe
ii.
Is the factual record sufficiently developed (fitness) for the court to make a decision?
(prudential requirement that can be waived)
1. If more of a legal issue then factual then more likely to find ripeness
2. Asking yourself if there is any reason why the court should wait to decide on the
issue?
3. Mootness
a. Actual controversy must exist at all stages of federal court proceedings
i.
Examples:
1. Settled – moot because no live controversy
2. D dies
3. Challenged law repealed or expires – moot
4. Any change in facts or in the law occurring after the lawsuit has gotten under way
that renders the case moot
ii.
Exceptions – where you don’t dismiss the case as moot even though injury resolved
1. Wrongs capable of repetition but evading review
a. The challenged action is in its duration too short to be fully litigated prior to
cessation or expiration, and;
b. There is a reasonable expectation that the same complaining party will be
subject to the same action again.
i. i.e., Reasonable expectation or chance that P would be in that position again
but would always evade review
ii. Typically in abortion cases (e.g., Roe v. Wade)
2. Voluntary cessation of act
a. The defendant’s cessation of activity does not make the case moot, unless it
is absolutely clear it wont happen again.
i. Note: There is a presumption that D will do it again.
3. Class action lawsuits
a. If named P’s claim moot, class action not dismissed as long as 1 member of
the class still has an ongoing injury
4. Political Question Doctrine
a. Issue is not fit for judicial resolution, and should be handled by the legislative or executive
branch (e.g. foreign policy or defense matters)
i.
PQ infringes on another branch’s discretion
b. Zivotofsky v. Clinton – case that involved the constitutionality of whether a law itself
infringes upon the other branch’s discretion, which is different from a PQ
c. Four types of political Qs:
i.
Guarantee Clause – Cases under Republican form of government clause; Art 4 Sec 4
that guarantees each state a republican form of government
ii. Challenges to presidential conduct of foreign policy (Zivotofsky)
iii. Challenges to impeachment and the removal process (Walter Nixon)
iv.
Challenges to partisan gerrymandering (Baker v. Carr)
d. What to look for in determining if it’s a PQ:
1. Dispute reserved in Constitution to other branches of government
2. A lack of judicially discoverable and manageable standards for resolving it
(court is given no standard by which to adjudicate the dispute)
5. Note: whether a constitutional amendment should be passed is a political Q not a judicial one.
4. Nixon: Impeachment trial where he claims full presidential immunity to documents.
a. If justice dept. can show a real need for the documents/evidence, then a judge can determine if the
materials contain military/diplomatic information or sensitive information. If they do then, the
justice department can’t get the documents or information.
II. Federal Legislative Power
A. Federal Government
a. Art I – Legislative Branch
b. Art II – Executive Branch
c. Art III – Judicial Branch
d. State Governments – all powers not in the constitution are vested to the states by the 10th
amendment (plenary power)
e. Supremacy clause – Federal supremacy over conflicting state laws
B. Powers of Congress (limited powers)
a. Legislative powers/actions/implementations must go through the formal presentment clause
i. Delegation is ok, if it grants the President the authority to make rules to carry out laws of
Congress
ii. Unilateral veto acts are not ok, if it grants the president/congress power to amend or
affect laws that have already passed
b. Congress generally lacks the police power, for congress to act must be express/implied action
(limited powers)
i. State and local government have state power
ii. Congress is limited to what is granted to them in the constitution
iii. The federal government binds and is supreme to the states
1. Big Bang Theory – states can only reserve those powers which existed before
2. Representatives are representing the American people as a whole
c. Necessary and Proper Clause
i. Article 1 section 8 – congress an take all actions necessary and proper to carry out its
authority
1. Gives Congress the power to execute its enumerated powers
2. McCulloch v. Maryland – established that the N/P clause gives Congress the
means to effectuate its express powers; congress may choose any means in the
constitution to carry out its authority
a. As long as these means are appropriate and directly related to the
implementation of such power
b. Gives congress board powers
c. This case also sated that the states could not deny the federal government
the right to create a national bank (denied compact federalism)
d. Federal government has the implied powers to carry out the express
powers
ii. Necessary – reasonable or convenient
1. Must have been the intention to ensure beneficial execution of express powers
iii. Proper – doesn’t violate the spirit of the law
iv. US v. Comstock – there could be multiple steps between the express power and the statute
-- established means end rationality review
d. Whenever the law is challenged as exceeding Congress’s power under direct grants and the
N+P clause use means end rationality review
i. Look to see if the given law is necessary and proper means for executing the power
ii. Are the means used rationally and actually related to achieve the constitutionally desired
end?
iii. How many links are in the chain?
1. Rational relationship between the links
2. Quality of the links in the chain
iv.  If you find a rational relationship then uphold as proper under N+P
C. Commerce Clause Powers
a. Article 1 section 8 clause 3 Congress has the power to regulate commerce with foreign nations,
Indian tribes and among the several states
i. Among foreign nations – Congress has much broader authority under the foreign
commerce clause because (1) the country must speak with one voice and (2) there are no
federalism concerns
1. Analysis on an exam would be the same as interstate commerce powers
ii. Indian tribes – Congress has authority to engage in all types of intercourse and exchange
b. Congress operating within its scope
i. Congress can operate channels of interstate commerce (places where commerce occurred)
ii. Regulate instrumentality or places and things within interstate commerce
1. Instrumentality – what facilitates interstate commerce
2. Persons/things – Gibbons v. Ogden
a. Gibbons v. Ogden – congress can prescribe the rule by which commerce is
to be governed; has the authority to regulate all foreign and interstate
commercial activity including commercial activity internal to a state
i. Congress regulation is absolute
ii. Does not stop at the external boundary line of each state but
includes commercial activity internal to a state that could affect
other states
iii. Only thing it does restrict is intrastate commerce that does not
affect other states
3. Substantial effect on interstate commerce
a. Cannot regulate non-economic activity by showing cumulative impact
(Wickard)
i. Creates the substantial effect (US v. Morrison)
c. Can states concurrently regulate interstate commerce with the federal government?
i. If congress has exercised its powers any state law that contradicts will be invalid based
on the supremacy clause
ii. If congress has not exercised its powers then state may be able to concurrently regulate
d. Three eras in current abilities to regulate:
Ability to regulate:
Cat 1 – channels
(rivers, lakes,
railroads, airways,
communications) and
instrumentalities
(ships, trains, trucks,
airplanes, etc) of ISC
Pre New-Deal
Can regulate as necessary
(Gibbons v. Ogden)
Post New-Deal
New-Deal to Lopez
Same as Pre-New Deal
Virtually plenary power
to regulate these things
Virtually plenary power to
regulate
Cat 2 – the uses of
the foregoing for the
IN transport of good
and people (and IS
transactions in
general)
Ames
Hipolite Egg Co.
Hoke
Hammer – limitation –
court is starting to give 10th
amendment some teeth,
distinguish between
inherently harmful and
non-harmful
Expressly overruled Hammer in
US v. Darby – no federalism/10th
Am. concerns over Congress
excising plenary powers in this
category no matter what purpose
R/R Court
Lopez to modern
day
(Rehnquist/Roberts
Court)
Same as Pre-New
Deal
Virtually plenary
Same as Post New
Deal
Virtually plenary
Now virtually pleanry
The authority depends
Cat 3 – Regulation of Several approaches:
intrastate activities
(1) direct v. indirect [E.C.
that effect ISC
Knight];
(2) Stream of commerce
[Swift & Co.]; (3)
Substantial effects test
[Shreveport Rate]
J&M Steel; Wickard
Heart of Atlanta Motel; McClung
Perez
Darby
[See below]
Rule from J/M Steel:
substantial effects test
Rule from Wickard: cumulative
effects test
Lopez,
Morrison,
Gozales, Sebelius
[See Below]
Cumulative effects
test can’t apply to
create a substantial
effect on interstate
activity when the
local activity is
non-commercial
or non economic
conduct
i. Regulation of Intrastate Economic Activities with Interstate Effects
1. Substantial effects test
a. Any intrastate commerce that Congress finds has a substantial effect on
interstate commerce can be regulated (can also be local economic activity
and an aggregation of a class of activities)
2. Cumulative effects test
a. Looks to the cumulative effects of isolated local activities and if they have
a substantial effect on interstate commerce
i. Can’t be used to regulate local activity that is non-commercial or
non-economic conduct
1. Ask yourself the following:
a. Is congress regulating economic activity?
b. Is there a substantial effect based on cumulative
impact?
ii. Exception: Jurisdictional element limited to interstate commerce
1. Something that limits the reach of a federal law to a
discrete set of non-economic intrastate activities that had an
explicit connection to interstate commerce
2. US v. Lopez – non-economic possession of gun, not selling,
Congress lacked power to criminalize the possession of
guns in the vicinity of the school
3. US v. Morrison – Lopez applied because the Violence
Against Women Act is a non-economic activity
4. Four factor test under Morrison:
a. Is it economic or non-economic activity?
b. Is there a jurisdictional hook in the statute?
i. Can the government demonstrate sufficient
connection to make this case applicable to
federal law?
c. Did Congress make factual findings in regard to the
effect
d. Attenuated link
i. How far is the cause and effect?
5. Gonzalez v. Raich – (medical marijuana case) seems to
suggest that Congress might be able to regulate local, noneconomic activity under the Wickard (cumulative effects
test) if it impacts a national regulatory scheme
3. Modern Approach – Rational Basis test (Hodel v. Virginia Mining)
a. (ENDS) Did congress have a rational basis for a finding that a regulated
activity substantially affects interstate commerce?
b. (MEANS) Was the regulation reasonably adapted to addressing that effect
and achieving its interstate commerce goals?
e. Two additional rules:
i. Congress cannot regulate economic inactivity
ii. The N+P clause cannot expand one of Congress’s direct grants of power (cant go past the
limits of the commerce clause itself)
1. National Federation of Independent Businesses v. Sebelius
f. External Limits on Congress’s Power
i. 10th amendment – all powers not granted to US by the Constitution, nor prohibited by it
to the states, are reserved to the states or the people
1. Permissible:
a. Congress can include the state in generally applicable laws and regulations
i. Congress can state its goals and have the states create the
regulations
ii. Congress may prohibit harmful commercial activity by state
governments
2. Impermissible
a. Congress can’t compel state legislative or regulate activity
i. Can’t command the state, can’t tell them how to make laws or to
take certain actions to carry out federal regulations (cannot
commandeer state/local legislatures or executive branches)
1. Legislative: NY v. US
2. Executive: Printz v. US
ii. Exception will be generally applicable laws
b. Congress can only act to prevent or remedy a violation of rights already
recognized by the courts; cannot create new rights or expand the scope of
rights
i. Narrowly tailored; proportional and congruent to remedy proven
violations (Sec 5 of 14th amendment)
ii. 11th amendment – state sovereign immunity; citizens of states cant sue the state
1. Applies to states being sued by citizens of other states
2. Even if you’re a citizen of your own state and want to sue, you can’t do so
3. Exceptions:
a. Suits against state officers instead of states for violating federal law
i. State officials must be sued for injunctive/prospective relief
1. Exception wont apply if suit has claim for damages
ii. Only applies to federal question issues
b. Suits vs. counties/cities – local governments or even independent state
government entities
c. Suits vs. state itself; IF the state clearly consents to be sued in federal
courts (also state courts if state law says it could)
i. Unless it’s clear in the federal law that states are waiving immunity
then there is no waiver
d. US itself as P – on theory that sovereign immunity was only meant to
protect against citizen suits
D. Taxing and Spending Clause
a. Article 1 Section 8 Clause 1
b. Taxing Power to lay and collect taxes:
i. Pay debts, provide for the common defense, provide for the general welfare
ii. Direct taxes must be apportioned by the population of the states
1. Capitation tax – per person “head tax” or “poll tax”
2. Taxes on personal property and income, taxes on land
iii. Indirect taxes must be applied uniformly (geographically uniform)
1. Duties (articles of commerce), Imposts (levied on imported articles), Excises
(retail sale or consumption)
iv. Limits:
1. Taxing must be related to paying debts, providing for the common defense and
promoting the general welfare
2. When taxing for the general welfare it has to be for only national welfare and not
for local welfare
3. Prohibition on taxing exports
4. Tax cannot be a pure regulation
a. Can congress tax purely intrastate activities to regulate them?
i. Two main requirements: (US v. Kahriger)
1. A revenue-raising purpose (even if negligible)
2. Regulatory provisions cannot be “extraneous to any tax
need”; cannot be a penalty on conduct unrelated to tax
collection
5. Is it a tax or a penalty?
a. When determining whether something is a tax or penalty under Antiinjunction act go with the language used by Congress (NFIB v. Sebelius)
b. When determining whether something is a tax or penalty in real life look
at its function
i. Four factors:
1. Is it paid into the treasury like a tax?
2. Is it computed based on income like a tax?
a. It doesn’t apply to people who don’t pay federal
income taxes
3. Is it given to the IRS like a tax?
4. Is there no “scienter” requirement like a tax?
a. Penalties usually require some kind of knowledge
v. To determine whether Congress is validly exercising its Taxing Power “Kahringer
+factors”
1. Raises revenue
2. Regulatory provision can’t be extraneous to any tax need
3. Limited on Function Approach – must not be so punitive that it can no longer be
characterized as a tax and is instead a fine
vi. Intergovernmental Tax Immunity Doctrine – Federal government can’t directly tax the
state government entities or operations and vice versa
1. Applies only to direct taxes
2. State and local governments can indirectly tax federal government officers if it is
generally applicable to everybody
c. Spending power to provide for
i. Cases are about the scope of congress’s spending power
ii. Two main challenges:
1. Doesn’t promote the general welfare and is “too local”
a. Courts hands off approach because consider it to be a PQ
b. Need to look at how general or national the purposes of spending needs to
be
2. To what extent Congress can regulate through conditions imposed on
funds/money given to the states
a. Congress may regulate indirectly through funding condition matters that
are otherwise reserved to the direct regulation of state and local
governments
iii. Congress can regulate indirectly
1. To determine if power is beyond the scope of the spending clause, use the 4 Dole
factors in EVERY scenario and Obamacare 5th prong. MUST SATISFY ALL
PRONGS!
2. Restrictions on power to regulate indirectly [DOLE TEST] (SD v. Dole)
a. Must be for the general or national welfare (goes back to purpose)
b. Any funding conditions must be stated clearly so that the states know the
penalty for taking funds and not complying with the condition
c. Conditions must be reasonably related to federal interest in the funding
program
d. Conditions can’t induce the state to engage in any conduct that would
violate the federal constitution (funding condition cant itself violate)
e. *From NFIB case* The condition must not be coercive
i. Amount of funding withheld if the state does not agree to the
conditions of the funding cant be so coercive as to turn pressure
into compulsion (here it was 20% of funding at stake)
ii. Undue Coercion:
1. Severity of coercion and impact
2. Depth of reliance interests affected
3. Congressional intent to coerce
E. War Powers
a. Article I Section 8; declare war, raise and support armies, provide and maintain a navy, make
rules for the government etc.
b. NP clause has the right to remedy conditions that can reasonably be said to be the direct and
immediate effect of war
i. 10th limits so that Congress can’t deal with indirect or old problems
ii. During war congress can regulate a national economy
iii. Woods v. Cloyd W. Miller Co. – War powers of Congress activated by armed conflict
may extend beyond the cessation of hostilities to permit congress to address the negative
effects of war such as imposing rent control under the war power
iv. War powers are very broad!!
c. Test:
i. Did congress pass a law that was passed for the purpose to rectify a problem that
was caused by war?
ii. Did the law seem to be a reasonable way of addressing that problem?
1. i.e.:
a. Ends: Is the problem reasonably said to be caused by war?
b. Means: Is this a reasonable way to address the problem?
F. Congressional Power over Foreign Affairs
a. If there is a vital national interest, there are no 10th amendment concerns
i. Missouri v. Holland –(treaty to protect migrant birds) Even if a statute was
unconstitutional because interfered with the 10th amendment, congress can pass such a
statute to enforce a treaty
1. President has power to enter into treaties that are the supreme law of the
land under Article VI.
2. Treaties must address national problems and have national solutions.
ii. Congress does not have the power to implement a treaty that would violate another
provision of the constitution (Reid v. Covert)
b. Implied Congressional Power over foreign affairs
i. Mackenzie v. Hare – congress had the power to compel American women who married
foreigners to assume nationality of their husbands
ii. Curtis v. Wright – Congress broad foreign affairs power as an inherent characteristic of
being a sovereign nation, not limited by concerns about the divisions of power between
federal and state governments
iii. Perez v. Brownell – Congress had implied foreign affairs with N/P clause to deprive
Americans of their citizenship for voting in other countries’ political elections in order to
avoid foreign relation complications
1. Schneider v. Rusk – voting in a foreign election was not sufficient grounds for
depriving an American of his citizenship
iv. Galvan v. Press – Congress had the foreign affairs power to deport an alien who joined
the communist party regardless of whether that person had knowledge of party’s
advocacy of violence
G. Congressional Power to protect Constitutional Rights
a. 13th amendment rule: if congress thinks a form of behavior can be characterized as a badge or
incident of slavery then the court will defer to Congress’s determination (Jones)
i. ONLY applies to racial discrimination
1. Other type of discrimination will then apply to 14th amendment
ii. Applies to both public and private actions
b.
c.
d.
e.
f.
1. Civil Rights Cases: (1883) barred acts of discrimination in public places, 13th
amendment applied to both state and private actions
2. Jones v. Alfred H. Mayer Co. (1968) Congress has the power to address vestiges
of slavery by private actors under the 13th amendment
iii. For places of public accommodation Civil Rights cases still technically control but it is
overruled by the commerce clause
iv. If anything else, Jones is the proper analysis
14th amendment rule: applies only to public and state actors (Civil Rights Cases) but also applies
to more than just racial discrimination (Jones)
i. Congress can only enforce interpretations (something that is remedial or preventive in
nature) of the courts, not create its own interpretation or define the scope of the
Constitution (City of Boerne v. Flores)
Congress has passed a law against a state/public actor
i. Therefore, state sovereign immunity could apply for _____ reason but it does not apply to
the 14th amendment (because can’t prohibit acts of private actors). Therefore, this law
applies as long as its congruent and proportional under the Boerne test because ___.
To determine whether its enforcement or interpretation use CONGRUENCE AND
CONGRUENCE & PROPORTIONALITY TEST
i. Must be a congruence and proportionality between the injury to be prevented or remedies
and the means adopted to that end
1. Congruence: Look for a relationship between the law and the identified
constitutional violation
a. Can congress point to a pattern of violations by the state/local actors
where the violation is one that the Court has previously defined in a case?
i. Court requires a showing that rights have been violated for
Congress to be able to provide a remedy
2. Proportionality: Did Congress “tailor” the remedy to fix the problem or was
it too much?
a. It can’t be over or under inclusive
i. The remedy must be limited to the violation
ii. Looking to see does the congressional law provide stronger
protection than what the Court has provided for and is Congress
applying the scope wider than the Court has said it should have?
b. Ensure that it doesn’t go beyond what’s necessary to solve the problem
ii. US v. Morrison – Law was congruent because Congress was addressing a pattern in
violation of constitutional rights that the Court defined, but it was not proportional
because Congress was trying to prohibit the acts of private actors which isn’t allowed
under 14th amendment
Congress has the power to waive State’s sovereign immunity subject to the 14th amendment as
long as passes Boerne’s congruence and proportionality test
Note: Under Shelby, congress must be able to show a current need/showing for the law.
III. Federal Executive Powers
A. Article II executive power in the President
a. Express enumerated powers:
i. Commander in chief
ii. Make Treaties
iii. Appoint Ambassadors
iv. Execute Laws of the US
v. Executive Orders
B. Foreign Policy
a. Treaty Powers
i. Negotiated by the President and ratified by the senate (2/3 vote
ii. State laws that conflict with treaties are invalid
1. Supremacy clause
iii. Conflict between treaty and statute, the one last in time (most recent) controls
iv. Treaties invalid if conflicts with the constitution
b. Executive Agreements – does not have to be ratified by the senate
i. It’s supreme binding federal law
ii. Agreement beween US and foreign country when signed by president and head of foreign
nation
iii. May be used for any purpose
iv. Can prevail over conflicting state laws but never over federal laws of the constitution
c. Article 1 gives Congress power to declare war, make rules regarding capture, provide and
maintain forces
d. Article 2 gives the president power of commander in chief
e. The decision as to commit troops in the first place – political questions
i. Joint War Powers Resolution – allows troops to be deployed when declaration of war,
specific statutory authorization, national emergency
C. Domestic Affairs
a. No limit on Congress’s ability to delegate legislative power to executive agencies
b. Appointment and Removal Power
i. Appointment Power – president appoints ambassadors, federal judges and officers of the
US (senate must confirm)
1. President can nominate superior officers that are approved by the senate
a. Congress can allow president to appoint inferior officers without
authorization if they make a law that says he can do so
2. Congress may vest appointment of inferior officers to the president, heads of
other departments, or other federal courts
a. Inferior = removed by officers in US
b. Congress can’t appoint superior officers (Buckley v. Valeo)
3. If congress wants to remove officers it has to do so through the impeachment
process
a. US officers can only be removed by the president
b. By congress only through impeachment
4. Congress can’t give appointment power to itself or officers
ii. Removal Power – unless limited by statute, president can fire any executive branch
official
1. Two requirements to limit removal:
a. Must be an officer (independent of president desirable)
i. Ex: cant limit removal to cabinet but could independent
counsel/special prosecutor
b. Statute must not prohibit removal completely but can limit to good cause
c. Legislative Veto – congress attempts to overturn executive action without bicameralism and or
presentment (aka one-house legislative veto)
i. Bicameralism – both houses pass, Presentment – given to president to sign
ii. *Have one but not the other it’s still a legislative veto
iii. INS v. Chadha
d. Line item veto – president attempts to veto part but signing the rest into law
i. This is unconstitutional; either have to sign or veto the entire bill
ii. Equivalent to amending laws and that must go through presentment clause (leg action)
iii. Clinton v. NY – president cancelling statutory provisions means he is unilaterally creating
new law which violates bicameralism and presentment, executive overreaching
e. Can Congress be involved indirectly with the removal of executive officers?
i. Old – ask whether the executive official that Congress is restricting the removal of is
exercising purely executive functions in an executive agency or an independent agency
with quasi-legislative judicial functions
1. Myers v. US – congress can’t limit presidents removal power for purely executive
agencies
2. Humphreys Executor v. US – Congress can limit Pres removal power over
independent agencies for good cause
3. Wiener v. US – power to remove officers that are not purely executive existed
only if Congress may fairly be said to have conferred it
ii. Modern Functionalism – Whether by this measure of independence to the executive
official Congress is impairing the accountability of the President in faithfully executing
the laws
1. Congress can restrict the P’s ability to remove a US officer if it would not
significantly impair his ability to do his duty and be accountable
a. If it does impair P’s ability to do his duty and be accountable then removal
restriction is invalid
f. Morrison v. Olson
i. Functionalist test (THE TEST) – asking whether the removal restrictions are of such a
nature that they impede the President’s ability to perform his constitutional duty, and the
functions of the officials in question must be analysed in that light.
1. 3 main factors
a. How important are the responsibilities of the officer to the overall
functioning of the executive branch?
b. Does this removal restriction impede the president’s oversight over the
proper performance of the functions assigned to the officer? For cause
restriction doesn’t impede the president’s ability to have oversight.
c. Is some degree of independence from presidential oversight desirable?
g. Executive Orders – Youngstown Sheet & Tube Co. v. Sawyer
i. Three approaches
1. Justice Black – president’s power must stem from an act of Congress or the
Constitution
2. Justice Frankfurter – a tradition of acquiescence by Congress can show executive
power
3. Justice Jackson - **what the court currently uses today**
a. President’s powers are not fixed but fluctuate depending on the
disjunction/conjunction with Congress
b. Zone 1 – express or implied authority of congress
i. If congress passes a law then it expressly grants the president
power to enforce that law
ii. Authority is at its maximum
iii. Likely to be a valid exercise
iv. But even if president is in zone 1 his action can be barred by the
protection of the constitution
c. Zone 2 – no congressional authority (congressional silence) acting on his
own authority
i. Because Congress has not acted whether or not this is a valid
exercise will depend upon the circumstances
ii. President can only act on the basis of his enumerated powers
1. If goes beyond those powers, probably a PQ that court can
only strike down if it encroaches on Legislative branch
powers
d. Zone 3 – direct contravention
i. Congress has spoken and said the president cannot do something
and president takes measures against what congress has said
ii. Likely to be a valid exercise of authority
iii. Presidents action is unconstitutional unless the president can prove
that his action as valid even in the face of congressional
contravention by pointing to a clear constitutional authority
D. War/Terrorism Powers
a. President’s Power to unilaterally detain alleged combatants against the US without interference
by Judicial System
i. Older cases – only congress has the power to suspend the writ of habeas corpus and only
in cases of rebellion or invasion when the national security requires it
ii. Analysis
1. Apply Jackson framework (zones) to see what zone we are in
2. Even if permissible under Jackson, are there individual constitutional rights being
violated?
b. President’s power to unilaterally try alleged combatants against the US without interference by
Judicial system
i. Older cases – if you are a US citizen that has not taken up arms against the US you
cannot be tried by a military commission but an enemy combatant (citizen or non-citizen)
can be
ii. Analysis
1. Jackson framework – what zone are we in?
2. Even if permissible under Jackson are there individual rights being violated?
c. Recent cases:
i. Habeas Corpus Act of 1867 allows federal courts to hear detainment challenges in
addition to the state courts
1. Presidential action denying prisoners the right to file writs lands in zone 3
Executive Power to Detain
Citizen
Hamdi v. Rumsfeld (2004) – Detain without charges/judicial
Enemy
review? Qualified: Yes: to detain, but only for duration of
Combatants conflict (Zone 1 under AUMF Joint Resolution); No: to deny
judicial review—citizen must be given meaningful
opportunity to contest the factual basis for the detention
before a neutral decision-maker (instead of Jackson
framework the court looked to a combination of statutory
habeas and procedural due process).
Alien
Rasul v. Bush (2004)– No, cannot deny day in Court under
Enemy
Federal Habeas Corpus Act (note: this was the statute, not the
Combatants constitutional provision) to anyone within territorial
jurisdiction and Guantanamo is within territorial jurisdiction.
(Zone 3 although the Court did not invoke this framework).
Boumediene v. Bush (2008) – (After Congress passed Military
Commissions Act which said Geneva Convention did not
apply and that MCA explicitly overruled UCMJ. Also said
only D.C. Circuit had appellate review. Therefore, habeas
corpus didn’t apply) – Detain with limited judicial review?
No: It was in Zone 1, but not consistent with Constitutional
habeas corpus. The MCA procedures were not an adequate
substitute for habeas corpus because MCA did not allow
certain evidence that “combatants” should be allowed to have.
Also, Congress had not acted to suspend habeas in accordance
with the Suspension Clause (which probably wouldn’t apply
in this case).
Executive Power to try by
military comm’ns
Hamdan v. Rumsfeld
(2006) Try by military
commission under
executive rules? No,
because the way they
were to be conducted
went against the
procedures in the Uniform
Code of Military Justice
and the Geneva
Convention (Zone 3)
E. Executive Privileges and Immunities
a. President has absolute immunity to civil suits with money damages for anything done while
president
i. No immunity for acts that allegedly occurred prior to taking office (Clinton v. Jones)
ii. No immunity to unofficial conduct
b. President has qualified immunity from investigation when this might release sensitive national
security information
i. Executive privilege protects president papers/conversations but must yield to
overriding need for information (US v. Nixon)
ii. Absent this, president must yield to the criminal investigatory process
c. Impeachment Process
i. President does NOT have immunity to this
IV. Federalism
Types of Preemption Per McDonald Email:
1. Express preemption where, in the pertinent federal statute, Congress addresses the continuing viability of
state/local regulation in the covered area of regulation
2. Implied preemption where Congress was silent on preemption in the pertinent federal law, but a court may
still find preemption on one of the following theories:
A. Implied field preemption--Congress indicated an intent to be the exclusive regulator of a subject
B. Implied conflict preemption--2 types as follows:
i. Frustration of purpose preemption--a state/local law impairs the fulfillment of the
purpose of the pertinent federal law
ii. Physical impossibility preemption--one cannot physically comply with the pertinent
federal law and challenged state/local law at the same time
A. Preemption
a. Federal Preemption
i. Article 6, Supremacy Clause – constitution as the supreme law of the land and any
conflict between federal and state law the federal law trumps
b. Express Preemption
i. Congress actually addressed the issue and says federal law preempts state law
ii. Federal statute expressly states the law then state laws are preempted
1. Congress authority to act, federal law supreme
c. Implied Preemption
i. Field preemption – Congress says it exclusively regulates a certain field and even if
federal and state laws are consistent state laws are preempted
1. If federal law and state law mutually exclusive then the state law is preempted
2. Where Congress has regulated a field pervasively that it left no room for states to
supplement, OR
3. Federal interest is so dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject
ii. Conflict preemption – if traditionally federal government and the states have regulated a
subject matter side by side, the only way to strike down a state regulation would be via
conflict preemption
1. Physical impossibility – physically impossible to comply both federal and
state/local law at the same time then the state law is invalid
2. Frustration of purpose – if state law isn’t in direct conflict with federal law but
indirectly frustrates the purpose of the federal law the state law is preempted
iii. Bruesewitz v. Wyeth LLC
iv. Arizona et al v. US
B. Federal Limits on State Power
a. Dormant Commerce Clause – a state or local law is unconstitutional if it places an undue
burden on interstate commerce
i. Focus is on the state and local actor
ii. Analysis:
1. Is the state or local law protectionist against out of state commerce in nature either
blatantly (on its face) or non-blatantly (purpose or effect)?
a. If yes, it’s per se invalid and can only be valid if it passes the strict
scrutiny/ Pike Balancing test
i. Blatantly (facially discriminatory) – claims that state or local
laws affecting interstate commerce are invalid because they
conflict with a federal regulation of that commerce and are
preempted by virtue of the supremacy clause
1. Oregon Waste Systems Inc. v. Dept of Environmental Qual
of State of Oregon
2. Maine v. Taylor
ii. Facially Neutral but discriminatory in purpose/effect:
1. Gives in-state competitors an advantage in the market, has
an extraterritorial effect (controls prices outside the state
too), and it taxes a transaction or incident more heavily
when it crosses state lines
iii. Facially neutral and no discriminatory purpose/effect:
1. Pike
2. American Trucking Assn. Inc v. Michigan Public Services
Comm’n
b. When does discriminatory effect become so severe that it becomes a strict
scrutiny test?
i. When an assumed evenhanded regulation imposes a substantially
greater burden on out of state competitors then it does in state ones
so that those in state are given an advantage in the marketplace
ii. Where Congress has indicated that states have a role in regulating
a certain area even if it hasn’t expressly sanctioned the regulations
being challenged (that may point to non-protectionist)
iii. If economic favoritism is being claimed as to products or services
that are different in meaningful respects (most likely nonprotectionist)
2. If not, use the Pike balancing test
a. Where the statute regulates even handedly to effectuate a legit local public
interest and its effect on interstate commerce is only incidental it will be
upheld unless the burden imposed on such commerce is clearly excessive
in relation to the putative local benefit
i. Balancing local interest the state is trying to promote with the
burden it places on interstate commerce
ii. Factors:
1. No substantial evidence of a burden on ISC (effects are
only incidental)
2. How important or unimportant the local interest seems to
be (effectuates a legitimate local public interest)
3. Regulations that appear to create substantial waste or
inefficiency in the marketplace
a. Burden on ISC is not clearly excessive in relation to
the alleged local benefits
b. Can the local interest be promoted with a lesser
burden?
iii. Exceptions
1. Traditional Government Function – laws that favor the government but treat in
state and out of state commerce the same in areas of traditional government
function
a. Exception to facially discriminatory
b. The effect of this is that it falls in category of Pike balancing test
c. Ex: garbage collection and issuing bonds both work under this exception
i. But, favoring a private company to dispose of all nonhazardous
ways as a means of financing the building of a local transfer station
was not permissible
2. Congressional Authorization – congress authorizes a state or local regulation that
would otherwise violate the court’s dormant commerce clause analysis
3. Market participation – if state or local government is participating as a buyer or
seller in a market, acting in a proprietary capacity rather then regulator, then it has
the right to choose partners it does business with even if it results in preferential
treatment
a. Only applies to the same market that the government is participating in
b. South Central Timber Development Inc v. Wunnicke
c. Must be a clear expression by Congress to authorize the state regulation
that is being recognized
d. Ex: Reeves Inc v. Stake – state owned cement plant that restricted sale to
state residents, was a market participant
iv. Tax Regulations
1. Tax with both interstate and intrastate components or is just revenue raising use
the complete auto test to determine the constitutionality of a tax under the
Commerce Clause
a. Tax is applied to an activity with a substantial nexus with the taxing state
b. Fairly apportioned
i. The state only taxes the activity or transaction if it happens within
the state
ii. The state may not tax more than its fair share of the income of
taxpayer
c. Does not discriminate against interstate commerce (i.e. must be nonprotectionist, can’t treat in and out of state taxpayers differently)
d. Fairly related to the services provided by the state
2. *If only intrastate component or is regulatory/discriminatory in purpose/effect
then use regular dormant commerce clause analysis
v. Dormant Foreign commerce clause – same analysis as DCC
vi. Indian dormant commerce clause – not used modernly
P&I
- Applies to fundamental rights only, does not
extend to all commercial activity
- Applies only to discriminatory laws
- Only protects individual citizens (not
corporations)
- No congressional authorization exception
(congress cannot waive the states P&I
requirement)
- No market participation exception
DCC
- Applies to all commercial activity
- Applies to both discriminatory (strict
scrutiny) and non-discriminatory laws (pike
balancing test)
- Protects individual citizens and corporations
- Congressional authorization doctrine
(congress may authorize state practices which
would otherwise be impermissible under the
DCC e.g., protectionist)
- Market participation exception
b. Article IV Privileges and Immunities Clause
i. Section 2, clause 1 citizens of each state entitled to all P/I of citizens of several states
1. Anti-discrimination provision
ii. Exercise of rights guaranteed by the constitution
iii. Corporations and resident aliens enjoy no protection under the P/I clause
iv. P/I is a rights provision that Congress can’t waive (vs. congress can waive DCC)
v. P/I clause does not extend to all commercial activity but only to the exercise of
fundamental rights
vi. Market participation exception from DCC does not apply to P/I
vii. Two step P/I analysis to determine if a law violates the P/I clause
1. Does the discrimination/law fall within one of the P/I of the Art 4 clause?
a. Has to be a fundamental right to promote interstate harmony
i. Important economic activities
ii. Ability to exercise constitutional rights
2. Means-End Inquiry based on intermediate scrutiny
a. Means – close relation, i.e. a substantial relation between discrimination
and ends sought
b. Ends – substantial end/purpose state is seeking to enforce
3. United Building and Construction Trades Council v. Mayor and Council of
Camden
4. McBurney v. Young – Mcdonald says to add “does the challenged law
purposefully abridge the claimed right or signficantly burden it?
Ok, here's recap of how State P&I (protections and immunities) Clause protection differs from DCC
protection:
P&I is narrower in the following ways:
1. It only applies to discrimination re important economic activities like being able to get a job or
conduct a business (make a living), whereas DCC theoretically applies to any economic
discrimination
2. It only applies to citizens, whereas DCC also covers corporations and resident aliens
3. It utilizes intermediate scrutiny which is theoretically easier to justify discrimination under as
compared to the variety of strict scrutiny used under DCC analysis
P&I is broader in the following ways:
1. It covers more than just economic discrimination (e.g., discrimination as to the exercise of
important constitutional rights)
2. It lacks the DCC exemptions for discriminating (market participant and congressional
authorization)