Constitutional Law I
Prof. Vermeule
By Ryan Patrick Phair
I. History of Constitutional Law
The Articles of Confederation—adopted after the Revolution to ensure some unification of the states for common
foreign and domestic problems, but state sovereignty predominated. The national government did not power to tax
and regulate commerce. There was no executive or judiciary. No Bill of Rights. There were several problems with
the Articles of Confederation:
(1) Congress unable to raise revenue to perform necessary functions. Debt piling up.
(2) A need for an executive to provide energy and resolution in domestic and foreign affairs.
(3) Interstate jealousies, producing retaliatory trade measures and inhibited flow of interstate commerce, where
pride in one’s state outweighed pride in one’s country.
(4) Individual states did not live up to commercial and other treaties, such as treaty with Britain.
However, revisionist history argues that the Articles did not generate severe general problems. The problems were
faced primarily by commercial and mercantile interests who were adversely affected by the various states and who
needed national authority for protection against states that had not fully respected rights of private property and
contract. Jensen.
a. The Antifederalist Case
Antifederalist thought drew from classical republicanism, a theory of government supported by Montesquieu and
Rousseau. Republicanism relies on civic virtue—willingness of citizens to subordinate their private interests to the
general good. Self-rule entailed selecting the values that ought to control public and private life. Public discourse
was a critical feature. Active and frequent political participation. The model was the town meeting. Government’s
first task was to ensure flourishing of the necessary public spiritedness. Since only in small communities would it be
possible to find and develop unselfishness and devotion to the public good upon which freedom depends, they
favored decentralization. Homogeneity of the people’s manners, sentiments, and interests is also necessary. For this
reason, they wanted to avoid extreme disparities in wealth, education, and power. In short, they attacked the
Constitution on several grounds.
(1) The Constitution was inconsistent with the underlying principles of republicanism.
(2) The Constitution removed the people from the political process.
(3) The Constitution created a powerful and remote national government. Representatives were a necessary evil;
however, they feared rule by remote national leaders.
(4) The Constitution emphasized commerce because it gave rise to ambition and avarice and thus to the dissolution
of communal bonds.
b. The Federalist Response
The Federalist’s reformulated republicanism by attempting to synthesize elements of traditional republicanism with
an emerging theory that welcomed rather than feared heterogeneity, and that understood the reality that self-interest
would often be a motivating force for political actors. The Federalist Papers were prominent. Although Framer’s
intent may be hard to derive from this because they were intended as propaganda to sway the ambivalent.
Madison felt the primary problem of government is controlling factions, whereas antifederalists believed corruption
was the problem, for Madison, liberty caused factions. Thus, antifederalist reform efforts of education and virtue
inculcation would not work, which Madison believed history proved. In addition, because of a republic’s ability to
control faction through diversity of interests, differences and disagreement were indispensible to government. Also, a
large republic diminishes the dangers of undue attachment to local interests. Madison favored Senate and President
more than House, long lengths of service, large election districts. Finally, Madison opposed antifederalists “right to
instruct” representatives because reps were entrusted and able to see the public good. Bicameralism intended to
ensure that some representatives were isolated from people, while others worked closely with them.
The Federalist No. 10 Madison
1. A well-constructed union tends to break and control the dangers of factions.
2. A faction is a number of citizens, whether amounting to a majority or minority, who are united and actuated by
some common interest, adverse to the rights of other citizens and the permanent interests of the community.
3. Factions may be cured in two ways:
(a) Removing the causes. There are two methods of removing causes, none of which work.
(1) Destroying the liberty that is essential to its existence. However, this remedy is worse than the disease.
(2) Giving every citizen the same interests. However, this is impossible because diversity is natural. As a
result of this inherent diversity of interest, the most common cause of faction is unequal distribution of
property. Madison recognizes that enlightened statesmen will not always be at the helm to resolve the
clashes of diverse interests by ensuring the public good is served.
(b) Controlling the effects. Since the causes of faction can not be removed, controlling its effects is the only
solution.
1. If a minority faction, then the republican principle allows the majority to defeat it.
2. If a majority faction, then there are only two ways.
a) Prevent the existence of the same passion or interest in the majority at same time.
b) Render the majority unable to concert and propel schemes of oppression.
4. A democracy (small # of people who govern in person) can’t cure the mischiefs of faction.
5. A republic is different from a democracy in two ways.
(a) A republic delegates government to a small number of representatives, which filters interests through
representatives acting in the public good.
(b) A republic increases the number of people who can participate in government.
6. A large republic solves the problem of faction.
(a) With respect to the representative aspect of a republic, a large (rather than a small) republic cures the
problem of representative betrayal because there will be larger numbers of honorable representatives in the
large republic.
(b) With respect to the numbers aspect of a republic, a large republic cures the problem of representative
betrayal because more people voting makes it more difficult to deceive the people.
7. I concede that if you raise the number of representatives too much, you risk ignorance of local interests; if too
small, you risk ignorance of national interests. The Constitution, however, provides for both in that national
interests go to the national government, local interests go to the state government.
8. A large republic’s diversity of interests would reduce the risk that a common desire would be felt by sufficient
numbers of people to oppress minorities.
 Madison then set up a system of checks and balances to provide a check against both factionalism and selfinterested representation. A complex system of checks is set up: national representation, bicameralism, indirect
election, distribution of powers, and federalism all operate to counteract the inevitable factional spirit.
The Federalist No. 51 (1788) Madison
The check against consolidation or usurpation of power by a government branch is giving the other branches the
constitutional means and personal motives to resist encroachments by other branches. The defense must be made
commensurate with the danger of attack. Ambition must counteract ambition. The government must be set up in
such a way that it is obliged to control itself. The American federalist system provides a double security against
such dangers. The different governments (federal and state) will control each other, and at the same time, each will
be controlled by itself (through checks and balances). States jealousy of federal power provides incentive to
counteract national ambition.
 Judicial Review and Republicanism—Michelman argues that judicial review, in service of republican ends, provides
traces of democratic self-determination. Thus, republicanism cuts in favor of judicial activism. However, some
believe judicial restraint is consistent with republican thought because, if democratic self-determination is the end, a
powerful judiciary hardly seems to be the means.
 Pluralism and Republicanism—Sullivan argues that republicanism devalues social pluralism. In light of differences
between individuals and social groups, the idea of finding a single public good often seems naïve. “Painters know
that to mix the colors of the rainbow produce mud.”
 Public Choice Theory—Emerging political theory that examines the costs of mobilizing different groups to affect
the political process. Main idea is that it is harder to organize a majority than it is to organize a discrete subgroup.
Thus, Madison’s concern about majority factions may be unnecessary. See discussion infra.
The Constitution is a precommitment device (like Odysseus and the Sirens).
 The three traditional reasons for why we need a written constitution—prevent factionalism, create workable plan of
government, and controlling national institutions—does not explain why the Constitution must be written. A
precommitment device does. Since the framers knew that at some future time, people’s preferences may be irrational,
we precommit to avoid such irrationality.
 The Constitution precommits the people to two kinds of rules.
(1) Regulative—For example, 1st Amendment (no speech prohibition).
(2) Constitutive—enabling an activity by defining it, i.e. rules of baseball, Articles I, II, and III.
 Open Issues
(1) Problem of the Dead Hand—Odysseus is binding himself, the framers bound future generations. First, where do
the framers get off binding us now? Second, at a certain point, it becomes dangerous to follow precommitments,
i.e. Congress’s power to declare war may not be fast enough. Third, circumstances may change.
(2) Who Enforces Precommitments?—Judges, executive, people through elections, states, etc.?
(3) How Do You Interpret?—There are several methods of constitutional interpretation.
(a) Textualism
(b) Original Understanding
1) Original Intent
2) Original Meaning (Federalist papers, ratification debates to derive meaning)
(c) Judicial Precedent and Common Law Constitutional Interpretation—Strauss
(d) Structuralism—Inferences from the Constitution’s general structure, i.e. we can’t interpret the Commerce
clause to say Congress can regulate everything when there are limited powers.
(e) Prudence and Morality—The problem of the precommitment that now looks like a bad idea.
 Case Law—Before 1937, the Court emphasized precommitment theory. After 1937, the Court believed that the
Constitution is not a suicide pack. Since when you most want to slip your bonds, it may be when you really do want to
do that.
II. Marbury—The Supreme Court’s Power to Declare Acts of Congress Unconstitutional.
Note—Separation of Powers is purely an inference from the Articles I-III. The Massachusetts Constitution
expressly states a separation of powers principle, but the U.S. Constitution does not.
Marbury v. Madison (US 1803) Marshall
[23]
Adams appointed Marbury as a justice of the peace. The Federalist Senate confirmed the appointment on March 3,
1801. Before Marbury’s commision had been delivered, Jefferson, assuming officer several days later, told
Madison (Marshall’s replacement as SOS) not to deliver the commission. Marbury seeks a writ of mandamus. The
Court held that the Supreme Court is without power to direct the President to deliver Marbury’s commission
because the Judiciary Act’s mandamus remedy is unconstitutional.
1. Since the appointment had been made, Marbury had a right to the commission.
(a) The appointment is made when the commission has been signed by the President and the seal of the
Secretary of State had been fixed to it.
(b) In this case, Adams had signed and Marbury had affixed the seal, he just didn’t deliver it.
(c) The President may not remove Madison after the appointment because he then has a vested right in the
position.
(d) *** Note-Marshall could have ruled that delivery was required for validity, thus, disposing of the case.
2. The appointment conferred on Marbury a legal right to his office for five years.
3. The Court held that Marbury was afforded a remedy.
(a) If the U.S. is a government of laws, then there must be a remedy for violation of a vested legal right.
(b) Marshall distinguished between political acts, which are not reviewable by the courts, and acts specifically
required by law, which are reviewable.
(c) Refusal to deliver the commission is an act specifically required by law.
4. Mandamus would be a proper remedy.
(a) Marbury has no other remedy.
(b) The Secretary of State may be directed by law to do a certain act affecting the absolute rights of others.
5. However, the Court can not issue a writ of mandamus in this case.
(a) Although the Judiciary Act of 1789 allows such a writ of mandamus in the facts of this case, the Judiciary
Act of 1789 was unconstitutional so far as the mandamus provision because Article III, §2 grants the
Supreme Court original jurisdiction (as opposed to appellate jurisdiction) only in cases affecting
ambassadors, other public ministers and consuls, and those in which a state is a party. This conclusion is
based on plain meaning of the statute. Affirmative words are negatives of other objects than those affirmed.
(b) According to the text, the Supreme Court would have appellate jurisdiction; however, appellate jurisdiction
corrects the proceedings in a cause already instituted. In this case, there is no case already instituted.
Indeed, mandamus must be original because it creates the cause of action.
6. If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the
Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it.
(a) The Constitution is the supreme law of the land.
(1) It would do no use setting limitations on government if they could be exceeded at will. The very
purpose of a written constitution implies is to establish a fundamental and paramount law. Counter—
Nirvana Fallacy—comparing real world alternative with a fantasy alternative.
(2) Thus, any law repugnant to the Constitution is void.
(b) The Judiciary is obligated to say what the law is.
(1) The organ that applies the law must necessarily interpret the law.
(2) If two laws are in conflict, the Court must decide which is right.
(3) The Constitution is the supreme law of the land.
(4) Thus, the Judiciary has power to declare acts of Congress unconstitutional.
(5) To deny the Supreme Court’s power of judicial review would be to say that the Court must close its
eyes to the Constitution, and see only law. This would subvert the very purpose of all written
constitutions.
(c) Since the judicial power is extended to cases “arisng under” the Constitution, it would be absurd to suggest
that the framers desired a case arising under the Constitution to be decided without reference to it.
(d) The fact that judges take an oath to support it implies that they must decide cases according to the
Constitution.
(e) The Supremacy clause states the Constitution is the supreme law of the land, not acts of Congress.
 Marbury’s Critics—There are several possible criticicisms of Marbury.
(1) The categories of original and mutual jurisdiction are not mutually exclusive. The Constitution sets up a
provisional allocation, which Congress may alter. The alteration power is recognized in the Exceptions
clause. Therefore, it is constitutional for Congress to grant to the Court original jurisdiction over cases over
which it had appellate jurisdiction under the Constitutin’s provisional allocation.
(2) The Constitution defines an irreducible minimum of original jurisdiction, but permits Congress to expand
original jurisdiction if it so chooses. Note that Marbury’s reasoning has been rejected insofar as it suggests
that Congress may not give lower courts jurisdiction over cases falling within the original jurisdiction of the
Supreme Court. Illinois v. Milwaukee (1972).
(3) Look at Emanuel’s and Tribe for others.
David Currie has said that judicial review was nothing new. However, two cases he relied upon Ware and Cooper
involved a federal law-state law conflict under the Supremacy clause, not an Act of Congress-Constitution conflict.
Thus, it may yet still have been new question.
Some criticize the inference argument. Marshall’s argument that judicial review is inferred from the fact of a written
constitution is criticized because many countries have had written constitutions without having judicial review. Van
Alstyne. However, Currie argues that the framers were smart people who surely wouldn’t have put the fox as the
guardian of the henhouse. Tribe’s argument.
 Some criticize the supremacy clause argument. They claim that it never says who determines whether any given
law is in fact repugnant to the Constitution. Marshall never asks this question. His question was whether a law
repugnant to the Constitution binds the courts.
 Some criticize the “arising under” argument. Bickel argues that there could be cases where the court would be
required to pass on questions arising under the Constitution that do not involve legislative or executive acts, such as
military, judicial, administrative acts. Thus, Marshall’s reading is possible, but optional. Currie also criticizes this
argument by saying that the arising under clause is merely a jurisdictional provision, it need not be taken to dictate
when the Constitution must be given precedence over other laws.
 Some criticize the “judge’s oath” argument. Eakin v. Raub (PA 1825) held that an oath to support the Constitution
is not peculiar to judges. It is meant as a test of one’s political principles. One must support the Constitution only as
far as that may be involved in one’s official duty. Thus, we are left again with the question of whether judicial review
is a judge’s duty.
 Some structural supporters hold that the various arguments are more forceful in combination than they appear when
separated.
 According to Bickel, the Framer’s did indeed contemplate judicial review.
The Federalist No. 78 Hamilton
Through judicial review, courts vindicate the will of the people (as expressed in the Constitution) against the will of
mere representatives. Hamilton is thus attempting to overcome the claim that judicial review is undemocratic.
(Countermajoritarian difficulty?)
III.
Judicial Activism vs. Judicial Restraint (Natural Law Debates)
Although modern courts do not talk about natural law, this has not always been the case.
Calder v. Bull (US 1798)
The CT legislature ordered a new trial in a will contest, setting aside a judicial decree. The Court unanimously held
that the legislature’s action did not violate the Ex Post Facto clause. Although Justice Chase and Iredell agreed on
the ex post facto issue, they disagreed over the appropriate role of natural law.
Chase—The people enacted the Constitution for certain reasons set out in the preamble. People enter into society
for certain purposes, and it is these purposes that determine the nature and terms of the social compact. A
legislative act, contrary to the social compact, is void. The general principles of reason and justice presume that the
people did not entrust a legislature with the power to act contrary to natural law. Thus, Chase upheld the CT’s
legislature’s action because it impaired no vested right and therefore was consistent with natural justice.
Iredell—A legislative act against natural justice is not void. Courts should not consider natural law for several
reasons.
(1) Indeterminacy—Judges would be regulated by no fixed standard, creating indeterminacy (some argue all law
is indeterminate).
(2) Ascertainment Difficulty—Purest men have differed on the subject.
(3) Adoption of a Written Constitution is Inconsistent with Natural Law—The American government and people
have defined with precision the objects of the legislative power and restrained its exercise within marked and
settled boundaries. Only if a legislative act violates this principle is it void.
 Sherry and Grey assert that the framers intended a natural law supplement to constitutional restraints.
 The desirability of natural law’s application has been debated. Some argue that recognition of natural law
principles is an indispensible protection against the potential injustice of majoritarian government. However, some
others argue that this would be intolerable in light of the basic constitutional commitment to electoral control of
elected officials.
 Perry argues that electorally accountable policymaking institutions are not suited to deal with the notion that
society may morally evolve. When confronted with such moral issues, the representatives reflexively refer to the
established moral conventions of the greater part of their constituencies. Thus, they preclude opportunities for
moral reevaluation and growth. Yet, this view may depend on a skeptical view of the political process as consisting
of no more than mechanical reflection of constituent pressures.
 Perry’s critics:
(1)
(2)
(3)
Whether or not representatives respond mechanically to political pressure is debatable. Thus, cutting
against Perry’s view, Maass suggests Congress often engages in some form of deliberation about what the
public good requires.
Some criticize Perry’s view because, like Justice Chase’s view, it requires the existence of right answers;
thus, it rejects moral skepticism.
Learned Hand also criticized the view citing the naivete of trusting nine Platonic guardians. Who would
chose them? He says natural law is fatal to democracy—natural law is vested in the people which delegate
to legislature so we don’t want courts to enforce against decisions made by the people.
IV. The Counter-Majoritarian Difficulty and Constitutional Interpretation
The Countermajoritarian difficulty is the tension between the basic principle that the Constitution reposes sovereign
authority in the people, who elect their representatives, and the competing principle that, in interpreting the
Constitution under the doctrine of judicial review, the courts have final say over the political process. There are
several issues involving the countermajoritarian difficulty.
(1) Mechanical Interpretation—Some suggest that the tension would be eliminated if judicial review were simply a
mechanical process of whether an Act of Congress violated the Constitution. IN such circumstances, judges
would not be imposing their own judgments about basic values, but would instead be forcing legislatures to
conform to earlier choices made by the people. The Court stated this view in U.S. v. Butler (1936). If Butler is
correct, would judges be the best people to do such mechancial interpretation? One view says judicial
insulation allows them to be impartial.
(2) Problem of the Dead Hand—Even if mechanical interpretation is the correct role, why should people be bound
to the will of dead people? Also, as Ackerman suggest, there may not be a countermajoritarian difficulty, but
an intemporal difficult since the Constitution was enacted by an ancient set of majorities.
(3) Constitutional Politics—Ackerman argues that constitutional provisions are adopted in times of appeals to the
common good, ratified by a mobilized mass of Americans expressing their assent through extraordinary
institutional forms. Judicial review protects constitutional politics from the ignorance and apathy of normal
politics. However, Brest criticizes this notion because he believes the framers also thought in terms of the
short-term and because he believes that people will become enlightened visionaries at the invocation of the
word “Constitutional.”
(4) Loss of Principle—Thayer has suggested that aggressive constitutional review by the courts has harmful
consequences for normal politics because people lose moral responsibility when they rely on the courts to
make the judgments for them. Thus, questions of principle are removed from the judicial process.
Discretionary Character of Interpretation—The discretional character of interpretation creates a counter-majoritarian
difficulty. Most concerns about judicial review focus on this concern. The Constitution is ambiguous, and the judges
have wide discretion. Thus, it becomes of central importance to find a method of constitutional interpretation that
responds to this difficulty. There are several candidates.
(a) Original Meaning, Understanding, or Intent of Framers—Original understanding disciplines judges and
diminishes the democratic problems posed by judicial review. Scalia/Thomas. However, there are several
difficulties.
1) Whose Understanding? Three problems related to how you handle {1} Drafters of the Constitution or the
state ratifiers, {b}Situations where framers disagreed, {3] framer’s silence as to a particular question.
Thus, some might emphasize original meaning as opposed to subjective original intent. Scalia argues that
these problems are real, but no more than other approaches to constitutional law.
2) Specific vs. General. Given the ambiguity of constitutional language, a judge must choose between a
particular conception fixed for all time or a general conception to be filled in over time. Equal protectionjust blacks, or other groups as well? Thus, it becomes necessary to ask whether a provision establishes
specific conceptions or general concepts. There are several views.
a) The problem of interpretive intent. From Constitutional text, it often seems plausible that the framers
intended to delegate to future people the power to make decisions about what the provision means in
particular circumstances. Dworkin says that if the general conception is chosen as original intention,
then judges must make substantive decisions of political morality in service of judgments made by the
framers. There are several views of how one decides whether specific or general.
1) Constitutional language is the best evidence, and most of the important provisions read as general
concepts.
(b)
(c)
(d)
(e)
(f)
(g)
2) Since if courts were empowered to wield general concepts, there would be judicial tyranny, the
framers did not intend for general concepts.
3) It’s highly unlikely to identify a valid interpretive intention on the part of the framers. There
were both general concepts and particular conceptions. The framers thus can not be understood
to have a position on interpretive intent.
b) Independent justification. Even if the framers intended to set forth particular conceptions, not
concepts, one would still have to show that their intention on that matter is binding. One might
believe that the constitutional text binds future decisionmakers, but they may decide how the
document should be interpreted. Dworkin thus believes that a decision to rely on the interpretive
intent of the framers must be independently justified.
c) Changed circumstances. Easterbrook believes that courts must uphold all measures that the framers
did not meant to invalidate, since without a decision by the framers, the judges will be unable to trace
judicial outcomes to decision made by others. However, others argue that intent cannot be
mechanically transported to a new setting; to be faithful to it, one has to engage in a difficult and
discretionary task of translation-seeing what the instructions mean in new circumstances.
Constitutional Text—Constitutional text is binding on courts. A judge would look to other constitutional
provisions that use the same words or the whole text. Also, may look to originalist sources to figure out what
the words mean. Schauer points out that there are easy textual cases. Reagan can’t run for a 3rd term, a 29year old can not be President. However, Perry argues that just about any choice the Supreme Court makes can
be within the bounds of acceptable canons of judicial behavior, even in conjunction with the constitutional text.
Tradition; Precedent—Sometimes the scope of a provision is determined in part by reference to tradition and
the Court’s own precedents. Under this approach, constitutional law operates as a form of common law,
developing over time, but constrained by the past. Strauss. However, some argue that tradition should only be
binding if one has a generally favorable view of toward the tradition. Vermeule notes that legislatures can
sometimes make precedent, i.e. if a legislature repeals a statute.
Prevailing Morality or Social Consensus “Current Values”—An open-ended constitutional provision might be
given content by referring to prevailing morality or some form of consensus. However, two problems. First, it
is not clear that judges can better register the social consensus than legislators. Second, since the Constitution
and Bill of Rights is shield against social consensus, it is inconsistent or odd to suggest that its content derives
from that consensus.
Conceptions of Justice; Principle—Courts, scholarly and insulated, set out principles, whereas legislators make
policy. Dworkin believes that the American system is not purely majoritarian. Judicial review is check on
what the democratic process can do. The judges are well-suited for this enterprise of setting out principle.
However, Brest points out that judges are old white males who do not represent true democracy. Thus, the fact
that judges make principles is skewed and undemocratic.
Commensurability—As Fallon and Sunstein recognize, most judges attempt to reconcile all these theories that
often seem in conflict. Judges are aware of the impossibility of converging on a single theory of interpretation.
Structuralism—Institutional arrangements. McCulloch.
Blackstone’s Rules of Interpretation
??
 Why is the Constitution binding?
(1) The Constitution is binding because it arose out of a process in which we the people agreed to it. However,
those people are now dead, consisted of small # of ratifiers, and excluded groups of people.
(2) The Constitution is binding because the Constitution is a good one.
(3) The Constitution is binding because it is enabling rather than restraining to treat it that way. If the Constitution
were not binding, chaos would ensue.
 Countermajoritarian Difficulty Escape Routes—Some suggest that, in reality, there is no difficulty, since the role of
the Court is to promote, rather than undermine, democracy, properly understood. Thus, they argue that there is no
countermajoritarian difficulty. This conclusion is buttressed by the fact that the so-called democratic process is filled
with democratic infirmities, such as disparities in wealth, race, gender, etc. There are several forms.
(1) The judicial effort to impose constitutional constraints on the political process promotes democracy, since those
constraints were adopted by the people in a time of heightened deomcratic awareness and therefore occupy a
superior status to the decisions of temporary majorities. Ackerman, Madison’s Federalist No. 78, Marbury.
(2) The role of the courts is to protect certain rights indispensible to politics and certain groups that are unable to
fully participate in politics. This inability justifies judicial review as it brings about better democracy. Free
speech,voting. McCulloch. Ely.
(3) The role of the Court is to improve democracy, but not only by protecting the opportunity of traditionally
disadvantaged groups to participate or be represented. On this view, the Court might attempt to ensure that
legislation is not a response to factional pressures.
V. The Supreme Court’s Authority over State Court Decisions
Holmes said the Union would not come to an end if no Marbury power, but it would surely come to an end if no Martin
power.
Martin v. Hunter’s Lessee (US 1816) Story
Hunter claimed ownership of a piece of VA land pursuant to a grant from the state of Virginia in 1789, which had
confiscated lands owned by British subjects. Martin, a British subject, claimed that the attempted confiscation was
ineffective under anticonfiscation clauses of treaties between the United States and England. The Virginia Court of
Appeals was overruled by the U.S. Supreme Court. On remand to enter judgment, they said the U.S. Supreme
Court had no right to review whatever conclusion the state court reached because the Judiciary Act provision giving
such jurisdiction to the Court was unconstitutional. The Supreme Court held that it could indeed review the
constitutionality of a decision by a state’s highest court.
1. The text of the Constitution does not limit the Supreme Court’s appellate power to any particular courts.
(a) Art. III, §2 says the judicial power shall extend to all cases; thus, it is the case, not the court, which gives
jurisdiction.
(b) Art. III, § 3 says that, in all other cases (besides original jurisdiction cases), the Supreme Court shall have
appellate jurisdiction.
(c) If some cases may be entertained by state courts (a), and no appellate jurisdiction exists, then the appellate
power would not extend to all, but to some, cases.
(d) Therefore, Virginia’s argument that it can decide cases, but that there is no appellate jurisdiction, is
contradicted by the text of the Constitution.
2. The Supremacy clause indicates that the Framers did intend for state courts to be able to hear cases involving
the U.S. Constitution otherwise there would be no need for supremacy.
3. Since the federal judicial power extends to state courts, it must extend by appellate jurisdiction because a state
court already would have original jurisdiction.
4. The Court rejects the state sovereignty argument.
(a) The Constitution took some of the state’s sovereignty away.
(b) The Court may revise legislative and executive proceedings if they are contrary to the Constitution.
(c) Thus, since exerting such power of the judiciary is not a more dangerous act, the Court may revise judicial
proceedings.
5. The Court rejects the argument that Supreme Court review would impair the independence of state judges.
(a) State court judges are part of a federalism system; thus, they are not independent.
6. The Court rejects the argument that the Supreme Court will abuse the revising power.
(a) It is always a bad argument to argue against use on the basis of danger of abuse.
(b) Wherever the decision of last resort is, state or federal, it will equally be susceptible to abuse.
7. The Court rejects the arguments that nothing bad will happen if state court judges are left to decide as the court
of last resort because they have sworn an oath to the Constitution.
(a) The Constitution made this decision, i.e. the people made it.
(b) The Constitution presumed that state interests, jealousies, and prejudices may obstruct of the administration
of justice.
(c) The Constitution enumerates federal cases because they are more important, touching on the safety, peace,
and sovereignty of the nation.
8. In interpreting the Constitution, there is a need for uniformity of decisions throughout the nation.
(a) If no uniformity, the laws would mean different things in different states.
(b) The framers could not have intended this result.
9. Since the plaintiff may always elect state court, the defendant would not be able to try his rights in federal court,
which contradicts the theory of equal rights to the judicial power.
 There are two additional justifications.
(1) Maybe state judges will be less likely to react sympathetically to federal claims-either because they lack tenure
and salary protections of Article III, and are thus more susceptible to political influence, or because of a natural
alliance with state government (similar to industry capture).
(2) Maybe federal judges have more expertise in dealing with federal law.
 In response to Justice Story’s uniformity argument, why is it necessary to have uniformity of federal law? Laws
vary from state to state, why not have disparate interpretations of the Constitution?
Cohens v. Virginia (US 1821) Marshall
The Court extended and reaffirmed Martin in the context of state criminal proceedings. The state of Virginia
convicted Ds for unlawful sale of lottery tickets. Ds defense was that an Act of Congress authorized the local
government of the District of Columbia to establish a lottery. The Court concluded that the congressional statute
did not authorize the sale outside the territorial boundaries of D.C. The importance of the case lies in the holding
that the Supreme Court has jurisdiction over state criminal cases and in cases where the state is a party. Marshall
held as to the latter that the federal judicial power extends to all cases, whoever may be the party. Article III’s
language referred to “all” federal question cases.
 Some question may remain as to whether the judiciary exclusively interprets the Constitution.
Cooper v. Aaron (US 1958)
Arkansas had failed to comply with a district court order requiring desegregation. The Court held once again that
federal law is the supreme law of the land, and Article VI makes it binding on the states “any thing in the state
constitutions to the contrary nowithstanding.” Every state government officer is solemnly committed to the oath
taken pursuant to Article VI, §3 “to support this Constitution.” Some have suggested that this goes beyond
Marbury in establishing a special judicial authority in interpreting the Constitution.
Since the Constitution imposes on all branches of government, not just the courts, a duty to comply with the
Constitution, a necessary inference is that executive and legislative officials must make their own judgment on
constitutional issues. Some argue that since moral issues frequently become constitutional issues, if the court’s
duty is exclusive, then politics becomes drained of morality, and political actors will make decisions based on
expediency alone.
 Thayer’s Rule—Courts should strike down statutes only when the legislature has made clear mistake—so cleat
that it is not open to rational question. This rule recognizes three thrings.
(1) Many things will seem unconstitutional to one man which will not seem so to another.
(2) There is a range of choice and judgment.
(3) Whatever choice is rational is constitutional.
Thayer also believes that judicial review lessens moral responsibility of legislatures.
 Underenforced Constitutional Norms—The Constitution might invalidate official action, even if the Supreme
Court declines to so hold. The Court might decide out of deference or some other reason that some measure does
not violate the Constitution, but such a holding might not bind other officials in the process of deciding whether a
proposed course of action is constitutional, since those officials are not constrained by principles of deferrrence.
Thus, there is an obligation to obey underenforced constitutional law on the part of government officials, which
requires them to fashion their own conceptions of these norms and measure their conduct by reference to these
conceptions.
C. The Sources of Judicial Decisions: Text, Representation-Reinforcement, and Natural Law
There are three possible sources of constitutional law: text, natural law, and reinforcement or improvement of
democratic processes. Roe is natural law and representation-reinforcement.
McCulloch v. Maryland (US 1819) Marshall
John James brings an action for himself and the state of Maryland against James McCulloch, cashier of a bank of
the United States, alleging that McCulloch had failed to pay a state tax assessed against the bank. The Supreme
Court held that the Bank of the United States was constitutional; thus, since the tax interfered with a valid federal
activity, the tax was unconstitutional.
1. An exposition of the Constitution, deliberately established by the legislature, on the faith of which an immense
property has been advanced, which amounts to a historical practice, ought not to be lightly disregarded. The is
such a case.
2. However, the following observation does not settle the constitutionality of the question.
3. The Constitution sets up a government of the people, not of states. Its power emantes from the people.
(a) Although the Convention which framed the Constitution was elected by the state legislatures, the people, not
the states, were the ratifies of the Constitution; thus, the people give the Constitution its authority.
(b) Although the people may have ratified in the form of states, the lines of state are natural divisions that are
more expedient than anything else.
(c) The Constitution’s preamble states that the government is “ordained and established” in the name of the
people.
(d) During ratification, state governments could not negate the votes of the people.
(e) Thus, the Court rejects Maryland’s argument that the Constitution emanates from the states, not the people.
4. The Constitution sets up a government of enumerated powers. The government can only exercise those powers
granted to it.
5. The government is supreme within its own sphere of action.
(a) The government is one of alls-it representes all, its powers are delegated by all, and it acts for all.
(b) The government, on those subjects which it can act, must be able to bind its component parts (the states).
(c) The Constitution’s Supremacy clause says it is the supreme law of the land.
(d) State legislators, executives, and judicial officers must take oath to support the Constitution.
6. Among the enumerated powers, there is no express power to establish a bank or create a corporation.
7. The Constitution contemplates the existence of implied powers.
(a) The Articles of Confederation expressly excluded incidental and implied powers. The Constitution does not.
Therefore, the framers intended for implied powers to be exercised.
(b) In reserving nondelegated rights to the states, the 10 th Amendment omitted the word “expressly;” thus, the
10th Amendment framers contemplated the existence of implied powers, especially considering the
embarrassments of the Articles of Confederation.
(c) The nature of a Constitution requires it to be a general outline.
(d) The people would not understand a Constitution that partakes the prolixity of a legal code.
(e) If the government could exercise only express powers, why would Art. I, §9 puts limitations on things not
made express. Thus, Art. I, §9 indicates an understanding that the Constitution is a general outline.
(f) “It is a Constitution we are expounding!”
8. In exercising the enumerated powers, the government is entrusted with ample means to execute them.
(a) It would be illogical to say that the framers delegated enumerated powers to the federal government in the
public good, yet impeded them from achieving that good by withholding a choice of means.
9. Since the Constitution’s included the necessary and proper clause, Congress does not have unlimited discretion
in executing the enumerated powers.
10. The Court rejects Maryland’s construction of the necessary and proper clause, which argues that the word
“necessary” means that Congress may only pass laws that are indispensible to carrying out the enumerated
powers. This argument excludes Congressional discretion from the choice of means and allows them to pass
only the necessary law which is most direct and simple. (Marshall relies mostly on perceived harmful
consequences for American government of a contrary construction, as opposed to text and history.)
(a) To employ the means necessary to an end is generally understood as employing any means calculated to
produce that end, not as the single means without which the end would be entirely unattainable.
(b) Just construction requires excessive words to be understood in a more mitigated sense-in that sense which
common usage justifies.
(c) “Necessary” has many meanings depending on context.
(d) Whereas Art. I, §10’s “absolutely necessary for executing its inspection laws” uses the qualifier “absolutely”
and the necessary and proper clause does not, the framers were cognizant of different meanings of
“necessary” and yet declined to include a restrictive qualifier in the necessary and proper clause.
(e) Narrow constructions are contrary to the idea of a Constitution established for generations to come and its
consequent need to be flexible to adapt to the various crises of human affairs.
(f) To adopt such a limiting construction would deprive future legislators of the benefit of experience.
(g) Punishment is not an enumerated power. Yet, it is expressly given in cases of counterfeiting and piracy, but
nowhere else. Thus, an inference would arise that the framers did not intend to allow punishment for other
activities. However, all agree that Congress may punish any violation of the laws.
(h) Congress may establish post offices and post roads, which are decidedly singular acts. However, it has been
inferred the power and duty to carry mail and to punish mail theft. Yet, these are not indispensable.
(i) In the absence of the clause, Congress would have discretion over the choice of means. However, a
restrictive construction would destroy this power to select the means. Thus, the framers could not have
meant such a construction.
(j) The framers also could not have meant such a narrow construction for two reasons.
a) The clause is placed among the powers of Congress, not the limitations.
b) Its terms purport to enlarge, not to diminish the powers vested in government. It purports to be an
additional power.
(k) Consequentialist. A sound construction must allow discretion for the Congress to be able to carry out its
high duties.
(l) Marshall’s understanding of congressional limitation. “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 constitution, are constitutional.”
11. The creation of the U.S. Bank is a necessary and proper act pursuant to fiscal operations power (which
constitutional provision?) (Hamilton argues powers of collecting taxes, borrowing money, regulating trade
between the states, and raising, supporting, and maintaining armies and navies). (David Currie says it is
striking that Marshall made no serious effort)
(a) If a corporation can be created, so can a bank.
(b) History and legislation attests the universal conviction of the utility of a bank.
12. The state of Maryland may not tax the Bank of the United States.
(a) The Constitution is the supreme law of the land.
(b) A simple corrollary:
(1) The power to create (a bank) implies the power to preserve.
(2) The power to destroy (a bank), if wielded by a different hand, is hostile to and incompatibly with the
power to create and preserve.
(3) When this repugnancy exists, the supreme authority must control.
(4) A state power to tax the Bank of the United States destroys it; thus, the Constitution controls.
(c) The nature of supremacy is to remove all obstacles to its actions within its own sphere. Thus, subordinate
government’s powers must be modified.
(d) Representation-reinforcement—Marshall finds an implicit prohibition on state taxation of the national bank.
He inquires not into text and history, but the operations of representative government. He claims that the
power to elect representatives will act as a safeguard against the abuse of political power by elected officials.
The judicial role is defined by reference to the understanding that the political process itself will ensure
against improper conduct. Marshall also indicates that the ordinary presumption disappears when a state
imposes a tax on a national instrumentality because the state is harming people who are not represented in
the state legislature. Judicial intervention is justified in order to make up for the absence of political
remedies for those burdened by legislative action. Thus, McCulloch is foundation for the notion of
representation-reinforcement, the central idea being that the judicial role is to make up for defects in the
ordinary operation of representative government; the source of judicial decision is the breakdown in political
processes.
 Constitution expounding question is controversial. Frankfurter thinks it is single most important utterance in con
law. However, he also said, precisely because it is a constitution we are expounding, we should not take liberties with
it. Tidewater dissent. Moreover, Kurland argues that whenever a judge quotes this phrase, you can be sure it is
ignoring text, history, and structure in reaching its conclusion.
 A constitution may be different from a statute in the sense that a constituion must be broad, whereas a statute need
not be (although it probably does? Agencies).
 There are several views of Marshall’s position.
(1) The power-granting provisions of the Constitution should be broadly construed. Those provisions are meant to
endure over time. Flexible interpretation assists when unforeseen problems arise. But this does not mean that
courts may strike down legislation based on changed circumstances.
(2) All Constitutional provisions should be broadly construed. Constitutions simpy do not contain specific
answers to questions all the time.
(3) Constitutional meaning changes with changing circumstances, in accordance with changing social norms and
needs. Judges need not adhere to specific framer’s intent, but must interpret document flexibly in light of
contemporary necessities.
 McCulloch v. Marbury—One view says that —One view says that Marbury rested on perception that interpretation
process was mechanical. That understanding was the ground on which judicial review was built. In McCulloch, a
difference arises, judges are recognized as having considerable discretion.
 Hamilton and Madison disagreed over the constitutionality of the Bank of the U.S.
 Black, pointing to Marshall’s use of structures and relationships, says this approach is preferable. Text binds judges
even if it doesn’t make sense. Structuralism lets us consider practicalities and proprieties of things. We get to deal with
policy not grammar.
II.
Limits on Judicial Power
Article III, §2’s “case of controversy” requirement forbids courts from invalidating legislative or executive action
merely because it is unconstitutional. The courts may only rule in the context of a constitutional case. Such a rule
serves several purposes.
(1) Judicial Restraint—By limiting the occasions for judicial intervention into legislative and executive processes,
the case or controversy requirement reduces the friction between the branches produced by judicial review. This
rationale is often tied to a concern with the countermajoritarian difficulty.
(2) Ensures Concrete Disputes—The requirement ensures that constitutional issues will only be resolved in the
context of concrete disputes rather than in response to problems that may be hypothetical, abstract, or
speculative.
(3) Promotion of Individual Autonomy—The requirement promotes the ends of individual autonomy and selfdetermination by ensuring that constitutional decisions are rendered at the behest of those actually injured rather
than at the behest of bystanders attempting to disrupt mutually advantageous accomodations or to impose thier
own views of public policy on government. This rationale is sometimes accompanied by a suggestion that the
requirement ensures real adversity between the parties and thus ensure against collusive litigation. However,
sometimes a law suit will not result because of ignorance, poverty, or alienation rather than from satisfaction
with the status quo.
Bickel’s ‘The Least Dangerous Branch’ (1965)
The case or controversy requirement accomplishes two things. (1) It functions as a national second thought.
After the legislature passes the law, a court can see how it plays out in consequence and reconcile any
unforeseen problems. (2) It creates a time lag between legislation and adjudication so as to cushion the clash
between the Court and any given legislative majority. Furthermore, Bickel believes that the “passive virtues” of
inaction operate as a necessary means of mediating between the two competing ideas at work in U.S.
government: electoral accountability and governance according to principle. The “passive virtues’ operate to
ensure that the latter idea does not swallow up the former, by permitting the Court to defer to the political
process without resolving the issue either way.
Gunther’s ‘The Subtle Vices of the Passive Virtues’
Objects that an unprincipled approach to justiciability issues is unacceptable and will ultimately undermine the
Court’s role.
 The justiciability doctrine is rooted in 20th century attempts by Frankfurter and Brandeis seeking to immunize
progressive government and administrative agencies from judicial review. The Framer’s did not establish it.
1.
Advisory Opinions
Under President Washington, the Supreme Court said that it was unconstitutional to issue advisory opinions. The
Supreme Court cited separation of powers and its special role as a court of last resort as reasons for forbidding
advisory opinions. The executive power to call on heads of departments for opinions (Opinions and Writing Clause)
is limited to the executive branch. Some other people suggest that an advisory body would end up having close
collegial relations with those to whom they gave advice undermining independence of the judiciary.
Two kinds of advisory opinions.
(1) Binding—Framers rejected Council of Revision, which could veto legislation on constitutional grounds.
(2) Advice—Truman and Vinson’s poker games.
 Some of the advantages of the advisory opinion idea is furnished by the declaratory judgment procedure. Also, the
Office of Legal Counsel of the DOJ has assumed advice-giving role for executive.
2.
Standing
Legal Right Model—An Article III “case” requires that a case involve a legal right. To make a case between A and
B, A has to have a legal right against B, and apply to court for redress. There is little difference between standing and
winning on the merits. The bite of this whole model is in cases where there is no extralegal harm, i.e. Lujan.
Particularized Injury Model—A concrete injury is a necessary and sufficient condition for a law suit. The bite of
this model is that it says that some legal rights do not confer standing. Modern standing model.
Association of Data Processing Services Organization v. Camp (US 1970)
In this case, the Court boldly altered previous law by abandoning the legal injury test altogether for the injuryin-fact test. Several things are notable.
(1) The decision purported to be an interpretation of the Administrative Procedure Act, not of Article III; the
injury-in-fact test was said to be a part of the APA.
(2) The Court clearly intended to broaden standing doctrine, emphasizing that the injury-in-fact requirement is
relatively lenient. According to the Court, it may include a wide variety of economic, aesthetic,
environmental, or other harms.
(3) The consequence of this case is that beneficiaries of government regulation, not merely those trying to
fend off government action, have standing to sue.
a. Constitutional and Prudential Limits—The Court has broken down standing limitations into constitutional
and prudential limits. A Court can raise this issue sua sponte.
Valley Forge Christian College v. Americans United (US 1982)
1. The Article III limitation requires the party who invokes the court’s authority to show three things.
(a) He has personally suffered some actual or threatened injury as a result of the putatively illegal conduct of
the defendant.
(b) The injury can be fairly traced to the challenged action.
(c) The injury is likely to be redressed by a favorable decision.
2. Beyond these constitutional requirements, the federal courts have also crafted three prudential limitations.
(a) The plaintiff generally must assert his own legal rights and interests and cannot rest his claim to relief on
the legal rights or interest on 3rd parties. Only difficulty is when you have parties that stand in some
parental or professional relationship to some party.
(b) Even when the plaintiff has alleged redressable injury sufficient to meet Article III’s requirement, the
Court refrains from adjudicating abstract questions of wide public significance which amount to
generalized grievances, pervasively shared and most appropriately addressed in Congress.
(c) The plaintiff’s complaint must fall within the zone of interests to be protected or regulated by the statute or
constitutional guarantee in question.
b. Underlying Concerns
There are several function served by standing doctrine.
(1) It ensures that courts will decide cases that are concrete rather than abstract or hypothetical.
(2) It promotes judicial restraint by limiting the occasions for judicial involvement in the political process. This
rationale may be criticized as an arbitrary means of accomplishing judicial restraint, but the fact that injuries
to citizens at large are not cognizable judicially, but only politically, responds to such criticism.
(3) It ensures that decisions will be made at the behest of those directly affected rather than on behalf of
outsiders with a purely ideological interest in the controversy. This factor will promote vigorous advocacy.
Two problems: (1) Sometimes those directly affect will fail to sue for reasons other than the contentment
with the status quo. (2) A theory is needed to decide who is “directly affected” and who is an “outsider.”
(4) It is an important part of the separation of powers system by ensuring that courts will not hear cases simply
because they want to. Instead, by requiring a concrete stake, it gives the executive and legislative branches
breathing room.
c. Doctrinal Components
1. Injury in Fact—The injury-in-fact requirement evolved over a long period of time. The roots of modern
standing law, however, can be traced to the following case. Sierra Club, Lyons. How do we define the injury?
Cass Sunstein wants to put it in terms of common law baselines, such as property interest, etc. Millian thesis
says that only things that count as harms are tangible harms. The bare knowledge of harm is not harm.
(Inconsistent with tort system’s emotional distress—indeterminacy).
Sierra Club v. Morton (US 1972)
The Sierra Club alleged that it had a special interest in the conservation and sound maintenance of national
parks by which it could challenge construction of a recreation area in a national forest. In their view, the
construction would have violated federal law. The Court denied standing saying that the fact that an aesthetic,
conservational, or recreational harm would be sufficient did not mean that the Court would abandon the
requirement that the party seeking judicial review must have himself suffered an injury. The Sierra Club failed
to allege that it or its members used the site in question.
United States v. Scrap (US 1973)
The Court held that environmental groups could challenge the ICC’s failure to suspend a surcharge on railroad
freight rates as unlawful under the Interstate Commerce Commission Act. The plaintiffs claimed that their
members used forests, streams, mountains, and other resources in the Washington area for camping, hiking,
and sightseeing. The Constitution was satisfied by the attenuated line of causation to the injury—a rate increase
would cause increased use of nonrecyclable commodities, resulting in the need to use more natural resources to
produce such goods, some of which might be taken from the Washington area, resulting in more refuse that
might be discarded in Washington’s national parks.
 Scrap may not be able to command a majority today.
Allen v. Wright “stigmatic injuries” p. 102 ?????
 According to Duke Power and SCRAP, the injury-in-fact requirement is usually met by those who can show
a sufficient threat of future injury. The threat must be real and immediate rather than speculative or
hypothetical. This plays an important rule in suits seeking injunctive relief.
City of Los Angeles v. Lyons (US 1983)
Lyons brings action against L.A.P.D. seeking injunctive relief to prevent the use of choke holds, of which he
was a victim. Lyons also brought a suit for damages. The Court held that this latter fact did not mean that
he could also obtain an injunction when he was not likely to suffer any future injury from the use of
chokeholds by police officers.
2. Widely Diffused Harms—A widely diffused harm is one where many or all citizens feel it equally.
Schlesinger v. Reservists to Stop the War (US 1974)
A Reservist group alleges that several congressman’s reserve status violates the Incompatibility clause. The
Court held that the Reservist’s only interest was a general one shared by all citizens in proper constitutional
governance, which is an abstract injury. To hold otherwise would provide potential for abuse of the judicial
process, distort separation of powers, and open the Court up to a charge of government by injunction. In
addition, the Reservists did not meet the requirements of Flast v. Cohen.
United States v. Richardson (US 1974)
A taxpayer challenges the CIA Act of 1949, permitting CIA expenditures to be made public, as violative of the
Accounting clause. Finding a generalized grienvance, the Court stated that the taxpayer did not allege he is in
danger of suffering any particular concrete injury as a result of the operation of the statute. The Court added
that the very fact that no one will be able to litigate this issue gives support that the political process is the only
recourse available.
Concurrence (Powell)
The Court has always expressed its antipathy to efforts to convert the judiciary into an open forum for the
resolution of political disputes about the performance of government. Several considerations underlie this.
(1) As in the public reaction to the New Deal’s substantive due process holdings, it is believed that history
will repeat itself again. ???
(2) The Court should not divert limited resources to resolution of public-interest suits brought by litigants
who cannot distinguish themselves from all citizens.
(3) Judicial review over cases or controversies maintains public esteem and permits the peaceful existence
of the countermajoritarian implications of judicial review and the democratic principle.
 The generalized grievance problem frequently arises in taxpayer standing cases.
Flast v. Cohen (US 1968)
A taxpayer challenges aid to religious schools as violative of the establishment clause. In a rare recognition of
taxpayer standing, the Court found standing because there was a logical nexus between the status asserted and
the claim thought to be adjudicated. The nexus demanded of federal taxpayers has two aspects to it.
(1) The taxpayer must establish a logical link between the status and the type of legislative enactment
attacked. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of
an essentially regulatory measure.
(2) The taxpayer must establish a nexus between that status and the precise nature of the constitutional
infringement alleged. The taxpayer must show that the challenged enactment exceeds specific
constitutional limitations imposed upon the exercise of the congressional taxing and spending powers.
Fronthingham v. Mellon (US 1923)
The Court refused taxpayer standing where a taxpayer sought to enjoin under the 10 th Amendment
expenditures made to reduce maternal and infant mortality under federal statute.
Valley Forge Christian College v. Americans United (US 1982)
The Court refused taxpayer standing where a taxpayer challenged under the Establishment clause a conveyance
of property formerly used as a military hospital to the Valley Forge Christian College. The Court emphasized
that the plaintiffs challenged a property transfer, not an expenditure of funds.
 There are three views of whether a widely diffused injury/generalized grievance is a sufficient basis for judicial
relief.
(1) Richardson, Schlesinger, and Valley Forge are right, Flast is wrong. If there is a generalized grievance,
the appropriate forum is the legislature. The mechanism of political accountability are a sufficient
guaranty. If those mechanisms fail, the problem must not be severe enough in any event.
(2) Richardson, Schlesinger, and Valley Forge are wrong because they render constitutional restraints
unenforceable. Constitutional requirements are not meant to vary with public opinion; they operate
largely as constraints on outcomes, even if they accurately reflect popular opinion. If plaintiffs in those
cases do not have standing, no one ever will.
(3) The real standing question is whether any law creates a cause of action. When a constitutional provision
benefits all citizens, courts should not infer from it a cause of action on behalf of any citizen in particular.
Flast is a sensible exception because of the distinctive character of the establishment clause, a guarantee
against the expenditure of taxpayer funds for religion.
3. Nexus—As suggested by Allen and Valley Forge, the nexus requirement has two prongs; however, in
practice, the two prongs almost always amount to the same thing. The plaintiff must show that:
(a) The allegedly unlawful conduct has caused the injury in fact.
(b) The injury is likely to be redressed by a favorable decision.
Linda R.S. v. Richard D. (US 1972)
An unwed mother of an illegitimate child brings an action to enjoin discriminatory application of a Texas
criminal statute that penalized any parent who failed to support his children. Plaintiff contended that judicial
interpretation excluded illegitimate fathers from prosecution and sought to require a prosecutor to initiate
criminal proceedings for failure to provide child support. The Court denied standing because they believed
prosecution might lead only to the father’s incarceration, not in payment of support.
 One view is that the plaintiff’s claim in this case involved unequal treatment, and if the injury is one of
inequality under the law, there is no problem of redressability.
Easterbrook’s ‘The Court and the Economic System’ (1984)
It is incorrect to say that enforcement of legal rules does not affect bystanders. I suffer an injury if the police
announce they will no longer enforce rule against murder in my neighborhood. A plaintiff need not show a
sure gain of winning in order to prove that some probability of gain is better than none, thus he suffers an
injury in fact.
Simon v. Eastern Kentucky Welfare Rights Organization (US 1976) Powell
Several indigents and organizations challenged IRS ruling that granted favorable tax treatment to certain nonprofit hospitals that limited aid to indigents to emregency room services. Plaintiff’s theory was that the ruling
was unlawful because it reduced amount of services necessary to qualify as charitable corporations; thus, they
would have less medical services available to them. The Court held that there was no standing because it was
speculative whether the denials of service could be traced to the IRS’s encouragement. It is also speculative
whether the Court would be able to remedy the problem so that the result is availability of services. Causation
case.
Concurrence (Brennan, Marshall)
The relevant injury is the opportunity and ability to receive free medical services. Furthermore, the plaintiff’s
interest was not too diffuse to support standing. Finally, the further requirement imposed by the Court served
no purpose.
Warth v. Seldon (US 1975)
Various organization and individuals in Rochester, N.Y. bring action against the town of Penfield to enjoin
application of its exclusionary zoning ordinance. The Court denied the assertion of standing by people of low
or moderate income and as members of minority groups. The Court emphasized that the plaintiff failed to
show that their inability to locate housing in Penfield resulted from Penfield’s statutory and constitutional
violations. They were required to show a substantial probability that they would have been able to buy land in
Penfield, and that, if the Court affors the relief requested, the inability would be removed.
Concurrence (Brennan)
The plaintiffs cannot be expected to know, prior to discovery and trial, the future plans of building companies,
the details of the Penfield housing market, etc. To require them to allege such facts reverts back to factpleading days.
Duke Power Co. v. Carolina Environmental Study Group (US 1978)
Plaintiffs—40 people who lived near power plants, an environmental group, and a labor organization—sought
a declaration to challenge the Price-Anderson Act, which limited aggregate liability for a nuclear power plant
accident to $560 million. The Court found a sufficiently concrete injury in plaintiff’s in the environmental and
aesthetic consequences of the thermal pollution of the two lakes in the vicinity of the disputed power plants.
Regents of the University of California v. Bakke (US 1978)
Plaintiff challenged an affirmative action program established by UCD without alleging that, if the program
were not in place, he would have been admitted to the medical school. The Court upheld as sufficient the trial
court’s characterization of the injury as the University’s decision not to permit Bakke to compete for all 100
places in the class, simply because of his race.
 This may suggest that EKWRO and Warth are wrongly decided. Notice that whether the injury is
speculative depends on how it is characterized, i.e. an opportunity or a more common law-type one.
Chayes’s ‘Public Law Litigation and the Burger Court’ (1982)
Suggests that characterization of the injury is dispositive in standing cases. How an injury and causation is
characterized depends on the interests and sympathies of shifting configurations of five Justices.
Diamond v. Charles (US 1986)
The Court held that a pediatrician who had intervened below to defend a state’s criminal statute regulating
abortions lacked standing to appeal when the state itself failed to seek review of a decision enjoining
enforcement of the statute.
(1) Even if the abortion law was constitutional, the Court held that the pediatrician could not compel the state
to enforce it against violators because a private citizen lacks a judicially cognizable interest in prosecution
of another.
(2) The Court found that the pediatrician’s alleged injury of financial gain derived from more live births was
too speculative that the babies would ever be his patients.
(3) The Court held that an award of attorney’s fees is not a direct stake/injury because the mere fact that
appeal could provide a remedy for this award is only a byproduct of the suit itself.
Maine v. Taylor (US 1986)
A Maine fisherman was prosecuted under a federal law prohibiting the importation of live baitfish into a state
that prohibits it. Maine intervened to defend the constitutionality of its statute. The lower court found the ME
statute constitutional. The 1st Circuit reversed. The U.S. sought no further review, but ME appealed to the
Supreme Court. The Court held that ME had a sufficient stake in the outcome to give it standing because a
state has a legitimate interest in the continued enforceability of its own statutes.
4. Injuries to 3rd Parties and “Zone of Interests”
“Third Parties”—Third parties must litigate their own rights.
“Zone of Interests”—Derived from Data Processing, a plaintiff must show that he is within the zone of interests
protected by the statutory scheme. In the constitutional context, the plaintiff must be an intended beneficiary of
the constitutional provision at issue. This requirement has never been the basis for denying standing in a
constitutional case, but has occasionally in other cases.
 Possibly, the following two cases have started reassert the view that standing is ultimately a question of
substantive law: whether relevant statutes and constitutional provisions confer on the plaintiff a right to bring
suit.
Air Courier Conference v. APWU (US 1991)
Postal Service employees challenge Postal Service decision to partly relinquish its monopoly of the mails by
allowing private courier services to engage in ‘international remailing.’ The court concluded that the
employees were not within the zone of interests of the statutes creating a national postal monopoly, which
Congress did not enact to protect Postal Service jobs.
International Primate Protection League v. Administrators (US 1991)
Plaintiffs challenge use of certain monkeys in federally funded medical experiments. The action was filed in
state court and removed to federal court. The Court held that the right to sue in state court was an injury
traceable to the challenged action and likely to be redressed by the remedy sought; thus, plaintiff had standing
to contest the removal. The Court said that standing should be seen as a question of substantive law,
answerable by reference to the statutory and constitutional provision whose protection is invoked.
 Following this line of reasoning, there are few or perhaps no limits on Congress’s power to confer standing.
The Court, however, has not always recognized this standing analysis, which was the framer’s position.
Fletcher’s ‘The Structure of Standing’ (1988)
Reemphasizes this notion of the true standing question and calls for reexamination of all current standing law.
He also urges that where a constitutional violation is at issue, the question is whether the constitutional
provision confers on the plaintiff a right to relief.
 Sunstein and Currie hold similar views.
Lujan v. Defenders of Wildlife (US 1992) Scalia
[111]
Plaintiffs, an organization dedicated to wildlife and other environmental causes, brings this action against the
Secretary of the Interior seeking a declaratory judgment that the Endangered Species Act of 1973 extends to
foreign nations, not to just the U.S. and high seas, as well as an injunction requiring the Secretary to
promulgate a new regulation restoring the initial interpretation.
1. When plaintiff’s injury arises from the government’s unlawful regulation of others, as opposed to situations
where he himself is the object of the regulation, standing is not precluded, but is substantially more
difficult to establish. Summary judgment more difficult too.
2. The complaint contains no facts showing how damage to the species will produce injury to the two women.
(a) A previous visit proves nothing.
(b) “Some day intentions”—without any description of concrete plans, or indeed even any specification of
when the some other day will be—do not constitute an actual or imminent injury.
3. The ‘ecosystem nexus,’ ‘animal nexus,’ and ‘vocational nexus’ theories all fail because they do not require
an injury in fact.
4. There can be no redressability in this case. (Not opinion of the court, only Scalia, Rehnquist, Thomas, and
White join).
(a) Since the agencies funding the projects were not parties to the case and thus unable to be bound, the
District Court could accord relief only against the Secretary.
(b) If he was order to revise his regulations, this would still not remedy plaintiff’s alleged injury unless the
funding agencies were bound by the Secretary’s regulation, which is very much an open question.
(c) The agencies generally supply only a fraction of the funding for a foreign project. Plaintiffs did not
show that the projects will either be suspended, or do less harm to listed species, if that fraction is
eliminated.
5. The Endangered Species Act “citizen suit” provision does not obviate the need for an injury in fact.
(a) Most of the Court’s generalized grievance (executive follow the laws) have typically involved the
Constitution, but there is no basis for concluding that when a federal statute is involved that there is any
difference.
(b) The judiciary solely decides individual rights. Congress and the Chief Executive vindicate the public
interest.
(c) Congress is not permitted to convert the public interest in the executive’s compliance with the law into
an individual right vindicable in the courts because it would violate the Faithfully Executed clause,
which placs this power solely in the hands of the executive.
(d) Courts should not be continuing monitors of the wisdom and soundness of executive action. For
example, with administrative agencies, courts can only intervene if an agency exceeds its statutory
power.
6. Statutory broadening of the categories of injury that may be alleged to support standing is a different matter
from abandoning the requirement that the party seeking review must himself have suffered an injury.
7. It is true that procedural rights are special. The person who has been given a procedural right to protect his
concrete interests can assert that right without meeting all the normal standards for redressability and
immediacy. Fn. 7.
Concurrence in part and judgment (Kennedy, Souter)
1. While it is trivial to require the two women to obtain airline tickers to the project sites or announce a certain
date, this is not a case where it is reasonable to assume that the two women will be using the site on a
regular basis nor do the two women claim to have visited the sites since the projects commenced.
2. I am not willing to foreclose the possibility of a nexus theory in different circumstances.
3. Since I find no concrete injury, I would not reach issue of redressability.
4. Furthermore, in Kennedy’s view, Congress has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy where none existed before. In exercising this power,
however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the
class of person entitled to bring suit.
5. The ESA’s citizen suit provision does not of its own force establish that there is an injury in any person by
virtue of any violation.
Concurrence in judgment (Stevens)
1. The Court has stated that a person who has visited the critical habitat of an endangered species, has a
professional interest in preserving the species and habitat, and intends to revisit in the future has standing.
2. There is an injury in this case because an injury to an individual’s interest in studying or enjoying a species
and its natural habitat occurs when someone takes action that harms that species and habitat.
3. The Court’s reasons for rejection plaintiff’s claims for redressability are unpersuasive.
(a) The executive and its agencies may not ignore an authoritative construction of the ESA by the Court.
(b) If Congress has required consultation between agencies, one must assume that such consultation will
have a serious purpose that is likely to produce tangible results.
4. Although I believe that plaintiff’s have standing, I concur because the ESA provision does not apply to
activities in foreign countries.
Dissent (Blackmun, O’Connor)
1. The Court could conclude that the two women would likely soon return to the project sites, thereby
satisfying the actual or imminent requirement.
(a) The two women gave statements of their intent to return.
(b) The two women had made past visits to the project sites.
(c) Professional backgrounds.
2. The Court demands what is likely an empty formality.
3. The vocational or professional injury should not have been rejected.
(a) The distant location of the destruction does not mitigate the harm to the professional.
(b) If there is no more access to a future supply of the animal that sustains a keeper’s livelihood, surely
there is a harm.
4. The Court’s redressability analysis is also flawed.
(a) It invites executive lawlessness.
(b) It is ignorant of the principles of collateral estoppel.
(c) It is based on unfounded assumptions about causation.
(d) It is based on erroneous conclusions about what the record does not say.
5. The court’s citizen suit reasoning does not give the courts executive power to see that the law is faithfully
executed, it transfers powers to the executive at the expense of Congress.
6. The Court should have given more deference to Congress on the citizen suit issue, although there may be
some instances where a citizen suit will not be allowed.
 Lujan may elevate the prohibition against generalized grievances to constitutional status according to Edwin
Chemerinsky.
 Some point out that citizen suits were fairly common in England and the colonies at the time of the framing.
N.E. Florida Chap. of Assoc. Gen. Contractors v. Jacksonville (US 1993)
Jacksonville enacted ordinance requiring a 10% set aside on monies spent on city contracts for minority
business enterprises. The non-minority contractors bring an action under the Equal Protection clause. The
Court held that the injury in fact in an equal protection case of this variety is the denial of equal treatment
resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. In the set aside
context, the injury in fact is the inability to compete on an equal footing in the bidding process, not the loss of
the contract. Furthermore, in an intriguing footnote, the Court stated that this definition of injury in fact also
satisfies causation and redressability.
Some people argue that there is serious tension between Lujan and NFCAGC. The injury in Lujan could
have easily been characterized as an opportunity-type injury in fact, and thus there would be no problem
with redressability and causation. Indeed, what the Court did in NFCAGC could be done in many standing
cases (Linda RS, Simon, etc.). The real problem is that the Court has not explained the criteria by which it
will decide how to characterize the relevant injury.
Raines v. Byrd (US 1997) Rehnquist
Six members of Congress challenge the Line Item Veto Act (they voted against it). The Line Item Veto act
provides a congressman’s suit provision for declaratory judgment and injunctive relief to challenge parts of the
Act thought to be unconstitutional.
1. The Court has stressed that a plaintiff’s complaint must establish a personal stake in the alleged dispute,
and that the alleged injury is particularized to him.
2. The Court’s standing inquiry has been particularly rigorous when it is forced to decide whether an action
taken by one of the other two branches of government was constitutional.
3. The Congressman’s claim of injury does not fall within the rubric of Coleman v. Miller.
(a) Coleman v. Miller only stands for the proposition that legislators whose votes would have been
sufficient to defeat (or enact) a specific legislative act have stnading to sue if that legislative act goes
into effect (or does not go into effect), on the ground that their votes have been completely nullified.
(b) The congressman do not allege that they voted for a specific bill, that there were sufficient votes to pass
the bill, and that the bill was defeated.
4. Coleman’s statement that the Kansas senators had a plain, direct, and adequate interest in maintaining the
effectiveness of their votes is not applicable here.
(a) There is a vast difference between the level of vote nullification in Coleman and the abstract dilution of
institutional legislative power (no longer either up or down) alleged here.
(b) The Court is not willing to drastically extend Coleman.
5. In history, there have been several episodes of analogous executive-legislative conflicts where no suit was
brought on the basis of claim injury to official authority or power..
6. The Court notes that the congressman have not been authorized to represent their respective Houses of
Congress, and indeed both Houses actively oppose this suit.
7. The Court notes that its conclusion neither deprives congressman of an adequate remedy (they may repeal
the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge
(by someone who suffers injury as a result of the Act).
Concurrence (Souter, Ginsburg)
1. It is debatable whether this injury is sufficently personal to satisfy Article III.
2. Because it is debatable, the Court should resolve the issue under separation of powers principles underlying
the standing requirement.
3. The Court has always been restrained in deciding issue involving an intrabranch dispute.
4. Intervention in an intrabranch dispute would risk damaging public confidence that is vital to the functioning
of the judicial branch, by embroiling courts in a power contest nearly at the height of its political tension.
5. Waiting for an individual to be injured in fact will decrease the risk to the judiciary.
6. I am certain that another suit will come to us.
Dissent (Stevens)
1. Since every congressman is denied the opportunity to vote for the truncated measure that survives the
President’s cancellation authority, which is a right guaranteed by the Constitution (Art. I. §7), the
congressman have standing.
2. Since the impairment of that constitutional right has an immediate impact on their official powers, the
congressman need not wait until after the President has exercised his cancellation authority.
3. For the same reasons the congressman have standing, the statute is unconstitutional.
Dissent (Breyer)
1. The injury is focuses, not an abstract intellectual problem, and there is a concrete living contest between
genuine adversaries.
2. Although concerned about executive-legislative conflict, there is no separation of powers problem here vis
a vis Frankfurter’s Coleman dissent.
(a) The jurisdictional statute (congressman’s suit?) eliminated all but the constitutional questions, and the
circumstances remove all but the political or intragovernmental aspect of the constitutional issue.
(b) The Constitution does not draw an absolute line between disputes involving personal harm and those
involving official harm.
(c) Frankfurter’s views were in dissent, and the dispute before us present a much stronger claim for
constitutional justiciability than Coleman.
(1) Many more laws will be affected.
(2) The systematic nature of the harm immediately affects the legislator’s ability to do their jobs.
3. I do not believe the Court can find this case non-justiciable without overruling Coleman.
4. Since it does not do so, I need not decide whether the harm would make the case justiciable in Coleman’s
absence.
5. Instead, I find the case justiciable on Coleman’s authority.
6. Following the majority, I reserve any discussion of the merits.
 The Court asserts that prior examples of Presidents failing to sue to challenge statues arguably diminishing their
authority are analogous to Raines, but these did not involve specific congressional authorization to sue.
 It might be argued that a statute specifically authorizing suit expresses a congressional judgment that the line-item
veto statute does impair the voting power of congressman, and that judgment should receive some weight in the
Court’s assessment of whether Article III injury exists.
Federal Election Commission v. Akins (US 1998) Breyer
A group of voters challenges an FEC determination that the American Israel Public Affairs Committee (AIPAC)
is not a “political committee” as defined by the Federal Election Campaign Act of 1971, and thus subject to
disclosure requirements. The Court holds that the voters have standing to sue.
1. The voters have satisfied prudential standing requirements.
(a) The citizen’s suit provision in the FECA affords an “aggrieved party” a right to file a complaint with the
FEC, and if that is dismissed, file an action in federal court. This indicates a congressional intent to cast
the standing net broadly.
(b) The voter’s injury—the failure to obtain relevant information—is within the ‘zone of interests’ that the
FECA seeks to address.
(c) Since Congress intended to authorize this kind of suit, prudential standing is satisfied.
2. The voters have suffered an injury in fact—their inability to obtain relevant information (lists of donors,
contribution and expenditures lists, etc.) that is allegedly required by FECA.
(a) Such information helps them evaluate candidates for public office and to evaluate the role that AIPAC’s
financial assistance might play in a specific election. Thus, it is concrete and particular.
(b) United States v. Richardson is distinguishable.
(1) The “logical nexus” inquiry is not relevant because there is no constitutional provision requiring such
demonstration as in Richardson and Flast. Instead, there is a statute seeking to protect voters from
the kind of harm here.
(2) This case involves voter standing, not taxpayer standing.
(c) This harm is not a generalized grievance, despite the fact that many people share the harm, because it
doesn’t also have an abstract component it to it, i.e. mass torts.
3. The voters’s harm is “fairly traceable” to the FEC’s decision.
(a) This is true even though the FEC might later, in the exercise of its lawful discretion, reach the same result
for a different reason.
4. For similar reasons, there is also redressability in this case.
5. The FECA indicates that judical review is proper, despite the FEC’s claim that an agency’s decision not to
undertake an enforcement action is generally not subject to judicial review.
Dissent (Scalia, O’Connor, Thomas)
1. The FECA does not intend that all persons filing FEC complaints have the right to seek judicial review of the
rejection of their complaints.
(a) The Act permits a complaint to be filed by any person who believes a violation has occurred, but allows
judicial review only to an aggrieved party.
(b) The majority deprives the latter provision of its limiting force.
2. Unlike a refusal to make available information that the Act requires to be disclosed, a refusal to commence an
agency action against a 3rd person does not render a person “aggrieved.”
3. The conclusion is strengthened by Richardson, which gave Congress every reason to believe that a voter’s
interest in information helpful to his exercise of the franchise was constitutionally inadequate to confer
standing.
(a) The only distinction in Richardson is that there the aggrievement was more direct, since the government
already had the information in its possession, whereas here the voters seek enforcement of an action that
will bring information within the government’s possession and then require the information to be made
public.
(b) The constitutional-statutory distinction is wrong because Lujan dictates that the Article III inquiry should
not turn on the source of the asserted right.
(c) The taxpayer-voter distinction is silly given the weight of the federal policy underlying the generalized
grievance doctrine and is also incorrect because the plaintiff’s in Richardson had alleged injury as
members of the electorate.
(d) The majority is wrong to think that generalized grievances have only concerned the Court when they are in
the abstract.
(e) The Court ignores the particularized-undifferentiated distinction of generalized grievance doctrine or
confuses it with the “abstract: inquiry.
(1) In mass torts, the injuries are widely shared but each individual suffers a particularized injury—
one victim a burnt arm, another a broken leg.
(2) Here, the harm is precisely the same harm caused to everyone else.
(f) This requirement ensures that the executive is entitled to the power afforded to it under the Faithfully
Executed clause. The majority undermines executive power when a requirement of public availability of a
piece of paper is at stake.
4. A narrow reading of “party aggrieved” is supported by the doctrine of constitutional doubt, which counsels us
to interpret statutes, if possible, in such fashion as to avoid grave constitutional questions.
 Vermeule thinks Akins is wildly incoherent and it might overrule Lujan and Richardson to some extent. Perhaps a
new justice. Switching majorities.
 Some don’t buy Marbury’s slippery slope that if no judicial review then anarchy. At some level, you have to
assume that people will do their jobs.
3. Ripeness
The ripeness doctrine bars a court from deciding cases that are premature—too speculative or remote to warrant
judicial intervention. For example, a challenge to a criminal statute before a prosecution is initiated.
Laird v. Tatum (US 1972)
Plaintiffs bring class action for injunctive relief against the U.S. Army for collecting information about political
activities that had some potential for disorder. Plaintiffs claimed that they were target and thus “chilled” from
engaging in the constitutionally protected activity. The Court held that there was no case or contorversy for
resolution. The “chilling effect” was insufficient because it arose merely from the individual’s knowledge that a
government agency was engaged in certain activities of from concomitant fear that the agency might take some
future action. The Court can not be continuing monitor of executive action. That is a job for Congress.
Adler v. Board of Education (US 1952)
Parents and schoolteachers bring action for declaratory judgment involving a challenge to a state law disqualifying
from employment in public schools anyone who was a member of a subversive organization. The Court reached
the merits without discussion. Justice Frankfurter dissented on ripeness grounds, citing Mitchell.
United Public Workers v. Mitchell (US 1947)
Federal civil service employees sought declaratory judgment against the Hatch Act, which prohibits federal
employees from participating in the management of political campaigns. The Court stated that the plaintiff’s
affidavits expressed a desire to act contrary to the rule, but not that the rule has been violated.
Socialist Labor Party v. Gilligan (US 1972)
The Court refused to hear challenge to a statute requiring party members to pledge that they were not engaged in an
attempt to overthrow the government by force. The Court notes that the pleadings did not allege that party
members have ever refused in the past or will now refuse to sign the oath, which has been in existence since 1941.
Poe v. Ulman (US 1961)
The Court refused to hear challenge to CT prohibition on use of contraceptive devices on ground that there was no
allegation that state threatened prosecution.
4. Mootness
The mootness doctrine prevents courts from hearing cases when events subsequent to the institution of the lawsuit
have deprived the plaintiff of a stake in the action.
DeFunis v. Odegaard (US 1974)
The Court held moot a case involving a challenge to a preferential UW admissions program because, by the time
the case reached the Court, DeFunis was in his third year of law school as a result of the decision below ordering
his admission, and the law school’s claim that his registration would not be cancelled regardless of the Court’s
decision. The Court noted that voluntary cessation of allegedly unlawful conduct does not make a case moot; if
it did, the defendant could return to his old ways, but this is a different case.
Roe v. Wade (US 1973)
The Court held that the fact that Roe was no longer pregnant by the time the case reached the Supreme Court did
not render the case moot. There exists an exception for cases that are capable of repetition, yet evading review.
If pregnancy termination made a case moot, appellate review will be effectively denied.
4. Political Questions
“There is hardly a political question in the United States that does not turn into a judicial one”
-Tocqueville
 After Baker and Bandemer, Tocqueville’s point might be supported.
 However, Lujan, Allen, Richardson, and Schlesinger may reflect lurking political question concerns.
Baker v. Carr (US 1962) Brennan
Tennessee voters bring action challenging 1901 state apportionment statute based on the 14 th Amendment’s
Equal Protection clause. The state legislature had not been reapportioned in 60 years, despite a state
constitutional requirement that representation be on the basis of population and despite significant changes in
population over the years. The Supreme Court held that this was not a nonjusticiable political question.
1. Not all cases involving politics present nonjusticiable political questions.
2. The Court held that this case does not involve a Guaranty clause claim, which is nonjusticiable. Moreover,
just because a Guaranty clause challenge could not succeed, it doesn’t follow that a Equal Protection claim
also must fail.
3. Luther v. Borden stands for the proposition that the Guaranty clause is not a repository of judicially
manageable standards which a court could utilize independently in order to identify a state’s lawful
government.
4. What makes Guaranty clause claims non-justiciable is that they involve the relations between the judiciary and
other branches of the federal government, whereas here the issue is relations between the judiciary and
states.
5. The Court listed several factors, at least one of which must be present in order to find a nonjusiticiable
political question. Each of these factors relates in some way to the separation of powers.
(a) Commitment to Another Branch—A textually demonstrable constitutional commitment of the issue to a
coordinate political department.
(b) Lack of Standards—A lack of judicially discoverable and manageable standards for resolving the issue.
(c) Unsuitable Policy Determination—The impossibility of deciding the issue without an initial policy
determination of a kind clearly for non-judicial discretion.
(d) Lack of Respect for Other Branches—The impossibility of a court’s undertaking independent resolution
without expressing lack of respect due coordinate branches of government.
(e) Political Decision Already Made—An unusual need for unquestioning adherence to a political decision
already made.
(f) Multiple Pronouncements—The potential for embarassment from multiple pronouncements by various
departments on one question.
6. The Court found that the equal protection claim did not involve any of these factors.
(a) There is no question to be decided with respect to a coequal branch of government; thus, separation of
powers are not implicated.
(b) There is no risk of embarrassment of our government abroad.
(c) There is no risk of grave disturbance at home if we take issue with Tennessee as to the constitutionality of
the present apportionment.
(d) The Court does not have to enter upon policy determinations for which judicially manageable standards
are lacking. Judicial standards under the Equal Protection clause are well developed and familiar.
Dissent (Frankfurter, Harlan)
1. The majority reverses a clearly established course of decision.
2. The Court’s authority rests on public confidence, which must be nourished by the Court’s complete
detachment from clashes of political forces.
3. This claim is really a Guaranty clause claim masquerading under a different label.
4. There can be no adjudication because there are no guidelines or standards by which to decide what a vote
should be worth; thus, there is no remedy.
5. The fact that a legislature may heed a Court’s determination that there is a constitutional right for courts to
pass on apportionment cases is not a remedy because this is only a euphoric hope. The fact is there is no
remedy.
6. If a court were indeed to choose what a vote is worth, it would essentially be a choice among competing bases
of representation—ultimately, really, among competing theories of political philosophy.
Dissent (Harlan)
1. The federal courts’ only role should be to determine whether there exists a possible rational legislative policy
for retaining an existing apportionment.
Concurrence (Clark)
1. The very fact of malapportionment meant that the Tennessee people had no practical opportunities for exerting
their political weight at the polls to correct the existing invidious discrimination.
2. Tennessee did not have intiative or referendum procedures; thus, only the legislature could reapportion.
3. The legislature was very unlikely to reapportion since they have a vested interest in preserving the
apportionment which had put them in office.
Davis v. Bandemer (1986) White
Democrats in the Republican-controlled Indiana Legislature brought an action claiming that district lines were
deliberately drawn to understate Democratic voting strength. The Supreme Court held that political
gerrymandering is not a non-justiciable political question. A plurality held, however, that there was no
substantive constitutional violation.
1. This case does not fit any of the political question factors.
(a) Adjudication does not involve the Court in a matter more properly decided by another branch of
government.
(b) There is no risk of foreign or domestic disturbance.
(c) In light of the Baker line of cases, there are judicially discernible and manageable standards by which
political gerrymandering cases are to be decided.
2. Simply because we may not be able to fashion a precise formula in this context does not compel a finding of
non-justiciability. At the time of Baker, the Court did not rely on the potential of the one person-one vote
rule.
3. On the merits (plurality), a party challenging a districting scheme must show that the electoral system is
arranged in a manner that will consistently degrade a voter’s or group of voter’s influence on the political
process as a whole.
4. In this case, a group’s electoral power is not unconstitutionally diminished by the fact that an apportionment
scheme makes winning elections more difficult.
5. Furthermore, a failure of proportional representation alone does not constitute discrimination.
6. Justice O’Connor’s factual assumptions are not correct.
(a) Political gerrymandering may not be a self-limiting enterprise.
(b) Other groups may not have any great incentive to bring gerrymandering claims, given the requirement of
discriminatory intent.
7. Justice O’Connor would allow judicial review based on the Court’s reaction to its desirability.
Dissent (O’Connor, Burger, Rehnquist)
1. If members of majority political parties are protected by the Equal Protection clause from dilution of their
voting strength, then every indentifiable group that possesses distinctive interests and tends to vote on the
basis of those interests should be able to bring their claims.
(a) This leads to political instability and judicial malaise.
(b) Arguing the slippery slope, a gradual evolution of a requirement of roughly proportional representation for
every cohesive group is inevitable.
2. The Equal Protection clause does not supply judicially manageable standards for resolving purely political
gerrymandering claims.
3. No group right to an equal share of political power was intended by the 14 th Amendment’s framers.
4. Political gerrymandering can be checked and cured by the people or the parties.
(a) In order to gerrymander, one must weaken safe seats, exposing incumbents to greater risks, which at some
point, they will not accept.
(b) Each major party has ample weapons to fight apportionment battles.
United States Department of Commerce v. Montana (US 1992)
Congress chose a certain apportionment method for the House of Representatives; several states objected to the
choice. The Court said that in invoking political question doctrine, a court acknowledges the possibility that a
constitutional provision may not be judicially enforceable. Such a decision is of course very different from
determining that specific congressional action does not violate the Constitution. The Court thus rejected the
suggestion that a political question existed when and only when there was no constitutional violation.
Nonetheless, the Court held that the case was indeed justiciable because it was no different from Baker itself.
Nixon v. United States (US 1993) Rehnquist
The Senate impeaches Nixon, a district judge, without the full Senate receiving evidence. Nixon claims that the
Senate failed to “try” him in violation of the Impeachment clause. The Court holds that the case is a
nonjusticiable political question.
1. There is a textually demonstrable constitutional commitment of the issue to a coordinate political department.
(a) The word “sole” in the Impeachment clause indicates that this authority is reposed in the Senate, and
nowhere else.
2. The lack of judicially manageable standards may strengthen the conclusion that there is a textually
demonstrable commitment to a coordinate branch.
(a) Because the word “try” had broader meanings in 1787, it is not an implied limitation on the Senate’s
method of proceeding; thus, the word lacks sufficient precision to afford any judicially manageable
standard of review.
(b) The 3 constitutional limitations on a Senate “trial’—members be under oath, 2/3rds vote to convict, and
Chief Justice presides—are precise, and their nature suggests that the Framers did not want additional
limitations.
3. Judicial review here would violate the doctrine of checks and balances.
(a) Impeachment is designed to be the only check on the judiciary.
(b) Final reviewing authority can’t be in the same body that the impeachment process is meant to regulate.
4. The lack of finality counsels against declaring justiciability.
(a) Open political life to months of chaos.
(b) If President, successor would have no legitimacy or effectiveness.
5. The difficulty of fashioning relief counsels against declaring justiciability.
(a) A court could set aside the judgment, but what else? Order reinstatement?
6. Thus, the word “try” in the Impeachment clause does not provide an identifiable textual limit on the authority
which is committed to the Senate.
Concurring in Judgment (White, Blackmun)
1. I would reach the merits, but concur in judgment because the Senate fulfilled its constitutional obligations to
“try” Nixon.
2. The majority’s position is contradictory.
(a) They argue that the framers set up a system of checks and balances.
(b) Next, they argue that the framers conferred upon Congress a potential tool for legislative dominance, yet at
the same time, rendered Congress’s exercise of that power immune from judicial review.
Concurring in Judgment (Souter)
1. The political question doctrine turns of prudential concerns that depend on how much the occasion demands
an answer.
2. This situation does not demand an answer.
(a) The Impeachment clause gives the Senate discretion to determine procedures.
(b) However, if the Senate acted in a manner seriously threatening the integrity of its result, i.e. convicting on
coin toss, judicial review would be appropriate.
1. Justiciable Standard Strand
In determining political question under this strand, the Court must examine the relevant constitutional provision and
the plaintiff’s legal claim: Does the former setout criteria by which a court can assess the latter?
Henkin’s ‘Is There a Political Question Doctrine’ (1976)
There is no difference between saying that a suit presents a political question and saying that it presents a
constitutional violation. Thus, there is no political question doctrine.
 When there are no legal standards for assessing a claim of unconstitutionality, there is no tension between
political question doctrine and Marbury. The Court retains the authority to say what the law is, but the case is
nonjusticiable because the law does not say anything relevant to the dispute.
Congressional Power Cases: excluding representatives, foreign affairs, and impeachment.
Powell v. McCormack (US 1969)
The House passes a resolution forbidding Adam Clayton Powell from taking his seat because of impropriety.
Powell claimed that, since he met Art. I, §2 requirements, the resolution was unconstitutional. The House
responded that they retained authority under Art. I, §5. The Supreme Court held the case to be justiciable.
1. There is no textual commitment to a coordinate branch of government.
(a) In order to determine if there is a ‘textual commitment’ under Art. I, §5, the Court must determine the
meaning of the phrase to “be the Judge of the Qualifications of its own members.”
(b) The Constitutional Convention debates and other historic material suggests that the Constitution leaves the
House without the authority to exclude any person, duly elected by his constituents, who meets all the
requirements of membership expressly prescribed by the Constitution.
3. The fact that a potentially embarrassing confrontation between coordinate branches of government may occur
does not justify the federal court’s avoiding their constitutional responsibility.
4. There are judicially manageable standards.
5. There will not be multiple pronouncements by various departments on one question because it is the
responsibility of the court to be the ultimate interpreter of the Constitution.
Goldwater v. Carter (US 1979)
President Carter terminated a treaty with Taiwan without Congressional approval. The Supreme Court held this
to be unconstitutional.
Concurring in Judgment (Rehnquist, Burger, Stewart, and Stevens)
1. The case involves a “political question” because it involves the President’s authority in foreign affairs.
2. In Coleman, Chief Justice Hughes’s majority opinion held that Congress, by virtue of its control over the
promulgation of constitutional amendment adoptions, makes the final determination of the question of
whether by lapse of time its proposal of the amendment has lost its vitality prior to the required ratification.
3. Since the instant case is characterized by an absence of a constitutional provision governing the termination of
a treaty, and the fact that different termination procedures may be appropriate for different treaties, it is
controlled by political standards.
4. This case is distinguishable from
5. This case is distinguishable from Youngstown.
(1) This involves dispute between coequal branches of government, each of which has the resources available
to protect and assert its interests, which are resources not available to private litigants outside the judicial
forum.
(2) The effects of this action are in “foreign affairs.”
(3) More similar to Coleman, where the Constitution spoke only to the procedure for ratification of an
amendment, not to its rejection.
Concurring in Judgment (Powell)
1. Although I agree in result, I do not find a “political question.”
(a) The Constitution’s text does not unquestionably commit the power to terminate treaties to the President
alone.
(1) No provision confers on the President power to terminate treaties.
(2) Art II, §2-President makes treaties w/advice and consent of Senate.
(3) Art VI-treaties are part of the supreme law of the land.
(b) There is no lack of judicially manageable standard of review.
(c) The Court does not have to make an initial policy determination of a kind clearly for nonjudicial
discretion.
(d) All this case requires is for the Court to interpret the Constitutional division of power between Congress
and the President, which does not imply a lack of respect for a coordinate branch.
Dissent (Brennan)
1. The political question doctrine restrains courts from reviewing an exercise of foreign policy judgment by a
coordinate political branch to which that authority has been constitutionally committed.
2. However, the political question doctrine does not apply when a court is faced with a question of whether a
particular branch has been constitutionally designated as the repository of political decision-making
power.
3. Our cases firmly establish that the Constitution commits to the President alone the power to recognize, and
withdraw recognition from, foreign regimes.
4. Since the mandate is clear, our inquiry into the treaty rupture can go no further
3. The Guaranty Clause
Article IV, §4 provides that “the United States shall guarantee to every state in this union a republican form of
government.
 As Baker suggests, the Supreme Court appears to have rendered this clause a dead letter. Thus, all claims based
on the Guaranty Clause are nonjusticiable. However, note that the Guaranty clause is addressed to the “United
States,” not just Congress, which might imply a judicial role.
Luther v. Borden (US 1849)
In Rhode Island’s Dohr Rebellion, two competing governments claimed to be the lawful government of Rhode
Island. The Supreme Court refused to answer the question by holding that this was a “political question.” The
Court believes that this is a congressional question because, if the U.S. guarantees a republican government, it
must necessarily decide what government is established before it can determine whether it is republican or not.
When Congressman and Senators take their seat, the government becomes official. Although the rebellion did
not result in election of senators and congressman yet, meaning Congress could not decide, the Court still felt
that Congress is the right place for such a decision.
Pacific Telephone Co. v. Oregon (US 1912)
Plaintiffs challenged a citizens initiative provision in the Oregon constitution. The proposed law taxed certain
telephone and telegraph companies at a certain rate. According to the companies, the initiative procedure
violated the Guaranty clause. The Court rejected the claim because of the inconceivable expansion of judicial
power that would result from adjudication. Every citizen could allege Guaranty clause claims against a state
for any constitutional provision.
4. Constitutional Amendments
Coleman v. Miller (US 1939)
A Kansas legislature passes a child labor amendment to its constitution, with the Lieutenant Governor breaking
a 20-20 tie. The losers challenge the validity of the tiebreaker and argue that the proposed amendment lost its
vitality because of its rejection by Kansas and other states within the requisite reasonable time. The remedy
sought was writ of mandamus preventing amendment from being endorsed and sent to the governor. On the
question of whether the Lieutenant Governor was part of the legislature the Court was evenly divided on the
political question issue, but with respect to the “reasonable time” issue, the Court held the case to be
nonjusticiable. Since a determination of reasonable time is not in the constitution, the court would have to
consider a great variety of factors, which is not within the appropriate range of evidence receivable by the
courts.
Concur (Black)—The Constitution grants to Congress exclusive power to control submission of constitutional
amendments. However, whether congressional determinations are constitutional, are “political questions.”
Concur (Frankfurter)—State senators have no standing to bring suit.
Dissent (Butler)—Article V impliedly requires amendments to be ratified within a reasonable time, which has
lapsed in this case.
Dellinger’s ‘The Legitimacy of Constitutional Change’ (1983)
The assumption that judicial review is precluded by the existence of Congress’s exclusive power to determine
the validity of ratifications is unwarranted. (1) Neither text, congressional practice, or judicial precedent
supports this view. Judicial review is justified by Marbury v. Madison. There is increased certainty resulting
from some judicial supervision of the amendment process.
Tribe’s ‘A Constitution We Are Amending’ (1983)
Tribe rejects view that added certainty is enough to outweigh vices of judicial review. One vice is Supreme
Court supervision of process used to reverse its decision. The Court should not be concerned with certainty
when the amendment process itself symbolizes change and uncertainty.
5. Foreign Affairs
Japan Whaling Association v. Baldridge (1986) White
A federal statute required Secretary of Commerce to certify to the President whether a foreign nation engaged
in fishing operations that diminished the effect of quotas set by the IWC. Once the certification is made, the
President imposes economic sanctions. U.S. and Japan entered into executive agreement where Japan would
cease commercial whaling by 1988 in return for the Secretary’s refusal to certify Japanese violations. The
Court found no political question. As Baker plainly held, the courts have authority to construe treaties and
executive agreement. Furthermore, the challenge presents a purely legal question of statutory interpretation.
The Court held that the Secretary’s decision did not violate the statutory mandate.
 Ryan-Regan doesn’t apply because it was the President’s agreement?
 What if President unauthorized to start a war (Vietnam)?
6. Miscellaneous Cases
In many cases, the Court has reached the merits of a constitutional controversy notwithstanding the implications for
foreign affairs, the high stakes, or interbranch disagreement.
INS v. Chadha
The Court rejected a political question challenge to the legislative veto’s constitutionality because the presence
of constitutional issues with significant political overtones does not automatically invoke the doctrine.
 Consider also Dames & Moore, Youngstown, Nixon, and Curtis-Wright.
Henkin’s ‘Is There a Political Question Doctrine?’ (1976)
The political question doctrine is unnecessary packaging of several doctrines.
1. The courts are bound to accept decision by the political branches within their constitutional authority.
2. The courts will not find limitations or prohibitions on the powers of the political branches where the
Constitution does not prescribe any.
3. Not all constitutional limitations or prohibitions imply rights and standing to object in favor of private
parties.
4. The courts may refuse some or all remedies for want of equity.
5. In principle, there might be constitutional provisions which can properly be interpreted as self-monitoring
and not the subject of judicial review. (Only one so far is Guaranty clause).
B. Political Control of the Supreme Court
The Court’s authority is subject to external political control. Thus, a principal issue becomes how those controls affect
the perceived tension between the power of judicial review and conventional notions of representative democracy.
There are two views of the degree of political control over the Supreme Court:
(1) In light of various mechanisms of control, the countermajoritarian difficulty produced by judicial review is much
less severe than first glance. Safeguards make it less troublesome that interpretation is dicretionary. A political
corrective usually occurs in the short run.
(2) The mechanisms of control make the courts so dependent on the political branches that justifications for Marbury
that rely on the political insulation of judges fails.
(3) The various mechanisms are insufficient to allay the countermajoritarian difficulty. Judicial review permits
unelected judges to assert final say on issues of public importance. Some political control does nothing to address
the problem.
(4) Court is far less powerful then it appears. Difficulties in implementation make large-scale social efforts doomed to
fail. Thus, there should not be an active judicial role.
1. Constitutional Amendment
The people can respond to a Supreme Court decision by amending the Constitution, but this was made very difficult
to ensure stability (precommitment device idea). However, Jefferson believed that the Constitution should be
rewritten by the people of every generation to encourage participating in and concern for the affairs of government
(naïve-Sunstein’s 1st Amendement views). Madison felt that this would produce violent struggle between opposing
parties, but Jefferson believed that a little rebellion now and then is a good thing to keep the people interested and
active. In reality, there have been 20+ amendments, only 4 of which are responses to the Supreme Court. There are
several views on the amendment process.
(1) For reasons hinted at by Madison, there should be a strong presumption against any constitutional amendment.
The Constitution is a wide and broad charter of government with a sufficient flexibility to accommodate
changes in circumstances. Thus, it is a mistake to constitutionalize any set of norms in the absence of
exceptional circumstances.
(2) For reasons set out by Jefferson, proposed amendments should be welcomed. There is no reason to give
special deference to past decisions. Amendment process involves democratic process in constitutional law.
Circumstances change.
(3) Constitutional amendments should be adopted only if they remedy serious structural defects or attempt to
include groups previously excluded from polity. The Constitutional is concerned by and large with
institutional design; structural provisions allow flexibility for current majorities.
2. Power to Appoint
Supreme Court members are appointed by the President, with the advice and consent of the Senate. Although this
gives President idealogical control of the court, the difficulty of predictability limits this power. Also, ideology is one
of many concerns, including race, sex, etc. Moreover, Senate influence can’t be overlooked (1/5th rejected). It may
affect the composition of the Court in 2 ways: (1) Gives incentive to President to avoid controversial appointees, (2)
The Senate may reject for ideology or incompetence. Previous Senates played a more active role (only 4 in this
century rejected).
Three views of the implications of the rejection of the nomination of Robert Bork:
(1) Judge Bork’s defeat should be understood as a sort of public referendum on his views of constitutional
interpretation and a public ratification of the methods of the Warren Court.
(2) Judge Bork’s defeat was a tribute to the power of the status quo. The American people disfavored him because
they didn’t want major changes.
(3) Judge Bork’s defeat was product of well-financed public relations campaign stemming from the power wielded
by civil rights activists over Southern Democrats. No lesson here.
3. Impeachment
Justices of the Supreme Court hold their offices during good behavior. Art. III, §1. They may be removed from
office for high crimes and misdemeanors. However, no Supreme Court Justice has ever been removed from office in
the nation’s history. Chase was impeached, but not convicted. There have been a couple efforts in the lower federal
courts. Yet, this device has not been used to effectuate political control over the Supreme Court. There may be
several reasons for this:
(1) the prestige of an independent judiciary
(2) general acceptance of Marbury v. Madison
(3) doubts about the wisdom and legality of the impeachment mechanism for such purposes.
4. Life Tenure—Under the Constitution, federal judges are appointed for life to promote judicial independence, but
age requirements may also promote independence.
5. Controlling Sitting Judges; Informal Mechanisms and Self-Imposed Limits
The Court may be reluctant to make decisions that depart to sharply from political consensus. J. Choper says the
Court has a limited amount of political capital and has to budget how it spends such capital on controversial
decisions. The Court’s perception of its limited capital may sometimes manifest itself in sensitivity to the views of
elected officials and private citizens. There are a few occasions in the nation’s history in which the Court has
persisted in a course to which the country was sharply opposed. On the other hadn, the Court’s decision may
themselves shape national consensus, and the Court has on occasion been willing to insist on a course of action
notwithstanding considerable public disagreement.
6. Political Control over Jurisdiction of Article III Courts
Ex parte McCardle (US 1869) Chief Justice (Taney?)
McCardle was imprisoned by a military government imposed by Congress as part of Reconstruction. He brought a
habeas corpus action in federal court, charging that the reconstruction Acts were unconstitutional. The federal
court rejected his claim, and he then appealed under an 1867 Congressional statute, authorizing appeal to the
Supreme Court. After the Supreme Court heard arguments, but before the decision, Congress passed a law
repealing the Supreme Court appeal provision of the 1867 Act. It did so out of fear that the Supreme Court would
find the Reconstruction Acts unconstitutional. The Supreme Court upheld Congress’s restriction of the Court’s
jurisdiction. Because the appellate jurisdiction of the Supreme Court is conferred with such exceptions and under
such regulations as Congress shall make, the Court was powerless to do anything.
Currently, this would violate McCardle’s 14th Amendment right to due process.
 Also, the fact that Congressional statute was neutral made it less constitutionally objectable because the
government could be the victim next time.
Ex parte Yerger (US 1869)
The Court asserted appellate jurisdiction over a habeas corpus proceeding brought by a petitioner in military
detention. The source of jurisdiction was certiorari based on pre-1867 legislation. The language of McCardle
suggests there are no constitutional constraints on Congress’s power over the appellate jurisdiction of the Supreme
Court; but its holding might be read more narrowly in light of this conclusion that there was an alternative means of
obtaining Supreme Court review.
A. Restricting Jurisdiction and the Separation of Powers
Some argue that the power to restrict jurisdiction is a means of making it tolerable to have judicial review in a
system of representative government. Under this view, the availability of this power checks the Supreme Court,
discouraging it from straying too far from popular will, and allowing the legislature to retain ultimate control of the
Court. The uncertain, broad “exceptions” power is a legal mystery, but there are several views.
(1) Plenary power argument—The “exceptions” clause grants Congress pleanry power over the appellate
jurisdiction of the Supreme Court. According to textualists, Congress can make exceptions whenever and
for whatever it chooses. The only limits are those that derive from the political process. Supported by
McCardle.
(2) Separation of Powers constraints: the ‘essential functions” hypothesis—Some argue that the framers
intended the Court to perform an important function in the separation of powers scheme: make sure everyone
stays within constitutional limits. (Federalist 78 and Martin). A Congressional power to remove the Court’s
jurisdiction is inconsistent with this view. Structuralist
 Exceptions clause problems—Proponents suggest that the “exceptions” clause contemplates a narrow power,
consistent with the general view that the Court would exercise jurisdiction in all or most federal question cases.
On this view, the extent of Congress’s power may not be subject to precise limits, but it is clear that Congress
cannot deprive the Court of jurisdiction in constitutional cases.
 Marbury may cut with or against the previous argument. (1) Marbury held that the Supreme Court passes on
constitutional questions because they must decide a litigated case that is otherwise within their jurisdiction and
in doing so must give effect to the supreme law of the land, not because they are supposed to enforce the
Constitution or police the other branches. (2) Marbury and the Federalist 78 rest on broader ground that the
Supreme Court was accorded a distinctive role as the guarantor of the supremacy of the Constitution as against
the states and the legislature.
Sager’s “”
The case for regarding judicial supervision of the states as essential to the scheme of the Constitution is a
strong one. Justice Holmes’s famous quote that the U.S. would come to an end if the Court lost the ability to
declare a state law void.
 Independent Constitutional Barriers
Equal Protection Clause—This limits Congess’s power under the Exceptions clause. Some argue (Tribe), if
jurisdiction is withdrawn in order to make it harded for litigants to vindicate their federal constitutional rights,
it would violate equal protection because Congress may think that state courts will be subject to popular
control and thus be less willing to enforce the Constitution. This result obtains because the motivation is to
undo or interfere with a constitutional right.
Counterargument—No Constitutional clause requires equal jurisdictional treatment. A rule that Congressional
hostility can strike down a jurisdictional tampering is unadministerable. What is an adequate indication of
hostility? The states are charged with enforcing federal rights. Bator.
United States v. Klein (US 1872)
Klein sued for indemnification for property taken during the Civil War. A necessary predicate of relief was
showing that he was not a supporter of the rebellion. The courts held that a presidential pardon was evidence
that the claimant did not participate. Klein won in lower court, U.S. appeal; while appeal was pending, a
federal statute changed the pardon presumption and added that courts should dismiss such suits. The Court
invalidated the statute on separation of power grounds because it would allow Congress to prescribe rules of
decision to cases pending before the courts.
 Perhaps Klein distinguishable from McCardle because it involved not merely a withdrawal of
jurisdiction, but also an effort to bind the Court to decide the case in accordance with a rule of law that is
independently unconstitutional.
 Justice Douglas suggested that McCardle could not command a majority today. Glidden Co. v. Zdanok.
Lower Federal Courts—Article III imposes no obligation on Congress to create lower federal courts at all.
Sheldon v. Sill. Although Bator disagrees, a natural inference might then be that they have plenary power over
the issues such courts may hear.
 If Congress bars the lower federal courts from hearing certain actions, several views exist surrounding the
propriety of such action:
(1) The independent constitutional constraints on congressional limits on the jurisdiction of the Supreme
Court apply as well to limits on the jurisdiction of the lower federal courts.
(2) Justice Story’s view that, at any time, some federal court must have jurisdiction over any case to which
the Article III power extends. Modern practice rejects this view.
(3) Relying on the expanding caseload of federal courts and their important role in protecting federal rights,
Eisenberg argues that it is longer constitutional to abolish lower federal courts because the Supreme
Court can not do justice in every case.
Plaut v. Spendthrift Farms (US 1995) Scalia
Since Plaut’s action was time barred under the new judicial interpretation of statutes of limitations, the court
entered final judgment. Subsequently, Congress passed the FDIC Improvement Act of 1991, which reinstated
Plaut’s case and others that had been time barred. The Court held that the statute was unconstitutional because it
violated basic principles of separation of powers.
1. The Court’s two previous holdings where legislation required federal courts to exercise judicial power in a
manner that Article III forbids do not apply to this action.
(a) Under Klein, Congress can’t prescribe rules of decision to the judiciary in cases pending before it. In
Robertson, the Court made clear that this prohibition does not apply when Congress amends applicable
law. In this case, the Act sets out substantive legal standards for the judiciary to apply, which changes the
law (even if solely retroactively). Thus, the Act is constitutional under this line of cases.
(b) Under Hayburn’s Case, Congress can’t vest review of the decisions of Article III courts in the executive
branch. In this case, however, only courts are involved.
2. The framer’s intended for the judicial power to render judgments that conclusively resolve a case. Separation
of powers.
(a) In the early republic, legislatures frequently corrected the judgments of the judicial branch at the behest of
private interests and factions.
(b) As a result, the framers sought to establish an independent judicial branch by requiring that the judicial
power be vested in one Supreme Court and such inferior courts.
(c) Judicial decisions in the period immediately after ratification of the Constitution confirm the
understanding that it forbade interference with the final judgments of the courts. Calder v. Bull and
several state courts.
(d) In the mid-19th Century, President Lincoln rested on this principle in arguing that the political branches
could not interfere with the judgment in Dred Scott.
3. Article III implicitly creates a distinction between final judgments and judgments on appeal.
(a) Article III does not create a batch of unconnected courts, but a judicial branch composed of “inferior
courts” and “one Supreme Court.”
(b) A court’s obligation is to decide according to existing laws; thus, an appeals court can give effect to a new
congressional act, even when it overturns a lower court’s judgment.
(c) Having achieved finality, a judicial decision becomes the last word of the judicial branch, and Congress
may not declare by retroactive legislation a contrary judgment.
4. Since separations of powers is the underlying concern, it makes no difference that the retroactive legislation
applies to a class of cases rather than a particular suit, even if it may reduce inference of individual favoritism.
5. Likewise, it is irrelevant that Act reopened final judgments with respect to statute of limitations.
(a) Rules of finality treat a dismissal based on SOL the same as a12(b)(6) dismissal, i.e. as a judgment on the
merits
(b) Although they’re creatures of Congress’s creation, almost all reasons why a final judgment on merits is
rendered on federal claims are subject to congressional control.
(c) Although the statute can be extended, w/o violating the due process clause, after the cause of action arose
and even after the statute itself has expired, this does not set SOLs apart, i.e. pleading.
6. The dissent’s emphasis on Lampf has nothing to do with the separation of powers question at issue.
7. The concurrence is wrong in fact and law.
(a) The Act does not single out anyone for adverse treatment, but rather a class.
(b) Even if the Act was more expansive and applied also prospectively, there would be no less an
infringement on the judicial power.
(c) Separation of powers doctrine is a structural safeguard rather than a remedy to be applied only when
specific harm can be identified. Thus, there is no reason to adjudicate through particularized cases.
Chadha debate between Powell and majority.
Concurrence (Breyer)
1. In this case, separation of powers doctrine is violated. However, it is unnecessary to construct broad holding
that separation of powers is violated whenever an final judgment is rescinded.
2. If Congress enacted legislation that reopened an otherwise closed judgment, but in a way that mitigated some
of the here relevant separation of powers concerns, by also providing some assurances against singling out that
ordinary legislative activity normally provides (i.e. prospectivity and general applicability), then there would
be a different case.
3. In this case, the statute has no such mitigating features.
(a) It reopens previously closed judgments.
(b) It is entirely retroactive.
(c) It lacks generality, for it applies only to a few individual instances.
(d) It is under-inclusive, for it excludes from coverage others who, relying upon pre-Lampf limitations law,
may have failed to bring timely securities fraud actions.
Dissent (Stevens, Ginsburg)
Since the Act neither commands the reinstatement of any particular case nor directs any result on the merits, there
is no legislative interference implicating separation of powers concerns. The branches of government are
interdependent and cooperate.
I.
THE EXECUTIVE POWER
a.
Executive—Legislative Conflicts
1. Separation of Powers and Checks & Balances—The separation of powers doctrine captures the constitutional
effort to allocate different sorts of power among 3 government entities that are constituted in different ways. The
checks and balances doctrine focuses on the constitutional effort to ensure that the system will be able to guard
against usurpation of authority by any one branch.
 The 2 descriptions emphasize different aspects of national power distribution. Indeed, to some extent the 2
work against each other. Separation of powers suggests 3 autonomous entities, working independently. Checks
and balances suggests overlapping functions in which each branch is able to intrude on and thereby check the
power of the others. Thus, the constitutional framework is best understood as a scheme that embodies a partial,
rather than complete, separation of powers, and that supplements that separation by creating devices by which
one branch can check another. In order to provide checking, the Constitution had to allow some of the branches
to play a role in functions assigned to other branches.
The Federalist No. 47 (Madison) 1787
[385]
Montesqueiu’s understanding of separation of powers, as exemplified by the British Constitution, simply meant
that where the whole power of the executive on one department is exercised by the same hands which possess the
whole power of another department, the fundamental principles of a free constitution are subverted. There can be
no liberty because of the danger of tyranny. In the state constitutions as well, there is not a single instance of
absolute separation of powers. Thus, absolute separation of powers is not warranted.
The Federalist No. 48 (Madison) 1787
[386]
Separation of powers requires certain checks and balances to provide practical security against the possibility of
interdepartmental invasion of functions. Early American constitutions simply demarcated the departmental
boundaries. However, more defense is needed against the encroaching spirit of power. In most forms of
government, it is the executive that you need to worry about. In a representative republic, it is the legislature that
you most worry about. Because our legislative department’s constitutional powers are more extensive and less
susceptible to precise limits, it can easily mask a mild usurpation of power. Also, our legislative department
holds sole access to the pockets of the people. In contrast, the executive is more restrained and the judiciary
function still unclear; thus, they do not have as much potential for usurpation of power.
 There are two purposes to our distribution of national powers:
(1) Efficiency—A central defect of the Articles of Confederation was the failure to provide for a strong
executive. The Constitution’s distribution of powers promotes efficiency by ensuring a sensible division
of labor with a strong executive.
(2) Preventing Tyranny—The Federalist No. 47’s position.
(a) The rule of law—The separation of powers ensures that the power to make the law is not in the hands
of those who execute it. Lawmakers can’t enact oppressive laws knowing that they will be exempt
from their operation. Lawmakers will be less likely to make tyrannical laws for fear that they
themselves will be tyrannically ruled by them. (1995 Congressional Accountability Act).
(b) Rulers vs. ruled—If power were concentrated in one branch, there would be an increased risk that that
branch would act to increase its own power or out of its own interest as opposed to the interest of the
governed. According to The Federalist No. 51, separation of powers blocks this self-interest by
counteracting ambition with ambition. The framers, based on recent experience, were most worried
about the legislature.
 Antidemocratic note: If citizens control representatives, the separation of powers doctrine might
seem antidemocratic. They make it harder for the public to bring about change.
(c) Limited government—The system of checks and balances ensures that it will be difficult to obtain
substantial reforms. No law can be brought about without broad consensus. Madison and Jefferson
concerns about stability and turbulence.
(d) Factions—The separation of powers doctrine makes it so that a faction may be able to acquire power
over one branch, but it would be unlikely it could get all three, which protects minorities against
tyranny.
 Contemporary criticisms—In the late 20th century, the constitutional distribution of powers has come under
attack.
(1) Inefficiency—Because of powerful checks and balances, it is difficult for federal government to
accomplish anything. Prevents popular majorities from bringing about change. Ryan-perhaps we trust
our legislators more now.
(2) Aggravates factions—Allows well-organized private groups to block necessary regulation (reverse
faction). Some urge a greater role for President.
(3) Executive power—Power is now concentrated in the executive, and it is time to reclaim preeminent role of
Congress in Constitution.
(4) Bureaucracy—The growth of an enormous bureaucracy, operating mostly within executive branch, has
fundamentally altered the original constitutional framework and requires some response if the original
constitutional concerns are to be satisfied.
(5) Parlimentarianism—Some suggest parliamentary system is more efficient.
 Formalism v. Functionalism
(1) Formalists—attempt to deduce based on authority. Formalists like rules. Scalia in Plout.
(2) Functionalists—forward-looking, consequential arguments. What’s the best system of government?
Breyer’s cases-specific judgments. Functionalists like standards. However, it is OK to be a functionialist
who believes in rules.
 Functionalists say interbranch interaction is Ok so long as don’t interfere with core functions. Formalist
would decline such a position. Morrison dissent.
 Judicial role—What is the proper role?
(1) Choper—Choper believes that the judiciary should not decide constitutional questions concerning
legislative-executive separation of powers, but should declare them nonjusticiable and remit them to the
interplay of the national political process. The founders believed checks and balances existed independently
from judicial review.
(2) Scalia—Full separation of powers review.
(3) Thayer’s Rule—Midddle ground. Only things that are clearly unconstitutional will be struck down. Persian
Gulf War-Congress and President worked things out themselves.
Article II—“The executive power shall be vested in the President of the U.S.” In Article I, the legislature is granted
all powers “herein granted.” Thus, one might argue that the President has implied powers.
Youngstown Sheet & Tube Co. v. Sawyer (US 1952) Black
[392]
During the Korean War, President Truman sought to avert a strike in the nation’s steel mills by issuing an
executive order directing the Secretary of Commerce to seize the mills and operate them under federal direction.
President Truman sent a message to Congress reporting his action the next day. Twelve days later he sent a
second message. Congress has taken no action. The steel companies seek an injunction to prevent seizure, and
the U.S. Supreme Court grants the injunction by affirming the district court’s decision.
1. The President’s power must stem from an Act of Congress or the Constitution.
2. The President’s power does not stem from an Act of Congress.
(a) There is no statute that expressly or impliedly authorizes the President to take private property.
(b) During the 1947 Taft-Hartley Act debate, Congress had explicitly rejected an amendment authorizing this
method of settling labor disputes in emergencies.
3. The President’s power does not stem from the Constitution.
(a) The Commander-in-Chief powers provide no authorization.
(1) The Constitution provides that the President is the commander in chief of the army and navy of the
United States.
(2) The President’s broad military powers apply only when engaged in day-to-day fighting in a theater of
war.
(3) The President’s actions were too far removed from the actual “theater of war” in which he had the
right to set policy.
(b) The Executive powers provide no authorization.
(1) The Constitution provides that the executive power should be vested in the President and that he shall
take care that the laws are faithfully executed.
(2) The “faithfully executed” clause refutes the idea that the President is a lawmaker.
(3) The Constitution unequivocally states that all legislative powers are granted to Congress.
(4) The President’s order does not direct that a congressional policy be executed in a manner prescribed
by Congress, it directs that a presidential policy be executed in a manner prescribed by the President.
(5) Preamble acts like statute by stating reasons, proclaims as rules to be followed, and designating a
government official to promulgate rules and regulations.
4. Historical practice—Despite the fact that other President’s had taken possession of private business
enterprises in order to settle labor disputes, Black believes the power is still vested in Congress.
Concurrence (Frankfurter)
1. Harry Truman may not be a dictator, but the accretion of dangerous power does not come in a day. It comes
from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested
assertion of authority.
2. A systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before
questioned, becomes a gloss on the executive power vested in the President by Article II, §1.
(a) “It is a constitution we are expounding.” Marshall’s McCulloch opinion.
(a) The Constitution is a framework for government.
(b) Thus, the way it has traditionally operated fairly establishes that it is operating according to its true nature
and gives meaning to the text of the Constitution.
3. This is not such a case.
(a) In executive seizure legislation, Congress has frequently circumscribed the President’s authority.
(b) Most importantly, Congress explicitly withheld this authority from the President in the 1947 Taft-Hartley
Act.
Concurrence (Jackson)
1. The President’ s powers are not fixed but fluctuate, depending on their disjunction or conjunction with those of
Congress.
2. There are three categories of Presidential authority.
(a) When the President acts pursuant to an express or implied authorization from Congress, his authority is at
its highest. There would be a strong presumption as to constitutionality and wide latitude of judicial
interpretation. The burden of persuasion rests heavily on challengers to the President’s authority.
(b) When the President acts in absence of a congressional grant or denial of authority, he can rely only on his
independent powers, but there is a zone of twilight in which he and Congress may have concurrent
authority, or in which distribution is uncertain. Any challenge will depend on the imperatives of events
and contemporary imponderables.
(c) Where the President acts in contradiction of the expressed or implied will of Congress, his power is at its
lowest ebb. The President may only have authority if it is within his domain and Congress does not have
authority. Careful scrutiny.
3. Truman’s action falls into the 3rd category.
(a) This Presidential action falls into the 3rd category.
(1) The 1st category doesn’t fit because no congressional authorization.
(2) The 2nd category doesn’t fit because Congress has not left seizure of private property an open field but
covered it by 3 statutory policies.
(b) The President does not have constitutional authority to make law alone.
(1) The “executive power” clause does not encompass all executive powers because it would contradict
the fact that the framer’s listed several specific powers. Also, such an interpretation would contradict
Declaration of Independence’s fear of a strong executive like George III.
(2) The “commander in chief” clause does delegate to the President affirmative power to seize steel
because this would contradict the fact that such power was given to Congress via the “support
Armies” and “provide and maintain navies” clause.
(3) The “faithfully executed” clause is limited by the due process clause. One gives government
authority that reaches so far as there is law, the other gives a private right that authority shall go no
farther.
(4) There are no inherent powers that have accrued through practice and custom in emergency situations.
a) The false assumption is that necessity knows no law.
b) Declaring an inherent power may be wise, but the forefathers omitted it. They knew and
considered emergencies existed (suspend habeas corpus), yet they didn’t provide for this type of
power. They feared usurpation of power. Emergency powers tend to kindle emergencies.
c) Congress has authority to grant emergency powers.
(c) By his prestige as head of state and the rise of the party system, Jackson notes that there has been a
significant extradjudicial supplement to real, as opposed to paper, executive power, but the Courts must
check such power.
Concurrence (Douglas)
1. Congress has he only power to seize the steel mills because it is the only branch that has the power to pay
compensation for a seizure via the 5th Amendment’s condemnation clause.
2. Slippery slope. If we allow it, what might some other President do.
Dissent (Vinson, Reed, Minton)
1. Living Constitution theory. Cases do arise presenting questions that could not have been foreseen by the
framers. Yet, we do not need to expand the constitution today for history and time-honored principles of
constitutional law dictate the result.
2. In addition to “executive” clause, the Framers intended to create a vigorous executive.
3. Hamilton believed President has power to preserve peace until Congress acts.
4. Throughout history, Presidents have unilaterally acted to deal with national emergencies w/o specific statutory
approval, at least until Congress had the chance. Congress and courts have consistently approved.
(a) Washington summoned militia and secured fidelity to national revenue laws in Pennsylvania without
waiting from call from state government.
(b) Lincoln seized rail and telegraph lines without statutory approval.
(c) Roosevelt’s “Stewardship Theory”-the executive is subject only to the people, and, under the Constitution,
bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to
render service.
(d) In WWI, Wilson established War Labor Board w/o congressional approval.
(e) 20 years later, Wilson directed seizure of coal mines to remove obstruction to the effective prosecution of
the war.
(f) Roosevelt’s National War Labor Board.
5. The majority is worried about strawmen. There is no need to fear unlimited executive power, arbitrary action,
or usurpation of power in this case. Truman closed the door himself when he sent message to Congrress
promising to abide by any approval or disapproval of his action.
6. The “Message Boy Concept” of Presidential power is wrong. Under this theory, the President can not even act
to preserve legislative programs from destruction so that Congress will have something to act upon. Ryan-it
may create Presidential hesitation in our national defense, which could cost us.
 Truman refused to issue a labor injunction pursuant to the Taft-Hartley Act.
 The Supreme Court has been criticized for granting certiorari and deciding so fast. The sides were nearing
settlement, and the industry no longer had pressure to resolve the dispute because they had nothing to lose.
Three Views of What Other Powers Besides Constitutional Powers to Executive Possesses.
(1) Statutory Grants—Black, Jackson, Taft.
(2) Statutory Grant + Emergency Power
(3) Statutory Grant + Any Act Not Forbidden By Law—Roosevelt, Vinson dissent.
Methodology
1.
2.
3.
4.
5.
Black-rigidly textual and largely one of classification (legislation or execution). Criticism—the terms
legislation and execution are too ambiguous to support the Court’s rationale; it was by no means clear that the
seizure of the steel mills was legislative.
Jackson (and to some extent Frankfurter)—three-pronged inquiry.
(a) Whether Congress has granted or refused to grant the relevant power.
(b) Whether historical practices support the assertion of power.
(c) Whether contemporary imponderables or the imperatives of events argue in favor of or against the asserted
power.
Jackson and Frankfurter agree that the text of the Constitution is inconclusive. Both believe that history is
relevant as a gloss on the text. This may be an adverse possession rule for constitutional interpretation.
Majority makes two assumptions.
(a) Congress at least implicitly disapproved of the asserted presidential power.
(b) Congress’s view is important to the outcome.
Jackson’s approach implicitly assumes that the meaning of Article II should be resolved by political, rather
than legal, processes.
Implied and Emergency Powers
1. Note that Article 1 refers to “legislatives powers herein granted,” while Article II refers to executive power
without a “herein granted” qualification.
2. Alexander Hamilton said “the different modes of expression in regard to the two powers confirm the inference
that the authority vested in the President is not limited to the specific cases of executive power delineated in
Article II."
3. Roosevelt’s Public Stewardship Theory stems from this view.
4. Taft held that the President may exercise only those powers traceable to a constitutional grant of authority.
In re Debs (US 1894)
President Cleveland requested a Chicago U.S. Attorney to seek an injunction designed (a) to continue the
operation of the train system during the Pullman strike and (b) to prevent the strike because of unlawful
interference with interstate commerce and the flow of mail. There was no statutory authorization for the
injunction. The Court nonetheless upheld it.
1. The Court pointed to the breadth of federal power over interstate commerce and the postal system and to the
existence of numerous statutes regulating railroads and the postal system.
2. In these circumstances, it was unnecessary to have a precise statute prescribing by legislation that any
interference with these matters shall be offenses against the U.S., and prosecuted and punished by indictment
in the proper courts.
3. There is no such impotence in the national government. The strong arm of the national government may be
put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the
mails.
4. The government had the power to seek an injunction because the right to use force does not exclude the right
to appeal to the courts for a judicial determination and for the exercise of all their powers of prevention.
In re Neagle—the Supreme Court upholds an order by the Attorney General to a U.S. Marshal to protect a Supreme
Court justice whose life had been threatened by a litigant, notwithstanding the absence of express statutory
authorization.
United States v. City of Philadelphia—the Supreme Court says there is no implied power to bring suit to challenge
unconstitutional practices of a Philadelphia police department.
Dames & Moore v. Regan (US 1981) Rehnquist
[407]
President Carter issued regulations providing that all attachments against Iran were null and void. In addition,
Carter blocked the transfer of all Iranian assets subject to U.S. jurisdiction. Dames & Moor filed suit against
Iranian organizations seeking collection of monies owed under an assigned K. The District Court issued an
attachment. Subsequently, the hostage crisis was resolved. Carter suspended all contractual claims
Attachment and Transfer of Asset Question
1. Justice Jackson’s three categories are a somewhat oversimplified grouping. Executive action does not fall into 3
pigeon holes, but rather falls at some point along a spectrum running from explicit congressional
authorization to explicit congressional prohibition.
2. The International Emergency Economic Powers Act gives the President specific congressional authorization to
nullify the attachments and order the transfer of Iranian assets. Petitioner did not overcome presumption
(Jackson’s 1st category).
Suspension of Claims Question
1.
Congressional Acquiescence.
(a) Neither the IEEPA or the Hostage Act gave the President specific congressional authorization to suspend
claims pending in U.S. courts.
(b) Both statues, however, are highly relevant in the looser sense of indicating congressional acceptance of a
broad scope for executive action in these circumstances.
(c) Congressional failure to specifically delegate authority does not, especially in the areas of foreign policy
and national security, imply congressional disapproval. In fact, Congressional acquiescence may be
deemed to invite independent presidential authority.
3. History—There is a history of congressional acquiescence in this area. The history of the International Claims
Settlement Act of 1949 shows that Congress has implicitly approved of the practice of claim settlement by
executive agreement.
4. The Court considers two other relevant factors.
(a) The Court believes its conclusion is buttressed by the fact that means chosen by the President can afford
Dames & Moore meaningful relief.
(b) Also, Congress has not signaled any disapproval of the Iranian Agreement.
5. The Court emphasize the narrow scope of the holding.
(a) The Court was simply holding that where such a settlement or suspension is a necessary incident to the
resolution of a major foreign policy dispute, and Congress has acquiesced, the action will be deemed within
the president’s constitutional authority.
(b) The fact that Congress has impliedly consented to Presidential action will almost certainty not by itself bring
the action within the scope of his constitutional authority; it will merely be a factor in the analysis of close
cases.
 Miller—Rhenquist’s opinion reflects the considerable pressure the Court must have felt to decide the way it did.
Realpolitik. Invalidation of the executive agreement would have placed the prospective conduct of American policy
in an intolerable position. Political decision.
 Koh—The Court should have demanded more specific legislative approval for the president’s far-reaching
measures. The hostages were home and they had 6 mos. To transfer assets. Thus, there was plenty of time for the
President toask a supportive Congress for a swift joint resolution of approval.
 There were lots of statutes nearby that authorized similar things. If none specifically authorizes, the general tenor of
Congressional legislation is that Congress approves of what the President is doing.
Youngstown v. Dames & Moore—In the former, we imply a negative implication. IN this case, we infer from the
general tenor of legislation. Hard to reconcile. Maybe Dames & Moore more closely resembles a foreign affairs
case. Rehnquist doesn’t acknowledge tension or inconsistency.
II. Foreign Affairs
In domestic affairs, the Supreme Court has asserted that separation of powers questions can be guided by textual
divisions of authority. The foreign sphere is different. There is no natural division. Irregular, uncertain division
renders claims of usurpation more difficult to establish and the courts have not been able to adjudicate them. Thus,
much of the law is a product of historical practice.
Vermeule thinks that where Congress has delegated power to the President it is plausible to treat it as a foreign affairs
case.
1. Executive Authority
United States v. Curtiss-Wright Corp. (US 1936) Sutherland
[474]
Curtis-Wright Corp. allegedly conspired to sell 50 machine guns in the United States to Bolivia, a country then
engaged in armed conflict in the Chaco. The United States alleges that this is a violation of a May 28, 1934 Joint
Resolution of Congress, which delegated to the President authority to prohibit the sale of arms if he found that such
a prohibition would contribute to the establishment of peace in the region. The Supreme Court held that statute did
not unconstitutionally delegate authority to the President; he already had it.
1. The foreign affairs power is invested in the federal government not by the Constitution, but as a necessary
concomitant of nationality.
(a) In the domestic arena, the Constitution carved from the general mass of legislative powers then possessed
by the states, leaving those not included to the states.
(b) Since the states never possessed international powers, the United States must have received its
international powers from somewhere else.
(c) When the sovereignty of Great Britain in respect to the colonies ceased, it immediately passed to the
Union (the federal government).
2. The President is the sole organ of the federal government in international relations—a power which does not
require as a basis for its exercise an Act of Congress. Little real textual or historical support.
3. As a matter of policy, the President should indeed have this power over international relations.
(a) If serious embarrassment is to be avoided and success of our aims to be achieved, congressional legislation
must often accord to the President a degree of discretion and freedom from statutory restriction which
would not be admissible were domestic affairs alone involved.
(b) The President has the better opportunity of knowing the conditions which prevail in foreign countries,
especially in time of war.
(1) President has confidential sources of information.
(2) President has diplomatic, consular, and other agents.
(3) The agent’s information may require secrecy, which the premature disclosure of may produce
harmful results.
4. A long unbroken history of legislative practice supports this conclusion.
 How do we know this is a foreign affairs case?
(1) Certain factors—Bolivian agent, sale on American soil, American firm is a defendant.
(2) Maybe we look at case in reverse. Would the President be embarassed? Does he better know conditions?
(3) Immediate Effects—Vermeule???
(4) Remote Purpose—Vermeule??
 In Sutherland’s view, the President is the sole organ of the national government’s foreign relations. Vermeule thinks
this can’t be squared with the Constitution. Congress has more foreign affairs powers than President. Also, it is not
clear that Congress has less expertise than the President. For example, Congress may have institutional memory
stemming from people sitting on the same committee for 30 years. Finally, Vermeule believes that Sutherland violates
constitutional etiquette that a Court must make some gesture towards text.
 Is Youngstown distinguishable? Curtis-Wright would be a category one case. Delegation.
 The Curtis-Wright decision raises issues based on text, history, and functionalism.
(1) Text—The Constitution’s text does not make the President the sole organ of the federal government. Congress has
a number of foreign affairs powers (declare war, regulate commerce with foreign nations, army, navy, etc.) The
President has some as well. Thus, the text hardly provides unambiguous support for the Court’s broad statements.
(2) History—Many President had assumed a special role of leadership in the international realm because they
concluded that necessities of international relations prevented Congress, with its many members, from acting
quickly. Also, the Framer’s wanted an energetic executive.
(3) Functionalism—The third section of the opinion relies on functionalism. This parallels the argument for delegation
of legislative power to the executive in domestic affairs; only the administrative state can regulate the economy in
an efficient and effective fashion.
b. The Allocation of Warmaking Authority
The Constitution is notoriously ambiguous on the allocation of warmaking authority between the President and
Congess. The Commander in Chief clause and the Declare War clause appear to be in conflict.
Some stake extreme position that the Commander in Chief clause only allows the President to direct troops. President
has no power to do anything w/o congressional authorization. However, there are consequentialist boundaries to
textualist arguments, i.e. the President has to have the power to repel sudden attacks. However, what is a “sudden
attack” quickly involved line drawing problems.
(1) Original Understanding—During the Constitutional Convention, the Framers inserted the phrase “declare war” in
place of “make war” with respect to Congress’s power. In addition, the President should be able to act to repel
sudden attacks, but he can not initiate war without a congressional declaration.
(a) Arguments for placing warmaking power in the Senate (Pinckney):
(1) House of Representatives too numerous for such deliberations.
(2) Senate is more acquainted with foreign affairs and most capable of proper resolutions.
(3) Power to make war should be placed in same body as power to make peace.
(4) No advantage to larger states.
(5) In a republic, it is heresy to allow a President alone to declare war. (Gerry).
(b) Arguments for placing warmaking power in President (Butler):
(1) Legislature is too slow and deliberative.
(2) The President will not make war unless the people support it.
Ratner ‘The Coordinated Warmaking Power’ (1971)
The President is authorized by “repel sudden attack” to protect Americans from external force in an emergency.
An offense-defense distinction is untenable because sometimes the best defense is a good offense.
Ely ‘Suppose Congress Wanted a War Powers Act that Worked’ (1988)
Enemy actions not actually amounting to an attack on U.S. territory can more obviously threaten our national
security now that when the Constitution was agreed to. A functional interpretation of “repel sudden attacks”
should thus permit him to act to preserve national security, but must seek approval from Congress as soon as
possible.
Note ‘Congress, the President, and the Power to Commit Forces toCombat’ (1968)
There are some cases where an eruption of violence abroad poses a threat to U.S. “security interests” that the
defense of the U.S. itself is immediately involved. However, several factors are involved in this process. The
meaning of war must be determined with reference to the purpose of the war-declaring clause: to safeguard the
U.S. against unchecked executive decision to commit the country to a trial of force. Two reasons: (1) The
decision involves risks of great economic and personal sacrifice. (2) The very act of using force entails moral
and legal consequences sufficiently significant to require an expression of popular approval.
There are two main camps in the war powers debate.
(1) Congressional Supremacy—President needs declaration or statutory authorization to commit troops to action
somewhere. De minimus category—a few agents may be OK. These scholars are outraged by Congress’s
abdication of power vis a vis the President. President gets to accrete illegitimate power. Congress doesn’t
complain because they can get reelected by passing the buck.
(2) Presidental Supremacy—President can do it all. Congress has post hoc veto power, supplied by the power of the
purse and impeachment. Arguments from current expediency. History has put gloss on Constitution.
 Vermeule thinks this is bizarro world where everything is backwards. The same people that support Congressional
supremacy model are convicted anti-textualists, supports of Presidential supremacy model ridicule evolving
Constitution and changed circumstances doctrine.
Case Law
1. The Civil War
The Prize Cases (US 1863) Grier
[479]
The Supreme Court upholds Lincoln’s blockade of southern ports after the southern secession from the Union.
1. A civil war is never publicly proclaimed; however, Courts must recognize its existence.
2. Although Congress has the power to declare a foreign war, the Constitution does not give it the power to
declare war against a state.
3. The President has no power to intitiate or declare war against a foreign nation or a state.
4. However, by Acts of Congress, the President is bound to call out the militia and use military forces to repel an
invasion by a foreign nation or to suppress an insurrection against the government of a state or of the United
States.
5. States organized in rebellion is a war, even if the declaration of it be “unilateral.”
Dissent (Nelson, Taney, Castrom, and Clifford)
1. The Constitution confers the war power in Congress.
2. There is no need to vest construe the Commander-in-Chief clause to mean that the President is vested with the
war power.
(a) The President already has the navy and military power at his disposal.
(b) Congress can be assembled within 30 days, if the country’s safety is at stake.
2. The Vietnam War—During Vietnam, there were numerous efforts to resolve the war powers issue; however, most
courts found a nonjusticiable political question.
Orlando v. Laird (2nd. Cir. 1971)
The 2nd Circuit holds that the Constitution required congressional participation in the Vietnam War, but that
Congress had provided sufficient authorization to the President.
Some have suggested that the Court should have taken a more activist stance.
Ely ‘The American War in Indochina’ II (1990)
There is a tacit understanding between the President and Congress. The President acts, Congress looks the
other way so as to avoid the heat. Under this arrangement, Congress will seldom have an incentive or the moral
standing to do anything about an unconstitutional war. Thus, courts should be more receptive to lawsuits than
they have been. (view of admin law).
Ely ‘The American War in Indochina’ I (1989)
The war in Vietnam, unlike the war in Cambodia and Laos, was constitutional under currently prevailing
notions of congressional authorization, but that these notions should be clarified in ways that would more
effectively force Congress to meet its constitutional obligations.
3. The Persian Gulf War—There has been debate over whether President Bush properly received congressional
authorization.
Dellums v. Bush (D.D.C. 1990)
After President Bush’s Nov. 8 announcement of an intent to gain an offensive capability, 54 members of
Congress filed suit to enjoin the President from ordering American forces into war absent meaningful
consultation with and genuine approval by Congress. The District Court rejected the motion for a preliminary
injunction for lack of ripeness. However, the Court stated that it believed that an offensive entry into Iraq by
thousands of servicemen could be described as ‘war’ within the meaning of the Constitution. The Court
believed that an injunction could be issued to prevent the war.
 There has also been debate over whether House Joint Resolution 77 (approving the use of American military force
against Iraq after Jan. 15, provided that the President determined and reported to Congress that all diplomatic efforts
had been exhausted. Note that during debate on the floor, both sponsors and opponents spoke of the resolution as
equivalent to a declaration of war.
Sidak ‘To Declare War’ (1991)
The Resolution was a legal nullity. To commence warfare on the scale witnessed against Iraq, the President
needed to receive a formal declaration of war.
Koh ‘The Coase Theorem and the War Power’ (1991)
Congress was aware that they were subject to public accountability. Pre-vote speeches were nationally
televised. Toll-call votes were published in every newspaper. Given this public accountability, it is difficult to
see what additional accountability would have been gained if the resolution was a declaration of war.
III. Legislative Authority—Before the War Powers Resolution Act of 1973, the President enjoyed considerable
military discretion. However, Vietnam and White House distrust created by Nixon spurred Congress to act.
Nixon attempted to veto it.
War Powers Resolution (1973)
1. The purpose of the resolution is to fulfill framer’s intent and insure the collective judgment will apply to
conflicts. §1541(a)
2. The Necessary and Proper clause extends to all constitutional powers. Not just congressional powers.
Thus, the resolution is constitutional. §1541(b)
3. The Commander-in-Chief clause authorizes the President to introduce U.S. troops into conflicts pursuant
to three situations. §1541(c)
(a) A declaration of war
(b) Specific statutory authorization
(c) National emergency created by an attack upon the U.S., its territories or possessions, or its armed
forces.
4. The President must in every possible instance consult with Congress before introducing U.S. troops into
conflict or situations where imminent involvement in conflict is clearly indicated. After such
introduction, the President must still consult regularly with Congress. §1542
5. In the absence of a declaration of war, the President must submit a report within 48 hours to the Speaker
of the House and Senate Pro Tempore setting forth specific information. §1543(a)
(a) Circumstances necessitating the introduction of armed forces.
(b) Constitutional and legislative authority under which it occurred.
(c) Estimated scope and duration of the hostilities.
(d) Such other information as Congress may request.
6. The reporting requirement applies in three situations where U.S. troops are introduced. §1543(a)
(a) Conflict or situations where imminent involvement in hostilities is clearly indicated by the
circumstances. (a)(1)
(b) Operations in territory, airspace, or waters of a foreign nation, while equipped for combat, except
for supply, replacement, repair, or training deployments. (a)(2)
(c) Substantial enlargement of U.S. combat-equipped troops already in a foreign nation. (a)(3)
7. The President must cease military operations within 60 days after report’s submission. However, the
President may continue to engage in war in several situations. §1544(b).
(a) Congress has declared war or enacted specific authorization for use of troops.
(b) Congress extends the 60-day period
(c) Congress is unable to meet as a result of an attack upon the U.S.
8. Congress may extend the 60-day period by up to 30 days if the President certifies to Congress in writing
that unavoidable military necessity respecting the safety of U.S. forces requires the continued use of such
armed forces in the course of bringing about a prompt removal of such forces. §1544(b)
9. If Congress so directs by concurrent resolution, the President must remove U.S. forces from foreign
nations if there is no declaration of war or specific statutory authorization. §1544(c)
10. Congressional authorization may not be inferred from certain situations. §1547(a)
(a) A provision of laws or Appropriations provision may not give rise to an inference unless there is
specific authorization and a statement that it is intended to constitute such authorization.
(b) A treaty may not give rise to an inference unless the treaty is implemented by legislation granting
specific authorization and includes a statement that it is intended to constitute such authorization.
11. There is no further specific authorization needed for joint headquarters operations of high-level military
command established prior to this resolution and pursuant to the U.N. charter or any U.S. treaty. §1547(b)
12. “Introduction of U.S. forces” includes assignment of troops to command, coordinate, participate in the
movement of, or accompany foreign military forces when such forces are engaged in or there exists an
imminent threat of hostilities. §1547(c)
13. The War Powers Resolution is not intended to alter Constitutional authority or existing treaties.
Furthermore, it shall not be construed so as to give the President more power than he had before.
 A possible policy criticism is that there may be a possible need for secrecy in some operations.
 The War Powers Resolution contains a legislative veto provision (§1544(c)). This may be unconstitutional after
Chadha. Glennon and Ely disagree.
 Glennon also argues that a concurrent resolution under §1544(c) can have no mandatory effect in requiring
Presidential withdrawal of armed forces, Justice Jackson’s Youngstown opinion would place the President’s power
at its lowest ebb.
 There is much debate surrounding the constitutionality of the War Powers Resolution Act of 1973. There are
several views.
1.
The War Powers Resolution is an unconstitutional infringement on the powers of the President. The
Constitution gives the President the authority to introduce armed forces into hostilities without a congressional
declaration of war. Especially in “repel sudden attack” cases, Congress gives itself a role that is
constitutionally proscribed.
Rostow’s ‘Great Cases Make Bad Law’ (1972)
Two arguments: (1) Undeclared wars have frequently been fought in the nation’s history (Nixon’s veto
argument). (2) The War Powers Resolution is contrary to the framer’s intent to have a strong Presidency.
2. The War Powers Resolution is Constitutional. It merely restores the constitutional balance that had been upset
by a long period of congressional inactivity. Furthermore, the WPR may even unconstitutionally increase
President’s powers for it seems to allow a President to wage an undeclared war in far too many circumstances.
Carter’s ‘The Constituionality of the War Powers Resolution’ (1984)
A history of congressional acquiescence does not itself prove that Congress lacks authority to limit the exercise
of power when it gets wisdom and courage to do so.
3. §1547(d)(1) makes the preceding provisions meaningless. It restores the constitutional status quo and remits
those deciding on the distribution of war powers to the Constitution itself.
4. War Powers Resolution in Practice. Most commentators agree that the WPR has been ineffective in
constraining executive discretion. Congress has never formally enacted a resolution pursuant to the War
Powers Resolution, and Presidents have regularly ignored it.
Koh ‘The National Security Constitution’ (1990)
The War Powers Resolution fails to address two types of military action that soon came to dominate the 1980s.
1. Covert wars—In this type of ‘war’, intelligence operative working under civilian supervision conduct
paramilitary operations against foreign governments. By its own terms, the WPR regulates only “United
States Armed Forces” and does not reach private activities of CIA operatives.
2. Short-term Military Strikes—Congressional silence has freed executive branch to treat the 60-day limit as
de facto permission to commit troops abroad for 60 days. (Ford-Vietnam, Carter-Iran, Reagan-Grenada,
Libya, Persian Gulf, Bush-El Salvador, Philippines, and Panama).
Ironically, the WPR has also demonstrably failed to prevent even the type of creeping escalation that it was
expressly enacted to control. (Reagan’s escapades in Lebanon and the Persian Gulf). Therefore, in order to
enforce the WPR’s original purpose, Congress should pass a new variant of it.
Ely’s ‘Suppose Congress wanted a War Powers Act that will work’ (1988)
Congress failed to plan for presidential defiance of the WPR. If Congress has the courage, it should enact a
stronger WPR as a precommitment device to hold itself accountable for future wars.
M. Glennon’s ‘Constitutional Diplomacy’ (1990)
No modification will insure collective judgment. The most a statute could do is facilitate individual
congressional efforts to carry out their responsibilities under the Constitution, which requires keen
understanding of separation of powers theory and fortitude to stand up to those who equate criticism as lack of
patriotism.
 The Boland Amendments and the Iran-Contra Affair
Beginning in late 1982, the American press began to carry reports concerning the administration’s ‘secret war” in
Nicaragua. Concerned about American support for the Contras, Congress attached a series of restrictions on American
involvement in Nicarague to annual appropriations bills enacted between 1982 and 1986 (The Boland Amendments).
The restrictions took different forms in different years, but in general, they barred an agency or entity of the U.S.
involved in intelligence activities from spending funds to support military or paramilitary operations in Nicaragua.
While these restrictions were in effect, members of National Security Council staff assisted in raising funds from 3 rd
countries and private individuals to aid the Contras. In addition, administration officials helped run a resupply operation
for Contra troops in the field and recruited other individuals to assist in logical operations. These operations created a
major scandal when it came to light that profits from secret arms sales to Iran had been used to help finance the Contras.
Officials contended that the Boland Amendments were unconstitutional.
Report of the Congressional Committees Investigating the Iran-Contra Affair (Minority View) As in Curtis-Wright,
the President is the sole organ of the government in foreign affairs. Congress does not have to appropriate funds
for covert operations. Once Congress establishes such a fund, therefore, it may as a quid pro quo sets rules for its
use. However, may not ask the President to give up a power he gets from the Constitution, as opposed to one he
gets from Congress, as a condition for getting something.
Report of the Congressional Committees Investigating the Iran-Contra Affair (Majority View) Curtis-Wright is
inapplicable to this situation because it involved a President claiming inherent constitutional authority in the
absence of an Act of Congress. In this case, the President acted in direct violation of the Boland Amendments.
While each branch of government has primacy in certain spheres, non can function in secret disregard of the others
in any sphere.
 Both the WPR and the Boland Amendments represent congressional efforts to utilize self-help in enforcing
constitutional boundaries.
 Whether on the merits or on justiciability grounds, the courts have ruled for the President in this type of case with
astonishing regularity. Koh. There are several conclusions that can be drawn from this fact.
(1) Because the Court usually “rubber stamps” executive foreign policy decisions when it adjudicates cases
involving foreign affairs, judicial review is not the solution to the inadequate enforcement of constitutional
limitations on executive power. Rather, constitutional requirements are best enforced through the give and
take of the political process.
(2) Constitutional limitations have been inadequately enforced precisely because the Supreme Court has
mistakenly remitted these questions to the political process.
(3) Constitutional limitations have been adequately enforced. Although neither the Court nor the Congress has
been successful in restraining executive power, the framers deliberately created a strong executive and in any
event wrote a document flexible enough to accommodate the changed circumstances that have caused our
political system to tilt toward a powerful President.
Treaties, Executive Agreements, and Congressional-Executive Agreements
1.
Treaties
Article II, sec. 2 of the Constitution grants to the President the power “by and with the advice of the Senate, to
make treaties, provided two thirds of the Senators present concur.”
Article VI, sec. 6 of the Constitution makes all U.S. treaties the supreme law of the land.
Whitney v. Robertson (US 1888)
The Constitution places a treaty on the same footing as a statute. Both are declared the supreme law of the land,
and no supremacy of one over the other is given. If the two conflict, the one last in date will control the other
provided that the stipulation of the treaty on the subject is self-executing.
The Head Money Cases (US 1884)
At least with regard to domestic law, a later Act of Congress can also repeal a treaty, although the repeal may
violate international law.
L. Henkin’s ‘Foreign Affairs and the Constitution’ (1972)
A treaty must be a bona fide agreement between states. Attempts to use treaty power to circumvent the House of
Representatives and the States are not valid treaties under international law, and therefore not a treaty under the
Constitution.
2.
Executive Agreements
Although there is no express constitutional authority for this practice, the Constitution seems indirectly to recognize
the possibility of nontreaty international agreements in Article I, sec. 10, which prohibits states from entering
treaties, but authorizes them to enter an agreement with a foreign power with the consent of Congress.
Dames & Moore v. Regan
The Court upheld constitutionality of presidential action taken pursuant to an executive agreement with Iran.
However, the Court did so only after finding an congressional authorization (or at least acquiescence in) the
President’s decision.
United States v. Belmont (US 1937) Sutherland
The Court upheld the terms of an executive agreement surrounding the U.S.’s recognition of the Soviet Union,
even though the agreement was reached without prior congressional authorization. In doing so, the Court relied
heavily on the President’s express constitutional authority to “receive Ambassadors.”
L. Henkin’s ‘Foreign Affairs and the Constitution’ (1972)
The argument that Belmont stands for the proposition that the President is constitutionally free to make any
agreements involving our relations with a foreign nation is unacceptable. It would remove the check of Senate
consent which the framers wrote into the constitution. Thus, there are some agreements that the President can
make on his own authority and others that he can not, but Sutherland did not tell us which are which.
 Some suggest that the Senate has a check by using its ability to use this sort of constitutional rhetoric in a
political struggle to force the President to seek its acquiescence.
3.
Congressional-Executive Agreements
In recent years, the President has avoided treaties and executive agreements. Instead, he relies on congressionalexecutive agreements that are approved by simple majorities of both Houses of Congress. NAFTA and GATT
approved by simple majorities, rather than 2/3rds Senate majority for a treaty.
Tribe’s ‘Taking Text and Structure Seriously’ (1995)
If the unenumerated power to enter non-treaty agreements exists within the federal government, it seems clear
that it is the President, not Congress, who has the authority to exercise this power on behalf of the nation. This
power is a result of the broad delegation of Article II, whereby the President is understood to have inherent
power to perform all executive acts, subject to some limitations. Nothing suggests that Congress has an ex post
role in approving international agreements.
Ackerman & Golove ‘Is NAFA Constitutionl?’
In approving GATT, Congress is enacting a “law” that is formally identical to all others passes under Article I.
There are many situations where the Constitution sets up multiple procedures for accomplishing the same end.
Articles I and II set up alternative systems through which the nation can commit itself internationally—one with,
and one without, the cooperation of the House.
C. Executive-Judicial Conflicts
Executive Civil Immunities
(a) Cabinet Officer—A Court can order a cabinet officer to perform nondiscretionary legal duty. Marbury,
Youngstown.
(b) President—A court can’t enjoin a President for a non-discretionary act. Mississippi v. Johnson. However, in US
v. Nixon, the President is required to turn over information in a criminal proceeding.
Civil Actions for Damages—
(a) President—President has civil immunity when acting in his official capacity. Nixon v. Fitzgerald. However, it
appears that this has been cut back. Clinton v. Jones.
(b) Presidential Aides—Presidential aides have qualified civil immunity. They can’t violate a clearly established
legal right. Harlow v. Fitzgerald.
Executive Privilege
(a) Hard Privilege—State Secrets
(b) Soft Privilege
Criminal Proceedings
Art. I, §3, cl. 7 says that judgment shall extend no further than removal from office, but the party convicted shall
nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. What inference to
do draw from convicted? Vermeule believes that the framers believed that you must impeach before you indict. The
framers may have just assumed that as a practical matter a President will not allow himself to be prosecuted by his
subordinates. Maybe, he cant’ shield himself, however, because of public opinion and political issues. This view also
leads to weird possibilities, i.e. what if President bribes 34 senators to always support him, thus no impeachment.
1.
Executive Authority
Article II, Sec. 1 vests “executive power” in the President.
Article II, Sec. 3 provides that the President “shall take care that the laws be faithfully executed.”
United States v. Nixon (US 1974) Burger
In response to Jaworski’s subpoena duces tecum, Nixon releases transcripts of the Watergate tapes, but refused to
produce the tapes themselves. The Supreme Court upheld the general doctrine of executive privelege; however,
in this case, the privelege did not apply.
1. The Court rejects the President’s argument that the federal district court did not have jurisdiction to issue the
subpoena since this was an executive-executive dispute between a superior and subordinate. The Court
holds that this argument would defeat the purpose of the Special Prosecutor statute.
2. The Court rejects the President’s claim that the separation of powers doctrine precludes judicial review of a
President’s claim of privelege.
(a) The Court notes that in performance of assigned constitutional duties each branch of the government must
initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect
from the others.
(b) However, the Court quotes Marshall’s Marbury statement that it is the duty of the judicial branch to say
what the law is.
(c) Since the Court has consistently exercised judicial review over express powers (Speech and Debate clause
cases), it follows that the Court has the authority to interpret claims with respect to powers alleged to
derive from enumerated powers.
(d) Any other conclusion would be contrary to separation of powers and checks and balances theory.
3. The Court holds that there is a Presidential privilege of communication in the exercise of Article II powers.
The Court noted that the confidentiality was required by the fact that those who expect public dissemination
of their remarks may well temper candor with a concern for appearances and for their own interests to the
detriment of the decision-making process. Therefore, the Court believes that the privilege of confidentiality
derives from the supremacy of each branch within its own assigned area of constitutional duties.
4. The Court observes that both the President’s claim of privilege (Nowhere in the Constitution is there any
explicit reference to privilege of confidentiality, yet to the extent this interest relates to the effective
discharge of a President’s powers, it is constitutionally based) and the criminal justice system’s need for
access to all relevant evidence (6th and 5th Amendments) are constitutionally based.
5. However, the Court notes that this presumptive Presidential privilege must be considered in light of the
Court’s historic commitment to the rule of law.
6. Thus, the Court holds that the executive privilege is a qualified one.
(a) In this case, the claim of privilege is a general one (soft privilege), and not related to protect “military,
diplomatic, or sensitive national security secrets” (hard privielege). Courts have always given the utmost
deference to Presidential responsibilities in these Article II areas.
(b) The Court does not believe that Presidential advisers will be moved to tempter the candor of their remarks
by the infrequent occasions of disclosure because of the possibility that such conversations will be called
for in the context of a criminal prosecution.
(c) Thus, The criminal justice system’s need for access to all relevant evidence outweighs the President’s
claim of general privilege.
7. Procedure—If a President believes subpoenaed material is privileged, he must invoke the claim on return of
the subpoena. The District Court then treats the material as presumptively privileged, and the Special
Prosecutor then must show that the material was essential to the justice of the pending criminal case. A
District Court must then conduct an in camera examination of privileged materials. Statements that are
admissible and relevant to the criminal prosecution are to be isolated, and all other statements were to be
disregarded and kept secret.
8. In Footnote 19, the Court notes that they do not address certain issues.
(a) The balance between the President’s generalized interest in confidentiality and the need for relevant
evidence in civil litigation.
(b) The balance between the President’s generalized interest in confidentiality and congressional demands for
information.
(c) The President’s interest in preserving state secrets.
 The Court first addresses the executive-subordinate dispute, which may cut in favor of the Court finding a political
question. Under the theory of the unitary executive, the President can direct subordinates how to implement statutes,
except independent agencies. See Morrison.
 Cynical view of Nixon and Youngstown—The Court smells blodd; thus, they pile it on by claiming to uphold the
rule of law. Therefore, we won’t let appellate review go forward and grab thespotlight away from impeachment
inquiry. The Court gains public support with no political risks. After Nixon, the Court’s popularity went up.
2.
Presidential Immunity
Mississippi v. Johnson (US 1867)
The Court refused to hear a suit attempting to enjoin the President’s enforcement of the reconstruction laws. The
Court concluded that the courts do not have the power to issue an injunction against the President. The Court
referred in particular to the difficulties of enforcement and to the alternative route of impeachment.
 Note-While President Truman was not the named defendant in Youngstown, his order was in fact the subject of
the Court’s injunction.
 Is the no presidential injunction in official duties doctrine constitutionally grounded? The Constitution may
suggest that impeachment is the only remedy. Separation of powers concerns. Youngstown held that you can’t
enjoin the President, but you can enjoin subordinate cabinet officials. There may be hard distinction between
Presidents and subordinates.
Nixon v. Fitzgerald (US 1982) Powell
Fitzgerald brought an action against President Nixon on the ground that he had been discharged from his Defense
Department job because he had exercised his right to freedom of speech by giving testimony in which he had
criticized military cost overruns. The Court held, by a 5-4 vote, that the President was immune from an action for
damages.
1. As a result of the singular importance of the President’s duties and the fact that his prominence creates
personal vulnerability, the Court felt that diversion of his energies by concern with private lawsuits would
raise unique risks to the effective functioning of government.
2. The Court felt that adequate safeguards were already in place to protect against Presidential misconduct,
including:
(a) impeachment,
(b) constant scrutiny by the press
(c) vigilant oversight by Congress
(d) a desire to earn re-election
(e) the need to maintain prestige as an element of Presidential influence
(f) a President’s traditional concern for his historical stature.
3. The Court left open the question whether Congress might constitutionally subject the President for liability for
damages.
Dissent (White, Brennan, Marshall, and Blackmun)
1. With respect to Presidential immunity, there was no provision akin to the speech and debate clause that
provides protection for members of Congress.
2. In this light, it was necessary to find such immunity in the constitutional principle of separation of powers and
public policy.
3. Justice White noted that the Court had previously held that the President was not immune from suits for
injunctive relief or other sorts of judicial process.
4. With respect to the distinctive nature of the remedy, the question that must be answered is who should bear
the cost of the resulting injury—the wrongdoer or the victim.
5. The President should have the same remedial obligations toward those he injures as any other federal officer.
6. The result of such rule should be to deter unconstitutional, or otherwise illegal, behavior.
Harlow v. Fitzgerald (US 1982)
Presidential aides do not get a similar absolute immunity from civil suits. However, Presidential aides do get a
fairly broad qualified immunity. Essentially, a Presidential aide has immunity from civil suit for conduct arising
out of his performance of his office, except where the official has violated a clearly established right.
Clinton v. Jones (US 1997) Stevens
1. The Court has never held or suggested that the President has immunity for unofficial conduct because the
reasoning behind official immunity (serve effectively w/o fear of prosecution) is inapplicable to unofficial
conduct.
2. While it is true that executive office is truly unique, it does not follow that separation of powers principles
would be violated by allowing this action to proceed since there is no suggestion that the judiciary is being
asked to perform any function that might in some way be described as “executive.”
3. There will not be any burdens place on the President that will hamper his official duties.
(a) In 200 year history of republic, only 3 sitting President have been subject to suits for their private actions.
(b) If properly managed by the District Court, it appears unlikely to occupy any substantial amount of
Clinton’s time.
4. The fact that a federal court’s exercise of its traditional Article III jurisdiction may significantly burden the
time and attention of the President is not sufficient to establish a Constitutional violation.
(a) The Court has long held that when the President takes official action, the Court has the authority to
determine whether he has acted within the law.
(1) In Youngstown, the Court exercised judicial review despite serious impact of that decision on the
ability of the Executive to accomplish its mission and the substantial time that the President must
have devoted to the matter as a result of judicial involvement.
(2) Marbury: Judiciary’s duty to say what the law is.
(b) The Court has long held that the President is subject to judicial process in appropriate circumstances.
(1) United States v. Burr, United States v. Nixon (both involved subpoena duces tecum).
(2) Sitting President have responded to court orders to provide testimony and other information that
such judicial-executive interactions can scarcely though to be novel. (Monroe, Ford, Nixon,
Clinton, etc.).
(3) Sitting Presidents have also voluntarily complied with judicial requests for testimony. (Grant,
Carter).
5. The stay was not the functional equivalent of immunity because the District Court ordered discovery to
proceed.
6. A stay might be justified by considerations that do not require recognition of any grant of immunity. The
District Court has broad discretion to stay proceedings as an incident to the power to control its own docket.
7. The District Court abused its discretion, however, in deferring the trial until after the President leaves office.
(a) A stay takes no account of Jones’s interest in bringing the case to trial.
(b) A delay increases danger of prejudice resulting from loss of evidence, including witness recall, and
possible deaths of parties.
(c) The stay was also premature. The district court should have assessed potential harm of scheduling trial
after discovery is completed. Need evidence of spurious litigation or some other harm.
8. There is no serious risk that this decision will result in a large volume of politically motivated harassing and
frivolous litigation.
(a) Rule 11, 12, and 56 are adequate safeguards.
(b) History again illustrates that the likelihood that a significant number of such cases will be filed is remote.
9. There is no serious risk that national security concerns might prevent the President from explaining a
legitimate need for a continuance.
10. Congress can always afford the President stronger protection by statute, but there is no constitutional
dimension.
Concurrence (Breyer)
1. Agreement with the majority on many issues.
(a) The Constitution does not automatically grant the President immunity from civil lawsuits based upon his
private conduct.
(b) The separation of powers doctrine does not require federal courts to stay all private actions against the
President until he leaves office.
(c) The President bears the burden of showing specific responsibilities that will be affected by the suit.
2. Breyer disagrees with the majority in that once the President sets out these conflicts the doctrine of separation
of powers forbids a federal judge in such a case to interfere with the President’s discharge of his public
duties. A President had the authority to control his own time and energy.
3. Breyer fears that disregarding this principle now may give the appearance that they are denying it.
Reviewability of Executive Privilege Decisions—Nixon’s 2nd argument was that his decision concerning the scope of
executive privilege was unreviewable.
Gunther’s ‘Judicial Hegemony and Legislative Autonomy’
Questions Burger’s use of Marbury for the proposition that it is the function of the judicial department to say
what the law is.
1. It is a mistakenly broad view of judicial competence, exclusivity, and supremacy.
2. Burger’s reasoning suggests that recognizing absolute executive privilege as a matter of constitutional
interpretation would somehow be contrary to Marbury’s view of the proper judicial role. However, there is
nothing in Marbury that precludes a constitutional interpretation which gives final authority to another
branch.
 Courts have sometimes held that executive branch decisions about when and how to enforce the law are
unreviewable, occasionally referring to the “Take Care” clause for support. On this view, the separation of powers
prohibits courts from ordering the executive to execute the laws. That power is vested in the President, not the federal
courts.
 Inconsistency? Congressman are immune, Presidents are not.
Scope of Executive Privilege
(1) National Security Interests—The Nixon court made it clear that military, diplomatic, or sensitive national
security secrets would be placed on a different footing from a mere general claim of confidentiality. It remains to
be seen how such state secret matters will be handled. Laurence Tribe believes that, in cases where external
evidence demonstrates to the court’s satisfaction that a state secret is involved, the court may well decide, even
w/o an in camera inspection, that the Presidential privilege outweighs the needs of the judicial system. Where a
court is not satisfied, from external evidence, that a state secret is really involved, an in camera inspection may be
necessary; however, once the court decides that sensitive matters of state are at issue, it will probably give
substantially greater weight to the privilege than in the general confidentiality situation.
United States v. American Telephone & Telegraph (D.C. Cir. 1977)
Involved congressional effort to obtain information from AT&T concerning wiretaps ordered by the executive
branch. Rejecting the executive’s claim that national security barred the subpoena, the court noted that the
Constitution confers upon Congress powers equally inseparable from the national security. The court called for a
compromise solution and set forth a procedure involving limited access and in camera resolution of disputes.
(2) Legislative Investigations—Another open question is the result when a Congressional committee seeks material
in concert with an investigation. This situation presents an additional concern about the need to prevent
Congress from usurping the President’s functions.
Senate Select Comm. on Presidential Campaign Activities v. Nixon (D.D.C. 1974)
A Senate committee sought access to Nixon’s tapes in connection with an investigation. The District Court held
that the committee’s need to know was insufficient to outweigh the privilege.
(3) Civil Suits—Nixon did not touch the fate of presidential privilege in civil proceedings. Tribe suggests that civil
proceedings should be placed on the same footing as criminal ones, and therefore that a showing that
presumptively privileged information is needed in a civil trial should be sufficient to overcome the presumption.
Clinton v. Jones.
Dellums v. Powell (D.C. Cir. 1977)
The D.C. Circuit holds that the presidential privilege was outweighed in a civil action brought by people who
alleged that they had been unconstitutionally arrested during a demonstration on Capitol Hill.
(4) Lower-level Officials—Open question. In 1983, EPA Administrator Burford asserted executive privilege to resist
disclosure to the U.S. Senate. She argued that the Constitution established a unitary executive branch. When
subordinate officials in the executive branch take action, they do so as the President’s representatives.
(5) Status in Criminal Proceedings—Where, as in Nixon, the presumptively privileged material is sought by the
prosecution for use in a criminal case, the Court’s opinion seems to mean that the qualified privilege will always
be outweighed by the needs of the criminal justice system. However, the Court may not have meant for the
privilege to carry so little weight. Tribe suggests that the Court may have meant that only materials which were
essential to trial (rather than merely relevant and admissible) will be deemed non-privilefed.
(6) Criminal Defendant—When privileged information is sought by a defendant in a criminal proceeding, the reasons
for overriding the claim of privilege are even more compelling. Two points: (1) Due process demands that a
defendant have access to all information relevant to his defense. (2) Also, in a federal prosecution, the executive
branch controls the prosecution and thus always has the option of dropping the case rather than releasing the
privileged information.
(7) Assertion by Nonincumbents—A qualified privilege could also be asserted by a non-incumbent.
Nixon v. Administrator of General Services (US 1977)
The Supreme Court holds that Nixon can assert executive privilege with respect to his presidential papers, which
were to be entrusted to succeeding administrations for archiving under congressionally-prescribed guidelines.
However, the Court held that the guidelines, at least insofar as they permitted an Executive Banch employee to
screen the materials and return items of a personal nature to the ex-President, did not violate his executive
privilege. The Court’s decision was influenced in part by the fact that neither of the two succeeding
administrations supported Nixon’s claim of privilege, thus suggesting that the functioning of the Executive
Branch was not threatened by the archiving and screening process.
Impeachment
The House of Representatives may impeach the President, and remove him from office, for “Treason, Bribery, or
other high Crimes and Misdemeanors.” U.S. Const. Art. II, §4.
There are several views on what this phrase means:
(1) Gerald Ford—An impeachable offense is whatever a majority of the House of Representatives considers it to be
at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body
considers serious enough to require removal of the accused from office.
(2) Dwight—The decided weight of authority says that impeachment will lie only for a true crime or breach of the
common or statutory law, which would be subject to indictment.
(3) Words of Art—R. Berger believes that “high crimes and misdemeanors” are words of art confined to
impeachments with no roots in criminal law and no relation to whether an indictment would lie. The framer’s
intention, however, was to preclude resort to impeachment for petty misconduct.
(4) Sunstein—“Other” means on the same level as bribery and treason.
C. Legislative Authority and the Formalist/Functionalist Debate—As Strauss has recognized, much of the debate
centers around disagreement between formal and functional theories of constitutional interpretation.
Formalists—Separation of powers is governed by relatively clear rules that demarcate separate sphere of government
authority.
Functionalists—More fluid approach to separation of powers that prohibits its aggrandizement of power or undue
mingling of functions, but that allows some overlap and is more receptive to changing the boundaries so as to deal
with changing situations.
 The underlying dispute has both a historical and interpretive dimension.
(1) Some formalists defend their position on originalist grounds. (Calabresi).
(2) Some functionalists have used originalism to criticize formalism. (Casper).
(3) Some functionalist have conceded that formalism may be defensible on originalist grounds, but defend
functionalist decisions as the best way to make sense of the constitutional structure under modern circumstances,
in which the President’s power threatens to undermine the constitutional structure. (Justice White, Green).
(4) Some formalist defenders argue that the Court has good reason to proceed in formalist way so to ensure against
problems presented by modern legislative initiatives, even if formalism is not defensible historically. (Lessig,
Sunstein).
(5) Eisgruber’s position.
 Werhan’s ‘Normalizing the Separation of Powers’
Argues for an approach that would integrate formal and functional methods in a way that draws upon their strengths
and minimizes their weaknesses.
1. First, there is a formal principle that “presumes that the national government may take action that affects the
rights of an individual only pursuant to a process whereby Congress has enacted a law that authorizes an
executive official to take that action, subject to judicial review.”
2. However, this formal principle establishes only a presumptive rule, not absolute. Thus, the separation norm is
flexible enough to allow the government to show departure from the norm is justified and therefore legitimate.
3. Second stage—Because any deviation from the norm is presumptively unconstitutional, the court would apply
heightened scrutiny. A government action that violates the separation norm would survive judicial review only if
it were (1) explicitly authorized by the Constitution, or (2) narrowly tailored to achieve an important, overriding
government interest.
Flaherty’s ‘The Most Dangerous Branch’
The framers embraced separation of powers to further 3 goals: (1) balance among the branches, (2) accountability,
and (3) energy and efficiency of government. Currently, these goals are in tension, with balance cutting against a
unitary Presidency, but accountability and energy cutting in its favor.
D. The Nondelegation Doctrine
Traditionally, Congress passes laws and that the executive is bound to administer. In modern times, however,
administrative agencies, which are generally part of the executive branch, have been given granted considerable
lawmaking authority. Congress often gives them little guidance. Yet, the process of giving content to vague standards
of guidance can be understood only as lawmaking.
There are several reason why Congress may wish to delegate discretionary power to administrative agencies.
(1) Congress may know that there is a general problem but not know how to solve it. Administrative agencies have
the necessary expertise.
(2) The area may be one that changes rapidly. Congress may not want to freeze into law a solution that will become
outmoded.
(3) There are no political costs if Congress merely identifies the problem and asks administrators to solve it, but they
claim credit for identification of the problem. In particular, Congress may delegate lawmaking authority if the
benefits extend to a broad and diffuse class.
(4) Only a government body staffed by experts and combining legislative, executive, and judicial authority has the
flexibility to function in the modern state. (Breyer).
Constitutional implications.
(1) Some argue that the grant of discretionary power to administrative agencies violates the original constitutional
structure by allowing a combination of legislative and executive power. (Schoenbrod).
(2) Some argue that there is no historical basis for this view, and that early congresses often delegated discretionary
power to the executive. (Pierce & Davis).
 These conflicting positions may be influenced by substantive disagreement over the extent to which government
interference with “private” economic ordering is constitutionally permissible.
(a) One view is that the framers created sharp divisions between legislative and executive authority in order to
make such interference more difficult.
(b) One view is that the framers left questions about the substantive ends of government to democratic
processes. On this view, the Constitution’s procedural provisions concerning separation of powers should be
read as permitting sufficient flexibility to achieve the ends that modern majorities desire. Eisgruber.
The Nondelegation Doctrine serves several functions:
(1) Ensures that the fundamental policy choices are made by the legislature and not by officials within the executive
branch (less or differently accountable).
(2) Promotes the rule of law.
(a) Promotes predictability for those benefited or burdened by regulation.
(b) Tends to work against arbitrariness or caprice on the part of administrators because it cabined their
discretion in the enforcement process.
The Court is concerned about delegation for several reason.
(1) Bureaucratic accountability to voters—if an executive agency, the President’s accountability may suffice;
however, perhaps the President is to busy to watch over or maybe he just isn’t accountable in the right way.
President accountable to national as a whole, Congress to specific local concerns more likely to arise in agency
determinations. Public Choice theory—easier for discrete subgroup to organize.
(2) Judicial Accountability—Judicial review decisions are difficult. If we want to prohibit activist agencies, we may
be enlisting judiciary in the fight, which is unaccountable and usually prefers judicial restraint.
c.
Case law
In earlier years, the Supreme Court held that Article I, by vesting power in Congress, imposed constraints on
Congress’s authority to delegate that power to others.
J.W. Hampton Jr. & Co. v. United States (US 1928)
The Court held that the applicable test of delegation was whether Congress has “laid down by legislative act an
intelligible principle to which the person or body authorized to take action is directed to conform.”
Panama Refining Co v. Ryan (US 1935) President
The Court invalidates a provision of the NIRA authorizing the President to prohibit the transportation in
interstate commerce of oil produced in violation of state-imposed production quotas. The Court emphasized that
the statute did not apply standards that would tell the President when to exercise that power. In the Court’s view,
the NIRA authorized the President to prohibit transportation of hot oil whenever he chose. A bare authorization
to do something is an unconstitutional delegation.
Schechter Poultry Corp. v. United States (US 1935) private
Schechter Poultry was prosecuted for violating a live poultry code provision, created pursuant to the NIRA,
barring the sale of unfit chickens and forbidding buyer’s choice of chickens. The Court held that Congress
unconstitutionally delegate legislative power to private industry (trade and industrial associations). Private
industry’s beneficience or familiarity with the problem is no justification. Furthermore, the term “fair
competition” provides no guidance.
 The NIRA is troubling for two reasons. (1) De facto delegation to private gorups. Fear of rent seeking and
economic oppression. Delegation has always been hostile to private groups. (2) Shear breadth of delegation
covering every aspect of American life. Prof. Currie says the Justices were troubled about doing this all at
once. Perhaps, they were worried about German Parliament’s law authorizing the Chancellor to enact statutes.
Bad Hitler analogy.
The Nondelegation doctrine has disappeared as a constraint on the delegation of authority to administrative
agencies. Statutes authorizing regulation of “unreasonable risks” and administrative action “in the public interest”
are immune from attack. A Court will scrape the bottom of the statutory barrel to come up with general principles to
guide delegated authority. However, Schechter has not been overruled and a massive delegation of authority of the
sort involved in that case might be struck down today.
Amalgamated Meat Cutters v. Connally (D.C. Cir. 1971)
The D.C. Circuit upholds a statute authorizing the President to impose wage and price controls on the ground that
implicit standards of “broad fairness and avoidance of gross inequity” were sufficient. The Court relied on the
temporary character of the delegation, the fact that the President could not discriminate unreasonably among
industries, and an implicit requirement that the President come up with standards to limit his own discretion.
Touby v. United States (US 1991)
The Court rejected a nondelegation doctrine challenge to certain aspects of the Controlled Substances Act. The
Act authorized the Attorney General to make criminal the manufacture, possession, or distribution of any drug
that he found met certain statutory criteria relating to the history and current pattern of abuse and risk to public
health.
Loving v. United States (US 1996) Kennedy
[S89]
After a lower court invalidated the federal statute permitting courts martial to impose the death penalty, the
President attempted to meet the constitutional objections to the statute by promulgating regulations requiring
consideration of aggravating and mitigating factors before a death sentence was imposed. The underlying statute
provided that the “punishment which a court martial may direct for an offense may not exceed such limits as the
President may prescribe for that offense,” and that a court martial “may, under such limitations as the President
may prescribe, adjudge any punishment not forbidden by the statute, including the penalty of death.” Justice
Kennedy held that the question was not whether there was an explicit intelligible principle telling how the
President to select aggravating factors, but whether any such guidance was needed given the nature of the
delegation and the officer who is to exercise the delegated authority. More precise guidelines would be
necessary only if delegation were made to a newly created entity with no independent authority in the area. (1)
The delegation is set within boundaries the President may not exceed. (2) The delegation here was to the
President in his role as Commander in Chief.
The Nondelegation Doctrine is sometimes used as an aid to statutory construction. The fear of a broad delegation is
a reason to construe administrative authority narrowly. American Petroleum Institute (US 1980), NCTA (US 1974).
Indeed, the only time the nondelegation doctrine has been used since 1935 is as a statutory construction principle.
Even the intelligible principle test is abandoned where the President is thought to have extra inherent power. Loving.
Vermeule thinks this is odd because if there is no constitutional problem, why should we read it narrowly?
There have been several attempts and arguments for resurrecting the Nondelegation Doctrine.
Schoenbrod’s ‘Power w/o Responsibility’ (1993)
By delegating, Congress can claim credit for the benefits of regulation, but escape blame as well. The
Supreme Court has left delegation issues up to Congress and the President because they believed that
legislator’s concern for their own power will keep Congress from delegating too much. Since this view is
incorrect (legislative power is enhanced by delegating), the Supreme Court should resurrect the nondelegation
doctrine.
 Vermeule’s Iron Triangle—Congress-agencies-voters. If you’re a congressman you can pass broad act, i.e. the
Environmental and Job Protection Act, create an agency to enforce the Act, and then you can play to both
constituencies-environment and labor.
Industrial Union v. American Petroleum Institute (US 1980) Rehnquist [429]
Two OSHA provisions: (1) Defined OSHA standards as those “reasonably necessary or appropriate to provide
safe or healthful employment.” (2) Secretary of Labor required to “set the standard, which most adequately
assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material
impairment of health.” The Court’s plurality held that the former language required the Secretary to show a
significant risk before undertaking regulation. Justice Rehnquist would have decided on nondelegation
grounds because Congress avoiding a politically difficult obstacle. ‘It is the hard choices, and not the filling in
of blanks, which must be made by the elected representative of the people.’
 Some counter that to the extent that Congress is put to such hard choices, its ability to enact legislation
declines and more activity is left unregulated within the public sphere. However, Vermeule would argue that
the alternative is no activities being unregulated, but activities being regulated by the states. Thus,
nondelegation may bring federalism concerns within its vortex.
J. Ely ‘Democracy and Distrust’ (1980)
Two responses to the argument that detailed instructions given by Congress to administrative agencies are
unworkable in complex modern world: (1) Most legislators, including Congress, have expert staffs like
administrators. Congress also is entitled to asistance from executive department’s technical staffs. (2) The
nondelegation doctrine only requires policy direction, not perfect detail.
Stewart ‘The Reformation of American Law’ (1975)
Three arguments: (1) Impossible to specify with detail, especially in new areas of regulation where
experimentation is required. Constant changes preclude development of detailed policy. (2) Impossible to
give meaningful detail because legislative majorities represent coalitions of interest that require compromise.
Agencies may generate more responsible policies. (3) Given subjective nature of degree of policy
specification that is constitutionally required, the judiciary may appear and in fact act partisan in exercising
judicial review.
The debate surrounding the line-item veto has centered on the nondelegation doctrine. Clinton v. City of New York
may signal renewed commitment to nondelegation doctrine. (Alternative readings of Lopez?)
There are several legal consequences of the line item veto?
(1) Congress might like the fact that they can pass what they want and then blame it on the President when it doesn’t
become law. The President would want such power because he has national constituency whereas congressman
have local constituencies; thus he doesn’t have to please everybody, just enough people.
(2) The individual bills may not be passed.
(3) New default rule—unless Congress says otherwise, bills are sent to President has separate items.
(4) Congressional precommitment—Every congressman needs to pork barrel to get reelected, but it is better for
country as a whole to have less pork. Thus, Congress creates a precommitment device and gives the key to the
President.
Clinton v. City of New York (US 1998) Stevens
[S90]
1. President Clinton amended an Act of Congress.
(a) There is no constitutional provision authorizing the President to enact, amend, or to repeal statutes.
(b) Under the plain text of the Line Item Veto Act, President Clinton’s action canceling sections of the 1997
Balanced Budget Act and the 1997 Taxpayer Relief Act prevented the sections from having legal force
or effect.
(c) Thus, in both legal and practical effect, the President has amended two Acts of Congress by repealing a
portion of each.
2. A line-item veto is different from a regular presidential veto pursuant to Article I, sec. 7’s Presentment
Clause.
(a) The regular veto takes place before the bill becomes law; the line-item veto occurs after the bill becomes
law.
(b) The regular veto is of the entire bill; the line-item veto is of only a part.
3. The Constitution is silent on the subject of unilateral Presidential action that either repeals or amends parts
of duly enacted statutes.
4. We construe congressional silence as equivalent to an express prohibition because the line-item vetoed
statutes are not the product of the “finely wrought” procedure that the Framers designed in Article I.
5. The Court rejects all three of the government’s arguments.
(a) The line-item cancellations are a repeal of the Acts of Congress, despite the lockbox provisions whereby
a canceled item is said to retain real budgetary effect since no one can spend it, for two reasons.
(1) The Line Item Veto Act expressly provides that a cancellation prevents a direct spending or tax
benefit provision from having legal force or effect.
(2) Even if it had a real budgetary effect, this does not change the fact that by canceling the items, the
President made them entirely inoperative as to the appellees.
(b) The line-item cancellations are not merely exercises of discretionary authority granted to the President
by the Balanced Budget Act and Taxpayer Relief Act read in light of the Line Item Veto Act.
(1) There are several differences between Field v. Clark and this case.
a) In Field, the cancellation was based on conditions that did not exist when the Tariff Act was
passed. Here, the conditions are the same as when Congress evaluated them.
b) Under the Tariff Act, the President had a duty to suspend when the contingency arose. Here,
although the President must make three determinations, he alone had complete discretion.
c) When the President suspend under the Tariff Act, he was executing the Congressional policy
embodied in the statute. Here, the President is rejecting the policy judgment made by
Congress.
(2) Although Congress authorized the President to do this through the Line Item Veto Act, they
cannot alter the procedures set out in Article I, sec. 7, without amending the Constitution.
a) The Rules Enabling Act provision also fails because, like tariff statutes, Congress itself made
the decision to repeal prior rules upon the occurrence of a particular event—promulgation of
procedural rules by the Supreme Court.
(c) The line-item veto cancellations are not similar to the President’s power to decline to spend specified
sums of money because the Line Item Veto Act gives the President the unilateral power to change the
text of duly enacted statutes.
6. The Court emphasizes three points.
(a) They express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act.
(b) Although appellees challenge the validity of the Act of alternative grounds, the only issue the Court
reaches concernes the “finely wrought” procedure commanded by the Constitution.
(c) The decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are
not authorized by the Constitution.
7. To implement a line-item veto policy, a constitutional amendment is needed.
Dissent (Breyer)
1. I approach the constitutional question with 3 general considerations in mind.
(a) Since Congress can’t divide a large appropriations bill into thousands of separate bills, each of which
the President would have to sign or veto separately, the proper question is whether the Constitution
permits Congress to choose a novel means to achieve the same constitutionally legitimate end.
(b) The Court has interpreted “legislative” and “executive” decisions generously in terms of the institutional
arrangements they permit.
(c) The Court need not referee a dispute among the other two branches.
a) According to Steven’s Bowsher concurrence, the Court should only invalidate a statutory
provision approved by Congress and signed by the President for the most compelling
constitutional reasons.
b) According to Jackson’s Youngstown concurrence, in such a situation, the President’s authority is
at a maximum.
2. The President’s cancellation action is not a repeal or amendment. (Scalia and O’Connor concur in this part
of the argument).
(a) The President simply follows the law, leaving the statutes, as they are literally written, intact.
(b) Congress has frequently delegated to the President or to others this kind of power to deny effect to
certain statutory language. All of these delegate the power to choose between two alternatives, each of
which the statute spells out in some detail.
(c) Congress’s delegated to the President the power to decide how to spend the money to which the line
item refers—either for the specific purpose mentioned or for general deficit reduction via the lockbox
feature.
3. Since I disagree with the Court’s holding of a literal violation of Article I, I must consider whether the Act
violates separation of powers principles.
(a) Congress has given the President true executive power.
(1) Exercise of the line-item veto power “executes” the provision.
(2) The Court has upheld congressional delegation in much more difficult cases to reconcile.
(a) Rulemaking and adjudicatory power to federal agencies.
(b) Guideline-writing power to Sentencing Commission. Mistretta
(c) Prosecutor-appointment power to judges. Morrison
(b) The Act does not encroach upon Congress’s power nor aggrandizes the Presidential office.
(1) Congress retains power to insert by simple majority a provision that says the Act will not apply.
(2) Since Congress drafts the bills, it defines the outer limits of the President’s cancellation authority.
(3) The delegation to the President is limited to the power to spend or not to spend and they resemble
other Presidential powers.
(c) The Act creates an intelligible principle for purposes of nondelegation doctrine in three ways.
(1) The Act tells the President to consider certain criteria in determining cancellation.
(2) The Act’s purpose is to promote greater fiscal accountability.
(3) The Act requires the President to determine that the cancellation will reduce the budget deficit,
not impair an essential government function, or hurt the national interest before he can make the
cancellation.
Concurrence/Dissent in Part (Scalia, O’Connor, Breyer joins as to this part)
1. The nondelegation doctrine, not the Presentment Clause, is dispositive of this case.
2. There’s not a dime’s worth of difference between authorizing the President to cancel a spending item, and
Congress’s authorizing money to be spent on a particular item at the President’s discretion, a power which
has been judicially and historically established since the formation of the Union.
3. The title of the Act has succeeded in faking out the Supreme Court.
 The Court says it is striking down the statute based on Article I, but that is not the case. The Act and the
appropriations bill in question both satisfied Article I’s requirements. Therefore, Article I does not apply. After the
Article I actions, the President exercised his authority to cancel certain spending items, which is a question of
delegation. The Court’s responses to the government’s arguments confirm this conclusion.
 The Court wrote such a weak opinion because delegation is the Justices real concern, but they can’t write a
delegation opinion to strike down an Act like this—it needs to be based on Article I for a stronger opinion.
E. The Legislative Veto
After the demise of the nondelegation doctrine and the rise of the administrative state, Congress has sporadically
attempted to reassert its authority by enacting structural or quasi-constitutional statutes. There are many examples of
this:
(1) Legislative veto
(2) Independent Counsel
(3) Balanced budget provisions-line item veto, unfunded mandates, etc.
(4) War Powers Resolution.
There are two views of how the Supreme Court should respond to such attempts.
(1) Structural statutes unconstitutionally expand Congress’s powers. The framers bound us to a particular structure
of government, and Congress can not bind us to a new structure without amending the Constitution. Problem of
dead hand.
(2) Structural statutes do no more than reestablish Congress’s original powers in a modern environment that the
framers could not have imagined, i.e. in a regulatory context where broad delegations to the executive are
routine.
INS v. Chadha (US 1983) Burger
Article I, §8 of the Constitution gives Congress the right to establish rules of naturalization and, by implication,
immigration. Congress has always possessed, and has frequently exercised, the power to allow an alien who
would otherwise be deportable under existing immigration rules to remain in the country; typically, by means of
a private bill. In an effort to relieve itself of the burdens of considering numerous private bills, Congress
delegated to the Attorney General, in the Immigration and Nationality Act, the authority to suspend deportation
of aliens in certain situations. However, in order to retain some control over this delegated power, Congess
reserved a legislative veto, which could be exercised by a resolution passed by either house within a certain time
after the Attorney General’s decision to suspend deportation. Chadha was one of several aliens as to whom the
House used its legislative veto power.
1.The framers’s intention with respect to the Presentment clause and bicameral requirement was to ensure that
the legislative power was exercised in accord with a single, finely wrought, and exhaustively considered
procedure.
2.The House’s action here was essentially legislative in purpose and effect; thus, it required Article I procedure
(bicameralism and presentment).
(a) The House’s action had the purpose and effect of altering the legal rights, duties, and relations of persons,
including the Attorney General, Executive Branch officials, and Chadha, all outside the legislative branch.
Ryan-Where do they get this standard for legislative?
(1) The one-house veto overrules the Attorney General and mandated Chadha’s deportation. Absent, the
House veto, Chadha would remain in the United States.
(b) The legislative character of the one-House veto is confirmed by the character of the Congressional action
it supplants.
(1) Without the legislative veto, the House could only have overturned the Attorney General by
legislation requiring deportation.
(c) The nature of the decision implemented by the one-House veto further manifests its legislative character.
(1) Congress’s original choice to delegate to the Attorney General involves determinations of policy that
Congress can only implement through Article I.
(2) Congress must abide by its delegation until that delegation is legislative altered or revoked.
3.When the Framers intended to authorize either House of Congress to act alone and outside of its prescribed
bicameral legislative role, they narrowly and precisely defined the procedure for such action, which provides
support for the conclusion that congressional authority on legislative vetoes isn’t to be implied.
4.2 Footnotes????
Concurrence (Powell)
1.The House’s action here was judicial. It made its own determination that six specific persons did not comply
with certain statutory criteria.
2.In acting judicially, the House raises the danger the framer’s sought to avoid-the danger of unchecked power.
(a) Congress is not subject to any internal constraints that prevent it from arbitrarily depriving Chadha of his
right to be in this country.
(1) Unlike judiciary or administrative agency, Congress is not bound by substantive rules.
(2) Congress not bound by procedural safeguards, i.e. counsel, due process, etc.
(b) The only constraint on Congress is political; however, this is only effective when Congress prescribes
rules of general applicability. When it decides rights of specific persons, those rights are subject to
tyranny of the shifting majority.
3.I do not reach broader question whether legislative vetoes are unconstitutional.
Dissent (White) Legislative Veto is 2nd Best Compensating Device
1.Given the important implications of this case, the Court should have decided the case on the narrower grounds
of separation of powers.
2.Without the legislative veto, Congress is left with a Hobson’s choice (dilemma).
3.History shows that Congress has not used the legislative veto as a sword to aggrandize itself at the expense of
other branches.
4.The Constitution does not directly authorize or prohibit the legislative veto. One can’t infer disapproval from
silence because the framers could not have foreseen the legislative veto and the rise of the administrative
state.
5.The House’s use of the legislative veto is not the functional equivalent of passing law.
(a) The legislative veto must be authorized by statute and may only negative what an Executive department or
independent agency has proposed.
(b) If the President’s veto does not make law, neither does the legislative veto.
6.If Congress may delegate lawmaking power to independent and executive agencies, Article I should not forbid
Congress, in whom the Framers confided the legislative power, from also reserving a check on legislative
power for itself because the initial statutory authorization complies with Article I requirements.
7.The legislative veto does not violate the separation of powers in this case.
(a) Congress delegation of authority to the AG plus its reservation of veto power in effect required the
concurrence of opinion among the House, Senate, and President.
(b) That is, if the determination that an alien is deportable is viewed as a change in the legal status quo, this
change can be consummated only with the approval of each of the 3 actors.
(c) Furthermore, the legislative veto does not prevent the executive from accomplishing its constitutionally
assigned functions.
1) The executive has no constitutionally assigned function of suspending deportation of aliens.
Alien regulation is clearly a Congressional matter.
2) Since the legislative veto is best characterized as an exercise of legislative or quasi-legislative
power, the practice does not infringe on executive or judicial prerogative (i.e. the AG’s
suspension of deportation is the equivalent of a proposal for legislation).
(d) Finally, the legislative veto does not infringe on the judicial power.
1) The statute makes clear that Congress has reserved its own judgment as part of the statutory
process.
2) Congressional action does not substitute for judicial review of the AG’s decision.
8.I do not suggest that all legislative vetoes are consistent with SOP. A legislative check on an inherently
executive function (prosecution) poses a different question.
 Justice White says that on Burger’s view, since agencies legislate all the time, the administrative state and delegation
must be unconstitutional because they don’t comply with Article I. In Footnote 16, Burger argues that while agencies
do legislate, they are confined by the terms of the statute that gives them their authority and they are subject to judicial
scrutiny. Thus, there is a check on administrative agencies, whereas there is no similar check on the Attorney General.
In response, Justice White argues that this distinction is irrelevant. On Burger’s theory, the Court should not make that
distinction if all Article I powers have to go through presentment and bicameralism process. It simply doesn’t matter of
judges enforce it. Furthermore, judicial review does not provide a check. Exercises of administrative authority that are
favorable to individuals can not be reviewed by courts because there is no standing. Only Chadha would have standing.
?????????? Other footnotes.
 The way to save Burger’s Chadha reasoning is to argue that it is incorrect that all exercises of legislative power
must proceed through Article I since agencies exercise delegated power that does not, but one can resurrects
Burger’s reasoning by saying that Chadha means that Congress can’t exercise legislative power other than
through Article I; i.e. Congress can’t delegate power to itself, which may violates Incompatibility Clause (standing
concerns Schlesinger) and Appointments Clause (since Congress is appointing itself to be an executive officer).
 Chadha’s reach—In Process Gas Consumer’s Group v. Consumers Energy Council of America (1983), the Court
summarily affirmed, on Chadha’s authority, a decision invalidating a legislative veto as applied to FERC regulations of
natural gas pricings. In U.S. Senate v. FTC, the Court summarily affirmed a decision invalidating a legislative veto as
applied to FTC rulemaking. Both summary affirmances also involved independent agencies; the FTC case involved a
two-house veto. Thus, Justice White was correct to conclude that Chadha’s reach is quite broad.
 Criticism—Many commentators, including Strauss & Tribe, criticize Chadha’s reasoning by saying that there is no
doubt that the bicameralism and presentation requirements are applicable to the enactment of a law. But the question in
Chadha was whether the legislative veto was the sort of action to which those requirements were applicable. Congress
does many things w/o being bound by formal legislation requirements-it holds hearings, investigates, confirms
presidential appointments, etc.
 Return to Text—The Court’s opinion seems to suggest that the text itself is dispositive of the constitutional question.
Originality/interpretivist methodology. Thus, Chadha might be understood as an effort to reassert an understanding of
Constitutional text as self-contained, with clear answers to at least some problems.
 Some suggest that, in light of the enormous expansion of the bureaucracy, application of the framer’s views on the
distribution of national powers counseled in favor of, rather than against, the legislative veto arrangement.
 Congress has several means by which to control administrative agencies.
(1) Oversight hearings.
(2) Appropriations rider and budget increases/decreases. Deterrence. Reagan’s Education Secretary.
(3) Sunset legislation. Shifts burden of inertia from just repealing a statute. However, this may create incentive for
industry capture.
(4) Repeal of agency authority for a particular course of conduct.
(5) Rewrite statute to limit agency authority.
(6) Report and Wait provisions—Congress requires that before rules become effective, they must be submitted to
Congress for an opportunity to legislate on the subject. FRCP. Since this goes through Article I, it is not a
legislative veto.
(7) A statute might provide that no agency rule may become effective unless enacted by Congress w/Presidential
participation.
(8) Congress might provide that action pursuant to a certain statute could be taken only if its approved by both
Houses of Congress (joint resolution).
(9) Specific statutes—open-ended delegations are the result of broad statutes.
Where do Administrative Agencies fit in the Separation of Powers Scheme?
There are three themes in this area.
(1) Like legislative veto, Congress wants to legislate, but still retain some control over those who exercise delegated
authority (through appointment and removal).
(2) When Congress can have it’s cake and eat it too, does the appointment and removal of those exercising delegated
authority lie solely with the President or outside anyone’s control? There are two visions of good government
underlying this issue.
(a) Accountability Model—Unitary executive model. Good government makes sure that anybody who
exercises executive power is subject to the control of a government official who is responsible for the
exercise of that power. Under Appointments clause, everyone is accountable because the President is
accountable at the polls. Framers rejected plural executive, vested all executive power in President, and
Take Care clause.
(b) Civil Service Expertise Model—Accountability at the polls is too political. We want independent
judgment and expertise. This is the continental model—a vision of the executive as a professional civil
service. On this view, you have a President who exercises authority over agencies, and you also have
independent agencies (independence defined by the power to remove). The underlying idea is that if
Congress can’t retain control over appointment and removal, the President can’t either.
(3) If a proponent of Accountability model, you want to enforce it through vigorous judicial review. However, Civil
Service Expertise model say that when Congress and the Presidency create independent agency, we don’t need
vigorous judicial review.
Article II vests the executive power in the President, not in subordinate officials. This decision was based on a rejection
of the notion of a “plural executive.” Federalist No. 70. Yet, the Constitution does not explicitly resolve the question
whether Congress may immunize subordinate officials from presidential control.
Appointments Clause—Article II, §2, cl.2—The President shall nominate, and by and with the advice and consent of the
Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other
officers of the U.S., whose appointments are not herein otherwise provided for, and which shall be established by law,
but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone,
in the Courts of law, or in the heads of departments.
 Is there any significance to the fact that Congress is not listed? If Congress can block superior officers, it may not
be justified that they can’t appoint inferior officers. However, some read into Appointments clause that the
Constitution does not permit interbranch appointments. Congress can only allow President and Judiciary to appoint
inferior officers within its own branch. Thus, in Buckley, the Court unanimously held that Congress can’t directly
appoint anyone who is going to exercise executive power. Since Congress appointed FEC members, they could only
do legislative acts.
Removal Power—The Constitution does not say a lot about removal from office. Impeachment clause is the only
relevant text. However, Vermeule and Madison believe that it is better to have power to remove. Once you appoint
someone, you have no control. Bush-Souter.
Tenured Officer Act—President Andrew Johnson was not allowed to discharge any of his officers w/o
Congressional approval. Congress wanted to make sure Lincoln’s officers remain so Johnson won’t go soft on
the South. Johnson fires the Secretary of War and is impeached. This shows how appointment and removal are
at the core of the controversy between executive-legislative conflict. Politicians care about who is in office and
who can kick them out.
 In Myers v. US, the Court rests on powerful textual and originalist grounds.
Myers v. United States (US 1926) Chief Justice Taft
A federal statute provided that postmasters shall be appointed and may be removed by the President and with the
advice and consent of the Senate. President Wilson attempted to remove Myers, an Oregon postmaster serving a
four-year term, before the end of his term. The Court held that the removal was lawful because the attempted
limitation on the President’s removal power was unconstitutional under Article II. The Court relied on several
conclusions. (Ryan-what about Marbury’s vested right?).
(1) The act of removal is itself executive in nature and must therefore be performed by the President.
(2) Under the Take Care clause, it is the President, not his subordinates, who must take care that the laws are
faithfully executed.
(3) Article II vests executive power in the President, not subordinate officials.
Dissent (Holmes, Brandeis, McReynolds)
Congress created the post office; thus, Congress may abolish it tomorrow. With such power, it necessarily
follows that Congress has the power to prescribe a life term
 Taft’s Unitary Executive—Taft’s unitary executive theory-President should be able to remove subordinates at will
presumably on accountability grounds. However, Vermeule believes that if Congress make an officer nonremovable,
the President may be able to claim that it is Congress’s fault. Moreover, if the point of the unitary executive is
accountability, then why can’t Congress be accountable? In response, perhaps Joe Voter will not cast his vote based
on this. Vote fragmentation theory demonstrates that voting is a cumulative endeavour. However, if we stary
worrying abut what voters really think, then we should throw out executive accountability.
 Under one view, Myers is satisfied so long as the official who is in charge of the basic chain of command is subject
to presidential control.
 The majority drew on aforementioned historical support, but there is some evidence that at least some of the
founders distinguished between “executive” and “administrative” authority, and that they believed that Congress
should share in the power to remove some of what we now treat as executive officials. Lessig and Sunstein.
Both of the following two cases recognize a congressional power to create “independent” agencies—government
agencies that are free from presidential removal power, and to some uncertain degree, presidential power to supervise
and control the decisions of their officers. This is a blow to the theory of the unitary executive.
Humphrey’s Executor v. United States (US 1935)
A federal statute provided that FTC members could be removed by the President for inefficiency, neglect of duty,
or malfeasance in office. The statute’s history indicated a legislative goal of entrusting regulatory decisions to a
body of nonpartisan experts, insulated from political pressures. President Roosevely removed Humphrey from
office. He contended that the limitation of the removal power was unconstitutional under Myers, not that the
removal was justified by one of the statutory conditions. A unanimous Court disagreed, distinguishing and
confining Myers. Myers involved a purely executive official; thus, the President had removal power over his
subordinates. In this case, the FTC acts quasi-legislatively and quasi-judicially.
 Humprhey’s Executor guts Myers’s massive originalist grounds through functional arguments.
 On Myers, this is unconstitutional because you can’t specify guidelines. However, we may be able to distinguish
between the two cases. Perhaps, a Postmast is just setting the price of stamps, but other regulatory jobs require
disinterested expertise (civil service expertise model). This is the opposite of Taft’s model of the unitary executive.
On Taft’s view, the more important the job, the more discretion, the more you need political accountability.
Wiener v. United States (US 1958)
The Court concluded that, even though the statute creating the War Claims Commission was silent on the question
of removal, the commission’s adjudicatory nature implied a limitation on the President’s power to remove.
Buckley v. Valeo (US 1974??)
The Federal Election Campaign Act created an 8-member Federal Election Commission to oversee federal
elections. The President, Speaker of the House, and Senate President Pro Tempore each appointed 2 members.
The FEC was authorized to investigate, maintain records, make rules governing federal elections, and impose
sanctions on those who violated the act and its own regulations. The Court unanimously held that vesting a
commission whose members were appointed in this manner with some of these functions violated the
Appointments clause.
1. Any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the
United States.’ Thus, they must be appointed in the manner prescribed by the Appointments clause (President
nominates with advice and consent of the Senate).
2. The FEC cannot perform executive functions. If they could, they would have to go through appointment
process, which they did not.
(1) The President is unable to appoint four out of six members.
(2) Although the Constitution permitted appointments by ‘heads of departments,’ this phrase, used as it is in
conjunction with the phrase ‘courts of law,’ suggests that the departments referred to are themselves in
the executive branch or at least have some connection with that branch.
3. However, the FEC is not entirely powerless. Since the FEC’s powers are essentially investigative and
informative, they fall in the same category as those powers which Congress might delegate to one of its
committees; thus, the FEC may exercise these powers.
4. Yet, several of the FEC’s powers were held to be unconstitutional.
(1) The FEC’s enforcement power, exemplified by its discretionary power to seek judicial relief, conflicts
with the President’s power entrusted to him by the Constitution “take care that the laws are faithfully
executed.” Thus, this power was unconstitutional.
(2) The FEC’s rulemaking power, advisory opinion power, and power to determine eligibility for funds do
not operate merely in aid of congressional authority to regulate. These powers are usually performed by
independent regulatory agency or some executive department. Thus, the people who exercise this power
must have gone through appointments process, which they did not.
 There are several assessments of this trilogy of cases.
(1) Humphrey’s Executor creates a “headless fourth branch” of government subject to the control of none of the three
branches. There is no constitutional basis for administrative agencies exercising power without presidential
supervision. Myers and Buckley are correct. Humphrey’s should be overruled. Its references to quasilegislative and quasi-judicial pose a confused paradox/dilemma. Rulemaking, within the bounds set up by statute,
is execution of the law, not quasi-legislation. Thus, the Appointments clause requires them to go through
appointments process. If it is not execution—if it really is lawmaking—it cannot constitutionally be done by
administrative agencies.
(2) Humphrey’s Executor is necessary response to the growth of administrative agencies. If the delegation of powers
was permitted, and if those powers were to be exercised by the President, the system of separation of powers
would be skewed in favor of the executive branch. Thus, Humphrey’s is a necessary quid pro quo for the demise
of the nondelegation doctrine. Legislative vetoes and congressional participation in appointment of
administrative officers should be upheld as modern efforts to maintain constitutional balance.
(3) Myers and Buckley are conceptual anachronisms. They are based on a formalistic effort to catalogue those
functions that are necessarily “executive” in character. Any such characterization is bound to be arbitrary.
Moreover, Congress is under no obligation to create subordinate bodies in the first place. Thus, when it chooses
to create them, it is under no obligation to make their members subject to presidential control.
The next logical question is if the President can’t remove agency officers, what happens when Congress tries to
exercise control over them?
Bowsher v. Synar (US 1986) Chief Justice Burger
The Gramm-Rudman-Hollings Deficit Reduction Act called on the Comptroller General to review budget
estimates given to him by two federal agencies (OMB and CBO), and then submit to the President a report
stating on a program-by-program basis how much needed to be cut using his independent judgment. The
President was then required to issue an order mandating the reductions specified by the Comptroller. Congress
could then, by special legislation, reduce spending to eliminate the need for some or all of the cuts; if it did not
do so, the cuts called for in the presidential order were to be automatically carried out. In the Budge and
Accounting Act of 1921, Congress had previously reserved the right to remove the Comptroller General for
inefficiency, malfeasance, neglect of duty, conduct involving moral turpitude, etc. The Comptroller General was
nominated by the President from a list of 3 individuals recommended by the Speaker of the House and Senate Pro
Tempore. By a 7-2 vote, the Court struck down the automatic reduction provisions. The major holding is that
congressional retention of the right to remove an executive officer for certain specified types of causes converts
that officer into an agent of Congress.
1. The Comptroller General has been assigned “executive” powers.
(a) Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of
“execution” of the law.
(b) The Comptroller General must exercise judgment concerning facts that affect the application of the Act,
and he must interpret provisions of the Act to determine what budgetary calculations are required, both
typically executive functions.
(c) The Comptroller General, possessing ultimate authority, directs the President to carry out his directions.
2. In light of Myers and Humphreys, Congress cannot reserve for itself the power of removal of an executive
officer except by impeachment. In this case, Congress has reserved broad powers to remove that could
sustain removal for any actual or perceived transgression of the legislative will. (This conclusion follows a
fortiori from Myers; if Congress can’t remove with Senate consent, it can’t initiate removal, since the latter
is more threatening.)
3. To permits officers controlled by Congress to execute the laws would mean two things.
(a) Congress could would have control over execution of the laws in violation of the separation of powers
doctrine.
(b) Congress would be permitted a legislative veto in violation of the Court’s holding in Chadha.
4. Both Congress and the Comptroller General view the office as belonging to the legislative branch.
5. The Court rejects the notion that this holding casts doubt on the status of independent agencies because there
are no cited agencies whose members are removable by the Congress for certain causes short of
impeachment. Footnote 4.
6. The Court does not reach the argument that the assignment of powers to the Comptroller General in the Act
violates the delegation doctrine. Footnote 10.
Concurrence (Stevens, Marshall)
1. The Gramm-Rudman-Hollings Act is unconstitutional, but not because of Congress’s right to remove the
Comptroller General.
(a) The Comptroller General is an agent of Congress because of his longstanding responsibilities.
(b) The Gramm-Rudman-Hollings Act assigns him the power to make policy that will bind the nation. A
legislative power because of the broad policymaking issues.
(c) When Congress, or an agent of Congress, seeks to make policy that will bind a nation, it must follow
Article I procedures (bicameralism and presentment).
(d) The Comptroller General’s legislation did not go through Article I.
2. While Congress may delegate to administrative agencies, Congress may not authorize a lesser member of the
legislative branch to act on its behalf by legislating.
3. I do not agree with the majority and dissent’s position that the Comptroller General’s action is executive.
(a) The conclusion is far from obvious and rests on unsound premise that there is a definite line that
distinguishes executive and legislative power.
(b) Under the fallback provision, Congress would issue the report; thus, the function would be executive if
performed by the Comptroller General, but legislative if performed by Congress. Thus, there is an
indeterminacy.
Dissent (White)
1. Humphrey’s held that there is a class of executive functions that may be exercised, which do not need to be
subject to a presidential right to terminate at will.
2. In this case, the Comptroller General’s function does not interfere with presidential powers. Determining the
level of spending is not a function central to the President’s enumerated powers or to his general duty to
execute the laws. Rather, appropriating funds is a peculiarly legislative function.
3. The removal provisions do not render the Act unconstitutional because there is no threat to the separation of
powers.
(a) The removal can only occur by joint resolution, which requires bicameralism and presentment; thus, it
satisfies Chadha.
(b) Congress’s power to remove, though broad, is circumscribed to some extent by judicial review.
4. The fact that Congress may attempt to “control” the Comptroller’s actions is not unconstitutional.
(a) Congress can always abolish an office through legislation.
(b) Congress can always control through appropriations for such officers.
(c) Congress can always control by legislation imposing duties or substantive restraints on such officers.
 Justice White’s dissent wants to stay out of this controversy. Congress and the President got together an enacted
precommitment device. Why don’t we defer to this allocation of authority amongst themselves? This creates a
paradox in the Accountability theory. The Court believes that if Congress can encroach on executive power, then it
will diminish executive accountability. However, if Congress and the President agree, who is harmed? What end are
we serving?
 Justice White creates alternative form of judicial review—Judicial review under vague standard that we can’t skew
the constitutional balance too much (functionalism).
 Congress has recently attempted to enact several of these structural or quasi-constitutional statutes as a method of
controlling federal spending. Instead of providing legal rules governing the behavior of private parties, these statutes
typically attempt to structure or guide future government decisions.
(1) Impoundment—During the 1970s, Nixon claimed the authority under his Article II powers to impound funds
previously authorized by Congress. As part of the execution of the laws, he asserted that he could delay or
cancel congressionally mandated spending when it would result in increasing prices or taxes. Congress
responded by enacting the Congressional Budget and Impoundment Control Act of 1974. First, a deferral of
budget authority, defined as delaying or withholding an expenditure for less than a year, takes effect unless either
House passes a disapproving resolution. After Chadha invalidated legislative vetoes, the act was amended to
provide guidelines for when deferral was permissible. Second, rescision of budget authority, a decision that all
or part of budget authority is not required to carry out objectives of programs, takes affect within 45 days of
notification to Congress, which may enact a rescission bill. This resolved the controversy.
 Legal Effect—It may have no legal effect at all. Congress did not need legislation to allow it to pass a bill
mandating expenditure. With regard to deferrals, either Nixon is right, which means that Congress can’t invade
his authority, or Nixon is wrong, which means the Constitution forbade his conduct whether Congress passed
legislation or not.
(2) Line Item Veto—Clinton v. City of New York. Hypothetical legal effect of law is none. If Congress wanted to do
subject individual appropriations to veto, it can always do so by passing each appropriation as a separate bill. If
Congress wanted to avoid a veto, it can always repeal the President’s authority as part of the very bill the
President wishes to veto.
(3) Unfunded Mandates—In recent years, there has been growing controversy over federal legislation imposing costly
requirements on the states without providing funds to pay for them. In New York v. United States (US 1992), the
Court held that when such requiremens were directed solely to the states and were not part of generally
applicable laws, they might under some circumstances violate the 10 th Amendment. In 1995, Congress enacted
the Unfunded Mandate Reform Act, requiring the CBO Director to prepare a statement estimating whether each
authorizing bill imposes a mandate on state governments equal to or larger than $50 million/yr. With certain
exceptions, such bills are subject to a point of order.
 Legal Effect—A majority of either House can overrule the chair if it sustains a point of order. Congress could
change this rule by requiring a supermajority. Bowsher problems?
(4) Balanced Budget Amendment
 Pro—Ordinary processes are ill-adapted to the control of federal spending because the costs of deficit spending
are diffuse and borne by future generations, while the benefits are concentrated on groups that can exercise
effective political power. By its nature, the amendment process causes representatives to take the long view and
act in more disinterested fashion that takes into account the welfare of future generations.
 Con—To the extent that the amendment forces this generation to restrict borrowing, it is unnecessary because
Congress can accomplish this goal by ordinary legislative processes. To the extent that it attempts to bind future
generations, it is illegitimate because these generations have no role in the ratification process.
Pre-Morrison v. Olson Appointment and Removal Doctrine
Appointment
 Congress may not appoint. Buckley.
 Open question of intrabranch appointments?
Removal
 Congress may not remove. Bowsher.
 Congress may not require advice and consent. Myers.
 Congress may make quasi-officers independent. Humphreys.
Morrison v. Olson (US 1988) Chief Justice Rehnquist
The Ethics in Government Act of 1978 requires the AG, upon credible information, to investigate a federal
criminal violation against government officials. Upon completion or 90 days, whichever is sooner, the AG
reports to the Special Division. If the AG has found reasonable grounds to believe further investigation is
warranted, shall apply to the Special Division to appoint an independent counsel. The independent counsel can
be removed from office only by impeachment or by personal action by the AG for good cause, physical
disability, mental incapacity, or any other condition that substantially impairs the performance of the independent
counsel’s duties. Also, the AG may terminate that independent counsel if it believes the investigation is
completed. The Supreme Court (7-1) upheld the independent counsel statute.
1. Although the line between “inferior” and “principal” officers under the Appointments clause is unclear, the
independent counsel is clearly an inferior officer.
(a) The Attorney General can remove the independent prosecutor.
(b) The independent counsel was authorized to perform only certain limited duties.
(c) The independent counsel’s office was limited in jurisdiction and tenure.
2. The Appointments clause authorizes cross-branch appointments.
(a) On its face, the Excepting clause admits of no limitation on cross-branch appointments.
(b) The Excepting clause’s inclusion of “as they think proper” seems to give Congress discretion to determine
whether it is “proper” to vest appointments in cross-branches.
3. There are certain limitations to cross-branch appointments.
(a) Separation of powers concerns.
(b) “Incongrutiy” between the functions of the branches.
4. In light of the Act’s provision making the Special Division ineligible to participate in any matters relating to
the independent counsel they have appointed, the appointment of independent counsels by courts is not an
“incongruity.”
(a) In addition, the Court has recognized that courts may appoint private attorneys to act as prosecutor for
judicial contempt judgments.
(b) Indeed, in light of judicial experience with prosecutors in criminal cases, the courts are especially well
qualified to appoint prosecutors. Footnote 12. (This would not be the case where judges are given the
power to appoint someone outside of their expertise).
5. There is no Article III problems. Although the Special Division may terminate an independent prosecutor, this
poses does not pose a sufficient threat of judicial intrusion into executive matters.
6. The Act does not violate the separation of powers.
(a) The Act’s limitation of the AG’s power to remove to “good cause” does not interfere with the President’s
functions.
1) Unlike Bowsher and Myers, this is not a case where Congress is attempting to gain a role in the
removal of executive officials other than through impeachment.
2) The Act puts the removal power in the hands of the executive branch, making the case more
analagous to Humphrey’s Executor and Weiner.
3) While in those cases we relied on a quasi-function distinctions, the real question is whether the
removal restrictions impede the President’s ability to perform his constitutional duty under the Take
Care clause.
4) A good cause requirement does not interfere with executive authority under the Take Care clause.
a) The Court does not see how the President’s need to control the independent counsel’s
discretion is so central to the functioning of the legislative branch as to require that he be
terminable at will.
b) The Executive, through the AG, retains ample authority to assure that the independent
counsel is performing his responsibilities.
(b) There is no undue interference with the role of the Executive branch by reducing the President and AG’s
control of the independent counsel’s prosecutorial powers.
1) The Court has never held that the Constitution requires absolute independence between the branches.
2) There is no Congressional usurpation of executive functions.
3) There is no judicial usurpation of executive functions.
4) While the Act reduces the amount of control the AG and President have over the independent counsel,
the Act does give the AG several means of supervising or controlling the independent counsel; thus,
the executive power is not undermined.
Dissent (Scalia)
1. Although the majority analyzes the Appointments clause and removal power issues with attention to technical
details, the Court has always held that it is the separation of powers concept that gives content to those
clauses.
2. Art II, §1 provides that the executive power shall be vested in the President.
3. The Constitution thus plainly provides that all of the executive power, not some, must be vested in the
President.
4. The independent counsel’s functions are clearly executive.
5. The Act deprives the President of exclusive control over executive activity.
(a) The Act’s whole purpose is to do such.
(b) The majority exaggerates the extent of “some” presidential control.
6. Since the Court would not look for sufficient, but rather complete, control if the legislative or judicial branches
were encroached upon, so must the President’s duties include complete control over the investigation and
prosecution of the laws.
7. The President’s exercise of exclusive power is consistent with separation of powers doctrine.
(a) A system of separation of powers necessarily involves an acceptance of exclusive power that can
theoretically be abused.
(b) Congress has exclusive power to legislate even when it is exempting itself. Courts have the exclusive power
to decide, even when the issue is the constitutionality of a statute reducing judicial salaries.
8. The Majority mistakenly uses a balancing test to determine the President’s required degree of executive power.
(a) The majority sets not standards.
(b) Once we depart from the constitutional text, it is a slippery slope how far we go.
9. The Majority then goes on to mistakenly hold that the independent counsel’s powers do not encroach upon the
President’s “central functions.”
(a) The Presidency is weakened by reducing the zeal of the staff.
(b) The President is weakened by the independent counsel’s potential to erode public support, which weakens
Presidential dealings with Congress, especially given the fact that a Justice Department investigation gives
Congress valid reasons for such hostility.
(c) Given the broad “reasonable grounds to believe” standard, massive and lengthy investigations will
frequently occur.
10. The majority simplistically does not attempt to decide what the difference is between “principal” and
“subordinate” officers, yet still makes a decision.
11. Contrary to the Majority’s assertion, the independent counsel is not an inferior officer.
(a) Inferior means subordinate.
(b) The independent counsel is not subordinate to the President.
(c) Thus, the independent counsel is not an inferior officer.
12. The majority’s new view on the removal power is also mistaken.
(a) The majority’s holding that any executive officer’s removal can be restricted, so long as the President
remains able to accomplish his constitutional role, does not provide any lines.
(b) If the independent counsel, who surely performs an executive role under the Take Care clause, can be
restricted, who can’t be?
(c) Separation of powers was meant to block the unfettered Congressional experimentation that the majority
permits to continue unabated.
(d) The Court essentially tells the President, “Trust us. We will make sure that you are able to accomplish your
constitutional role.”
13. Since the majority violates separation of powers doctrine, the independent counsel will have a significant effect
on individual liberty.
(a) Prosecutors have vast power and immense discretion.
(b) The prosecutors check is a political one.
1) The people elect the President who is entrusted to prosecute and faithfully execute the laws.
2) If the President does not prosecute, the people will not reelect him.
(c) However, the independent counsel statute takes the check out of the hands of the people.
(d) Furthermore, it places the check in the hands of judges, who have no check, not even a political one.
14. A unitary executive can thus achieve a more uniform application of the law.
 There are three issues Appointments clause and Removal issues in Morrison v. Olson.
(1) Inferior Officer—A cross-branch appointment is only valid if he is an inferior officer. Scalia says inferior
means subordinate, but he says that the IC is not subordinate to anyone. However, Vermeule says the Scalia
test can’t be right because if being inferior means having a boss, the only one who has a boss (thus qualifying
as a principal officer) is the President.
Vermeule’s Reading of Appointments Clause—The framers set up Constitution at the top level of all 3
branches. Congress’s power to appoint “inferior officers” empowers them to empower the tops of the 3
branches to fill in below with inferior officers. The Constitution ths is a plan for erecting a frame of
government. However, this does not translate into independent counsel era, but cross-branch
appointments are still OK.
(2) Cross-Branch—Even if IC is inferior officer, cross-branch appointments are not permissible. Rehnquist’s test
is “incongruity.” Some suggest there must be “some nexus of functions” between appointing branch and
inferior officers; i.e. Secretary of State can’t appoint law clerks. In addition, some suggest that “incongruity”
also considers “conflicts of interest;” i.e., AG appointing law clerks.
(3) Removal—The amorphous balancing test is whether the making the official independent threatens the
President’s ability to carry out his constitutional functions. However, some point out that President has few
constitutional duties (prosecution, etc.) Vermeule thinks this balancing test is reminiscent of White’s dissents
in Chadha and Bowsher (the test is whether the statute so threatens the balance of our constitution as to be
impermissible.) Vermeule says that, in Bowsher, the test makes sense. It is about President-Congress
authority and there are not obvious externalities. In Morrison, there are obvious externalities. People are
being prosecuted. Individual liberties are threatened. Thus, you would think it would be the other way
around.
Mistretta v. United States (US 1989) Blackmun
The U.S. Sentencing Commission has 7 members appointed by the President, of whom 3 must be federal judges.
Its role is to create mandatory sentencing guidelines specifying narrow ranges of permissible sentences for
different offenses. The enacting statute defines the commission as independent and located in the judicial branch.
The statute’s concern was variations in sentencing for similar offenders and offenses, which undermined the goals
of sentencing.
1. Since Congress gave the Commission sufficiently detailed guidelines, the Court found no nondelegation
problem since such guidelines amounted to an “intelligible principle.”
2. Although the unique composition and responsibilities of the Commission arose serious separation of powers
concerns, the Court, adopting Jackson’s Youngstown flexible understanding of separation of powers, found
the problems to be more smoke than fire.
3. The Commission’s placement in the Judicial branch is consistent with the flexible ‘twilight area’ approach.
(a) The Commission’s placement simply acknowledges the role courts always play in sentencing.
(b) Developing guidelines is similar to establishing rules of procedure.
4. The Commission’s placement in the Judicial branch produces no ‘practical consequences’ implicating
separation of powers concerns.
(a) The Commission is not a court and fully accountable to Congress.
(b) The Commission does not usurp any executive functions and Congress properly delegated its authority.
(c) The Commission has a limited reach (promoting uniform guidelines).
5. The Constitution does not prohibit federal judges from serving on the Commission due to impartiality and
independence concerns.
(a) Constitutional text contains no prohibition against active federal judge service on independent
commissions.
(b) Historical practice allowed federal judges to undertake extrajudicial duties.
(c) They wield administrative power, not judicial power.
(d) The Constitution does not prohibit wearing of two hats, just wearing two hats at the same time.
(e) Because service is voluntary, service does not undermine the independence of the Judiciary.
6. The President’s power to appoint does not give him influence over the Judicial branch.
(a) Judges do not comport their actions to the President’s wishes for purpose of receiving Sentencing
Commission appointment.
(b) The President’s removal power poses little threat to judicial independence because he can’t remove them
from the bench.
(c) Any reputational damage as a result of Commission removal is assumed.
Dissent (Scalia)
1. As a result of the demise of the nondelegation doctrine, the Court must be particularly rigorous in preserving
the Constitution’s structural restrictions (separation of powers) that deter excessive delegation.
2. The major structural restriction is that the power to make law cannot be exercised by anyone other than
Congress, except in conjunction with the lawful exercise of executive or judicial power.
3. In this case, the Commission’s lawmaking function is completely divorced from any responsibility for the
execution of the law or adjudication of private rights under the law.
4. Thus, Congressional delegation of lawmaking authority to the Commission is unsupported by any legitimating
theory to explain why it is not a delegation of legislative power.
5. The Court errs in that if fails to recognize that this case is not about commingling of the branches, but the
creation of a new branch, “a junior-varsity Congress.”
 In both the Bowsher and Mistretta dissents, Justice Scalia objects to the results reached by the Court because
they permit Congress to establish arrangements that minimize political accountability.
 Mistretta is more a delegation case than an appointment-removal case. Under delegation, the scheme is upheld
because there is an intelligible principle—make equitable sentencing policy. Appointment and removal is
dismissed on political grounds—no question of independence b’c no one wants to serve on sentencing
commission. Also, since judges can set sentences case-by-case, ex ante is no different.
 Chadha and Bowsher—Although both Chadha and Bowsher invalidated innovative schemes designed to preserve
congressional control of delegated authority, the two decisions utilize different approaches. In Chadha, the Court treats
Congress’s decision regrading Chadha’s immigration status as an exercise of legislative authority and finds it invalid
because it failed to comport with the presentment and bicameralism requirements for the enactment of statutes. A
difficulty with this approach is that in the absence of the legislative veto, Chadha’s immigration status would by
determined by INS. Yet, INS’s decision also fails to comport with the bicameralism requirement. Bowsher avoids this
difficulty by reversing the analysis. The constitutional defect of Gramm-Rudman was not that Congress was legislating,
but that it was not legislating. The Court treats the Comptroller General’s budget-cutting authority as an exercise of
executive power and holds that Congress unconstitutionally trenched on executive authority by vesting this authority in
an officer under legislative control.
 Morrison and Bowsher—The Court appears to dsitinguish between statutory schemes designed to assert congressional
control over administrative officials (prohibited in Myers, Chadha and Bowsher) and statutory schemes designed to
protect administrative officials from executive control (Humphrey’s Executor and Morrison). On this view, Congress
may make some executive officers independent, but it may not itself control them. This distinction privileges
arrangements that shield administrative officers from accountability to either of the popularly elected branches of
government.
 Since Morrison, the Court has rejected two additional constitutional challenges to nonpresidential appointments.
Freytag v. Commissioner of Internal Revenue (US 1991) Blackmun
The Tax Reform Act of 1984 authorized the chief judge of the Tax Court to appoint special trial judges to hear
certain proceedings. The Tax Court was created by Congress pursuant to its Article I powers to decide certain tax
disputes. Judges on the court are appointed by the President for a term of years and do not enjoy the Article III
protection of life tenure. The Court held that there was no Appointments clause violation. The special tax judges
had sufficient discretion and importance to be inferior officers to whom the Appointments clause applied. It also
rejected the government’s argument that the Tax Court’s chief judge was a ‘Head of department’ because this term
referred only to executive divisions like the Cabinet-level departments. Nonetheless, the appointment was
constitutional because the Tax Court was a “Court of Law” within the meaning of the Appointments clause.
Although not created pursuant to Article III, the court exercised the judicial power of the United States. Its
exclusively judicial role distinguishes it from other non-Article III tribunals that perform multiple functions and
provides the limit on the diffusion of appointment power that the Constitution demands.
Concurrence (Scalia, O’Connor, Kennedy, Souter)
The Tax Court’s chief judge is a ‘Head of Department.’
Weiss v. United States (US 1994) Chief Justice Rehnquist
The Judge Advocate General appoints military judges to serve on special and general courts martial. The Court,
rejecting an Appointments clause challenge, pointed out that, although the officers received judicial assignments
from the Judge Advocate General, rather than the President, they had already been appointed as commissioned
officers by the President. There was no ground for suspicion that Congress was trying to both create an office and
also select a particular individual to fill it. A Souter concurrence argued that military judges were inferior officers.
MWAA v. Citizens for the Abatement of Aircraft Noise (US 1991) Stevens 6-3
Before 1986, National and Dulles Airports were operated by the federal government. In 1986, Congress enacted
that Transfer Act, which authorized transfer to the Metropolitan Washington Airports Authority, an entity created
by statutes enacted by D.C. and Virginia. However, Congress conditioned the transfer on the creation of a Board
of Review with a veto power over the MWAA. The Board of Review consisted of 9 Congressman, who would
serve in their individual capacities, as representatives of airport users. 8 of the 9 Congressman were members of
various transportation-related committees. The Congressman were appointed by the MWAA’s Board of Directors
from a list provided by the Speaker of the House and Senate President Pro Tempore. D.C. and Virginia amended
their statutes to authorize creation of the Board of Review. A group of citizens who resided under the flight paths
of National Airport sought a declaration that the power of the Board of Review to veto actions of the MWAA
violated separation of powers principles. The Supreme Court held the Transfer Act to be unconstitutional.
1. The Court rejects the argument that separation of powers are not implicated because the Board was created by
state statutes. The Court found that the Board exercised sufficient power as an agent of Congress to mandate
separation of powers scrutiny.
(a) Congressional initiative created the Board.
(b) Congress delineated the Board’s powers.
(c) Congress’s purpose was to protect an acknowledged federal interest.
(d) Membership is restricted to Congressman.
2. The Transfer Act violates separation of powers principles.
(a) If the Board’s power is executive, the Constitution does not permit an agent of Congress to exercise it.
Bowsher.
(b) If the Board’s power is legislative, Congress must exercise it in conformity with Article I’s Presentment
clause and bicameralism requirement, the “single, finely wrought” procedure. Chadha.
(c) Thus, whether the Board’s power is legislative or executive, the Act is an unconstitutional violation of
separation of powers principles; thus, the Court need not decide whether it is executive or legislative.
3. In a footnote, the Court noted that it need not address the claim that the Transfer Act violated the Ineligibility
clause or the Appointments clause.
Dissent (White, Rehnquist, Marshall)
1. Separation of powers principles are inapplicable because the MWAA and Board are creatures of state law.
2. Even under separation of powers principles and the realities of modern government, there is no constitutional
violation because there has been no basis for increased fear of legislative encroachment
3. If the Board was exercising federal executive power, the majority should have relied on the Inelegibility
clause, which is directly on point. This failure suggests the majority is uncomfortable with their assertion
that the Board exercises significant federal power.
4. As Bowsher makes clear, a critical factor in determining whether an official is subservient to Congress is the
degree to which Congress maintains the power of removal. In this case, Congress exercises no such power.
To discharge anyone from the Board, unlike Myers and Bowsher.
5. Although Appointments clause issues are less important factor in separation-of-powers analysis, the Court in
Bowsher and Mistretta has upheld the provided list selection mechanism.
6. The majority alternatively suggests that the Board wields an unconstitutional legislative veto; however, if the
Board is exercising federal power, it is not legislative. The FAA, which had administered the airports,
exercises executive power.
 Steven’s Two-Step—If Congress is doing something and it is not doing it through Article I, but it looks funny
and officially unconstitutional, a court can say if this is executive power, Congress can’t exercise it; if it is
legislative power, it must go through Article I. Thus, Stevens can then hold the statute to be unconstitutional
without specifying what the power is.
 Some suggest that it seems to follow from the Court’s failure to reach the Appointments and Ineligibility clause
arguments that the act is unconstitutional simply because congressional control over the Board turned it into an
“agent of Congress”; thus, the particular technique by which the control was exercised was relatively unimportant.
 White is functionalist with deferential judicial review; Scalia is formalist with vigorous judicial review. However, one
can be a functionalist and want judicial review. For example, one could say that the IC law subverts effective
functioning of modern executive and therefore hold it unconstitutional. Likewise, a formalist might exercise deferential
judicial review if you think the original scope of the power granting provision is narrow. Black.
Appointment and Removal after Morrison v. Olson
 Cross-Branches—Cross-branch appointment are OK so long as they are not incongruous. Incongruous has tow
subfactors: (expertise and conflict of interest).
 Inferior Officer—No good answer from Morrison. The Court says they know one when they see one. Fact-specific
arguments. Does he look like a principal or subordinate. Broad or constrained discretionary duties.
 Removal—No longer the case that pure executive may be removed by the President at will. We ask if the inferior
officer performs so central a function as to be terminable at will.
Federalism
I.
Enumeration
Before the Civil War and after Brown v. Board, some southerners argued that states could nullify the effect of national
legislation. However, as McCulloch and US Term Limits v. Thornton makes clear the enumerated powers were granted
by the people, abolishing the idea of state sovereignty. However, Justice Thomas believes that the ultimate source of
the Constitution’s authority is the consent of the people of each individual state, not the consent of the undifferentiated
people of the nation as a whole. The framers sought to enumerate powers to respond to the defects in the Articles of
Confederation, as well as concerns about retaining states as political units and to respond to concerns about national
tyranny.
The Federalist No. 84 (Hamilton)
Enumeration makes unnecessary a bill of rights. Because the people surrender nothing under the Constitution, they
have no need for reservation of rights. In addition, enumeration may be dangerous because some usurpers might
argue that the reservation implies the existence of a power to exercise such unenumerated power.
II.
Federalism
Vermeule says there are three issues about federalism.
(1) Does federalism matter?
(2) If it matters, who should police the constitutional allocation of powers? Political process or courts?
(3) If it is the courts, what doctrines and standards should they use to do that? If none of the tests work, they we may
reconsider our answer to second question.
Since federalism reemerged in the 70s and 80s, Vermeule believes the end of the Cold War is reason for renewed
sense of federalism. In time of national crisis, the national government is needed. States’ rights are now back on the
agenda.
Federalism serves several values.
(1) Efficiency—Different solutions to specific problems will be appropriate in different areas. A national
government also responds to problems created by one state by activities elsewhere. Prichard argues that
“economic integration” allows gains to all participants by spreading the risks of economic instability and by
allowing cooperation in the provision of joint services (e.g. defense, transport, communications, etc.).
(2) Promoting Individual Choice—A national government can enforce the values shared by a majority in the nation
as a whole, even against those who are a majority in one or a few states. The Federalist No. 46 (Madison).
Madison believes the size and heterogeneity of the national government makes it less likely to be captured by any
faction. In contrast, disabling the national government from acting on some subjects while allowing states to act
in varying ways allows people to move from one area to another in order to select the kind of government
policies they prefer. Moreover, Prichard suggests that the political process is likely to favor decentralization.
Yet, this view may overestimate the ease with which voters relocate.
(a) Interest groups that may be minorities nationally are likely to be majorities locally.
(b) The greater the homogeneity of interests on a geographical basis, the more often minorities become
majorities as decentralization increases.
(c) Decentralization of functions in a hierarchical way disaggregates policy packages and allows a citizen to
case different votes on different components of policy because they are vested in different levels of
government in the jurisdictional hierarchy.
(d) Decentralization, by creating a diversity of jurisdictions, allows a better matching of preferences and
policies because voters can choose the jurisdiction which offers the most preferred policy package.
(e) Given the greater homogeneity of tastes as bounaries contract, decentralization reduces the likelihood of
policy compromises being adopted that create minimum winning coalitions but do not accurately reflect
the interests of any particular interest group.
(f) Reduction of signalling and other transaction costs for expressing citizen’s preferences.
(3) Encouraging Experimentation—Laboratory of the states idea. Justice Brandeis’s dissent in New State Ice Co. v.
Liebman (1932). Many innovations have begun at the state level-sunset legislation, working women’s pregnancy
benefits, zero based budgeting, and equal housing. However, Rose-Ackerman suggests that Brandeis overstated
the case. She believes the reelection motive (risk adverse), no incentive to innovate because other states will
steal idea without the costs involved in the risk, etc., does not create innovation. One may criticize the
assumptions on which she rests (politician’s motives, etc.).
(4) Promoting Democracy—State and local governments provide the opportunity for people to participate directly in
the activities of governments that have significant effects on their lives, which makes them active citizens, like
Jefferson imagined. Rapaczynski finds the argument to be valid-town meetings, school boards, local planning
and budget hearings, and referendum.
(5) Preventing Tyranny—Rapaczynski argues that state’s individual interest protects against the special interest of
government itself.
 While the states are more easily captured by relatively undifferentiated majoritarian interests intent on
suppressing small minorities, the federal government may be a more likely subject of capture by a set of special
minoritarian interests, precisely because the majority interest of the national constituency is so large, diffuse, and
enormously difficult to organize.
(6) Informational Advantages—States know the people better.
 Decentralization—A national government with plenary power might chose to divide the nation into administrative
regions and give revocable grants of autonomy to the regions with respect to certain subjects. Such an approach
encourages above-mentioned values of experimentation, efficiency, and choice. Thus, Rubin and Feeley argue that
federalism’s value is really the values of decentralization. ????
(a) As to citizen choice, they argue that choice may be maximized by diversity among local governments, but that
federalism protects states.
(b) As to diffusion of power, they argue that current controversies do not involve challenges to the physical or
political power of state governments, but to their administrative power.
 Subsidiarity—European Union allows EC’s central institutions to act only if and insofar as the objectives of the
proposed action cannot be sufficiently achieved by the member states.
 There are 4 forms of federalism.
(1) Neither state nor nation may have power to act. First Amendment restrictions (federal-directly, state-through 14th
Amendment).
(2) The national government may be given the exclusive power to regulate in some area. Article I, §10 lists
prohibited state activities. States may not coin money.
(3) State governments may have exclusive power to regulate some area.
(4) State and national governments may have concurrent power to regulate some area. Supremacy clause restricts.
III.
Federalism and Judicial Review
United States v. Lopez (US 1995) Chief Justice Rehnquist
In the Gun-Free School Zones Act of 1990, Congress made it a federal offense for any individual to possess a
firearm in a school zone. The Court holds that the Act neither regulates a commercial activity nor contains a
requirement that the possession be connected in any way to interstate commerce; thus, the Act is
unconstitutional as it exceeds Congressional authority under the Commerce clause.
1. There are 3 broad categories of activity that Congress may regulate under the Commerce clause.
(a) Congress may regulate channels of interstate commerce. Darby, Heart of Atlanta.
(b) Congress may regulate the instrumentalities of interstate commerce, or persons or things in interstate
commerce, even though the threat may come from intrastate activities. Shreveport Rate Cases, Perez.
(c) Congress may regulate those activities having a substantial relation or affect on interstate commerce.
Jones & Loughlin, Wirtz.
2. Although case law has been unclear, the proper third category test is “substantially affects” interestate
commerce.
3. In this case, if the Act is to be sustained, it must be under the 3 rd category.
4. The Act does not substantially affect interstate commerce.
(a) Although the Court has approved a wide variety of Congressional Acts that substantially affect
commerce, with Wickard being the extreme, the possession of a gun in a school zone does not involve
economic activity even in the extreme way that Wickard does.
(b) The Act is a criminal statute that by its terms have nothing to do with “commerce” or any sort of
economic enterprise, however broadly one might define those terms.
(c) The Act is not an essential part of a larger regulation of economic activity, in which the regulatory
scheme would be undercut unless the intrastate activity were regulated.
(d) The Act does not contain a jurisdictional element.
(e) Although not required, neither the statute nor the legislative history contains express congressional
findings regarding the effects upon interstate commerce of gun possession in a school zone.
5. The Government argues that Congress had a rational basis in enacting the Act.
(a) Possession of a firearm in a school zone may result in violent crime.
(b) Violent crime may affect the national economy in two ways.
1) The substantial costs of violent crime are spread throughout the nation by insurance rates.
2) As in Heart of Atlanta, violent crime reduces the unwillingness of individuals to travel to areas
within the country perceived as unsafe.
(c) Second, possession of guns in schools poses a substantial threat to the education process by
threatening the learning environment.
(d) A handicapped educational process will result in a less productive citizenry.
(e) A less productive citizenry would substantially affect the national economy.
6. There are several problems with the Government’s reasoning.
(a) Under the “costs of crime” reasoning, Congress could regulate all violent crime and activities that
lead to such, regardless of ties to interstate commerce. State power to regulate crime vanishes.
(b) Under the “national productivity” reasoning, Congress could regulate any activity found to relate to
the economic productivity of its citizens, including family law and education.
(c) Thus, there would be no limitation on federal power in areas of traditional state control. Parade of
horribles—federalized curriculums, child-rearing, etc.
7. The Court admits that whether an activity is commercial or not is uncertain, but this is an inevitable
byproduct of a system where courts interpret enumerated powers.
8. Judge Breyer’s dissent would have us intrude on areas of traditional state concern. He ignores the
dangerous fact that any activity, depending on the level of generality, can be looked upon as commercial.
Concurrence (Kennedy, O’Connor)
1.
When enacting a statute, Congress has an obligation to protect Constitutional values, such as
federalism. Webster-Haynes Debates and Civil Rights Act debates.
2.
At the same time, the absence of structured mechanisms to require those officials to undertake this
principled task, and the momentary political convenience often attendant upon their failure to do so, argues
for a judicial role.
3.
As the majority notes, the Act upsets the federal balance to a degree that renders it an unconstitutional
assertion of the commerce power; thus, judicial intervention is warranted.
(a) Neither the actors nor their conduct have a commercial character.
(b) Neither the purposes nor the designs of the statute have an evident commercial nexus.
4.
If Congress attempts an extension of its commerce power, then the courts must ask whether the
exercise of national power seeks to intrude upon an area of traditional state concern.
5.
Education is a traditional state concern.
6.
While no one asserts that it is wise policy to allow students to carry guns on school premises, there is
considerable disagreement about how best to accomplish that goal. Considerable disagreement may counsel
in favor of federalism??
7.
In this circumstance, the theory and utility of federalism is revealed, because the states may perform
their role as laboratories for experimentation to devise various solutions where the best solution is far from
clear. New State Ice Co. (Brandeis).
(a) Over 40 states have criminalized the possession of firearms on or near school grounds.
(b) Inducements to inform on violators where the information leads to arrests or confiscation of the guns.
(c) Programs to encourage the voluntary surrender of guns with some provision for amnesty.
(d) Penalties imposed on parents or guardians for failure to supervise the child.
(e) Laws providing for suspension of expulsion of gun-toting students.
(f) Programs for expulsion with assignment to special facilities.
8.
The Act forecloses the states from experimenting and exercising their judgment in an area of
traditional state concern, and where states have a particular expertise.
9.
They, however, are less eager than Rehnquist to cut back on the Court’s prior Commerce clause
interpretations. Kennedy left untouched prior cases holding that Congress has full power to regulate what
are truly commercial transactions, even if the transaction being regulated is a very local one: stare decisis
mandates against returning to the time when congressional authority to regulate undoubted commercial
activities was limited by a judicial determination that those matters had an insufficient connection to the
interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single
market and a unified purpose to build a stable national economy.
(a) However, the activity being regulated here was not essentially commercial.
(b) Areas traditionally left to the states are also not commercial.
Concurrence (Thomas)
1. Thomas stands on originalist methodology in Commerce clause jurisprudence.
2. At the time of ratification, “commerce” included selling, buying, and bartering, not manufacturing and
agriculture, which produce goods.
(a) Federalist 36 treats the three as separate endeavors.
(b) If replace “commerce” with “manufacturing,” the result is an absurdity. When a manufacturer produces
a car, it cannot occur with a foreign nation or Indian tribes.
3. The “substantial affects” test is inconsistent with the Constitution.
(a) Under the Court’s conception of the NP and Commerce clauses, many of Congress’s other Article I, §8
powers are superfluous.
1) If Congress may regulate matters that “substantially affect” commerce, there is no need for the
Constitution to specify that Congress may enacy bankruptcy laws, coin money, fix the standard
weights, or punish counterfeiters of U.S. coins and securities.
2) There may be no need for the power to raise and support an Army and Navy, for fewer people would
engage in commercial shipping if they thought a foreign power could expropriate their property with
ease.
3) There would be no need to specify that Congress can regulate international trade and trade with the
Indians.
(b) If a “substantial affects” test can be appended to the Commerce clause, why not every other power of the
federal government.
1) Congress could regulate all things that “substantially affect” the Army and Navy, bankruptcies, tax
collection, etc.
2) Since the Art. I, §8 clauses then mutually overlap, it can be inferred that the framer’s did not intend
for such a construction.
(c) The framers were aware that manufacturing and agriculture “substantially affects” commerce, but they did
not cede authority of these activities to Congress. Thus, the framers were aware of “economic realities”
that the principal dissent speaks of.
(d) The “substantial affects” test also suffers from the flaw of appearing to grant Congress a police power over
the nation because of its aggregation principle, which is clever, but has no stopping point. Thus, Wickard
and progeny are wrong.
3. Unlike Lochner, this decision enforces only the Constitution and not judicial policy judgments. Footnote 9.
Dissent (Stevens)
1. Guns are both articles of commerce and articles that can be used to retain commerce because gun possession
is the consequence of commercial activity.
2. Congress’s power to regulate commerce in firearms includes the power to prohibit possession of guns at any
location because of their potentially harmful use.
3. It necessarily follows that Congress may also prohibit their possession in particular markets.
4. Since the market for handguns by school-age children is substantial, the national interest justified such
legislation, regardless of whether it would have in 1789.
Dissent (Souter)
1. In reviewing legislation under the Commerce clause, the Court should defer to congressional judgment that a
regulation substantially affects interstate commerce if there is a rational basis for doing so. Hodel. (The
majority did not mention rational basis—the question was whether there actually was a substantial
connection, not whether Congress could have rationally believed there was.)
2. The rational basis test is a paradigm of judicial restraint.
(a) Judicial restraint shows proper respect for Congress’s institutional competence. There is nothing about the
judiciary that makes it a superior source of policy.
(b) Judicial restraint shows appreciation of the legitimacy that comes from Congress’s political accountability.
3. Both Commerce clause and substantive due process holdings go together. In 1937, in West Coast Hotel v.
Parish and Jones & Laughlin, the Court began to defer to legislative policy judgments. In due course, the
rational basis test developed. Katzenbach. The Courts have maintained this posture in both areas of law.
4. The “commerce” standard is an impermissible gloss on rational basis review.
(a) Commerce distinction is similar to indirect/direct distinction. Determining the level of deference under
this commerce standard is essentially a long-discredited version of substantive economic review.
(b) Justice Breyer shows the porosity of such a standard and the inconsistency of this cateogrization with our
rational basis precedents from the last 50 years.
5. The “traditional state regulation” standard is also an impermissible gloss on rational basis review.
(a) First, The majority’s believes the Act infringes on two areas of state concern: education and enforcement
of criminal law.
(b) The suggestion is either that a connection between commerce and these subjects is remote, or that the
commerce power is weaker when it touches on areas of state concern.
(c) As for remoteness in education, the commercial prospects of an illiterate state are not rosy.
(d) As for remoteness in enforcement of criminal law, highjacking interstate shipments of cigarettes can affect
commerce substantially, althouh the state may prosecute robberies.
(e) As for the commerce power weakening position, the idea has been flatly rejected long ago. Hodel.
6. The “legislative findings” standard, though unresolved, is also an impermissible gloss on rational basis review.
(a) Congressional findings do not address the question of reasonableness; they tell us what Congress found,
not what it could rationally find.
(b) If this was the standard, it would require Congress to act with high degree of deliberateness. Judicial
review would be as patently unconstitutional as an Act of Congress mandating long opinions from the
Court.
(c) The standard would promote covert review of the merits of legislation under standards never expressed
and arbitrarily applied.
(d) However, legislative findings are valuable in telling courts what to look for, in establishing at least one
frame of reference for review, and in citing to factual authority.
7. Since Justice Breyer shows that the Act passes rational basis review, the majority’s holding is merely a mistep.
Dissent (Breyer, Stevens, Souter, Ginsburg)
1. The Court should exercise rational basis review.
2. Congress had a rational basis for finding a significant connection (substantially affects) between gun-related
school violence and interstate commerce.
(a) Numerous reports and studies, both inside and outside government, make clear that Congress could have
found the empirical connection urged by the Government.
(b) Congress might have found these economic threats to be no different than the threats that the Court has
previously found within the commerce power, such as loansharking. Perez.
3. To hold this statute constitutional is not hold that the Commerce clause permits the federal government to
regulate any activity related to the economic productivity of its citiznes (marriage, divorce, child custody,
education, etc.).
(a) The statute is aimed at curbing a particularly acute threat to the educational process.
(b) The immediacy of the connection between education and economic well-being is documented by
scholars and accepted by society at large in was and to a degree that may not hold true for other social
institutions.
(c) It simply applies pre-existing law to changing economic circumstances. Heart of Atlanta.
4. There are three major problems with the majority’s reasoning.
(a) The majority’s holding runs contrary to modern Supreme Court cases that have upheld congressional
actions despite connections to interstate of foreign commerce that are less significant than the effect of
school violence.
1) Perez—If Congress thought the threat of force with a gun on a street corner to collect a debt affects
commerce, why can’t the threat of force—the frequent consequence of using a gun—near a school
occur sufficiently often that such activity affects interstate commerce by inhibiting education?
2) Katzenbach—A single instance of racial discrimination at a local restaurant had no greater connection
with interstate commerce than gun possession near schools. The travel disincentive rationale is
similar to businesses and families not wanting to move to areas where violence plagues the school
system.
3) Wickard—In this case, the Court gave Congress the benefit of the doubt in finding the effects, why
can’t it do the same here?
(b) The majority’s “commercial/non-commercial” distinction fails.
1) The Court ignores the Wickard holdings.
a) The Court shouldn’t turn questions of Congressional power upon formulas that would give
controlling force to nomenclature (production, indirect, etc.) and foreclose consideration of the
actual effects of the activity on interstate commerce.
b) An item does not have to be regarded as commerce so long as it exerts a substantial economic
effect on commerce.
2) The line between the distinction is impossible to draw.
2) In this case, the majority drew the line in the wrong place—The Court can’t reconcile the line drawn
here with Katzenburg or Perez.
3) If the majority was holding that education as a whole was a non-commercial activity, the majority was
mistaken because Congress could rationally conclude that schools fall on the commercial side of the
line.
a) Schools spend a quarter of a trillion dollars.
b) Congress has often analyzed school expenditure as if it were a commercial investment-efficiency,
restructure for greater returns, etc.
c)
Schools are commercial investments in which the nation derives the benefit of an educated work
force.
(c) The majority’s holding threatens uncertainty in an area of the law that, until this case, seemed reasonably
well settled. Is Wickard inapplicable? Other questions. Stare decisis.
 Two Readings of Lopez’s significance.
(1) Minimalist—By not including a jurisdictional element and legislative findings, Congress violated the etiquette of
federalism. Congress should appear to be respecting federalism. Thus, Lopez is a slap. Bobbitt suggests that the
Court’s decision is an example of a “cuing function,” whereby the Court reminds congressman that they must
judge their own actions to see if they conform to Constitution. Congressman frequently attempt to claim credit
for addressing a problem, their constituents cared about, without concern for actually reducing crime. The
existence of state statutes suggests little need for a national statute. Vermeule thinks this is unpersuasive since
the Court takes federalism seriously.
(2) New Doctrine—Some suggest that Lopez represents a judicial constitutional moment, given the number of
dissents and concurrences, and thus may suggest reassertion of judicial review over such cases more frequently.
The Lopez court is struggling with line drawing. Vermeule thinks this is more persuasive reading.
 Two Readings of Four Factors and Substantial Affects Test.
(1) Broadest Reading—The Court means that even if an activity meets the “substantially affects” test, it still must
meet the all four factors as an independent test.
(a) Pro—Makes sense of Rehnquist’s majority opinion.
(b) Con—First, the radical jurisdictional element test would undermine the aggregation principle. Second,
traditional state concern test is a bad way to define the reach of the Commerce clause. It should be a
statutory interpretation principle, not a con law one.
(2) Narrowest Reading—The key question is “substantial affects” test. The four factors are imperfect proxies for
that determination. If there is a jurisdiction element, for example, it is more likely that there is a substantial
affect on interstate commerce. Where there is direct evidence, the proxies are then less important.
 Status of Hodel and Rational Basis Review—Vermeule thinks that the Court is talking about their independent duty
to interpret; thus, they are not engaging in deference. In Lopez, however, there is not much to defer to, but that doesn’t
stop Breyer and Souter. Thus, the debate is still alive.
 Lopez seems to draw back on aggregation doctrine a little bit.
 Weinberg’s “consolidation catastrophe” theory—Rehnquist relies on circular limiting principle that there must be a
limiting principle or else nothing prevents the nation from devouring the states.
 The Court was so closely divided because Lopez implicates two central, and connected, questions about the
constitutional law of federalism.
(1) In light of the Supreme Court’s historical attempts at enforcing federalism-based limits on congressional
power, is the nation better off if the Court intervenes or not?
(2) Does the constitutional structure provide sufficient guarantees to the states that Congress will protect their
interests, so that on balance it is better to leave the protection of federalism to the political process than to
allow countermajoritarian courts to attempt to enforce federalism-based limits on congressional power?
 Dailey argues that federalism serves several important functions.
(1) Traditional state concern-by siituating communitarian politics at the state level, localism ensures that the
civic participation, political dialogue, and shared values of family law will develop within the state’s smaller,
more accessible political locales.
(2) State sovereignty over family law serves to diffuse governmental power over the formation of individual
values and moral aspirations.
(3) Parallel arguments can be made to education and consumer protection laws.
Political Constraints vs. Judicial Enforcement
The Constitution’s enumeration of congressional powers, including the commerce power, allocates power between the
nation and the states. Should this allocation be enforced by courts or through political checks on Congress? Both are
imperfect.
1.
Madison’s Argument. In the Federalist No. 45 and 46, Madison suggest another method of enforcement—
Congressman will be so imbued with respect for local governments that they will rarely exercise even broad grants
of power improvidently.
The Federalist No. 45 (1788) Madison
Congress will exercise its power properly for the following reasons.
1. Each of the principal branches of the federal government will owe its existence more or less to the favor of
the state governments; thus, the federal people will feel a dependence, which will result in a proper respect
for state power.
(a) Without the intervention of the state legislatures, the President can’t be elected (electoral college?).
(b) The state legislatures elect Senators.
(c) Congressman will be chosen under local influences.
2. The number of people involved in state government will exceed, both in number and influence, those
involved in federal government. Thus, the state has an advantage.
3. The states retain great powers over the ordinary course of affairs, concerning the libes, liberties, and
properties of the people, and the internal order, improvement, and prosperity of the state.
4. The federal government has the most power in times of war, states in times of peace. Since there are more
peaceful times, the state governments again have an advantage.
The Federalist No. 46 (1788) Madison
1. Since more people will serve in state government, they will be attune to local needs and have personal ties.
Thus, the people’s natural attachment will be to the states.
2. A local spirit will prevail much more in members of Congress than a national spirit will prevail in state
legislatures.
3. Since state legislatures have problems with local county-level interests predominating, the federal government
will have a similar situation with state interests predominating. That is, measures will be decided based on
the probable effect, not on national prosperity and happiness, but on state prejudices and interests.
4. Should the federal government exceed its power, the states would gang together to resist it.
2.
Weschler’s Argument—Updates Madison’s argument. Although modern realities like national parties and popular
election of Senators, Madison’s argument has not lost its thrust.
(1) Before national power may be exercised, one must asnwer the preliminary question why the matter should
not be left to the states.
(2) Variations among states in the problems they face justify imposing this burden of persuasion on those
favoring national intervention.
(3) Several modern functions guard state interests.
(a) Senate—seniority and filibuster.
(b) House—state control of voter qualifications and districting.
(c) President—allocation of electoral votes affects the allocation of times in Presidential campaigns; party
rules allocate convention votes based on some local considerations.
(4) The large size of the national government is not due to an expansionist nature, but to the magnitude of
unavoidable responsibility under modern circumstances.
(5) Judicial review is intended to maintain national supremacy against nullification or usurpation by the states.
(6) The Court is on weakest ground when it opposes Congress’s constitutional interpretation, since
Congressman control the legislative process in the interests of states, and have broadly acquiesced in the Act.
Thus, federal intervention as against the states is a matter for congressional determination.
3.
Choper’s Argument—Modern version of Madison’s argument. ‘Federalism Proposal’
(1) “Federalism Proposal”—the Courts should not decide constitutional question respecting the ultimate power
of national government vis a vis the states because structural aspects of the national political system serve to
assure state’s rights will not be trampled, and history shows that they have not been.
(a) Bloc voting by bipartisan state delegations in the House.
(b) Patterns of Committee assignments responsive to local interests.
(c) Most Senators and Congressman have served in state government. (75%).
4.
Justice Blackmun (in Garcia v. SAMTA)
(1) The framers chose structural and procedural safeguards, not judicial review, for ensuring the proper role of
state interests.
(2) The federal political process has been effective in preserving states’ interests.
(a) At the same time that states have exercised their influence to obtain federal support, they have been able
to exempt themselves from a wide variety of obligations imposed by Congress under the Commerce
clause (Sherman, NLRA, OSHA, ERISA Acts).
(b) Just because some federal statutes (FLSA) extend general obligations to the states does not obscure the
extent to which politics have served state interests under the Commerce clause.
(c) The fundamental change (17th Amendment-direct election of Senators) does not alter the alchemy.
5.
Justice Powell (in Garcia v. SAMTA)
(1) Justice Blackmun’s position is absurd.
(a) Although congressman are elected by the states, once they are in office they are members of the federal
government. This is just as absurd as saying, since Congress is composed of individuals, the Bill of
Rights’s individual rights are adequately protected by the political process. FN 8.
(b) Although states may participate in the electoral college, this is hardly a reason to view the President as a
representative of the state’s interests against federal encroachment.
(c) Weschler is no longer correct. Congress is now more responsive to various national constituencies. FN 9.
1) National legislation now proliferates.
2) 17th Amendment
3) Weakening of political parties on local level.
4) Rise of national media.
(d) The Acts cited by Blackmun are not relevant to the question of whether the political processes are the
proper means of enforcing constitutional limitations. This restraint may not continue. Special interests
may accept the Court’s invitation and urge Congress to extend these to the states.
(e) Congress can not be the sole judge of power since Marbury says it is the Court’s duty to say what the law
is.
6. Regan—Proper question is whether there is a special reason for the federal government to have the power to
something or other. What reason is there to think that the states are incapable or untrustworthy? Is there any reason
why the regulation should come from the federal government? In response, one might ask whether there is any reason
to think that Courts are better able than Congress to determine whether states are incapable or untrustworthy.
6.
Unfunded Mandates—The existence of unfunded mandates may suggest that Weschler’s argument is wrong.
However, the enactment of a Unfunded Mandate Reform Act may indicate that he is right.
7.
Criticism—There are several possible points of criticism worth mentioning.
(1) The impact of increasing mobility among the population (and among people with political ambition).
(2) Judicial review may sometimes eliminate legislation enacted by Congress that serves the interests of several
regions at the expense of the interests of another region, i.e. Civil War.
(3) Special interest groups.
IV.
The Evolution of Commerce Clause Doctrine: The Lessons Of History
The Commerce clause is limited in two ways.
(1) Internal Limits—The clause might define a specific subject matter, such that Congress would lack the power (a)
to do anything other than regulate (b) anything other than interstate and foreign commerce. These limits are
imposed to protect the values of federalism.
(2) External Limits—The clause might grant plenary power to Congress by allowing it to do anything reasonably
regarded as regulation of anything reasonably regarded as interstate or foreign commerce, but other provisions of
the Constitution, such as the 1 st Amendment, might bar the exercise of the power concededly granted.
 McCulloch may suggest that the Court will enforce both internal and external limits.
Text—Congressional power to regulate “with” Indian tribes and foreign nations support the notion that commerce means
trade.
 What does the NP clause add to the commerce power? Some suggest that the NP clause adds the intrastate commerce
with interstate effects element. Others suggest that the NP clause allows Congress to regulate any activity that affects
interstate commerce. Perez.
 Justice Thomas believes the Court should exercise care in commerce clause cases because a broad commerce clause
may swallow up the other powers. However, Vermeule thinks this point is too easy. There is already some clause
overlap.
Original Understanding—Framers granted Congress the commerce power because of the economic balkanization of the
Articles of Confederation. They believed there were three separate spheres of the economy: agriculture, manufacturing,
and commerce.
Structure—The Constitution defines power by enumeration, which presupposes that there is something that is not
enumerated. The police power is the residue of state’s power to regulate health, safety, etc. This creates a line drawing
problem. There are two strategies.
(1) Internal limits—the definition of the phrases in the commerce clause.
(2) External limits—Enclaves of traditional state authority that Congress can’t intrude upon even if authorized by the
Commerce clause to do so.
Gibbons v. Ogden (US 1824) Marshall
The NY legislature granted Ogden monopoly rights to operate steamboats between New York and New Jersey.
Pursuant to a federal statutory grant of power, Gibbons was licensed to operate steamboats in the same area.
Ogden obtained an injunction against Gibbons in a NY state court. The Court held that the injunction was
invalid; the supremacy clause dictated that Gibbon’s federally created right prevailed.
1. Marshall takes a broad view of the commerce clause. Congress can legislate with respect to all commerce
that concerns more states than one. Commerce included not only buying and selling, but all commercial
intercourse, such as navigation (channels?).
2. The congressional power to regulate interstate commerce included the ability to affect matters occurring
within a state, so long as the activity had some commercial activity with another state.
3.
The word “among” means intermingled with and restricted to commerce which concerns more states than
one. There are three limitations.
(a) Congress may not regulate commerce which is completely internal.
(b) Congress may not regulate commerce which does not affect other states.
(c) Congress may not regulate if it was not necessary to do so.
4. The granting of a federal monopoly is interstate commerce because the voyage began in NY and ended in
NJ. Federal law would not reach NY-only voyages.
5. The power to “regulate” is the power to prescribe the rule by which commerce is to be governed. The
“regulate” power, like all others vested in Congress, is complete in itself, may be exercised to the utmost
extent, and acknowledges no limitations, other than are prescribed in the Constitution.
6. Congression power over interstate commerce is limited by certain political constraints.
(a) Congressional wisdom and discretion
(b) Congressman’s identity with the people.
(c) Political accountability through the electoral process.
7. The 10th Amendment is no bar. It does not act as an independent limit on Congress’s interstate commerce
power. Constitutional interpretation.
 Marshall is responding to restrictive view of interstate commerce that President Monroe has given the commerce
power in his 1822 veto of the Cumberland Road Act. According to Monroe, the power to impose duties and imposts in
regard to foreign nations and to prevent any on trade between the states was the only power granted.
 Justice Thomas provided a modern interpretation of Gibbons in his Lopez concurrence.
(1) Marshall claimed that the federal power does not encompass “commerce” that does not extend to affect other
states. However, it is a logical fallacy to infer from this, as the Lopez dissent does, that Congress can
regulate whenever an activity affects interstate commerce.
(2) Marshall’s language suggests the Constitution commits matters of national concern to Congress and leaves
local matters to the states, not that whatever Congress believes is a national matter becomes an object of
federal control.
 From Gibbons until the late 19th century, the Supreme Court has practically no occasion to consider Congress’s
power under the Commerce clause. In 1887 and 1890, the Interstate Commerce Act and Sherman Antitrust Act,
respectively, ushered in a new era of closer judicial scrutiny to Commerce clause issues. Congress began to use this
power more often for different reasons.
(1) Interconnected economy—since problems were no longer localized, it became difficult to imagine a purely
internal commerce that affected no other states.
(2) States treatment of slaves rights—Since the states would not protect slave rights, national intervention became
appropriate. Federalism concepts are revised.
(3) Civil War—mobilization of Northern economy showed that national power could be used efficiently and to
promote liberty.
Two competing doctrines developed in the case law.
(1) Formalism—Under this approach, the Court examined the statute and the regulated activity to determine whether
certain objective criteria are satisfied. Did it cross state lines?
(2) Realism—Under this approach, the Court attempted to determine the actual economic impact of the regulation
and the actual Congressional motivation.
Two statutory interpretation doctrines.
(1) Changed circumstances.
(2) Read broad language in light of purposes which it was intended to for. Thus, we read a commercial purpose
element into the commerce clause.
 Between 1880 and 1937, the Court reviewed two different types of congressional legislation premised upon the
commerce power: (1) economic regulatory laws, (2) police power regulations.
a. Economic Regulation
United States v. E.C. Knight Co. (US 1895) Chief Justice Fuller
The U.S. invoked the Sherman Act to block American Sugar Refining Co’s acquisition of four competing
refineries, which allowed them to control 98% of the market. The Court held that the Sherman Act did not reach
this monopoly because the Constitution did not allow Congress to regulate “manufacturing.” Manufacturing is a
matter left for state control.
1. Manufacturing is not commerce.
(a) Although manufacturing may bring commerce into play, it does not control it, and affects it only
incidentally and indirectly.
(b) The fact that an article is manufactured for export to another state does not make it an article of interstate
commerce.
(c) The manufacturer’s intent does not determine when something passes into commerce.
2. The underlying rationale is protection of state’s rights to regulate local activities.
Dissent (Harlan)
1. Whatever improperly obstructs the free course of interstate intercourse and trade, as involved in the buying
and selling of articles to be carried from one state to another, may be reached by Congress.
2. A monopoly that obstructs freedom in buying and selling articles to be sold out of state affects, not
incidentally, but directly, the people of all states.
3. Congress has the “choice of means” and chosen to regulate in advance of transportation. The judiciary should
not intervene.
4. The state autonomy doctrine cannot be invoked to justify a denial of power in the national government to
meet this emeregency.
5. The common government of all people is the only one that can adequately deal with a matter which directly
and injuriously affects the entire commerce of the nation, which cannot be adequately controlled by any one
state.
6. Harlan suggested that Congress could prohibit the transportation across state lines of articles manufactured by
monopolies
 The Knight tension is between over- and under-inclusiveness. If Congress can regulate the monopoly, the doctrine
is overinclusive since there is nothing that Congress can’t regulate and enumerated powers principle is gone. If
Congress can’t regulate, the doctrine is under-inclusive.
 Fuller’s opinion is formalistic. He defines limits by identifying certain categories of activities that are “not
commerce.” He appears to focus on temporal sequence: Manufacturing precedes commerce, retail sales may succeed it.
Coronado Coal Co. v. United Mine Workers (US 1925)
Applied the Sherman Act to a strike against mine operators.
 Carter distinguished the two cases: In Coronado, although the acts were local, the intent was to restrain interstate
commerce. Reducing the supply of a good is ordinarily an indirect and remote obstruction of interstate commerce,
but when the intent is to restrain or control the supply of interstate commerce, the Sherman Act is violated.
 Other cases not long after Knight, without repudiating that case, followed an approach that was less hostile to
congressional power. In these cases, Congressional regulation was found to fall within the commerce power so long as
the activities being regulated had a “substantial economic effect” upon interstate commerce. These cases did not focus
on whether the logical relationship between the activity and the commerce was “direct” or “indirect,” but rather,
looked at whether the practical economic effects of the activity upon interstate commerce were quantitatively
substantial.
Houston, E & W TX Railway v. U.S. (Shreveport Rate Cases) (US 1914) Hughes
The railway operated lines between TX and LA. Shipments from Dallas to Marshall (150 miles) cost 37 cents;
shipments from Shreveport, LA to Marshall (42 miles) cost 56 cents. The ICC set a maximum rate for
Shreveport-Texas shipments and ordered the railway to charge no higher rates per mile for shipments to Marshall
from Shreveport or Dallas in order to eliminate the discrimination against LA. The Court held that the ICC could
set the rates for the intrastate Dallas-Marshall route.
1. Under the Commerce clause, Congress has the power to regulate in all matters having such a close and
substantial relation to interstate traffic that the control is essential or appropriate to the security of that
traffic, to the efficiency of the interstate service, and to maintenance of conditions under which interstate
commerce may be conducted upon fair terms and without molestation or hindrance.
2. The fact that the activity being regulated was intrastate did not place it beyond congressional control, since
the ultimate object was protection of interstate commerce.
 Prisoner’s Dilemma—Shreveport is about fair competition and unfair discrimination against interstate commerce
(lower rates diverts people from interstate commerce). However, some argue that Schecter is also about unfair
competition. If you’re a state and you think there should be minimum wage and hours, you might not act because of
fear that other states won’t, placing you at a competitive disadvantage. Congress is the only one who can solve the
problem.
Southern Railway v. United States (US 1911)
The Court upheld Federal Safety Appliance act as applied to railroad cars with defective couplers because,
although the cars were used in intrastate traffic, the Act applied to cars used on any railroad engaged in interstate
commerce. Jurisdictional hook?
Stafford v. Wallace (US 1922) Chief Justice Taft
The Packers and Stockyards Act of 1921 authorized the Secretary of Commerce to regulate rates and prescribe
standards for the operation of stockyards where livestock was kept for sale or shipment in interstate commerce.
The Act was designed to reduce the power of packers over prices they paid for cattle and to eliminate collusion
between stockyard managers and the packers, which raised prices to consumers. The Court upheld the Act.
1. The only question is whether the business done in the stockyards between the receipt of the livestock in the
yards and the shipment of them therefrom is a part of interstate commerce.
2. The stockyards are but a throat through which the current of commerce flows. Such transactions can’t be
separated from the movement to which they contribute and necessarily take its character.
 In Swift v. U.S. (1905), Justice Holmes developed this current of commerce rationale. Under this theory, an
activity could be regulated under the commerce power not because it had an effect on commerce, but rather
because the activity itself could be viewed as being “in” commerce or as being part of the “current” of commerce.
Further, interstate commerce is not a technical legal conception, but a practical one.
b. “Police power” regulation and the commerce-prohibiting technique.
In these cases, Congress uses a separate technique (other than regulate local activities directly) of prohibiting
interstate transport of certain items or persons. This technique was not used only for pure economic regulation, but
also for police power or moral regulation. During the first two decades of the 20 th century, the Court was
substantially more sympathetic to this technique than to direct regulation of interstate affairs.
Champion v. Ames (The Lottery Case) (US 1903) Harlan
The Federal Lottery Act of 1895 prohibited the interstate transportation of foreign lottery tickets. Champion was
indicted for shipping a box of Paraguayan lottery tickets from TX to CA. The Court held that the Act was
constitutional.
1. Interstate commerce includes independent carriers carrying things or commodities from one state to another
that are ordinary subjects of traffic, and which have in themselves a recognized value in money.
2. Given the plenary and complete power of Congress to regulate commerce, implicit in Congress’s power to
regulate interstate commerce is the power to prohibit interstate transportation.
3. In this case, Congress does not interfere with intrastate traffic or commerce in lottery tickets, but only
interstate trafficking. Congress thus supplements state action involving lotteries.
4. Although some argue Congress can now arbitrarily prohibit anything from being carried from state to state,
the present case does not declare the full extent of the Commerce clause power. Further, abuse of power is
not an argument against its existence.
Dissent (Fuller, Brewer, Shiras, and Peckham)
1. The majority gives Congress a general police power because it amounted to saying that everything is an
article of commerce the moment it is taken to be transported from place to place, and of interstate commerce
if from state to state. For example, invitation to dine, take a drive, etc.
2. The majority usurps state power and is a step towards centralized government.
Hoke v. United States (US 1913)
The Court upheld the Mann Act’s prohibition of transportation of women in interstate commerce for immoral
purposes. Congress has complete power over transportation between states, and may adopt means that have the
quality of police regulation.
 Once it became apparent that the Court looked favorably upon the commerce-prohibiting technique as a means of
asserting national police power, Congress took a significant additional step: it began to regulate intrastate activities as a
means of enforcing bans on interstate transport. Even this extension was viewed favorably by the Supreme Court.
Hipolite Egg Co. v. United States (US 1911)
After Congress passed the Pure Food and Drug Act of 1906, prohibiting interstate shipment of noncomplying
foods, the government seized a shipment of preserved eggs because their labels failed to comply with the Act.
The eggs had reached their destination when seized. The Court upheld the seizure because the goods were
outlaws of commerce, which may be seized wherever found. The power to seize after arrival was an appropriate
means to prevent interstate shipment.
 The Court was more hostile to congressional interference with the employer-employee relationship. The Justices were
particularly unwilling to allow congressional legislation that was pro-labor, and which the Justices saw as being an
unwarranted interference with the free market system.
Hammer v. Dagenhart (The Child Labor Case) (US 1918) Day
In 1916, Congress passed the Child Labor Act prohibiting the transportation in interstate commerce of goods
produced in factories employing children under age 14 or employing 14-16 years olds for more than 8 hours a
day, or six days a week, or at night. On a 5-4 vote, the Court struck down the Act as unconstitutional.
1. The Court distinguished Champion based on the character of the thing being regulated.
(a) Champion and other cases prohibited interstate transportation of articles was part of the very evil sought to
be prohibited.
(b) In this case, the goods shipped in interstate commerce were themselves harmless; it was only the
employment of child labor which was an evil, and this employment was not directly related to interstate
commerce.
2. There is no power vested in Congress to require the states to exercise their police power so as to prevent
possible unfair competition resulting from some states imposing child labor laws and others not. Thus,
Congress does not have the power to equalize such conditions.
3. Regulating the hours of labor in children in factories and mines within the states is a purely local matter that
the federal power does not extend to.
Dissent (Holmes, McKenna, Brandeis, Clarke)
1. So long as the regulation falls within power specifically given to Congress, the fact that it has a collateral
effect upon local activities otherwise left to state control does not render the statute unconstitutional.
2. In this case, the statute confines itself to prohibiting the carriage of certain goods in interstate commerce,
which power Congress is given in unqualified terms.
3. If we are going to regulate immoral things, which Holmes’s doesn’t think we should, there is no more
compelling case than child labor.
4. However, the Court should not substitute its judgment on questions of policy or morals for that of Congress.
5. Holmes’s implicitly rejected the 10th Amendment as a source of limitations on federal authority—so long as
congressional action technically comes within an enumerated power, it is valid no matter how substantially it
impairs the states’ ability to regulate what would otherwise be local affairs. This highly restrictive view of
10th Amendment became majority view beginning in 1937, enduring to the present.
V.
The New Deal and the Modern Welfare State
Beginning with Jones & Laughlin, the Court began to show a vastly greater willingness to defer to legislative decisions.
The Court expanded the reach of the Commerce clause by recognizing three theories upon which a commerce-based
regulation may be premised.
(1) An expanded “substantial economic effect” theory.
(2) A “cumulative effect” or “aggregation” theory.
(3) An expanded “commerce-prohibiting” protective technique.
a. An Expanded “Substantial Economic Effect” Theory
In pre-1937 cases, the Court had insisted upon a “direct” and “logical” relationship between the intrastate activity being
regulated and interstate commerce. In Jones & Laughlin, the Court substantially loosed the nexus required between
intrastate activities being regulated and interstate commerce. This begins the era between the Schecter and Lopez
bookends.
NLRB v. Jones & Laughlin Steel Corp. (US 1937) Chief Justice Hughes
The National Labor Relations Act (NLRB) established a comprehensive system for regulating labor/management
relations. IT established the right of employees to organize and collective bargain and created a board to
supervise elections and to enforce the Act’s prohibition of unfair labor practices such as discrimination against
union members. The Act’s findings detailed a series of rationales for how denial the Act sought to prevent
disruptions in interstate commerce. The NLRB charges JL with firing employees because they sought to
organize a union. The Court held that statute to be constitutional.
1. Although Jones & Laughlin manufactured iron and steel only in PA, it owned mines in two other states,
operated steamships on the Great Lakes, held warehouses in 4 states, and sent 75% of its product out of PA.
2. The Court expressly declined to rely on the “stream of commerce” theory. The stream of commerce decisions
were merely particular, not exclusive, illustrations of the commerce power. The Commerce power is
broader.
3. The Court rejected the manufacture/production-commerce distinction because it is not determinative of the
issue posed below.
4. Congress has plenary power and may protect interstate commerce from burdens and obstructions no matter
what the source of dangers that threatens it.
5. The direct-indirect effect test exists in an intellectual vacuum.
6. A strike, even in production areas, would have a most serious, immediate, and catastrophic effect on interstate
commerce. Thus, the test is whether there is a substantial economic effect.
7. The Court implied, though it did not expressly state, that the 10 th Amendment would no longer act as an
external limit on federal commerce clause powers.
 The abandonment of the “stream of commerce” rationale now makes it irrelevant whether the activity being regulated
occurs before, during, or after the interstate movement. The question is “substantial economic effect” on interstate
commerce.
 It wasn’t until Lopez that the “substantial” aspect of the test was settled.
b. The Aggregation or Cumulative Effect Theory
Under this theory, Congress may regulate not only acts which taken alone would have a substantial effect on interstate
commerce, but also an entire class of acts, if the class has a substantial economic effect (even though one act within it
might have no interstate impact at all).
Wickard v. Filburn (US 1942) Jackson
Under the Agricultural Adjustment Act of 1938, the Secretary of Agriculture set quotas for wheat production.
The 1941 quota was approved in a wheat grower’s referendum by 81-19%. Under the quota, each wheat grower
is given an allotment. Filburn exceeded the quota, but some of the wheat went to his own personal livestock,
making flour, and seeds (personal uses). After being hit with a $117 penalty, Filburn sued the SOA to enjoin
enforcement of the penalty. He argued that this was a purely local activity. A unanimous Court held the Act to
be constitutional, even as applied to home-consumer wheat.
1. The proper Commerce clause test is “substantial economic effect.”
(a) Any nomenclature such as “indirect” or “manufacture” unrealistically ignores the actual effects of the
activity. Realism.
(b) Gibbons contemplated expansive commerce power, with limitations provided by the political process.
(c) The local character of an activity is helpful in doubtful cases in determining whether Congress intended to
reach it.
2. The home consumption of wheat produces a substantial economic effect on commerce.
(a) The more wheat consumer for home consumption, the less wheat that is bought in commerce (i.e. by other
farmers), which affects price and market conditions (excess wheat would check market prices).
(b) Filburn’s consumption may be trivial, but taken together with that of many others similarly situated, his
consumption is far from trivial.
 Vermeule thinks that Wickard is not as extreme as people think. Instead, it is a simple application of Shreveport.
 Jackson’s statement that the fact that an activity is of local character may help in a doubtful case whether Congress
intended to reach it. Thus, federalism considerations might affect the Court’s construction of the statute. What is a
doubtful case?
United States v. Bass (US 1971)
A federal statute provided that “any person who—(1) has been convicted of a felony and who receives,
possesses, or transports in commerce or affecting commerce any firearm shall be fined not more than $10,000 or
imprisoned for 2 years, or both.” Under the statute, the Court held that a defendant could not be convicted for
possessing a gun without proof that the gun had been possessed in commerce or affecting commerce.
1. The statute was found to be ambiguous on the question of whether the “in commerce or affecting commerce’
phrase modified “transports” only, or “receives or possesses” as well.
2. Given the ambiguity, the majority invoked 2 statutory construction canons: (a) Ambiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity; (b) unless Congress conveys its purpose
clearly, it will not be deemed to have significantly changed the federal-state balance.
3. Thus, absent a clearer statement of intention (floor amendment, no deliberation), the Court would not
interpret the statute to reach the mere possession of firearms.
4. In dissent, Justice Blackmun says there is no ambiguity. The jurisdictional hook applies to all three.
Scarborough v. United States (US 1977)
The Court held that the “commerce” element of the possession offense in Bass could be established by proof that
“the firearm had been, at some time, in interstate commerce.”
c. The Commerce-Prohibiting Technique (Police Power Regulations)
The commerce-prohibiting technique, separate from the “affecting commerce” principle, involves Congress’s right to
use prohibitions in furtherance of the police power. Both principles, of course, were substantially broadened after
1937. In U.S. v. Darby, the Court flatly overruled Hammer v. Dagenhart.
United States v. Darby (US 1941) Stone
The Fair Labor Standards act of 1938 prohibited the shipment in interstate commerce of goods manufactured by
employees who were paid less than a prescribed minimum wage or who worked more than a prescribed
maximum number of hours. It also prohibited the employment of workers in production for “interstate
commerce” at other than prescribed wages and hours. The Court unanimously held the Act to be constitutional.
1. Hammer is overruled.
(a) The inherently harmful distinction has no support by any constitutional provision and has long since been
abandoned.
(b) The idea that the motive of prohibition can render a statute unconstitutional no longer has force.
2. The direct ban on interstate shipments is upheld.
(a) There is no external conflict or limit with another Constitutional provision—Manufacturing conditions are
not left for exclusive state control because the power of Congress over interstate commerce can neither be
enlarged nor diminished by the exercise or non-exercise of state power. Thus, the 10th Amendment does
not act as an external limit on congressional authority over interstate commerce.
(b) Motive is irrelevant—The motive and purpose of a regulation of interstate commerce are matters for the
legislative judgment upon the exercise of which the Constitution places no restriction and over which the
Courts are given no control.
3. The Act’s provisions making it a crime to employ workers engaged in interstate commerce in violation of the
wage/hours provision is also upheld.
(a) Given Congress’s right to impose direct prohibitions or conditions on interstate commerce, Congress may
choose the means reasonably adapted to the attainment of the permitted end, even though they involve
control of intrastate activity. Shreveport (broadens?).
(b) Thus, the outright criminalization of employer conduct was a means of implementing the prohibition on
interstate shipment.
(c) Regardless, the 2nd provision is sustainable independently. The means adopted for the protection of
interstate commerce by the suppression of the production of the condemned goods for interstate commerce
is so related to commerce and so affects it as to be within the reach of the commerce power.
 Gunther calls the 2nd part of the opinion the “super-bootstrap suggestion.” If it is taken seriously, it means that
Congress may attack any problem (even one of overwhelmingly local concern) by prohibiting all interstate activity
associated in any way with it; then, the local activity itself could be prohibited as a means of implementing the ban on
interstate transactions. However, Lopez’s emphasis on commerce probably would not intrude on areas of traditional
state concern. It also doubtful that Congress would go to such lengths.
d. Later Developments—Rational Basis Review
 A broad reading of Congress’s Commerce clause power has been applied to federal criminal statutes.
Perez v. United States (US 1971) Douglas
The Court upheld a federal criminal statute prohibiting loaksharking enforced by threats of violence. Relying on
congressional findings, although stating that they are required, the Court stated that Congressional findings
showed that loansharking is not a traditionally local activity. The Court relied on Darby to uphold the statute. In
that case, a class of actions was held properly regulated by Congress without proof that the particular intrastate
activity against which the sanction was laid had an affect on interstate commerce. As here, where the class of
activities is properly regulated, the courts have no power to excise trivial, individual instances of the class. Thus,
the aggregation principle once again applied to activity entirely within one state.
Dissent (Stewart)
Since there is no distinction between loansharking and other local crime, this statute was beyond Congress’s
power to act. The definition and prosecution of local, intrastate crime are reserved to the states under the 9 th and
10th Amendments.
 Lopez cited this case several times, and gave no hint that it was wrongly decided. Since the activity being
regulated in Perez (loansharking) was clearly commercial in nature, Lopez should not have any effect.
 Federal criminal statutes frequently use the commerce-prohibiting technique. Mann Act (woman), Dyer Act
(stolen vehicle). Makes crime to cross state lines.
Hodel v. Virginia Surface Mining Association (US 1981)
The Court upheld a federal statute regulating the operation of strip mines. Announcing rational basis review, the
Court looked to the statute’s findings that strip mining affected commerce.
e.
Civil Rights Legislation—The Civil Rights Cases (1883) held unconstitutional the Civil Rights Act of 1875,
which relied on §5 of the 14th Amendment to prohibit dsicrimination in public accomodations. Any doubts about
Title II of the 1964 Civil Rights Act (prohibiting discrimination or segregation in public accommodations, public
accommodation = operations affect commerce, motels and hotels per se affect commerce, and restaurants are
covered if a substantial portion of its food has moved in commerce) were put to bed by the following Commerce
clause decisions, especially Katzenbach.
Heart of Atlanta Motel v. U.S. (US 1964) Clark
The HOA motel was a motel located in downtown Atlanta, near two interstate highways, which refused to rent
rooms to blacks. It advertised in national magazines and billboards. About 75% of its guests were from out-ofstate. The Court found the Act to be constitutional.
1. Congressional hearings showed how discrimination affects commerce in the aggregate.
(a) Racial discrimination discouraged travel on the part of a substantial portion of the black community.
(b) Racial discrimination impaired the black traveler’s pleasure and convenience by the uncertainty of finding
lodging.
(c) Thus, racial discrimination has a substantial effect on interstate commerce.
2. The Court was not troubled by the fact that Congress’s motive was not economic, but moral and social.
3. It did not matter that the hotel was of purely local character because Congress’s interstate commerce power
also includes the power to regulate the local incidents thereof.
Concurrence (Douglas)
Equal protection grounds would have a more settling effect as it would apply to everyone. And help finally put
this era behind us.
Katzenbach v. McClung (US 1964) Clark
Ollie’s Barbecue is a Birmingham, AL restaurant, located on a state highway 11 blocks from the interstate and a
greater distance from railroads and bus stations. It buys $150,000 worth of food, $75,000 (46%) of which was
meat bought from a local supplier who purchased it out of state. The Civil Rights Act expressly applied to any
restaurant a substantial portion of whose food has moved in commerce. The Court found the Act to be
constitutional.
1. Discriminatory practices prevent blacks from buying restaurant food, which discourages travel, and thus
obstructs interstate commerce. People can’t travel w/o eating.
2. Based on Wickard’s aggregation principle, even though Ollie’s itself was small, and the value of food it
purchased from out of state had only an insignificant effect on commerce, the restaurant’s discriminatory
conduct was representative of conduct throughout the country; thus, it had an affect on interstate commerce.
3. Rational basis review is met. Thus, the court’s job is at an end.
Concurrence (Black)
Measuring the aggregate effect of a great number of acts of discrimination, Congress has the constitutional power
under the Commerce clause and NP clause to protect interstate commerce from such injuries caused by
discrimination.
 Some suggest that when Congress uses the “affecting commerce” rationale of Wickard, the Court should examine
Congress’s motive.
 Lopez’s affect is unclear. Katzenbach is the more constitutionally suspect decision after Lopez. If the
government’s belief that business won’t locate in areas with poor schooling wasn’t enough of a connection to
interstate commerce in Lopez, it may well be that Congress’s belief that discrimination dissuades blacks from
traveling won’t either. On the other hand, the core activity in Katzenbach is commercial in a war that possessing a
gun in school is not.
VI. Congress’s Other Powers
a. The Treaty Power—Like the war power, the treaty power is divided between two branches of the federal
government. The President may make a treaty, but it must be ratified by 2/3rds of the Senate.
Tribe—A validly-ratified treaty is the rough equivalent of a federal statute. Thus, when a conflict arises between a
valid treaty and a valid congressional statute, whichever was enacted later controls, under the rule that the last
expression of the sovereign will must control.
Missouri v. Holland (US 1920) Holmes
Congress attempts to regulate the killing of migratory birds within the United States. The statute was struck down
as not being within any enumerated congressional authority. Subsequently, the U.S. and Great Britain enter into a
treaty governing the migration of birds between the U.S. and Canada. Congress passes the Migratory Bird Treaty
Act to implement the treaty. Missouri sues to enjoin enforcement because the treaty invades rights guaranteed to it
under the 10th Amendment.
1. The U.S.-Great Britain treaty is a valid treaty under Art. II, §2 since it does not violate any prohibitory words
found in the Constitution (external limits?).
2. If the treaty is valid, then the Act is valid under the Necessary and Proper clause.
3. Since there is a valid treaty, the Supremacy Clause of Article VI makes treaties made under the authority of the
United States the supreme law of the land.
4. Since the Act involves a national interest (“matters requiring national action”), the 10 th Amendment is not
implicated.
(a) The national interest can only be protected by national action in concert with another power.
(b) Birds are only transitorily within states and has no permanent habitat therein.
(c) But for the treaty and the statute, there soon might be no birds for any powers to reach.
 Tragedy of the Commons Theory—In a big field where everyone grazes, there is no incentive to conserve. The
standard solution is a centralized administration of the resource. States can’t solve the problem on their own. If a
tragedy of the commons is involved, there may be a stronger case for coordinated national action.
Reid v. Covert (US 1957)
Mrs. Covert, a civilian resident with her serviceman husband on an English military base, was convicted by a
military tribunal of killing him. The Court held that a civilian in her position could not be tried in military courts.
The plurality emphasized that all of Congress’s powers, including its power to regulate the armed forces, were
limited by the bill of rights, including its requirement of trial by jury. Also, no agreement with a foreign nation can
confer power on Congress, or any other branch of government, which is free from the restraints of the Constitution.
 An executive agreement (unratified international treaties) is not per se unconstitutional. It may override
conflicting state laws b/c international; however, it can not override a Congressional Act.
2. The War Power
Aside from separation of powers issues, the war power’s impact on federalism has principally arisen in a context of
economic regulations promulgated during wartime.
Woods v. Clyde W. Miller Co. (US 1948)
After the President declared the end of hostilities, the Housing and Rent Act of 1947 froze rents at wartime levels.
The Court upheld the Act saying that the war power does not necessarily end with the cessation of hostilities.
Although the war’s effects on the economy may continue for years and threaten to swallow up the 9 th and 10th
Amendments, the Court said it would not assume that Congress is not alert to its constitutional responsibilities.
Any power can be abused.
Concurrence (Jackson)
We should carefully scrutinize the constitutional basis of the Act since this is a dangerous power: it is usually
invoked in haste when calm deliberation is difficult, it is executed in time of patriotic fervor, which makes
moderation unpopular, and it is interpreted by judges influenced by the same passions.
3. The Taxing Power
There are several readings of Art. I, §8, cl. 1.
(1) Congress has the power to lay and collect taxes in order to pay debts, provide for the common defense, and the
general welfare. However, some arge that it would be silly to give Congress a general power to provide for the
general welfare.
(2) The second half of the clause lays out the purposes for which Congress can lay and collect taxes. Madison and
Hamilton disagree.
a) Madison—The clause meant that Congress could tax and spend for the common defense and general
welfare, and that the content of this was provided by the enumerated powers. Thus, there was no general
power to spend for the general welfare.
b) Hamilton—More nationalist. General power to spend for the welfare of the nation as a whole. In US v.
Butler, the Court adopts Hamilton’s view. Thus, Vermeule would be shocked to see a case struck down as
not in the general welfare.
In addition, to the general Art. I, §8 power to lay and collect taxes, the Constitution imposes several specific limits
and rules on the taxing power.
(1) Art. I, §8 requires all taxes to be uniform throughout the U.S. Thus, the tax structure may not discriminate
among states, but it does not matter that specific individuals are not taxed uniformly. The requirement applies
to indirect taxes (carrying on business) rather than property.
(2) Art. I, §2 requires all direct taxes to be apportioned and arranged in such a way that revenue produced by them
comes from each state in proportion to its share of the nation’s overall population. Real property is only direct.
(3) Art. I, §9 prohibits duties on exports.
Regulatory Effects—If the regulatory impact of the tax is one which could be achieved directly, by use of one of the
other enumerated powers (commerce), the fact that the tax has this regulatory effect is not of constitutional
significance. If no direct ability, a court may strike it down.
Bailey v. Drexel Furniture Co. (US 1922)
After Hammer, Congress enacted the Child Labor Act, which required that anyone who employed child labor pay
an excise tax of 10% of the entire net profits of the mine or factory. The Court found the Act to be
unconstitutional.
1. The Act intentionally regulates by the use of the tax as a penalty.
(a) The detailed and specified course of conduct in business set out in the Act demonstrated its purpose.
(b) The Act’s provisions authorizing DOL inspection of factories and mines is not a normal DOL activity
(advancement and protection of the welfare of workers).
(c) The amount of the tax was not proportional to the extent to which child labor was used.
(d) The tax was only payable if the employer has scienter.
2. Although taxes are often enacted with incidental regulatory motives, in this case, the tax’s prohibitory purpose
was clearly paramount.
3. Grant the validity of this law, and all Congress would need to do to have a police power is regulate by taxation,
which intrudes on the 10th Amendment rights of the states.
 This case would almost certainly come out differently today. The tax would still be seen as regulatory, but it would
no longer invade areas reserved to the states by the 10 th Amendment. Instead, the regulation would be upheld,
probably under the Commerce clause, since the 10th Amendment is no longer viewed as setting aside particular areas
for state regulation.
 The only type of tax which might now be held to be a regulatory tax is a tax enacted together with specified
conditions, and written in such a way that the tax does not apply at all unless the taxpayer has violated the conditions.
 According to Tribe, there are three rules of taxing power cases.
(1) A tax probably has to raise non-trivial amounts of revenue to be valid. U.S. v. Kahriger.
(2) Regulatory provisions that accompany the tax are valid if they bear a reasonable relation to the tax’s
enforcement. Doremus.
(3) A tax which regulates directly through its rate structure is valid. McCray.
 How do we know a tax is regulatory? Bad tax policy.
(1) A bad tax that is unenforceable may be evidence of motive.
(2) Most taxes are based on commodities and exchange, not behavior.
(3) If you really wanted to raise revenue, a broad-based tax would be called for.
 Taxes and fines are somewhat indistinguishable. There is almost no judicial review of this since Bailey’s extremely
deferential definition of tax.
4. The Spending Power
Art. I, §8 gives Congress the power to lay and collect taxes…to pay debts for the common defense and general
welfare of the U.S. The power to spend is linked to the power to tax—money may be raised by taxation, and then
spent for common defense and general welfare.
Prior to 1937, it was not clear whether Congress could spend for whatever purpose it wished, or whether Congress
could only spend in order to carry out one of the other enumerated powers.
United States v. Butler (US 1936) Roberts
The Agricultural Adjustment act of 1933 was designed to stabilize production in agriculture by assuring farmers
that their products will be sold at a fair price. The act imposed a tax on processors of agricultural commodities such
as cotton. The tax proceeds were to be used to subsidize farmers who agreed to restrict their production. The Court
held the Act unconstitutional as beyond Congress’s power to spend in the general welfare.
1. The Court solely engages in mechanical review.
2. The Court notes that the Taxing and Spending clause does grant power just to regulate for the general welfare,
independent of the tax and spend power. (Thus, a congressional regulatory scheme has to justified as a
reasonable means of carrying out some other power).
3. The power to tax and spend for the general welfare exists as a separate and distinct power from the other powers
enumerated in Art. I, §8. (Hamilton’s view).
4. The Court does not determine the scope of the phrase “general welfare of the United States” or whether an
appropriation in aid of agriculture falls within it. (Political question, judicially manageable decision, vague,
etc.)
5. However, agricultural production is a matter beyond the powers of the federal government. It involves the
reserved rights of the states. (10th Amendment as external limit).
(a)
Because Congress could not directly regulate agriculture, it also could not coercively purchase
compliance with a regulatory scheme.
(b)
The Court rejects the argument that the Act is constitutional because it is voluntary. Since if the
farmer refuses to comply, he will lose benefits, thus receiving less for his crops, etc., the regulation is in
fact not voluntary.
(c)
The Court rejects the argument that local situations throughout the nation have created a situation
of national concern because the Constitution does not permit such a flexible argument out of fear of
subversion to the national government.
(d)
Parade of horribles. All businesses could be induced to surrender rights and comply with
regulation as the price of continuance of business.
6. The Court distinguished the Act from a conditional appropriation of money (valid). The Act was impermissible
because the farmer contractually binds himself to obey the regulations he could not be directly commanded to
obey. The use of contracts in this way would nullify all constitutional limitations upon legislative power.
Dissent (Stone)
1. The AAA does not attempt economic coercion.
(a)
There is no support in the record or any date showing the actual operation of the Act.
(b)
Threat of loss, not hope of gain, is the essence of economic coercion.
2. The majority’s distinction between conditional appropriations and spending premised on contracts (promises) is
absurd.
(a) It makes no difference that there is a promise to do an Act which the condition is calculated to induce.
(b) Condition and promise are alike valid since both are in furtherance of the national purpose for which the
money is appropriated.
(c) If Congress could constitutionally make payment to farmers on condition they reduce their crop acreage, it
is absurd to hold that the measure becomes unconstitutional merely because the farmer is required to
promise to reduce the acreage.
3. The power to tax and spend has some constitutional restraints.
(a) The purpose must be truly national.
(b) It may not be used to coerce action left to state control (threat of loss).
(c) Conscience and patriotism of Congress and the Executive.
4. Congress also has a duty to interpret the Constitution. (Deference?). Thus, the majority’s parade of horribles
ignores Congress’s “sense of public responsibility.”
 Today, the 10th Amendment does not prohibit Congress using its spending power in areas of local interest. Just as
dead as in Commerce clause jurisprudence.
 The majority’s distinction between “conditional appropriations” and “appropriations requiring binding promises by
the recipient” has been abandoned.
Steward Machine Co. v. Davis (US 1937) Cardozo
Under Social security Act’s unemployment compensation system, an employer paid a tax to the U.S. Treasury. If
the employer also made contributions to a state unemployment fund that had been certified by the Secretary of
Treasury as meeting certain “minimum criteria” designed to assure financial stability and accountability, the
employer received a credit of up to 90% against the federal tax. The Court upheld the system because it did not
involve coercion of the states in contravention of the 10 th Amendment nor did it violate implicit federal restrictions.
1. A national solution was necessary to solve the nationwide problem of unemployment.
(a) Many states would not enact tolls on their industries for fear of placing themselves at an economic
disadvantage as compared with neighboring states. Race to the Bottom (5 States, distinguish reasons for
failing to act).
(b) Two consequences.
1) States would not contribute to the solution of a national problem out of fear.
2) Since states would not contribute, a disproportionate burden was placed on the resources of the federal
government.
2. The coercion distinction is guided by a common sense that assumes free will.
3. The Court says that Alabama was acting on her own free will, not coercion, when she chose to have relief
administered under her laws, not federal law. Thus, the state is not being coerced and the 10 th Amendment is
not implicated.
 The Steward Court distinguished Butler in four ways.
(1) The proceeds of the tax were not earmarked for a special group.
(2) The system operated in a state only if the state gave its approval.
(3) The state could repeal its law at its pleasure.
(4) The end, unemployment relief, was one on which nation and state may lawfully cooperate.
 On one view, the SSA is more objectionable than the AAA because the former coerces the states directly while the
latter does so indirectly by allowing contracts between the U.S. and private parties that have the effect of undermining
local policy.
Other Constitutional Provisions as Limits—A federal spending program may not run afoul of other specific
Constitutional provisions. This is also the modern view.
South Dakota v. Dole (US 1987) Chief Justice Rehnquist
Since Congress was uncertain about its power to impose a minimum drinking age directly (in light of the 21 st
Amendment), it passed a federal statute directing the Secretary of Transportation to withhold a portion of federal
highway funds from states that do not prohibit the purchase of alcohol by people under 21. The Court upheld the
statute as constitutional.
1. There are several restrictions on the spending power.
(a)
It must be in pursuit of the general welfare. Butler. In considering this, courts should defer
substantially to Congress.
(b)
If Congress desires to condition the states’ receipt of federal funds, it must do so unambiguously.
(c)
Conditions on federal grants might be illegitmate if they are unrelated to the federal interest in
particular projects or programs.
(d)
Other constitutional provisions may provide a bar.
2. In this case, the requirements are met.
(a)
The statute served the general welfare b/c different drinking ages in different states created incentives
for young people to combine their desire to drink with their ability to drive.
(b)
Congress’s condition is directly related to one of the main purposes for which highway funds are
expended—safe interstate travel.
3. There is no coercion since all SD would lose is 5% of funds otherwise obtainable under specified highway grant
programs. Mild encouragement.
4. Even if direct congressional setting of the drinking age is unconstitutional, Congress’s indirect use of its
conditional spending power to achieve the same results is permissible. Only if, by the use of the conditional
spending power, Congress induced states to pass laws that themselves would violate the constitutional rights of
individuals would that congressional action be unconstitutional. ???
Dissent (O’Connor)
The minimum drinking age is not sufficiently related to interstate highway construction to justify the conditions on
the funds. She would have relied on an approach harking back to Butler, under which the test would be whether the
condition is a regulation or a specification of how the money should be spent. Butler was wrong only because of its
crabbed view of the extent of Congress’s regulatory power under the Commerce clause, not because it insisted that
conditions on spending be non-regulatory.
 Sunstein’s Endowment Effect—distinguishes between taking a good away that one already has (coercion) vs.
bribery.
North Carolina v. Califano (US 1978)
In order to control health care costs, the National Health Planning and Resources Development Act of 1974
required each state to enact legislation, conforming to federal standards, requiring the state’s health planning
agency to approve all major capital development projects by hospitals. If it did not enact such legislation, the state
would lose not only the planning funds made available by the Act, but also federal funds for a variety of public
health, mental health, and alcohol abuse services. The Court summarily affirmed a judgment that the Act was
constitutional.
 Statutory Interpretation as a Limiting Technique—A Court may construe ambiguous statutes so as not to impose the
problematic obligations on the states.
Pennhurst State School & Hospital v. Halderman (US 1981)
In Developmentally Disabled Assistance and Bill of Rights Act of 1975, the Court noted that although the Act is a
federal grant for affirmative action programs and such, the absence of any language suggesting that a separate bill
of rights is a condition of receipt of federal funding under the Act violated the principle that a statute must state
unambiguously if it intends to condition a grant of federal money. Legislation under the spending power is like a
contract: you must be able to accept. Since Congress appropriated little money, Congress must have had a limited
purpose. Congress, as a matter of statutory interpretation, must provide unambiguous terms so as to give notice.
Dissent (White, Brennan, Marshall)
The term “rights” is a stronger indicia of congressional intent that the mere statement of “conditions.” The Court
has no basis to conclude that since compliance with the bill of rights is large, Congress could not have intended
such compliance without express language.
VII. The Power to Enforce the Reconstruction Amendments
Congress’s power to “enforce” the Reconstruction Amendments (13 th, 14th and 15th Amendments) creates severe textual
difficulties. There are several interpretations of this power.
(1) Substantive
(2) Interpretive
(3) Remedial—Ex Post and Ex Ante (prophylactic)
When Congress enacts a statute, the commerce clause and §5 may work in tandem. First, you would try commerce
clause to avoid §5 problems. A narrow commerce clause interpretatioon may raise a §5 issue.
Two issues.
(1) What does “enforce” mean?
(2) How does the necessary and proper clause play into the 14 th Amendment? The 14th Amendment’s §5 is part of
the “foregoing” powers of the NP clause like the Article I powers.
a. Substantive Modifications
Archibald Cox
Congress, in the field of state activities and except as confined by the Bill of Rights, has the power to enact any law
which may be viewed as a measure for correction of any condition which Congress might believe involves a denial
of equality or other 14th Amendment rights.
(1) Factfinding—Courts routinely defer to Congressional judgment about questions of degree and a presumption
exists that facts exist which sustain congressional legislation. The Equal Protection and Due Process clauses
depend on factfinding and there are differences of opinion in interpreting the data; thus, Courts should defer to
Congress.
Katzenbach v. Morgan (US 1966) Brennan
Section 4(e) of the Voting Rights Act of 1965 provides that no person who has completed 6 th grade in a Puerto
Rican school, where instruction was in Spanish, shall be denied the right to vote because of his or her inability to
read or write English. The legislative history made it clear that this provision was designed to enfranchise several
hundred thousand people who had migrated to NY from Puerto Rico by overriding a NY statute requiring that
voters be literate in English. Previously, in Lassiter v. Northhampton Election Board, the Court held that an
English-language literacy requirement did not violate the substantive guarantees of the 14th and 15th Amendments.
The Court upholds the Act as constitutional.
1. Under the Constitution’s distribution of powers, states have power to establish qualifications for voting, so long
as they do not conflict with the 14th Amendment or any other aspect of the Constitution.
2. The Court does not have to decide whether the NY law violates the Equal Protection clause.
(a) Depreciates congressional resourcefulness and congressional responsibility for implementing the
Amendment.
(b) Neither the language (enforce) nor the history of §5 supports such a construction.
3. All the Court has to do is ask whether Congress could prohibit the enforcement of state law by legislation under
§5 of the 14th Amendment.
4. In drafting §5, the 14th Amendment drafters sought to grant to Congress the same broad powers expressed in the
Necessary and Proper clause.
5. Thus, we ask whether §4(e) satisfied several criteria.
(a) May §4(e) be regarded as an enactment to enforce the Equal Protection clause.
(b) Is §4(e) “plainly adapted to that end?”
(c) Is it consistent with “the letter and spirit of the Constitution?”
6. In Footnote 10, the Court emphasizes that Congress’s power under §5 is limited to adopting measures to enforce
the guarantees of the 14th Amendment; §5 grants Congress no power to restrict, abrogate, or dilute these
guarantees.
7. The Court seems to be applying rational basis review on each of the three factors.
8. Section 4(e) may be regarded as an enactment to enforce the Equal Protection clause.
(a) Congress explicitly declared so.
(b) It is a measure to secure for the NY Puerto Rican community nondiscriminatory treatment by government.
9. Section 4(e) is “plainly adapted” to further these purposes.
(a) NY cannot now deny the right to vote to large segments of the Puerto Rican community.
(b) The enhanced political power will be helpful in gaining nondiscriminatory treatment in public services for
the community.
10. Section 4(e) may also be sustained on the basis that it sought to eliminate invidious discrimination in
establishing voter qualifications.
(a) Congress might have included that prejudice, not providing an incentive to learn English for intelligent
exercise of the vote, was the real motive of NY legislators.
(b) With Spanish newspapers, radio, and TV, Congress may have concluded that the ability to read and speak
Spanish is just as effective for the intelligent exercise of the vote.
11. Section 4(e)’s remedies are means which are consistent with the letter and spirit of the Constitution.
(a) The argument that §4(e) is invidious discrimination itself because it excludes non-territorial U.S. schools
from its provisions fails on the merits.
Dissent (Harlan, Stewart)
1. In order to bring §5 into power, there must first be an infringement of the Equal Protection clause.
2. The question of whether the NY voting rights law violates the Equal Protection clause in the first place should
be answered by the Judicial branch.
3. If Congress could answer this question, it would be able to qualify the Supreme Court’s constitutional decisions
under the 14th and 15th Amendments by resorting to congressional power under the Necessary and Proper
clause.
4. In light of Lassiter, Congress may not legislate to limit the effect of that decision, which it is attempting to do in
passing §4(e).
5. Congress does have a role. Decisions on equal protection and due process are based on empirical foundations,
which Congress is well equipped to investigate, and the Court will give such determinations deference.
6. However, in this case, Congress has not developed a legislative record and did not hold committee hearings or
reports; thus, there is nothing to defer to.
7. Thus, Congress in this case swallows up state’s constitutionally protected authority in the field of voting rights.
Lassiter dictates the result.
 Three Readings—There are three readings of Katzenbach.
(1) Substantive—Congress has the ability to create rights under §1. No cases hold this way, unless it is
Katzenbach.
(2) Interpretive—Congress can interpret the Constitution as long as it is reasonable. Vermeule believes this is best
reading. Boerne, however, just states that Congress has no substantive power to change the Constitution,
Vermeule thinks that Boerne completely overlooked possibility of interpretive deference.
(3) Remedial—Congress can prevent and deter constitutional violations. Congress can adopt both ex ante and ex
post remedial schemes. Boerne says prevention is possible. Broad consensus that Congress has this power.
 Thayer’s Rule and Departmentalism—Cooper’s reading of Marbury is that the Supreme Court is final arbiter. If
you buy this, then Harlan’s dissent is correct. However, Cooper is widely contested. It is hard to prove that rational
basis review is inconsistent with Marbury.
 The Footnote 10 Ratchet—Congress may have power to expand under a substantive theory, but it does not have the
power to dilute according to footnote 10. The Katzenbach Court indicates it will not defer to congressional judgment
in assessing a claim that a statute dilutes constitutional rights. One possible argument for dilution.
(1) With respect to some constitutional guarantees, there is a broad or narrow range of permissible interpretations.
(2) The Courts are sometimes constrained by their institutional characteristics to adopt only one interpretation
within that range. Congress, lacking the same kinds of institutional characteristics, might adopt another
interpretation, yet still remain within the range of permissible interpretations. Thus, in the context of remedies,
Congress might replace a judicially developed remedy with an equally efficious one. Thus, partial dilution
would be consistent.
 Federalism—Cohen argues that Katzenbach is defensible as an ordinary application of the general proposition,
derived from Madison and Weschler, that the courts will not enforce federalism-based limitations on congressional
power because the political constraints on Congress are sufficient to protect against improvident national action.
 Stephen Carter argues that Katzenbach is best understood as a tool that permits the Congess to use it s power to
enact ordinary legislation to engage the Court in a dialogue about our fundamental rights, thereby forcing the Justices
to take a fresh look at their own judgments. Kind of like Lopez-Ryan.
City of Boerne v. Flores (US 1997) Kennedy 6-3
In Employment Division v. Smith, the Court held 5-4 that generally applicable legislation does not offend the Free
Exercise clause. In response, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), adopting
the dissent’s view, which prohibited government from substantially burdening a person’s free exercise of religion
unless (1) there is a compelling government interest and (2) the action is the least restrictive means of furthering
that interest. The Court held the Act to be unconstitutional.
1. Congress’s power to “enforce” under the 14th Amendment (due process incorporates 1st Amendment) is remedial,
and does not extend to substantive determinations of what constitutes a constitutional violation.
(a) Legislation which alters the meaning of the Free Exercise clause cannot be said to be enforcing the Clause.
(b) Congress does not enforce a right by changing what the right is.
(c) If this were not true, Congress would no longer be enforcing in any meaningful sense the provisions of the
14th Amendment.
2. The 14th Amendment’s history confirms the remedial, rather than substantive, nature of the Enforcement clause.
(a) Bingham Amendment’s “necessary and proper” instead of “enforce” rejected as too broad.
(b) Rep. Garfield resurrected this rejection in Ku Klux Klan Act debates.
(c) The Bingham Amendment’s grant to Congress of power to interpret the Constitution violated separation of
powers principles since the 1st 8 Amendments are self-executing, prohibitions on government actions, which
the Court has power to interpret.
3. The 14th Amendment’s remedial nature is confirmed in the case law. Civil Rights Cases, South Carolina v.
Katzenbach.
4. Any language in Katzenbach v. Morgan that could be interpreted as acknowledging a congressional power to
enact legislation that expands §1 is not the best interpretation. Such an interpretation there is no limit on
congressional power and allows shifting legislative majorities to change the Constitution and effectively
circumvent the Article V amendment procedure.
5. While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the
means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light
of the evil presented.
6. The RFRA is not as strong a case for preventive measures as the Voting Rights Act.
(a) RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because
of religious bigotry.
(b) There have been no episodes of persecution in the past 40 years.
(c) Overbroad as compared to South Caroline v. Katzenbach.
1) Confined to certain regions of country.
2) Coverage terminated at the behest of states if the danger has subsisted after 5 preceding years.
7. RFRA is not designed to identify and counteract state laws likely to be unconstitutional. It appears to attempt a
substantive change in constitutional protections instead.
Dissent (O’Connor, Breyer, and Souter)
All three conceded that Congress can’t expand or contract the scope of constitutional guarantees. These justices
dissented only because they disagreed with the Smith decision, and therefore didn’t believe that Congress was in
fact modifying the scope of the free exercise clause from what they thought the scope should be.
 The Boerne Court completely ignores the possibility of interpretive deference.
 Since the RFRA is overbroad, the Court believes it is not a prophylactic remedial device. If it were a remedial
device, it would be more narrowly tailored, and apply in certain areas (i.e. voting rights act). This statute is
nationwide. Indeed, the statute may just look too much like an exercise of substantive authority.
 The difference between Boerne and narrow version of Katzenbach is that the Court reviews valid ends and means to
achieve that end. In this case, the Court says it is an unacceptable means to achieve the end.
 One-Way Ratchet Problem. Building on the Harlan dissent in Katzenbach, many criticized the majority’s footnote
10 as being widely incoherent. Some rights are zero sum, i.e. affirmative action (do we enhance minority rights or
dilute rights of the majority?). After Boerne, the one way ratcher problem is not that important any more. Congress
just enforces remedies for judicially declared violations. The one-way ratchet issue is not a problem unless Congress
has interpretive or substantive power.
b. Remedial Interpretations.
1. Complex remedies—On this view, Congress may provide remedies for violations of rights that courts have
found or would themselves find protected by the Constitution. This may do two things: (1) Authorize Congress to
confer jurisdiction on the federal courts to enforce §1’s guarantees; (2) Authorize Congress to create remedies that
courts would have difficult in developing on their own in the ordinary course of case-by-case adjudication.
South Carolina v. Katzenbach (US 1966)
After an extensive investigation into racial discrimination in voting practices, Congress enacted the Voting
Rights Act of 1965. The AG and Census Director were given unreviewable authority, the first to determine that a
literary test or device has been used in a state or political subdivision, the second to determine that less than 50%
of its voting residents were registered to vote or had voted. Once those findings were made, the use of tests or
devices was suspended. In addition, the state could not adopt any new voting standards or procedures without
federal approval. If the “preclearance” resulted in a conclusion that the changes had the purpose of or the effect
of discriminating on the basis of race, the changes could not be implemented without federal court approval. The
Court upheld the Act’s provisions as constitutional.
1. The Court construed Congress’s power to enforce the 15 th Amendment broadly (cases do not distinguish
14th). It held that “any rational means” could be used to enforce the ban on racial discrimination in voting.
2. Congress has acted based on a factual record showing the 15 th Amendment has clearly been violated.
Evidence was presented to Congress showing that all areas of racial discrimination share the same two
characteristics.
3. Congress is better than Courts in dealing with complex remedies due to the circumscribed nature of judicial
power to case-by-case determinations.
4. Thus, Congress’s enforcement power permits it to outlaw practices which the Court would not on its own
find to violate §1 of the 15th Amendment, as long as these practices are reasonably closely related to
practices that would violate §1.
2. Preventive Remedies—Congress has the power to forestall the occurrence of acts that would violate rights that
the courts have found or would find protected by the Constitution.
City of Rome v. United States (US 1980) Marshall
The City challenges Voting Rights Act “preclearance” provisions on the basis that the 15th Amendment prohibits
only purposeful discrimination, not discriminatory effects. The AG had found that the city’s changes had
impermissible effects, but not purpose. The Court upheld the Act’s provisions as constitutional. The Court said
that Congress could rationally have concluded that, because electoral changes by jurisdictions with a
demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it
was proper to prohibit the changes that have a discriminatory effect. (The risk is that Congress and courts won’t
be able to accurately determine in every instance whether a change has a discriminatory purpose.)
Dissent (Rehnquist, Stewart)
Since the City established that it had no discriminatory purpose, the city would not violate the Constitution in
adopting its new rules, and that Congress therefore lacked power to remedy a nonexistent violation by requiring
preclearance of the changes. In addition, a preventive remedy is constitutional only if the Court agreed that the
risk of a substantive violation was substantial.
3. Remedies for Arguable Violations—Under this view, Congress may provide remedies for violations of rights
that arguably are protected by the Constitution, that is, where there are good grounds for thinking that, given what
the courts have said about a problem, the courts might find a constitutional violation.
Choper (1982)
Congress is free to invalidate government actions that the Court has already upheld or might otherwise uphold in
the future. But this would permit Congress to “expand” on judicial conceptions in those very limited situations
where Congress, with its sprecial competence, has appraised the relevant factors and concluded that the law
(already declared vulnerable by the judiciary) is not justified by the required state interest—a decision which
differs from that which the Court, with its more limited capabilities, either has already reached or would
otherwise make when the issue was presented to it.
EEOC v. Wyoming (US 1983)
The Court held that Congress had the power under the Commerce clause to require that states follow federal
standards prohibiting age discrimination in employment. It did not decide whether the prohibition “could also be
upheld under §5.” Chief Justice Burger’s dissent, joined by 3 others, held that §5 did not permit Congressional
regulation here. Congress may only act where a violation lurks. In this case, the judiciary had held that there is
no rights violation and Congress has made no finding that the abrogated state law infringed on protected rights
nor did it use its legislative competence to abrogate the state law.
4. Broad Remedial Powers—Nationwide Suspension of Tests
Oregon v. Mitchell (US 1970)
In 1970, Congress amended the Voting Rights Act to prohibit literacy tests nationwide and to prohibit denying
the vote to 18 year olds. The Court upheld the nationwide ban on literacy tests under a remedial theory. By a 5-4
vote, the Court also upheld the 18 year old vote provision as it applied to federal elections. Four justices
accepted a Katzenbach rationale. Justice Black upheld that statute under Art. I, §4, giving power the right to
make regulations regarding voter qualifications for federal elections. Furthermore, the Court held 5-4 that the 18
voting age provision was unconstitutional as applied to states. Justice Black said Katzenbach should be limited
to racial discrimination and here the states have power.
The Four(Harlan, Burger, Stewart, and Blackmun)
The dissent rejected the broad remedial and substantive interpretations of Katzenbach, and would have held the
statute unconstitutional as to both federal and state elections. Adopting the first remedial interpretation, they
concluded there was no antecedent constitutional violation. Furthermore, since state legislature also have similar
political accountability and factfinding capabilities, there was no reason for Congress to interpret, given the fact
that the framers left it to the states.
Dissent (Brennan, White, Marshall)
Expressed doubt about the constitutionality of state statutes denying the vote to 18 year olds and found
reasonable Congress’s determination that such denials failed to promote a compelling state interest. The opinion
emphasize Congress’s superior factfinding ability.
5. Congressional Power to Regulate “Private” Action for Civil Rights Purposes
a. The 13th Amendment
Jones v. Alfred H. Mayer Co. (US 1968)
A federal statute prohibited housing and real estate discrimination. Mayer, a developer of a large suburban
housing complex, refused to sell a home to a group of people because one of them was black. The Court held the
statute to be a valid exercise of power under the 13 th Amendment. The 13th Amendment’s “enforcement”
provision clother Congress with the power to pass all laws necessary and proper for abolishing all badges and
incidents of slavery in the U.S. When racial discrimination herds men into ghettos and makes their abilities to
but property turn on the color of their skin, then it is a relic of slavery.
Concurrence (Douglas)
The state action doctrine is satisfied because Mayer’s actions amount to zoning.
b. The 14th Amendment
The “state action” doctrine (no state shall dent equal protection…) means that for the 14th Amendment to be
implicated (and therefore for Congress to have power to enforce), there must be either a sufficient degree of state
involvement with the action or a failure by the state to act in circumstances where the Constitution affirmatively
requires action.
United States v. Guest (US 1966)
A federal statute prohibits conspiracies to deprive citizens of their rights protected by the Constitution.
Defendants were charged with violating Penn’s rights. The Court sustained the indictment, finding that the
allegation that Ds had caused the arrests of African-Americans by making false reports of criminal activity to
police officers established sufficient state involvement.
c. Statutory Interpretation Problems
Modern civil rights statutes cover many aspects of the acts also covered by the Reconstruction statutes under the
Court’s interpretations. The statutes usually refer broadly to rights secured by the Constitution, which may cause
problems.
Screws v. United States (US 1945)
The Court held that a conviction under the criminal statute required a defendant to have a purpose to deprive a
person of a specific constitutional right.
Harlow v. Fitzgerald (US 1982)
The Court held that officials could be held liable under the civil statute only if they violated clearly established
rights of which a reasonable person should have known.
VIII. Federal Preemption
By virtue of the Supremacy clause, a federal statute trumps a state law or statute or common law rule that conflicts with
it. In essence, this is a question of statutory interpretation.
(1) Express—The federal statute expressly states that it is preempting state law.
(2) Implied—There must be clear congressional intent to preempt; however, it can be implied. There are two types
of implied preemption.
(a) Conflict Preemption.
1) Actual Conflict—There is a direct conflict between state and federal law.
2) Conflict of Purposes—Federal and state law working at cross-purposes. For example, a federal statute
creates a uniform bankruptcy law, where a state has special rule.
(b) Field Preemption. The federal government has occupied some subject matter for itself.
1) Comprehensive Scheme—The federal statute are so pervasive that the states have to stay out of it, i.e.
nuclear power is pervasively regulated so state tort actions against nuclear power plants are preempted.
2) Dominant Federal Interest—Immigration.
IX. The Dormant Commerce Clause
Since the early years of constitutional adjudication, the Supreme Court has asserted the authority to invalidate state and
local laws that the Court finds to interfere improperly with interstate and foreign commerce based on a negative
interpretation of the Commerce clause.
a. The Classical View
From its earliest days, the Supreme Court has given great weight to the purposes behind the Commerce clause: the
creation and nurturing of a common market among the states and the abolition of trade barriers. The failures of the
Articles of Confederation showed the vices of protectionism, which creates economic balkanization. In addition,
protectionism also impaired the development of a sense of national unity.
 At the Constitutional Convention, Madison proposed that Congress have a power to veto state laws, but it was
rejected based on preemption rationale; this may suggest nothing in case of congressional silence.
Gibbons v. Ogden (US 1824) Marshall
Marshall found “great force” in Justice Johnson’s concurrence, which stated that Congress had the exclusive power to
regulate interstate commerce. Marshall, however, found a conflict with NY law; thus, he never decided the effect of
congressional silence on state’s regulatory powers.
 Some point out that the acceptability of exclusive power depends on the scope one gives to the affirmative grant of
commerce power to Congress.
Some also point out that Art. I, §10 expressly disables states from certain activities that are elsewhere committed to
Congress. Thus, someone like Thomas or Scalia or Bork, might argue that the fact that “commerce” is not included
means that states have some commerce power.
Congressional Inertia—There may be some situations where Congress won’t act. For example, if there is a product
unique to one state, and every state in the nation prohibits importation of that product, the state would be left without
ability to get Congress to act to protect it.
Representation—Reinforcement
Substantive Preference for National Free Market—Based on AOC, you could read this into the commerce clause. Thus,
the dormant commerce clause advances intent of the framers. However, Vermeule is deeply troubled by the fact that
you wouldn’t read a substantive preference for freedom of information into the Post Office clause. However, some
argue that the dormant commerce clause’s success is its own justification. However, Vermeule thinks the problem is
that we don’t know what the world would have looked like w/o it. Perhaps, Congress would have evolved some
institution to do the same function.
Difficulty with the breadth of the “exclusive power” argument led the Court to develop a number of doctrines designed
to limit it.
1. Purpose
In Gibbons, Justice Johnson required the Court to distinguish between statutes designed to serve commercial goals and
those designed to serve police power ones; determining the legislature’s purpose in light of the impact of its actions may
be quite difficult.
Wilson v. Black Bird Creek Marsh Co. (US 1829) Marshall
A Delaware statute authorized the company to erect a dam on a stream deep enough to be used by boats in interstate
commerce. The dam helped dry up a marsh in the area. The Court held that the statute did not violate the Commerce
clause. First, there was no conflict with federal law. Second, DE was not acting for the purpose of regulating
commerce. Marshall said, “The value of the property on the banks of the creek must be enhanced by the dam, and the
health of the inhabitants probably improved. Measures calculated to produce those objects, provided they do not
come into collision with the powers of the general government, are undoubtedly within those reserved to the states.
Finally, an important factor may have been the absence of discrimination against interstate commerce, i.e. both
interstate and intrastate vessels were equally barred.
2. Direct/Indirect—Related to Cooley doctrine.
DiSanto v. Pennsylvania (US 1927)
A state licensing statute designed to curb immigrant exploitation regulated those wishing to sell tickets for
transportation to or from foreign countries. The Court held that Congress has complete and paramount authority to
regulate foreign commerce and to protect the public against frauds. Furthermore, a statute which by its necessary
operation directly interferes with or burdens foreign commerce is a prohibited regulation and invalid, regardless of
the purpose with which it was passed. Such legislation cannot be sustained as an exertion of the police power of the
state to prevent possible fraud.
Dissent (Stone)
The direct/indirect test is too mechanical, too uncertain in its application, and too remote from actualities to be of
value. He called the terms labeled to describe a result rather than a trustworthy formula.
 The Court did not seem bothered by the fact that the exclusive power position led to a regime in which economic
activty was unregulated. The states could not act because they lacked power, and Congress did not act because it had
other things to do.
 The directness test is rarely used in modern times.
Brown-Forman Distillers Corp. v. New York State Liquor Authority (US 1986)
NY’s complex regulatory scheme for liquor pricing in effect prohibited distillers from lowering their prices in other
states once they set prices for NY. The Court said that this prohibition regulates out-of-state transaction in violation
of the Commerce clause. Forcing a merchant to seek regulatory approval in one state before undertaking a
transaction in another directly regulates interstate commerce.
3. Inherently Local/National
Cooley v. Board of Port Wardens (US 1851)
An 1803 PA statute required all ships entering or leaving the port of Philadelphia to use a local pilot or pay a fine into
a fund to support retired pilots and their dependents. The Court, upholding the statute, agreed that the regulation of
pilots was a regulation of interstate commerce, even though the pilots stayed with the ships for only brief periods of
time. The Court said national legislation is required when (1) one uniform system is necessary; or (2) the subject is
inherently national. The states could regulate local matters. Since an old federal statute, reserved pilot regulation to
the states, this was a manifest of Congress’s understanding that the nature of the “subject” is local. However, note, if
the subject matter was local, Congress did not have the power to act; if it was national, Congress could not regrant the
power to regulate back to the states.
 Some suggest that it is hard to define the subject: “piloting” or “retirement systems.”
4. Slavery
The South viewed “exclusive federal power” to regulate commerce theories with horror because it threatened the
existence of slavery. Thus, after the Civil War, the doctrinal tensions became less important as the slavery issue
disappeared.
b. The Modern View
The modern dormant commerce clause doctrine rest of three theories.
(1) A purely political theory—Some state statutes are incompatible with the ideal of a unified nation. If the statute
says expressly that local interests will be treated differently from out-of-state interests, it signals clearly that
state’s indifference to its national obligations.
(2) A purely economic theory—Protectionist legislation, and some other laws, interfere with the efficient disposition
of resources throughout the country, which decreases national economic performance.
(3) A mixed political and economic theory—Justice Stone said that when the regulation is of such a character that its
burden falls principally on those without the state, legislative action is not likely to be subjected to those political
constraints which are normally exerted on legislation where it adversely effects some interests within the state.
Thus, protectional legislation and some other laws result from a distorted political process.
Preemption and Consent
Leisy v. Hardin (US 1890) Chief Justice Fuller
In 1827, the Court held that states could not exercise their power to tax items of interstate commerce so long as the
items remained in their original packages. In 1873, Iowa passed a statute prohibiting the sale of beer. The Leisys
brewed beer in Illinois and shipped it to Iowa, where they sought to sell it in the original kegs. Town Marshall
Hardin seized the kegs. The Court held that the original package doctrine barred Iowa from regulating the sale of
beer in original kegs. Congress’s power to regulate interstate commerce is plenary and exclusive. After restating
the Cooley test, the Court held, so far as the power to regulate commerce is exclusive, the states cannot exercise
power without the assent of Congress, and in the absence of legislation, it is left for the courts to determine when
state action does or does not amount to such exercise, i.e. what is or is not regulation of such commerce. In this
case, IA’s statute inhibited an imported commodity and was therefore unconstitutional. Congress, however, may
remove the restriction upon the state.
 A few months later, Congress passed the Wilson Act, under pressure from supporters of the prohibition, which
stated that liquor imported into a state shall be subject to local laws and not be exempt as a result of the original
package doctrine.
In re Rahrer (US 1891) Chief justice Fuller
The Court upheld the Wilson Act as within Congress’s exclusive power to regulate interstate commerce. Thus,
Rahrer’s conviction for selling liquor in its original package contrary to Kansas law was constitutional. Although
Fuller agreed that Congress could not delegate its own powers (nondelegation) or enlarge those of a state, the
Constitution transferred authority to regulate from the states to Congress; it did not give an affirmative guaranty
that any activity would remain unregulated.
 Taken together, the doctrines of preemption and consent mean that a judicial decision on a commerce clause
challenge need not be final.
(1) If the challenge is rejected, those opposing state regulation may secure federal legislation preempting it.
(2) If the challenge is sustained, those supporting state regulation may secure federal legislation permitting it.
Thus, some question why a court should bet involved at all. Justice Jackson’s concurrence in Duckworth states a
belief that legislative inertia justifies judicial intervetion. In addition, securing congressional action is costly. If the
costs of mobilizing Congress to act exceed the burdens a regulation places on interstate commerce, Congress’s failure
to act reflects not inertia, but a rational calculation of the costs and benefits of political action. Judicial intervention
might be justified if it is less expensive that the burdens on interstate commerce and the cost of mobilizing Congress.
Under the modern view, the fundamental issue in this area is who should bear the burden of overcoming
congressional inertia. There is a substantive preference for free trade and minimizing costs.
In HP Hood & Sons v. DuMond (1949), Justice Jackson describes the political and economic benefits of free trade.
(1) Merchants are encouraged to produce by certainty that they will have free access to every market in the nation,
that no home embargoes will block his exports, and no foreign state will by customs duties or regulations
exclude them.
(2) Consumers may look to the free competition from every producing area in the nation to protect him from
exploitation by any.
(3) Articles of Confederation responses: eliminate rivalries that deter the national sense.
(4) Dowling—Free trade reaps the benefit of the theory of comparative advantage through specialization and
exchange. These gains are maximized when the factors of production and the resulting goods and services are
allowed to move freely to locations where the highest value is put on them.
Obtaining congressional preemption or consent requires interest groups to invest time and effort in the political
process. If the burden of overcoming inertia is placed on the group less likely to succeed in that effort, it may be
discouraged from that investment. If that occurrs, the courts will have arrived at the outcome that Congress would
have, and at a lower cost.
The availability of non-constitutional grounds for decisions may have something to do with inertia.???
3. PROTECTION AGAINST DISCRIMINATION
Facial Discrimination—The Court will apply strict scrutiny and ask if there is a local purpose and no neutral means.
State and federal regulations of economic activity impose costs and provide benefits. Costs and benefits can be
spread among various segments of the population in a number of ways.
Wilson’s “The Politics of Regulation” (1980)
Policy proposals, especially those involving economic stakes, can be classified in terms of the perceived
distribution of their costs and benefits.
(1) Majoritarian Politics—Both costs and benefits widely distributed. All or most of society expects to gain and
pay. Little incentive for interest group formation because no small, definable segment of society can expect
to get most of the benefits or absord most of the burdens. Sherman Antitrust Act and Federal Trade
Commission Act.
(2) Interest-Group Politics—Both costs and benefits are narrowly concentrated. Since a subsidy or regulation
will benefit one group at the expense of another, each side has a strong incentive to organize and exercise
political influence. The public does not believe it will be affected so its voice is weak. Labor legislation.
(3) Client Politics—Benefits are concentrated but costs are widely distributed. Some small, easily organize
group will benefit and thus has powerful incentive to organize and lobby. Since the costs are distributed at a
low per capita rate, the public have little incentive to organize in opposition. However, watchdog and public
interest associations play the public role. Industry and occupational subsidies.
(4) Entrepreneurial Politics—Benefits are widely distributed but costs are narrowly concentrated. Policy
opponents have strong incentive to organize, but beneficiaries have weak incentive. Antipollution and
autosafety bills imposed on particular segments of industry. Such legislation requires a skilled entrepeneur,
who can mobilize latent public sentiment, put the opponents on the defensive, and associating the legislation
with widely shared values.
 Cost-Benefit Analysis—The costs of economic regulation are not always paid by those who receive its benefits. The
distribution of costs and benefits across different groups means that the mere adoption of a regulation need not
establish that its benefits to the entire society exceed its costs. Further, the distribution of costs and benefits across
different groups affects the political forces supporting and opposing adoption or repeal of regulations. Wilson’s
“client politics” indicates one set of conditions below.
Olson’s “The Logic Of Collective Action” (1965)
1. If benefits will be conferred upon a small group, each member can agree to finance lobbying efforts to secure
the legislation on the condition that every other member also contribute. Each will recover its investment
through legislation.
2. If the regulation also imposes costs of a broad group, those who bear the costs will find it difficult to organize
in opposition. The costs imposed on each member of the group are likely to be smaller than the amount each
would have to invest in a successful lobbying effort.
3. Free Rider Problem—Each member of the broad group may hang back, expecting the others to engage in
lobbying, which, if successful, would benefit the free rider at no cost.
4. Watchdog organizations may reduce this problem.
 Exporting Costs—Regulations may be adopted when the beneficiaries within the jurisdiction adopting it outweigh in
political power those within the jurisdiction who will bear some of its costs. Total social costs may still exceed total
social benefits, but if the local beneficiary can export enough costs so that local benefits exceed the local costs, the
regulation may be adopted. If the gross state product is then greater, the local beneficiaries may then use the new
profits to subsidize the local cost-bearers, reducing the political opposition to the adoption of the regulation.
 Incidence Analysis—McClure identifies three pervasive determinants of incidence.
(1) Short-term vs. long-tem perspectives—In the short run, a state may be able to export the costs of regulation by
imposing the regulation on an activity where fixed capital investments (plants and equipment) out-of-state are
proportionally more significant than fixed capital in-state. However, over time, investors will adjust their
activities to account for the regulation.
(2) Market dominance—If the state has a monopoly or near-monopoly on the regulated activity, the costs of
regulation can be shifted to the consumers. If the consumers are largely out-of-state, the costs will be exported,
even if the regulated activity takes place entirely within the state.
(3) Substitution—Costs can be exported if there are no or few substitutes for the regulated activity at almost equal
prices, and if consumers are largely out-of-state.
City of Philadelphia v. New Jersey (US 1978) Stewart 7-2
A NJ statute prohibits the importation of waste originated or collected outside of the state. The statute was enacted
in response to the use of NJ landfills for disposal of waste from NY and PA cities. The Court holds the statute to be
unconstitutional.
1. The NJ statute has not been preempted by federal legislation. Footnote 4.
(a)
There is no clear and manifest Congressional purpose to preempt interstate waste management by
statutory command or implicit legislative design.
(b)
To the contrary, a federal statue says waste disposal is a state function.
(c)
There is no direct conflict with federal law.
(d)
The statute is not incompatible with basic federal objectives.
2. Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has
been erected.
3. Where other legislative objectives are credibly advanced and there is no patent discrimination against interstate
trade, the Court adopts the Pike balancing test.
(a)
A statute that regulates evenhandedly to effectuate a legitimate local public interest, whose effects on
interstate commerce are only incidental, will be upheld, unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.
(b)
If a legitimate local purpose is found, then the question becomes one of degree.
(c)
The extent of the burden that will then be tolerated will depend on two factors.
1) The nature of the local interest involved.
2) Whether the local interest could be promoted as well with a lesser impact on state activities.
4. The evil of protectionism can reside in legislative means as well as legislative ends. Thus, the Court does not
resolve the dispute about the legislature’s purpose.
5. In this case, NJ plainly discriminated against articles of commerce from other states without good reason to treat
them differently.
(a) The NJ statute imposes on out-of-state commercial interests the full burden of conserving the state’s
remaining landfill space.
(b) NJ is attempting to isolate itself from a problem common to many by erecting a barrier against the
movement of interstate trade.
6. Quarantine laws distinguished.
(a) Quarantine law usually banned the importation of noxious materials (deceased livestock) which, at the
moment of importation, were hazardous.
(b) The NJ statute prohibited waste that endangered health (if at all) only when buried in landfill sites, by
which time there was no valid reason to differentiate between out-of-state and domestic garbage.
7. The Court seems to suggest that the virtual per se rule of invalidity based on protectionism applied in the
economic regulation area should be extended to non-economic regulations.
Dissent (Rehnquist, Burger)
The quarantine case law supports the NJ statute. There is no reason why NJ may ban the importation of items
whose movement risks contagion, but cannot ban the importation of items which, although they may be transported
into the state without undue hazard, will then simply pile up in an ever increasing danger to the public’s safety and
health. Thus, it is reasonable for NJ to guard against a worsening of its own waste disposal problem by banning the
addition of out-of-state waste.
 The City of Philadelphia Court may have created pressure for a cycle of retaliation. NJ’s best strategy is to say no
waste from whatever source, other states don’t want to be dumping ground, which creates a cycle of retaliation.
 There is no reason to believe that a Court will get economic argument correct. However, standard response is that a
facial discrimination rule is just a proxy for externalizing costs on out-of-staters. Yet, Vermeule believes that there are
cases where the proxy does not make sense. The present model makes sense in the context of “goods,” but may not
make sense in the context of “bads” or “intellectual property.” Thus, a big point is that this may be beyond the capacity
of courts to deal with successfully.
 Representation-Reinforcement—Out of staters are unrepresented in the political process; therefore, facial
discrimination is bad and Court will intervene. McCulloch. However, Vermeule points out that there is now massive
intervention by out-of-state interests. Under the doctrine of changed circumstances (suspiciously unused in dormant
commerce clause context, as opposed to positive commerce clause), we should take this into account.
Facial/Intentional Discrimination
Maine v. Taylor (US 1986) Blackmun 8-1
A Maine statute prohibited the importation of live baitfish. The Court upheld the statute as constitutional.
1. Although the statute affirmatively discriminated against interstate transactions, the Court said it would apply
strict scrutiny.
2. Under this test, the Maine statute satisfied both prongs.
(a) Legitimate local purpose.
1) Maine’s population of wild fish might be placed at risk by parasites prevalent in out-of-state baitfish, but
not common in Maine wild fish.
2) Nonnative species inadvertently included in shipments of live batifish could disturb Maine’s aquatic
ecology to an unpredictable extent by competing with, or preying on, native species.
3) There was no satisfactory way to inspect imported baitfish for parasites and commingled species.
(b) Available nondiscriminatory means—The mere abstract possibility of developing an acceptable testing
procedure is not an other available means.
3. Furthermore, the Maine statute did not have a protectionist intent.
(a) The state’s justification was not undermined by the fact that other states may not have enacted similar bans
because Maine’s fish are unique and fragile.
(b) Although fish could swim directly into ME from NH, impediments to direct success cannot be grounds for
preventing a state from using its best efforts to reduce environmental risk.
Dean Milk Co. v. Madison (US 1951)
A Madison City Council ordinance prohibited the sale of milk in the city unless it had been bottled at an
approved plant within 5 miles of the city. The Court held the ordinance to be unconstitutional.
1. The avowed purpose of ensuring sanitary bottling conditions was acceptable.
2. However, the practical effect was to prevent the sale in Madison of wholesome milk produced in Illinois and
other parts of Wisconsin. Thus, it plainly discriminates against interstate commerce.
3. A Court cannot regulate under the police power, if reasonable alternatives are available.
4. In this case, the Court found two such alternatives.
(a) Madison could send its inspectors to Illinois and charge the reasonable costs of inspection to the
importing producers.
(b) Madison could rely on inspections by federal authorities complying with the regulatory standards in the
Madison ordinance.
5. In a footnote, the Court stated that it was irrelevant that Wisconsin milk from outside the Madison area is
subjected to the same proscription as that moving in interstate commerce.
Fort Gratiot Sanitary Landfill Inc. v. Michigan Dept. of Natural Resources (US 1992)
A Michigan statute barred solid waste disposal facilities from accepting solid waste generated outside the county
in which they are located unless the county made an exception through its comprehensive plan for solid waste
disposal. Citing Dean Milk, the Court invalidated the statute. Note that the statute effectively barred out-of-state
waste from disposal anywhere in the state.
 Retaliation—City of Philadelphia concludes by invoking fears of retaliatory responses by other states. However,
retaliation may increase costs borne by local residents, thus eliminating the export of costs and reducing the incentive
to adopt the regulation. However, retaliation may not be effective because it inflicts some pure economic losses on
the states involved with neither an economic nor a distributive justification. In addition, retaliation, at least until trade
barriers are lowered, is likely to alter the patterns of investment as resources shift to take account of the costs imposed
by retaliatory regulation in one sector of the economy, but not in the other.
Sporhase v. Nebraska (US 1982)
A Nebraska statute prohibited the withdrawal of ground water from any well within Nebraska intended for use in
another state that fails to grant reciprocal rights to withdraw and transport ground water to Nebraska. Colorado
does not grant reciprocal rights. Owners of contiguous land on the NB/CO border claimed that the statute
unconstitutionally barred them from transferring ground water from NB to CO. The Supreme Court agreed.
1. After holding that ground water was an article of commerce, the Court found a legitimate interest in water
conservation for health and other reasons.
2. The Court upheld portions of NB’s statutes restricting exportation of ground water unless exportation was
reasonable and not contrary to conservation in part because NB heavily regulated transfer of ground water
from one part of NB to another. (Interstate).
3. The Court found the reciprocity requirement not “narrowly tailored” under strict scrutiny to serve
conservation goals. Citing Cottrell, it noted that the reciprocity requirement could not be justified as a
response to another state’s unreasonable burden on commerce. Retaliation not permitted because proper
remedy is courts.
 Relevance of Conflict—Collins distinguishes between laws that discriminate against interstate commerce without
regard to the laws of any other state and those that burden commerce only when other states’ laws are taken into
account. Only the former, which he calls “independent discrimination,” ought to be unconstitutional because only
they resemble protectionist tariffs closely enough. Justice O’Connor’s Carbone concurrence disagrees because
balkanization results under the latter, which defeats the purpose of the Commerce clause. Thus, this was a facially
neutral statute with significant effects on interstate commerce.
Bibb v. Navajo Freight Lines (US 1959) Douglas
An Illinois statute required trucks operating in the state to use curved mudguards to prevent spatter and promote
safety. Straight mudflaps were legal in 45 other states; curved muflaps were illegal in Arkansas and were required
in no other state. The Court held the statute to be unconstitutional because it was impossible to use a single truck
whose mudflaps complied with both Illinois and Arkansas law. Further, the Illinois law seriously interfered with
interlining, the practice of having one carrier bring a trailer to a depot and another take it to its destination without
unloading and reloading. This was the rare case where local safety measures that are nondiscriminatory place an
undue burden on interstate commerce.
Burdensome Effects—Facially Neutral Statutes with Significant Effects on Interstate Commerce.
A statute which is evenhanded on its face may nevertheless turn out to be disproportionately burdensome to some or all
of out-of-state business. Where this disproportionate impact is truly accidental, and does not directly derive from the
fact that the burdened firms are out-of-staters, the Court will normally uphold the statute.
Facial Neutrality—Pike balancing test—weigh legitimate local benefits against the burden on interstate commerc. If
may be relevant that there is a less relevant neutral statute. Vermeule does not believe there are cases that have been
struck down because there are less burdensome means.
The Pike balancing test may be an evidentiary proxy for evidence of covert discrimination. Exxon, however, does not
adopt this theory.
Exxon Corp. v. Governor of Maryland (US 1978) Stevens
A Maryland statute provides that a producer or refiner of petroleum products may not operate any retail service
within the state. The law was enacted as a result of evidence that gas stations operated by producers and refiners
had received preferential treatment during the 1973 oil shortage. Since no gas is produced or refined in Maryland,
the rule against vertically-integrated operations affected out-of-state companies exclusively. Conversely, the vast
majority of the non-integrated retailers, who were not harmed and probably helped by the statute, were in-state
business people. The Court upheld the statute as constitutional.
1. Exxon and other out-of-state integrated oil companies made a three-pronged Commerce clause attack.
(a) The statute impermissibly discriminated against interstate commerce.
(b) The statute unduly burdened interstate commerce.
(c) As a result of the nationwide nature of oil marketing, only the federal government could regulate retail gas
sales.
2. The Maryland statute does not discriminate against interstate commerce.
(a) Several major interstate marketers of petroleum own and operate their own retail gas stations. The Act
does not affect them because they don’t refine or produce gasoline.
(b) There are no barriers whatsoever against interstate retailers.
1) No prohibition on the flow of interstate goods.
2) No placement of added costs upon them.
3) No distinction between in-state and out-of-state companies in the retail market.
(c) In-state independent dealers will have no competitive advantage over these interstate retailers.
(d) Thus, the mere fact that entire burden of the statute fell on some out-of-state companies was insufficient to
establish that “interstate commerce” was discriminated against.
(e) Some Exxons may chose to withdraw from the market, but there is no reason to assume that that supply
will not be replaced by other interstate refiners.
3. The Maryland statute does not unduly burden interstate commerce.
(a) The statute might injure the consuming public by the loss of the high volume, low priced station operated
by the independent refiners (shifts to independent retailers), but that is a question of the statute’s wisdom,
unrelated to the burden on interstate commerce.
(b) The Commerce clause protects the interstate market, not interstate firms.
4.
The Maryland statute is not preempted.
(a) The Court has only rarely held that the Commerce clause itself preempts an entire field from state
regulation, and then only when a lack of national uniformity would impede interstate commerce.
(b) Exxon is not complaining about a lack of uniformity, but rather that many or all states would pass exactly
the same sort of divestiture law as Maryland did.
5. Commerce clause view—if the effect of a state regulation is to cause local goods to constitute a larger share,
and goods with an out-of-state source to constitute a smaller share, of the total sales in the market, the
regulation may have a discriminatory effect on interstate commerce. Footnote 16.
Dissent (Blackmun) (dissenting as to commerce clause issue)
1. A facial neutral statute may discriminate if it has the practical effect of doing so.
2. The Maryland statute has the practical effect of discriminating against a class or predominantly out-of-state
gasoline retailers.
(a) Of the protected class, 99% were operated by local business interests; of the prohibited class, 95-98% were
operated by out-of-state firms.
(b) There will be substantial economic harm to out-of-state firms.
1) The majors will not be able to enhance brand recognition and consumer acceptance through retail
outlets with company-controlled standards.
2) The majors ability to directly monitor consumer preferences and reactions will be diminished.
3) The majors opportunity for experimentation with retail marketing techniques will be curtailed.
(c) There is not similar substantial economic hardship on local firms.
1) The statute improves local retailers ability to compete by insulating them from out-of-state
competition from vertically-integrated producers and refiners.
(d) Maryland passed the Act in response to pleas from local businessmen for protection.
3. After the burden shifts, Maryland does not have a legitimate state interest that cannot be vindicated by more
evenhanded regulation.
(a) Maryland states only a general desire to maintain competition in gasoline retailing.
(b) Although it does not attempt to do so, Maryland could have vindicated its legitimate interest in
competition with more evenhanded regulation.
1) Since the state’s interest in competition is to protect particular competitors—less efficient local
businessmen—from the legal competition of more efficient out-of-state firms, the interest is
illegitimate under the Commerce clause.
2) A legitimate concern of the state could be to limit the economic power of vertical integration.
4. To the extent that the majority’s footnote 16 suggests that unconstitutional discrimination does not exist unless
there is an effect on the quantity of out-of-state goods entering a state, this is a too narrow view of the
Commerce clause.
5. The majority’s position will foster protectionist discrimination against interstate commerce.
Facially Neutral Statutes with (Merely?) Disproportionate Effects for Commercial or Social Purposes.
 Obstructing Commerce
Buck v. Kuykendall (US 1925)
Buck, a citizen of Washington, wished to operate an “auto stage” line between Portland and Seattle. After
obtaining a license from Oregon, he applied to Washington authorities for a certificate that would allow him to
begin operations. The certificate was denied on the ground that the route was already adequately served by
railroads and four other auto stage lines. The Court held the denial violated the Commerce clause. The purpose
was the prohibition of competition. The effect was not merely to burden interstate commerce, but to obstruct it.
The Court also noted that the prohibition defeated the purpose of Congress in legislation providing federal aid for
highway construction.
 The Problem of Sales and Compensating Use Taxes
Baldwin v. G.A.F. Seelig, Inc. (US 1935) Cardozo
The Court struck down a NY statute requiring that milk purchased from out-of-state (Vermont) producers could not
be sold in New York unless the out-of-state producers had received at least the minimum price required by NY’s
price maintenance statute for sale of milk produced in New York.
Henneford v. Silas Mason Co. (US 1937) Cardozo
Washington adopted a 2% sales and use tax. To avoid losing business to retailers in other states, it also adopted a
2% compensating use tax, levied on the price of goods purchased elsewhere for the privilege of using them in
Washington. The Court upheld the statutes as constitutional because it was designed to promote equality.
 Baldwin distinguished—The NY was attempting to project its legislation within the borders of another state
by regulating the price to be paid in that state for milk acquired there. (Regulation?) The WA statute allows
out-of-state sellers to ship goods in at such amounts and prices as they please, but the goods when used in WA
after the transit is completed, will share an equal burden with goods that have been purchased there. (Tax?)
Armco, Inc. v. Hardesty (US 1984)
A WV gross receipts tax on wholesaling was 27%; however, local manufacturers were exempt from the tax, but did
have to pay a 88% tax on manufacturing and bore a higher tax burden in dollar terms. The Court struck down the
WV statute as unconstitutional because of the local manufacturer exemption. The Court held that the WV tax
system could not be justified as an integrated system in which some tax burdens were compensated for by
exemptions from other taxes. The Court would examine only taxes placed on “substantially equivalent” activities;
manufacturing and wholesaling were not substantially equivalent activities.
Tyler Pipe Industries, Inc. v. Washington State Department of Revenue (US 1987)
The Court relied on Armco to invalidate a similar system. Also, the Court distinguished Henneford by saying that
it upheld the tax there because, in the context of overall tax structure, the burden it placed on goods purchased outof-state was identical to that placed on an equivalent purchase within the state. The identical impact was no
fortuity, it was guaranteed by the statutory exemption from the use tax for goods on which a sales tax had already
been paid.
Dissent (Scalia) Textual Argument against Dormant Commerce Clause
1. Rank discrimination against states is regulated by the Privilege and Immunities clause.
2. The Commerce clause does not contemplate federal exclusivity.
(a) There is no such suggestion in the plain language.
(b) There is no correlative denial to state commerce power as there is with the power to coin money and make
treaties in Art. I, §10.
(c) Since interstate commerce now embraces loansharking (Perez) and wheat grown for home consumption
(Wickard), it would be more difficult to imagine what would survive an exclusive commerce clause than
to imagine what would be precluded.
3. The Court can’t distinguish, as Cooley attempted to do, between subjects of the Commerce clause because the
Constitution treats commerce as a unitary subject.
4. The Court can’t distinguish preempting state laws intended to regulate commerce and those relating to the
general welfare because the distinction is metaphysical, not useful as a practical technique for marking out the
powers of separate sovereigns.
5. The argument that the dormant commerce clause is not applying a Constitutional command, but merely
interpreting Congress’s will, whose silence is meant to prohibit regulation is implausible. Congress’s silence is
just that—silence.
Oregon Waste Systems v. Department of Environmental Quality (US 1994) Thomas
Oregon charged a fee of $0.85 per ton on the disposal of waste generated in Oregon and a fee of $2.25 on the
disposal of waste in Oregon of waste generated outside the state. The Court held that the differential was
discriminatory and trigger the virtual per se rule of invalidity. Treating the differential as a compensatory use tax,
the Court clarified the doctrine by stressing the fact that a tax or fee is “compensatory” is merely a specific way of
justifying a facially discriminatory tax. Compensating use taxes must be imposed on “substantially equivalent
events.” This implied that the state could not justify a specific tax like the one at issue here by pointing to general
taxation, such as income taxes, that in-state generators pay, but out-of-state generators do not. Note that
compensating use taxes are not facially neutral. The Court treated Henneford as still good law because sales and
use are substantially equivalent taxable events.
Dissent (Rehnquist)
Out-of-state commerce gained a competitive advantage from the Court’s rule that it will not consider whether
general taxes in Oregon offset the difference between the higher fees charged those who dispose of out-of-state
waste and those who dispose of in-state waste. Only Oregon businesses will have to pay the nondisposal fees
associated with solid waste: landfill siting and clean-up, environmental accident insurance, and transportation
improvement costs.
 Gerrymandering
Hunt v. Washington State Apple Advertising Commission (US 1977) Chief Justice Burger
A NC statute required all closed containers of apples sold or shipped into the state to bear no grade other than the
applicable U.S. grade or standard. A WA statute, the nation’s largest apple producing state, required that all apples
be tested and graded under a system of grades superior to the standards adopted by the DOA. The Court struck
down the NC statute as unconstitutional.
1. In the absence of federal legislation, a state may impose some burden on interstate commerce, so long as there
is no conflict with the Commerce clause’s requirement of a national common market.
2. The state interest is particularly strong when the state acts to protect its citizenry in matters pertaining to
foodstuffs.
3. The NC statute, however, not only burdens interstate sales of WA apples, but also discriminates against them.
(a) The NC statute raises the cost of doing business in NC for Washington apple growers and dealers, while
leaving those of their NC counterparts unaffected.
(b) The NC statute has the effect of stripping away from the WA apple industry the competitive and economic
advantages it has earned for itself through its expensive inspection and grading system. Since the statute
had no similar effect on the NC industry, it operated to its benefit.
(c) Downgrading—By prohibitng Washington apple growers and dealers from marketing apples under their
state’s grades, the statute has the leveling effect which insidiously operates to the advantage of local apple
producers.
4. Once a Court finds discrimination, the burden shifts to the state to justify the statute in terms of the local
benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to protect
local interests.
5. The NC statute is not justified based on local benefits resulting from protecting citizens from confusion and
deception in the marketing of foodstuffs.
(a) The statute permits the marketing of closed apple containers under no grades at all.
(b) Although the statute is a consumer protection measure, it directs it primary efforts not at the consuming
public at large, but at apple wholesalers and brokers who are the principal purchasers of closed apple
containers (who are most knowledgeable).
(c) Since WA grades are in all cases equal or superior to their USDA counterparts, they could only deceive or
confuse a consumer to his benefit.
6. The NC statute fails to recognize nondiscriminatory alternatives, such as NC permitting out-of-state growers to
utilize state grades only if they also marked their shipments with the applicable USDA label. If other states
could not make USDA grade, NC could ban.
7. Note— The Court notes that, despite facial neutrality, there may be some indication of discriminatory intent.
First, Agriculture Commissioner’s statement that local apple producers were mainly responsible for passage of
the legislation. Yet, the Court did not find a discriminatory inference integral to its decision.
 The Court can’t say that they are using Pike as an evidentiary proxy openly. If it is really balancing between
benefit and burden, it is not clear what numbers go on the scale. Vermeule suggests that balancing local benefit
against burden on interstate commerce is a comparison of two different things, i.e. Scalia—like comparing whether
a given line is longer than a given rock is heavy. Balancing costs at a statewide level is difficult. However, some
others suggest that this is no different than any other balancing test, i.e. nuisance cases.
 Timing Dependence—Whether we see discrimination depends on time frame. If MN enacts statutory preference
for paper over plastic, and then paper industry moves to MN, it may be no less legitimate discrimination than when
WA state government gives apple growers a market benefit.
 Some commentators suggest we do away with facially neutral commerce clause. However, Vermeule says doing
away with it leaves many cases open where discrimination is not overt.
 Market Participant Doctrine—These rules do not apply when states are acting as market participants. If a state
owns a company that sells something, the state owned company can charge different prices to out-of-staters and instaters, i.e. state colleges.
Exxon Corp. v. Maryland (US 1978) Blackmun Dissent
Justice Blackmun argues that the case is indistinguishable from Hunt; both statutes discriminated against only a
segment of out-of-state interests.
 The NC statute’s criteria does not identify in such terms the in-state and out-of-state sources of the problem it
purports to address. However, its effect is to treat Washington producers differently. Should a court infer a
discriminatory or anticommercial purpose from neutral criteria that have the effect of distinguishing such interests?
Minnesota v. Clover Leaf Creamery Co. (US 1981)
A MN statute prohibited the sale of milk in plastic disposable containers, but allowed its sale in paper
nonreturnable cartons. The MN state court found that the statute’s actual basis was to promote local dairy and
pulpwood interests at the expense of other segments of the dairy and plastic industry. Also, it found that a plastic
bottle ban would not promote conservation or save energy because paper containers cause more harm to the
environment. The Court upheld the statute as constitutional because it promoted conservation, eased waste disposal
problems, and conserved energy.
1. The MN statute regulates evenhandedly by prohibiting plastic containers without regard to whether the milk,
containers, or sellers are from out-of-state.
2. The MN statute does not necessarily benefit MN firms or burden out-of-state firms.
(a) Most of the litigants are MN firms.
(b) Pulpwood producers are the only MN industry likely to benefit.
(c) Plastics will continue to be used in the production of plastic pouches, plastic returnable bottles, and
paperboard.
(d) Out-of-state pulpwood producers will also benefit.
3. In Exxon, the Court stressed that the Commerce clause protects the interstate market, not interstate firms. A
nondiscriminatory regulation serving substantial state purposes is not discriminatory because it causes some
business to shift from predominately out-of-state industry to predominantly in-state industry.
X. States’ Rights: Limitations on Federal Power
HYPO: Suppose Congress passes statute requiring California to move its state capital from Sacramento to San
Francisco under the commerce clause because having the state capital in a particular place affects travel and pattern of
business flow. Is there more to be concerned about?
(1) 11th Amendment limitations.
(2) 10th Amendment limitations.
(3) Art. IV, §3.
We protect state sovereignty in three ways.
(1) Nondiscrimination— This is a good way for judges to protect the Constitution’s tacit
(a) Between states. NY v. U.S.
(b) Among states. Coyle. Katzenbach (Court said there is no general requirement that Congress may not
discriminate against the states, which means that Coyle is limited to its facts. However, this case might
only apply to 15th Amendment and might say that there must be a rational basis for discriminating amongst
the states.)
(2) Traditional state functions. Ursery. Garcia.
(3) Commandeering.
(a) Courts-yes. Testa.
(b) Legislatures-no. NY.
(c) Executive-no. Printz.
a. Traditional Government Functions
For nearly 40 years after Carter Coal, the Supreme Court did not invalidate a single federal statute on the grounds that
it violated state or local government sovereignty, which led to a popular belief that the 10 th Amendment was
completely dead as a check upon federal power under the Commerce clause. This remains true today. However,
from 1976-85, the Supreme Court treated the 10th Amendment as a limit on federal power, barring anything that
would impair a state’s ability to carry out “traditional functions.”
National League of Cities v. Ursery (US 1976) 5-4
The Court held that the Commerce clause did not empower Congress to enforce the Fair Labor Standards Act
(FLSA)’s minimum wage and overtime provisions against the states in areas of traditional government functions.
The Court agreed that the wages and hours of state employees affected interstate commerce, but found the FLSA’s
application to state and local employees unconstitutional.
Over the next decade, the Court struggled to identify the contours of the protection afforded state and local
governments by National League of Cities.
Hodel v. Virginia Surface Mining Association (US 1981)
The Court upheld the constitutionality of a federal statute requiring strip-mine operators to return the area to
approximate original contour, which substantially increased the cost of operating certain strip mines. The Court
stated four conditions that precludes a federal statute from invading on state’s rights.
(1) The federal statute at issue must regulate the states as states.
(2) The statute must address matters that are indisputably attributes of state sovereignty.
(3) State compliance with the federal obligation must directly impair the state’s ability to structure integral
operations in areas of traditional government functions.
(4) The relation of federal and state interests must not be such that the nature of the federal interest justifies state
submission.
The Court held that the federal statute did not regulate the states as states.
United Transportation Union v. Long Island Railroad (US 1982)
The Court upheld the constitutionality of applying the Railway Labor Act’s collective bargaining provisions to the
state-owned Long Island Railroad. The state had operated the line for 13 years before challenging the Act’s
applicability. The Court said that the National League of Cities test was not meant to impose a static historical
view of state functions.
Federal Energy Regulatory Commission v. Mississippi (US 1982)
The Court upheld certain provisions of the Public Utilities Regulatory Policies Act (PURPA) of 1978, requiring
state utilities commissions to consider a specified list of approached to structuring rates and to consider adopting
standards regarding rate disclosure and the recovery of advertising costs in rates. The commissions are required to
consider these standards at public hearings. The Court held that the state commissions could be required to enforce
federal standards. Congress, having the power to preempt state regulation entirely, could adopt the less intrusive
scheme.
EEOC v. Wyoming (US 1983)
The Court upheld the application of the Age Discrimination in Employment Act against state employees because
the Act did not impair states’ abilities to structure their integral operations to a degree making the Act
unconstitutional. The Act allows employees to be discharged for cause and authorizes mandatory retirement
policies that are shown to be bona fide occupational qualifications. The costs of eliminating mandatory retirement
policies were said to be neither direct nor obvious.
 Garcia v. San Antonio Metropolitan Transit Authority (1985) overruled National League of Cities. Garcia also
signaled start of movement to look for structural limits in judicial enforcement of federalism. Lopez. Printz.
Garcia v. San Antonio Metropolitan Transit Authority (US 1985) Blackmun
The Fair Labor Standards Act ordered states to comply with federal minimum wage laws. Overruling National
League of Cities, the Court upheld the Act as applied to states. Thus, if a regulation would be valid as applied to a
private party, it is also valid as to states. The fact that it is a state being regulated as no significance.
1. The National League of Cities holding is unworkable.
(a) The Court’s case law has not been able to identify an intelligible principle regarding the scope of
“traditional government functions.”
(b) In Transportation Union, the Court held that the inquiry into whether a particular function was
“traditional” was merely a means of determining whether the federal statute unduly handicaps “basic state
prerogatives.” However, the Court did not offer an explanation of what is a “basic state prorogative.”
(c) In tax cases, as represented by New York v. United States, the Court unanimously concluded that a
“government”/”proprietary” function distinction employed for 40 years was untenable and therefore must
be abandoned.
(d) Neither of the alternative standards appear manageable.
1) In Transportation Union, the Court properly rejected the possibility of making immunity turn on a
purely historical standard of “tradition.”
a) A historical standard prevents a court from accommodating changes in the historical functions of
states.
b) A historical standard would require a court to make arbitrary judgments over the historical
continuum as to how longstanding a pattern of state involvement had to be for federal authority to
be defeated.
2) A non-historical standard will also be unworkable.
a) The Court has rejected a “uniquely government” function test in government tort liability because
it was unworkable.
b) A “necessary” test (whether services would be provided inadequately or not at all unless the
government provided them) is no better.
(1) The “necessary” category will involve only a negligible set of services.
(2) Since states can hire private firms to provide the service or provide subsidies to existing
suppliers, the fact that an unregulated market produces less of some service that a state
deems desirable does not mean that the state itself must provide the service.
(3) Courts are not equipped to make determinations about the workings of the economic
markets.
2. The National League of Cities is inconsistent with federalism principles.
(a) Federalism contemplates that within the realm of authority left open to them under the Constitution, the
states must be equally free to engage in activity that their citizens choose for the common weal, no matter
how unorthodoz or unnecessary anyone else—including the judiciary—deems state involvement to be.
(b) Any state immunity rule focusing on “traditional,” “integral,” or “necessary” nature of government
functions invited an unelected federal judiciary to make decisions about which state policies it favors.
3. State sovereignty is limited by the Constitution itself.
(a) Art. I, §10 withdraws sovereign power from the states.
(b) Art. I, §8 (in conjunction with Art. VI’s Supremacy Clause) restricts state sovereignty.
(c) Art. III restricts state sovereignty for final review of questions of federal law. Martin.
(d) The 14th Amendment’s incorporation of most of the Bill of Rights limits state sovereignty.
4. Apart from the limitation on federal authority inherent in the delegated nature of Congress’s Art. I powers, the
framers intended to ensure the role of the states in the federal system by virtue of the structure of the federal
government itself.
5. Thus, state sovereignty interests are more properly protected by procedural safeguards inherent in the structure
of the federal system than by judicially created limitations on federal power.
(a) States exercise indirect influence over the House by their control of electoral qualifications. Art. I, §2.
(b) States exercise indirect influence over the Presidency through their role in Presidential elections (electoral
college). Art. II, §1.
(c) States exercise direct influence over the Senate, where each state receives equal representation and each
Senator is selected by the state legislature. Art. I, §3.
(d) States special significant in the Senate is underscored by theprohibition of any constitutional amendments
divesting a state of equal representation w/o the state’s consent. Art. V.
6. The original understanding of the framers supports this conclusion. Madison, Wilson.
7. Of course, the federal government has undergone structural changes, (17 th Amendment), but this does not alter
the analysis.
8. Any substantive restraint on the exercise of the Commerce clause powers must be tailored to compensate for
possible failings in the national political process. EEOC v. Wyoming.
9. Therefore, the FLSA’s overtime and minimum wage requirements are constitutional.
10. For example, state participation in federal government in the mass transit area ensured federal funding to
states to implement the programs. Thus, the political process ensured that federal laws will not unduly burden
states. However, Commerce clause regulation does not always require countervailing financial benefits under
the Spending clause. The FLSA’s application to SAMTA would be constitutional even had Congress not
provided federal funding under UMTA.
Dissent (Powell, Burger, Rehnquist, and O’Connor)
1. The majority’s disrespect for stare decisis damages judicial legitimacy.
2. The majority mistakenly focuses on “traditional governmental functions,” but National League of Cities
adopted a balancing test that considered other factors.
3. The majority fails to specify when the “political process” may fail and when “affirmative limits” on the
commerce clause are imposed, an omission which might be explained by the fact that any such attempt would
be subject to the same objections on which it relies to overrule National League of Cities. Footnote.
4. The state’s role in the political process does not guarantee that exercises of the commerce clause power will
not infringe on residual state sovereignty.
(a) States elect Congressman, but once in office, they are members of the federal government.
(b) Although state participate in the electoral college, there is hardly a reason to view the President as a
representative of the state’s interest against encroachment. Chadha noted hydraulic pressure with a branch
to exceed the outer limits of its power.
(c) Illogical analogy—Since Congress is composed of individuals, individuals rights guaranteed by the
political process are amply protected by the political process.
5. The majority’s political success example is irrelevant to the question whether political process are the proper
means of enforcing constitutional limitations.
6. The 10th Amendment was adopted specifically to ensure the state’s important role. (Disagrees over original
understanding).
7. Judicial enforcement of the 10 th Amendment is essential to maintaining the federal system. Marbury. Thayer’s
rule. Departmentalism.
8. Federal overreaching under the Commerce clause undermines the federal-state balance, which is designed to
protect fundamental liberties.
9. Since federal laws are drafted by unelected congressional staffs, who have little knowledge of the state and are
influenced by special interests, the federal government is not as responsible as state governments in protecting
federalism limits. Democratic self-government principle.
10. The majority’s opinion improperly authorizes federal control over the terms and conditions of employment of
all state and local employees.
11. Under National League of Cities, this case should come out the other way.
(a) Since state’s loss of control over wages, hours, overtime regulations, pensions and labor relations has
serious effects on state and local planning, budgeting, and the levying of taxes, the federal interest is not
demonstrably greater.
(b) A mass transit system is inherently local. It is indistinguishable from providing and maintaining streets,
public lighting, water and sewerage system, etc.
(c) State and local officials are intimately familiar with details and costs.
(d) State and local officials also respond to constituents.
Dissent (O’Connor, Powell, Rehnquist)
We hope that the National League of Cities principle will someday once again command the support a majority of
the Court.
 Justice Blackmun seems to be saying that unelected judges shouldn’t be distinguishing between state statutes they
like and those that they don’t like.
 Weschler/Choper Thesis—Federalism issues should be left to political process.
 We can’t narrow commerce clause to deal with the problem because we would end up restricting Congress’s power
to regulate private activity as well.
 Nine months after Garcia, Congress enacted the Fair Labor Standards Act Amendments of 1985. (Don’t seem to
have any effect).
South Carolina v. Baker (US 1988) Brennan 8-1
The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) removed the exemption from federal taxes to
income from nonregistered bonds because Congress felt these type of bonds lent themselves to tax avoidane and to
use in illegal activities. Registered bonds maintained the exemption. As a result, states now issue only registered
bonds. The Court upheld the statute as constitutional.
Brennan’s Majority Opinion—Although South Carolina argued that Congress relied on incomplete information,
Justice Brennan felt that there was no reason to believe that the political process had failed, which would bring the
challenge within Garcia’s exception. South Caroline had not alleged that it was deprived of any right to participate
in the national political process or that it was singled out in a way that left it politically isolated and powerless. In
addition, the Court, rejecting a commandeering argument, said that any possible commandeering was an inevitable
consequence of regulating a state activity.
Scalia Concurrence—I agree only that the structure does not prohibit what the federal government has done
here.????
Rehnquist Concurrence—Even under National League of Cities, South Carolina would lose because the facts
showed that the provision had no practical impact on state borrowing practices since tax exemption (and thus lower
interest rates) was still available for registered bonds. Thus, there was no direct displacement of state freedom to
structure integral operations in areas of traditional government functions.
O’Connor Dissent—The statute is unconstitutional because the Court failed to inquire into the substantial adverse
effects on state and local governments that would follow from state taxation of the interest on state and local bonds
(disagreeing with Rehnquist).
Gregory v. Ashcroft (US 1991)
The Court held that the Age Discrimination in Employment Act (ADEA) did not apply to a state’s mandatory
retirement provisions affecting appointed state judges. The ADEA bars employers, including state governments,
from adopting mandatory retirement policies, but as to state employers, it exempts appointees on a policymaking
level. In interpreting this provision, the Court relied on general propositions about federalism. It noted that the
state’s retirement provision is a decision of the most fundamental sort for a sovereign entity and required that
Congress’s intention to displace state decisions in this area be clearly stated.
 The Political Safeguards of Federalism
Weschler’s “The Political Safeguards of Federalism’ (1960)
Prof. Weschler argues that the national political process is well-adapted to retarding or restraining new intrusions
by the center on the domain of the states. The political process necessitates the widest support before intrusive
measures of importance can receive significant consideration.
Choper’s “Judicial Review and the National Political Process” (1980)
The framer’s intended the Senate to be the national legislative guardian of state interests. Choper asserts that the
federal political branches are fully capable of guarding state’s interests. Federalism proposal—The federal courts
should not decide constitutional questions respecting the ultimate power of the national government vis a vis the
states; rather, the courts should the treat the issue as a nonjusticiable “political question”, final resolution being
relegated to the political branches.
Lewis Kaden
As Congress increasingly implements national policy through the states, the people are left w/o a clear sense of the
persons they may call to account—national legislators who ordered the program, or state officials charged with
implementation.
In addition, some criticize Choper’s analysis because it naively restricts itself to states vs. federal governments,
rather than a federalism conception based on contests among different regions of the U.S. for control of the national
power.
 Since Garcia, several cases seem to be cutting back the broad scope of Garcia. Printz, Mack, and New York v.
United States suggest that there are some limits on the way Congress can regulate a state.
New York v. United States (1992)
Congress enacted state that required states to either enact statutes regulating waste and dispose of it according to
federal standards or “take title” to the waste and assume the liabilities that come with it by the year 2000. The
Court held that Congress can’t commandeer a state legislature.
 Is this like South Dakota v. Dole? Sunstein’s endowment effect-there is a difference between losing
preexisting funds and not gaining what you do not yet have. Coercion is worse than bribery.
 In this case, we are worried about sovereignty and accountability.
b. Prohibition on Federal Commandeering
There are three positions on state immunity doctrine.
(1) Wexler-Choper thesis—no federalism doctrine is justiciable.
(2) Justice Stevens—Courts in principle can adjudicate commerce clause challenges, but that’s it. This is not a
doctrine of justiciability, but a substantive reading of the Constitution.
(3) There are judicially enforceable state sovereign immunities. Current trend. The Court has given up trying to
police traditional state functions, but they may enforce rules of nondiscrimination in two areas.
(a) States vs. others. It matters if something applies solely to states (as opposed to states and private parties).
This may be a proxy for saying that something is a traditional state function. The rule only applies when
underlying power is Commerce clause. No §5.
(b) Among states. Discriminating among different states. Coyle (every state that is admitted to the Union
must be admitted on equal footing with the other states.). Katzenbach (there is no general requirement that
Congress can’t discriminate against states).
Three key policy rationales underlying all these state sovereignty cases.
(1) Accountability.
(2) Sovereignty—However, if Congress can’t force states to do things, it will have to create massive federal
bureaucracy, which causes more harm to state sovereignty.
(3) Unfunded Mandates
Congress may be faced with a choice between commandeering and preemption. Perhaps, political costs are different.
Congress may easily pass legislation on the states, but it is harder to create massive bureaucracy. Thus, Congress is
likely to choose preemption.
Printz v. United States (US 1997) Scalia
The Brady Handgun Violence Prevention Act requires the AG to establish a national instant background check
system by November 1998. Until then, gun dealers must send the Chief Law Enforcement Officer (CLEO) of a
prospective purchaser’s residence a form identifying the purchaser, unless the purchaser already has a permit or
unless the state already has an instant background check system. The dealer must then wait 5 days to complete the
sale. When the CLEO receives the form, the CLEO must make reasonable effort to ascertain whether receipt or
possession would be in violation of the law. The CLEO is not required to notify the gun dealer that the purchaser is
ineligible to own a gun, but if the CLEO does so, the purchaser must be notified of the reasons for the
determination. The Court strikes down the Act as unconstitutional. Since there is no Constitutional text, the Court
looks to original and historical understanding, the Constitution’s structure, and precedent.
Original and Historical Understanding
1. Construction.
(a) Early congressional enactments provide contemporaneous and weighty evidence of the Constitution’s
meaning. Bowsher.
(b) Such enactments, acquiesced in for a long term of years, fixes the construction to be given its provisions.
Myers.
(c) However, if earlier Congress’s avoided the use of the highly attractive power, there would be reason to
believe that the power was thought not to exist.
2. Although early Congressional statutes required state courts to perform certain functions, the argument does not
show an original understanding of federal commandeering of the state executive.
(a) Under Article III and the Supremacy Clause, judges applied the law of the sovereign all the time. The
executive and legislature did not. Thus; state judges are unique.
(b) The numerousness of Congressional statutes imposing obligations on state courts, contrasted with the utter
lack of statutes imposing obligations on the state’s executive, suggests an assumed absence of power.
(c) The Extradition Act of 1793 imposed duties on state executive officers, but did so in direct
implementation of the Extradition clause of the Constitution itself. Art. IV, §2.
3. Early Congressional enactments assumed that the federal government may not command the state’s executive
power in the absence of a particularized constitutional authorization.
(a) In dealing with federal prisoners in state jails at federal expense, the 1 st Congress issued a recommendation
to the state legislatures to pass laws to make it the duty of jailkeepers to hold federal prisoners, not a
command to the executive.
(b) When GA refused to comply, Congress still did not commandeer the executive.
4. The sources of original understanding do not contemplate federal commandeering of state executives.
(a) Although the government points to several parts of the Federalist papers (26, 37, 45), none of these
statements necessarily implies that Congress could impose these responsibilities without the consent of the
states.
(b) They rest on the natural assumption that the states would consent to allowing their officials to assist the
federal government.
(c) In the early days of the Republic, state and federal governments mutually assisted one another often,
including voluntary federal implementation of state law.
5. In later history, there is a similar absence of federal commandeering statutes.
(a) The Act of August 3, 1882 and WWI selective draft law contemplated utilizing state executive services,
but did not compel such.
(b) In WWI, even during wartime, President Wilson did not commandeer but requested state assistance and
obtained their consent.
(c) None of the more recent historical statutes are probative because their recent vintage is far outweighed by
the two centuries of apparent congressional avoidance of the practice.
Structure
1. Federalism concerns cut against a federal commandeering statute.
(a) The framers rejected the concept of a central government that would act upon and through the states, and
instead designed a dual sovereignty system.
(b) The separation of federal-state relations is meant to protect liberty and meant to reduce the risk of tyranny
and abuse from either government.
(c) The federal government’s power would be augmented immesurably if it were able to impress into
service—and at no cost to itself—the police officers of the 50 states.
2. Separation of Powers concerns cut against a federal commandeering statute.
(a) Under the Take Care clause, the President takes care that the laws are faithfully executed. (Ryan-undercut
by no exclusivity inference in Tyler Pipe (as textualist matter).
(b) The Act transfers this responsibility to CLEOs in 50 states, who are left to implement the program without
meaningful Presidential control, which would be impossible anyways without the power to appoint and
remove.
(c) The vigor and the accountability of the unitary executive would be shattered if Congress could require
state officers to execute the law.
Precedent
1. The Court has held that the federal government may not compel the states to implement, by legislation or
executive action, federal regulatory programs. Hodel, NY.
2. The NY decision is not distinguishable based on the fact that it required state officers to make policy, whereas
the Act does not.
(a) In the separation of powers context, the “making” law—“enforcing”/”implementing” law distinction has
been unsuccessful and some think the Court has abandoned it.
(b) The distinction proposed here will not create precise answers; an imprecise barrier against federal
intrusion upon state authority is not likely to be an effective one.
1) Executive action that has utterly no policymaking component is rare.
2) “Reasonable efforts” is a policymaking matter.
(c) Even if the Act leaves no policymaking discretion with the states, the preservation of states as independent
sovereigns is less undermined by requiring them to make policy, then by reducing them to puppets of a
ventriloquist Congress.
3. The NY decision is not distinguishable because Congress’s requiring state officers to perform discrete,
ministerial tasks does not diminish state or federal accountability.
(a) Since state governments absorb the financial burden of implementing the Act, Congress can take credit for
solving the problem without having to ask their constituents to pay with higher federal taxes. (Some
earlier reading relevant here).
(b) Even when states are not forced to absorb the costs of implementing a federal program, they still take tha
blame for its burdensomeness and its defects.
4. Only in a Ursery-type situation, where the issue is whether incidental application to the states of a federal law of
general applicability may interfere with the functioning of state governments, are the Act’s purposes, state
burdens, and efficiencies considered.
Concurrence (Thomas)
The Constitution places whole areas outside Congress’s regulatory authority under the Commerce clause, including
the 1st Amendment. If the 2nd Amendment confers a similar personal right to keep and bear arms, the federal
government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs
afoul of it.
Dissent (Stevens, Souter, Ginsburg, Breyer)
1. Since the ultimate issue is one of power, we must consider the Act’s implications in times of national emergency.
A national response may be necessary before federal personnel can be made available to respond.
2. The Act is in response to a national emergency—the epidemic of handgun violence.
3. Since the Constitution is silent, the Court should respect Congress’s policy judgment and its appraisal of its
constitutional power because they are politically accountable.
Text
1. The Congress has the power under the Commerce clause to regulate handgun commerce.
2. In conjunction with this power, the NP clause allows Congress to temporarily enlist local police officers in the
process of identifying persons who shouldn’t be entrusted with handgun possession.
3. Unlike the 1st Amendment, the 10th Amendment imposes no restriction on the exercise of Congress’s delegated
powers. The 10th Amendment confirms the federalism principle, but does not limit the scope of Congress’s
powers.
4. Federal law may impose greater duties on state officials than private citizens because the Constitution requires
state officers to take an oath to support it.
5. Nothing in the Constitution supports the proposition that a CLEO can ignore a command contained in a
Congressional statute enacted pursuant to an express delegation of power.
Original Understanding
1. To overcome the AOC’s problem with inability to act directly on the people, the framers unequivocally intended
to enhance the capacity of the federal government by empowering it—as part of the new authority to make
demands directly on individual citizens—to act through local officials.
(a) Hamilton’s Federalist 27: “employ the magistracy of each”
(b) Hamilton’s Federalist 27: the states will be incorporated into the operations of the national government “as
far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of the
laws.”
(c) During the Constitution’s ratification debates, the framers assumed that state agents would act as tax
collectors for the federal government.
2. The Court’s response to this powerful historical evidence is weak.
(a) No fair reading can justify an interpretation involving “consent.”
(b) The Court’s attempts to discount the force of Federalist 27 are unpersuasive.
1) The mere fact that the Supremacy clause is the source of obligation of state officials to implement
congressional directives does not remotely suggest that they might be incorporated into the operations of
national government before their obligations have been defined by Congress.
2) Since NY did not mention Federalist 27, it does not affect the relevance or weight of the historical
evidence insofar as it relates to state courts.
(c) In the early years of the republic, the national government did indeed exercise such power. State judges
performed executive functions, i.e. administered oath of U.S. allegiance, nationalization reporting
requirements and registry, laying city streets, and ensuring seaworthiness of vessels.
(d) The majority’s “judges” distinction is empty formalistic reasoning of the highest order.
(e) The Court has never suggested that the failure of early Congresses to address the scope of federal power in a
particular area cuts against its existence. The principle would undermine post-New Deal Commerce Clause
jurisprudence.
(f) The Court fails to distinguish policy decisions that may have been influenced by respect for state sovereignty
concerns, and decisions that are compelled by the Constitution.
1) Wilson was an effective statesman, but this doesn’t apply he couldn’t mandate it.
2) There was no contemporary comment on the supposed constitutional concern.
Structure
1. While the framers intended to preserve the sovereignty of the states, that fact does not speak to the question
whether state officers may be required to perform federal obligations.
2. Since Congress’s members are elected, it is unrealistic to assume that they will ignore their constituent’s
sovereignty concerns. Indeed, a decision to impose modest burdens on state officials from time to time reflects a
considered judgment that the people in their states will benefit therefrom.
3. The presumption of validity that supports all congressional enactments has added force with respect to policy
judgments concerning the impact of a federal statute upon the states.
4. As demonstrated by the Unfunded Mandates Reform Act of 1995, the political safeguards protecting our
federalism are safe; thus, unelected judges should stay out of it.
5. By the majority’s limiting the ability of the federal government to enlist state officials in the implementation of its
programs, the Court creates incentives for the national government to aggrandize itself.
(a) The federal government must create vast national bureaucracies to implement policies.
(b) The Federalists promised this would not occur because of the magistracy of the states.
6. The notion that the Act will destroy the theory of the unitary executive contradicts NY. NY generally approved of
cooperative federalism programs, designed at the national level but implemented through state governments.
Three mechanisms.
Dissent (Souter)
1. The original understanding of the framers contemplated federal commandeering.
(a) Federalist 27—the federal government may “employ the magistracy of each state in the execution of its laws.”
(b) In combination with the Supremacy Clause and state oath requirement, the Federalist 27 states that legislative,
courts, and magistrates of states “will be incorporated into the operations of national government; and will be
rendered auxiliary to the enforcement of its laws.”
(c) Thus, the auxiliary functions are the products of their obligations thus undertaken to support federal law, not of
their own unfettered choice.
(d) Madison’s Federalist 44 states that state officer’s swear an oath because they have essential agency in giving
effect to the Constitution.
2. Congress may require state officers to do things consistent with the power proper to a state officer’s branch of
tripartite state government.
3. NY is correct; however, the dicta went too far toward immunizing state administration as well as state enactment
of such a scheme from congressional mandate.
4. The original understanding does not contemplate Congress requiring administrative support without providing an
obligation to pay for it. Federalist 36-describes the U.S. as paying. Thus, I would remand.
Dissent (Breyer)
1. Several other similar systems, i.e. Switzerland, Germany, and the European Union, provide that their constituent
states will implement many of the rules and regulations enacted by th central federal body because they believe
such a system interferes less with the state sovereignty and helps to safeguard liberty.
2. I offer this to provide Justice Steven’s argument with empirical support.
3. The Act uses the words “reasonable effort”—words that address time and cost concerns.
 Note that Justice Scalia did not join a section of the Court’s opinion in City of Boerne v. Flores discussing the drafting
history of the 14th Amendment. Consistent?
 Hills defends the entitlement Printz gives states to refuse to comply with federal directives (unless they chose to do so)
on functional grounds. There is a marketplace for federal revenue. If the national government values such services
enough to pay, it can ensure cooperation. Otherwise, if it commandeers, it discourages involvement in state and local
politics.
 Comparative Law—In the absence of controlling constitutional text, examining constitutional experience elsewhere
may illuminate relevant policy considerations in determining the Constitution’s meaning. Also, examining
constitutional experience elsewhere may illuminate the choice among reasonable alternative specifications of the U.S.
Constitution’s strucutre.
 State sovereign immunity doctrine applies differently with respect to the commerce clause and §5. 11 th
Amendment???
(1) When Congress is legislating under the Commerce clause, the 11 th Amendment prohibits a state from being sued.
(2) When Congress is legislating under the 14th Amendment’s §5, they can override state immunity. Historically, the
14th Amendment is intended to be an assertion of federal power against state sovereignty. For example, in §1, the
Amendment is specifically applied to the states. Congress would have to make the statute apply only to the
states. In traditional function analysis, all the cases involved generally applicable laws (applies to private parties
and states); i.e. Congress passes a minimum wage law that applies to states and private parties. ????
 We don’t know how commandeering would come out under the 14th Amendment’s §5. Vermeule thinks that it is
far less constitutionally suspect and that it would be upheld, except for small core of state sovereignty, i.e. moving the
state capital.
 The 2nd Amendment
The 2nd Amendment, unusually for a federal constitutional provision, contains a statement of purpose as well as a
guarantee of a right to bear arms. The 2nd Amendment was designed to guard against the possibility that the national
government would overreach its authority and need to be checked, by military force if necessary. The 2 nd Amendment’s
interpretation dispute divides people who believe it confers an individual right or a collective right, a right held by the
people collectively in connection with such participation.
United States v. Miller (US 1939)
The Court upheld the constitutionality of a national ban on the possession of an unregistered sawed-off shotgun
because the 2nd Amendment did not protect possession of weapons that were not shown to have a reasonable
relationship to the preservation or efficiency of a well-regulated militia. Lower courts also agree that there is no
individual right.
Collective Right Interpretation—The 2nd Amendment complements federalism-based limits on national power. Wellregulated militias were those under the control of state governments; thus there is no individual right.
 Critics—The contemporary versions is the National Guard, which can be taken over by national authority. Thus,
the National Guard can’t serve the function of state-organized militias. Since there is no contemporary analogue,
individual rights win.
Individual Rights Interpretation—The 2nd Amendment uses the same term “the right of the people” that the 1 st, 4th and
9th Amendments do, which all agree confer individual rights. In addition, civic republicanism makes the citizen’s
ability to join with others to resist government overreaching by force of arms a central feature of active citizenship.
 Critics—(1) Civic republicanism tradition developed in a society lacking democratic participation. Under modern
circumstances, elections and free speech reduce the risk of government overreaching to the point where an individual
right is unnecessary. (2) Conditions making civic republicanism a coherent theory of society, such as widespread
quality in economic condition and widespread commitment to civic virtue, are absent in today’s society
Constitutional Law I-Part II
Prof. Vermeule
By Ryan Patrick Phair
IV.
Enumeration
Before the Civil War and after Brown v. Board, some southerners argued that states could nullify
the effect of national legislation. However, as McCulloch and US Term Limits v. Thornton makes
clear the enumerated powers were granted by the people, abolishing the idea of state sovereignty.
However, Justice Thomas believes that the ultimate source of the Constitution’s authority is the
consent of the people of each individual state, not the consent of the undifferentiated people of the
nation as a whole. The framers sought to enumerate powers to respond to the defects in the Articles
of Confederation, as well as concerns about retaining states as political units and to respond to
concerns about national tyranny.
The Federalist No. 84 (Hamilton)
Enumeration makes unnecessary a bill of rights. Because the people surrender nothing under
the Constitution, they have no need for reservation of rights. In addition, enumeration may be
dangerous because some usurpers might argue that the reservation implies the existence of a
power to exercise such unenumerated power.
V.
Federalism
Vermeule says there are three issues about federalism.
(4) Does federalism matter?
(5) If it matters, who should police the constitutional allocation of powers? Political process or
courts?
(6) If it is the courts, what doctrines and standards should they use to do that? If none of the tests
work, they we may reconsider our answer to second question.
Since federalism reemerged in the 70s and 80s, Vermeule believes the end of the Cold War is
reason for renewed sense of federalism. In time of national crisis, the national government is
needed. States’ rights are now back on the agenda.
Federalism serves several values.
(6) Efficiency—Different solutions to specific problems will be appropriate in different areas. A
national government also responds to problems created by one state by activities elsewhere.
Prichard argues that “economic integration” allows gains to all participants by spreading the
risks of economic instability and by allowing cooperation in the provision of joint services
(e.g. defense, transport, communications, etc.).
(7) Promoting Individual Choice—A national government can enforce the values shared by a
majority in the nation as a whole, even against those who are a majority in one or a few states.
The Federalist No. 46 (Madison). Madison believes the size and heterogeneity of the national
government makes it less likely to be captured by any faction. In contrast, disabling the
national government from acting on some subjects while allowing states to act in varying
ways allows people to move from one area to another in order to select the kind of
government policies they prefer. Moreover, Prichard suggests that the political process is
likely to favor decentralization. Yet, this view may overestimate the ease with which voters
relocate.
(g) Interest groups that may be minorities nationally are likely to be majorities locally.
(h) The greater the homogeneity of interests on a geographical basis, the more often
minorities become majorities as decentralization increases.
(i) Decentralization of functions in a hierarchical way disaggregates policy packages and
allows a citizen to case different votes on different components of policy because they
are vested in different levels of government in the jurisdictional hierarchy.
(j) Decentralization, by creating a diversity of jurisdictions, allows a better matching of
preferences and policies because voters can choose the jurisdiction which offers the most
preferred policy package.
(k) Given the greater homogeneity of tastes as bounaries contract, decentralization reduces
the likelihood of policy compromises being adopted that create minimum winning
coalitions but do not accurately reflect the interests of any particular interest group.
(l) Reduction of signalling and other transaction costs for expressing citizen’s preferences.
(8) Encouraging Experimentation—Laboratory of the states idea. Justice Brandeis’s dissent in
New State Ice Co. v. Liebman (1932). Many innovations have begun at the state level-sunset
legislation, working women’s pregnancy benefits, zero based budgeting, and equal housing.
However, Rose-Ackerman suggests that Brandeis overstated the case. She believes the
reelection motive (risk adverse), no incentive to innovate because other states will steal idea
without the costs involved in the risk, etc., does not create innovation. One may criticize the
assumptions on which she rests (politician’s motives, etc.).
(9) Promoting Democracy—State and local governments provide the opportunity for people to
participate directly in the activities of governments that have significant effects on their lives,
which makes them active citizens, like Jefferson imagined. Rapaczynski finds the argument
to be valid-town meetings, school boards, local planning and budget hearings, and
referendum.
(10) Preventing Tyranny—Rapaczynski argues that state’s individual interest protects against the
special interest of government itself.
 While the states are more easily captured by relatively undifferentiated majoritarian interests
intent on suppressing small minorities, the federal government may be a more likely subject of
capture by a set of special minoritarian interests, precisely because the majority interest of the
national constituency is so large, diffuse, and enormously difficult to organize.
(6) Informational Advantages—States know the people better.
 Decentralization—A national government with plenary power might chose to divide the nation
into administrative regions and give revocable grants of autonomy to the regions with respect to
certain subjects. Such an approach encourages above-mentioned values of experimentation,
efficiency, and choice. Thus, Rubin and Feeley argue that federalism’s value is really the values of
decentralization. ????
(c) As to citizen choice, they argue that choice may be maximized by diversity among local
governments, but that federalism protects states.
(d) As to diffusion of power, they argue that current controversies do not involve challenges to the
physical or political power of state governments, but to their administrative power.
 Subsidiarity—European Union allows EC’s central institutions to act only if and insofar as the
objectives of the proposed action cannot be sufficiently achieved by the member states.
 There are 4 forms of federalism.
(5) Neither state nor nation may have power to act. First Amendment restrictions (federaldirectly, state-through 14th Amendment).
(6) The national government may be given the exclusive power to regulate in some area. Article
I, §10 lists prohibited state activities. States may not coin money.
(7) State governments may have exclusive power to regulate some area.
(8) State and national governments may have concurrent power to regulate some area.
Supremacy clause restricts.
VI.
Federalism and Judicial Review
United States v. Lopez (US 1995) Chief Justice Rehnquist
In the Gun-Free School Zones Act of 1990, Congress made it a federal offense for any
individual to possess a firearm in a school zone. The Court holds that the Act neither
regulates a commercial activity nor contains a requirement that the possession be connected
in any way to interstate commerce; thus, the Act is unconstitutional as it exceeds
Congressional authority under the Commerce clause.
9. There are 3 broad categories of activity that Congress may regulate under the Commerce
clause.
(d) Congress may regulate channels of interstate commerce. Darby, Heart of Atlanta.
(e) Congress may regulate the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may come from intrastate
activities. Shreveport Rate Cases, Perez.
(f) Congress may regulate those activities having a substantial relation or affect on
interstate commerce. Jones & Loughlin, Wirtz.
10. Although case law has been unclear, the proper third category test is “substantially
affects” interestate commerce.
11. In this case, if the Act is to be sustained, it must be under the 3rd category.
12. The Act does not substantially affect interstate commerce.
(f) Although the Court has approved a wide variety of Congressional Acts that
substantially affect commerce, with Wickard being the extreme, the possession of a
gun in a school zone does not involve economic activity even in the extreme way
that Wickard does.
(g) The Act is a criminal statute that by its terms have nothing to do with “commerce” or
any sort of economic enterprise, however broadly one might define those terms.
(h) The Act is not an essential part of a larger regulation of economic activity, in which
the regulatory scheme would be undercut unless the intrastate activity were
regulated.
(i) The Act does not contain a jurisdictional element.
(j) Although not required, neither the statute nor the legislative history contains express
congressional findings regarding the effects upon interstate commerce of gun
possession in a school zone.
13. The Government argues that Congress had a rational basis in enacting the Act.
(f) Possession of a firearm in a school zone may result in violent crime.
(g) Violent crime may affect the national economy in two ways.
3) The substantial costs of violent crime are spread throughout the nation by
insurance rates.
4) As in Heart of Atlanta, violent crime reduces the unwillingness of individuals to
travel to areas within the country perceived as unsafe.
(h) Second, possession of guns in schools poses a substantial threat to the education
process by threatening the learning environment.
(i) A handicapped educational process will result in a less productive citizenry.
(j) A less productive citizenry would substantially affect the national economy.
14. There are several problems with the Government’s reasoning.
(d) Under the “costs of crime” reasoning, Congress could regulate all violent crime and
activities that lead to such, regardless of ties to interstate commerce. State power to
regulate crime vanishes.
(e) Under the “national productivity” reasoning, Congress could regulate any activity
found to relate to the economic productivity of its citizens, including family law and
education.
(f) Thus, there would be no limitation on federal power in areas of traditional state
control. Parade of horribles—federalized curriculums, child-rearing, etc.
15. The Court admits that whether an activity is commercial or not is uncertain, but this is an
inevitable byproduct of a system where courts interpret enumerated powers.
16. Judge Breyer’s dissent would have us intrude on areas of traditional state concern. He
ignores the dangerous fact that any activity, depending on the level of generality, can be
looked upon as commercial.
Concurrence (Kennedy, O’Connor)
10.
When enacting a statute, Congress has an obligation to protect Constitutional values,
such as federalism. Webster-Haynes Debates and Civil Rights Act debates.
11.
At the same time, the absence of structured mechanisms to require those officials to
undertake this principled task, and the momentary political convenience often attendant
upon their failure to do so, argues for a judicial role.
12.
As the majority notes, the Act upsets the federal balance to a degree that renders it an
unconstitutional assertion of the commerce power; thus, judicial intervention is warranted.
(c) Neither the actors nor their conduct have a commercial character.
(d) Neither the purposes nor the designs of the statute have an evident commercial nexus.
13.
If Congress attempts an extension of its commerce power, then the courts must ask
whether the exercise of national power seeks to intrude upon an area of traditional state
concern.
14.
Education is a traditional state concern.
15.
While no one asserts that it is wise policy to allow students to carry guns on school
premises, there is considerable disagreement about how best to accomplish that goal.
Considerable disagreement may counsel in favor of federalism??
16.
In this circumstance, the theory and utility of federalism is revealed, because the
states may perform their role as laboratories for experimentation to devise various
solutions where the best solution is far from clear. New State Ice Co. (Brandeis).
(g) Over 40 states have criminalized the possession of firearms on or near school grounds.
(h) Inducements to inform on violators where the information leads to arrests or
confiscation of the guns.
(i) Programs to encourage the voluntary surrender of guns with some provision for
amnesty.
(j) Penalties imposed on parents or guardians for failure to supervise the child.
(k) Laws providing for suspension of expulsion of gun-toting students.
(l) Programs for expulsion with assignment to special facilities.
17.
The Act forecloses the states from experimenting and exercising their judgment in an
area of traditional state concern, and where states have a particular expertise.
18.
They, however, are less eager than Rehnquist to cut back on the Court’s prior
Commerce clause interpretations. Kennedy left untouched prior cases holding that
Congress has full power to regulate what are truly commercial transactions, even if the
transaction being regulated is a very local one: stare decisis mandates against returning to
the time when congressional authority to regulate undoubted commercial activities was
limited by a judicial determination that those matters had an insufficient connection to the
interstate system. Congress can regulate in the commercial sphere on the assumption that
we have a single market and a unified purpose to build a stable national economy.
(c) However, the activity being regulated here was not essentially commercial.
(d) Areas traditionally left to the states are also not commercial.
Concurrence (Thomas)
4. Thomas stands on originalist methodology in Commerce clause jurisprudence.
5. At the time of ratification, “commerce” included selling, buying, and bartering, not
manufacturing and agriculture, which produce goods.
(c) Federalist 36 treats the three as separate endeavors.
(d) If replace “commerce” with “manufacturing,” the result is an absurdity. When a
manufacturer produces a car, it cannot occur with a foreign nation or Indian tribes.
3. The “substantial affects” test is inconsistent with the Constitution.
(e) Under the Court’s conception of the NP and Commerce clauses, many of Congress’s
other Article I, §8 powers are superfluous.
4) If Congress may regulate matters that “substantially affect” commerce, there is no
need for the Constitution to specify that Congress may enacy bankruptcy laws, coin
money, fix the standard weights, or punish counterfeiters of U.S. coins and
securities.
5) There may be no need for the power to raise and support an Army and Navy, for
fewer people would engage in commercial shipping if they thought a foreign power
could expropriate their property with ease.
6) There would be no need to specify that Congress can regulate international trade and
trade with the Indians.
(f) If a “substantial affects” test can be appended to the Commerce clause, why not every
other power of the federal government.
3) Congress could regulate all things that “substantially affect” the Army and Navy,
bankruptcies, tax collection, etc.
4) Since the Art. I, §8 clauses then mutually overlap, it can be inferred that the framer’s
did not intend for such a construction.
(g) The framers were aware that manufacturing and agriculture “substantially affects”
commerce, but they did not cede authority of these activities to Congress. Thus, the
framers were aware of “economic realities” that the principal dissent speaks of.
(h) The “substantial affects” test also suffers from the flaw of appearing to grant Congress a
police power over the nation because of its aggregation principle, which is clever, but
has no stopping point. Thus, Wickard and progeny are wrong.
6. Unlike Lochner, this decision enforces only the Constitution and not judicial policy
judgments. Footnote 9.
Dissent (Stevens)
5. Guns are both articles of commerce and articles that can be used to retain commerce
because gun possession is the consequence of commercial activity.
6. Congress’s power to regulate commerce in firearms includes the power to prohibit
possession of guns at any location because of their potentially harmful use.
7. It necessarily follows that Congress may also prohibit their possession in particular
markets.
8. Since the market for handguns by school-age children is substantial, the national interest
justified such legislation, regardless of whether it would have in 1789.
Dissent (Souter)
8. In reviewing legislation under the Commerce clause, the Court should defer to
congressional judgment that a regulation substantially affects interstate commerce if there
is a rational basis for doing so. Hodel. (The majority did not mention rational basis—the
question was whether there actually was a substantial connection, not whether Congress
could have rationally believed there was.)
9. The rational basis test is a paradigm of judicial restraint.
(c) Judicial restraint shows proper respect for Congress’s institutional competence. There is
nothing about the judiciary that makes it a superior source of policy.
(d) Judicial restraint shows appreciation of the legitimacy that comes from Congress’s
political accountability.
10. Both Commerce clause and substantive due process holdings go together. In 1937, in
West Coast Hotel v. Parish and Jones & Laughlin, the Court began to defer to legislative
policy judgments. In due course, the rational basis test developed. Katzenbach. The
Courts have maintained this posture in both areas of law.
11. The “commerce” standard is an impermissible gloss on rational basis review.
(c) Commerce distinction is similar to indirect/direct distinction. Determining the level of
deference under this commerce standard is essentially a long-discredited version of
substantive economic review.
(d) Justice Breyer shows the porosity of such a standard and the inconsistency of this
cateogrization with our rational basis precedents from the last 50 years.
12. The “traditional state regulation” standard is also an impermissible gloss on rational basis
review.
(f) First, The majority’s believes the Act infringes on two areas of state concern: education
and enforcement of criminal law.
(g) The suggestion is either that a connection between commerce and these subjects is
remote, or that the commerce power is weaker when it touches on areas of state concern.
(h) As for remoteness in education, the commercial prospects of an illiterate state are not
rosy.
(i) As for remoteness in enforcement of criminal law, highjacking interstate shipments of
cigarettes can affect commerce substantially, althouh the state may prosecute robberies.
(j) As for the commerce power weakening position, the idea has been flatly rejected long
ago. Hodel.
13. The “legislative findings” standard, though unresolved, is also an impermissible gloss on
rational basis review.
(e) Congressional findings do not address the question of reasonableness; they tell us what
Congress found, not what it could rationally find.
(f) If this was the standard, it would require Congress to act with high degree of
deliberateness. Judicial review would be as patently unconstitutional as an Act of
Congress mandating long opinions from the Court.
(g) The standard would promote covert review of the merits of legislation under standards
never expressed and arbitrarily applied.
(h) However, legislative findings are valuable in telling courts what to look for, in
establishing at least one frame of reference for review, and in citing to factual authority.
14. Since Justice Breyer shows that the Act passes rational basis review, the majority’s
holding is merely a mistep.
Dissent (Breyer, Stevens, Souter, Ginsburg)
5. The Court should exercise rational basis review.
6. Congress had a rational basis for finding a significant connection (substantially affects)
between gun-related school violence and interstate commerce.
(c) Numerous reports and studies, both inside and outside government, make clear that
Congress could have found the empirical connection urged by the Government.
(d) Congress might have found these economic threats to be no different than the threats
that the Court has previously found within the commerce power, such as loansharking.
Perez.
7. To hold this statute constitutional is not hold that the Commerce clause permits the federal
government to regulate any activity related to the economic productivity of its citiznes
(marriage, divorce, child custody, education, etc.).
(d) The statute is aimed at curbing a particularly acute threat to the educational process.
(e) The immediacy of the connection between education and economic well-being is
documented by scholars and accepted by society at large in was and to a degree that
may not hold true for other social institutions.
(f) It simply applies pre-existing law to changing economic circumstances. Heart of
Atlanta.
8.There are three major problems with the majority’s reasoning.
(d) The majority’s holding runs contrary to modern Supreme Court cases that have upheld
congressional actions despite connections to interstate of foreign commerce that are
less significant than the effect of school violence.
4) Perez—If Congress thought the threat of force with a gun on a street corner to
collect a debt affects commerce, why can’t the threat of force—the frequent
consequence of using a gun—near a school occur sufficiently often that such
activity affects interstate commerce by inhibiting education?
5) Katzenbach—A single instance of racial discrimination at a local restaurant had no
greater connection with interstate commerce than gun possession near schools.
The travel disincentive rationale is similar to businesses and families not wanting
to move to areas where violence plagues the school system.
6) Wickard—In this case, the Court gave Congress the benefit of the doubt in finding
the effects, why can’t it do the same here?
(e) The majority’s “commercial/non-commercial” distinction fails.
4) The Court ignores the Wickard holdings.
c) The Court shouldn’t turn questions of Congressional power upon formulas that
would give controlling force to nomenclature (production, indirect, etc.) and
foreclose consideration of the actual effects of the activity on interstate
commerce.
d) An item does not have to be regarded as commerce so long as it exerts a
substantial economic effect on commerce.
2) The line between the distinction is impossible to draw.
5) In this case, the majority drew the line in the wrong place—The Court can’t
reconcile the line drawn here with Katzenburg or Perez.
6) If the majority was holding that education as a whole was a non-commercial activity,
the majority was mistaken because Congress could rationally conclude that schools
fall on the commercial side of the line.
d) Schools spend a quarter of a trillion dollars.
e) Congress has often analyzed school expenditure as if it were a commercial
investment-efficiency, restructure for greater returns, etc.
f) Schools are commercial investments in which the nation derives the benefit of an
educated work force.
(f) The majority’s holding threatens uncertainty in an area of the law that, until this case,
seemed reasonably well settled. Is Wickard inapplicable? Other questions. Stare
decisis.
 Two Readings of Lopez’s significance.
(3) Minimalist—By not including a jurisdictional element and legislative findings, Congress
violated the etiquette of federalism. Congress should appear to be respecting federalism.
Thus, Lopez is a slap. Bobbitt suggests that the Court’s decision is an example of a “cuing
function,” whereby the Court reminds congressman that they must judge their own actions to
see if they conform to Constitution. Congressman frequently attempt to claim credit for
addressing a problem, their constituents cared about, without concern for actually reducing
crime. The existence of state statutes suggests little need for a national statute. Vermeule
thinks this is unpersuasive since the Court takes federalism seriously.
(4) New Doctrine—Some suggest that Lopez represents a judicial constitutional moment, given
the number of dissents and concurrences, and thus may suggest reassertion of judicial review
over such cases more frequently. The Lopez court is struggling with line drawing. Vermeule
thinks this is more persuasive reading.
 Two Readings of Four Factors and Substantial Affects Test.
(3) Broadest Reading—The Court means that even if an activity meets the “substantially affects”
test, it still must meet the all four factors as an independent test.
(c) Pro—Makes sense of Rehnquist’s majority opinion.
(d) Con—First, the radical jurisdictional element test would undermine the aggregation
principle. Second, traditional state concern test is a bad way to define the reach of the
Commerce clause. It should be a statutory interpretation principle, not a con law one.
(4) Narrowest Reading—The key question is “substantial affects” test. The four factors are
imperfect proxies for that determination. If there is a jurisdiction element, for example, it is
more likely that there is a substantial affect on interstate commerce. Where there is direct
evidence, the proxies are then less important.
 Status of Hodel and Rational Basis Review—Vermeule thinks that the Court is talking about
their independent duty to interpret; thus, they are not engaging in deference. In Lopez, however,
there is not much to defer to, but that doesn’t stop Breyer and Souter. Thus, the debate is still alive.
 Lopez seems to draw back on aggregation doctrine a little bit.
 Weinberg’s “consolidation catastrophe” theory—Rehnquist relies on circular limiting principle
that there must be a limiting principle or else nothing prevents the nation from devouring the states.
 The Court was so closely divided because Lopez implicates two central, and connected, questions
about the constitutional law of federalism.
(3) In light of the Supreme Court’s historical attempts at enforcing federalism-based limits on
congressional power, is the nation better off if the Court intervenes or not?
(4) Does the constitutional structure provide sufficient guarantees to the states that Congress
will protect their interests, so that on balance it is better to leave the protection of
federalism to the political process than to allow countermajoritarian courts to attempt to
enforce federalism-based limits on congressional power?
 Dailey argues that federalism serves several important functions.
(4) Traditional state concern-by siituating communitarian politics at the state level, localism
ensures that the civic participation, political dialogue, and shared values of family law will
develop within the state’s smaller, more accessible political locales.
(5) State sovereignty over family law serves to diffuse governmental power over the
formation of individual values and moral aspirations.
(6) Parallel arguments can be made to education and consumer protection laws.
Political Constraints vs. Judicial Enforcement
The Constitution’s enumeration of congressional powers, including the commerce power, allocates
power between the nation and the states. Should this allocation be enforced by courts or through
political checks on Congress? Both are imperfect.
8. Madison’s Argument. In the Federalist No. 45 and 46, Madison suggest another method of
enforcement—Congressman will be so imbued with respect for local governments that they will
rarely exercise even broad grants of power improvidently.
The Federalist No. 45 (1788) Madison
Congress will exercise its power properly for the following reasons.
5. Each of the principal branches of the federal government will owe its existence more or
less to the favor of the state governments; thus, the federal people will feel a dependence,
which will result in a proper respect for state power.
(d) Without the intervention of the state legislatures, the President can’t be elected
(electoral college?).
(e) The state legislatures elect Senators.
(f) Congressman will be chosen under local influences.
6. The number of people involved in state government will exceed, both in number and
influence, those involved in federal government. Thus, the state has an advantage.
7. The states retain great powers over the ordinary course of affairs, concerning the libes,
liberties, and properties of the people, and the internal order, improvement, and prosperity
of the state.
8. The federal government has the most power in times of war, states in times of peace.
Since there are more peaceful times, the state governments again have an advantage.
The Federalist No. 46 (1788) Madison
5. Since more people will serve in state government, they will be attune to local needs and
have personal ties. Thus, the people’s natural attachment will be to the states.
6. A local spirit will prevail much more in members of Congress than a national spirit will
prevail in state legislatures.
7. Since state legislatures have problems with local county-level interests predominating, the
federal government will have a similar situation with state interests predominating. That
is, measures will be decided based on the probable effect, not on national prosperity and
happiness, but on state prejudices and interests.
8. Should the federal government exceed its power, the states would gang together to resist it.
9. Weschler’s Argument—Updates Madison’s argument. Although modern realities like national
parties and popular election of Senators, Madison’s argument has not lost its thrust.
(7) Before national power may be exercised, one must asnwer the preliminary question why
the matter should not be left to the states.
(8) Variations among states in the problems they face justify imposing this burden of
persuasion on those favoring national intervention.
(9) Several modern functions guard state interests.
(d) Senate—seniority and filibuster.
(e) House—state control of voter qualifications and districting.
(f) President—allocation of electoral votes affects the allocation of times in Presidential
campaigns; party rules allocate convention votes based on some local considerations.
(10)
The large size of the national government is not due to an expansionist nature, but to
the magnitude of unavoidable responsibility under modern circumstances.
(11)
Judicial review is intended to maintain national supremacy against nullification or
usurpation by the states.
(12)
The Court is on weakest ground when it opposes Congress’s constitutional
interpretation, since Congressman control the legislative process in the interests of states,
and have broadly acquiesced in the Act. Thus, federal intervention as against the states is
a matter for congressional determination.
10. Choper’s Argument—Modern version of Madison’s argument. ‘Federalism Proposal’
(2) “Federalism Proposal”—the Courts should not decide constitutional question respecting
the ultimate power of national government vis a vis the states because structural aspects of
the national political system serve to assure state’s rights will not be trampled, and history
shows that they have not been.
(d) Bloc voting by bipartisan state delegations in the House.
(e) Patterns of Committee assignments responsive to local interests.
(f) Most Senators and Congressman have served in state government. (75%).
11. Justice Blackmun (in Garcia v. SAMTA)
(3) The framers chose structural and procedural safeguards, not judicial review, for ensuring
the proper role of state interests.
(4) The federal political process has been effective in preserving states’ interests.
(d) At the same time that states have exercised their influence to obtain federal support,
they have been able to exempt themselves from a wide variety of obligations imposed
by Congress under the Commerce clause (Sherman, NLRA, OSHA, ERISA Acts).
(e) Just because some federal statutes (FLSA) extend general obligations to the states does
not obscure the extent to which politics have served state interests under the
Commerce clause.
(f) The fundamental change (17th Amendment-direct election of Senators) does not alter
the alchemy.
12. Justice Powell (in Garcia v. SAMTA)
(2) Justice Blackmun’s position is absurd.
(f) Although congressman are elected by the states, once they are in office they are
members of the federal government. This is just as absurd as saying, since Congress is
composed of individuals, the Bill of Rights’s individual rights are adequately protected
by the political process. FN 8.
(g) Although states may participate in the electoral college, this is hardly a reason to view
the President as a representative of the state’s interests against federal encroachment.
(h) Weschler is no longer correct. Congress is now more responsive to various national
constituencies. FN 9.
5) National legislation now proliferates.
6) 17th Amendment
7) Weakening of political parties on local level.
8) Rise of national media.
(i) The Acts cited by Blackmun are not relevant to the question of whether the political
processes are the proper means of enforcing constitutional limitations. This restraint
may not continue. Special interests may accept the Court’s invitation and urge Congress
to extend these to the states.
(j) Congress can not be the sole judge of power since Marbury says it is the Court’s duty to
say what the law is.
6. Regan—Proper question is whether there is a special reason for the federal government to have
the power to something or other. What reason is there to think that the states are incapable or
untrustworthy? Is there any reason why the regulation should come from the federal government?
In response, one might ask whether there is any reason to think that Courts are better able than
Congress to determine whether states are incapable or untrustworthy.
13. Unfunded Mandates—The existence of unfunded mandates may suggest that Weschler’s
argument is wrong. However, the enactment of a Unfunded Mandate Reform Act may indicate
that he is right.
14. Criticism—There are several possible points of criticism worth mentioning.
(4) The impact of increasing mobility among the population (and among people with political
ambition).
(5) Judicial review may sometimes eliminate legislation enacted by Congress that serves the
interests of several regions at the expense of the interests of another region, i.e. Civil War.
(6) Special interest groups.
VI. The Evolution of Commerce Clause Doctrine: The Lessons Of History
The Commerce clause is limited in two ways.
(3) Internal Limits—The clause might define a specific subject matter, such that Congress would
lack the power (a) to do anything other than regulate (b) anything other than interstate and
foreign commerce. These limits are imposed to protect the values of federalism.
(4) External Limits—The clause might grant plenary power to Congress by allowing it to do
anything reasonably regarded as regulation of anything reasonably regarded as interstate or
foreign commerce, but other provisions of the Constitution, such as the 1st Amendment, might
bar the exercise of the power concededly granted.
 McCulloch may suggest that the Court will enforce both internal and external limits.
Text—Congressional power to regulate “with” Indian tribes and foreign nations support the notion
that commerce means trade.
 What does the NP clause add to the commerce power? Some suggest that the NP clause adds the
intrastate commerce with interstate effects element. Others suggest that the NP clause allows
Congress to regulate any activity that affects interstate commerce. Perez.
 Justice Thomas believes the Court should exercise care in commerce clause cases because a broad
commerce clause may swallow up the other powers. However, Vermeule thinks this point is too
easy. There is already some clause overlap.
Original Understanding—Framers granted Congress the commerce power because of the economic
balkanization of the Articles of Confederation. They believed there were three separate spheres of
the economy: agriculture, manufacturing, and commerce.
Structure—The Constitution defines power by enumeration, which presupposes that there is
something that is not enumerated. The police power is the residue of state’s power to regulate
health, safety, etc. This creates a line drawing problem. There are two strategies.
(3) Internal limits—the definition of the phrases in the commerce clause.
(4) External limits—Enclaves of traditional state authority that Congress can’t intrude upon even
if authorized by the Commerce clause to do so.
Gibbons v. Ogden (US 1824) Marshall
The NY legislature granted Ogden monopoly rights to operate steamboats between New York
and New Jersey. Pursuant to a federal statutory grant of power, Gibbons was licensed to
operate steamboats in the same area. Ogden obtained an injunction against Gibbons in a NY
state court. The Court held that the injunction was invalid; the supremacy clause dictated that
Gibbon’s federally created right prevailed.
8. Marshall takes a broad view of the commerce clause. Congress can legislate with respect
to all commerce that concerns more states than one. Commerce included not only buying
and selling, but all commercial intercourse, such as navigation (channels?).
9. The congressional power to regulate interstate commerce included the ability to affect
matters occurring within a state, so long as the activity had some commercial activity with
another state.
10. The word “among” means intermingled with and restricted to commerce which concerns
more states than one. There are three limitations.
(d) Congress may not regulate commerce which is completely internal.
(e) Congress may not regulate commerce which does not affect other states.
(f) Congress may not regulate if it was not necessary to do so.
11. The granting of a federal monopoly is interstate commerce because the voyage began in
NY and ended in NJ. Federal law would not reach NY-only voyages.
12. The power to “regulate” is the power to prescribe the rule by which commerce is to be
governed. The “regulate” power, like all others vested in Congress, is complete in itself,
may be exercised to the utmost extent, and acknowledges no limitations, other than are
prescribed in the Constitution.
13. Congression power over interstate commerce is limited by certain political constraints.
(d) Congressional wisdom and discretion
(e) Congressman’s identity with the people.
(f) Political accountability through the electoral process.
14. The 10th Amendment is no bar. It does not act as an independent limit on Congress’s
interstate commerce power. Constitutional interpretation.
 Marshall is responding to restrictive view of interstate commerce that President Monroe has
given the commerce power in his 1822 veto of the Cumberland Road Act. According to Monroe,
the power to impose duties and imposts in regard to foreign nations and to prevent any on trade
between the states was the only power granted.
 Justice Thomas provided a modern interpretation of Gibbons in his Lopez concurrence.
(3) Marshall claimed that the federal power does not encompass “commerce” that does not
extend to affect other states. However, it is a logical fallacy to infer from this, as the
Lopez dissent does, that Congress can regulate whenever an activity affects interstate
commerce.
(4) Marshall’s language suggests the Constitution commits matters of national concern to
Congress and leaves local matters to the states, not that whatever Congress believes is a
national matter becomes an object of federal control.
 From Gibbons until the late 19th century, the Supreme Court has practically no occasion to
consider Congress’s power under the Commerce clause. In 1887 and 1890, the Interstate
Commerce Act and Sherman Antitrust Act, respectively, ushered in a new era of closer judicial
scrutiny to Commerce clause issues. Congress began to use this power more often for different
reasons.
(4) Interconnected economy—since problems were no longer localized, it became difficult to
imagine a purely internal commerce that affected no other states.
(5) States treatment of slaves rights—Since the states would not protect slave rights, national
intervention became appropriate. Federalism concepts are revised.
(6) Civil War—mobilization of Northern economy showed that national power could be used
efficiently and to promote liberty.
Two competing doctrines developed in the case law.
(3) Formalism—Under this approach, the Court examined the statute and the regulated activity to
determine whether certain objective criteria are satisfied. Did it cross state lines?
(4) Realism—Under this approach, the Court attempted to determine the actual economic impact
of the regulation and the actual Congressional motivation.
Two statutory interpretation doctrines.
(3) Changed circumstances.
(4) Read broad language in light of purposes which it was intended to for. Thus, we read a
commercial purpose element into the commerce clause.
 Between 1880 and 1937, the Court reviewed two different types of congressional legislation
premised upon the commerce power: (1) economic regulatory laws, (2) police power regulations.
a. Economic Regulation
United States v. E.C. Knight Co. (US 1895) Chief Justice Fuller
The U.S. invoked the Sherman Act to block American Sugar Refining Co’s acquisition of four
competing refineries, which allowed them to control 98% of the market. The Court held that
the Sherman Act did not reach this monopoly because the Constitution did not allow Congress
to regulate “manufacturing.” Manufacturing is a matter left for state control.
2.Manufacturing is not commerce.
(d) Although manufacturing may bring commerce into play, it does not control it, and
affects it only incidentally and indirectly.
(e) The fact that an article is manufactured for export to another state does not make it an
article of interstate commerce.
(f) The manufacturer’s intent does not determine when something passes into commerce.
2. The underlying rationale is protection of state’s rights to regulate local activities.
Dissent (Harlan)
7. Whatever improperly obstructs the free course of interstate intercourse and trade, as
involved in the buying and selling of articles to be carried from one state to another, may
be reached by Congress.
8. A monopoly that obstructs freedom in buying and selling articles to be sold out of state
affects, not incidentally, but directly, the people of all states.
9. Congress has the “choice of means” and chosen to regulate in advance of transportation.
The judiciary should not intervene.
10. The state autonomy doctrine cannot be invoked to justify a denial of power in the
national government to meet this emeregency.
11. The common government of all people is the only one that can adequately deal with a
matter which directly and injuriously affects the entire commerce of the nation, which
cannot be adequately controlled by any one state.
12. Harlan suggested that Congress could prohibit the transportation across state lines of
articles manufactured by monopolies
 The Knight tension is between over- and under-inclusiveness. If Congress can regulate the
monopoly, the doctrine is overinclusive since there is nothing that Congress can’t regulate and
enumerated powers principle is gone. If Congress can’t regulate, the doctrine is under-inclusive.
 Fuller’s opinion is formalistic. He defines limits by identifying certain categories of activities
that are “not commerce.” He appears to focus on temporal sequence: Manufacturing precedes
commerce, retail sales may succeed it.
Coronado Coal Co. v. United Mine Workers (US 1925)
Applied the Sherman Act to a strike against mine operators.
 Carter distinguished the two cases: In Coronado, although the acts were local, the intent was to
restrain interstate commerce. Reducing the supply of a good is ordinarily an indirect and remote
obstruction of interstate commerce, but when the intent is to restrain or control the supply of
interstate commerce, the Sherman Act is violated.
 Other cases not long after Knight, without repudiating that case, followed an approach that was
less hostile to congressional power. In these cases, Congressional regulation was found to fall
within the commerce power so long as the activities being regulated had a “substantial economic
effect” upon interstate commerce. These cases did not focus on whether the logical relationship
between the activity and the commerce was “direct” or “indirect,” but rather, looked at whether
the practical economic effects of the activity upon interstate commerce were quantitatively
substantial.
Houston, E & W TX Railway v. U.S. (Shreveport Rate Cases) (US 1914) Hughes
The railway operated lines between TX and LA. Shipments from Dallas to Marshall (150
miles) cost 37 cents; shipments from Shreveport, LA to Marshall (42 miles) cost 56 cents.
The ICC set a maximum rate for Shreveport-Texas shipments and ordered the railway to
charge no higher rates per mile for shipments to Marshall from Shreveport or Dallas in order
to eliminate the discrimination against LA. The Court held that the ICC could set the rates for
the intrastate Dallas-Marshall route.
3.Under the Commerce clause, Congress has the power to regulate in all matters having such a
close and substantial relation to interstate traffic that the control is essential or appropriate
to the security of that traffic, to the efficiency of the interstate service, and to maintenance
of conditions under which interstate commerce may be conducted upon fair terms and
without molestation or hindrance.
4. The fact that the activity being regulated was intrastate did not place it beyond
congressional control, since the ultimate object was protection of interstate commerce.
 Prisoner’s Dilemma—Shreveport is about fair competition and unfair discrimination against
interstate commerce (lower rates diverts people from interstate commerce). However, some argue
that Schecter is also about unfair competition. If you’re a state and you think there should be
minimum wage and hours, you might not act because of fear that other states won’t, placing you at
a competitive disadvantage. Congress is the only one who can solve the problem.
Southern Railway v. United States (US 1911)
The Court upheld Federal Safety Appliance act as applied to railroad cars with defective
couplers because, although the cars were used in intrastate traffic, the Act applied to cars used
on any railroad engaged in interstate commerce. Jurisdictional hook?
Stafford v. Wallace (US 1922) Chief Justice Taft
The Packers and Stockyards Act of 1921 authorized the Secretary of Commerce to regulate
rates and prescribe standards for the operation of stockyards where livestock was kept for sale
or shipment in interstate commerce. The Act was designed to reduce the power of packers
over prices they paid for cattle and to eliminate collusion between stockyard managers and the
packers, which raised prices to consumers. The Court upheld the Act.
3. The only question is whether the business done in the stockyards between the receipt of the
livestock in the yards and the shipment of them therefrom is a part of interstate commerce.
4. The stockyards are but a throat through which the current of commerce flows. Such
transactions can’t be separated from the movement to which they contribute and
necessarily take its character.
 In Swift v. U.S. (1905), Justice Holmes developed this current of commerce rationale.
Under this theory, an activity could be regulated under the commerce power not because it had
an effect on commerce, but rather because the activity itself could be viewed as being “in”
commerce or as being part of the “current” of commerce. Further, interstate commerce is not
a technical legal conception, but a practical one.
b. “Police power” regulation and the commerce-prohibiting technique.
In these cases, Congress uses a separate technique (other than regulate local activities directly) of
prohibiting interstate transport of certain items or persons. This technique was not used only for
pure economic regulation, but also for police power or moral regulation. During the first two
decades of the 20th century, the Court was substantially more sympathetic to this technique than to
direct regulation of interstate affairs.
Champion v. Ames (The Lottery Case) (US 1903) Harlan
The Federal Lottery Act of 1895 prohibited the interstate transportation of foreign lottery
tickets. Champion was indicted for shipping a box of Paraguayan lottery tickets from TX to
CA. The Court held that the Act was constitutional.
5. Interstate commerce includes independent carriers carrying things or commodities from
one state to another that are ordinary subjects of traffic, and which have in themselves a
recognized value in money.
6. Given the plenary and complete power of Congress to regulate commerce, implicit in
Congress’s power to regulate interstate commerce is the power to prohibit interstate
transportation.
7. In this case, Congress does not interfere with intrastate traffic or commerce in lottery
tickets, but only interstate trafficking. Congress thus supplements state action involving
lotteries.
8. Although some argue Congress can now arbitrarily prohibit anything from being carried
from state to state, the present case does not declare the full extent of the Commerce
clause power. Further, abuse of power is not an argument against its existence.
Dissent (Fuller, Brewer, Shiras, and Peckham)
3. The majority gives Congress a general police power because it amounted to saying that
everything is an article of commerce the moment it is taken to be transported from place to
place, and of interstate commerce if from state to state. For example, invitation to dine,
take a drive, etc.
4. The majority usurps state power and is a step towards centralized government.
Hoke v. United States (US 1913)
The Court upheld the Mann Act’s prohibition of transportation of women in interstate
commerce for immoral purposes. Congress has complete power over transportation between
states, and may adopt means that have the quality of police regulation.
 Once it became apparent that the Court looked favorably upon the commerce-prohibiting
technique as a means of asserting national police power, Congress took a significant additional step:
it began to regulate intrastate activities as a means of enforcing bans on interstate transport. Even
this extension was viewed favorably by the Supreme Court.
Hipolite Egg Co. v. United States (US 1911)
After Congress passed the Pure Food and Drug Act of 1906, prohibiting interstate shipment of
noncomplying foods, the government seized a shipment of preserved eggs because their labels
failed to comply with the Act. The eggs had reached their destination when seized. The Court
upheld the seizure because the goods were outlaws of commerce, which may be seized
wherever found. The power to seize after arrival was an appropriate means to prevent
interstate shipment.
 The Court was more hostile to congressional interference with the employer-employee
relationship. The Justices were particularly unwilling to allow congressional legislation that was
pro-labor, and which the Justices saw as being an unwarranted interference with the free market
system.
Hammer v. Dagenhart (The Child Labor Case) (US 1918) Day
In 1916, Congress passed the Child Labor Act prohibiting the transportation in interstate
commerce of goods produced in factories employing children under age 14 or employing 14-
16 years olds for more than 8 hours a day, or six days a week, or at night. On a 5-4 vote, the
Court struck down the Act as unconstitutional.
4.The Court distinguished Champion based on the character of the thing being regulated.
(c) Champion and other cases prohibited interstate transportation of articles was part of the
very evil sought to be prohibited.
(d) In this case, the goods shipped in interstate commerce were themselves harmless; it was
only the employment of child labor which was an evil, and this employment was not
directly related to interstate commerce.
5. There is no power vested in Congress to require the states to exercise their police power so
as to prevent possible unfair competition resulting from some states imposing child labor
laws and others not. Thus, Congress does not have the power to equalize such conditions.
6. Regulating the hours of labor in children in factories and mines within the states is a purely
local matter that the federal power does not extend to.
Dissent (Holmes, McKenna, Brandeis, Clarke)
6. So long as the regulation falls within power specifically given to Congress, the fact that it
has a collateral effect upon local activities otherwise left to state control does not render
the statute unconstitutional.
7. In this case, the statute confines itself to prohibiting the carriage of certain goods in
interstate commerce, which power Congress is given in unqualified terms.
8. If we are going to regulate immoral things, which Holmes’s doesn’t think we should, there
is no more compelling case than child labor.
9. However, the Court should not substitute its judgment on questions of policy or morals for
that of Congress.
10. Holmes’s implicitly rejected the 10th Amendment as a source of limitations on federal
authority—so long as congressional action technically comes within an enumerated power,
it is valid no matter how substantially it impairs the states’ ability to regulate what would
otherwise be local affairs. This highly restrictive view of 10th Amendment became
majority view beginning in 1937, enduring to the present.
VII. The New Deal and the Modern Welfare State
Beginning with Jones & Laughlin, the Court began to show a vastly greater willingness to defer to
legislative decisions. The Court expanded the reach of the Commerce clause by recognizing three
theories upon which a commerce-based regulation may be premised.
(4) An expanded “substantial economic effect” theory.
(5) A “cumulative effect” or “aggregation” theory.
(6) An expanded “commerce-prohibiting” protective technique.
a. An Expanded “Substantial Economic Effect” Theory
In pre-1937 cases, the Court had insisted upon a “direct” and “logical” relationship between the
intrastate activity being regulated and interstate commerce. In Jones & Laughlin, the Court
substantially loosed the nexus required between intrastate activities being regulated and interstate
commerce. This begins the era between the Schecter and Lopez bookends.
NLRB v. Jones & Laughlin Steel Corp. (US 1937) Chief Justice Hughes
The National Labor Relations Act (NLRB) established a comprehensive system for regulating
labor/management relations. IT established the right of employees to organize and collective
bargain and created a board to supervise elections and to enforce the Act’s prohibition of
unfair labor practices such as discrimination against union members. The Act’s findings
detailed a series of rationales for how denial the Act sought to prevent disruptions in interstate
commerce. The NLRB charges JL with firing employees because they sought to organize a
union. The Court held that statute to be constitutional.
8. Although Jones & Laughlin manufactured iron and steel only in PA, it owned mines in two
other states, operated steamships on the Great Lakes, held warehouses in 4 states, and sent
75% of its product out of PA.
9. The Court expressly declined to rely on the “stream of commerce” theory. The stream of
commerce decisions were merely particular, not exclusive, illustrations of the commerce
power. The Commerce power is broader.
10. The Court rejected the manufacture/production-commerce distinction because it is not
determinative of the issue posed below.
11. Congress has plenary power and may protect interstate commerce from burdens and
obstructions no matter what the source of dangers that threatens it.
12. The direct-indirect effect test exists in an intellectual vacuum.
13. A strike, even in production areas, would have a most serious, immediate, and
catastrophic effect on interstate commerce. Thus, the test is whether there is a substantial
economic effect.
14. The Court implied, though it did not expressly state, that the 10th Amendment would no
longer act as an external limit on federal commerce clause powers.
 The abandonment of the “stream of commerce” rationale now makes it irrelevant whether the
activity being regulated occurs before, during, or after the interstate movement. The question is
“substantial economic effect” on interstate commerce.
 It wasn’t until Lopez that the “substantial” aspect of the test was settled.
c. The Aggregation or Cumulative Effect Theory
Under this theory, Congress may regulate not only acts which taken alone would have a substantial
effect on interstate commerce, but also an entire class of acts, if the class has a substantial economic
effect (even though one act within it might have no interstate impact at all).
Wickard v. Filburn (US 1942) Jackson
Under the Agricultural Adjustment Act of 1938, the Secretary of Agriculture set quotas for
wheat production. The 1941 quota was approved in a wheat grower’s referendum by 81-19%.
Under the quota, each wheat grower is given an allotment. Filburn exceeded the quota, but
some of the wheat went to his own personal livestock, making flour, and seeds (personal
uses). After being hit with a $117 penalty, Filburn sued the SOA to enjoin enforcement of the
penalty. He argued that this was a purely local activity. A unanimous Court held the Act to
be constitutional, even as applied to home-consumer wheat.
3.The proper Commerce clause test is “substantial economic effect.”
(d) Any nomenclature such as “indirect” or “manufacture” unrealistically ignores the actual
effects of the activity. Realism.
(e) Gibbons contemplated expansive commerce power, with limitations provided by the
political process.
(f) The local character of an activity is helpful in doubtful cases in determining whether
Congress intended to reach it.
4. The home consumption of wheat produces a substantial economic effect on commerce.
(c) The more wheat consumer for home consumption, the less wheat that is bought in
commerce (i.e. by other farmers), which affects price and market conditions (excess
wheat would check market prices).
(d) Filburn’s consumption may be trivial, but taken together with that of many others
similarly situated, his consumption is far from trivial.
 Vermeule thinks that Wickard is not as extreme as people think. Instead, it is a simple
application of Shreveport.
 Jackson’s statement that the fact that an activity is of local character may help in a doubtful case
whether Congress intended to reach it. Thus, federalism considerations might affect the Court’s
construction of the statute. What is a doubtful case?
United States v. Bass (US 1971)
A federal statute provided that “any person who—(1) has been convicted of a felony and who
receives, possesses, or transports in commerce or affecting commerce any firearm shall be
fined not more than $10,000 or imprisoned for 2 years, or both.” Under the statute, the Court
held that a defendant could not be convicted for possessing a gun without proof that the gun
had been possessed in commerce or affecting commerce.
5. The statute was found to be ambiguous on the question of whether the “in commerce or
affecting commerce’ phrase modified “transports” only, or “receives or possesses” as well.
6. Given the ambiguity, the majority invoked 2 statutory construction canons: (a) Ambiguity
concerning the ambit of criminal statutes should be resolved in favor of lenity; (b) unless
Congress conveys its purpose clearly, it will not be deemed to have significantly changed
the federal-state balance.
7. Thus, absent a clearer statement of intention (floor amendment, no deliberation), the Court
would not interpret the statute to reach the mere possession of firearms.
8. In dissent, Justice Blackmun says there is no ambiguity. The jurisdictional hook applies to
all three.
Scarborough v. United States (US 1977)
The Court held that the “commerce” element of the possession offense in Bass could be
established by proof that “the firearm had been, at some time, in interstate commerce.”
c. The Commerce-Prohibiting Technique (Police Power Regulations)
The commerce-prohibiting technique, separate from the “affecting commerce” principle, involves
Congress’s right to use prohibitions in furtherance of the police power. Both principles, of course,
were substantially broadened after 1937. In U.S. v. Darby, the Court flatly overruled Hammer v.
Dagenhart.
United States v. Darby (US 1941) Stone
The Fair Labor Standards act of 1938 prohibited the shipment in interstate commerce of goods
manufactured by employees who were paid less than a prescribed minimum wage or who
worked more than a prescribed maximum number of hours. It also prohibited the employment
of workers in production for “interstate commerce” at other than prescribed wages and hours.
The Court unanimously held the Act to be constitutional.
4.Hammer is overruled.
(c) The inherently harmful distinction has no support by any constitutional provision and
has long since been abandoned.
(d) The idea that the motive of prohibition can render a statute unconstitutional no longer
has force.
5.The direct ban on interstate shipments is upheld.
(c) There is no external conflict or limit with another Constitutional provision—
Manufacturing conditions are not left for exclusive state control because the power of
Congress over interstate commerce can neither be enlarged nor diminished by the
exercise or non-exercise of state power. Thus, the 10th Amendment does not act as an
external limit on congressional authority over interstate commerce.
(d) Motive is irrelevant—The motive and purpose of a regulation of interstate commerce are
matters for the legislative judgment upon the exercise of which the Constitution places
no restriction and over which the Courts are given no control.
6. The Act’s provisions making it a crime to employ workers engaged in interstate commerce
in violation of the wage/hours provision is also upheld.
(d) Given Congress’s right to impose direct prohibitions or conditions on interstate
commerce, Congress may choose the means reasonably adapted to the attainment of the
permitted end, even though they involve control of intrastate activity. Shreveport
(broadens?).
(e) Thus, the outright criminalization of employer conduct was a means of implementing the
prohibition on interstate shipment.
(f) Regardless, the 2nd provision is sustainable independently. The means adopted for the
protection of interstate commerce by the suppression of the production of the
condemned goods for interstate commerce is so related to commerce and so affects it as
to be within the reach of the commerce power.
 Gunther calls the 2nd part of the opinion the “super-bootstrap suggestion.” If it is taken
seriously, it means that Congress may attack any problem (even one of overwhelmingly local
concern) by prohibiting all interstate activity associated in any way with it; then, the local activity
itself could be prohibited as a means of implementing the ban on interstate transactions.
However, Lopez’s emphasis on commerce probably would not intrude on areas of traditional state
concern. It also doubtful that Congress would go to such lengths.
d. Later Developments—Rational Basis Review
 A broad reading of Congress’s Commerce clause power has been applied to federal criminal
statutes.
Perez v. United States (US 1971) Douglas
The Court upheld a federal criminal statute prohibiting loaksharking enforced by threats of
violence. Relying on congressional findings, although stating that they are required, the Court
stated that Congressional findings showed that loansharking is not a traditionally local
activity. The Court relied on Darby to uphold the statute. In that case, a class of actions was
held properly regulated by Congress without proof that the particular intrastate activity against
which the sanction was laid had an affect on interstate commerce. As here, where the class of
activities is properly regulated, the courts have no power to excise trivial, individual instances
of the class. Thus, the aggregation principle once again applied to activity entirely within one
state.
Dissent (Stewart)
Since there is no distinction between loansharking and other local crime, this statute was
beyond Congress’s power to act. The definition and prosecution of local, intrastate crime are
reserved to the states under the 9th and 10th Amendments.
 Lopez cited this case several times, and gave no hint that it was wrongly decided. Since
the activity being regulated in Perez (loansharking) was clearly commercial in nature, Lopez
should not have any effect.
 Federal criminal statutes frequently use the commerce-prohibiting technique. Mann Act
(woman), Dyer Act (stolen vehicle). Makes crime to cross state lines.
Hodel v. Virginia Surface Mining Association (US 1981)
The Court upheld a federal statute regulating the operation of strip mines. Announcing
rational basis review, the Court looked to the statute’s findings that strip mining affected
commerce.
f. Civil Rights Legislation—The Civil Rights Cases (1883) held unconstitutional the Civil
Rights Act of 1875, which relied on §5 of the 14th Amendment to prohibit dsicrimination in
public accomodations. Any doubts about Title II of the 1964 Civil Rights Act (prohibiting
discrimination or segregation in public accommodations, public accommodation = operations
affect commerce, motels and hotels per se affect commerce, and restaurants are covered if a
substantial portion of its food has moved in commerce) were put to bed by the following
Commerce clause decisions, especially Katzenbach.
Heart of Atlanta Motel v. U.S. (US 1964) Clark
The HOA motel was a motel located in downtown Atlanta, near two interstate highways,
which refused to rent rooms to blacks. It advertised in national magazines and billboards.
About 75% of its guests were from out-of-state. The Court found the Act to be constitutional.
4. Congressional hearings showed how discrimination affects commerce in the aggregate.
(d) Racial discrimination discouraged travel on the part of a substantial portion of the black
community.
(e) Racial discrimination impaired the black traveler’s pleasure and convenience by the
uncertainty of finding lodging.
(f) Thus, racial discrimination has a substantial effect on interstate commerce.
5. The Court was not troubled by the fact that Congress’s motive was not economic, but
moral and social.
6. It did not matter that the hotel was of purely local character because Congress’s interstate
commerce power also includes the power to regulate the local incidents thereof.
Concurrence (Douglas)
Equal protection grounds would have a more settling effect as it would apply to everyone.
And help finally put this era behind us.
Katzenbach v. McClung (US 1964) Clark
Ollie’s Barbecue is a Birmingham, AL restaurant, located on a state highway 11 blocks from
the interstate and a greater distance from railroads and bus stations. It buys $150,000 worth of
food, $75,000 (46%) of which was meat bought from a local supplier who purchased it out of
state. The Civil Rights Act expressly applied to any restaurant a substantial portion of whose
food has moved in commerce. The Court found the Act to be constitutional.
4. Discriminatory practices prevent blacks from buying restaurant food, which discourages
travel, and thus obstructs interstate commerce. People can’t travel w/o eating.
5. Based on Wickard’s aggregation principle, even though Ollie’s itself was small, and the
value of food it purchased from out of state had only an insignificant effect on commerce,
the restaurant’s discriminatory conduct was representative of conduct throughout the
country; thus, it had an affect on interstate commerce.
6. Rational basis review is met. Thus, the court’s job is at an end.
Concurrence (Black)
Measuring the aggregate effect of a great number of acts of discrimination, Congress has the
constitutional power under the Commerce clause and NP clause to protect interstate commerce
from such injuries caused by discrimination.
 Some suggest that when Congress uses the “affecting commerce” rationale of Wickard, the
Court should examine Congress’s motive.
 Lopez’s affect is unclear. Katzenbach is the more constitutionally suspect decision after Lopez.
If the government’s belief that business won’t locate in areas with poor schooling wasn’t enough
of a connection to interstate commerce in Lopez, it may well be that Congress’s belief that
discrimination dissuades blacks from traveling won’t either. On the other hand, the core activity
in Katzenbach is commercial in a war that possessing a gun in school is not.
VI. Congress’s Other Powers
b.
The Treaty Power—Like the war power, the treaty power is divided between two branches
of the federal government. The President may make a treaty, but it must be ratified by 2/3rds of
the Senate.
Tribe—A validly-ratified treaty is the rough equivalent of a federal statute. Thus, when a
conflict arises between a valid treaty and a valid congressional statute, whichever was enacted
later controls, under the rule that the last expression of the sovereign will must control.
Missouri v. Holland (US 1920) Holmes
Congress attempts to regulate the killing of migratory birds within the United States. The
statute was struck down as not being within any enumerated congressional authority.
Subsequently, the U.S. and Great Britain enter into a treaty governing the migration of birds
between the U.S. and Canada. Congress passes the Migratory Bird Treaty Act to implement the
treaty. Missouri sues to enjoin enforcement because the treaty invades rights guaranteed to it
under the 10th Amendment.
5. The U.S.-Great Britain treaty is a valid treaty under Art. II, §2 since it does not violate any
prohibitory words found in the Constitution (external limits?).
6. If the treaty is valid, then the Act is valid under the Necessary and Proper clause.
7. Since there is a valid treaty, the Supremacy Clause of Article VI makes treaties made under
the authority of the United States the supreme law of the land.
8. Since the Act involves a national interest (“matters requiring national action”), the 10th
Amendment is not implicated.
(d) The national interest can only be protected by national action in concert with another
power.
(e) Birds are only transitorily within states and has no permanent habitat therein.
(f) But for the treaty and the statute, there soon might be no birds for any powers to reach.
 Tragedy of the Commons Theory—In a big field where everyone grazes, there is no incentive to
conserve. The standard solution is a centralized administration of the resource. States can’t solve
the problem on their own. If a tragedy of the commons is involved, there may be a stronger case
for coordinated national action.
Reid v. Covert (US 1957)
Mrs. Covert, a civilian resident with her serviceman husband on an English military base, was
convicted by a military tribunal of killing him. The Court held that a civilian in her position
could not be tried in military courts. The plurality emphasized that all of Congress’s powers,
including its power to regulate the armed forces, were limited by the bill of rights, including its
requirement of trial by jury. Also, no agreement with a foreign nation can confer power on
Congress, or any other branch of government, which is free from the restraints of the
Constitution.
 An executive agreement (unratified international treaties) is not per se unconstitutional. It may
override conflicting state laws b/c international; however, it can not override a Congressional
Act.
2. The War Power
Aside from separation of powers issues, the war power’s impact on federalism has principally
arisen in a context of economic regulations promulgated during wartime.
Woods v. Clyde W. Miller Co. (US 1948)
After the President declared the end of hostilities, the Housing and Rent Act of 1947 froze rents
at wartime levels. The Court upheld the Act saying that the war power does not necessarily end
with the cessation of hostilities. Although the war’s effects on the economy may continue for
years and threaten to swallow up the 9th and 10th Amendments, the Court said it would not
assume that Congress is not alert to its constitutional responsibilities. Any power can be abused.
Concurrence (Jackson)
We should carefully scrutinize the constitutional basis of the Act since this is a dangerous
power: it is usually invoked in haste when calm deliberation is difficult, it is executed in time of
patriotic fervor, which makes moderation unpopular, and it is interpreted by judges influenced
by the same passions.
3. The Taxing Power
There are several readings of Art. I, §8, cl. 1.
(3) Congress has the power to lay and collect taxes in order to pay debts, provide for the
common defense, and the general welfare. However, some arge that it would be silly to give
Congress a general power to provide for the general welfare.
(4) The second half of the clause lays out the purposes for which Congress can lay and collect
taxes. Madison and Hamilton disagree.
c) Madison—The clause meant that Congress could tax and spend for the common defense
and general welfare, and that the content of this was provided by the enumerated powers.
Thus, there was no general power to spend for the general welfare.
d) Hamilton—More nationalist. General power to spend for the welfare of the nation as a
whole. In US v. Butler, the Court adopts Hamilton’s view. Thus, Vermeule would be
shocked to see a case struck down as not in the general welfare.
In addition, to the general Art. I, §8 power to lay and collect taxes, the Constitution imposes
several specific limits and rules on the taxing power.
(4) Art. I, §8 requires all taxes to be uniform throughout the U.S. Thus, the tax structure may
not discriminate among states, but it does not matter that specific individuals are not taxed
uniformly. The requirement applies to indirect taxes (carrying on business) rather than
property.
(5) Art. I, §2 requires all direct taxes to be apportioned and arranged in such a way that revenue
produced by them comes from each state in proportion to its share of the nation’s overall
population. Real property is only direct.
(6) Art. I, §9 prohibits duties on exports.
Regulatory Effects—If the regulatory impact of the tax is one which could be achieved directly, by
use of one of the other enumerated powers (commerce), the fact that the tax has this regulatory
effect is not of constitutional significance. If no direct ability, a court may strike it down.
Bailey v. Drexel Furniture Co. (US 1922)
After Hammer, Congress enacted the Child Labor Act, which required that anyone who
employed child labor pay an excise tax of 10% of the entire net profits of the mine or factory.
The Court found the Act to be unconstitutional.
4.The Act intentionally regulates by the use of the tax as a penalty.
(e) The detailed and specified course of conduct in business set out in the Act demonstrated
its purpose.
(f) The Act’s provisions authorizing DOL inspection of factories and mines is not a normal
DOL activity (advancement and protection of the welfare of workers).
(g) The amount of the tax was not proportional to the extent to which child labor was used.
(h) The tax was only payable if the employer has scienter.
5.Although taxes are often enacted with incidental regulatory motives, in this case, the tax’s
prohibitory purpose was clearly paramount.
6. Grant the validity of this law, and all Congress would need to do to have a police power is
regulate by taxation, which intrudes on the 10th Amendment rights of the states.
 This case would almost certainly come out differently today. The tax would still be seen as
regulatory, but it would no longer invade areas reserved to the states by the 10th Amendment.
Instead, the regulation would be upheld, probably under the Commerce clause, since the 10th
Amendment is no longer viewed as setting aside particular areas for state regulation.
 The only type of tax which might now be held to be a regulatory tax is a tax enacted together
with specified conditions, and written in such a way that the tax does not apply at all unless the
taxpayer has violated the conditions.
 According to Tribe, there are three rules of taxing power cases.
(4) A tax probably has to raise non-trivial amounts of revenue to be valid. U.S. v. Kahriger.
(5) Regulatory provisions that accompany the tax are valid if they bear a reasonable relation to
the tax’s enforcement. Doremus.
(6) A tax which regulates directly through its rate structure is valid. McCray.
 How do we know a tax is regulatory? Bad tax policy.
(4) A bad tax that is unenforceable may be evidence of motive.
(5) Most taxes are based on commodities and exchange, not behavior.
(6) If you really wanted to raise revenue, a broad-based tax would be called for.
 Taxes and fines are somewhat indistinguishable. There is almost no judicial review of this since
Bailey’s extremely deferential definition of tax.
4. The Spending Power
Art. I, §8 gives Congress the power to lay and collect taxes…to pay debts for the common defense
and general welfare of the U.S. The power to spend is linked to the power to tax—money may be
raised by taxation, and then spent for common defense and general welfare.
Prior to 1937, it was not clear whether Congress could spend for whatever purpose it wished, or
whether Congress could only spend in order to carry out one of the other enumerated powers.
United States v. Butler (US 1936) Roberts
The Agricultural Adjustment act of 1933 was designed to stabilize production in agriculture by
assuring farmers that their products will be sold at a fair price. The act imposed a tax on
processors of agricultural commodities such as cotton. The tax proceeds were to be used to
subsidize farmers who agreed to restrict their production. The Court held the Act
unconstitutional as beyond Congress’s power to spend in the general welfare.
7. The Court solely engages in mechanical review.
8. The Court notes that the Taxing and Spending clause does grant power just to regulate for
the general welfare, independent of the tax and spend power. (Thus, a congressional
regulatory scheme has to justified as a reasonable means of carrying out some other power).
9. The power to tax and spend for the general welfare exists as a separate and distinct power
from the other powers enumerated in Art. I, §8. (Hamilton’s view).
10. The Court does not determine the scope of the phrase “general welfare of the United
States” or whether an appropriation in aid of agriculture falls within it. (Political question,
judicially manageable decision, vague, etc.)
11. However, agricultural production is a matter beyond the powers of the federal government.
It involves the reserved rights of the states. (10th Amendment as external limit).
(e)
Because Congress could not directly regulate agriculture, it also could not
coercively purchase compliance with a regulatory scheme.
(f)
The Court rejects the argument that the Act is constitutional because it is
voluntary. Since if the farmer refuses to comply, he will lose benefits, thus receiving
less for his crops, etc., the regulation is in fact not voluntary.
(g)
The Court rejects the argument that local situations throughout the nation have
created a situation of national concern because the Constitution does not permit such a
flexible argument out of fear of subversion to the national government.
(h)
Parade of horribles. All businesses could be induced to surrender rights and
comply with regulation as the price of continuance of business.
12. The Court distinguished the Act from a conditional appropriation of money (valid). The
Act was impermissible because the farmer contractually binds himself to obey the
regulations he could not be directly commanded to obey. The use of contracts in this way
would nullify all constitutional limitations upon legislative power.
Dissent (Stone)
5. The AAA does not attempt economic coercion.
(c)
There is no support in the record or any date showing the actual operation of the
Act.
(d)
Threat of loss, not hope of gain, is the essence of economic coercion.
6. The majority’s distinction between conditional appropriations and spending premised on
contracts (promises) is absurd.
(d) It makes no difference that there is a promise to do an Act which the condition is
calculated to induce.
(e) Condition and promise are alike valid since both are in furtherance of the national
purpose for which the money is appropriated.
(f) If Congress could constitutionally make payment to farmers on condition they reduce
their crop acreage, it is absurd to hold that the measure becomes unconstitutional merely
because the farmer is required to promise to reduce the acreage.
7.The power to tax and spend has some constitutional restraints.
(d) The purpose must be truly national.
(e) It may not be used to coerce action left to state control (threat of loss).
(f) Conscience and patriotism of Congress and the Executive.
8.Congress also has a duty to interpret the Constitution. (Deference?). Thus, the majority’s
parade of horribles ignores Congress’s “sense of public responsibility.”
 Today, the 10th Amendment does not prohibit Congress using its spending power in areas of local
interest. Just as dead as in Commerce clause jurisprudence.
 The majority’s distinction between “conditional appropriations” and “appropriations requiring
binding promises by the recipient” has been abandoned.
Steward Machine Co. v. Davis (US 1937) Cardozo
Under Social security Act’s unemployment compensation system, an employer paid a tax to the
U.S. Treasury. If the employer also made contributions to a state unemployment fund that had
been certified by the Secretary of Treasury as meeting certain “minimum criteria” designed to
assure financial stability and accountability, the employer received a credit of up to 90% against
the federal tax. The Court upheld the system because it did not involve coercion of the states in
contravention of the 10th Amendment nor did it violate implicit federal restrictions.
4.A national solution was necessary to solve the nationwide problem of unemployment.
(c) Many states would not enact tolls on their industries for fear of placing themselves at an
economic disadvantage as compared with neighboring states. Race to the Bottom (5
States, distinguish reasons for failing to act).
(d) Two consequences.
3) States would not contribute to the solution of a national problem out of fear.
4) Since states would not contribute, a disproportionate burden was placed on the
resources of the federal government.
5. The coercion distinction is guided by a common sense that assumes free will.
6. The Court says that Alabama was acting on her own free will, not coercion, when she chose
to have relief administered under her laws, not federal law. Thus, the state is not being
coerced and the 10th Amendment is not implicated.
 The Steward Court distinguished Butler in four ways.
(5) The proceeds of the tax were not earmarked for a special group.
(6) The system operated in a state only if the state gave its approval.
(7) The state could repeal its law at its pleasure.
(8) The end, unemployment relief, was one on which nation and state may lawfully cooperate.
 On one view, the SSA is more objectionable than the AAA because the former coerces the states
directly while the latter does so indirectly by allowing contracts between the U.S. and private
parties that have the effect of undermining local policy.
Other Constitutional Provisions as Limits—A federal spending program may not run afoul of
other specific Constitutional provisions. This is also the modern view.
South Dakota v. Dole (US 1987) Chief Justice Rehnquist
Since Congress was uncertain about its power to impose a minimum drinking age directly (in
light of the 21st Amendment), it passed a federal statute directing the Secretary of Transportation
to withhold a portion of federal highway funds from states that do not prohibit the purchase of
alcohol by people under 21. The Court upheld the statute as constitutional.
5.There are several restrictions on the spending power.
(e)
It must be in pursuit of the general welfare. Butler. In considering this, courts
should defer substantially to Congress.
(f)
If Congress desires to condition the states’ receipt of federal funds, it must do so
unambiguously.
(g)
Conditions on federal grants might be illegitmate if they are unrelated to the
federal interest in particular projects or programs.
(h)
Other constitutional provisions may provide a bar.
6. In this case, the requirements are met.
(c)
The statute served the general welfare b/c different drinking ages in different states
created incentives for young people to combine their desire to drink with their ability to
drive.
(d)
Congress’s condition is directly related to one of the main purposes for which
highway funds are expended—safe interstate travel.
7. There is no coercion since all SD would lose is 5% of funds otherwise obtainable under
specified highway grant programs. Mild encouragement.
8. Even if direct congressional setting of the drinking age is unconstitutional, Congress’s
indirect use of its conditional spending power to achieve the same results is permissible.
Only if, by the use of the conditional spending power, Congress induced states to pass laws
that themselves would violate the constitutional rights of individuals would that
congressional action be unconstitutional. ???
Dissent (O’Connor)
The minimum drinking age is not sufficiently related to interstate highway construction to
justify the conditions on the funds. She would have relied on an approach harking back to
Butler, under which the test would be whether the condition is a regulation or a specification of
how the money should be spent. Butler was wrong only because of its crabbed view of the
extent of Congress’s regulatory power under the Commerce clause, not because it insisted that
conditions on spending be non-regulatory.
 Sunstein’s Endowment Effect—distinguishes between taking a good away that one already has
(coercion) vs. bribery.
North Carolina v. Califano (US 1978)
In order to control health care costs, the National Health Planning and Resources Development
Act of 1974 required each state to enact legislation, conforming to federal standards, requiring
the state’s health planning agency to approve all major capital development projects by
hospitals. If it did not enact such legislation, the state would lose not only the planning funds
made available by the Act, but also federal funds for a variety of public health, mental health,
and alcohol abuse services. The Court summarily affirmed a judgment that the Act was
constitutional.
 Statutory Interpretation as a Limiting Technique—A Court may construe ambiguous statutes so
as not to impose the problematic obligations on the states.
Pennhurst State School & Hospital v. Halderman (US 1981)
In Developmentally Disabled Assistance and Bill of Rights Act of 1975, the Court noted that
although the Act is a federal grant for affirmative action programs and such, the absence of any
language suggesting that a separate bill of rights is a condition of receipt of federal funding
under the Act violated the principle that a statute must state unambiguously if it intends to
condition a grant of federal money. Legislation under the spending power is like a contract:
you must be able to accept. Since Congress appropriated little money, Congress must have had
a limited purpose. Congress, as a matter of statutory interpretation, must provide unambiguous
terms so as to give notice.
Dissent (White, Brennan, Marshall)
The term “rights” is a stronger indicia of congressional intent that the mere statement of
“conditions.” The Court has no basis to conclude that since compliance with the bill of rights is
large, Congress could not have intended such compliance without express language.
XI. The Power to Enforce the Reconstruction Amendments
Congress’s power to “enforce” the Reconstruction Amendments (13th, 14th and 15th Amendments)
creates severe textual difficulties. There are several interpretations of this power.
(4) Substantive
(5) Interpretive
(6) Remedial—Ex Post and Ex Ante (prophylactic)
When Congress enacts a statute, the commerce clause and §5 may work in tandem. First, you
would try commerce clause to avoid §5 problems. A narrow commerce clause interpretatioon may
raise a §5 issue.
Two issues.
(3) What does “enforce” mean?
(4) How does the necessary and proper clause play into the 14th Amendment? The 14th
Amendment’s §5 is part of the “foregoing” powers of the NP clause like the Article I powers.
b. Substantive Modifications
Archibald Cox
Congress, in the field of state activities and except as confined by the Bill of Rights, has the
power to enact any law which may be viewed as a measure for correction of any condition
which Congress might believe involves a denial of equality or other 14th Amendment rights.
(1) Factfinding—Courts routinely defer to Congressional judgment about questions of degree
and a presumption exists that facts exist which sustain congressional legislation. The Equal
Protection and Due Process clauses depend on factfinding and there are differences of opinion
in interpreting the data; thus, Courts should defer to Congress.
Katzenbach v. Morgan (US 1966) Brennan
Section 4(e) of the Voting Rights Act of 1965 provides that no person who has completed 6th
grade in a Puerto Rican school, where instruction was in Spanish, shall be denied the right to
vote because of his or her inability to read or write English. The legislative history made it clear
that this provision was designed to enfranchise several hundred thousand people who had
migrated to NY from Puerto Rico by overriding a NY statute requiring that voters be literate in
English. Previously, in Lassiter v. Northhampton Election Board, the Court held that an
English-language literacy requirement did not violate the substantive guarantees of the 14th and
15th Amendments. The Court upholds the Act as constitutional.
12. Under the Constitution’s distribution of powers, states have power to establish
qualifications for voting, so long as they do not conflict with the 14th Amendment or any
other aspect of the Constitution.
13. The Court does not have to decide whether the NY law violates the Equal Protection
clause.
(c) Depreciates congressional resourcefulness and congressional responsibility for
implementing the Amendment.
(d) Neither the language (enforce) nor the history of §5 supports such a construction.
14. All the Court has to do is ask whether Congress could prohibit the enforcement of state law
by legislation under §5 of the 14th Amendment.
15. In drafting §5, the 14th Amendment drafters sought to grant to Congress the same broad
powers expressed in the Necessary and Proper clause.
16. Thus, we ask whether §4(e) satisfied several criteria.
(d) May §4(e) be regarded as an enactment to enforce the Equal Protection clause.
(e) Is §4(e) “plainly adapted to that end?”
(f) Is it consistent with “the letter and spirit of the Constitution?”
17. In Footnote 10, the Court emphasizes that Congress’s power under §5 is limited to
adopting measures to enforce the guarantees of the 14th Amendment; §5 grants Congress no
power to restrict, abrogate, or dilute these guarantees.
18. The Court seems to be applying rational basis review on each of the three factors.
19. Section 4(e) may be regarded as an enactment to enforce the Equal Protection clause.
(c) Congress explicitly declared so.
(d) It is a measure to secure for the NY Puerto Rican community nondiscriminatory
treatment by government.
20.
Section 4(e) is “plainly adapted” to further these purposes.
(c) NY cannot now deny the right to vote to large segments of the Puerto Rican community.
(d) The enhanced political power will be helpful in gaining nondiscriminatory treatment in
public services for the community.
21. Section 4(e) may also be sustained on the basis that it sought to eliminate invidious
discrimination in establishing voter qualifications.
(c) Congress might have included that prejudice, not providing an incentive to learn English
for intelligent exercise of the vote, was the real motive of NY legislators.
(d) With Spanish newspapers, radio, and TV, Congress may have concluded that the ability
to read and speak Spanish is just as effective for the intelligent exercise of the vote.
22. Section 4(e)’s remedies are means which are consistent with the letter and spirit of the
Constitution.
(b) The argument that §4(e) is invidious discrimination itself because it excludes nonterritorial U.S. schools from its provisions fails on the merits.
Dissent (Harlan, Stewart)
8. In order to bring §5 into power, there must first be an infringement of the Equal Protection
clause.
9. The question of whether the NY voting rights law violates the Equal Protection clause in the
first place should be answered by the Judicial branch.
10. If Congress could answer this question, it would be able to qualify the Supreme Court’s
constitutional decisions under the 14th and 15th Amendments by resorting to congressional
power under the Necessary and Proper clause.
11. In light of Lassiter, Congress may not legislate to limit the effect of that decision, which it
is attempting to do in passing §4(e).
12. Congress does have a role. Decisions on equal protection and due process are based on
empirical foundations, which Congress is well equipped to investigate, and the Court will
give such determinations deference.
13. However, in this case, Congress has not developed a legislative record and did not hold
committee hearings or reports; thus, there is nothing to defer to.
14. Thus, Congress in this case swallows up state’s constitutionally protected authority in the
field of voting rights. Lassiter dictates the result.
 Three Readings—There are three readings of Katzenbach.
(4) Substantive—Congress has the ability to create rights under §1. No cases hold this way,
unless it is Katzenbach.
(5) Interpretive—Congress can interpret the Constitution as long as it is reasonable. Vermeule
believes this is best reading. Boerne, however, just states that Congress has no substantive
power to change the Constitution, Vermeule thinks that Boerne completely overlooked
possibility of interpretive deference.
(6) Remedial—Congress can prevent and deter constitutional violations. Congress can adopt
both ex ante and ex post remedial schemes. Boerne says prevention is possible. Broad
consensus that Congress has this power.
 Thayer’s Rule and Departmentalism—Cooper’s reading of Marbury is that the Supreme Court is
final arbiter. If you buy this, then Harlan’s dissent is correct. However, Cooper is widely
contested. It is hard to prove that rational basis review is inconsistent with Marbury.
 The Footnote 10 Ratchet—Congress may have power to expand under a substantive theory, but
it does not have the power to dilute according to footnote 10. The Katzenbach Court indicates it
will not defer to congressional judgment in assessing a claim that a statute dilutes constitutional
rights. One possible argument for dilution.
(3) With respect to some constitutional guarantees, there is a broad or narrow range of
permissible interpretations.
(4) The Courts are sometimes constrained by their institutional characteristics to adopt only one
interpretation within that range. Congress, lacking the same kinds of institutional
characteristics, might adopt another interpretation, yet still remain within the range of
permissible interpretations. Thus, in the context of remedies, Congress might replace a
judicially developed remedy with an equally efficious one. Thus, partial dilution would be
consistent.
 Federalism—Cohen argues that Katzenbach is defensible as an ordinary application of the
general proposition, derived from Madison and Weschler, that the courts will not enforce
federalism-based limitations on congressional power because the political constraints on Congress
are sufficient to protect against improvident national action.
 Stephen Carter argues that Katzenbach is best understood as a tool that permits the Congess to
use it s power to enact ordinary legislation to engage the Court in a dialogue about our
fundamental rights, thereby forcing the Justices to take a fresh look at their own judgments. Kind
of like Lopez-Ryan.
City of Boerne v. Flores (US 1997) Kennedy 6-3
In Employment Division v. Smith, the Court held 5-4 that generally applicable legislation does
not offend the Free Exercise clause. In response, Congress passed the Religious Freedom
Restoration Act of 1993 (RFRA), adopting the dissent’s view, which prohibited government
from substantially burdening a person’s free exercise of religion unless (1) there is a compelling
government interest and (2) the action is the least restrictive means of furthering that interest.
The Court held the Act to be unconstitutional.
8.Congress’s power to “enforce” under the 14th Amendment (due process incorporates 1st
Amendment) is remedial, and does not extend to substantive determinations of what
constitutes a constitutional violation.
(d) Legislation which alters the meaning of the Free Exercise clause cannot be said to be
enforcing the Clause.
(e) Congress does not enforce a right by changing what the right is.
(f) If this were not true, Congress would no longer be enforcing in any meaningful sense the
provisions of the 14th Amendment.
9. The 14th Amendment’s history confirms the remedial, rather than substantive, nature of the
Enforcement clause.
(d) Bingham Amendment’s “necessary and proper” instead of “enforce” rejected as too broad.
(e) Rep. Garfield resurrected this rejection in Ku Klux Klan Act debates.
(f) The Bingham Amendment’s grant to Congress of power to interpret the Constitution
violated separation of powers principles since the 1st 8 Amendments are self-executing,
prohibitions on government actions, which the Court has power to interpret.
10. The 14th Amendment’s remedial nature is confirmed in the case law. Civil Rights Cases,
South Carolina v. Katzenbach.
11. Any language in Katzenbach v. Morgan that could be interpreted as acknowledging a
congressional power to enact legislation that expands §1 is not the best interpretation. Such
an interpretation there is no limit on congressional power and allows shifting legislative
majorities to change the Constitution and effectively circumvent the Article V amendment
procedure.
12. While preventive rules are sometimes appropriate remedial measures, there must be a
congruence between the means used and the ends to be achieved. The appropriateness of
remedial measures must be considered in light of the evil presented.
13. The RFRA is not as strong a case for preventive measures as the Voting Rights Act.
(d) RFRA’s legislative record lacks examples of modern instances of generally applicable
laws passed because of religious bigotry.
(e) There have been no episodes of persecution in the past 40 years.
(f) Overbroad as compared to South Caroline v. Katzenbach.
3) Confined to certain regions of country.
4) Coverage terminated at the behest of states if the danger has subsisted after 5
preceding years.
14. RFRA is not designed to identify and counteract state laws likely to be unconstitutional. It
appears to attempt a substantive change in constitutional protections instead.
Dissent (O’Connor, Breyer, and Souter)
All three conceded that Congress can’t expand or contract the scope of constitutional
guarantees. These justices dissented only because they disagreed with the Smith decision, and
therefore didn’t believe that Congress was in fact modifying the scope of the free exercise
clause from what they thought the scope should be.
 The Boerne Court completely ignores the possibility of interpretive deference.
 Since the RFRA is overbroad, the Court believes it is not a prophylactic remedial device. If it
were a remedial device, it would be more narrowly tailored, and apply in certain areas (i.e. voting
rights act). This statute is nationwide. Indeed, the statute may just look too much like an exercise
of substantive authority.
 The difference between Boerne and narrow version of Katzenbach is that the Court reviews
valid ends and means to achieve that end. In this case, the Court says it is an unacceptable means
to achieve the end.
 One-Way Ratchet Problem. Building on the Harlan dissent in Katzenbach, many criticized the
majority’s footnote 10 as being widely incoherent. Some rights are zero sum, i.e. affirmative
action (do we enhance minority rights or dilute rights of the majority?). After Boerne, the one
way ratcher problem is not that important any more. Congress just enforces remedies for
judicially declared violations. The one-way ratchet issue is not a problem unless Congress has
interpretive or substantive power.
b. Remedial Interpretations.
4. Complex remedies—On this view, Congress may provide remedies for violations of rights
that courts have found or would themselves find protected by the Constitution. This may do two
things: (1) Authorize Congress to confer jurisdiction on the federal courts to enforce §1’s
guarantees; (2) Authorize Congress to create remedies that courts would have difficult in
developing on their own in the ordinary course of case-by-case adjudication.
South Carolina v. Katzenbach (US 1966)
After an extensive investigation into racial discrimination in voting practices, Congress
enacted the Voting Rights Act of 1965. The AG and Census Director were given
unreviewable authority, the first to determine that a literary test or device has been used in a
state or political subdivision, the second to determine that less than 50% of its voting residents
were registered to vote or had voted. Once those findings were made, the use of tests or
devices was suspended. In addition, the state could not adopt any new voting standards or
procedures without federal approval. If the “preclearance” resulted in a conclusion that the
changes had the purpose of or the effect of discriminating on the basis of race, the changes
could not be implemented without federal court approval. The Court upheld the Act’s
provisions as constitutional.
5. The Court construed Congress’s power to enforce the 15th Amendment broadly (cases do
not distinguish 14th). It held that “any rational means” could be used to enforce the ban on
racial discrimination in voting.
6. Congress has acted based on a factual record showing the 15th Amendment has clearly
been violated. Evidence was presented to Congress showing that all areas of racial
discrimination share the same two characteristics.
7. Congress is better than Courts in dealing with complex remedies due to the circumscribed
nature of judicial power to case-by-case determinations.
8. Thus, Congress’s enforcement power permits it to outlaw practices which the Court would
not on its own find to violate §1 of the 15th Amendment, as long as these practices are
reasonably closely related to practices that would violate §1.
5.Preventive Remedies—Congress has the power to forestall the occurrence of acts that would
violate rights that the courts have found or would find protected by the Constitution.
City of Rome v. United States (US 1980) Marshall
The City challenges Voting Rights Act “preclearance” provisions on the basis that the 15th
Amendment prohibits only purposeful discrimination, not discriminatory effects. The AG had
found that the city’s changes had impermissible effects, but not purpose. The Court upheld
the Act’s provisions as constitutional. The Court said that Congress could rationally have
concluded that, because electoral changes by jurisdictions with a demonstrable history of
intentional racial discrimination in voting create the risk of purposeful discrimination, it was
proper to prohibit the changes that have a discriminatory effect. (The risk is that Congress and
courts won’t be able to accurately determine in every instance whether a change has a
discriminatory purpose.)
Dissent (Rehnquist, Stewart)
Since the City established that it had no discriminatory purpose, the city would not violate the
Constitution in adopting its new rules, and that Congress therefore lacked power to remedy a
nonexistent violation by requiring preclearance of the changes. In addition, a preventive
remedy is constitutional only if the Court agreed that the risk of a substantive violation was
substantial.
6.Remedies for Arguable Violations—Under this view, Congress may provide remedies for
violations of rights that arguably are protected by the Constitution, that is, where there are good
grounds for thinking that, given what the courts have said about a problem, the courts might find
a constitutional violation.
Choper (1982)
Congress is free to invalidate government actions that the Court has already upheld or might
otherwise uphold in the future. But this would permit Congress to “expand” on judicial
conceptions in those very limited situations where Congress, with its sprecial competence, has
appraised the relevant factors and concluded that the law (already declared vulnerable by the
judiciary) is not justified by the required state interest—a decision which differs from that
which the Court, with its more limited capabilities, either has already reached or would
otherwise make when the issue was presented to it.
EEOC v. Wyoming (US 1983)
The Court held that Congress had the power under the Commerce clause to require that states
follow federal standards prohibiting age discrimination in employment. It did not decide
whether the prohibition “could also be upheld under §5.” Chief Justice Burger’s dissent,
joined by 3 others, held that §5 did not permit Congressional regulation here. Congress may
only act where a violation lurks. In this case, the judiciary had held that there is no rights
violation and Congress has made no finding that the abrogated state law infringed on protected
rights nor did it use its legislative competence to abrogate the state law.
6. Broad Remedial Powers—Nationwide Suspension of Tests
Oregon v. Mitchell (US 1970)
In 1970, Congress amended the Voting Rights Act to prohibit literacy tests nationwide and to
prohibit denying the vote to 18 year olds. The Court upheld the nationwide ban on literacy
tests under a remedial theory. By a 5-4 vote, the Court also upheld the 18 year old vote
provision as it applied to federal elections. Four justices accepted a Katzenbach rationale.
Justice Black upheld that statute under Art. I, §4, giving power the right to make regulations
regarding voter qualifications for federal elections. Furthermore, the Court held 5-4 that the
18 voting age provision was unconstitutional as applied to states. Justice Black said
Katzenbach should be limited to racial discrimination and here the states have power.
The Four(Harlan, Burger, Stewart, and Blackmun)
The dissent rejected the broad remedial and substantive interpretations of Katzenbach, and
would have held the statute unconstitutional as to both federal and state elections. Adopting
the first remedial interpretation, they concluded there was no antecedent constitutional
violation. Furthermore, since state legislature also have similar political accountability and
factfinding capabilities, there was no reason for Congress to interpret, given the fact that the
framers left it to the states.
Dissent (Brennan, White, Marshall)
Expressed doubt about the constitutionality of state statutes denying the vote to 18 year olds
and found reasonable Congress’s determination that such denials failed to promote a
compelling state interest. The opinion emphasize Congress’s superior factfinding ability.
7.Congressional Power to Regulate “Private” Action for Civil Rights Purposes
d.The 13th Amendment
Jones v. Alfred H. Mayer Co. (US 1968)
A federal statute prohibited housing and real estate discrimination. Mayer, a developer of a
large suburban housing complex, refused to sell a home to a group of people because one of
them was black. The Court held the statute to be a valid exercise of power under the 13th
Amendment. The 13th Amendment’s “enforcement” provision clother Congress with the
power to pass all laws necessary and proper for abolishing all badges and incidents of slavery
in the U.S. When racial discrimination herds men into ghettos and makes their abilities to but
property turn on the color of their skin, then it is a relic of slavery.
Concurrence (Douglas)
The state action doctrine is satisfied because Mayer’s actions amount to zoning.
e. The 14th Amendment
The “state action” doctrine (no state shall dent equal protection…) means that for the 14th
Amendment to be implicated (and therefore for Congress to have power to enforce), there must
be either a sufficient degree of state involvement with the action or a failure by the state to act in
circumstances where the Constitution affirmatively requires action.
United States v. Guest (US 1966)
A federal statute prohibits conspiracies to deprive citizens of their rights protected by the
Constitution. Defendants were charged with violating Penn’s rights. The Court sustained the
indictment, finding that the allegation that Ds had caused the arrests of African-Americans by
making false reports of criminal activity to police officers established sufficient state
involvement.
f. Statutory Interpretation Problems
Modern civil rights statutes cover many aspects of the acts also covered by the Reconstruction
statutes under the Court’s interpretations. The statutes usually refer broadly to rights secured by
the Constitution, which may cause problems.
Screws v. United States (US 1945)
The Court held that a conviction under the criminal statute required a defendant to have a
purpose to deprive a person of a specific constitutional right.
Harlow v. Fitzgerald (US 1982)
The Court held that officials could be held liable under the civil statute only if they violated
clearly established rights of which a reasonable person should have known.
XII. Federal Preemption
By virtue of the Supremacy clause, a federal statute trumps a state law or statute or common law
rule that conflicts with it. In essence, this is a question of statutory interpretation.
(3) Express—The federal statute expressly states that it is preempting state law.
(4) Implied—There must be clear congressional intent to preempt; however, it can be implied.
There are two types of implied preemption.
(c) Conflict Preemption.
3) Actual Conflict—There is a direct conflict between state and federal law.
4) Conflict of Purposes—Federal and state law working at cross-purposes. For example,
a federal statute creates a uniform bankruptcy law, where a state has special rule.
(d) Field Preemption. The federal government has occupied some subject matter for itself.
3) Comprehensive Scheme—The federal statute are so pervasive that the states have to
stay out of it, i.e. nuclear power is pervasively regulated so state tort actions against
nuclear power plants are preempted.
4) Dominant Federal Interest—Immigration.
XIII. The Dormant Commerce Clause
Since the early years of constitutional adjudication, the Supreme Court has asserted the authority to
invalidate state and local laws that the Court finds to interfere improperly with interstate and foreign
commerce based on a negative interpretation of the Commerce clause.
b. The Classical View
From its earliest days, the Supreme Court has given great weight to the purposes behind the
Commerce clause: the creation and nurturing of a common market among the states and the
abolition of trade barriers. The failures of the Articles of Confederation showed the vices of
protectionism, which creates economic balkanization. In addition, protectionism also impaired the
development of a sense of national unity.
 At the Constitutional Convention, Madison proposed that Congress have a power to veto state
laws, but it was rejected based on preemption rationale; this may suggest nothing in case of
congressional silence.
Gibbons v. Ogden (US 1824) Marshall
Marshall found “great force” in Justice Johnson’s concurrence, which stated that Congress had the
exclusive power to regulate interstate commerce. Marshall, however, found a conflict with NY
law; thus, he never decided the effect of congressional silence on state’s regulatory powers.
 Some point out that the acceptability of exclusive power depends on the scope one gives to the
affirmative grant of commerce power to Congress.
Some also point out that Art. I, §10 expressly disables states from certain activities that are
elsewhere committed to Congress. Thus, someone like Thomas or Scalia or Bork, might argue that
the fact that “commerce” is not included means that states have some commerce power.
Congressional Inertia—There may be some situations where Congress won’t act. For example, if
there is a product unique to one state, and every state in the nation prohibits importation of that
product, the state would be left without ability to get Congress to act to protect it.
Representation—Reinforcement
Substantive Preference for National Free Market—Based on AOC, you could read this into the
commerce clause. Thus, the dormant commerce clause advances intent of the framers. However,
Vermeule is deeply troubled by the fact that you wouldn’t read a substantive preference for freedom
of information into the Post Office clause. However, some argue that the dormant commerce
clause’s success is its own justification. However, Vermeule thinks the problem is that we don’t
know what the world would have looked like w/o it. Perhaps, Congress would have evolved some
institution to do the same function.
Difficulty with the breadth of the “exclusive power” argument led the Court to develop a number of
doctrines designed to limit it.
1. Purpose
In Gibbons, Justice Johnson required the Court to distinguish between statutes designed to serve
commercial goals and those designed to serve police power ones; determining the legislature’s
purpose in light of the impact of its actions may be quite difficult.
Wilson v. Black Bird Creek Marsh Co. (US 1829) Marshall
A Delaware statute authorized the company to erect a dam on a stream deep enough to be used by
boats in interstate commerce. The dam helped dry up a marsh in the area. The Court held that the
statute did not violate the Commerce clause. First, there was no conflict with federal law.
Second, DE was not acting for the purpose of regulating commerce. Marshall said, “The value of
the property on the banks of the creek must be enhanced by the dam, and the health of the
inhabitants probably improved. Measures calculated to produce those objects, provided they do
not come into collision with the powers of the general government, are undoubtedly within those
reserved to the states. Finally, an important factor may have been the absence of discrimination
against interstate commerce, i.e. both interstate and intrastate vessels were equally barred.
2. Direct/Indirect—Related to Cooley doctrine.
DiSanto v. Pennsylvania (US 1927)
A state licensing statute designed to curb immigrant exploitation regulated those wishing to sell
tickets for transportation to or from foreign countries. The Court held that Congress has complete
and paramount authority to regulate foreign commerce and to protect the public against frauds.
Furthermore, a statute which by its necessary operation directly interferes with or burdens foreign
commerce is a prohibited regulation and invalid, regardless of the purpose with which it was
passed. Such legislation cannot be sustained as an exertion of the police power of the state to
prevent possible fraud.
Dissent (Stone)
The direct/indirect test is too mechanical, too uncertain in its application, and too remote from
actualities to be of value. He called the terms labeled to describe a result rather than a trustworthy
formula.
 The Court did not seem bothered by the fact that the exclusive power position led to a regime in
which economic activty was unregulated. The states could not act because they lacked power, and
Congress did not act because it had other things to do.
 The directness test is rarely used in modern times.
Brown-Forman Distillers Corp. v. New York State Liquor Authority (US 1986)
NY’s complex regulatory scheme for liquor pricing in effect prohibited distillers from lowering
their prices in other states once they set prices for NY. The Court said that this prohibition
regulates out-of-state transaction in violation of the Commerce clause. Forcing a merchant to
seek regulatory approval in one state before undertaking a transaction in another directly regulates
interstate commerce.
3. Inherently Local/National
Cooley v. Board of Port Wardens (US 1851)
An 1803 PA statute required all ships entering or leaving the port of Philadelphia to use a local
pilot or pay a fine into a fund to support retired pilots and their dependents. The Court, upholding
the statute, agreed that the regulation of pilots was a regulation of interstate commerce, even
though the pilots stayed with the ships for only brief periods of time. The Court said national
legislation is required when (1) one uniform system is necessary; or (2) the subject is inherently
national. The states could regulate local matters. Since an old federal statute, reserved pilot
regulation to the states, this was a manifest of Congress’s understanding that the nature of the
“subject” is local. However, note, if the subject matter was local, Congress did not have the
power to act; if it was national, Congress could not regrant the power to regulate back to the
states.
 Some suggest that it is hard to define the subject: “piloting” or “retirement systems.”
4. Slavery
The South viewed “exclusive federal power” to regulate commerce theories with horror because it
threatened the existence of slavery. Thus, after the Civil War, the doctrinal tensions became less
important as the slavery issue disappeared.
b. The Modern View
The modern dormant commerce clause doctrine rest of three theories.
(4) A purely political theory—Some state statutes are incompatible with the ideal of a unified
nation. If the statute says expressly that local interests will be treated differently from out-ofstate interests, it signals clearly that state’s indifference to its national obligations.
(5) A purely economic theory—Protectionist legislation, and some other laws, interfere with the
efficient disposition of resources throughout the country, which decreases national economic
performance.
(6) A mixed political and economic theory—Justice Stone said that when the regulation is of such
a character that its burden falls principally on those without the state, legislative action is not
likely to be subjected to those political constraints which are normally exerted on legislation
where it adversely effects some interests within the state. Thus, protectional legislation and
some other laws result from a distorted political process.
Preemption and Consent
Leisy v. Hardin (US 1890) Chief Justice Fuller
In 1827, the Court held that states could not exercise their power to tax items of interstate
commerce so long as the items remained in their original packages. In 1873, Iowa passed a
statute prohibiting the sale of beer. The Leisys brewed beer in Illinois and shipped it to Iowa,
where they sought to sell it in the original kegs. Town Marshall Hardin seized the kegs. The
Court held that the original package doctrine barred Iowa from regulating the sale of beer in
original kegs. Congress’s power to regulate interstate commerce is plenary and exclusive.
After restating the Cooley test, the Court held, so far as the power to regulate commerce is
exclusive, the states cannot exercise power without the assent of Congress, and in the absence of
legislation, it is left for the courts to determine when state action does or does not amount to
such exercise, i.e. what is or is not regulation of such commerce. In this case, IA’s statute
inhibited an imported commodity and was therefore unconstitutional. Congress, however, may
remove the restriction upon the state.
 A few months later, Congress passed the Wilson Act, under pressure from supporters of the
prohibition, which stated that liquor imported into a state shall be subject to local laws and not be
exempt as a result of the original package doctrine.
In re Rahrer (US 1891) Chief justice Fuller
The Court upheld the Wilson Act as within Congress’s exclusive power to regulate interstate
commerce. Thus, Rahrer’s conviction for selling liquor in its original package contrary to
Kansas law was constitutional. Although Fuller agreed that Congress could not delegate its own
powers (nondelegation) or enlarge those of a state, the Constitution transferred authority to
regulate from the states to Congress; it did not give an affirmative guaranty that any activity
would remain unregulated.
 Taken together, the doctrines of preemption and consent mean that a judicial decision on a
commerce clause challenge need not be final.
(3) If the challenge is rejected, those opposing state regulation may secure federal legislation
preempting it.
(4) If the challenge is sustained, those supporting state regulation may secure federal legislation
permitting it.
Thus, some question why a court should bet involved at all. Justice Jackson’s concurrence in
Duckworth states a belief that legislative inertia justifies judicial intervetion. In addition, securing
congressional action is costly. If the costs of mobilizing Congress to act exceed the burdens a
regulation places on interstate commerce, Congress’s failure to act reflects not inertia, but a
rational calculation of the costs and benefits of political action. Judicial intervention might be
justified if it is less expensive that the burdens on interstate commerce and the cost of mobilizing
Congress.
Under the modern view, the fundamental issue in this area is who should bear the burden of
overcoming congressional inertia. There is a substantive preference for free trade and
minimizing costs.
In HP Hood & Sons v. DuMond (1949), Justice Jackson describes the political and economic
benefits of free trade.
(5) Merchants are encouraged to produce by certainty that they will have free access to every
market in the nation, that no home embargoes will block his exports, and no foreign state
will by customs duties or regulations exclude them.
(6) Consumers may look to the free competition from every producing area in the nation to
protect him from exploitation by any.
(7) Articles of Confederation responses: eliminate rivalries that deter the national sense.
(8) Dowling—Free trade reaps the benefit of the theory of comparative advantage through
specialization and exchange. These gains are maximized when the factors of production and
the resulting goods and services are allowed to move freely to locations where the highest
value is put on them.
Obtaining congressional preemption or consent requires interest groups to invest time and effort
in the political process. If the burden of overcoming inertia is placed on the group less likely to
succeed in that effort, it may be discouraged from that investment. If that occurrs, the courts will
have arrived at the outcome that Congress would have, and at a lower cost.
The availability of non-constitutional grounds for decisions may have something to do with
inertia.???
3. PROTECTION AGAINST DISCRIMINATION
Facial Discrimination—The Court will apply strict scrutiny and ask if there is a local purpose and
no neutral means.
State and federal regulations of economic activity impose costs and provide benefits. Costs and
benefits can be spread among various segments of the population in a number of ways.
Wilson’s “The Politics of Regulation” (1980)
Policy proposals, especially those involving economic stakes, can be classified in terms of the
perceived distribution of their costs and benefits.
(5) Majoritarian Politics—Both costs and benefits widely distributed. All or most of society
expects to gain and pay. Little incentive for interest group formation because no small,
definable segment of society can expect to get most of the benefits or absord most of the
burdens. Sherman Antitrust Act and Federal Trade Commission Act.
(6) Interest-Group Politics—Both costs and benefits are narrowly concentrated. Since a
subsidy or regulation will benefit one group at the expense of another, each side has a
strong incentive to organize and exercise political influence. The public does not believe
it will be affected so its voice is weak. Labor legislation.
(7) Client Politics—Benefits are concentrated but costs are widely distributed. Some small,
easily organize group will benefit and thus has powerful incentive to organize and lobby.
Since the costs are distributed at a low per capita rate, the public have little incentive to
organize in opposition. However, watchdog and public interest associations play the
public role. Industry and occupational subsidies.
(8) Entrepreneurial Politics—Benefits are widely distributed but costs are narrowly
concentrated. Policy opponents have strong incentive to organize, but beneficiaries have
weak incentive. Antipollution and autosafety bills imposed on particular segments of
industry. Such legislation requires a skilled entrepeneur, who can mobilize latent public
sentiment, put the opponents on the defensive, and associating the legislation with widely
shared values.
 Cost-Benefit Analysis—The costs of economic regulation are not always paid by those who
receive its benefits. The distribution of costs and benefits across different groups means that the
mere adoption of a regulation need not establish that its benefits to the entire society exceed its
costs. Further, the distribution of costs and benefits across different groups affects the political
forces supporting and opposing adoption or repeal of regulations. Wilson’s “client politics”
indicates one set of conditions below.
Olson’s “The Logic Of Collective Action” (1965)
5. If benefits will be conferred upon a small group, each member can agree to finance lobbying
efforts to secure the legislation on the condition that every other member also contribute.
Each will recover its investment through legislation.
6. If the regulation also imposes costs of a broad group, those who bear the costs will find it
difficult to organize in opposition. The costs imposed on each member of the group are
likely to be smaller than the amount each would have to invest in a successful lobbying
effort.
7. Free Rider Problem—Each member of the broad group may hang back, expecting the others
to engage in lobbying, which, if successful, would benefit the free rider at no cost.
8. Watchdog organizations may reduce this problem.
 Exporting Costs—Regulations may be adopted when the beneficiaries within the jurisdiction
adopting it outweigh in political power those within the jurisdiction who will bear some of its
costs. Total social costs may still exceed total social benefits, but if the local beneficiary can
export enough costs so that local benefits exceed the local costs, the regulation may be adopted.
If the gross state product is then greater, the local beneficiaries may then use the new profits to
subsidize the local cost-bearers, reducing the political opposition to the adoption of the regulation.
 Incidence Analysis—McClure identifies three pervasive determinants of incidence.
(4) Short-term vs. long-tem perspectives—In the short run, a state may be able to export the
costs of regulation by imposing the regulation on an activity where fixed capital investments
(plants and equipment) out-of-state are proportionally more significant than fixed capital instate. However, over time, investors will adjust their activities to account for the regulation.
(5) Market dominance—If the state has a monopoly or near-monopoly on the regulated activity,
the costs of regulation can be shifted to the consumers. If the consumers are largely out-ofstate, the costs will be exported, even if the regulated activity takes place entirely within the
state.
(6) Substitution—Costs can be exported if there are no or few substitutes for the regulated
activity at almost equal prices, and if consumers are largely out-of-state.
City of Philadelphia v. New Jersey (US 1978) Stewart 7-2
A NJ statute prohibits the importation of waste originated or collected outside of the state. The
statute was enacted in response to the use of NJ landfills for disposal of waste from NY and PA
cities. The Court holds the statute to be unconstitutional.
8. The NJ statute has not been preempted by federal legislation. Footnote 4.
(e) There is no clear and manifest Congressional purpose to preempt interstate waste
management by statutory command or implicit legislative design.
(f) To the contrary, a federal statue says waste disposal is a state function.
(g) There is no direct conflict with federal law.
(h) The statute is not incompatible with basic federal objectives.
9. Where simple economic protectionism is effected by state legislation, a virtually per se rule of
invalidity has been erected.
10. Where other legislative objectives are credibly advanced and there is no patent
discrimination against interstate trade, the Court adopts the Pike balancing test.
(d) A statute that regulates evenhandedly to effectuate a legitimate local public interest,
whose effects on interstate commerce are only incidental, will be upheld, unless the
burden imposed on such commerce is clearly excessive in relation to the putative local
benefits.
(e)
(f)
If a legitimate local purpose is found, then the question becomes one of degree.
The extent of the burden that will then be tolerated will depend on two factors.
3) The nature of the local interest involved.
4) Whether the local interest could be promoted as well with a lesser impact on state
activities.
11. The evil of protectionism can reside in legislative means as well as legislative ends. Thus,
the Court does not resolve the dispute about the legislature’s purpose.
12. In this case, NJ plainly discriminated against articles of commerce from other states
without good reason to treat them differently.
(c) The NJ statute imposes on out-of-state commercial interests the full burden of
conserving the state’s remaining landfill space.
(d) NJ is attempting to isolate itself from a problem common to many by erecting a barrier
against the movement of interstate trade.
13. Quarantine laws distinguished.
(c) Quarantine law usually banned the importation of noxious materials (deceased livestock)
which, at the moment of importation, were hazardous.
(d) The NJ statute prohibited waste that endangered health (if at all) only when buried in
landfill sites, by which time there was no valid reason to differentiate between out-ofstate and domestic garbage.
14. The Court seems to suggest that the virtual per se rule of invalidity based on protectionism
applied in the economic regulation area should be extended to non-economic regulations.
Dissent (Rehnquist, Burger)
The quarantine case law supports the NJ statute. There is no reason why NJ may ban the
importation of items whose movement risks contagion, but cannot ban the importation of items
which, although they may be transported into the state without undue hazard, will then simply
pile up in an ever increasing danger to the public’s safety and health. Thus, it is reasonable for
NJ to guard against a worsening of its own waste disposal problem by banning the addition of
out-of-state waste.
 The City of Philadelphia Court may have created pressure for a cycle of retaliation. NJ’s best
strategy is to say no waste from whatever source, other states don’t want to be dumping ground,
which creates a cycle of retaliation.
 There is no reason to believe that a Court will get economic argument correct. However, standard
response is that a facial discrimination rule is just a proxy for externalizing costs on out-of-staters.
Yet, Vermeule believes that there are cases where the proxy does not make sense. The present
model makes sense in the context of “goods,” but may not make sense in the context of “bads” or
“intellectual property.” Thus, a big point is that this may be beyond the capacity of courts to deal
with successfully.
 Representation-Reinforcement—Out of staters are unrepresented in the political process;
therefore, facial discrimination is bad and Court will intervene. McCulloch. However, Vermeule
points out that there is now massive intervention by out-of-state interests. Under the doctrine of
changed circumstances (suspiciously unused in dormant commerce clause context, as opposed to
positive commerce clause), we should take this into account.
Facial/Intentional Discrimination
Maine v. Taylor (US 1986) Blackmun 8-1
A Maine statute prohibited the importation of live baitfish. The Court upheld the statute as
constitutional.
4. Although the statute affirmatively discriminated against interstate transactions, the Court said
it would apply strict scrutiny.
5.Under this test, the Maine statute satisfied both prongs.
(c) Legitimate local purpose.
4) Maine’s population of wild fish might be placed at risk by parasites prevalent in outof-state baitfish, but not common in Maine wild fish.
5) Nonnative species inadvertently included in shipments of live batifish could disturb
Maine’s aquatic ecology to an unpredictable extent by competing with, or preying on,
native species.
6) There was no satisfactory way to inspect imported baitfish for parasites and
commingled species.
(d) Available nondiscriminatory means—The mere abstract possibility of developing an
acceptable testing procedure is not an other available means.
6.Furthermore, the Maine statute did not have a protectionist intent.
(c) The state’s justification was not undermined by the fact that other states may not have
enacted similar bans because Maine’s fish are unique and fragile.
(d) Although fish could swim directly into ME from NH, impediments to direct success
cannot be grounds for preventing a state from using its best efforts to reduce
environmental risk.
Dean Milk Co. v. Madison (US 1951)
A Madison City Council ordinance prohibited the sale of milk in the city unless it had been
bottled at an approved plant within 5 miles of the city. The Court held the ordinance to be
unconstitutional.
6. The avowed purpose of ensuring sanitary bottling conditions was acceptable.
7. However, the practical effect was to prevent the sale in Madison of wholesome milk
produced in Illinois and other parts of Wisconsin. Thus, it plainly discriminates against
interstate commerce.
8. A Court cannot regulate under the police power, if reasonable alternatives are available.
9. In this case, the Court found two such alternatives.
(c) Madison could send its inspectors to Illinois and charge the reasonable costs of
inspection to the importing producers.
(d) Madison could rely on inspections by federal authorities complying with the regulatory
standards in the Madison ordinance.
10. In a footnote, the Court stated that it was irrelevant that Wisconsin milk from outside the
Madison area is subjected to the same proscription as that moving in interstate commerce.
Fort Gratiot Sanitary Landfill Inc. v. Michigan Dept. of Natural Resources (US 1992)
A Michigan statute barred solid waste disposal facilities from accepting solid waste generated
outside the county in which they are located unless the county made an exception through its
comprehensive plan for solid waste disposal. Citing Dean Milk, the Court invalidated the
statute. Note that the statute effectively barred out-of-state waste from disposal anywhere in
the state.
 Retaliation—City of Philadelphia concludes by invoking fears of retaliatory responses by other
states. However, retaliation may increase costs borne by local residents, thus eliminating the
export of costs and reducing the incentive to adopt the regulation. However, retaliation may not
be effective because it inflicts some pure economic losses on the states involved with neither an
economic nor a distributive justification. In addition, retaliation, at least until trade barriers are
lowered, is likely to alter the patterns of investment as resources shift to take account of the costs
imposed by retaliatory regulation in one sector of the economy, but not in the other.
Sporhase v. Nebraska (US 1982)
A Nebraska statute prohibited the withdrawal of ground water from any well within Nebraska
intended for use in another state that fails to grant reciprocal rights to withdraw and transport
ground water to Nebraska. Colorado does not grant reciprocal rights. Owners of contiguous
land on the NB/CO border claimed that the statute unconstitutionally barred them from
transferring ground water from NB to CO. The Supreme Court agreed.
4. After holding that ground water was an article of commerce, the Court found a legitimate
interest in water conservation for health and other reasons.
5. The Court upheld portions of NB’s statutes restricting exportation of ground water unless
exportation was reasonable and not contrary to conservation in part because NB heavily
regulated transfer of ground water from one part of NB to another. (Interstate).
6. The Court found the reciprocity requirement not “narrowly tailored” under strict scrutiny
to serve conservation goals. Citing Cottrell, it noted that the reciprocity requirement could
not be justified as a response to another state’s unreasonable burden on commerce.
Retaliation not permitted because proper remedy is courts.
 Relevance of Conflict—Collins distinguishes between laws that discriminate against interstate
commerce without regard to the laws of any other state and those that burden commerce only
when other states’ laws are taken into account. Only the former, which he calls “independent
discrimination,” ought to be unconstitutional because only they resemble protectionist tariffs
closely enough. Justice O’Connor’s Carbone concurrence disagrees because balkanization results
under the latter, which defeats the purpose of the Commerce clause. Thus, this was a facially
neutral statute with significant effects on interstate commerce.
Bibb v. Navajo Freight Lines (US 1959) Douglas
An Illinois statute required trucks operating in the state to use curved mudguards to prevent
spatter and promote safety. Straight mudflaps were legal in 45 other states; curved muflaps
were illegal in Arkansas and were required in no other state. The Court held the statute to be
unconstitutional because it was impossible to use a single truck whose mudflaps complied with
both Illinois and Arkansas law. Further, the Illinois law seriously interfered with interlining, the
practice of having one carrier bring a trailer to a depot and another take it to its destination
without unloading and reloading. This was the rare case where local safety measures that are
nondiscriminatory place an undue burden on interstate commerce.
Burdensome Effects—Facially Neutral Statutes with Significant Effects on Interstate
Commerce.
A statute which is evenhanded on its face may nevertheless turn out to be disproportionately
burdensome to some or all of out-of-state business. Where this disproportionate impact is truly
accidental, and does not directly derive from the fact that the burdened firms are out-of-staters, the
Court will normally uphold the statute.
Facial Neutrality—Pike balancing test—weigh legitimate local benefits against the burden on
interstate commerc. If may be relevant that there is a less relevant neutral statute. Vermeule does
not believe there are cases that have been struck down because there are less burdensome means.
The Pike balancing test may be an evidentiary proxy for evidence of covert discrimination. Exxon,
however, does not adopt this theory.
Exxon Corp. v. Governor of Maryland (US 1978) Stevens
A Maryland statute provides that a producer or refiner of petroleum products may not operate
any retail service within the state. The law was enacted as a result of evidence that gas stations
operated by producers and refiners had received preferential treatment during the 1973 oil
shortage. Since no gas is produced or refined in Maryland, the rule against vertically-integrated
operations affected out-of-state companies exclusively. Conversely, the vast majority of the
non-integrated retailers, who were not harmed and probably helped by the statute, were in-state
business people. The Court upheld the statute as constitutional.
6. Exxon and other out-of-state integrated oil companies made a three-pronged Commerce
clause attack.
(d) The statute impermissibly discriminated against interstate commerce.
(e) The statute unduly burdened interstate commerce.
(f) As a result of the nationwide nature of oil marketing, only the federal government could
regulate retail gas sales.
7. The Maryland statute does not discriminate against interstate commerce.
(f) Several major interstate marketers of petroleum own and operate their own retail gas
stations. The Act does not affect them because they don’t refine or produce gasoline.
(g) There are no barriers whatsoever against interstate retailers.
4) No prohibition on the flow of interstate goods.
5) No placement of added costs upon them.
6) No distinction between in-state and out-of-state companies in the retail market.
(h) In-state independent dealers will have no competitive advantage over these interstate
retailers.
(i) Thus, the mere fact that entire burden of the statute fell on some out-of-state companies
was insufficient to establish that “interstate commerce” was discriminated against.
(j) Some Exxons may chose to withdraw from the market, but there is no reason to assume
that that supply will not be replaced by other interstate refiners.
8. The Maryland statute does not unduly burden interstate commerce.
(c) The statute might injure the consuming public by the loss of the high volume, low priced
station operated by the independent refiners (shifts to independent retailers), but that is a
question of the statute’s wisdom, unrelated to the burden on interstate commerce.
(d) The Commerce clause protects the interstate market, not interstate firms.
9. The Maryland statute is not preempted.
(c) The Court has only rarely held that the Commerce clause itself preempts an entire field
from state regulation, and then only when a lack of national uniformity would impede
interstate commerce.
(d) Exxon is not complaining about a lack of uniformity, but rather that many or all states
would pass exactly the same sort of divestiture law as Maryland did.
10. Commerce clause view—if the effect of a state regulation is to cause local goods to
constitute a larger share, and goods with an out-of-state source to constitute a smaller share,
of the total sales in the market, the regulation may have a discriminatory effect on interstate
commerce. Footnote 16.
Dissent (Blackmun) (dissenting as to commerce clause issue)
6. A facial neutral statute may discriminate if it has the practical effect of doing so.
7. The Maryland statute has the practical effect of discriminating against a class or
predominantly out-of-state gasoline retailers.
(d) Of the protected class, 99% were operated by local business interests; of the prohibited
class, 95-98% were operated by out-of-state firms.
(e) There will be substantial economic harm to out-of-state firms.
4) The majors will not be able to enhance brand recognition and consumer acceptance
through retail outlets with company-controlled standards.
5) The majors ability to directly monitor consumer preferences and reactions will be
diminished.
6) The majors opportunity for experimentation with retail marketing techniques will be
curtailed.
(f) There is not similar substantial economic hardship on local firms.
2) The statute improves local retailers ability to compete by insulating them from outof-state competition from vertically-integrated producers and refiners.
(d) Maryland passed the Act in response to pleas from local businessmen for protection.
8. After the burden shifts, Maryland does not have a legitimate state interest that cannot be
vindicated by more evenhanded regulation.
(c) Maryland states only a general desire to maintain competition in gasoline retailing.
(d) Although it does not attempt to do so, Maryland could have vindicated its legitimate
interest in competition with more evenhanded regulation.
3) Since the state’s interest in competition is to protect particular competitors—less
efficient local businessmen—from the legal competition of more efficient out-ofstate firms, the interest is illegitimate under the Commerce clause.
4) A legitimate concern of the state could be to limit the economic power of vertical
integration.
9. To the extent that the majority’s footnote 16 suggests that unconstitutional discrimination
does not exist unless there is an effect on the quantity of out-of-state goods entering a state,
this is a too narrow view of the Commerce clause.
10. The majority’s position will foster protectionist discrimination against interstate commerce.
Facially Neutral Statutes with (Merely?) Disproportionate Effects for Commercial or Social
Purposes.
 Obstructing Commerce
Buck v. Kuykendall (US 1925)
Buck, a citizen of Washington, wished to operate an “auto stage” line between Portland and
Seattle. After obtaining a license from Oregon, he applied to Washington authorities for a
certificate that would allow him to begin operations. The certificate was denied on the ground
that the route was already adequately served by railroads and four other auto stage lines. The
Court held the denial violated the Commerce clause. The purpose was the prohibition of
competition. The effect was not merely to burden interstate commerce, but to obstruct it. The
Court also noted that the prohibition defeated the purpose of Congress in legislation providing
federal aid for highway construction.
 The Problem of Sales and Compensating Use Taxes
Baldwin v. G.A.F. Seelig, Inc. (US 1935) Cardozo
The Court struck down a NY statute requiring that milk purchased from out-of-state (Vermont)
producers could not be sold in New York unless the out-of-state producers had received at least
the minimum price required by NY’s price maintenance statute for sale of milk produced in
New York.
Henneford v. Silas Mason Co. (US 1937) Cardozo
Washington adopted a 2% sales and use tax. To avoid losing business to retailers in other states,
it also adopted a 2% compensating use tax, levied on the price of goods purchased elsewhere for
the privilege of using them in Washington. The Court upheld the statutes as constitutional
because it was designed to promote equality.
 Baldwin distinguished—The NY was attempting to project its legislation within the
borders of another state by regulating the price to be paid in that state for milk acquired
there. (Regulation?) The WA statute allows out-of-state sellers to ship goods in at such
amounts and prices as they please, but the goods when used in WA after the transit is
completed, will share an equal burden with goods that have been purchased there. (Tax?)
Armco, Inc. v. Hardesty (US 1984)
A WV gross receipts tax on wholesaling was 27%; however, local manufacturers were exempt
from the tax, but did have to pay a 88% tax on manufacturing and bore a higher tax burden in
dollar terms. The Court struck down the WV statute as unconstitutional because of the local
manufacturer exemption. The Court held that the WV tax system could not be justified as an
integrated system in which some tax burdens were compensated for by exemptions from other
taxes. The Court would examine only taxes placed on “substantially equivalent” activities;
manufacturing and wholesaling were not substantially equivalent activities.
Tyler Pipe Industries, Inc. v. Washington State Department of Revenue (US 1987)
The Court relied on Armco to invalidate a similar system. Also, the Court distinguished
Henneford by saying that it upheld the tax there because, in the context of overall tax structure,
the burden it placed on goods purchased out-of-state was identical to that placed on an
equivalent purchase within the state. The identical impact was no fortuity, it was guaranteed by
the statutory exemption from the use tax for goods on which a sales tax had already been paid.
Dissent (Scalia) Textual Argument against Dormant Commerce Clause
6. Rank discrimination against states is regulated by the Privilege and Immunities clause.
7. The Commerce clause does not contemplate federal exclusivity.
(d) There is no such suggestion in the plain language.
(e) There is no correlative denial to state commerce power as there is with the power to coin
money and make treaties in Art. I, §10.
(f) Since interstate commerce now embraces loansharking (Perez) and wheat grown for
home consumption (Wickard), it would be more difficult to imagine what would survive
an exclusive commerce clause than to imagine what would be precluded.
8. The Court can’t distinguish, as Cooley attempted to do, between subjects of the Commerce
clause because the Constitution treats commerce as a unitary subject.
9. The Court can’t distinguish preempting state laws intended to regulate commerce and those
relating to the general welfare because the distinction is metaphysical, not useful as a
practical technique for marking out the powers of separate sovereigns.
10. The argument that the dormant commerce clause is not applying a Constitutional command,
but merely interpreting Congress’s will, whose silence is meant to prohibit regulation is
implausible. Congress’s silence is just that—silence.
Oregon Waste Systems v. Department of Environmental Quality (US 1994) Thomas
Oregon charged a fee of $0.85 per ton on the disposal of waste generated in Oregon and a fee of
$2.25 on the disposal of waste in Oregon of waste generated outside the state. The Court held
that the differential was discriminatory and trigger the virtual per se rule of invalidity. Treating
the differential as a compensatory use tax, the Court clarified the doctrine by stressing the fact
that a tax or fee is “compensatory” is merely a specific way of justifying a facially
discriminatory tax. Compensating use taxes must be imposed on “substantially equivalent
events.” This implied that the state could not justify a specific tax like the one at issue here by
pointing to general taxation, such as income taxes, that in-state generators pay, but out-of-state
generators do not. Note that compensating use taxes are not facially neutral. The Court treated
Henneford as still good law because sales and use are substantially equivalent taxable events.
Dissent (Rehnquist)
Out-of-state commerce gained a competitive advantage from the Court’s rule that it will not
consider whether general taxes in Oregon offset the difference between the higher fees charged
those who dispose of out-of-state waste and those who dispose of in-state waste. Only Oregon
businesses will have to pay the nondisposal fees associated with solid waste: landfill siting and
clean-up, environmental accident insurance, and transportation improvement costs.
 Gerrymandering
Hunt v. Washington State Apple Advertising Commission (US 1977) Chief Justice Burger
A NC statute required all closed containers of apples sold or shipped into the state to bear no
grade other than the applicable U.S. grade or standard. A WA statute, the nation’s largest apple
producing state, required that all apples be tested and graded under a system of grades superior
to the standards adopted by the DOA. The Court struck down the NC statute as
unconstitutional.
8. In the absence of federal legislation, a state may impose some burden on interstate
commerce, so long as there is no conflict with the Commerce clause’s requirement of a
national common market.
9. The state interest is particularly strong when the state acts to protect its citizenry in matters
pertaining to foodstuffs.
10. The NC statute, however, not only burdens interstate sales of WA apples, but also
discriminates against them.
(d) The NC statute raises the cost of doing business in NC for Washington apple growers
and dealers, while leaving those of their NC counterparts unaffected.
(e) The NC statute has the effect of stripping away from the WA apple industry the
competitive and economic advantages it has earned for itself through its expensive
inspection and grading system. Since the statute had no similar effect on the NC
industry, it operated to its benefit.
(f) Downgrading—By prohibitng Washington apple growers and dealers from marketing
apples under their state’s grades, the statute has the leveling effect which insidiously
operates to the advantage of local apple producers.
11. Once a Court finds discrimination, the burden shifts to the state to justify the statute in terms
of the local benefits flowing from the statute and the unavailability of nondiscriminatory
alternatives adequate to protect local interests.
12. The NC statute is not justified based on local benefits resulting from protecting citizens from
confusion and deception in the marketing of foodstuffs.
(d) The statute permits the marketing of closed apple containers under no grades at all.
(e) Although the statute is a consumer protection measure, it directs it primary efforts not at
the consuming public at large, but at apple wholesalers and brokers who are the principal
purchasers of closed apple containers (who are most knowledgeable).
(f) Since WA grades are in all cases equal or superior to their USDA counterparts, they
could only deceive or confuse a consumer to his benefit.
13. The NC statute fails to recognize nondiscriminatory alternatives, such as NC permitting outof-state growers to utilize state grades only if they also marked their shipments with the
applicable USDA label. If other states could not make USDA grade, NC could ban.
14. Note— The Court notes that, despite facial neutrality, there may be some indication of
discriminatory intent. First, Agriculture Commissioner’s statement that local apple
producers were mainly responsible for passage of the legislation. Yet, the Court did not find
a discriminatory inference integral to its decision.
 The Court can’t say that they are using Pike as an evidentiary proxy openly. If it is really
balancing between benefit and burden, it is not clear what numbers go on the scale. Vermeule
suggests that balancing local benefit against burden on interstate commerce is a comparison of
two different things, i.e. Scalia—like comparing whether a given line is longer than a given rock
is heavy. Balancing costs at a statewide level is difficult. However, some others suggest that
this is no different than any other balancing test, i.e. nuisance cases.
 Timing Dependence—Whether we see discrimination depends on time frame. If MN enacts
statutory preference for paper over plastic, and then paper industry moves to MN, it may be no
less legitimate discrimination than when WA state government gives apple growers a market
benefit.
 Some commentators suggest we do away with facially neutral commerce clause. However,
Vermeule says doing away with it leaves many cases open where discrimination is not overt.
 Market Participant Doctrine—These rules do not apply when states are acting as market
participants. If a state owns a company that sells something, the state owned company can
charge different prices to out-of-staters and in-staters, i.e. state colleges.
Exxon Corp. v. Maryland (US 1978) Blackmun Dissent
Justice Blackmun argues that the case is indistinguishable from Hunt; both statutes
discriminated against only a segment of out-of-state interests.
 The NC statute’s criteria does not identify in such terms the in-state and out-of-state sources of
the problem it purports to address. However, its effect is to treat Washington producers
differently. Should a court infer a discriminatory or anticommercial purpose from neutral criteria
that have the effect of distinguishing such interests?
Minnesota v. Clover Leaf Creamery Co. (US 1981)
A MN statute prohibited the sale of milk in plastic disposable containers, but allowed its sale in
paper nonreturnable cartons. The MN state court found that the statute’s actual basis was to
promote local dairy and pulpwood interests at the expense of other segments of the dairy and
plastic industry. Also, it found that a plastic bottle ban would not promote conservation or save
energy because paper containers cause more harm to the environment. The Court upheld the
statute as constitutional because it promoted conservation, eased waste disposal problems, and
conserved energy.
4. The MN statute regulates evenhandedly by prohibiting plastic containers without regard to
whether the milk, containers, or sellers are from out-of-state.
5. The MN statute does not necessarily benefit MN firms or burden out-of-state firms.
(e) Most of the litigants are MN firms.
(f) Pulpwood producers are the only MN industry likely to benefit.
(g) Plastics will continue to be used in the production of plastic pouches, plastic returnable
bottles, and paperboard.
(h) Out-of-state pulpwood producers will also benefit.
6. In Exxon, the Court stressed that the Commerce clause protects the interstate market, not
interstate firms. A nondiscriminatory regulation serving substantial state purposes is not
discriminatory because it causes some business to shift from predominately out-of-state
industry to predominantly in-state industry.
XIV. States’ Rights: Limitations on Federal Power
HYPO: Suppose Congress passes statute requiring California to move its state capital from
Sacramento to San Francisco under the commerce clause because having the state capital in a
particular place affects travel and pattern of business flow. Is there more to be concerned about?
(4) 11th Amendment limitations.
(5) 10th Amendment limitations.
(6) Art. IV, §3.
We protect state sovereignty in three ways.
(4) Nondiscrimination— This is a good way for judges to protect the Constitution’s tacit
(c) Between states. NY v. U.S.
(d) Among states. Coyle. Katzenbach (Court said there is no general requirement that
Congress may not discriminate against the states, which means that Coyle is limited to
its facts. However, this case might only apply to 15th Amendment and might say that
there must be a rational basis for discriminating amongst the states.)
(5) Traditional state functions. Ursery. Garcia.
(6) Commandeering.
(d) Courts-yes. Testa.
(e) Legislatures-no. NY.
(f) Executive-no. Printz.
c. Traditional Government Functions
For nearly 40 years after Carter Coal, the Supreme Court did not invalidate a single federal statute
on the grounds that it violated state or local government sovereignty, which led to a popular belief
that the 10th Amendment was completely dead as a check upon federal power under the
Commerce clause. This remains true today. However, from 1976-85, the Supreme Court treated
the 10th Amendment as a limit on federal power, barring anything that would impair a state’s
ability to carry out “traditional functions.”
National League of Cities v. Ursery (US 1976) 5-4
The Court held that the Commerce clause did not empower Congress to enforce the Fair Labor
Standards Act (FLSA)’s minimum wage and overtime provisions against the states in areas of
traditional government functions. The Court agreed that the wages and hours of state employees
affected interstate commerce, but found the FLSA’s application to state and local employees
unconstitutional.
Over the next decade, the Court struggled to identify the contours of the protection afforded state
and local governments by National League of Cities.
Hodel v. Virginia Surface Mining Association (US 1981)
The Court upheld the constitutionality of a federal statute requiring strip-mine operators to
return the area to approximate original contour, which substantially increased the cost of
operating certain strip mines. The Court stated four conditions that precludes a federal statute
from invading on state’s rights.
(5) The federal statute at issue must regulate the states as states.
(6) The statute must address matters that are indisputably attributes of state sovereignty.
(7) State compliance with the federal obligation must directly impair the state’s ability to
structure integral operations in areas of traditional government functions.
(8) The relation of federal and state interests must not be such that the nature of the federal
interest justifies state submission.
The Court held that the federal statute did not regulate the states as states.
United Transportation Union v. Long Island Railroad (US 1982)
The Court upheld the constitutionality of applying the Railway Labor Act’s collective
bargaining provisions to the state-owned Long Island Railroad. The state had operated the line
for 13 years before challenging the Act’s applicability. The Court said that the National League
of Cities test was not meant to impose a static historical view of state functions.
Federal Energy Regulatory Commission v. Mississippi (US 1982)
The Court upheld certain provisions of the Public Utilities Regulatory Policies Act (PURPA) of
1978, requiring state utilities commissions to consider a specified list of approached to
structuring rates and to consider adopting standards regarding rate disclosure and the recovery
of advertising costs in rates. The commissions are required to consider these standards at public
hearings. The Court held that the state commissions could be required to enforce federal
standards. Congress, having the power to preempt state regulation entirely, could adopt the less
intrusive scheme.
EEOC v. Wyoming (US 1983)
The Court upheld the application of the Age Discrimination in Employment Act against state
employees because the Act did not impair states’ abilities to structure their integral operations to
a degree making the Act unconstitutional. The Act allows employees to be discharged for cause
and authorizes mandatory retirement policies that are shown to be bona fide occupational
qualifications. The costs of eliminating mandatory retirement policies were said to be neither
direct nor obvious.
 Garcia v. San Antonio Metropolitan Transit Authority (1985) overruled National League of
Cities. Garcia also signaled start of movement to look for structural limits in judicial enforcement
of federalism. Lopez. Printz.
Garcia v. San Antonio Metropolitan Transit Authority (US 1985) Blackmun
The Fair Labor Standards Act ordered states to comply with federal minimum wage laws.
Overruling National League of Cities, the Court upheld the Act as applied to states. Thus, if a
regulation would be valid as applied to a private party, it is also valid as to states. The fact that
it is a state being regulated as no significance.
11. The National League of Cities holding is unworkable.
(e) The Court’s case law has not been able to identify an intelligible principle regarding the
scope of “traditional government functions.”
(f) In Transportation Union, the Court held that the inquiry into whether a particular
function was “traditional” was merely a means of determining whether the federal
statute unduly handicaps “basic state prerogatives.” However, the Court did not offer an
explanation of what is a “basic state prorogative.”
(g) In tax cases, as represented by New York v. United States, the Court unanimously
concluded that a “government”/”proprietary” function distinction employed for 40 years
was untenable and therefore must be abandoned.
(h) Neither of the alternative standards appear manageable.
3) In Transportation Union, the Court properly rejected the possibility of making
immunity turn on a purely historical standard of “tradition.”
c) A historical standard prevents a court from accommodating changes in the
historical functions of states.
d) A historical standard would require a court to make arbitrary judgments over the
historical continuum as to how longstanding a pattern of state involvement had to
be for federal authority to be defeated.
4) A non-historical standard will also be unworkable.
c) The Court has rejected a “uniquely government” function test in government tort
liability because it was unworkable.
d) A “necessary” test (whether services would be provided inadequately or not at all
unless the government provided them) is no better.
(4) The “necessary” category will involve only a negligible set of services.
(5) Since states can hire private firms to provide the service or provide subsidies
to existing suppliers, the fact that an unregulated market produces less of
some service that a state deems desirable does not mean that the state itself
must provide the service.
(6) Courts are not equipped to make determinations about the workings of the
economic markets.
12. The National League of Cities is inconsistent with federalism principles.
(c) Federalism contemplates that within the realm of authority left open to them under the
Constitution, the states must be equally free to engage in activity that their citizens
choose for the common weal, no matter how unorthodoz or unnecessary anyone else—
including the judiciary—deems state involvement to be.
(d) Any state immunity rule focusing on “traditional,” “integral,” or “necessary” nature of
government functions invited an unelected federal judiciary to make decisions about
which state policies it favors.
13. State sovereignty is limited by the Constitution itself.
(e) Art. I, §10 withdraws sovereign power from the states.
(f) Art. I, §8 (in conjunction with Art. VI’s Supremacy Clause) restricts state sovereignty.
(g) Art. III restricts state sovereignty for final review of questions of federal law. Martin.
(h) The 14th Amendment’s incorporation of most of the Bill of Rights limits state
sovereignty.
14. Apart from the limitation on federal authority inherent in the delegated nature of Congress’s
Art. I powers, the framers intended to ensure the role of the states in the federal system by
virtue of the structure of the federal government itself.
15. Thus, state sovereignty interests are more properly protected by procedural safeguards
inherent in the structure of the federal system than by judicially created limitations on
federal power.
(e) States exercise indirect influence over the House by their control of electoral
qualifications. Art. I, §2.
(f) States exercise indirect influence over the Presidency through their role in Presidential
elections (electoral college). Art. II, §1.
(g) States exercise direct influence over the Senate, where each state receives equal
representation and each Senator is selected by the state legislature. Art. I, §3.
(h) States special significant in the Senate is underscored by theprohibition of any
constitutional amendments divesting a state of equal representation w/o the state’s
consent. Art. V.
16. The original understanding of the framers supports this conclusion. Madison, Wilson.
17. Of course, the federal government has undergone structural changes, (17th Amendment), but
this does not alter the analysis.
18. Any substantive restraint on the exercise of the Commerce clause powers must be tailored to
compensate for possible failings in the national political process. EEOC v. Wyoming.
19. Therefore, the FLSA’s overtime and minimum wage requirements are constitutional.
20. For example, state participation in federal government in the mass transit area ensured
federal funding to states to implement the programs. Thus, the political process ensured that
federal laws will not unduly burden states. However, Commerce clause regulation does not
always require countervailing financial benefits under the Spending clause. The FLSA’s
application to SAMTA would be constitutional even had Congress not provided federal
funding under UMTA.
Dissent (Powell, Burger, Rehnquist, and O’Connor)
12. The majority’s disrespect for stare decisis damages judicial legitimacy.
13. The majority mistakenly focuses on “traditional governmental functions,” but National
League of Cities adopted a balancing test that considered other factors.
14. The majority fails to specify when the “political process” may fail and when “affirmative
limits” on the commerce clause are imposed, an omission which might be explained by the
fact that any such attempt would be subject to the same objections on which it relies to
overrule National League of Cities. Footnote.
15. The state’s role in the political process does not guarantee that exercises of the commerce
clause power will not infringe on residual state sovereignty.
(d) States elect Congressman, but once in office, they are members of the federal
government.
(e) Although state participate in the electoral college, there is hardly a reason to view the
President as a representative of the state’s interest against encroachment. Chadha noted
hydraulic pressure with a branch to exceed the outer limits of its power.
(f) Illogical analogy—Since Congress is composed of individuals, individuals rights
guaranteed by the political process are amply protected by the political process.
16. The majority’s political success example is irrelevant to the question whether political
process are the proper means of enforcing constitutional limitations.
17. The 10th Amendment was adopted specifically to ensure the state’s important role.
(Disagrees over original understanding).
18. Judicial enforcement of the 10th Amendment is essential to maintaining the federal system.
Marbury. Thayer’s rule. Departmentalism.
19. Federal overreaching under the Commerce clause undermines the federal-state balance,
which is designed to protect fundamental liberties.
20. Since federal laws are drafted by unelected congressional staffs, who have little knowledge
of the state and are influenced by special interests, the federal government is not as
responsible as state governments in protecting federalism limits. Democratic selfgovernment principle.
21. The majority’s opinion improperly authorizes federal control over the terms and conditions
of employment of all state and local employees.
22. Under National League of Cities, this case should come out the other way.
(e) Since state’s loss of control over wages, hours, overtime regulations, pensions and labor
relations has serious effects on state and local planning, budgeting, and the levying of
taxes, the federal interest is not demonstrably greater.
(f) A mass transit system is inherently local. It is indistinguishable from providing and
maintaining streets, public lighting, water and sewerage system, etc.
(g) State and local officials are intimately familiar with details and costs.
(h) State and local officials also respond to constituents.
Dissent (O’Connor, Powell, Rehnquist)
We hope that the National League of Cities principle will someday once again command the
support a majority of the Court.
 Justice Blackmun seems to be saying that unelected judges shouldn’t be distinguishing between
state statutes they like and those that they don’t like.
 Weschler/Choper Thesis—Federalism issues should be left to political process.
 We can’t narrow commerce clause to deal with the problem because we would end up restricting
Congress’s power to regulate private activity as well.
 Nine months after Garcia, Congress enacted the Fair Labor Standards Act Amendments of 1985.
(Don’t seem to have any effect).
South Carolina v. Baker (US 1988) Brennan 8-1
The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) removed the exemption from
federal taxes to income from nonregistered bonds because Congress felt these type of bonds lent
themselves to tax avoidane and to use in illegal activities. Registered bonds maintained the
exemption. As a result, states now issue only registered bonds. The Court upheld the statute as
constitutional.
Brennan’s Majority Opinion—Although South Carolina argued that Congress relied on
incomplete information, Justice Brennan felt that there was no reason to believe that the political
process had failed, which would bring the challenge within Garcia’s exception. South Caroline
had not alleged that it was deprived of any right to participate in the national political process or
that it was singled out in a way that left it politically isolated and powerless. In addition, the
Court, rejecting a commandeering argument, said that any possible commandeering was an
inevitable consequence of regulating a state activity.
Scalia Concurrence—I agree only that the structure does not prohibit what the federal
government has done here.????
Rehnquist Concurrence—Even under National League of Cities, South Carolina would lose
because the facts showed that the provision had no practical impact on state borrowing practices
since tax exemption (and thus lower interest rates) was still available for registered bonds.
Thus, there was no direct displacement of state freedom to structure integral operations in areas
of traditional government functions.
O’Connor Dissent—The statute is unconstitutional because the Court failed to inquire into the
substantial adverse effects on state and local governments that would follow from state taxation
of the interest on state and local bonds (disagreeing with Rehnquist).
Gregory v. Ashcroft (US 1991)
The Court held that the Age Discrimination in Employment Act (ADEA) did not apply to a
state’s mandatory retirement provisions affecting appointed state judges. The ADEA bars
employers, including state governments, from adopting mandatory retirement policies, but as to
state employers, it exempts appointees on a policymaking level. In interpreting this provision,
the Court relied on general propositions about federalism. It noted that the state’s retirement
provision is a decision of the most fundamental sort for a sovereign entity and required that
Congress’s intention to displace state decisions in this area be clearly stated.
 The Political Safeguards of Federalism
Weschler’s “The Political Safeguards of Federalism’ (1960)
Prof. Weschler argues that the national political process is well-adapted to retarding or
restraining new intrusions by the center on the domain of the states. The political process
necessitates the widest support before intrusive measures of importance can receive significant
consideration.
Choper’s “Judicial Review and the National Political Process” (1980)
The framer’s intended the Senate to be the national legislative guardian of state interests.
Choper asserts that the federal political branches are fully capable of guarding state’s interests.
Federalism proposal—The federal courts should not decide constitutional questions respecting
the ultimate power of the national government vis a vis the states; rather, the courts should the
treat the issue as a nonjusticiable “political question”, final resolution being relegated to the
political branches.
Lewis Kaden
As Congress increasingly implements national policy through the states, the people are left w/o
a clear sense of the persons they may call to account—national legislators who ordered the
program, or state officials charged with implementation.
In addition, some criticize Choper’s analysis because it naively restricts itself to states vs.
federal governments, rather than a federalism conception based on contests among different
regions of the U.S. for control of the national power.
 Since Garcia, several cases seem to be cutting back the broad scope of Garcia. Printz, Mack,
and New York v. United States suggest that there are some limits on the way Congress can
regulate a state.
New York v. United States (1992)
Congress enacted state that required states to either enact statutes regulating waste and dispose
of it according to federal standards or “take title” to the waste and assume the liabilities that
come with it by the year 2000. The Court held that Congress can’t commandeer a state
legislature.
 Is this like South Dakota v. Dole? Sunstein’s endowment effect-there is a difference
between losing preexisting funds and not gaining what you do not yet have. Coercion is
worse than bribery.
 In this case, we are worried about sovereignty and accountability.
d. Prohibition on Federal Commandeering
There are three positions on state immunity doctrine.
(4) Wexler-Choper thesis—no federalism doctrine is justiciable.
(5) Justice Stevens—Courts in principle can adjudicate commerce clause challenges, but that’s
it. This is not a doctrine of justiciability, but a substantive reading of the Constitution.
(6) There are judicially enforceable state sovereign immunities. Current trend. The Court has
given up trying to police traditional state functions, but they may enforce rules of
nondiscrimination in two areas.
(c) States vs. others. It matters if something applies solely to states (as opposed to states
and private parties). This may be a proxy for saying that something is a traditional state
function. The rule only applies when underlying power is Commerce clause. No §5.
(d) Among states. Discriminating among different states. Coyle (every state that is
admitted to the Union must be admitted on equal footing with the other states.).
Katzenbach (there is no general requirement that Congress can’t discriminate against
states).
Three key policy rationales underlying all these state sovereignty cases.
(4) Accountability.
(5) Sovereignty—However, if Congress can’t force states to do things, it will have to create
massive federal bureaucracy, which causes more harm to state sovereignty.
(6) Unfunded Mandates
Congress may be faced with a choice between commandeering and preemption. Perhaps, political
costs are different. Congress may easily pass legislation on the states, but it is harder to create
massive bureaucracy. Thus, Congress is likely to choose preemption.
Printz v. United States (US 1997) Scalia
The Brady Handgun Violence Prevention Act requires the AG to establish a national instant
background check system by November 1998. Until then, gun dealers must send the Chief Law
Enforcement Officer (CLEO) of a prospective purchaser’s residence a form identifying the
purchaser, unless the purchaser already has a permit or unless the state already has an instant
background check system. The dealer must then wait 5 days to complete the sale. When the
CLEO receives the form, the CLEO must make reasonable effort to ascertain whether receipt or
possession would be in violation of the law. The CLEO is not required to notify the gun dealer
that the purchaser is ineligible to own a gun, but if the CLEO does so, the purchaser must be
notified of the reasons for the determination. The Court strikes down the Act as
unconstitutional. Since there is no Constitutional text, the Court looks to original and historical
understanding, the Constitution’s structure, and precedent.
Original and Historical Understanding
6. Construction.
(d) Early congressional enactments provide contemporaneous and weighty evidence of the
Constitution’s meaning. Bowsher.
(e) Such enactments, acquiesced in for a long term of years, fixes the construction to be
given its provisions. Myers.
(f) However, if earlier Congress’s avoided the use of the highly attractive power, there
would be reason to believe that the power was thought not to exist.
7. Although early Congressional statutes required state courts to perform certain functions, the
argument does not show an original understanding of federal commandeering of the state
executive.
(d) Under Article III and the Supremacy Clause, judges applied the law of the sovereign all
the time. The executive and legislature did not. Thus; state judges are unique.
(e) The numerousness of Congressional statutes imposing obligations on state courts,
contrasted with the utter lack of statutes imposing obligations on the state’s executive,
suggests an assumed absence of power.
(f) The Extradition Act of 1793 imposed duties on state executive officers, but did so in
direct implementation of the Extradition clause of the Constitution itself. Art. IV, §2.
8. Early Congressional enactments assumed that the federal government may not command the
state’s executive power in the absence of a particularized constitutional authorization.
(c) In dealing with federal prisoners in state jails at federal expense, the 1st Congress issued
a recommendation to the state legislatures to pass laws to make it the duty of jailkeepers
to hold federal prisoners, not a command to the executive.
(d) When GA refused to comply, Congress still did not commandeer the executive.
9. The sources of original understanding do not contemplate federal commandeering of state
executives.
(d) Although the government points to several parts of the Federalist papers (26, 37, 45),
none of these statements necessarily implies that Congress could impose these
responsibilities without the consent of the states.
(e) They rest on the natural assumption that the states would consent to allowing their
officials to assist the federal government.
(f) In the early days of the Republic, state and federal governments mutually assisted one
another often, including voluntary federal implementation of state law.
10. In later history, there is a similar absence of federal commandeering statutes.
(d) The Act of August 3, 1882 and WWI selective draft law contemplated utilizing state
executive services, but did not compel such.
(e) In WWI, even during wartime, President Wilson did not commandeer but requested state
assistance and obtained their consent.
(f) None of the more recent historical statutes are probative because their recent vintage is
far outweighed by the two centuries of apparent congressional avoidance of the practice.
Structure
3. Federalism concerns cut against a federal commandeering statute.
(d) The framers rejected the concept of a central government that would act upon and
through the states, and instead designed a dual sovereignty system.
(e) The separation of federal-state relations is meant to protect liberty and meant to reduce
the risk of tyranny and abuse from either government.
(f) The federal government’s power would be augmented immesurably if it were able to
impress into service—and at no cost to itself—the police officers of the 50 states.
4. Separation of Powers concerns cut against a federal commandeering statute.
(d) Under the Take Care clause, the President takes care that the laws are faithfully
executed. (Ryan-undercut by no exclusivity inference in Tyler Pipe (as textualist matter).
(e) The Act transfers this responsibility to CLEOs in 50 states, who are left to implement the
program without meaningful Presidential control, which would be impossible anyways
without the power to appoint and remove.
(f) The vigor and the accountability of the unitary executive would be shattered if Congress
could require state officers to execute the law.
Precedent
5.The Court has held that the federal government may not compel the states to implement, by
legislation or executive action, federal regulatory programs. Hodel, NY.
6.The NY decision is not distinguishable based on the fact that it required state officers to make
policy, whereas the Act does not.
(d) In the separation of powers context, the “making” law—“enforcing”/”implementing”
law distinction has been unsuccessful and some think the Court has abandoned it.
(e) The distinction proposed here will not create precise answers; an imprecise barrier
against federal intrusion upon state authority is not likely to be an effective one.
3) Executive action that has utterly no policymaking component is rare.
4) “Reasonable efforts” is a policymaking matter.
(f) Even if the Act leaves no policymaking discretion with the states, the preservation of
states as independent sovereigns is less undermined by requiring them to make policy,
then by reducing them to puppets of a ventriloquist Congress.
7.The NY decision is not distinguishable because Congress’s requiring state officers to perform
discrete, ministerial tasks does not diminish state or federal accountability.
(c) Since state governments absorb the financial burden of implementing the Act, Congress
can take credit for solving the problem without having to ask their constituents to pay
with higher federal taxes. (Some earlier reading relevant here).
(d) Even when states are not forced to absorb the costs of implementing a federal program,
they still take tha blame for its burdensomeness and its defects.
8. Only in a Ursery-type situation, where the issue is whether incidental application to the states
of a federal law of general applicability may interfere with the functioning of state
governments, are the Act’s purposes, state burdens, and efficiencies considered.
Concurrence (Thomas)
The Constitution places whole areas outside Congress’s regulatory authority under the Commerce
clause, including the 1st Amendment. If the 2nd Amendment confers a similar personal right to
keep and bear arms, the federal government’s regulatory scheme, at least as it pertains to the
purely intrastate sale or possession of firearms, runs afoul of it.
Dissent (Stevens, Souter, Ginsburg, Breyer)
6. Since the ultimate issue is one of power, we must consider the Act’s implications in times of
national emergency. A national response may be necessary before federal personnel can be
made available to respond.
7. The Act is in response to a national emergency—the epidemic of handgun violence.
8. Since the Constitution is silent, the Court should respect Congress’s policy judgment and its
appraisal of its constitutional power because they are politically accountable.
Text
4. The Congress has the power under the Commerce clause to regulate handgun commerce.
5. In conjunction with this power, the NP clause allows Congress to temporarily enlist local
police officers in the process of identifying persons who shouldn’t be entrusted with handgun
possession.
6. Unlike the 1st Amendment, the 10th Amendment imposes no restriction on the exercise of
Congress’s delegated powers. The 10th Amendment confirms the federalism principle, but
does not limit the scope of Congress’s powers.
9. Federal law may impose greater duties on state officials than private citizens because the
Constitution requires state officers to take an oath to support it.
10. Nothing in the Constitution supports the proposition that a CLEO can ignore a command
contained in a Congressional statute enacted pursuant to an express delegation of power.
Original Understanding
3. To overcome the AOC’s problem with inability to act directly on the people, the framers
unequivocally intended to enhance the capacity of the federal government by empowering it—
as part of the new authority to make demands directly on individual citizens—to act through
local officials.
(d) Hamilton’s Federalist 27: “employ the magistracy of each”
(e) Hamilton’s Federalist 27: the states will be incorporated into the operations of the national
government “as far as its just and constitutional authority extends; and will be rendered
auxiliary to the enforcement of the laws.”
(f) During the Constitution’s ratification debates, the framers assumed that state agents would
act as tax collectors for the federal government.
4. The Court’s response to this powerful historical evidence is weak.
(g) No fair reading can justify an interpretation involving “consent.”
(h) The Court’s attempts to discount the force of Federalist 27 are unpersuasive.
3) The mere fact that the Supremacy clause is the source of obligation of state officials to
implement congressional directives does not remotely suggest that they might be
incorporated into the operations of national government before their obligations have
been defined by Congress.
4) Since NY did not mention Federalist 27, it does not affect the relevance or weight of
the historical evidence insofar as it relates to state courts.
(i) In the early years of the republic, the national government did indeed exercise such power.
State judges performed executive functions, i.e. administered oath of U.S. allegiance,
nationalization reporting requirements and registry, laying city streets, and ensuring
seaworthiness of vessels.
(j) The majority’s “judges” distinction is empty formalistic reasoning of the highest order.
(k) The Court has never suggested that the failure of early Congresses to address the scope of
federal power in a particular area cuts against its existence. The principle would
undermine post-New Deal Commerce Clause jurisprudence.
(l) The Court fails to distinguish policy decisions that may have been influenced by respect
for state sovereignty concerns, and decisions that are compelled by the Constitution.
3) Wilson was an effective statesman, but this doesn’t apply he couldn’t mandate it.
4) There was no contemporary comment on the supposed constitutional concern.
Structure
7. While the framers intended to preserve the sovereignty of the states, that fact does not speak to
the question whether state officers may be required to perform federal obligations.
8. Since Congress’s members are elected, it is unrealistic to assume that they will ignore their
constituent’s sovereignty concerns. Indeed, a decision to impose modest burdens on state
officials from time to time reflects a considered judgment that the people in their states will
benefit therefrom.
9. The presumption of validity that supports all congressional enactments has added force with
respect to policy judgments concerning the impact of a federal statute upon the states.
10. As demonstrated by the Unfunded Mandates Reform Act of 1995, the political safeguards
protecting our federalism are safe; thus, unelected judges should stay out of it.
11. By the majority’s limiting the ability of the federal government to enlist state officials in the
implementation of its programs, the Court creates incentives for the national government to
aggrandize itself.
(c) The federal government must create vast national bureaucracies to implement policies.
(d) The Federalists promised this would not occur because of the magistracy of the states.
12. The notion that the Act will destroy the theory of the unitary executive contradicts NY. NY
generally approved of cooperative federalism programs, designed at the national level but
implemented through state governments. Three mechanisms.
Dissent (Souter)
5.The original understanding of the framers contemplated federal commandeering.
(e) Federalist 27—the federal government may “employ the magistracy of each state in the
execution of its laws.”
(f) In combination with the Supremacy Clause and state oath requirement, the Federalist 27
states that legislative, courts, and magistrates of states “will be incorporated into the
operations of national government; and will be rendered auxiliary to the enforcement of its
laws.”
(g) Thus, the auxiliary functions are the products of their obligations thus undertaken to support
federal law, not of their own unfettered choice.
(h) Madison’s Federalist 44 states that state officer’s swear an oath because they have essential
agency in giving effect to the Constitution.
6. Congress may require state officers to do things consistent with the power proper to a state
officer’s branch of tripartite state government.
7. NY is correct; however, the dicta went too far toward immunizing state administration as well
as state enactment of such a scheme from congressional mandate.
8. The original understanding does not contemplate Congress requiring administrative support
without providing an obligation to pay for it. Federalist 36-describes the U.S. as paying.
Thus, I would remand.
Dissent (Breyer)
4. Several other similar systems, i.e. Switzerland, Germany, and the European Union, provide
that their constituent states will implement many of the rules and regulations enacted by th
central federal body because they believe such a system interferes less with the state
sovereignty and helps to safeguard liberty.
5. I offer this to provide Justice Steven’s argument with empirical support.
6. The Act uses the words “reasonable effort”—words that address time and cost concerns.
 Note that Justice Scalia did not join a section of the Court’s opinion in City of Boerne v. Flores
discussing the drafting history of the 14th Amendment. Consistent?
 Hills defends the entitlement Printz gives states to refuse to comply with federal directives (unless
they chose to do so) on functional grounds. There is a marketplace for federal revenue. If the
national government values such services enough to pay, it can ensure cooperation. Otherwise, if it
commandeers, it discourages involvement in state and local politics.
 Comparative Law—In the absence of controlling constitutional text, examining constitutional
experience elsewhere may illuminate relevant policy considerations in determining the
Constitution’s meaning. Also, examining constitutional experience elsewhere may illuminate the
choice among reasonable alternative specifications of the U.S. Constitution’s strucutre.
 State sovereign immunity doctrine applies differently with respect to the commerce clause and §5.
11th Amendment???
(3) When Congress is legislating under the Commerce clause, the 11th Amendment prohibits a
state from being sued.
(4) When Congress is legislating under the 14th Amendment’s §5, they can override state
immunity. Historically, the 14th Amendment is intended to be an assertion of federal power
against state sovereignty. For example, in §1, the Amendment is specifically applied to the
states. Congress would have to make the statute apply only to the states. In traditional
function analysis, all the cases involved generally applicable laws (applies to private parties
and states); i.e. Congress passes a minimum wage law that applies to states and private parties.
????
 We don’t know how commandeering would come out under the 14th Amendment’s §5.
Vermeule thinks that it is far less constitutionally suspect and that it would be upheld, except for
small core of state sovereignty, i.e. moving the state capital.
 The 2nd Amendment
The 2nd Amendment, unusually for a federal constitutional provision, contains a statement of
purpose as well as a guarantee of a right to bear arms. The 2nd Amendment was designed to guard
against the possibility that the national government would overreach its authority and need to be
checked, by military force if necessary. The 2nd Amendment’s interpretation dispute divides people
who believe it confers an individual right or a collective right, a right held by the people collectively
in connection with such participation.
United States v. Miller (US 1939)
The Court upheld the constitutionality of a national ban on the possession of an unregistered
sawed-off shotgun because the 2nd Amendment did not protect possession of weapons that were
not shown to have a reasonable relationship to the preservation or efficiency of a well-regulated
militia. Lower courts also agree that there is no individual right.
Collective Right Interpretation—The 2nd Amendment complements federalism-based limits on
national power. Well-regulated militias were those under the control of state governments; thus
there is no individual right.
 Critics—The contemporary versions is the National Guard, which can be taken over by national
authority. Thus, the National Guard can’t serve the function of state-organized militias. Since
there is no contemporary analogue, individual rights win.
Individual Rights Interpretation—The 2nd Amendment uses the same term “the right of the people”
that the 1st, 4th and 9th Amendments do, which all agree confer individual rights. In addition, civic
republicanism makes the citizen’s ability to join with others to resist government overreaching by
force of arms a central feature of active citizenship.
 Critics—(1) Civic republicanism tradition developed in a society lacking democratic
participation. Under modern circumstances, elections and free speech reduce the risk of
government overreaching to the point where an individual right is unnecessary. (2) Conditions
making civic republicanism a coherent theory of society, such as widespread quality in economic
condition and widespread commitment to civic virtue, are absent in today’s society.