Constitutional Law I
Kendall Exam Questions
Chapter 1: Supreme Court’s Authority and Role
Different ways to interpret the constitution:
- Literal interpretation of the text
- Stare Decisis – case law
- Original intent – legislative history
- Past historical practice
- Structure – would a certain result destroy the structure created by the constitution
A. Federalist Papers
1. Fed 10
i. Madison – founders assume factions will always exist, therefore reasons that
their effects must be controlled thru government
a. Cannot impose homogeneity b/c that = dictatorship
b. People are generally hostile and imperfect and will fight with each
other
c. A republic is the cure for controlling factions and preventing
oppression by a majority (as may happen in a pure democracy)
ii. Faction = a number of citizens, whether amounting to a majority or minority
of the whole, who are united and actuated by some common impulse of
passion or of interest adverse to the rights of other citizens, or to the
permanent and aggregate interests of the community
iii. Regulating the effects of factions is more preferable than removing the
causes
2. Fed 51
i. “If all men were angels no government would be necessary
ii. Separation of powers v. checks/balances
a. Each branch is there and does its thing and they shall never meet vs.
each branch has power and influence over each of the other branches
3. Fed 37 – Madison’s 3 Reasons for Vagueness in the Constitution
i. Indistinctness of the object
ii. Imperfection of the organ of conception, Powers of Human Thought
iii. Nature of Language itself – Inadequateness of the vehicle of ideas
a. Nature of language being ambiguous means that there will always be
the need for interpretation
4. Fed 39 – What is a “republican” form of government?
i. A government which derives all its powers directly or indirectly from the
great body of the people and is administered by persons holding their offices
during pleasure for a limited period, or good behavior
5. Fed 78 – Hamilton
i. Judicial review – there has to be some control over the executive and the
legislature, and it rests in the judiciary and of course in the people
ii. Judicial review v. judicial supremacy
iii. Review – court reviews what the other branches of government have done
and decides if it is right or wrong (inconsistent or consistent with the
Constitution
Constitutional Law I
Kendall Exam Questions
iv. Supremacy – acceptance by the other branches or government and the public
that the Supreme Court’s interpretation of the constitution is right
6. Criticisms of Constitution originally: no states rights, no bill of rights, elections not
frequent enough, no term limits
B. Judicial Review
1. Marbury v. Madison (Ct declines Marbury’s suit on basis of jurisdiction,
holding §13 of Judiciary Act was unconstitutional – Congress could not allow
original jurisdiction beyond those enumerated in the Constitution) Establishes judicial review
i. Article 3 – gives court the authority to hear cases/controversies arising
under the Constitution; implied power to declare unconstitutional laws
conflicting with the basic legal charter
ii. Article 6 – Constitution is the supreme law of the land
iii. Court has last word on meaning of the Constitution
iv. Judicial power extends to all cases arising under the constitution
v. Congress cannot allow original jurisdiction beyond the situations
enumerated in the Constitution
vi. Established power of SC to review the constitutionality of federal executive
actions and federal statutes
2. Arguments for authority of the Court to review act of Congress:
i. Written Constitution is the most important thing and imposes limits on
government powers that are meaningless unless subject to judicial
enforcement
ii. Structure - Necessity of the job to keep Congress in check
iii. Text:
a. Art. 3 §2 Ct has jurisdiction over Constitution
b. Art 6 Cl 3 Oath taken to support the Constitution
c. Art 6 Cl 2 Supremacy Clause
iv. Federalist 78 – Cts can declare acts of congress contrary to the constitution
3. Supporting cases:
i. Martin v. Hunter’s Lessee (held SC had appellate jx regarding the writ of
error b/c the matter concerned a federal statute and it had appellate jx over
the state appellate court in the original action)
a. States not completely sovereign
b. SC must review States b/c – need for uniformity and state’s decisions
are based on their geographical location so their decisions only
benefit them – need for something to tie it all together and benefit all
ii. Cohens v. VA (arose out of conviction of Cohens for selling lottery tickets)
a. Extended SC jurisdiction over criminal proceedings
b. Judicial power extends to all cases arising under the constitution or
law of US, no matter who the parties are
iii. Both key in establishing SC power to review state court decisions
a. Art. 3 Sect. 1 – SC has appellate jx, not original jx over state ct cases
b. Art. 6 Sect. 2 – State courts bound to authority of Constitution
4. Cooper v. Aaron (School de-segregation program state refuses to implement)
i. Made SC decisions binding on the states
Constitutional Law I
Kendall Exam Questions
ii. Constitution is supreme law of land – no state legislator or executive can war
against the constitution
5. Restraints on the Supreme Court (5)
i. Judicial selection – Senatorial role in confirmation of Justices
ii. Impeachment – removed for treason, bribery, other high
crimes/misdemeanors
iii. Court stacking – Congress has power over the size and budget of the Court
iv. Constitutional amendment – proposal by 2/3 vote of Congress
v. Court stripping (whether Congress can strip the SC of its power of appellate
review)
a. Ex Parte McCardle (D was held in military custody for trial before a
military commission) - writ of habeas corpus cannot be suspended
except by an express decree of congress when there is an invasion
6. Supreme court review of state decisions ensures uniformity in the
interpretation of the Constitution for all states
C. Judiciability Doctrines (Case or Controversy Requirement)
1. Definition
i. Art 3 §2 – judicial authority extends only to case/controversies
ii. 5 Major doctrines:
a. Prohibition against advisory opinions
b. Standing
c. Mootness
d. Ripeness
e. The Political Question Doctrine
iii. Must be met for any federal court at any level to hear a case
2. Advisory Opinions
i. Won’t issue advisory opinions b/c there has to be a case/controversy – must
be an actual dispute involving the legal relations of adverse parties
3. Standing (Who can sue)
i. Requirements:
a. Injury
a. Injury in fact – invasion of a legally-protected interest which is
concrete and actual
i. Any kind of diminution, loss will suffice
b. Must be individualized – no generalized grievances
i. Generalized grievance = all citizens experience harm
when government fails to comply with Constitution; tax
payer suits against government, injury shared by
everyone (US v. Richardson case)
ii. It must affect you, not everyone equally
c. Does not have to be economic/physical – can be aesthetic,
intangible, noneconomic
d. Has to separate you from others = uniquifying (separates you
from the rest of humanity)
e. Examples:
i. Disney v. Sierra Club - aesthetic injury to mountain =
injury
Constitutional Law I
Kendall Exam Questions
ii. Lujan v. Defenders of Wildlife – no injury for monkeys
killed in Sri Lanka with no intent to return there
b. Causal connection b/t action and the injury
a. Burden on P – harm alleged must be “fairly traceable” to the
government and not the result of an independent action of a 3rd
party; must be proven, speculation does not count
b. One extreme: As long as there is a “chain of causation however
attenuated” – US v. SCRAP Case (SCRAP challenged railroad
freight rate surcharges alleging the increased rates  use of
non-recyclable goods  increased need for natural resources)
c. Other extreme: Palsgraff Proximate cause
d. Rule is somewhere in between
e. MA v. EPA – EPA doesn’t regulate cars  increased greenhouse
effect  loss of coastal lands in MA
c. A favorable decision will redress the injury (otherwise it is an
advisory opinion)
a. Will relief sought alleviate the injury
b. If under any circumstance, no matter how silly/unlikely, the
decision could possibly not redress the injury, no standing
c. If the government stops doing/does what you want, will the
injury go away?
d. Partial redress is ok (MA v. EPA)
e. Example: Hospital cases – hospitals could choose to give up
501c3 status for declining treatment to poor so the issue is not
redressible and therefore no standing
ii. Fed 37 – There will always be a need for interpretation of the Constitution
b/c language is inherently ambiguous
iii. Third Party Standing
a. General Rule: ct generally restricts standing to the parties directly
injured rather than allowing 3rd parties to assert their claims
vicariously
b. Exceptions:
a. Craig v. Boren – bar owner challenged sex discrimination of
state law imposing higher age threshold on male than female
beer buyers
b. More likely allowed the closer the relationship and the greater
the identity of interest with the right holder and the greater the
unavoidable hindrance to the right holder’s own assertion of
rights
Case/controversy, 3 parts of standing and examples, 3rd party standing and what it means,
generalized grievances
4. Mootness
i. Mootness
a. Facts have evolved in such a way that there is nothing for the court to
operate on; changing circumstances after the initiation of the lawsuit
Constitutional Law I
Kendall Exam Questions
have ended the controversy so that the court no longer confronts a
live dispute
b. Example: Abortion cases – if it finds she must have the baby, she’s
already had the baby while case is being litigated so it doesn’t matter;
if it finds she can have an abortion, she’s already had the baby in the
meantime and the opinion is merely advisory
c. Exception – if it’s an issue that keeps happening and mooting out all
the cases, it avoids being decided, they will take the case (capable of
repetition but avoiding review)
a. Roe v. Wade
5. Ripeness
i. Dispute is insufficiently developed and is instead too remote or speculative
to warrant judicial action; not ripe if parties have not yet reached a concrete
confrontation, case brought too soon – claimed injury is contingent on future
events
ii. Example: Public workers banned from participating in political campaigns –
workers brought suit before the rule had been violated
iii. Requirements:
a. Personal stake
b. Clarity of the issues
c. Commitment to following through
d. Fitness = fit for judicial opinion
e. Hardship on parties if they don’t take the case now
6. Political Questions (What to sue under)
i. Marbury v. Madison – Questions, in their nature political, submitted to the
executive can never be made by the court
a. Court does not have authority to intervene with presidential decisions
ii. Characteristics: (no set rule that defines it) – Baker v. Carr – political
questions are not justiciable b/c of separation of powers and b/c it would:
a. Reveal history of the issue’s management by another branch
b. Reveal a lack of judicially manageable standards for resolving it
c. Impossible to decide the case w/o an initial policy determination
outside judicial discretion
d. Disrespect other branches
e. Require an unusual need for unquestioning adherence to a political
decision made
f. Involve multiple decisions/announcements about one issue by
multiple governmental departments
iii. How to determine political question:
a. Is it committed by the text explicitly to another branch?
b. Is it the kind of fact situation where there is no manageable judicial
standard?
iv. Examples:
a. War
b. Foreign Affairs (Coldwater v. Carter)
c. Validity of enactments
Constitutional Law I
d.
e.
f.
g.
h.
Kendall Exam Questions
Whether a member of the HOR satisfied congressional qualifications
(Powell v. McCormack)
Impeachments (Nixon v. US)
Guaranty clause (Luther v. Borden)
Constitutional Amendments
Apportionment of Congressional districts among the states)
What does the SC mean when it says “political question”
Chapter 2: Necessary & Proper Clause
A. Text: Art. 1 §8 Cl. 18 – Congress has the power to make all laws that are
necessary and proper to carry out the other powers in §8 and all other
powers in the Constitution
B. McCulloch v. Maryland (Marshall – Maryland tried to tax Federal Bank)
1. Stare Decisis – Marbury v. Madison gives SC authority to interpret the
Constitution; Supremacy Clause
2. Past Political Practice – Last bank never litigated (Washington)
3. Structural Argument
i. Constitution = foundational charter that marked the outlines of government’s
authority but could not describe details
a. The very nature precludes listing every power – if a Constitution
looked more like a book of statutes, it would be too long and
inflexible
ii. Limitations in Art. 1 Sect. 9 – if there were no implied powers, limitations
would be unnecessary
iii. Duty to impose taxes must depend on the political process
a. Power to tax = power to destroy
b. Taxing federal government = taxing citizens of other states w/o
jurisdiction
4. Textual Argument – Necessary & Proper Clause Interpretation
i. Pre-amble: Constitution derives authority from the people, not the states
ii. Compare with Articles of Confederation  left out “absolutely necessary”
and replaced with “necessary and proper” so therefore founders meant what
they wrote
iii. Implied powers - Employing any means calculated to produce the desired
end, and not being confined to those single means w/o which the end would
be entirely unattainable
a. Powers = ends and logic suggests means are implied to make it
possible for those ends to be achieved
b. Congress has authority to collect taxes, borrow money, regulate
commerce, declare and conduct war, and to raise and support
armies/navies
1. Therefore, Congress has the power to select reasonable means
to exercise these constitutional responsibilities  Bank
iv. If power is not granted, then it is prohibited; however if it is a means (and not
an end) then it’s allowed
Constitutional Law I
Kendall Exam Questions
v. All powers of national government = sword & purse
vi. Necessary = Convenient
a. Art. 1 Sect. 10 –notes “except what may be absolutely necessary” - by
not using the word “absolutely” necessary in the second clause
changes the meaning of “necessary” so it only means that which is
convenient
5. Rule (MEMORIZE) – Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly adapted
to that end, which are not prohibited, but consist with the letter and spirit of
the constitutional, are constitutional.
i. End be legitimate = ends of government; preamble of the constitution –
Union, justice, domestic tranquility
ii. Within the scope of the constitution = sword & purse
iii. All means which are appropriate = necessary and proper
iv. Plainly adapted to that end which are not prohibited and consistent with the
letter and the spirit = “spirit” implies not just looking at the letter of the
constitution
6. Holding: State has no power to tax Federal Bank
What single word does Marshall use as the proper understanding of “necessary” in the
“necessary and proper” clause
Chapter 3: Commerce Clause
A. Article 1 Section 8 Clause 3
B. Marshall Definitions (Gibbons v. Ogden – NY monopoly v. Fed
permit/licenses)
1. Commerce = intercourse
i. Open-ended, anything that is relational
2. Regulate = total control, w/o limit
3. Among the several states = what affects more than one state, then the feds can
regulate it, it can reach into a state
i. Completely internal commerce of a state is considered reserved for the state
itself
ii. If it doesn’t affect any other state but the one, feds can’t regulate it; BUT if
what is done in one state can affect other states, it can be regulated
C. Exceptions
1. NOT CURRENT LAW - Commerce  manufacturing (Sugar Trust Cases) or retail
(Poultry case)
i. Direct v. indirect test – manufacturing has an indirect affect on commerce b/c
it precedes it but is not directly related; retail is out of stream of commerce
ii. Hammer v. Dagenhart (Child Labor Cases) – Overruled by Darby
a. Feds cannot regulate interstate transportation of goods manufactured
with child labor – attempt to regulate the conditions which they were
manufactured  commerce
iii. The manufacture of goods cannot be regulated but the shipment of those
goods can be; intrastate activities that affect interstate commerce can be
Constitutional Law I
D. Categories
Kendall Exam Questions
regulated, including manufacturing, wages of employees under the Necessary
and Proper Clause (US v. Darby)
1. Stream of commerce – (Texas Cattle Case – cattle move across state lines)
i. Government can regulate products that enter into the stream of commerce
even if still in one state initially
ii. Congress can regulate the terms and conditions on which goods or services
are sold among the states and may restrict the types of goods that can be
shipped
2. Instrumentality of commerce (Shreveport Rate Cases – railroad rates
discriminate b/t in state and out of state, congress regulated)
i. Congress can regulate instrumentalities of interstate commerce: railroads,
airlines, trucks; includes power to impose safety standards on local or
intrastate carriers that use the same tracks, airspace, or highways as
interstate carriers in order to prevent local carriers from endangering
interstate carriers that operate the same routes
ii. Government can regulate rail road rates that discriminate b/t interstate and
intrastate rates
3. Substantial affect on commerce (NLRB v. Jones & Laughlin, Wickard v. Filburn)
i. NLRB - Government can regulate wages when they jeopardize the interstate
commerce of the company
ii. Wickard – Even if the activity is local and not regarded as commerce, it can
still be reached by Congress if it exerts a substantial economic effect on
interstate commerce
iii. Wickard – Aggregation principle – if everyone did it, it would be bad for the
market so Congress can regulate the individual growing if wheat to meet own
needs – home grown wheat competes with the wheat in commerce and
therefore has a substantial affect on commerce
iv. Darby – court abandons only “stream of commerce” and activities that
“directly” affect commerce – adopted “substantially affects” test to broaden
the reach of the commerce power (Ct permits statute, based on McCulloch
ends/means analysis, adopted by Congress to exclude from commerce all
goods that did not conform to specified labor standards)
POLICY – We want a common free market, not a market restrained by trade requirements of each
state
4. By 1940s, commerce among several states = channels of commerce
(roads/rivers/air), instrumentalities, anything with a substantial affect on
commerce
E. Civil Rights
1. Commerce clause used to protect civil rights in Heart of Atlanta Motel and
Katzenbach v. McClung by outlawing racial discrimination at hotels and
restaurants b/c the commerce was travelers b/t states and the commerce of
restaurant supplies b/t states
F. Limitations on Commerce Clause
Constitutional Law I
Kendall Exam Questions
1. Lopez: Regulation of economic activity that substantially affects interstate
commerce will be sustained (economic activity is the threshold requirement
for regulating conduct under commerce power)
i. Economic activity = 1) the activity being regulated must itself be properly
characterized as economic in nature OR 2) the regulation of the activity must
be an essential part of a larger regulation of economic activity
ii. Regulation of hand guns in schools in Lopez was not economic or part of an
economic regulatory scheme
iii. Substantial relationship requirement = whether or not the statute in
question contained an express jurisdictional element limiting the measure’s
reach to activities having an explicit connection to interstate commerce (i.e.
Congressional findings)
iv. “Local” plays a large part – if the problem is entirely local, federalism wins
2. Morrison (violence against women act unconstitutional): The regulation and
punishment of intrastate violence that is not directed at the instrumentalities,
channels, or goods involved in interstate commerce has always been the
province of the States
i. Must be an effect on commerce and a substantial impact – in tracing the
effect, even allowing for aggregation, the chain of causation is too attenuated
ii. Violence Against Women Act therefore unconstitutional
3. Gonzales v. Raish (Medical marijuana growth) – homegrown marijuana would
affect the nationwide market for marijuana (similar to Wickard) even though
no economic component (as espoused in Lopez/Morrison)
4. Substantial Effect determinations:
i. Does it involve crime/education? Local (Lopez)
ii. Does the statute have a jurisdictional aspect (has to travel across state lines)?
(Morrison)
iii. Are there congressional findings in support, not binding but helpful
iv. Is it economic or commercial or not?
v. Does it have aggregate effect or is it inferences upon inferences? (Wickard)
Marshall’s definition of “commerce,” “among the several states,” “regulate”
How would you re-write the gun-free school zone statute to make it constitutional under
the commerce clause – how would you recommend to your boss who wants to remove guns
from schools what alternative source of governmental authority would be a basis
G. 10th Amendment – State Autonomy
1. Text: Powers not granted to the feds are reserved to the states and people
respectively
2. Essential State function
i. National League of Cities (wage act for employers does not extend to the
state government as employer; power under the commerce clause but cannot
commandeer the state – immunity clause defense) – if it’s an essential state
function and if it goes to the states as existing independent entities, then the
SC can’t dictate how it is
Constitutional Law I
Kendall Exam Questions
ii. Overruled by Garcia – traditional and integral functions is the wrong
approach – essential functions should be determined by the legislature, not
the court – states have a protected role through the legislature so no judicial
remedy if infringed 10th amendment rights
3. Anti-Commandeering
i. Fed can’t single states out and commandeer the states by imposing a duty to
regulate – NY v. US (access incentive that stated that if the states hadn’t
developed their own radioactive waste site, they could be blocked from using
other states’ sites
ii. Scope – Feds can’t impose policy on states nor require its officers to enforce
federal law - Printz Case (Brady Bill provisions unconstitutional that
required state officers to conduct background checks on handgun
purchasers)
iii. Testa v. Katt – states cannot refuse to apply federal law (distinguished from
Prinz in that state officials were forced to enforce federal law)
4. Alternatives to commandeering
i. Provide monetary incentives
ii. Pass regulations under the commerce power
iii. Preemption – threaten the use of commerce clause
H. 11th Amendment (State Sovereign Immunity)
1. Text: Art. 3 Judicial power does not extend to any suit in law or equity
commenced or prosecuted against one of the States by citizens of another
state or by citizens/subjects of any foreign state
2. Under Federal laws – state entities are immune from actions brought in
federal court
3. Chisholm v. GA – suit against the state by a citizen of another state
constitutional  results in 11th Amendment closing avenues in Art. 3 of suits
b/t states and citizens of another state/foreign country
4. Hans v. LA – federal question case b/t state and citizen of same state  states
may not be sued without their consent
5. Alden v. Maine – sovereign immunity extends from federal courts to state
courts (finds authority in structure of Constitution itself) – Maine could not be
sued by its employees in state court for violating Labor Standards Act
6. Ex Parte Young – can’t sue the state, but can sue the state official as an agent of
the state
7. 14th Amendment §5 allows Attorney General (feds) to sue the state – trumps
the 11th amendment b/c most recent
i. National government can abrogate state sovereign immunity and give
individual the right to sue the state
I. External limits on Fed Government Power under Commerce Clause (10th
& 11th Amendments)
1. Can they do it under the enumerated powers?
2. Can they do it under the commerce clause? Yes if in stream of commerce,
Lopez/Morrison
3. Can they do it to the State?
Chapter 4: Taxing, Spending, War, Treaties Powers
Constitutional Law I
Kendall Exam Questions
A. General Considerations
1. Government can’t do it under the Commerce Clause
B. Taxing Power
1. Art. 1 Sect. 8 Clause 1 – Taxes and Duties to pay debts and provide for common
defense and general welfare of the US
2. Distinction b/t Revenue (constitutional) and Regulatory (unconstitutional) –
Bailey v. Drexel Furniture (challenge to Child Labor Tax Law, Law ruled
invalid b/c acted more as regulation)
i. If purpose is to regulate behavior, it’s unconstitutional under taxing power
a. Taxes are imposed to obtain revenue and discourage taxed item’s use
b. Regulation = penalizing features of the tax so outweigh the revenue
feature
ii. Tax must have a primary purpose of revenue
3. Goal – should be to raise money (revenue)
4. US v. Butler (Agricultural Adjustment Act levied processing taxes – tax invalid)
– Taxing power is a distinct constitutional power fully effective w/o reference
to other granted powers – doesn’t matter if it’s directed toward interstate
commerce etc.
i. Congress could tax a private activity that it couldn’t regulate thru the
Commerce power so long as it was promoting the general welfare
5. Markettie case??? Doesn’t have to raise a lot of money
Responsible for the 2 R words: revenue & regulation
C. Spending Power
1. Art. 1 Sect. 8 Clause 1
i. Carrot (vs. Taxation “stick”) to bribe people to do something
ii. Provide for the common defense and “General welfare” of the US
2. Hamilton v. Madison
i. Hamilton – Spending power is a separate, distinct, additional power from the
Commerce clause so Congress can spend money for other things other than
implementing enumerated powers (Butler case adopts this reasoning)
ii. Madison – Spending power is a means to enumerated powers – if something
is prohibited under Commerce clause, no power under spending clause;
limitation of all the other powers
3. Four conditions/criteria for spending clause bill to meet before spending is
constitutional:
i. Spending must aid the general welfare
ii. Condition on federal funds is clear & unambiguous – states know what they
have to do and what consequences there are (SD v. Dole – withholding
federal highway funds in states that have drinking age < 21, conditions ok as
long as the are related to the funded program)
iii. Spending is illegitimate if it is unrelated to a federal interest in national
projects or programs
iv. Spending provides an independent bar to the conditional grant of federal
funds – power cannot be used to induce the states to engage in activities that
would themselves be unconstitutional
Constitutional Law I
Kendall Exam Questions
4. US v. Butler – Spending power is a distinct constitutional power fully effective
w/o reference to other granted powers – doesn’t matter if it’s directed toward
interstate commerce etc.
i. Congress could spend to encourage private behavior that it could not regulate
thru the Commerce clause, so long as it was promoting the general welfare
Responsible for Madison v. Hamilton and who won and the 4-part test
D. War Power
1. Text: Art. 1 Sect. 8 Cl. 11
2. War power does not end when hostilities end but extends to cover all
consequences of the war (Woods v. Miller – Challenge to Congress’ power to
control rents after WWII)
i. Housing shortage caused by absence of materials diverted for the war effort
 Congress has power to regulate to maintain order
3. Curtiss-Wright case – President has power of foreign affairs – he is the only
voice
E. Treaty Power
1. Art. 2 Sect. 2 and Article 6 give US power to make treaties and elevate treaties
to the supreme law of the land (included with Constitution & federal statutes)
i. Preempts conflicting state law but a treaty and federal statute are equal so
which ever is most recent is controlling
2. Treaties negotiated by President and 2/3 Senate approves
3. Self-executing = establishes enforceable domestic law w/o any further action
by Congress
4. Non-self-executing = requires legislative implementation before its provisions
can be of any effect as domestic law
5. Missouri v. Holland
i. Congress enters treaty with Canada to protect birds
ii. Treaty power is separate and allows Congress to do things not under the
enumerated powers in §8
6. Limitation: It cannot be used to violate exclusive bill of rights protections
(Reid v. Covert – challenge to executive order allowing civilian dependents of
military service men to be tried by military tribunals – unconstitutional b/c
treaties are not free from the restraints of the Constitution)
Chapter 5: Dormant Commerce & Privileges/Immunities
Clause
A. Dormant Commerce Clause
1. Congress is silent and has taken no action to make federal policy about a given
subject matter
i. Objection to state regulation rests entirely on the negative implications of the
commerce clause of Art. 1 Sec. 8 cl. 3 – the unexercised power
ii. Court invalidates some “protectionist” state regulation, in the absence of
congressional preemption
Constitutional Law I
Kendall Exam Questions
iii. Key triggers:
a. Legislation is about commerce among the several states,
b. Feds are silent/done nothing
c. 3 General rules analysis
2. Gibbons v. Ogden
i. When a state proceeds to regulate commerce, it is exercising the power that
is granted to congress – power to regulate commerce is exclusive to Congress
and states should have no power to regulate
ii. Outlined the difference b/t power of Congress to regulate interstate
commerce and the states’ police power to enact legislation that might affect
commerce such as:
a. Inspection laws, quarantine laws, health laws and laws regulating
internal commerce w/in the state (remain subject to state legislation)
3. Cooley v. Board of Wardens (upholds state statute requiring local pilots to
navigate NY port)
i. Distinguishes b/t policing and regulatory legislation – foundational case
establishing the Dormant Commerce Clause
a. Not exclusive b/c states can regulate some things like inspection laws
ii. The commerce clause by it’s own force bars some but not all state regulation
– determinative factor is the subject of regulation (national or local in nature)
a. National = power to regulate is exclusively the fed’s (exclusive zone)
b. Local = States are free to regulate until Congress chooses to itself
(concurrent zone)
4. Buck v. Kuykendall
i. States can regulate safety, it’s ok if it indirectly affects commerce
ii. Not ok if it suppresses competition by keeping out-of-state competitors out
iii. Direct/Indirect test – laws that place a direct burden on interstate commerce
are invalidated and those that indirectly burdened commerce were upheld
5. Modern General Rules
i. Facially discriminatory against out-of-state commerce
a. Statute says that it’s discriminating, mentions geography
b. Virtual per se rule: invalid – presumed to be unconstitutional; state
must establish the constitutionality
i. UNLESS – no other non-discriminatory alternatives and large
state interest
c. Philadelphia v. New Jersey (waste cases) – imposed on out-of-state
commercial interests the burden of conserving the state’s remaining
landfill space
d. EXCEPTION – Maine v. Taylor – state interest in protecting Maine
environment from out of state minnows (non-native species)
ii. Facially neutral but favor local interests at expense of out-of-state
competitors (protectionist purpose)
a. Neutral = no mention of geography
b. Constitutional – only invalid if “impermissibly protectionist” in
purpose or effect – presumed constitutional and objector has to prove
it’s unconstitutional
c. “Protectionist” = all benefits stay inside state and burdens our out of
state
Constitutional Law I
6.
7.
8.
9.
Kendall Exam Questions
d. Baldwin case – state can’t dictate what prices an out-of-state product
can sell for
e. Hood case – states cannot discourage commerce in favor of protecting
local economic interests
f. Washington apple growers – statute requiring apples to be packaged a
certain way was facially neutral but protectionist b/c all burden to repackage/label apples was on Washington so unconstitutional
iii. Facially neutral that have disproportionate adverse effect on interstate
commerce
a. Balancing of the local public interest served and the effects on
interstate commerce
b. Upheld unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits
c. Pike v. Bruce Church (AZ statute required that AZ grown cantaloupes
advertise their State of origin on each package – requirement
invalidated b/c burden on commerce was excessive compared to local
benefits) – presumed constitutional unless the impact on commerce is
disproportionate to the interest of the state
Limitations on states when feds have not acted:
i. Field preemption – if Congress dominates a specific field, state can’t regulate
it even though Congress has not acted
POLICY: political (preserves political unity of Union and not incite trade wars)
and economic (vision of free trade – goods can be allocated efficiently by free
flowing across state borders)
Subsidies v. Tax Breaks – West Lynn Creamery v. Healy (state tax on all
producers of milk and rebated part of the proceeds to in-state producers,
unconstitutional b/c effectively only taxing out-of-state producers)
i. Pure subsidy funded out of general revenue does not burden interstate
commerce and assists local business - constitutional
ii. Subsidy to local businesses funded from a tax on items produced in other
states – unconstitutional (Creamery case)
a. Because it burdens out-of-state competitors with tax and benefits instate interests with the subsidy
iii. Camps Newfound (invalidated Maine statute giving tax exemption to
charitable orgs incorporated in the state) – can have subsidies for local
businesses but cannot have taxes/tax exemptions that work the same way
(taxing only out-of-state businesses)
Home Processing Requirements
i. Courts generally invalidate state requirements that products be inspected,
processed, or treated inside the state (giving preferential treatment to instate businesses and excluding out-of-state competition)
ii. Dean Milk – statute that required milk to be pasteurized near Madison, WI
deemed unconstitutional – one state cannot place itself in economic
isolation (statute excluded milk from IL and also some WI milk creating an
economic barrier); can be discriminatory even if some local interests are
affected as long as it is disproportionately against other state’s commerce
Constitutional Law I
Kendall Exam Questions
iii. Carbone – ordinance required all solid waste to flow thru new transfer
station city built – unconstitutional b/c economic effects favor local
operator over out-of-state business (Hoarding local products)
iv. United Haulers – flow control laws required haulers to bring waste to
facilities owned by state-created public benefit corporation; constitutional
b/c law that favors the government in an area of traditional government
activity does not discriminate
10. Market Participant Exception
i. Dormant Commerce Clause only applies when the state taxes or regulates
private trade in the national market place
a. If state enters market place as a participant, its actions are treated as
it is a private party and is exempt from Dormant Commerce Clause
ii. Reeves – The state may discriminate in favor of its own residents when it
functions as a “market participant” rather than a “regulator”
a. SD may restrict sales of cement to residents of SD b/c it is a market
participant in the industry of cement when selling it from a stateowned cement plant
iii. Limitation: it allows a state to impose burdens on commerce w/in the
market in which it is a participant but goes no further – “market” defined
narrowly
a. As a market participant, greater interest is in the immediate
transaction than in what the purchaser does after the sale
b. Downstream restrictions have greater regulatory affect than do
limitations on the immediate transaction
Subsidies are allowed and taxes that are used to same effect are not
In-state v. out-of-state tuition differences
How would you go about objecting to Chicago buying off Boeing by offering subsidies and
tax breaks – analyze according to the Dormant Commerce Clause w/cases
KY v. Davis – cases relevant: Dean Milk, Carbone, United Haulers, Reeves, International
League of Cities
B. Privileges & Immunities Clause
1. Article 4 §2 – precludes a state from treating out-of-state individuals worse
than in-state residents (dealing with privileges of state citizenship)
2. 14th amendment –prohibits any abridgment of a citizen’s privileges or
immunities – different than those protected by Art. 4 b/c dealing with national
citizenship so it is supplemental (Slaughter House Cases – LA law chartered a
corporation and granted it 25 year right to maintaint the slaughterhouses –
states could regulate against its own citizens; limited 14th amendment
application)
a. Saenz Case (CA law putting residency time requirements invalidated) Privileges & Immunities Clause – protects the right of a citizen to be treated
as other citizens of a state if they decide to move there
Constitutional Law I
3.
4.
5.
6.
7.
Kendall Exam Questions
i. Individuals have the right to choose the state where they reside, the
state cannot choose its citizens (cannot withhold state benefits from
new residents)
Citizen = citizen of US and a resident of that state (Slaughter-House Cases)
Serves as a restraint on state efforts to bar out-of-state people from access to
local resources
Differences b/t Privileges & Immunities Clause & Dormant Commerce Clause:
i. Corporations enjoy no protection under the Privileges & Immunities clause
ii. Congress may authorize, through affirmative exercise of its commerce
power, state practices that would otherwise be impermissible under the
Dormant Commerce Clause - Privileges & Immunities Clause is a rights
provision that Congress cannot waive
iii. Privileges and Immunities clause does not extend to all commercial activity
but only to the exercise of “fundamental rights”
iv. The Court has declined to recognize any “market participant” exception
under the Privileges and Immunities Clause
Two Part Test Analysis: (United Building & Construction)
i. Whether the ordinance burdens one of the privileges and immunities
protected by the Clause – is there a fundamental matter/interest needing
protection?
a.
Ability to find a job is fundamental (Camden)
b.
Ability to practice law is fundamental (NH v. Piper)
c.
Right to pass thru or travel in a state
d.
Right to reside in a state
ii. Whether there is a “substantial reason” for the difference in treatment –
nonresidents must somehow be shown to constitute a peculiar source of
evil
Scope: threshold requirement of “privilege” = only “fundamental” privileges
are controlled; review requires a substantial interest for government’s reason
C. Preemption & Consent (Art. 6)
1. Preemption = supremacy
i. Conflict preemption - If the state and feds are acting in proper authority
and there is a conflict, state statute is preempted by the feds
ii. Express preemptions – actually says the federal statute precludes state
authority
iii. Implied preemptions – says nothing but in practice they conflict
iv. Field preemption – Congress meant to occupy a field that displaces the
states from regulation
2. POLICY – People prefer federal regulation b/c businesses don’t want to have to
know 50 different standards across state lines
3. Consent = Congress can consent/authorize states to do something that if the
states did w/o Congress’ permission, would be unconstitutional
i. Example: Insurance business – McCarran Act
4. State taxation of Interstate Business – State tax upheld against Commerce
Clause challenge
Constitutional Law I
Kendall Exam Questions
i. 4 part test: 1) substantial nexus 2) fairly apportioned 3) does not
discriminate against interstate commerce – taxes everyone same way 4)
fairly related to the services provided by the state
Chapter 6: Separation of Powers
Fed 47-51
A. Powers in General – Checks and Balances ( = power over the branch)
1. Legislative  Executive
i. Can override Presidential veto
2. Legislative  Judicial
i. Congress can create acceptances to the appellate jx of the courts
ii. Senate confirms appointments
3. Executive  Legislative
i. President has veto power
4. Executive  Judicial
i. Appoints Justices
5. Judicial  Executive
6. Judicial  Legislative
B. General Considerations
1. Mixing and commingling of power – areas of overlapping responsibility
i. Reflected in Congress lawmaking and President’s participation in Art. 2 §3
and veto in Art. 1 §7; Senate’s right to reject Presidential nominees Art. 2 §2
2. Security against tyranny is checked and balanced power w/in each branch
(Mistretta v. US – Commission created to set federal guidelines for criminal
sentences survived anti-delegation and separation of powers attacks)
C. Executive Violation of Separation of Powers
1. Executive orders = effect of statutes, binding law unless contrary to other
statutes/constitution/congress
2. Youngstown Sheet & Tube – President Truman issued executive order to seize
and operate the nation’s steel mills – court rejected the claim of inherent
power b/c order amounted to law making, legislative function only Congress
can do as outlined by the Constitution
3. Youngstown - Black (Textual approach)
i. Rigid separation of powers approach – structure – President can only do
what is expressly in the Constitution or what Congress says he can do
ii. Literal, textual, fundamentalist – Power of President to order steel
company to stay open so President can’t do it
iii. Silence is silence – only think that it provides is the premise of a
government with separated powers
iv. Power is “vested” in Art 2 vs. Congress’ power that is “granted” Art. 1
v. Past practice is not relevant
vi. Implies there is no inherent or applied authority
4. Youngstown – Frankfurther (Past Political Practice)
i. Major Premise is that it’s a constitution – won’t be so explicit (Marshall)
ii. President’s powers should not be defined comprehensively
iii. Congress has authority over this situation and if they said he couldn’t do it,
then he couldn’t do it
Constitutional Law I
Kendall Exam Questions
iv. Congress addressed labor relations and 1) didn’t give him the power and
therefore didn’t want him to have it and 2) they rejected an amendment
that would have given him the power so therefore President does not have
the power
v. Text of Constitution means what historical context suggests – tradition
gives it meaning
vi. Legislative history helps and is important to the interpretation of the text
5. Youngstown – Jackson (MOST IMPORTANT) – 3 Classifications:
i. If Congress and President agree = whatever power Pres. Has from
Constitution and Congress are at their greatest – President has power over
what Congress gives him from the Constitution
ii. Congress is silent = there are circumstances where they have concurrent
power and in their silence, Congress invites the President to act (passes the
buck to him) – zone of twilight
iii. Congress says no = Subtract that from whatever power the Pres. has in
Constitution, Presidential authority is at its lowest
iv. Powers are “vested” so no inherent and unrestricted presidential powers
6. Youngstown – Vinson
i. Dissent – there’s a war going on and Pres. should do what is necessary
7. Fed. 69 – Presidency is not Kingship – President has more power than a
governor but less than a king
i. “President” came from what Convention attendees called Washington
D. War & Terrorism
1. War Powers Resolution & War Tribunals
i. Congress delegated that military tribunals could try offenders against the
law of war – President has constitutional power to establish the tribunals
ii. Unlawful combatants (a spy, offenders of the law of war) are subject to
military tribunals
a. Ex parte Quirin – German spies tried by military tribunal
iii. Lawful combatants are subject to capture and detention as POWs
a. Ex parte Milligan – non-rebel in Indiana cannot be tried under
military tribunal
iv. Writ of Habeas Corpus can only be suspended by Congress (Ex parte
Merryman)
v. Hamdan v. Rumsfeld – Military commissions can only be used when there is
martial law, enemy territory, or violations of the law of war
a. Does not include conspiracy to commit war crimes
2. Authorization for the Use of Military Force (AUMF)
i. President authorized to use all means necessary to defend the nation state
ii. Hamdi v. Rumsfeld – need more than “some evidence” D was connected to
the effort against the US; due process gives Hamdi notice and a fair
opportunity to contest and a neutral decision maker
3. Questions on Boumedine v. Bush
i. Get notes from someone…
E. Congressional Violation of Separation of Powers
1. Delegation Doctrine
Constitutional Law I
Kendall Exam Questions
i. Congress has frequently given broad delegations of legislative power to the
executive branch and independent agencies
ii. Not unconstitutional as long as Congress legislates broadly leaving a degree
of discretion to the executive or judicial branches
iii. 4th Branch of Government – Executive agencies – out of necessity –
efficiency to make necessary laws and for the purposes of developing
expertise – people who know about the issue can make the best
laws/policies
iv. Court has almost never second guessed Congress’ judgment regarding the
permissible degree of policy judgment that can be left (delegated) to those
executing or applying the law (Mistretta v. US allowing a Commission
appointed by the President with advice/consent from the Senate to
establish mandatory ranges of permissible sentences for different criminal
offenses that federal judges would have to apply)
2. US v. Curtiss-Wright
i. President alone is representative of nation in foreign affairs – president has
the power to declare an embargo against selling arms to Bolivia or
Paraguay
3. One-House Veto - INS v. Chadha (Ct struck down legislation/resolution by the
House blocking the Attorney General’s decision to suspend the deportation of
an alien; AG acted pursuant to a statute authorizing such suspension)
i. “one hose veto” = legislative action b/t it affected the “rights and duties” of
both the alien and AG
ii. Unconstitutional b/c you need:
a. Art. 1 Sect 7 cl. 3 provides the President with qualified power to veto
(Presentment)
b. Bicameralism in Art 1, Sect. 1 & 7 – legislation should not be enacted
unless considered by both houses
iii. One House can act alone w/o reviewable force of law, not subject to
President’s veto when:
a. House can initiate impeachments
b. Senate’s power over Presidential appointments
c. Senate’s power to conduct trials on impeachment
d. Senate’s power to ratify treaties
iv. Powell’s Concurrence & Burger in Bowsher v. Synar – Formalistic approach
a. President has power of appointment under Art. 2 § 2 and Congress
has removal of officers by impeachment and conviction
v. White’s Dissent – Functionalistic approach
4. Line Item Veto – Clinton v. NY (Line Item Veto Act unconstitutional; Clinton
tried to cancel $ provisions for NY)
i. Unconstitutional – gave the President the power to cancel in whole three
types of provisions that had been signed into law: 1) any dollar amount of
discretionary budget authority 2) any item of new direct spending 3) any
limited tax benefit
ii. No provision in Art. 1 that authorizes the President to reject selected
portions of a law rather than the law as a whole (as in veto power) or enact,
to amend, or to repeal statutes after they had been passed
5. Pocket Veto – if within 10 days, President does nothing, it is a pocket veto
Constitutional Law I
Kendall Exam Questions
6. Impoundment veto - President does not have impoundment authority to
refuse to spend money Congress appropriates for a Commission that passes
over President’s veto
7. Appointment of Federal Officers
i. Principal Officer – President appoints with advice/consent of senate (Art 2 §2
Cl. 2)
ii. Inferior Officer – Inferior if their supervision is less than President and they
are temporary rather than permanent position
iii. Congress cannot appoint officers, only participate with the President or vest
the power in the Judiciary
8. Removal of Federal Officers
i. President has power to remove executive officers (Myers v. US)
ii. Removal duties allowed by President over Commission b/c not performing
judicial or legislative duties although members are judges (Mistretta)
iii. Humphrey’s executor – limits Myers to termination for cause
iv. Congress retains removal authority through impeachment
9. Bowsher v. Synar – Assignment of Comptroller General – controlled by
Congress cannot execute laws – violates separation of powers
10. Morrison v. Olsen – Functional approach
i. Ethics in Government Act created the office of Independent Counsel –
special prosecutor with broad investigative powers
ii. Only power to remove prosecutor is impeachment or Attorney General for
good cause
iii. Constitutional
a. Congress can invest in the Judiciary the power to appoint inferior
officers, independent counsels are inferior officers
b. Job is for a limited amount of time & duties are limited – therefore
inferior
iv. 6 Points from class – special prosecutor is inferior:
a. Art. 2 §2 Cl. 2 – power to appoint inferior officers
b. Inter-branch appointments – prosecutor is a judicial person; no
restriction in Appointments Clause of inter-branch appointments
c. Judges exercising executive authority in hiring/firing prosecutor
i. Judges exercising legislative duty in outlining duties of special
prosecutor
d. Congressional use of usurpation – none b/c only passed the act
e. Judicial usurpation
f. Messed up the overall balance
F. Executive Privileges & Immunities
1. Executive Privilege = allows for people at that level of government to freely
think out loud without fear of being prosecuted
i. Limit on power of congress and courts to inquire into the President’s
thinking and processes
2. Limitation on executive privilege is criminal justice system; Trumped by
Judicial system – no one is above the law (US v. Nixon)
3. Presidential immunity – absolute but actions have to be by President while in
Presidency to be immune – does not immunize him from actions he did before
President (Clinton v. Jones)
Constitutional Law I
Kendall Exam Questions
4. Qualified Immunity – staffers have immunity as long as they are doing their
jobs and there is no animus; Judges, prosecutors, public defenders have
absolute immunity
Black, Frankfurter, Jackson, Vinson Decisions in Youngstown – Differences
Where in does the hypothetical in the exam fit into Jackson’s 3 categories?
Morrison v. Olsen
What textual provisions are relevant to the debate about whether the President’s power is
limited and why?
Chapter 7: Bill of Rights
A. Pre-Civil War
1. Amendments in Bill of Rights were NOT limitations on the powers of state
governments (Barron v. Mayor of City of Baltimore)
B. Post-Civil War
1. 13th Amendment – Abolishes slavery
i. Continuing problems of the “black codes” in many southern states
prompted the Civil Rights Act of 1866
2. 14th Amendment – Due process clause and preserves the rights of all citizens
under the Constitution w/in the states
i. Saenz Case - Privileges & Immunities Clause – protects the right of a citizen to
be treated as other citizens of a state if they decide to move there
a. Individuals have the right to choose the state where they reside, the
state cannot choose its citizens (cannot withhold state benefits from
new residents)
3. 15th Amendment – Prohibits racial discrimination in voting
C. Incorporation
1. Complete Incorporation (Justice Black - Duncan Case – LA refused demand for
a jury trial in a criminal case)
i. “fundamental fairness” = Due Process Clause of 14th Amendment (fairness =
due process)
ii. Black – entire bill of rights (first 8 amendments) is incorporated through the
14th Amendment and equally applicable as a limitation on the state
governments
2. Selective Incorporation (Justice Frankfurter – Saenz Case)
i. Only one thing that’s not incorporated – Grand jury indictment
provision of the 5th Amendment and, arguable, the “excessive bail”
provision of the 8th Amendment
3. No Incorporation (Justice Harlan - Duncan)
i. None of the bill of rights can be incorporated thru the 14th amendment
What are the 3 theories of incorporation?
What is the majority view? Name one provision in the bill of rights that is yet to be
incorporated onto the states (selective incorporation is right answer)
Where does the right to drive through, visit, and move to states come from?
- Right to drive thru = commerce clause (b/c you are in commerce) & Corfield
- Right to visit = Art 4 §2 Privileges and Immunities Clause & Corfield
Constitutional Law I
Kendall Exam Questions
- Right to move = 14th Amendment equal protection clause (Shapiro) and Privileges
and Immunities Clause (Saenz)
Chapter 10: State Action
A. Definition of State Action
1. General Considerations
i. Assume that if government did what was alleged, it would be
unconstitutional
ii. Civil Rights Cases – there must be state action, cannot regulate private
parties
2. Government/Public Function
i. Makes 14th Amendment restraints applicable to private conduct if such
conduct is primarily to benefit the public (Marsh v. AL: company owned town
streets = public function)
ii. Shopping Centers = public function (Shopping Center Cases)/Evans v.
Newton – malls are not public function
iii. Parks = public function (Evans v. Newton)
iv. Race & Voting/Elections = public function (White Primary Cases: exclusion of
blacks from Democratic primaries in Texas unconstitutional under 14th
Amendment)
3. State Involvement/Encouragement/Entanglement
i. Symbiotic relationship b/t state and private entity = entanglement & state
action - Parking Garage case (Burton v. Wilmington Parking Authority)
ii. Moose Lodge v. Irivs – state regulation  state action to warrant 14th
amendment protection
iii. Deshaney child beating case - state inaction does not ≠ state action
4. Judicial Involvement
i. Private contracts are not under the 14th Amendment but bringing action in
state courts to enforce a discriminatory contract is state action and comes
under meaning of the 14th amendment (Shelley v. Kraemer – property
covenants restricting property sale to blacks were constitutional but could
no be enforced by the courts)
B. 13th Amendment
1. Does not require state action
2. Congress has power to regulate private and public behavior in context of
racial discrimination (Jones v. Meyer)
3. 13th amendment enabling clause allows Congress to pass all laws necessary to
abolish all badges and incidents of slavery in the US
C. 14th Amendment
1. Gives Congress Power to legislate and enforce the amendment against any
state action – Civil Rights Cases
2. Most of 14th Amendment requires state action
3. §5 of 14th amendment opens door for government to regulate private behavior
that does not directly include state action
4. Due process = interests in life/liberty/property (Goldberg v. Kelly)
i. Expectation  property interest (Roth v. Board of Regents – expected
employment K to be renewed and it was not)
Constitutional Law I
Kendall Exam Questions
ii. Entitlement = property interest (Perry v. Sindermann – on tenure track so
was entitled to job)
5. Due process requires (Mathews v. Eldridge – balancing approach in context of
disability benefits)
i. Private interest that will be affected by the official action
ii. Risk of an erroneous deprivation of such interest thru procedures used
iii. Government’s interest
D. 15th Amendment
1. Requires state action
2. Lassiter v. Northhamption
i. SC said it was constitutional for a state to require literacy as a pre-condition
for voting
3. South Carolina v. Katzenbach
i. Interpreting the Voting Rights Act of 1965 – SC authorizes federal
government to approve voting conditions before state can impose them in
states where there is a history of racial discrimination in voting (overrides
state sovereignty) – Feds have review power over state voting laws
E. Preemptive Intervention by Congress
1. Katzenbach v. Morgan (NY defending election law requiring literacy test in
order to vote) – Preemptive strike power
i. Under §2 – Congress can take a preemptive, prophylactic strike to prevent or
outlaw behavior that might lead to violations of §1
ii. §5 of 15th and §2 of 13th give Congress this preemptive power
2. Two Requirements Congress must meet before taking Preemptive action (City
of Boerne v. Flores) under §5 of 14th Amendment
i. Congruent with the wrong to be addressed – moving in same direction
ii. Proportionate – the bigger the violation, more power Congress has
3. US v. Morrison
i. Statute must be corrective and remedial in nature to fit under §5 of 14th
amendment power – must be directed at any state law or state actor, not
private conduct
4. 6 other cases:
i. Lassiter v. Northampton County Election Board – Upheld NC’s literacy test as
prerequisite for voting b/c states reserve right to determine conditions
under which voting rights can be exercised
ii. SC v. Katzenbach – Sustains §5 of Voting Rights Act giving congress power
under §2 of 15th Amendment to suspend literacy tests for 5 years
iii. Oregon v. Mitchell – upheld age requirement of 18 for voting of the Voting
Rights Act Amendments of 1970 to apply to federal elections but not state
elections (Black)
iv. Rome v. US – considered the constitutionality of §5 of Voting Rights Act of
1965 – AG could approve a change in voting only if it does not have the
purpose/effect of discrimination based on race – Rome’s annexations of
territory would have discriminatory effect so AG rightly declined approval
v. Kimel v. Florida Board of Regents – Congress exceeded 14th amendment
remedial authority in allowing employees to sue states for violations of the
ADEA b/c it fails the congruence and proportionality test
Constitutional Law I
Kendall Exam Questions
vi. Board of Trustees of U of AL v. Garrett – Congress exceeded §5 enforcement
power in providing damages remedy against state employers for
discrimination based on the ADA
Boerne, Morrison, 6 other cases
What does “enforce by appropriate legislation” mean? (Preemptive strike power)
How does it enhance the powers of Congress (enhances power to adopt preventative,
prophylactic kinds of statutes they couldn’t adopt otherwise)
What are the limits? (Boerne v. Flores – congruent and proportionate)