Constitutional Law Long Outline
I.
INTRODUCTION ................................................................................................................................................... 3
A. HISTORICAL SETTING AND ORGANIZATION OF THE CONSTITUTION .................................. 4
II. JUDICIAL POWER ................................................................................................................................................ 5
A. JUDICIAL REVIEW AND JUDICIAL SUPREMACY ............................................................................... 5
Marbury v. Madison (Established Court’s authority for judicial review of federal
legislation and executive ends) ................................................................................................................... 6
Martin v. Hunter’s Lease (SC has constitutional authority to review constitutionality of
state court decisions: since federal law supreme: that means review question of federal
law. Also applies to state legislative and executive action; criminal and civil) ........................ 8
Cooper v. Aaaron (when SC interprets the constitution, that interpretation is supreme
law of the land and binding on everyone)............................................................................................ 10
B. Limits on Judicial Power: Political Questions ................................................................................. 11
Political Question: question one branch can decide without interference from judiciary
............................................................................................................................................................................... 11
Baker v. Carr (1 of 6 factors must be present for question to be non-justiciable political
one. Equal protection claims on state assembly apportionments are justiciable (1 person
1 vote), don’t violate any of factors) ....................................................................................................... 12
Powell v. McCormack (the textual commitment of house being judge of members doesn’t
preclude court from hearing issues about not seating congressmen, only means house
judges the three requirements of constitution, and cannot add more: (ceiling not a floor))
............................................................................................................................................................................... 12
Nixon v. United States (senate has sole power to try impeachments, the courts cannot
review impeachment proceedings) ........................................................................................................ 13
C. Limits on Judicial Power: Case or Controversy and Standing ................................................... 15
Muskrat v. United States (Court will not issue advisory opinions: need a case or
controversy) .................................................................................................................................................... 16
Allen v. Wright (to bring suit, P must have real and individualized injury (not as member
of class) that is traceable to the action challenged and can be redressed by the relief
sought: purely ideological Ps will not have standing) ..................................................................... 17
D. Congressional Control of Supreme Court Jurisdiction ................................................................ 19
Ex Parte McCardle (Congress may make exceptions and regulations regarding the SC’s
appellate jurisdiction. Does not say congress may strip federal courts in their entirety of
right to issue habeas corpus relief) ........................................................................................................ 19
III. FEDERALISM...................................................................................................................................................... 21
A. The Scope of Federal Power .................................................................................................................. 22
McCulloch v. Maryland Part I (Where the ends is legitimate and within the scope of the
Constitution, all the means are appropriate which are plainly adapted (rationally related)
to that end which are not expressly prohibited) ............................................................................... 23
McCulloch v. Maryland Part II (states cannot tax federal government) ................................... 25
United States v. Comstock (Congress doesn’t have to say what enumerated power an act
is necessary for, just some legitimate interest: rational basis review for laws) ................... 25
B. The Commerce Power: The Early Years ............................................................................................ 26
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Gibbons v. Ogden (ferry case: broad interpretation of commerce and the clause: can
regulate all commercial matters that affect more than one state, as long as regulation
does not violate constitution) ................................................................................................................... 26
Shreveport Rate Case (R.R. rates case: congress can regulate intrastate rates of common
carrier that have substantial effect on interstate commerce) (1914) ....................................... 27
United States v. E.C. Knight Co. (Sugar monopoly: commerce power does not include
power over everything that implicates interstate commerce (manufacture)) (1895) ...... 28
Carter v. Carter Coal Co. (coal worker hrs: commerce power does not include power to
regulate activity just because it effects commerce) (1936) .......................................................... 28
Champion v. Ames (lottery: congress can regulate the transportation of goods in
interstate commerce (lottery tickets)) (1903) ................................................................................... 28
Hammer v. Dagenhart (child labor: commerce power does not include regulation of
interstate goods that affect local activities (production)) (1918) (overturned by Darby)29
C. The Commerce Power: The Middle Years......................................................................................... 29
NLRB v. Jones & Laughlin Steel Corp. (steal unions: Substantial Effects Test: congress may
regulate local activity if that activity has a substantial effect on interstate commerce) .... 30
Commerce to police power: the ends are not important… ............................................................ 30
United States v. Darby (labor standards: overturning Hammer: effect on local activity
doesn’t matter) (commerce power extends to intrastate activities that substantially affect
interstate commerce) ................................................................................................................................... 30
Wickard v. Filburn (home wheat: if activity, in the aggregate, has substantial economic
affect on interstate commerce, then it’s under the commerce clause: no need for activity
to be commercial) .......................................................................................................................................... 31
Civil Rights application. 14th amendment only applied to fed, and states. ............................ 31
Heart of Atlanta Motel v. United States (discrimination affects interstate commerce, so
within commerce power) ........................................................................................................................... 31
Katzenbach v. McClung (BBQ case) ........................................................................................................ 32
D. The Commerce Power: Recent Cases ................................................................................................. 32
United States v. Lopez (guns free school act: Three categories of commerce power: 1.
Channels. 2. Instrumentalities. 3. Activities having substantial affect) (split category 3:
economic can be aggregated, non economic cannot) ...................................................................... 32
United States v. Morrison (violence against women: congress cannot regulate local noneconomic activity if causal chain to substantial effect on commerce is too attenuated.
Findings element gone: probably apply to criminal laws) ............................................................ 35
Gonzales v. Raich (weed growth case: congress can regulate intrastate production and
possession of economic activity that has a substantial impact on interstate commerce) 36
National Federation of Independent Business v. Sebelius I (ACA under commerce clause:
............................................................................................................................................................................... 37
Methods of Interpreting the Constitution ...........................Error! Bookmark not defined.
E. The Taxing and Spending Powers ....................................................................................................... 40
Child Labor Tax Case .................................................................................................................................... 40
Unites States v. Kahriger ..................................................................Error! Bookmark not defined.
National Federation of Independent Business v. Sebelius II ........................................................ 43
United States v. Butler.................................................................................................................................. 42
South Dakota v. Dole ..................................................................................................................................... 43
F. State Autonomy and Congressional Power to Regulate States................................................. 44
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National League of Cities v. Usery ........................................................................................................... 44
Garcia v. San Antonio Metropolitan Transit Authority ................................................................... 44
New York v. United States .......................................................................................................................... 44
Printz v. United States .................................................................................................................................. 44
G. Federal Limits on State Power .............................................................................................................. 44
U.S. Term Limits, Inc v. Thornton ............................................................................................................ 44
Silkwood v. Kerr McGee Corp. ................................................................................................................... 44
H. Federal Limits on State Power: The Dormant Commerce Clause ........................................... 44
Dean Milk Co. v. City of Madison, Wisc .................................................................................................. 44
City of Philadelphia v. New Jersey ........................................................................................................... 44
Camps Newfound/Owatonna, Inc. v. Town of Harrison ................................................................. 44
South Carolina State Highway Dept. v. Barnwell Bros. ................................................................... 44
Southern Pacific Co. v. State of Arizona ................................................................................................. 44
Kassel v. Consolidated Freightways Corp. of Delaware .................................................................. 44
South-Central Timber Development, Inc. v. Wunnicke ................................................................... 45
Prudential Ins. Co. v. Benjamin ................................................................................................................. 45
IV. SEPARATION OF POWERS............................................................................................................................ 45
A. Executive Power: Domestic Affairs ..................................................................................................... 45
Youngstown Sheet & Tube Co. v. Sawyer.............................................................................................. 45
Dames & Moore v. Regan ............................................................................................................................ 45
B. Executive Power: Foreign Affairs ........................................................................................................ 45
Dames & Moore v. Regan ............................................................................................................................ 45
C. Executive Power: The War on Terror ................................................................................................ 45
Hamdi v. Rumsfeld ........................................................................................................................................ 45
Humbdi v. (idk) ............................................................................................................................................... 45
D. Executive Privilege and Immunity ...................................................................................................... 45
United States v. Nixon .................................................................................................................................. 45
Nixon v. Fitzgerald ......................................................................................................................................... 46
Clinton v. Jones................................................................................................................................................ 46
E. Congressional Control: The Legislative Process ............................................................................ 46
Whitman v. American Trucking Associations ..................................................................................... 46
Immigration and Naturalization Service v. Chadha .......................................................................... 46
Clinton v. New York....................................................................................................................................... 46
F. Congressional Control: Executive Officers ....................................................................................... 46
Myers v. United States .................................................................................................................................. 46
Humphrey’s Executor v. United States .................................................................................................. 46
Bowsher v. Synar ........................................................................................................................................... 46
Marrison v. Olson ........................................................................................................................................... 46
Free Enterprise Fund v. Public Company Accounting Oversight Board ................................... 46
I.
INTRODUCTION
Roadmap of Powers
 Federalism: the federal and state governments co-exist
o Limited, Enumerated Powers: powers of federal government are limited to those
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enumerated in the constitution
 States have police power
o Separation of powers: each branch has own enumerated powers
 One branch may not take action reserved b the constitution to one of the
other branches
o Congress Commerce Power: congress has power to regulate commerce
 Dormant Commerce Clause: federal commerce power restricts the states from
discriminating against, or unduly burdening, interstate commerce
Standards of Review
 1. Mere Rationalist Standard (easiest connection to satisfy)
o Court holds up governmental action so long as 2 requirements are met:
 1. Government must be pursuing a “legitimate” state objective
 2. There has to be a “minimally reational relation” between the means chosen
by the government and the state objective
 if government not perusing a legitimate state end and rational relation
between the means chosen and the objective: then court will strike down state
action: almost always uphold action under this test
 main problem arise: when a state is violating dormant commerce clause
 2. Strict Scrutiny Standard (hardest to satisfy)
o must meet two requirements
 1. The objective being pursued by the government must be “compelling”
 2. The means chosen by the government must be “necessary” to achieve that
compelling end
 tight fit between means and ends
 necessary: there must not be any less restrictive means that would
accomplish the government’s objective just as well
o government action will almost always be struck down
 3. Middle-Level Standard (exactly what it sounds like): both requirements between above
two)
o 1. The governmental objective has to be “important”
o 2. The means chosen by the government must be “substantially related”
A.
HISTORICAL SETTING AND ORGANIZATION OF THE CONSTITUTION
History
 America Before the Constitution (Articles of Confederation)
o No Federal Executive or central government
o Congress was powerless
o States fought, minted own currencies, negotiated trade agreements with foreign
nations, taxed products from other states
o Economy was poor/colonies in debt
 Philadelphia Convention
o Small states feared loss of influence/would be outvoted
o States worried that constitution would make the centralized government too
powerful
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o So enumerated powers: too prevent trampling on rights (plus bill of rights)
Structure
 Article I: defines power of congress
 Article II: defines power of President/Executive Branch
 Article III: defines the power of Federal Courts
Why not Amend Constitution?
 Retain clean broad principles
 Politically difficult
 Some parts not amendable
 But dead hand problem: bound by old values: undemocratic
 So keep constitution: for principles to stand on, nationalism, self imposed paternalism (don’t
want to be reactionary)
o Binding: bc it was parties of a contract: we’re the parties
o But some old principles: we don’t like: kind of just ignore them (segregation,
flogging, etc)
o So we interpret constitution to reflect our current vales:
o More the values differ: the less respect we give it: interest in being bound
II.
JUDICIAL POWER
A.
JUDICIAL REVIEW AND JUDICIAL SUPREMACY
Overview of Supreme Court’s Authority
 Supreme Court Review
o Supreme court: and not Congress, which has the authority and duty to review the
constitutionalist of statutes passed by Congress, and to invalidate the statute if it
violates the constitution
 Review of State Court Decisions
o Supreme court may only review state court decisions to the extent that the decisions
was based on federal law
 Federal Judicial Power
o The federal judicial power is set forth in Article III, Section 2 of the constitution
 Includes: (1): cases arising under the constitution or federal statutes (2) cases
of admiralty (3) cases between two or more states (4) cases between citizens
of different states (5) cases between a state or its citizens and a foreign
country or foreign citizens
 Congressional Control of Federal Judicial Power
o Control of Supreme Court Docket
 Congress has the general power to decide what types of cases the Supreme
Court may hear, so long as it doesn’t expand the Court’s jurisdiction beyond
the federal judicial power
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o Lower Courts
 Congress may also decide what lower federal courts there should be, and
what cases they may here
Marbury v. Madison (Established Court’s authority for judicial review of federal legislation and
executive ends)
 Facts: Adams was president, appointed Marbury (P) justice of the peace, incoming
prez, Jefferson, chose to ignore them by instructing Madison (secretary of state) (D),
not to deliver charters. P sought writ of mandamus in Supreme Court: to order D to
deliver commission.
o Three questions here
 1. Does Marbury have legal right to job? Yes: signed and sealed, just not
delivered, still had job
 2. If so, does law afford a remedy? Yes: civil liberty gives protection of
legal rights, so has remedy. Law would be meaningless without remedy
 3. If so, is the court authorized to grant that? No (some questions are left
to congress/prez: political questions): basically comes down to: is there
executive discretion? NO… but
 In answer: SC just didn’t have jurisdiction (could only order writs
when acting as appellate court according to judiciary act: but SC
didn’t read it this way, read to give them original Jurisdiction
beyond that of constitution)
o Current idea on this: if one reading is unconstitutional and
the other reading is not, then read it as constitutional
 Issue: P had legal right to commission, but Judiciary Act of 1789 and the constitution
conflicted as to whether the Supreme Court had original jurisdiction to issue of writs of
mandamus.
o Judiciary Act: authorized S.C. to issue writs of mandamus in cases warranted
by the principles and usages of law, to any courts appointed, or person holding
office, under the authority of the US. (gave original jurisdiction for this in courts
reading)
o Article III of Constitution: “in all cases affecting Ambassadors, other public
Ministers and consuls, and those in which a State shall be party, the SC shall
have original jurisdiction (nothing about writs of mandamus): in all other cases
before mentioned, the SC shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations as Congress shall make.
 Basically turns on what shall means. Here: court says shall means may
only. (if shall meant at least: then congress could’ve given orig. jur.)
 Another Marshell Opinion: reversed this. No longer mutually
exclusive list of original and appellate jurisdictions, bc allowed
state as party to be in appellate jurisdiction (in list of original) too
when it was a federal law (appellate jurisdiction)
 Holding: C.J. Marshall: IF THE SC IDENTIFIES A CONFLICT BETWEEN A
CONSTITUTIONAL PROVISION AND A CONGRESSIONAL STATUTE, THE COURT HAS
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THE AUTHORITY (AND THE DUTY) TO DECLARE THE STATUTE UNCONSTITUTIONAL
AND REFUSE TO ENFORCE IT
o Application here: treating article III as mutually exclusive (can’t be both),
therefore the Judiciary Act is giving SC MORE power than the Constitution says
it should have (constitution doesn’t say SC has authority of writs of mandamus
within court’s original jurisdiction)
o Reasoning: implicit in the constitution
o 2 questions:
o 1. if statute is against constitution: then must it yield:
 YES: easy question: that’s the whole reason for having a constitution (see
nature of written Constitution)
o 2. Who gets to decide if statute is unconstitutional?
 1. Structure: implicit in the structure of the constitutional that Congress
cannot pass a law that exceeds the powers that congress actually has
 constitution limits powers of federal government (these to first
question)
 2. Institutional logic: does not make sense for a branch to check power
of itself
 even if congress acting in good faith to stay constitutional: will
read it broadly to give self more power
o but: still have bicameral system, veto, and vote
 3. Nature of written constitution: inherent nature of a written
constitution that the limits of constitution trumps all other laws
 if congress could supersede constitution, no point in having it (to
first question): congress would expand it’s power if could
 4. Judicial function: inherent in judicial function to decide what laws
govern a conflict:
 judges under oath to follow constitution
 and federal question jurisdiction: must interpret constitution to
see what arises under federal law
 5. Textual: commitments in the constitution suggest that courts must
have the power to invalidate a statute. Constitution trumps other laws
by article VI: supremecy clause
 from the supremacy clause and jurisdiction over “all cases arising
under the constitution”
 6. Judicial Expertise: it’s courts job to know and interpret law, therefore
best at determining constitutionality.
 7. Democratic Theory: court is enforcing the will of the people through
the constitution
 people voted to adopt constitution: promoting that opinion by
protecting it
 8. Anti-Democratic theory: constitution protects the minority from
tyranny of the majority, by stating things populous can’t do even if it
wants to
o Counterarguments
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1. Judiciary Act: was passed by members of congress who drafted the
constitution: they didn’t think it was unconstitutional, they made
constitution
 2. Wrong Question: answered the easy question: if statute must yield,
but doesn’t really answer who gets to decide if statute is inconsistent.
 Could also be the president and congress doing together: they
also have vote
 3. Against Text: nothing in constitution that power of judicial review in
courts. There could be plenty of constitutional questions in courts
without judicial review power
 constitution didn’t say judicial review: so why do they get it?
 4. Anti-Democratic: having unelected court make these decisions, don’t
represent will of people, hard to get rid of them, striking down majority
wants
 5. Supreme court is controlling it’s own power here (in judicial act): so
why can’t congress
2 interlocking arguments
o 1. “it is emphatically the province and duty of the judicial department to say
what the law is”
 those who apply the rule to particular cases must by necessity expound
and interpret that rule. If two laws conflict, courts must decide operation
of each: that’s they’re job: legal rather than political judgment
 so supreme court may review the constitutionality of acts of congress
and of president: despite no express constitutional authority to do so
o 2. Constitution is Paramount: very purpose of a written constitution is to
establish a fundamental and paramount law, it follows that any act of the
legislature that is repugnant to the constitution must be void
court essentially waited to do jurisdictional question until the end to give itself power
of review. Also could have interpreted judiciary act narrower: (giving appellate review
of writs, allowed by constitution: and wouldn’t be problematic)



Martin v. Hunter’s Lease (SC has constitutional authority to review constitutionality of state court
decisions: since federal law supreme: that means review question of federal law. Also applies to
state legislative and executive action; criminal and civil)
 facts: Land owned by Lord Fairfax (a loyalist) was seized by Virginia and given to
Hunter. But in Treaty ending revolutionary war, states precluded from seizing land
from Loyalists. Martin, claims got land from Fairfax, so should have land now. Virginia
seizure was invalid bc against federal law. (Supremacy clause: validly enacted treaties
and laws made in furtherance of constitution are supreme law)
o Virginia SC: decided for Hunter: saying seizure was valid. SC found for Martin,
bc treaty supremacy over Virginia law on seizure. Remanded. Vir. SC refused to
obey SC mandate.
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Rationale: if litigation commenced in state court, then up to state court to
say if action violated federal law. Vir. SC had different interpretation of
the treaty.
 Logic (prez can’t veto governor, congress can’t veto state leg.,
same here)
Holding: J., Story: THE SC HAS AUTHORITY TO REVIEW STATE COURT JUDGMENTS
RESTING ON ISSUES OF FEDERAL LAW
o Rationale: Textual Argument
 1. Federal courts must have either original or appellate jurisdiction over
federal laws: Art II sec. 2 “Judicial power shall extend to all cases under
federal law”
 shall=must: or must at least have jurisdiction over all cases under
federal law
 2. issues of federal law arise in state court (didn’t have lower federal
courts prior to judiciary act, so state courts have to be able to have the
original jurisdiction or else nobody would when SC doesn’t, plus
interrelated claims still happen today)
o and bc of supremacy clause, state law and federal law
might clash, gotta see if fed. Law supersedes state one
 so federal issues in state court
 3. So federal court must have appellate power: or else won’t have
jurisdiction over federal law. That’s against constitution.
 Therefore: must be able to appeal to SC
 VA counter
 Just create lower federal courts with easy removal. But if wont
listen to federal judges then won’t listen to removal
o Uniformity argument: if Supreme court can’t review, going to have varying
interpretations of federal law
 If follow VA argument: then federal law (including constitution) could
mean different things in VA and MA: which brings back to articles of
confederation
 APPLIES TO TREATIES, FEDERAL STATUTES, AND ANY STATE ACTION
(LEGISLATIVE, EXECUTIVE AND JUDICIAL)): POWER OF JUDICIAL
REVIEW OVER STATE ACTION: TO SEE IF STATE ACTION AGAINST
CONSTITUTION (AND THUS FEDERAL LAW)
 Also applies to criminal cases: Cohen v. Virginia
o Institutional Rational: constitution is premised that states/judges may be bias
for local interests (whole reason for diversity jurisdiction). Also, federal judges
are experts on federal law
 Example: process of federal judge appointment v. state judge elected
 Might cloud decisions for local interests (subject to majoritarian
pressures.


Presidential/Congressional Opposition to the court
 President/Congress: can’t directly defy an order of the court, but can respond in other ways to
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check courts power
o At same time: ensure that the court can protect the minority by issuing binding
decisions
 President
o 1. President could voice opposition
o 2. Can exercise prospect of appointment to voice opinion against the court’s ruling
o 3. Take Broad view of Holdings: Prez has to follow courts interpretation of
constitution as binding on everyone
 Justification:
 if narrow view: too many things litigated, SC already answered
(efficient)
 one actor binds everyone, lets ppl know where rule stands
 stops similar unconstitutional action
o justificaitons for Marburry support that: invest power in ct on
these quesitons
o 4. Take Narrow view of holdings: suit is only about the parties, that’s all it binds
 ex: case that says gov must pay for abortions
 narrow view: all gov has to do it pay for the parties
 broad view: gov must pay for all
 congress passes statute: don’t have to pay: broad view:
unconstitutional, narrow view: find, suit just about parties
 justifications
 broad view undemecoratinc
 Dread Scott: took so long to overturn (if bad decision, fucked)
o 5. Presidential non-acquiescence: just don’t listen (never done but close)
 Hard to enforce against prez. Congress has more impact, and also politically
dangerous for prez to ignore court
 Congress
o 6. Enact statute against the SC holding
 under broad view: couldn’t do: bc SC saying it’s unconstitutional
 under narrow view: could do: bc congress not a party
Cooper v. Aaaron (when SC interprets the constitution, that interpretation is supreme law of the
land and binding on everyone)
 Facts: Governor of Arkansas: saying not bound by Brown v. Board of Education (and
Brown II). School board saying chaos/dangerous: must delay. Desegregation blocked
by governor
 Issue: was governor of Arkansas bound by Brown v. Board even though not a party?
 Holding: WHEN SUPREME COURT ISSUES A DECISION INTERPRETING THE
CONSTITUTION, THAT INTERPRETATION IS SUPREME LAW OF THE LAND AND
BINDING ON EVERYONE
o Rationale: because constitution is binding on everyone, when court interprets
it, just making clear what constitution is saying, so binding in same way clear
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language of constitution is. Court ruling is the supreme law of the land, on all
people and all branches of government
 Dickerson v. US: congress can’t pass bill previously declared
unconstitutional
o So broad reading of Marbury is correct: (so as applied to above: can’t do #6, #5
(obviously), or #4)
o but practically: prez gets around by creativity: not subject to same
constitutional rule. But his oath: protects constitution and court’s interpretation
of it now. This is now understanding of courts role: says what constitution says
 when prez/congress fight court: do it in court: overrule case or amend
constitution are only options
B.
Limits on Judicial Power: Political Questions
 is court correct branch to decide the question?
Overview of Justiciability (partly combines next two sections)
 for case to be heard: must be justiciable: series of procedural obstacles
 1. Advisory Opinions: court may not issue opinions based on abstract or hypothetical
questions
o reasoning: constitution limits federal court jurisdiction to cases or controversies
 2. Standing: can hear a case only when P has standing: the P must have significant stake in
the controversy
o requires: “injury in fact”: P must show that he himself has been injured in some way
by conduct he’s complaining of
 1. P must show he suffered, or likely to suffer, an “injury in fact”
 2. The injury suffered must be concrete and “individuated”
 3. The action being challenged must be the “cause in fact” of the injury
o prevents litigant from asserting constitutional rights of third persons not before the
court
 3. Mootness: (can’t be heard if moot): a case is moot if events occurring after the filing have
deprived the litigant of an ongoing stake in the controversy
 4. Ripeness: case must be ripe: case is not ripe if it has not yet become sufficiently concrete
to be easily adjudicated
 5. Political Questions: case is for another branch to decide: case is non-justiciable political
question if it raises an issue whose determination is clearly committed by the constitution to
another branch of the federal government rather than to the judiciary
o like impeachment
o Lack of Manageable Standards: case may be non-justiciable political one if there
is no manageable standards to guide the judiciary in deciding that issue
Political Question: question one branch can decide without interference from judiciary
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Baker v. Carr (1 of 6 factors must be present for question to be non-justiciable political one. Equal
protection claims on state assembly apportionments are justiciable (1 person 1 vote), don’t violate
any of factors)
 Facts: TE voters said apportionment of Tennessee general assemble violated their equal
protection rights. Bc the lines were drawn 50 years earlier, no longer reflected populations
(some voters thus got more say in legislature than others). Legislature not fixing lines (bc no
incentive to do so), asked court to either direct elections at large or decree an appointment
according to most recent census
 Issue: is this a political question? (current precedent said it was)
 Brennan Holding: 6 factors to consider: each related to separation of powers: AT LEAST
ONE FACTOR MUST BE PRESENT IN ORDER TO MAKE AN ISSUE NONJUSTICIABLE POLITICAL QUESTION
o 1. Textual Commitment: constitutional commitment in text to a branch of
government (congress, legislature)
o 2. Lack of judicially manageable standards for resolving the question
o 3. Policy Determination: court cannot decide the issue without initial policy
determination of a kind clearly for non-judicial discretion
o 4. Avoid Disrespect: for the other branches of the government
o 5. Unquestioning Adherence need: there is a need to adhere to another branch of
government where political decision already made
o 6. Avoid embarrassment/One Voice of Government: the need for the government
to speak with one voice to avoid embarrassment from various pronouncements on a
single issue by different departments of government
 Frankfurter Dissent
o We have two problems
 (3): we first have to make a policy judgment: what does equal protection of
the law mean? 1 person 1 vote? Or just law applies to everyone? That’s a
requisite policy decision that must be made first. Should be left to elected
leaders
 (2): no standard in constitution what to do when voter’s power is diluted
 now we say 1 man 1 vote: but different before, no real standard: it’s
policy question
 Brennen Response: constitution says equal protection: means you get
an equal vote. All you need is calculator. So if constitution says this,
then not a political question: but does constitution really say this?
 this is just about the Guaranty Clause: (guaranteeing state republican form of
government): have held implicating this clasue is non-justiciable—
masquerading as 14th amendment claim
Powell v. McCormack (the textual commitment of house being judge of members doesn’t preclude
court from hearing issues about not seating congressmen, only means house judges the three
requirements of constitution, and cannot add more: (ceiling not a floor))
 facts: there was elected member of house, but house refused to seat him. Met qualifications in
constitution to be a congressman (age, location, citizenship).
 House claims: in constitution: “house shall be the judge of its members”: so can decide,
makes it non-justiciable through textual commitment
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o court response: that just means house judges age, location, citizenship
o court can still review other reasons for house refusing to seat him.
 Like ethical conduct
 This might be embarrassment to house: but sometimes will be required if
court will protect the constituton
 Holding: CONGRESS’S TEXTUAL COMMITMENT TO BE JUDGES OF ITS MEMBERS
LIMITS HOUSE POWER TO JUDGE THOSE QUALIFICATIONS, NOT OTHER ONES,
AND CANNOT ADD OTHER ONES
o Rational: the constitution lays out specific requirements, didn’t want any more of
them in there. Would frustrate the impeachment clause if they could just get around
it’s requirments by refusing to seet
 The court holds the final constitutional interpretation: interpret it as just
saying these are the only requirements house can judge
 Furthermore: if house refused to seat by saying 28 year old is really 19, then
court might still override them
o But if this is not textual commitment: what could be?
Nixon v. United States (senate has sole power to try impeachments, the courts cannot review
impeachment proceedings)
 Facts: Judge Nixon took bribes and put in jail, but kept collecting salary, must be impeached
from office. Must be impeached by House and convicted by senate to be removed from
office. Senate invoked a rule to: to appoint committee to try judges. They wrote a report,
then all heard testimony from prosecutors and defendants
 Issue: was the senate rule constitutional? bc “senate ‘shall try’” cases, arguing the rule
didn’t let senate try.
 Holding: THIS WAS A POLITICAL QUESTION. COURT CAN’T REVIEW SENATE
IMPEACHMENT PROCEEDINGS. What does court rely on?
o 1. Textual commitment
 senate has the soul power to try cases. Senate decides on plain terms
 BUT: Powell just held opposite for house
 And maybe “sole” just means it’s gotta be in the building
o 2. Lack of judicially manageable standards: what does try mean? “tried” doesn’t give
court standard to determine what a senate trial means.
 BUT: judges whole job to “try” things, how much clearer do you need?
 Also, most of what we prize in constitution isn’t clear standard
o Together: these show it’s not clear what “trial” means: so should be left to senate.
Plus, this is only way to get judges out of office, judicial shouldn’t be involved
 White and Blackmun’s Concurrence: should have judicial review to assure senate adheres to
minimal set of procedural standards in impeachment
 Souter Concurrance: if senate were to act in manner seriously threatening to the integrity of
decision (just flip a coin): then judicial interference would be appropriate
Where are we left with political Question Doctrine?
 Constitution seems to never give one branch power exlusive power
13
o Example: judicial review: goes against political question doctrine
 1. Text: Not in the text: but it’s not reviewed: so wtf
 Text doesn’t give real standing
 2. Lack of standard: nothing clear about judiciary power
 Prized provisions are most indeterminate
 Court doesn’t give up judgment: that’s what judicial review is
 1 person 1 vote after carr: much more clear, but not from text
 3. Policy determinations
 equal protection: 1 person 1 vote was policy, same with can’t
discriminate on sex, but can on age, etc
 making policy determinations on theory of constitution: still policy
 constitutional theory itself: seems to be political
 4. Avoid disrespect
 how can court ever strike something down without being disrespectful
 example: president going to war: without congress approval
o if say prez can’t do it: then disrespecting prez (and text as
commander in chief)
o if say prez can do it: then disrespecting congress declaration
of war (and text on war decloration) and standard of what war
is: iffy
 5/6 can help here: need unquestioning: for troop moral,
military credibility, etc
 virtue in flexibility
 5. Need for unquestioning adherence
 that’s just against marburry: which held constitution requires nonunquestioning adherence
 6. Avoid embarrassment/need for one voice in government
 again, against whole Marburry holding
 so factors are circular/manipulatiable: but remains the test
o political question doctrine: gives courts the power to punt
 courts attempt to remain a-political: and can say congress/prez must decide
 impossible on some constitutional questions
 court wants to avoid some questions: to retain public acceptance of court
spectrum of political question
 left: complete deference to congress/prez (veto power, pardons, senate impeachment it seems
Nixon v. United States)
 right: no deference (segregation laws by congress; equal protection it seems US term limtis)
 most questions: middle ground
o hypo: if senate flipped a coin on impeachment: seems court would interfere: J.
Suiter)
o wildcard way to punt/be flexible
Complete Deference
No Deference
14
Political Question (discretionary in exec/leg)
Indi Rights (segregation)
Most things
C.
Limits on Judicial Power: Case or Controversy and Standing
Justiciability Doctrine
 article 3 defines the federal judicial power using the words as “cases” and
“controversies
 this limits the court’s power to hear issue
Requirements to hear cases?
 1. No Advisory Opinions (must be a case or controversy) The court has long refused to
render advisory opinions
o Artiticle III: only extends to cases or controversies. With adverse parties
o Court will make better decisions when in the context of actual dispute, between
people with something at stake
o Muskrat v. United States
 2. Ripeness: court will not jere an injury under a statute that is not yet enacted b/c a
controversy has not yet happened: pendency of law that poses a threat to you is not
enough
o Usual way to challenge: violate the law, get prosecuted, then argue as a defense
that it was unconstitutional or otherwise invalid: No declaratory judgments
o Two criteria for otherwise
 1. The hardship the P will suffer with or without pre-enforcement review
 The greater the hardship P will suffer: the more likely federal
court will hear case
 2. The fitness of the issues and the record for judicial review
 Does the federal court have all it needs to decide the issue
 Even if you’re hurt by laws potential (like reduces your stock): can’t
bring suit
 3. Mootness: if injury to P ends after the case is filed, case shall be dismissed as moot
o Bc if central issue is already moot, parties don’t have a stake in the case and the
court will dismiss it
 4. Standing: (the who question) litigant must have significant stake in the controversy
to merit his being the one to litigate it
o Standing: the party asserting the claim must have significant stake in the suit
 This focuses on party, not what’s being litigated. Everything else focuses
on issue
 So question is: what kind of interest in outcome is enough?
 The general interest of a citizen in having his government behave
constitutionally is not sufficient stake to permit litigation
 So individual interest must be more direct and individualized than that
of citizen at large
15

o Another way (like political question) for court to get out of making a decision it
doesn’t want to resolve
o Requirements
 1. Injury: P must show that he has been or eminently will be personally
injured
 can’t come too far in the future or be too speculative
 a lot of ppl could qualify: litigant must allege the requisite
concrete and individualized harm
o membership in minority group won’t derive standing if
government conduct denigrates that minority group
 ex. abstract stigmatic injury generally caused by
racial discrimination
 2. Traceability: injustice must be fairly traceable to D’s unlawful
conduct
 court not interested in playing with percentages/speculating
 3. Redressability
 favorable court decision for P against D must redress the injury
 if ruling for P without this, then it’s an advisory opinion
 relief beign sought, if granted, has a reasonable likelihood of
redressing the injury
5. Not a political question: if one of six factors, can call it a political question
o 1. Textual Commitment: constitutional commitment in text to a branch of
government (congress, legislature)
o 2. Lack of judicially manageable standards for resolving the question
o 3. Policy Determination: court cannot decide the issue without initial policy
determination of a kind clearly for non-judicial discretion
o 4. Avoid Disrespect: for the other branches of the government
o 5. Unquestioning Adherence need: there is a need to adhere to another branch of
government where political decision already made
o 6. Avoid embarrassment/One Voice of Government: the need for the government
to speak with one voice to avoid embarrassment from various pronouncements on a
single issue by different departments of government
a.
Muskrat v. United States (Court will not issue advisory opinions: need a case or controversy)
 facts: congress thinking about legislation effecting indian lands. Looking for advice on
constitutionality
 requires parties with meaningful stake in the lawsuit
o congress can’t just ask court to resolve legal question, congress can’t authorize court
to do so
 judicial power: IS TO DECIDE CASE BETWEEN PARTIES: LIMITED TO CASES OR
CONTROVERSIES
o congress can’t authorize more: reviewing statute: not a case or controversy
16

o case: suit institutited in accordance to regular course of judicial proceeding
(adversarial parties)
o controversy: if less: then just a little less comprehensive than case
court could decide: when Individuals bring suit about the issue
Allen v. Wright (to bring suit, P must have real and individualized injury (not as member of class)
that is traceable to the action challenged and can be redressed by the relief sought: purely
ideological Ps will not have standing)
 facts: parents of black children undergoing desegregation sue IRS for continuing tax
exemptions to private schools that discriminate. Want to order a list of non-tax exempt
schools then new policy. Not saying they were trying to go to those schools, or being
discriminated against themselves: just that IRS breached duty to deny tax exemptions to
racially discriminatory schools
o harms asserted: (1) suffering lack of attending desegregated schools (2) harmed by
fact that IRS not executing laws: harmed in that it hurts (1)
 Issue: do they have standing?
 Court: failed standing under article III for 4 reasons
o 1. Docket: if could bring suit for stigmatic injury, too many individuals would have
standing
 anyone that felt racially stigmatized by some government action
o 2. Seperation of Powers
 executive branch: takes care that the law is executed. That’s what P’s are
asking for, not the courts role
o 3. General Grievance: political process is to resolve general grievances, not
individual court proceedings.
 P can’t sue solely as a citizen interested in making the government follow the
law
 But: political process ran: P not part of majority, didn’t work,
o IRS not doing it’s job even though politically told to
 If the P’s had been denied admission to private schools, they would
have had a cognizable injury. Same question against IRS, but then
could be seen in courts (but then maybe traceability question)
o 4. Stake in the outcome: having a real stake in the outcome makes sure that best
arguments will be presented to the court
 undermines the case/controversy question: they’re outraged but not tangiable
grievence
 BUT: clearly had stake if took all the way to the supreme court.
 Starts with presumption that ideologically driven Ps wont be as
zealous
 Requriements for standing
o 1. Injury
17

1. their kids are suffering from inability to attend desegregated
schools (bc tax breaks incentivices white parents to send their kids to
white private schools)
o cognizable injury: but then go to traceability problem
 2. harmed by mere fact that government is aiding discriminatory
schools (by IRS not doing duty to deny non-profit status)
o not a cognizable injury: just part of general clause: not denied
entry to schools, just part of class
o 2. Traceability (cause in fact problem)
 since Brown v. Board: seems inability to attend desegregated schools is real
injury
 but: that problem is not traceable to IRS granting tax exemptions: Causation
question
 denying tax exemptions, means less donations, means higher tuition,
means more parents choose public schools instead of moving or still
going to private school
 not traceable: purely a speculative connection between maintaining
tax exemptions and desegregation of schools
 and even if logic holds: would cause judicial branch to interfere with
executive execution in everything
 dissent: line of logic is elementary economics. Denying traceability is
denying the government decision means anything
o 3. Redressibility
 linked to traceability: just speculative that changing IRS policy will redress
the injury, so injury is not redressable by the court
o what must the parents have shown?
 1. That there was enough racially discriminatory private schools receiving
tax exemptions in P’s area for withdrawal of those exemption to make
appreciable difference in the public school integration
 2. That schools would, if threatened with loss of tax exemption, change their
policies
 3. That parents in segregated schools would transfer children to public
schools if the exemption were withdrawn
problem with reasoning in Allen v. Wright: if schools denied status, would have standing
o 1. Injury: denied money
o 2. Traceable: direct
o 3. Redressability: just give them status
o so those regulated have standing, but beneficiaries of regulation do not have standing
 standing doctrine 1 way: can bring suit to stop imposing burdens, but can’t
bring suit to make others be regulated (can challenge over regulation, but not
under regulation)
 promotes court/gov’s roll as protector of liberties
 more likely to have suit for overregulating: so fashion rules to
underregulate
 but then IRS is more responsive to private schools than black families
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Court Standing Requirements: not so challenging
 injury: must be actual/concrete: not speculative or hypothetical. Must be imminent
o Bochey Case: White student not allowed into medical school
 Injury: wasn’t let in
 Treaceable: NO: bc other white kids would’ve gotten in before him had there
been no affirmative action
 But since then: affirmative action claims: lost opportunity to compete
for all the spots: allowed
 Redressibility: counts if can show you would get chance to compete for all
the spots
 In the Stevens Dissent: opportunity to have integrated schools: about percentages not
guarentees. Would increase chance of having integrated schools.
 This is another way for court to not see suits they might not want to hear
o But widened standards. Luhan Case: (Scalia) ppl living around powerplant suing bc
managers at plant not being trained well. Injury: more likely accident. Traceable:
(causation) very hard to say this increases likelihood. Redressable: same problem
 Also in that case: congress can’t authorize indis to bring suit if couldn’t
under Allen standard.
D.
Congressional Control of Supreme Court Jurisdiction
To what extent can congress curtail the jurisdiction of the SC, or of the Lower Federal Courts?
 Art. III sec. 2: in all cases not falling within the SC’s original jurisdiction, the SC shall have
appellate jurisdiction both as to law and fact with such exceptions, and under such
regulations as the congress shall make
 Art. III sec 1: federal judiciary power shall vest in the SC and in such inferior courts as the
congress may from time to time ordain and establish
o So lower courts don’t even exist until congress establishes
Ex Parte McCardle (Congress may make exceptions and regulations regarding the SC’s appellate
jurisdiction. Does not say congress may strip federal courts in their entirety of right to issue habeas
corpus relief)
 Facts: McCardle was imprisoned under military government imposed by congress as part of
post-civil war reconstruction, essentially without trial and for speach. McCardle brought
habeas proceeding under act of 1867, which gave SC appellate jurisdiction over these cases,
claiming reconstruction act under which he was imprisoned was unconstitutional. Denied by
lower court, appealed to SC. After granting cert and hearing argument, congress passed act
of 1868.
 Statute: stripped SC of appellate jurisdiction in certain habeas cases, repealing portion of act
of 1867 which allowed SC appeals of these (Congress really afraid SC would find
reconstruction act unconstitutional).
19

Holding: upheld statute: CONGRESS’ RESTRICTION OF SC APPELLATE
JURISDICTION UPHELD BECAUSE SC APPELLATE JURISDICTION IS
CONFERRED WITH SUCH EXCEPTIONS AND UNDER SUCH REGULATIONS AS
CONGRESS SHALL MAKE.
o Rationale: congress granted SC jurisdiction in 1867, did not make exception to the
constitutional grant of jurisdiction. Provision of grant can be expressly repealed. In
constitution pretty clearly.
o Application: without jurisdiction, the court could not proceed on McCardle’s appeal
 But: court could still hear habeas writs through court’s original jurisdiction to
hear habeaus corpus cases, just not appellate (Ex Parte Yeger)
 How to level with Marbury: don’t have appellete jurisdiction, but do have
original jurisdiction, so can still answer the question. Not confronted with
law that makes supreme court unable to hear federal cases, just not on appeal
 Begs question: can congress completely bar ability for SC to hear a type of
case? Never answered
 Art. III sec. 2: might be more about guaranty to jury in certain types
of cases, not about motive. Haven’t answered
Why would congress Strip Jurisdiction?
 CONS
o 1. De Facto Reversal of Supreme Court Precedent: without prospect of SC
review, state court judges can diverge from prior interpretation, not follow precedent
o 2. Essential Functions: congress could strip SC of its powers, then courts’ check on
congress’ actions under the constitution/protection of the minority from tyranny of
majority is eliminated
 BUT: voter check, president check
o 3. Uniformity / Rule of Law: the constitution would mean different things in
different places, seem need court of last resort for circuits too
o 4. Anti-Democratic Values: don’t want to leave congress as the sole responsibility
to protect the minority, because they represent the majority
 PROS
o 1. Check: power to strip jurisdiction is an important check on the court’s power
o 2. Democratic Values: since judicial review is undemocratic, we have to worry
about court’s exercise of power
Other methods of Stripping Court of Power: would it be necessary given below checks?
 1. Power of Appointment: president nominates justices
o but difficult to predict how judges will rule / judges take stare decisis and prior
precedent seriously / appointments are nor frequent
 2. The senate must Confirm appointments: senate can check who gets appointed
 3. The Impeachment Process: congress can impeach federal judges
o but it’s difficult (supermajority in senate to convict)
 4. Amendments to the Constitution: article V: can amend
o BUT: only four times it’s been amended (supermajority in congress and states)
 5. Congress can regulate the size of the court/set the time of their meetings: just have
them barely meet. Put a ton of justices in, or just a few
20
o but public will see as interference with independent judicial branch
 6. The Bully Pulpit: enough attacks on court decisions, can affect future decisions/reversals
 7. The threat of non-acquiescence:
o BUT: people respect court as supreme law, if political branch, public will view them
as lawless
 8. Budget Constraints: can’t diminish a justice’s salary, but can reduce budget of courts
Can Congress Strip the court of all jurisdiction, or not let them hear a type of case at all?
 Never answered
 Textual: “judicial power shall (must) be vested in one court, and lower federal courts as
congress shall grant, and additional power shall (must) extend to all cases arising under
constitution”
o Seems to imply at least SC exists, and must be able to hear cases arising under
constitution
o So seems congress couldn’t deprive all federal courts ability to hear a type of federal
issue
 Congress created lower courts: could destroy them, why not regulate them?
o Federal question jurisdiction: court “shall issue” on federal law
o And courts won political battle: people would dislike congress that stripped court of
power
 But this means court can’t answer too many political questions to maintain
public respect
 Congress has rarely limited SC appellate jurisdiction: but threats to have been effective
 If congress did deprive all federal courts to deprive litigant of right to hear case in any federal
court, that’s probably textually against constitution
o So congress probably can’t deprive federal court of at least some issues (Ex.
bankruptcy)
III.
FEDERALISM
Overview
 Federal system: US has federal system, in which national government and the government of
states co-exist
 Federal government has limited power: federal government is one of limited, enumerated
powers
o Three branches may only assert those powers specifically granted by the constitution
 “Necessary and Proper Clause”: congressional power to make laws that are “necessary and
proper” for carrying out its enumerated powers
o therefore: if congress seeking an objective that falls within the specifically
enumerated powers, congress may use any means that is rationally related to the
objective being sought, that is not specifically forbidden by constitution
(McCulluch?)
Federalism generally
 Federalism: comes from federation: league of states, decentralized power
21
o BUT: bc US federalists supported constitution, federalists actually wanted
centralized powers
o Federalism question: about the limits on state and federal gov: mostly about limits
on what federal government can do
 But constitution also supported decentralization: for three theories
o 1. Maximize total welfare by recognizing range of interests
 if national law 50/50 split, 50% of people frustrated
 but if state decides, each state will have majority (in state might be more like
80/20), plus can move states
 experimental laboratory of federalism: each state can have different
sollutions (bc local problems) but also to test
o 2. Promote democratic republicanism
 state/local government more responsive to needs: bc individual influence on
local electorate is stronger
o 3. Promote liberty
 absolute power corrupts absolutely
 can move to get more freedoms
 why centralize
o 1. National Values: don’t let states make decisions on national values (segregation)
o 2. Maximize welfare: uniform rules better for business (articles of confederation
problem)
 free rider problem: externalities (environment); race to bottom (child labor,
taxes)
o 3. Protect liberty: some rights should be all over, shouldn’t have to move to get the
right
 homogeneous units (states) more likely to oppress
 recent history: federal gov. and not states protectors of civil rights
Power Structure
 federal powers (enumerated)
 state powers (police power)
 concurrent powers
 individual rights: can’t be limite by anyone
A.
The Scope of Federal Power
Enumerated Powers
 Article 1, sec. 8: 18 clauses granting power to congress: including power to
o Lay and collect taxes
o Provide for the defense of the country
o Borrow money on the credit of the US
o Regulate commerce with foreign nations, and among the several states
o Regulate immigration and bankruptcy
o Establish post offices
o Control the issuance of patents and copyrights
o Declare war
o Pass all laws needed to govern the D.C. and federal military enclaves
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



o 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 US
Article I, sec 9: limits congressional power
Article II: power and duties of the president
Article III: confers the federal judicial power (and gives congress to control SC jurisdiction)
Amendment specifically give congress the power to enact supporting legislation (14
amendment)
McCulloch v. Maryland Part I (Where the ends is legitimate and within the scope of the
Constitution, all the means are appropriate which are plainly adapted (rationally related) to that end
which are not expressly prohibited)
 facts: United states banks, constitutionality in question, to regulate currency and solve
economic problems. Maryland enacted anti-bank act to tax banks not chartered by Maryland
(US bank). US bank cashier (McCulloch) refused to pay the tax. Action for statutory penalty
in Maryland state court, appeal for writ of error in SC.
 Issues: (1) could the US create the bank? (2) could Maryland tax the bank?
o Maryland: federal government has enumerated powers. Making a bank isn’t one of
them. 10th amendment: explicitly reserved rest of power to the states.
o C.J. Marshell: Says this is bull: SHOPLIFT
 Structure: look to the structure of the constitution:
 list of powers as basic authority: chartering banks not there
 but: article I sec. 9: limits congressional power: redundant if list is all
congress can do
 10th amendment: drops “expressly” so doesn’t reserve all powers to
states that constitution hasn’t “expressly” given to congress
 History: post ratification
 When constitution is ambiguous, look to history to see how it was
treated. Give some weight to historical consensus
 Original meaning/intent: dropped the word “expressly”
 In articles of confederation: “expressly” gave powers, constitution not
 Political Theory: route of declaration of independence
 Power lies with people: gave their power to federal gov
 Power comes directory form the people, not the states
 So states can’t exercise power over all people
o BUT: states just can’t exercise power over all ppl, doent mean
fed can do this
 Logic: think of constitutional government logic
 Must read it broadly: to achieve the ends it was created for
 If list is just a code, then congress can barely do anything
 Institutional role of constitution
 If couldn’t be interpreted, would never be embraced
 Broad details should be filled in or won’t make sense
 Functional argument: think of functional way of achieving enumerated
23
power
 “raise armies and navies” and “tax” so need bank to be able to collect
tax
 congress must have ability to choose means of achieving enumerated
powers
 to eny: denies congress of its reason for existing
 Text: we the people: people gave power to fed gov
 Dropped “expressly” from articles of confederation
 Intratextual argument: list of powers: why ID limit if these are
explicitly all they can do?
o Marshall Argument 2: “necessary and proper clause” confirms extended powers
 Maryland: might be useful to have banks, but not necessary for regulation of
commerce/taxing/etc
 Textual: necessary and proper is placed in art. I section 8: in list of powers
 Therefore it expands power rather than limiting it (Maryland
argument)
o If it limited powers: it would be in article I section 9.
 So must be enumerated powers imply others
 If necessary and proper only meant absolutely necessary: it would
limit powers already found.
 Intra-textual argument: article I sec. 10: compare the wording
 Sec. 10: what state’s can’t do: “absolutely necessary”
 So if founder meant absolutely necessary: they would have said so
 History: debates: anti-federalists really worried about this clause,
“sweeping”
 MArshell already said greater powers than enumerated (above
argument): doesn’t make sense to limit those be what’s necessary in
granting section
o This would undue the “express” problem in articles of
confederation
o Marshell conclusion: “we think the sound construction of the constitution must allow
to the national legislature that discretion, with respect to the means by which the
powers it confers are to be carried into execution, which will enable that body to
perform the high duties assigned to it, in the manner most beneficial to the people.
Let the end be legitimate, let it be within the scope of the constitution, and all means
which are appropriate, which are plainly adopted to that end, which are not
prohibited, but consist with the letter and spirit of the constitution, are
constitutional.”
 In other words: as long as the ends are in it’s powers, the means are
appropriate as long as they’re not prohibited.
 Not absolutely necessary: can’t require absolute necessity, bc if there are two
options for end, neither will be absolutely necessary
Other possibility of deference
 Marshell Test: as long as not explicitly prohibited, if ends are are in enumerated powers,
means are appropriate (almost complete deference
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 Middle ground: close relationship between means and ends (not too attenuated a connection)
o If less restrictive means: must do that
o Marshell Response: hampers ability for congress to respond to problem
 Splitting hairs
 Structural argument: determining best way to ends is legislative
determination
 If accept Maryland: calling on court to make policy arguments: political
question
Complete Deference: to legislature/Prez
Political
Question
N+P: almost complete
deference: (rationally
related) protecting
majority interest:
don’t need court
Strict Scrutiny
Free Speech
Restriction:
(goal: moral of
army): but
court would
look for less
restrictive
means. BC
protecting
minority
rights, role of
court
Internal tension being a limited list and a broad interpretation
 Example: post offices and post roads enumerated
 Seems obvious congress can higher postal workers
 Necessary and proper clause
McCulloch v. Maryland Part II (states cannot tax federal government)
 Issue II: can Maryland tax the instrument of the federal government?
 Holding: NO: taxing is a concurrent power: there is list of things state can’t tax, this not on it.
o Structural: in constitution, laws by federal government are supreme and cannot be
controlled by states: federal supremecy
 Power to tax is power to destroy: can tax it out of existence, goes against
supremacy clause
o Political Theory: a part cannot impose a tax on the whole: taxation without
representation
 Maryland legislature imposing tax that federal gov pays, all people pay,
taxpayers have no recourse against Maryland legislature.
o Therefore: STATE CANNOT TAX THE FEDERAL GOVERNMENT
United States v. Comstock (Congress doesn’t have to say what enumerated power an act is
necessary for, just some legitimate interest: rational basis review for laws)
 Statute: allowed district judges to order civil commitment of federal prisoners who might be a
25





B.
sexual danger: commit for longer sentence. Lasts until state assumes responsibility or
condition improves (we barely talked in class about this
Challenge: congress doesn’t have the power to enact this
Rule: “we look to see whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power”
Breyes: Holding: Within congress’s Power: 5 reasons
o 1. Broad authority of N+P for federal crimes
 already allow federal crimes+prisons, useful to exercise of that power
o 2. Civil commitment: modest addition ot federal prison and health related stuff
 history grounds
o 3. Reasonable extended longstanding civil commitment system
 ppl already in federal custody, as custodian of prisons, can protect nearby
communities
o 4. Statute properly accounts for state interests
o 5. Links between statute and enumerated power aren’t too attenuated
 same powers that justify federal crimes+prisons: justify this
together: 5 considerations: statute is N+P means of exercising same federal authority that
permits congress to create federal criminal laws, punish violators, provide for them,
maintain security of non-imprisoned who may be effected. So congress is authorized.
o Essentially: federal crimes are rationally related to enumerated power: this is just
small extension of that.
THOMAS DISSENT: federal crimes rationally related to enumerated power, prisons N+P
for that. But congress can’t look for N+P to carry into execution another law that was N+P
for enumerated power.
o BUT Federal crimes (commerce power): so need federal prisons. Federal gaurds
(probably also N+P to prosecute federal crimes): what about rules for treating
prisoners (N+P for N+P for N+P): this would break Thomas’s rule.
o Arbitrary lines: what McColluch was trying to avoid.
 BUT: now congress can decide limits on own power: tension with federalism
The Commerce Power: The Early Years
Commerce Power
 Article I sec. 8: congress ahs the power “to regulate commerce with foreign nations, and
among the several states, and with the Indian tribes”
o Rationale: to end hostile state restrictions, retaliatory trade regulations, and
protective tariffs on imports from other states
o Under articles of confederation: congress had no commerce power among states
 This was major extension of federal power
 Purposes
o 1. Acts as a source of congressional authority
o 2. Acts implicitly as a limitation on state legislative power (dormant commerce
clause)
Gibbons v. Ogden (ferry case: broad interpretation of commerce and the clause: can regulate all
commercial matters that affect more than one state, as long as regulation does not violate
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constitution)
 facts: NY legislature granted Ogden the exclusive right to operate steamboats in NY waters.
Gibbons operated a steamboat service in violation of Ogden’s monopoly, but licensed by
federal law as a “vessel to be employed in coastal trading”
 issue: is the federal law constitutional? (did congress have authority): if so, it would be
supreme over NY (supremacy clause)
 Marshall Holding: Ogden’s claim was barred because federal statute authorized Gibbons to
operate the steamboat. Federal law is within congress’ authority under commerce clause.
o Rationale: commerce clause is expansive/broad
 Commerce: includes all commercial intercourse, including commercial
navigation and the shipping of goods and people
 Reject Ogden: buying and selling, not navigation
 Original meaning argument: everyone understands commerce to be
more than buying and selling
 Intratextual argument: constitution limits power over ports: so must
have some power over ports to limit that power
 Among the states: “intermingled with the states”
 Narrow reading: between states: transactions at the borders
 Broadest reading: in the states: congress unlimited power to regulate
commerce
 Marshell (middle ground): congress can regulate intrastate matters if
they have an “affect” on states generally
o cannot regulate conduct that is solely conducted within one
state, unless it effects other states
 Regulate: plenary power: to prescribe the rules to which commerce is to be
governed
 Full and complete power to regulate commerce, only subject to
express constitutional limits
o Basically rejected 10th amendment as an independent limit on
congress’ power
 Rule from case: (bc of general character of government power): “action is to be applied to all
the external concerns of the nation, and to those internal concerns which affect the states
generally, but not to those which are completely particular to a state, which do not affect
other states, and with which it is not necessary to interfere, for the purpose of executing
some of the general powers of the government.”
o Political reasoning: congress must be able to regulate within states that affect other
states, bc otherwise decision in Ohio that affects PA with no PA political recourse.
o Federalist rationale: national gov to control things that affect more than one state
 Supremacy: when congressional regulation and state regulation conflict, congressional
regulation is supreme.
Economic Regulation Cases: origins of substantial effects test
 Congressional regulation (pre 1937): within commerce power so long as the activities being
regulated had a “substantial economic effect” upon interstate commerce.
Shreveport Rate Case (R.R. rates case: congress can regulate intrastate rates of common carrier that
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have substantial effect on interstate commerce) (1914)
 Facts. Congress set R.R. interstate rates. Texas R.R. charged less for in state transport, even
though longer distance. Agency set price for intrastate rates as well.
 Hughes: CONGRESS CAN REGULATE INTRASTATE RATES BECAUSE THEY HAVE
EFFECT ON INTERSTATE COMMERCE
o Rationale: can prevent common instrumentalities of interstate and intrastate
commercial intercourse from being used in intrastate operations to the injury of
interstate commerce (made more expensive to do business with out of state)
o So can regulate discriminatory against interstate commerce
o Applying effects (substance) over form test
United States v. E.C. Knight Co. (Sugar monopoly: commerce power does not include power over
everything that implicates interstate commerce (manufacture)) (1895)
 Facts: PA corporation bought stocks to control whole sugar market in US, considered
essential element of life
 Issue: can congress prevent this through Sherman anti-trust act?
 Fuller Holding: NO: power of manufacture is not commerce.
o Rationale: manufacture involves control of distribution, but that is secondary.
o COMMERCE POWER DOES NOT INCLUDE POWER OVER EVERYTHING
THAT MIGHT IMPLICATE COMMERCE
 Harlen DISSENT: monopoly obstructs buying/selling of articles in interstate commerce.
Remedy is of national government.
o BUT (back to maj.): different from Gibbons: bc that was shipping between states.
 When manufacturing, not yet commerce. When ship it, then commece
 Form over substance test, limiting definition on commerce.
Commerce Prohibiting Technique to extent Constitutional Authority
 Instead of regulating activity directly: regulating sale of it across state lines
Carter v. Carter Coal Co. (coal worker hrs: commerce power does not include power to regulate
activity just because it effects commerce) (1936)
 Statute: regulated prices/hours of coal workers and working conditions of coal to be shipped
across state lines
 Sutherland Holding: producing and shipping are two different things
o Producing not part of commerce: local activity
o Rule: CONGRESS MAY NOT REGULATE ACTIVITY SIMPLY BECAUSE IT
EFFECTS INTERSTATE COMMERCE
 Conduct regulated not commerce, can’t regulate activity by regulating the
product of it
 Production is separate activity than shipping
o Form over substance test

Champion v. Ames (lottery: congress can regulate the transportation of goods in interstate
commerce (lottery tickets)) (1903)
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


Statute: regulated the sale of lottery tickets across state lines. To stop practice that was
seen as immoral (goal had nothing to do with commerce)
Harlen HOLDING: commerce clause is plenary, this is literally the regulation of items
being transported in interstate commerce, can be regulated
o States have police power: so can directly regulate. Fed has plenary commerce
power
 Just because this power could be abused: doesn’t mean it’s not proper
Motivation irrelevant if regulating interstate commerce
Hammer v. Dagenhart (child labor: commerce power does not include regulation of interstate goods
that affect local activities (production)) (1918) (overturned by Darby)
 Statute: prevents sale of goods produced by child labor across state lines
o Means: can’t sell goods across state lines
o Ends: curve child labor
 Holding DAY: to uphold statute would be an invasion of purely local activity
o Distinguishing from Ames: harmful good regulated v. harmful local activity
regulation
o CONGRESS CANNOT CONTROL COMMERCE IF THE EFFECT OF THAT
REGULATION IS ON LOCAL ACTIVITIES
 if allow law like this, nothing left to states: violates 10th amendment
 BUT: congress can’t have power and then not have it from 10th amend.
 Dissent Holmes: this is well beyond Carter Coal, plenary commerce power, can literally
regulate any good in interstate commerce, effect on local activity irrelevent
 Made motivation relevant: trying to reach manufacture by interstate commerce
o Can regulate shipment of harmful good (the goal) but can’t regulate labor
practice under that guise
Effects (substance) v. Form Cases (or direct (commerce) v. indirect effect (came before commerce))
 Effects Cases: Gibbons to Shreveport Rate (then switched to forms test)
 Form Cases: E.C. Knight to Carter Coal to Ames (allowed bc literally interstate commerce)
 Hammer: seems to take effects test and flip it
 After Hammer: very strict test, the regulation must be over the actual thing being put into
interstate commerce
o Resulted in Court Packing Plan: court began to change theories
C.
The Commerce Power: The Middle Years
Middle Years: (1937-1995): loosening nexus between intrastate activity regulated and interstate
commerce
Substantial effect…
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NLRB v. Jones & Laughlin Steel Corp. (steal unions: Substantial Effects Test: congress may
regulate local activity if that activity has a substantial effect on interstate commerce)
 Statute: NLR Act created NLRB. Regulates corporations ability to discriminate against unions
and discriminatory tactics. Regulates how steel can be produced.
o Corp D: under Carter Coal: regulating labor, unconstitutional
 Hughes Holding: Substantial Affects Test: CONGRESS HAS THE POWER TO
REGULATE LOCAL MATTERS THAT HAVE A SUBSTANTIAL EFFECT ON
INTERSTATE COMMERCE
o Rationale: the power to regulate local matters that have effect on commerce is the
power to regulate commerce. Without that power to regulate things with such a close
and essential relationship with commerce, congress could not regulate congress
 Essentially: regulating local activity with substantial effect is necessary and
proper to regulating congress
 Substantial test: to avoid unlimited national power: if too attenuated power
that regulation would destroy local/national distinction: may not be able to
regulate (10th amendment concern)
o It is immaterial if the regulated activity occurs before, during, or after the interstate
movement of goods
o Application: Jones has interstate network of operations. Hiring and firing not
commerce, but has substantial effect on interstate commerce. So labor relations can
be regulated. Labor strike would have substantial effect on commerce
o Implication that 10th amendment is not an independent limitation of commerce
power (doesn’t matter if goal is for reaching police power)
Commerce to police power: the ends are not important…
United States v. Darby (labor standards in shipment: overturning Hammer: effect on local activity
doesn’t matter) (commerce power extends to intrastate activities that substantially affect interstate
commerce)
 Statute: may not ship goods in interstate commerce that were produced by underpaid workers
 Stone Holding: CONGRESS CAN DIRECTLY REGULATE INTERSTATE COMMERCE
REGARDLESS OF EFFECT ON LOCAL ACTIVITIES.
o Rationale: when congress is regulating shipment: literally regulating commerce.
Question is not if congress is regulating labor practice, here is per se commerce
o Adopting effects test: if regulated activity has effect on interstate commerce, can
regulate it. Also, can regulate activity that would undermine congressional ability to
regulate congress
 Relatively small player: has ripple effect (race to bottom or workers demand
equal pay): so regulation on small company has substantial effect
 Rule: COMMERCE POWER EXTENDS TO THOSE INTRASTATE ACTIVITIES WHICH
SO AFFECT INTERSTATE COMMERCE OR THE EXERCISE OF THE POWER OF
CONGRESS OVER IT TO MAKE REGULATION OF THEM AN APPROPRIATE
MEANS TO THE ATTAINMENT OF A LEGITIMATE END, THE EXERCISE OF
ENUMERATED POWER TO REGULATE INTERSTATE COMMERCE.
o 10th amendment not an obstacle: because congress already has commerce power, not
held to states. Motivation doesn’t matter
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o therefore: congress can impose whatever conditions it wishes on activities that
substantially affects interstate commerce, unless independent constitutional
prohibition (no review of too attenuated from NLRB)
aggregation of activity…
Wickard v. Filburn (home wheat: if activity, in the aggregate, has substantial economic affect on
interstate commerce, then it’s under the commerce clause: no need for activity to be commercial)
 facts: Filburn was farmer, to prevent enforcement of marketing penalty under agricultural
adjustment act of 1938: put quotas on wheat production. Filburn used excess wheat for
home use
o Filburn argument: his excess production was for home use, therefore it cannot have a
substantial effect on interstate commerce
 Jackson Holding: IF THE LOCAL ACTIVITY, IN THE AGGREGATE, HAS
SUBSTANTIAL (ECONOMIC?) EFFECT ON INTERSTATE COMMERCE, THEN
CONGRESS CAN REGULATE IT
o Rationale: look at aggregation of similarly situated people. Their activity, in the
aggregate, has substantial effect on interstate commerce. Therefore, under
congressional control.
o Question: substantial economic effect, not direct or indirect
o Application: every individual who home grows, doesn’t buy on market. Theirfore,
substantial affect on interstate commerce
 Therefore: commerce power includes local activity that is not commercial
o Applied the rational basis: if congress has rational basis for holding that wheat
production for home use, has substantial affect on interstate commerce
Civil Rights application. 14th amendment only applied to fed, and states.
 So couldn’t invoke civil rights act under natural justification
 Civil rights act art. II: “public accommodations could not discriminate”
o Public accommodation: business that offers to serve interstate travelers or
serves food that travels through interstate commerce
o It seems if congress could do this, could do anything.
 Court: if worry about that: then no civil rights. Show deference.
 Apply Comstock rational basis to commerce power:
 Test: rationally believe that local activity, taken in aggregate, had
substantial affect on interstate commerce
Heart of Atlanta Motel v. United States (discrimination affects interstate commerce, so within
commerce power)
 Facts: owner advertises in and out of state, most patrons are out of state, refuses to rent to
blacks
 Issue: is this commerce?
 Rule: CONGRESS CAN REGULATE LOCAL ACTIVITY IF IT HAS SUBSTANTIAL
AND HARMFUL EFFECT ON INTERSTATE COMMERCE. ENDS MUST BE
RATIONALLY RELATED TO ENDS PERMITTED BY CONSTITUTION
o Application: discriminatory hotel discourages interstate travel, that’s commerce, can
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regulate it
o Ends were to end discrimination, but not important (Darby). Rationally related to
interstate commerce
Katzenbach v. McClung (BBQ case) (congress can compel non-discrimination on commerce
grounds when food provided traveled through interstate commerce)
 Facts: restaurant on highway, refuse to seat black people
 Issue: can restaurant that serves $70,000 worth of out of state food from out of state be
regulated by congress?
 Rule: commerce clause: substantial effect. needs rational basis for regulatory scheme
o Application: black ppl spend less money in interstate commerce, so there is rational
basis. Additionally, segregation has overall depressing effect.
o Aggregate businesses: significant impact on commerce
o Motivations do not matter: as long as regulating interstate commerce
 So if restaurant serves food from out of state/travelers: then within commerce power
 Concurring: just under the 14th amendment: but was interpreted as only applying to state
Scrutiny of Commerce Clause authority
 Rational basis: court will uphold a congressional assertion of commerce caluse if congress
could have rationally believed that the activity, when viewed in the aggregate, could have a
substantial effect on interstate commerce
 Judicial restraint: intervene when congress has infringed on individual rights
 Strict scrutiny: is there a compelling governmental interest to address this congressional
action
D.
The Commerce Power: Recent Cases
United States v. Lopez (guns free school act: Three categories of commerce power: 1. Channels. 2.
Instrumentalities. 3. Activities having substantial affect) (split category 3: economic can be
aggregated, non economic cannot)
 Statute: illegal to have a gun in a school zone (no requirement it traveled through interstate
commerce)
o Government: guns near school affect interstate commerce
 Rehnquist Holding: THREE BROAD CATEGORIES OF ACTIVITIES CONGRESS CAN
REGULATE UNDER THE COMMERCE CLAUSE. (1) CHANNELS OF INTERSTATE
COMMERCE (2) INSTRUMENTALITIES/PERSONS/THINGS OF INTERSTATE
COMMERCE (3) ACTIVITIES HAVING A SUBSTANTIAL AFFECT ON INTERSTATE
COMMERCE.
o 1. Channels: congress can regulate the channels of interstate commerce: can directly
regulate the sale of goods across state lines or things shipped through interstate
transaction (Champion Case)
 ex. highways,
 routes through which interstate commerce take place: actual interstate
transactions
 the actual interstate trade
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 cited Heart of Atlanta (referencing the traveler himself: but seems cat. 2)
o 2. Instrumentalities: Congress can regulate the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat may
come only from intrastate activities
 anything that has at some point traveled interstate
 instrumentalities: things that facilitate commerce (Shreveport Rate)
 Persons or things in interstate commerce: all forms of intercourse that cross
state lines (Gibbons)
 Ex. radio waves, insurance, stock
 Ex. a train or car: can regulate the instrumentalities or things themselves
 McClung: food that went through interstate commerce
o 3. Substantial Affect: congress can regulate activities that have a substantial
relation to interstate commerce
 not enough to say regulated activity just affects commerce. Must
substantially affect
 Application: risk of violence near schools stunts learning, kids learn less, they’re less
productive, affect on interstate commerce.
o But majority: this is too attenuated: gives federal government police power
 If congress can regulate local, non, economic activity then there is nothing
congress can’t regulate (and enumarted powers=congress doesn’t have police
power)
o Rule: CONGRESS CANNOT REGULATE LOCAL, NON-ECONOMIC
ACTIVITY IF IT ONLY HAS A SUBSTANTIAL AFFECT ON INTERSTATE
COMMERCE WHEN VIEWED IN THE AGGREGATE
 Then could regulate family law, everything reserved to states
o If economic activity: use rational basis test
o If non-economic activity: look to following four factors (be more vigilant in looking
at them at non economic activity)
 1. Jurisdictional elements: specific kind of jurisdictional elements
 categories 1 and 2: automatic. But in 3, look for piece connected to
interstate commerce
 2. Findings
 no findings necessary to show connection (if economic, rational basis)
 but explain what congress is doing
 3. Attenuation:
 inference after inference, maybe too attenuated
 when non-economic activity: more vigilant with attenuated arguments
 4. Traditional Areas of State concern
 family law/edu policy/crime: traditional areas of state control
 make sure congress doesn’t completely take over laws
o claim not overruling Wickard: Economic v. non-economic. But Lopez could have
argued local gun possession impacts interstate market of guns.
 Congress could definitely regulate buying and selling of guns
 Breyer DISSENT: apply rational basis test: could congress believed, viewed in the aggregate,
that the regulated activity could affect interstate commerce. When you do this, nothing
congress can’t control: so enumerated now irrelevant.
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o Past: showed judicial restraint for good reasons. Might want limit, this is an odd one,
no longer using rational basis test of McColluch
Question now: should court limit congress’ power: when it exceeds enumerated power
Court protecting state rights (Lopez Majority)
 1. Institutional logic
o Congress won’t find any self imposed limits
o Judicial expertise
 2. Precedent
o Courts have always had the last say
 3. Protection of Liberty
o Ppl more free when states decide for self
 4. Conventional Arguments
o If accept judicial review: it should be courts job to limit congress on federalism issue
o But for years: court gave huge deference
Congress Deciding Self (Breyer Dissent)
 1. Presidential veto
o prez can always veto if goes to far
 2. Political safeguard
o can always vote ppl out
 3. History of state’s rights
o individuals need protections, not states
o and states rights have been asserted for pretty terrible things
 4. Institutional competence
o congress can have hearings, reports, evidence. Courts limited
What’s different about federalism
 1. History
o invocation of states rights: guise for right to choose distasteful stuff
 2. Political safeguards of federalism (central issue)
o our system already does a good job regulating (vote, veto)
o with individual rights: minorities fucked without court. With states rights, nobody is
a minority
 3. Institutional competence
o congress better for economic questions: hearings, etc
Changes through history
 1787: ppl could not directly elect president or senators, so need to retain safe rights
 today: more direct election of Washington
 1787: ppl could only live in one place, anything they interact with was local
 today: everything you buy is in interstate commerce. Every in state event has out of state
ripple
Three ways to respond to changes
 1. (Thomas/Scalia Dissent): congress’ power to regulate commerce is frozen at 1787 level
 2. (Reihnquest (maj) and Souter) Congress must reach new things today than it did in 1787
because the world is different. But it would be inconsistent with constitutional principles to
have unlimited congressional power
o look to role of original understanding
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 3. (Breyer/Souter): World has changed, everything has effect on interstate commerce.
Congress can regulate interstate commerce. So congress can regulate almost anything
o in a way original though: bc still gives some limit in spite of text. High level of
generality that constitution has limits
This comes down to fight between originalism v. non-Originalism
 Originalism Rationale (tend to be conservative, bc we were more conservative in 1787)
o Judicial constraint: don’t want judged to find what they think should be in
constitution
o Consistency of law: if constitution changes without amendment: then no certainty
for ppl or regulators (what law really means): to change it, not faithful to ppl who
enacted
o Democratic values: constitution ratified under particular meaning, undemocratic to
just change it
 Rejecting laws on constitutional grounds: anti-democratic
 Non-Originalism Rationale (tend to be liberal, but can produce conservative results)
o Flexibility: framers wanted a flexible constitution for evolving values
o Legitimacy
 If followed all original meaning, nobody would find constitution legitimate
 Alabama could say public flogging is fine.
 Original meaning of 14th amendment: Brown v. Board wrong
 Find constitution legit bc we change it
 Indeterminate: constitution is not specific enough (like due process question)
o Originalism would make judges find bogus historical support
 Anti democratic needs
o Protecting minority in area constitution silent on, or really against
In individual rights context: originalist judges say courts need restraint (not expanding constitution)
but in federalism, say judges need judicial intervention to limit congress power (bc time of
constitution, Fed had limited powers)
 Example: GTA is punishable by death (statute): challenged on cruel and unusual punishment
o Originalist: no grand theft auto at the time, so look at similar rules (horse taking)
o Higher originalist: that’s generalizing, not original
o Non originalist: cruel and unusual evolves: societal changes on what’s cruel
 Look at common law interpretations, pros and cons, apply
 Or what’s “unusual”: what do other countries do?
United States v. Morrison (violence against women: congress cannot regulate local non-economic
activity if causal chain to substantial effect on commerce is too attenuated. Findings element gone:
probably apply to criminal laws)
 Statute: violence against women act. Everybody who has been victim of gender motivated
crime can bring civil suit in federal court. P was raped by football players
o D: the statute was beyond federal power
o United States: defended statute on ground that in the aggregate it had a substantial
affect on interstate commerce
 Rehnquist Holding: Lopez rule (that regulation of economic activity not under fed. Power just
bc in the aggregate it has a substantial affect on interstate commerce) not a categorical rule
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o Jurisdictional element: means when statute itself is limited to things that affect
interstate commerce
 App: here there was no jurisdictional element (but still probably important)
o Findings: there had been lots of findings on substantial economic effects: costs
economy 5-10 billion dollars a year
 Court: too attenuated a connection: CAN’T REGULATE LOCAL NONECONOMIC ACTIVITY IF CAUSAL CHAIN TO SUBSTANTIAL
AFFECT IS TOO ATTENUATED.
 Ignores congressional findings, bc otherwise congress could regulate
anything. Inconsistent with limits on federal power (and traditional state law
matters: family law, murder, etc)
 Findings are worthless: even though in Lopez, seemed findings would
make court pass statute
 Seems to echo formalism of 1930s (manufacturing doesn’t count as
commerce: here: economic v. non economic activity)
 A substantial effect, in the aggregate, in interstate commerce cannot be based
on non-economic activity
 Suggests that Lopez rule will be major obstancle when congress uses
commerce power to regulate conduct that is non-economic
Gonzales v. Raich (weed growth case: congress can regulate intrastate production and possession of
economic activity that has a substantial impact on interstate commerce: BC part of a comprehensive
scheme that’s within congress’ power. Don’t accept as applied challenges)
 Statute: California law: can grow weed at home with doctor license for home
consumption. Conflicts with federal law against growing weed (at all)
o Previous cases: fed. Statute that might be beyond commerce power. Here:
challenge how federal law is applied: challenge was that constitutional law can’t
be applied to me (in home growth/use of weed)
 Regulation of drugs: clearly under commerce (intrastate drug
use/production/sale has a substantial affect on interstate commerce)
o US defends: in the aggregate, regulation of local activity that has substantial
affect on interstate commerce
o So issue: is the regulated activity economic?
 Once it’s economic: standard: if viewed in the aggregate, has substantial
affect on interstate commerce. Certainly is rational basis to find home
growth of weed will affect interstate commerce (won’t buy on market)
o Rule: congress can regulate purely local activities that are “economic” and have
substantial affect on interstate commerce when viewed in aggregate”
 Stevens Holding: look to what the C.S.A. does: regulates the commodities of interstate
drug sale. Production, distribution, consumption of commodities with lucrative
interstate market is economic activity
o Exception for locally cultivated weed for personal use would have substantial
interstate market impact, undermine orderly enforcement.
36
Unlike Lopez or Morrison: the challenge is to individual application of
valid statute: courts don’t have power to excise individual instances of
validly controlled substance
 Unlike Lopez or Morrison: these activities are economic: production,
distribution, consumption of commodities in interstate market
 Therefore, since CSA is economic regulation as a whole, this application
of it is constitutional
o Why is it economic?
 1. There will be effect on the commodity’s market: since users wont have
to buy on the market
 2. The CSA regulated the production, distribution, and consumption of
commodities for which there is a lucrative interstate market
o prohibiting intrastate production and possession of an article of commerce is
rational means for regulating commerce
 providing exception would undercut the scheme of CSA
 so appears as applied challenges difficult, bc look at regulation as a
whole now.
conclusion: CONGRESS CAN REGULATE PURELY INTRASTATE ACTIVITY THAT IS NOT
ITSELF COMMERCIAL, IN THAT IT IS NOT PRODUCED FOR SALE, IF IT CONCLUDES
THAT FAILURE TO REGULATE THAT CLASS OF ACTIVITY WOULD UNDERCUT THE
REGULATION OF THE INTERSTATE MARKET IN THAT COMMODITY.
Scalia CONCURRANCE: this is part of the N+P clause: necessary to achieve goals of
constitutional scheme. N+P clause is what allows commerce to regulate intrastate
activity. It’s necessary for interstate regulation.
o Congress can regulate noneconomic, local, and intrastate activity if that
regulation is necessarily part of a more general regulation of interstate
commerce
O’Connor DISSENT: Activity is not commercial: non-economic, cannot be regulated
o Marijuana not been in stream of commerce, not bought or sold
o From decision: federal regulation of local activity is immune to commerce
clause challenge bc congress chose to act with ambitious, all encompassing
statute
o Everything could be economic: staying at home and playing charades, economic
bc you’re not buying movie tickets (Which is economic activity)




National Federation of Independent Business v. Sebelius I (ACA under commerce clause: congress
cannot compel individuals to become active in a market, on the ground that failure to do so affects
commerce)
 Statute: 2 relevent pieces. (1) requires insurance companies to engage in commercial
transactions with ppl they normally would not (2) individual mandate: everyone must
have insurance.
o 1. Not challenged. Prohibition of pre-existing rejection. No dropping ppl: fine
under commerce power: economic activity, substantial affect
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
o 2. Individual mandate: everyone must have some insurance. $700 fine if you
don’t. added because with (1): incentive to just not get insurance and wait until
sick. Free rider problem.
o Challenge: in exceeds congress’ power to compel people to engage in commerce
they otherwise wouldn’t.
o Easy case? From Gonzales: congress can regulate local economic activity, if in
the aggregate it has substantial affect on interstate commerce.
 Application: if don’t have insurance and want treatement you go to the
ER (economic), sell alternative medicine (econ), ask family for money
(economic), public health clinic (economic). And buying insurance:
economic.
Holding Roberts: Power to regulate presupposes economic activity to be regulated (not
power to create it)
o “THE INDIVIDUAL MANDATE DOES NOT REGUALTE AN EXITING ACTIVITY, IT
COMPELS INDIVIDUALS TO BECOME ACTIVE: ON GROUND THAT FAILURE TO
DO SO WILL AFFECT COMMERCE”
o 1. There is no commerce market to “regulate”
 power to regulate commerce means there must be an activity to be
regulated
 BUT: not getting insurance is just self insure: lots of economic
consequences: economic decision
 BUT 2: why does this matter? Lots of powers where congress
compels us to do things (draft, census, jury duty): why should
commerce be different?
o Even if commerce power alone not enough, under N+P
clause? Either from majority or concurrence of Gonzales
 Congress can regulate local activity, if left
unregulated, would undermine broader regulatory
scheme (Gonzales)
 Individual mandate: just reasonable means of
exercising that power as part of scheme (bc
mandate is necessary for the scheme to avoid free
rider problem)
o Roberts: N+P clause just authorizes congress to carry into
power something it otherwise can do. Nothing in
commerce clause allows someone to buy things. So
nothing for N+P to predicate on
o BUT: pre-exiting condition things: is predicate, within
commerce power: mandate is necessary to carry that into
power.
o 2. If congress can compel you to purchase, then can do anything
o “INDIVIDUAL MANDATE VESTS CONGRESS WITH THE ABILITY TO CREATE
THE NECESSARY PREDICATE TO THE EXERCISE OF AN ENUMERATE POWER”
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Gov: 2 responses. (1) healthcare is different than buying other things,
everyone is already iengaged in healthcare market. (2) congress can
already force us to buy things: social security: same thing
 and political check: unlikely congress would start compelling us
to buy things.
 Roberts: Congress is not permitted to tell us what to do under
commerce clause:
o this was more of an individual liberty issue than a commerce issue. But since
1937: courts weren’t intervening with laws that forces ppl to enter contracts
 court wouldn’t intervene unless it was violation of constitutional right
 BUT: Katzenbach v. McClung: forced sale: distinguish: BBQ already
selling, just telling them who they must sell to. BUT: ppl not buying
health care seem to still be engaged in market (self insured)

Roadmap for dealing with Commerce Clause Questions
1. Does the statute regulate the “channels of interstate commerce”? (actual trade between
across states; highways, mail, maybe even intrastate R.R. (champion v. Ames) or interstate
activity then shipped (Darby))
 Yes: likely upheld (but Lopez/Morrison: don’t explain if any scrutiny here)
o Ex. Champion v. Ames: regulating the actual shipment of lottery tickets
 No: move on
2. Does the statute reguatle the “instrumentalities of Interstate commerce” or “person or
things in interstate commerce”? (ex: trucks, a RR (Shreveport Rates: maybe here) (or things to
be shipped, or that have been shipped)
 Yes: likely uphold
o Ex. guns free school zone act: redone to only include guns that went through
interstate commerce. Then should be fine
Now in substantial affects land
3. Does the statute compel a commercial transaction?
 Yes: likely invalid (Sebellius): but don’t know how broad this is
 No: move on
4. Is the local activity economic?
o defining economic is difficult. Possession seems not to be, but eating wheat yourself
may be (Wickard v. Filborn)
 Yes: 4.1: Did congress have a rational basis for concluding that the regulated activity, in
the aggregate, has a substantial affect on interstate commerce
o Yes: likely uphold (Darby, Raich, Wichard (high water mark)
o No: probably never gonna be no: (McColluch): but if so utterly attenuated, possible
it’s bad
If not Economic…
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5. Is the regulation part of a “comprehensive scheme” that would be undercut without
regulation?
 Yes: likely uphold (Reich: need regulation of local cultivation for scheme)
 No: move on (Lopez/Morrison land)
6. Look at the following factors
 1. Is there a jurisdictional element? does it only apply to cases that affect commerce?
o Yes: more likely to uphold: but then probably back at top
 2. Are there congressional findings: saying the activity related to regulation of
commerce?
o Yes: more likely to uphold (Lopez): BUT Morrison doesn’t matter
 3. Is regulation an area traditionally reserver to state power?
o No: more likely to uphold
 But after Lopez/Morrison: these might not really matter. Can’t regulate local noneconomic activity even if in the aggregate it has a substantial affect on interstate
commerce
o If Hypo statue regulates interstate transaction: stop near top. Exam gonna be
near bottom.
o Only statutes overturned: Gun Free School Zones Act (Lopez); violence against
women act (Morrison); ACA (Sevillius)
E.
The Taxing and Spending Powers
Article 1: sec 8: taxing power: “congress can tax… for the general welfare
 Congress can also regulate through taxing
Child Labor Tax Case (can tax as long as primary purpose is to raise revenue, not to regulate
through taxation)
 Statute: 10% tax on plaes that use child labor
 Intent: same thing as Hammer
 Court: exercise of taxing power will be upheld if primary motivation is raising revenue, but
won’t be upheld where primary motivation was regulation through penalty
o At least when congress doesn’t have power through another way
o Application: this is basically just a find. In Hammer: couldn’t place $1,000,000 fine,
so can’t place million dollar tax
o Tax will be struckdown if just to regulate through penalty
 But will be upheld, if to raise revenue, even if it has incidental regulatory
affect
 Presense of extensive penalizing features indicated primary purpose was to
regulate, therefore tax invalid
 This limit mattered more when commerce power was low. Now wider commerce power, tax
limits probably lessoned
Ex: gas tax: people will keep getting gas, raises a lot of revenue. Purpose matters, but difficult to
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figure out. Congress could be trying to dissinsentivice driving
Unites States v. Kahriger (Gambling tax case: without penalty provisions for breach of activity
under regulation of state, court will not invalidate a tax.
 Statute: taxed bookies, engaged in illegal activities in most states
 Challenge: just attempt to make illegal something left to states: just taxing a business
they don’t have power to regulate. The motive is o surpress wagering: not proper use
of tax power: just a penalty
 Court: PENALTY PROVISIONS IN TAX STATUTES ADDED FOR BREACH OF A
REGULATION CONCERNING ACTIVITIES IN THEMSELVES SUBJECT ONLY TO STATE
REGULATION HAVE CAUSED COURT TO DECLARE ENACTMENTS INVALID. UNLESS
THERE ARE PROVISIONS, EXTRANEOUS TO TAX NEEDS, COURTS WITHOUT
AUTHORITY TO LIMIT EXERCISE OF TAXING POWER
o Here: no such penalties: valid tax.
 Jackson Concurring: all tax has social determination, here, just plan to tax out gamblers
that haven’t been prosecuted. Approaching constitutional limit
 Frankfurter Dissent: when tax power used to matters not within congressional power,
court cannot shut eyes to tax obviously disguised to control conduct left to states
National Federation of Independent Business v. Sebelius II
 Statute: individual mandate: pay amount calculated by income/cost of care if don’t get health
insurance
 Issue: is it a valid tax?
 Rule: apply Child Labor Case problems to this case
o 1. Does the tax impose an exceedingly heavy burden
 here: no
o 2. Is it an imposed exaction only on those who break a regulation: (state of mind
requrment
 scienter requirement: typical of punitive statutes (penalty part)
 here: no
o 3. Tax was enforced by department of labor
 here: iIRS
 Here: same analysis:
o 1. Burden: more or less price of insurance: financial decision to pay or not
o 2. No scienter requirement: not a penalty
o 3. Collected by IRS: looks like a tax
o Rule expanded health insurance coverage: every tax is in some way regulatory
 “if penalty means anything, it means punishment for unlawful act or
omission”
 here: no such punishment, failure to get insurance is a choice: you just pay
IRS
o still complies with other tax rules:
 1. Penalty: no
 2. Capitation (on everyone) taxes must be proportionate (if direct tax, must
be proportional)
 here, not a direct tax: only on those who choose not to buy
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 3. Tax for omission, rather than act: not a limit constitution places
o power to tax wider than commerce power: congress can influence conduct through
tax: can’t be punitive, but this is a tax (limited, reasonable amount)
 DISSENT: by its terms, statute says if you pay if don’t follow regulation. So this is
punishment for not following term. (maj. Not punishment bc it’s a choice: just complying)
Spending Power:
 Article I section 8: congress may “lay and collect taxes… to pay the debts and provide for
common defense and general welfare of the United States”
Two Questions Important
1. Can congress rely on spending power to accomplish things not in commerce power?
2. Can congress grant money to states to make states regulate in terms of federal policy
On first question
United States v. Butler (Hamiltonian view of spending power for the general welfare; but limited by
10th amendment to not regulate what’s in states power (10th amendment part no longer followed)
 Statute: agricultural adjustment act, sought to raise farm prices by cutting back agricultural
pro
 Issue: is this under the spending power?
o Three possible interpretations of the spending power
 1. Granting View: As long as making law for general welfare (everything
congress does): they can make any rule
 treats “provide for general welfare” as another enumerated power
 2. Madisonian View (narrowest holding):
 “provide for general welfare” is preamble for enumerated powers to
follow
 there is no independent authority in the spending power: just confirms
spending for enumerated powers
 3. Hamiltonian View (middle ground: adopted): congress can spend for the
general welfare even if congress could not achieve direct regulation through
enumerated powers
 Court: adopting Hamiltonian View: BUT: CONGRESS CANNOT USE SPENDING POWER
TO REGULATE SOMETHING RESERVED TO THE STATES
o so 2 restrictions on spending power: (1): for the general welfare (2) not used to
coerce action left to state control.
o “If the expenditure is for a national public purpose, that purpose will not be thwarted
because payment is on condition which will advance that purpose”
o Application: congress can do more with spending than enumerated powers, but the
10th amendment reserves everything not in enumerated powers to the states
 So congress can spend for the general welfare, unless it’ll achieve a goal
outside of enumerated powers: really adopting Madisonian view
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 So congress can spend money, but not attach conditions
o Today: still good law for Hamiltonian view, but not followed to 10th amendment
On Second Question
South Dakota v. Dole (drinking age case: Congress can regulate beyond commerce power through
conditioned grant of money)
 Statute: if states want all of highway funding, must change drinking age to 21
 Court: could probably pass this rule directly (commerce power): but might not be able to
under 21st amendment: maybe reserves states exclusive control of alcohol sales
 Rule: accepted Hamiltonian view: EVEN IF CONGRESS CAN’T REGULATE USING
COMMERCE CLAUSE, CAN SEEK TO REGULATE THAT AREA THROUGH
CONDITIONED GRANT OF MONEY
o Limits
 1. Must be in pursuit of general welfare
 defer to congress: no real limit
 2. Must be unambiguous: condition must be clear, not implied
 court could interpret if ambiguous, but don’t want states to
accidentally lose funds
 3. Germaneness: condition imposed must be germane to purpose for which
congress approved spending program to begin with
 drinking age relates to road safety: crossing state lines to drink
 4. Independent constitutional bar: can’t violate another provision of the
constitution
 can’t condition money on violating constitution: can’t justify state
violation of constitution: no real limit
 5. Coercion: can’t cross line between inducement to coercion.
 App: 5% cut not coercive: states have genuine choice
 Question of degree
 But every state accepted: maybe just means made that choice
 Justice Stone: threat of loss, rather than promise of gain, means
coercive
o O’Connor DISSENT: Germaneness grounds: both under and over inclusive
 Under: fails to apply to over 21 year old drivers: threat remains on roads
 Over: applies to ppl under 21 who don’t drive
 Her requirements: can say how to spend money, but nothing more. Example:
must use to pave highways, or higher cops to administer breathalyzers
National Federation of Independent Business v. Sebelius III
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F.
State Autonomy and Congressional Power to Regulate States
National League of Cities v. Usery
Garcia v. San Antonio Metropolitan Transit Authority
New York v. United States
Printz v. United States
G.
Federal Limits on State Power
U.S. Term Limits, Inc v. Thornton
Silkwood v. Kerr McGee Corp.
H.
Federal Limits on State Power: The Dormant Commerce Clause
Dean Milk Co. v. City of Madison, Wisc
City of Philadelphia v. New Jersey
Camps Newfound/Owatonna, Inc. v. Town of Harrison
South Carolina State Highway Dept. v. Barnwell Bros.
Southern Pacific Co. v. State of Arizona
Kassel v. Consolidated Freightways Corp. of Delaware
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South-Central Timber Development, Inc. v. Wunnicke
Prudential Ins. Co. v. Benjamin
IV.
SEPARATION OF POWERS
A.
Executive Power: Domestic Affairs
Youngstown Sheet & Tube Co. v. Sawyer
Dames & Moore v. Regan
B.
Executive Power: Foreign Affairs
Dames & Moore v. Regan
C.
Executive Power: The War on Terror
Hamdi v. Rumsfeld
Humbdi v. (idk)
D.
Executive Privilege and Immunity
United States v. Nixon
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Nixon v. Fitzgerald
Clinton v. Jones
E.
Congressional Control: The Legislative Process
Whitman v. American Trucking Associations
Immigration and Naturalization Service v. Chadha
Clinton v. New York
F.
Congressional Control: Executive Officers
Myers v. United States
Humphrey’s Executor v. United States
Bowsher v. Synar
Marrison v. Olson
Free Enterprise Fund v. Public Company Accounting Oversight Board
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