STRUCTURES OF THE CONSTITUTION OUTLINE—BLACK BEAR
DEP—Jones (Winter 2009)
INTRODUCTION
GENERALLY—WHAT DOES THE CONSTITUTION DO?
1. Establishes 3 branches of government and allocates power between them
a. All 3 branches are co-equal and balanced
b. Article 1- Legislative, Article 2- Executive, Article 3- Judicial
c. Why separate the three branches?
i. Framers did not want one branch to become too big or too powerful
ii. Wanted to protect individual liberties
iii. Allows for more good action than bad action
2. Controls the relationship between state and federal governments (Created a federalist system)
a. Federalism- refers to a situation where two governments have jurisdiction over the same territory
b. Wanted a stronger government than the articles of confederation, but wanted to preserve localism
3. Limits government power and protects individual rights
a. Reason more rights were not listed is the framers thought that if the government wasn’t given the right
expressly, they wouldn’t be able to touch the right
i. If a couple of neg. rights were listed, it might imply the govt. could infringe on the ones not listed
4. Preferred inaction over action by government
a. Preferred inefficiency over more governmental powers
b. Interpret constitution narrowly eve if reading is inefficiency
5. Why do it with a constitution
a. Difficult to amend and change
i. This difficulty was set b/c there was a desire to create processes of government that won’t be
changed in times of crises
ii. Must protect it from the temptation to change it to fit the majoritarian thought or rule of the time
INTERPRETING THE CONSTITUTION
1. Tools
a. Textual-strict interpretation
i. Limits when ct. can review
ii. Limits when constitution applies
iii. As written by the framers, how they used it (think of the framers intent)
iv. Arguments against textualism
1. Words are vague and it is difficult to know all meanings
2. Intent of the words used is not knowable for the entire convention
b. Structure
i. Look at the entire document
ii. What things are said elsewhere—glean meaning of words and phrases by looking at different
parts of the constitution
c. History—what did the constitution mean at the time
i. Easier to figure out intent when you are able to look at behavior
ii. Assumes framers wanted constitution to codify at their time and not grow
iii. Advantages
1. Predictable
2. Don’t need to know intent
iv. Disadvantages
1. Assumes uniformity at the time constitution was adopted
d. Dynamic tools—(Policy, tradition, social norms)
i. Constitution is evolving—realist approach
2. Ways/philosophies to interpret
a. Textualist- strict interpretation (originalism)
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i. If constitution is silent, the legislature determines the law
b. Modified/abstract Intentionalism (originalism)
i. Look at general intent, and not specific intent
c. Non-originalism
i. Constitution needs to be more useful
ii. Use dynamic tools to make constitution into something that is relevant to modern times
3. Reasons why we must interpret the constitution
a. Some topics are not covered in the constitution
b. Many important constitution provisions are in broad language that is not very clear or definite
c. Someone must determine which interests are sufficient for overriding of a constitutional right
JUDICIAL BRANCH
AUTHORITY OF JUDICIAL REVIEW
1. Marbury v. Madison- SCt. declared act of congress unconstitutional
a. Congress cannot vest the SCt with more powers than what is outlined in art. 3
2. Cts have power to saw what the constitution says or means
a. “It is emphatically the province and duty of the judicial department to say what the law is”—Marbury
3. Review other branches of govt- constitution doesn’t specifically grant this power
4. State and local courts are bound by SCt decisions
a. Martin v. Hunters Lessee (two parties had purchased the same tract of land from different govts.)
i. When a state decides a case involving FED law, SCt has power to review (textual argument)
1. Text of art. 3 says SCt can hear “all cases involving federal law”
ii. Promotes uniformity of federal and constitutional law (policy argument)
iii. SCt has judicial review over Federal Questions (historical argument)
5. Two ways to view judicial review:
a. Activism (Judicial review is a good thing)
i. Ct should expansively use power
ii. No politics in ct—separate from politics (insulated from the politics of the day)
iii. Neutrally make a decision
iv. Use different tools than other branches of government—reason, logic…
v. Removed from populace
vi. Restrains legislative and executive branches incentives to make things constitutional
vii. Good branch to have power to be a watchdog because…
1. Least dangerous—no $, no army, only has good will of people
b. Judicial Restrain (rarely exercise)
i. Avoids the constitutional question—rules on something else
ii. Follows constitutional avoidance cannon
iii. Decides cases narrowly as possible
iv. Judicial is bad b/c it “dulls the legislatures own commitment to follow the constitution”
v. Insulation of judges is bad
1. They can thwart the will of the people (they are out of touch)
a. AKA SCt can become counter-majoritarian
2. Congressional statutes are from the “people”
LIMITATIONS ON THE POWERS OF THE JUDICIAL BRANCH
1. Preservation of Good Will (self imposed—must preserve own legitimacy)
a. SCt. trusts that we will obey its decisions
b. Can only do as much as we will allows them to do
2. Textual limitations
a. The constitution itself limits what the fed. cts. can rule one: (only limited original and appellate)
b. Based on what’s in the constitution
c. Constitution only allows lower federal courts as congress allows them
d. Can only decide matters that are properly before them
3. Congressional Limitations—constitution gives power to cong. to limit jurisdiction
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a. Strip jurisdiction of ct over certain subjects in appellate
i. There have been 25 bills pending to restrict what the SCt can hear regarding certain types of cases
on certain matters
b. Cong. can limit SCts jurisdiction over appeal
c. Cong. can limit what type of cases SCt can hear (Ex Parte McCardle)
i. “Under such exceptions and under such regulations as congress shall make”
ii. “The power to make exceptions to the appellate jurisdiction of this ct (SCt) is given by express
words”—(Ex Parte McCardle)
1. The word “exceptions” comes right after the word “fact”, so commentators argue that it
relates to just “fact” and not to the entire clause…
2. You can’t really reconcile this with Yerger
iii. Ex Parte McCardle
1. Broad: Congress could put limitations on the SCt on what kind of cases they can hear
2. Limited: Ex Parte limits this and shows that that does really work
a. Why have the SCt if they cant hear certain important constitutional right topics
3. McCardle- Statute limited SCt jurisdiction and it limited both the state and private rights
to use the habeus (it thus wasn’t really politically one sided—both sides were
prohibited—this would be something to distinguish on, b/c abortion isn’t politically
neutral but affects one party and the expense of another)
4. General principles: Cong cant use their jxn stripping privilege to strip constitutional
issues
4. Justiciability Limitations—court can hear “cases and controversies” (threshold question)
a. A case or controversy is a real dispute, about an actual fight, with adverse parties, where the resolution of
the fight is good for the cts to decide
b. Reason for the “case and controversy” requirement/threshold is to make a boundary between what is
law and what is politics
c. Five justiciability doctrines:
i. Prohibition against advisory opinions
ii. Standing
iii. Ripeness
iv. Mootness
v. Political question doctrine
d. WHAT: (Advisory opinions and Political question doctrine)
i. Prohibition of Advisory Opinions
1. Parties aren’t actually bound after the ruling—world is same as before/after ruling
2. To avoid, must have…
a. An actual dispute between adverse litigants
i. This is essential b/c it brings out the best in both sides and there is an
incentive to find the best solution to the problem
ii. Need one winner and one loser WITH a remedy
b. Substantial likelihood that a fed. ct. decision in favor of claimant will bring
about some change or have some effect
i. Can’t have just a hypothetical
3. SCt. must have the final say in the matter—cant have someone reviewing their opinion
(otherwise it is an advisory opinion) (Heyburn)
ii. Political Question Doctrine—not justiciable, ct. won’t hear them (VERY RARELY APPLIED)
1. Subject matter that the Ct. deems to be inappropriate for jud. rev.—does the ? anticipate a
kind of problem that is best left to the political process and not the judicial branch
2. 6 Factors to Consider (Come from Baker (wanted to divide dist; the fact that it is a
political right, doesn’t make it a political question)—none are dispositive)
a. Is there a textually demonstratable constitutional commitment to another
branch of government to decide?
i. Const says a branch has sole power over something (Ex: foreign affairs)
ii. Powell v. McCormak- House refused to seat a rep.
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1. Legislature is the judge of the qualifications, BUT the
constitution limits the qualifications that can be considered
2. Not completely textually committed to leg. so the jud. can rule
b/c the house tried to add to the const. requirements
b. Is there a lack of judicially discoverable and manageable standards for
resolving the issue?
i. AKA lack of judicial expertise in the area
c. The impossibility of deciding the issue w/op an initial policy determination
of a kind clearly for non-judicial discretion
i. Not a ? that can be resolved with logic or text, but one solely on policy
d. The impossibility of resolving the case w/o expressing a lack of respect to the
other branches
i. Const. says it is left to another branch—ct will typically stay out of it
e. Would attempting to resolve the matter create embarrassment from
multiple pronouncements?
i. Goldwater- Carter rescinded a treaty, but senate claims they must allow
give permission—need for fed govt to speak with one unified voice
ii. Nixon- Fed judge impeached and convicted, claimed entire senate needed
to try him—impeachment is textually committed to the senate, and it
does not give anything else that should be considered
1. Senate has “sole” power of impeachment—last word!
2. Judiciary is being impeached so they shouldn’t be involved
f. Is there an unusual need for unquestioning adherence to a political decision
already made?
3. SCt typically won’t hear cases on:
a. Congress determining requirements of its members,
b. Impeachment,
c. Partisan gerrymandering, and
d. Foreign policy
e. WHO: Standing—who can bring the case (is the particular person the right person)
i. Allen v. Wright: black public school children v. white private school with IRS stimulus money
1. Two types of injuries: Stigmatic injury (insufficient) and imminent (kids haven’t tried to
be accepted into the school)
ii. POLICY: Why have the standing doctrine?
1. Intermeddler rationale- their rights are not at issue—the person actually may have
different view so the intermeddler isn’t representing the affected party
2. Efficiency- we don’t want everyone that has a beef with policy to be able to have
standing and bring something before the court
a. Overload the court
3. Limits cts role in way that preserves the separation of power
a. Concrete facts mean that cts must tailor what they have to say—this promotes
judicial restraint
4. Personal stake- incentive to do a good job litigating
iii. CONSTITUTIONAL REQUIREMENTS: Art. 3 (congress can’t override them) (all are mandatory to
bring a case before the courts)
1. Injury in fact
a. Plaintiff must have suffered direct and personal harm
i. P has no standing to complain simply that their government is violating
the law
b. Means combination of two things:
i. Injury is of a sort of recognizable injuries, AND
1. Recognizable injuries for standing: May be an injury of…
a. Common law right (not to be assaulted)
b. Constitutional right (1st and 4th amend)
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c. Statutory right (congress can by statute create a right and
a deprivation of that right would give standing)
ii. Plaintiff must personally have suffered or will suffer from injury
1. P has to convincingly say they have personally experienced harm
2. Stigmatic injury to a group of people is insufficient (Allen)
c. Cases:
i. Lujan v. Def. of Wildlife: Endangered species were being affected
overseas/ P had plans to visit these places again
1. “Future plans” are not enough, even though they had visited—
no set plan/no plane ticket
2. “Someday intentions are not an actual and imminent injury”
a. Essential to explicitly allege actual or imminent injury
3. Limited funding provided—and a ruling in favor of P wouldn’t
really do anything
4. Dissent: Unilaterally, P could buy a ticket and have an imminent
injury, so why not let him have standing if he could change it
ii. LA v. Lyons: Police pulled over—choke hold—bodily damage (practice
of the city police to use the choke hold)
1. Couldn’t prove that injury would happen to him again
2. Injunction needs to be an “ongoing” practice or policy
a. If extremely likely that it will happen again to him
personally, it may be sufficient—even absent a policy
3. “Continuing, present adverse effects”
4. “Real and immediate threat”—applies in equitable remedies
2. Causation
a. Allen- Just b/c IRS gave them a tax exempt status, does NOT mean that it caused
the children’s injury
b. Must show that the other party was the one that caused the harm: must be “fairly
traceable”
c. Challenged action was a “but for” cause of injury
d. If there is a problem tying to injury—change the way you describe or think of the
injury (Duke v. Carolina) (use the “but for” test for sufficient causation)
e. Watch out for “intervening actors”—this messes with causation
3. Redressability
a. “Even if” if you were injured and “even if” D caused it, will a favorable ct
decision fix it?
b. Must show that the cts order will take care of the problem
c. It really matters how you characterize your injury to determine whether or not
there is going to be Redressability
d. Worth v. Selven- Arrogant town zoned against multifamily housing—which
people interpreted to mean they didn’t want low income families
i. People brought suit to get multifamily dwellings, but SCt held that since
no actual plans to build and no proof that someone would build means
that a ruling in their favor would not solve the situation
iv. PRUDENTIAL STANDING REQUIREMENTS: Not Art. 3 based, Congress can override, and made
by ct. for own self-governance
1. 3rd Party Standing is Ordinarily not Allowed (must assert own claim)
a. Don’t want to unnecessarily adjudicate rights
i. Maybe the real holder of the rights don’t want them changed and don’t
want them adjudicated
b. 3rd party relationship is often monetary—does NOT need to be same injury as P
c. Parties themselves are the best proponents of their own rights
d. NOTE: if these two met, we can have exceptions to the rule
e. EXCEPTIONS:
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f.
i. Obstacle or hardship to P asserting their own right, OR
1. Look at likelihood that party can sue on its own behalf
2. Barrows- black man could never own house and sue over
covenant so white man was able to sue
ii. Closeness of relationship between P and injured party
1. Singleton- Doctor and patient relationship, sued for right of
abortion (considered too private) Two factors:
a. Look at the closeness of the relationship btwn P and
injured 3rd party
b. Is the right “inextricably bound up with the activity the
litigant wishes to pursue” and likelihood the 3rd party
(patient) could sue on their own behalf
2. Craig v. Boren- Bartender relationship suffices b/c if bartender
followed the law, the 18 yr. old litigant could never sue (law
didn’t allow bartender to sell beer to men under 21, but could to
women that were under 21)
3. Newdow- Father with no legal right is NOT sufficient to
determine whether child believes in God or not
a. Parent relationship does NOT work (it may be close, but
most examples don’t work) (Gilmore v. Utah- Mom sues
in behalf of her prisoner son)
2. Prohibition of Generalized Grievances (Bar on Taxpayer or Citizen Standing)
a. Bar on “taxpayer” or “citizen standing” when the harm is “substantially equal
measure by all or a large class of citizens”
i. Injury must be personal to you
b. “If respondent can’t litigate—no one can”= NOT a very good argument b/c there
are other roads to get a remedy (separation of powers)
i. Richardson- Wanted accounting of CIA spending
c. EXCEPTION: (VERY narrow—Must be tax and spending power)
i. Flast v. Cohen- 7 taxpayers brought suit fed. money was being used to
support religious school education—violated free exercise clause
1. You can have standing IF “There is a logical nexus btwn the
status asserted and the claim sought to be adjudicated”—It must:
a. Challenge the expenditure of funds under the taxing
and spending clause under the establishment clause
(NOT incidental expenditure of funds in the
administration of a statute), AND
b. The law violates a specific provision with the
expenditure and NOT just that congress is exceeding the
scope of its power under the constitution
2. ONLY applies to congressional spending clause
ii. Hein v. Freedom- President was spending $ on programs P thought
violated specific spending clauses in const. (made Flast an island)
1. Ct held it was presidential spending, NOT congressional
spending (cong. had no enacted any specific budget for it) thus
the case didn’t meet the exception
WHEN: (Ripeness and Mootnes)- determine when litigation may occur
i. Ripeness- Arrived too early, may the SCt grant pre-enforcement review; typically needs to have
been enforced against you
1. Must allege “actual harm” or “imminent apprehension”
2. Must also have “real threat of enforcement” of statute for ripeness
a. Poe v. Ullman- statute prohibits contraceptives/doctors cannot recommend them
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i. Mere existence of a statute would constitute insufficient grounds to
support adjudication against state’s prosecuting official w/o real threat
of enforcement
ii. No looming threat—ct. cannot be “umpire to debates concerning
harmless, empty shadows”
iii. Dead letter statutes are NOT ripe!
b. Abbot Labs- comply with the labeling standards
i. Ripe even before it was enforced
ii. Company faced “serious” hardships in they had to comply
iii. Pre-enforcement is appropriate if immediate threat of harm
iv. Oridinary P must take some action to invoke application of the statute
3. Ct avoids pre-enforcement review b/c it saves time and judicial resources
4. Must consider two things:
a. Fitness of the issues for judicial decision
i. Is it the kind of ? the ct. can decide right now w/o more happening?
b. Hardship of the parties of withholding court consideration
i. Will it cripple the party if they don’t take or decide the issue?
ii. Exists when a party is faced with the choice btwn forgoing allegedly
lawful behavior and risking likely prosecution with substantial
consequences (Abbot)
1. This is hard to nail down as seen in Mitchell and other cases
where the court merely called it “hypothetical” hardship and
required the parties to break the law first
5. If legislations has NOT passed—it will never be ripe
6. TIPS:
a. Watch for events that are yet to occur
b. Esp. in admin law context, cong. passes for administration to iron out details
c. Think of the problems ripeness is trying to solve or address—there is a big risk in
not complying with the law, but you must break the law (typically) for it to be
enforced, but ripeness allows for exceptions to that
ii. Mootness-overstay your welcome b/c the issue is not longer alive between the two parties
1. The case must be alive with a current actual fight between current actual parties in
ALL stages of the litigation—even in the appeal
2. Things that will make a case moot:
a. Death or settlement of the issue
b. Changes in the law
c. Changes in factual circumstances (Ex: Defunis-law student got into the school he
was suing—got all that he wanted, so the court had nothing to rule on)
3. Exceptions: methods around mootness
a. Wrongs capable of repetition, but evading review
i. Harm that has a short life, but will happen again
1. Roe v. Wade- Pregnancy (must be capable of repetition to
HER—not just some other person)
2. Moore v. Ogleview- Shortness of election cycle
b. Voluntary cessation (“Sham Mootness”)
i. Party being prosecuted takes action in a live conflict to resolve the issues
that are being brought against them
1. They stop, but it is really stopped forever?
ii. Laidlaw- Co. shut down plant causing harm, but still had permit to run it
1. Need to make it “absolutely clear” they have stopped and the
“heavy burden” of proving cessation falls to the defendant
2. Voluntary cessation is a “stringent standard”
c. Class action suits
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i. Even if the case is moot for the named party, the case remains alive for
other members of the suit b/c they can still have the sharpness of debate
ii. Geraghty- Prisoner suing about probation standard finally received
probation—case is still alive for all other inmates
d. Unresolved Collateral Consequence
i. Occurs when a “collateral” injury survives after P’s original injury has
been resolved
ii. Ex- A is convicted of a crime and serves his sentence, and his appeal is
ongoing after he leaves jail—it is NOT moot b/c he suffers harms from
being convicted (can’t vote or have certain jobs, etc…) so although his
jail time has passed, he still has collateral injuries to resolve)
4. Benefits
a. Avoids giving abstract policy
b. Helps remedy actual injuries
c. Helps limit the number of cases they hear and helps preserve their credibility
EXECUTIVE BRANCH
INHERENT PRESIDENTIAL POWER
1. Three Sources of Presidential Authority
a. Constitutional Provision: Article II §1 gives president power to “execute” the law
i. If textual hook—president can act on it
b. Statutory Authorization: Congress authorizes through a statute (judiciary checks constitutionality)
i. Congress may act to increase the executive power
ii. Clinton v. New York- Questioning the line item veto (very formalistic approach)
1. President could sign whole bill and then w/5 days cancel certain provisions of it
2. Article 1 §7 gives power to president to veto any bill passed by congress
3. Ct. held president was amending the statute and there was already a procedure for that
and that the president was essentially “making law”
4. Even if two branches get together to do something, the third branch may balance or check
the actions of the other two—“liberty is always at risk when one or more branches seek to
transgress the separation of powers”-Justice Kennedy
5. Dissent: Functionalist approach- congress should be able to choose the particular means
to meet their constitutionally mandated duties; congress “confused” the ct by calling it a
line item veto
c. Inherent Presidential Power: When a President can take an action NOT authorized by the const/statute
i. Rests upon words within Article I & II
1. Hamilton: Article I for congress says powers “herein granted” so they are limited to
specific powers, President is NOT (he thus has “inherent powers”)
2. Madison: Inherent powers are inconsistent with a single written constitution—language
of Article II is designate one executive/name
ii. Youngstown Sheet & Tube Co. v. Sawyer- President took over steel mills during the war—they
gave us four models to consider
a. NOTE: Before beginning any of the models you MUST first ask “Where is
congress on the issue!?”
i. If the ct. finds itself in a camp alone w/o congressional support, they will
pause and try to find support for the presidential act
1. Model 1: (Black) President may act ONLY if there is constitutional or statutory
authority—ONLY these 2 sources will work (No inherent presidential power)
a. Judiciary may strike down action that aren’t expressly articulated—no inherent
authority left over
b. Benefit is president will always know when he may or may not act
2. Model 2: President may w/o explicit constitution or statutory authority, UNLESS he
infringes or usurps the power of another branch—determined by judiciary
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a. Infringing- Preventing another branch from performing something its
constitutional supposed to do
ii. Can’t do their action because of presidential actions
b. Usurping- Truly taking over a function textually assigned to another branch
3. Model 3: President may exercise inherent power UNTIL congress acts to limit him—
determined by congress
a. The Jackson Trilogy:
iii. President + congress’s authority = height
iv. President + no congressional authority = twilight
1. In the face of URGENT need, the president COULD act w/o
them—not at his strongest here
2. May president act when both are silent?
3. Frankfurter: Differs in this situation here, president has NO
power in this specific circumstances (he looks to see if there are
other actions to show that congress really was saying no)
v. President acting contrary to congressional will = lowest ebb
1. He may act only to the limit of constitutional authority LESS the
authority that congress has for the same issue
2. Judiciary’s job to make this judgment
3. This is the reverse of model 1 because here (lowest ebb), silence
means he is OK to act
b. The con of this model is that a ct. can’t limit the president, congress must limit
the president, but the way they do that is through a statute which the president
has veto power over—so it’s very difficult for the legislature to limit him
4. Model 4: President may act UNLESS his action violates a specific const. limitation
a. This model allows president to trump congress b/c even if they pass a law
preventing something, he can overrule it UNLESS his action violates a
constitutional limit
b. The cts have held this model may be OK in an “emergency” situation
iii. Executive Privilege: The right to do something not explicitly allowed statutorily or
constitutionally (Nixon- President uses this power to refuse to turn over evidence)
1. Judiciary decided the scope of the privilege (relied on Marbury) “it is emphatically the
privilege of the court to saw what law is…”
2. There is a privilege
a. There is an “attendant need” for candor from advisors and it derives from “the
supremacy of each branch within its own area of constitutional duties”
3. It is a qualified privilege
a. It’s limited to military, diplomatic matters, or essential national security secrets—
does not move to other areas
b. The president cannot determine what the power
c. There is inherent power in the privilege but it is bounded by what the other
branches can do
d. The need for criminal evidence outweighs the candor considerations
e. This case does NOT speak to executive privilege in a civil matter
4. Cheney
a. Ct. did not rule on executive privilege, but said in dicta that use in civil matters
does not warrant the executive privilege
ADMINISTRATIVE AGENCIES
1. Administrative agencies are troublesome b/c they exercise all the power of the government (they create
regulations, enforce the regulations, and employ judicial officials to hear cases)
2. Non-Delegation Doctrine (Basically non-justiciable now)
a. Principles:
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i. Congress may not delegate ALL of their legislative authority (may not delegate “unfettered
discretion”—must provide “intelligible principles”)
1. “Congress may not transfer out their essential legislative function” (Panama)
ii. Congress may not delegate non-legislative power given to it in the Const. (Ex: coining money)
b. Congress must provide “intelligible principles by which the agency makes all its decisions” otherwise
they will be struck down—need guidance (Whitman v. Trucking—intelligible principle is “requisite—not
too much and not too little”)
i. This is a broad standard that is pretty easy to meet
c. ALA & Panama were both struck down b/c they didn’t provide enough guidance for the execution of their
power—not a clear enough standard
i. “Congress cannot delegate power to the president to exercise an unfettered discretion to make
whatever laws he thinks may be needed”
ii. SCt held you can give them some power, but you must give clear standards so that they are
merely filling in the details
d. Non-delegation doctrine is either “dead or living, but really frail and pretty much dead”
e. Agencies belong to a politically accountable branch and they do feel the pressure of the political process
3. Legislative Veto- Congress can override agencies’ acts if they create a new law
a. Congress used to pass statutes w/provisions in them that allowed congress to override an agency action by
creating a resolution in either one of the two houses (they wanted to delegate w/o losing control)
b. Immigration v. Chadha- Cong. dcided the agncy wasn’t fulfilling stands and sought to overrule the agncy
i. Ct held this is unconstitutional—congress MUST pass a new law to overrule an agency action (if
they want to overrule a prior law, they need to pass a law and present it to the president)
ii. Formalists (Maj)- The constitution plans it a certain way and it has done a good job of protecting
our liberties
iii. Functionalists (Diss)- Legislative veto serves an efficiency purpose that doesn’t harm the
separation of powers
iv. This case illustrates that judicial review is firmly entrenched b/c many thought this was a “far
out” opinion, but nothing occurred—indicated people are OK with judicial review
4. Appointment Power- Article II, § 2, clause 2
a. Principal officers- President may appoint w/senate confirmation (ambassadors, public ministers and
consuls, judges of SCt, and all other officers of the US—established by law)
b. Inferior officers- Congress delegates appointments of these officers (President may do it alone or be
required to do it with senate approval)
i. May only delegate to: (3 Options according to Article II)
1. Presidents
2. Heads of departments
3. Lower courts
ii. Congress cannot give appointment power to itself OR its officers!
c. Federal employees- Appointed by the President and are just the grunt workers of the fed. government
d. Factors that an office is inferior: (Morrison v. Olsen- was independent counsel principal or inferior)
i. Subject to removal by higher executive branch officials
ii. Limited jurisdiction to certain duties
iii. Limited duties
iv. Limited tenure
e. Morrison had the effect of making everyone below the cabinet level an inferior officer and the dissent
viewed this as a separation of powers issue
f. Scalia’s dissent: Law had to be struck down because (1) Criminal prosecution is exercise of “purely
executive power” as guaranteed in the Constitution and (2) the law deprived president of “exclusive
control” of that power
5. Removal Power- No constitutional provision that deals with removal of officials (only impeachment)
a. Don’t need the twin pillars of appoint
b. General rules from the cases:
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c.
d.
e.
f.
g.
i. Current Rule: President may fire any executive official, but Congress can limit removal by
statute if both it is (1) an office where independence from the president is desirable (Weiner) and
(2) the statute does not prohibit removal, but limits it to whether there is good cause
1. Independence is more desirable (more likely to be desirable), if it is a person that was
appointed by someone other than the president
ii. President may remove executive officials unless removal is limited by statute
iii. Congress cannot prohibit removal all together
iv. Congress cannot keep removal power for itself
v. Congress cannot limit if it is “purely” executive officer (Meyer)
vi. Congress can limit if “quasi-legislative or quasi-judicial” officials or independent counsels—need
a reason (Humphrey)
vii. NOTE: Discuss separation of powers and how this doesn’t hurt separation of powers
Myers- President removes post master (“purely executive officer”)
i. President can appoint so President should be able to remove—he is in best position to know if the
person is doing their job
ii. Removal is OK b/c power of removal is “incident to power of appointment”
Humphreys- President appointed (w/senate confirmation) and then removed the FTC commissioner
i. Congressional control over quasi-legislative or quasi-judicial officials is significant enough that
the President still needs a reason for removal (need a reason)
Weiner- Truman tried to get a commission member to resign after appointing him—there was NO statute
limiting the President’s actions
i. Where independence is necessary and it is a quasi official, even if there is no statute, the
President can NOT remove w/o cause
Bowsher- If govt. exceeded the budget, congress appointed one of their own to start making cuts
i. Congress can’t keep for themselves the full power of removal of a purely executive officer—even
for cause
Morrison- Rejects quasi v executive, and adopts the “importance” to President test
i. Does not being able to remove “impede his ability to perform his constitutional duty”
ii. Judicial may limit power of removal—absent a statutory provision
CHECKS ON THE PRESIDENT
1. Suing and Prosecuting the President
a. Civil suits
i. Nixon v. Fitzgerald: Absolute immunity—complete prosecution from civil damage suits—exists
for a President for all official actions while in office in the scope of his authority
1. Too many law suits could cripple ability to be President
a. Lose if you violate clearly established rights
2. Don’t want the president to self-censor—we want him to make the right decision without
concern of personal liability for the decision
3. “Immunity is a functionally mandated incident of the office”
4. This does NOT answer if they can get specific performance—it only addresses monetary
damages in civil cases (but it is likely he is immune there too)
5. This also does NOT answer criminal immunity
ii. Clinton v. Jones: Absolute immunity does NOT extend to actions before becoming President
1. Ct. rejected the argument that this affected the Pres. Decision making b/c it didn’t occur
while he was in office
2. Undecided issues (not ruled on)
a. Don’t know if President can be indicted for criminal actions
b. Or if temporary immunity for divorce/child custody
b. Impeachment
i. Article II § 4
1. May impeach for “treason, bribery, and other high crimes of misdemeanors”
ii. Article I § 3 cl. 6
1. House agrees by a majority vote to impeach, removal is 2/3 of senate
Page 11 of 38
2. For president, chief justice presides over the trial
iii. “High crimes and misdemeanors” is non-justiciable—it is a political question
2. 6 Total Checks on the President (Nixon v. Fitzgerald)
a. Impeachment
b. President is under constant scrutiny of the press
c. President may want to be reelected
d. Congress has vigilant oversight over the president
e. Need to maintain prestige as an element of Presidential influence
f. President’s traditional concern for his historical stature
WAR POWERS & WAR ON TERRORISM—PRESIDENTIAL POWER DURING WAR
1. War Power
a. Article II makes the president commander in chief and Article I grants Congress the power to declare war
and the authority to raise and support the army and navy
b. War Powers Resolution Act- Passed by congress in response to the Vietnam conflict
i. Puts specific requirements on the president when using military force
ii. President must submit in writing to congress a report w/in 48 hours of beginning
iii. Places time limits (60 days) before president needs congressional approval to continue
iv. The constitutionality of this act has NEVER been tested b/c courts consider it a political question
2. Detentions
a. Hamdi v. Rumsfield: US citizen captured in Afghanistan, detained w/o communicating w/lawyer
i. An American citizen apprehended in a foreign country and held as an enemy combatant must be
accorded due process and a meaningful factual hearing
ii. Executive DOES have right to detain citizens
1. Detain for duration of war
2. Not an inherent right—has right because of statute (from other branch of govt)
iii. Use Matthews balancing test to determine how much processing/liberty you give to detainee,
consider:
1. How much liberty is at stake for the individual (why it should be high) V.
2. Government’s interest in preventing risk (burden for govt) V.
3. Risk of erroneous depravation (value added in distance between two)
iv. President has sweeping powers during emergency
v. Americans have no other recourse—a non-citizen could appeal to their country
LEGISLATIVE BRANCH
OVERVIEW
1. Two questions in evaluating an act of Congress:
a. Authorization: Does Congress have a “Constitutional Hook”?
i. Must have a “hook” because constitution is clear that congress has enumerated, limited powers
1. Congress does NOT have sweeping authority—must be an enumerated power
ii. Most hooks are found in Art. 1 §8
iii. Examples:
1. Commerce Clause
2. Taxing and Spending Power
3. 14th Amendment- Due Process
a. §5- Enforcement power
b. Limitations: Do Congress’s actions violate another constitutional provision or doctrine?
i. Federalism—10th amendment state rights
ii. Individual liberties
2. Summary: Ask three questions for the test
a. (1) Does congress have authorization or a hook?
b. (2) Does the action taken violate the individual liberties of the people?
c. (3) Does federalism place any restraint on the otherwise valid action?
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AUTHORIZATION: CONSTITUTIONAL
1. Necessary and Proper
a. Text
i. Art. 1, §8, c. 18- Congress has power to “make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers vested by this constitution…”
b. McCulloch v. Maryland
i. Overarching Rule from McCulloch v. Maryland
1. “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”
2. Two part test whether it is N&P:
a. Is it a legitimate end? (Enumerated power)
b. Are the means plainly adapted to that goal and not unconstitutional?
i. Is it “convenient and useful” to enact an enumerated power?
ii. Generally:
1. State of Maryland passed a law that imposed taxes on all the banks w/in its territories—
Bank of the US fell within this tax
a. Bank of the US manager failed to pay the tax
2. Maryland argued that the states created the constitution, so they are superior to the
federal government
3. Government argued that the constitution was created not by the states, but by the people
and the constitution when adopted was a “complete obligation”
iii. Two Issues:
1. Does Congress have the constitutional authority to create a bank (do things that are
contrary to the will of the states)?
a. Yes. Congress still needs a textual hook, but when it has this express authority, it
also has inherent authority to execute its express authority
b. Court adopts the broad interpretation (below), and congress may use the power as
long as it is “convenient and useful” in enacting the enumerated powers
2. Is it constitutional for the Maryland to tax the Bank of the US?
a. No. The power to tax can destroy and the Constitution can’t allow the Federal
government to be destroyed
iv. Reasons N&P Clause Allows for Congress to Regulate Banking:
1. Textual:
a. The word “expressly” was left out of the constitution—it was taken out b/c it
would be a step back to the Articles of Confederation
b. Legislature currently has many powers that are monetarily based, and thus it
makes sense for them textually to have this power
i. These were listed and then the words “necessary and proper” were given
so that Congress could use it to fill in the details
c. Two Textual Interpretations:
i. Strict- Must be “absolutely” necessary for them to use the power
ii. Broad- May use the power to make things more “convenient and
useful” in enacting the enumerated powers
2. Structural:
a. The N&P clause is listed at the end of enumerated power list, so it seems as
though it should be a power
i. “It is placed among the powers of congress and it purports to enlarge the
powers of congress”
2. Commerce Clause
a. Text:
i. Art. 1, §8, c. 3- “Congress hall have power to regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes”
b. What is “Commerce Among the States”?
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i. Ways to approach this question:
1. Channels and instrumentalities of commerce—narrow reading
a. These are necessary intrastate facilities (e.g. mail, airlines: they are typically
commercial in nature and help channel goes throughout the states)
2. Direct, logical relationship with commerce—E.C. Knight, Carter Coal
3. Issues affecting interstate commerce—Gibbons
4. Stream of commerce theory—Schecter
a. This one has the benefit of being understandable whereas the others can be
interpreted by the judiciary to mean whatever they want
c. History
i. Pre-1890s (Early Era)—Expansive Commerce Power
1. Gibbons v. Ogden—“Commerce Among the States” defined
a. Summary: NY gave two individuals exclusive rights to operate steamboats on
waters w/in state jurisdiction
b. “The congressional power to regulate interstate commerce includes the ability of
congress to affect matters that occur w/in one state IF it has an effect on other
states”
i. This was a “very functional broad reading” of the commerce clause
c. “This power like all other invested in congress, is complete in itself, and may be
exercised to its utmost extent, and acknowledges no limitations, other than are
prescribed in the constitution
i. This sets a precedent for the commerce clause interpretation
d. Interstate commerce is an enumerated power:
i. Historical Argument: Power over commerce is one of the reasons the
constitution was written (problem with Articles of Confederation)
ii. Structural Argument: It is accepted that Congress has power over foreign
commerce—must be given same meaning w/regard to states
e. Congress has “plenary power”
f. States cannot regulate commerce directly BUT can do it indirectly through taxes
and police power—must look at general welfare, not commerce
ii. 1890-1937—Limited Federal Commerce Power (Cts start looking for limitations to CC in
response to antitrust laws)
1. What is commerce?
a. US v. E.C. Knight—Should Congress be able to regulate manufacturing
i. Summary: Congress passed the Sherman Antitrust Act of 1890 as a
response to the public concern of giant corporations controlling different
industries; D controlled 98% of sugar refining in the US
ii. Rule: A direct, logical connection with stream of commerce must
exist—NOT things that are indirect or ancillary to the stream of
commerce
1. Manufacturing is separate from commerce and there is no
“hook” for it—thus it is “indirect and ancillary”
b. Carter v. Carter Coal- Can Congress regulate the mining industry
i. Summary: Congress passed an act that regulated the min. wages and
max. hours, and fair practices of the coal industry
ii. Holding: Although the mined coal will end up in interstate commerce,
the actual mining is too far removed from interstate commerce
iii. Rule: It is NOT a question of the extent of the effect, but a logical and
direct link between the precise activity and the commerce clause
1. Employee and employer relationship are “local relationships”
which are outside the commerce clause
2. They are “local evils the fed. govt. has no control over”
2. What does “among the states mean”?
a. Shreveport Rate CasesPage 14 of 38
i. Summary: Texas RR Comm. mandated that they charge higher rates on
freight traveling btwn Louisiana and Texas than on freight traveling
solely w/in Texas
ii. Holding: ICC can regulate the intrastate commerce if it has “such a close
and substantial relationship to interstate traffic”
1. Court allowed Congress to regulate intrastate commerce
because of its effect on interstate commerce
2. Look for a “substantial” effect and “close” relationship
b. ALA Schechter Poultry Case v. US—Sick chicken case
i. Summary: Buying chicken in NY and the govt passed laws that regulated
those purchased chickens
ii. Holding: Regulation of chicken is NOT allowed b/c NY is the end of the
stream—thus not part of the stream of commerce
iii. Rule: Commerce is a stream—analogy to a literal stream—and if the
place that is being regulated is just a little weigh station w/in that stream,
it is in the stream of commerce and subject to federal regulation
1. Must be part of the current, ongoing stream and critical to its
movement
iii. 1937-1995—Broad Federal Commerce Power
1. History: President Roosevelt won a landslide victory in 1936 and saw this as a strong
endorsement for the New Deal programs that the court was invalidating
a. President Roosevelt proposed legislation to pack the court w/justices if any of the
judges were over 70 years old
b. “The switch in time that saved nine” refers to the Justice switching his vote to
allow some new deal legislation to make it though the SC to appease Roosevelt
2. NLRB v. Jones & Laughlin Steel Corp.
a. Summary: Iron and steel manufacturing co. was charged w/engaging in unfair
labor practices in violates of the National Labor Relations Act; this act tried to
stop business from firing people part of a union
b. Rule: “If activities have such a close and substantial relation to interstate
commerce that their control is essential or appropriate to protect that commerce
from burdens and obstructions, Congress can NOT be denied power to exercise
that control (“Substantial effect on interstate commerce” test)
i. Stream of commerce theory wasn’t completely dismissed, but reframed
w/in the current test—you just need a flow and a substantial relationship
ii. This returns bank to the broad interpretation under Gibbons
c. Holding: B/c there is a network of operations in a wide variety of states, a work
stoppage in one state would “substantially effect” other states
3. Wickard v. Filburn
a. Summary: Small farm produced excess wheat than allowed for personal use
b. Rule: “Congress can regulate what seemed to be trivial activities if, added
together, they had, as an aggregate, a non-trivial affect on commerce”
i. This is called the aggregate effect analysis and the question to ask is
“what if everyone did it”?
ii. This is an exceptionally functional approach—if congress is going to
regulate commerce they must be able to regulate some purely local
activities b/c in the aggregate it would cut against what their regulations
4. Civil Rights Era Cases
a. Heart of Atlanta v. US
i. Summary: Hotel has a policy of NOT renting rooms to blacks; 75% of
their business was from out of staters
ii. Rule: “Commerce power includes the power to promote commerce and
regulate/prohibit commerce”
Page 15 of 38
1. It does NOT matter for CC analysis, if the effect will increase or
decrease interstate commerce, it just matters that it affect it
2. It’s OK that it was morally motivated—it just needed a hook
a. Test Note: Mention that commerce does NOT have to
be the motive behind the legislation
iii. Holding: Congress can regulate segregation policies b/c the substantial
relationship btwn segregation policies that discourage travel and in
aggregate, affects interstate commerce
1. “If interstate commerce feels the pinch, it does NOT matter how
local the operation which applies the squeeze”
b. Katzenbach v. McClung & McClung
i. Summary: Family BBQ near interstate hwy refused to seat black people;
46% of their meet is from out of state
ii. Rule: “When the court finds that legislators, in light of the fats and
testimony before them, have a rational basis for finding a chosen
regulatory scheme necessary to the protection of commerce, the
investigation is at an end”
1. If, in aggregate, it “substantially affects commerce” AND
Congress has a “rational basis,” the act will be upheld
a. Rational basis was a VERY low bar
iv. 1995-Present—Narrowing of the Commerce Power
1. History: Prior to Lopez in 1995, court interpreted commerce clause to allow congress to
do pretty must anything—it was a carte blanche situation
2. US v. Lopez
a. Summary: Congress made it illegal for any person knowingly possess a firearm
in a school zone; Lopez, a 12th grader, carried a concealed gun to his high school
b. Holding: CC does NOT extend to regulation of carrying handguns
i. “To uphold the government’s contentions here, we have to pile
inference upon inference in a manner that would bid fair to convert
congressional authority under the CC to a general police power of the
sort retained by the States.”
c. Rule: Four categories which congress has power over
i. (1) Channels: Freeways, air traffic (goods and services that affect these,
and move through)
ii. (2) Instrumentalities: Buses, trucks, mail, telephone, etc…
iii. (3) Substantially Affect: Impacts Commerce
1. Only economic activities can be aggregated
2. Courts look to legislative history
3. Look for a proximate cause
4. Must have a hook
iv. (4) Express Jurisdictional Limit: To the extent that congress regulates
something w/a jurisdictional hook, it is OK
1. So long as they limit the JXN of it or make it part of the rule that
must be proved by prosecution, it is OK for CC
2. Only “economic activities” can be aggregated
d. Reconciling w/Precedent
i. No tie to interstate commerce—purely a criminal act
1. Have a gun near a school is criminal NOT commerce—so even
in aggregate it is still not commerce
2. Pre-Lopez rational basis was sufficient—now, Congress’s
regulation must IN FACT have a substantial effect on interstate
commerce
3. Existence of findings is NOT necessarily enough for it be
sufficient and fall under the CC
Page 16 of 38
ii. It is NOT going against prior precedent—modern precedent still stands
they are just limiting the very expansive previous precedent
1. There has always been limits, and congress has never breached
them until now
e. Kennedy/O’Connor’s Concurrence:
i. This decision is OK b/c it respects stare decisis
ii. Federalism: Question of states rights is, in part, driving the decision b/c
there are “traditional concerns” that should be left to the state b/c they
are “laboratories”
1. Traditional concerns include:
a. Education, crime, family law (marriage, custody, etc)
f. Thomas’s Concurrence:
i. Go back to the textual origin of the CC
ii. Anything beyond “bartering and selling” is NOT commerce
1. Must be transactional to make sense of “among states”
2. We don’t apply “substantially affect” to all of Congress’s
powers—make war—so why should we here?
g. Breyer’s Dissent:
i. Ct is returning to categorical judgment—trying to find logic for why
there are limits to CC—this failed in past, why go back to the past
problems
ii. Wants Rational Basis Test: “Ct must give Cong. a degree of leeway in
determining the existence of a significant factual contention, the question
before us is not whether the regulated activity sufficiently affected
interstate commerce; rather, whether Cong. had a rational basis for so
concluding”
3. US v. Morrison
a. Summary: A college girl was raped; school did very little; she sued under the
VAWA which provided a civil remedy for the victims of gender-motivated
violence
b. Difference from Lopez: Here, congress did a 4 year study to prove the effect of
interstate commerce, and then passed the law
c. Rule: Findings are NOT necessarily enough
i. “We the court are the deciders of whether there is a sufficient
connection—there must be a line upon what is clearly local and what is
clearly federal”
ii. “Simply b/c Congress may conclude that a particular activity
substantially affects interstate commerce does NOT make it so”
d. Holding: The studies indicated that congress was making inferences which it is
not supposed to do
i. Causal chain is two long here—if this was allowed, congress could
regulate anything
4. Pierce County Washington v. Guillen
a. Summary: Cong. passed legislation meant to assist states in identifying highways
in need of safety improvement; made the state reports confidential; man sued for
information to prove that state knew of dangerous intersection that killed his wife
b. Rule: We do allow a pile of “inferences upon inferences” as long as congress can
see a link between them
c. Holding: CC lets congress regulate and protect instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat
may come only from intrastate activities
i. A road does NOT lose its character of being an “instrumentality” just b/c
it is solely w/in the state b/c it connects to the federal system of interstate
highways
Page 17 of 38
ii. “Even though the threat comes from purely local activities and we are
adding onto the road itself b/c of unforeseen side effect to the system,
congress could reasonably believe that the confidentiality aspect would
affect interstate commerce”
5. Gonzales v. Raich—A step back
a. Summary: CSA regulated marijuana against a CA statutes for medical uses; 2
women were “suffering” by not having their pot plants; FDA took plants
b. Holding: Fed. government can regulate marijuana b/c it is a good in commerce
i. Different from Morrizon and Lopez b/c there congress didn’t regulate the
overall market, just individual instances
ii. Additionally, here, the activities are quintessentially economic
1. Once you confirm that it’s economic, all you have to do is use
rational basis test to determine if Congress had a rational reason
behind the legislation
iii. Rely heavily on the Wickard principle
c. Rule: If the activity and regulation aim is commercial/economic—we can
evoke Wickard and Civil Rights cases that allow regulation of purely local or
intrastate activities
d. Scalia’s Concurrence:
i. “Substantial effect test” is justified by the CC and the Necessary and
Proper Clause
ii. Here congress is trying to regulate a large market and thus trying to
regulate a small part that would affect the whole is fine b/c of the N&P
e. O’Connor’s Dissent:
i. States are laboratories and intruding on something that is arguable not
economic, the ruins the benefit of having the laboratory system
ii. “Something more than an assertion is required when Congress
purports to have power over local activity whose connection to an
intrastate market is not self-evident. Otherwise the N&P clause will
always be a back door for unconstitutional federal regulation”
iii. Creates “perverse incentives” for congress—so long as they regulate
wide enough (b/c a wide net will definitely affect commerce) you can
add smaller, unrelated legislation that otherwise would fail as long as it
is related to the broader scheme
f. Thomas’s Dissent:
i. Need to go back to 1790 and use the text and history of the clause to
enact legislation under it
ii. Text suggest to him that CC can only regulate actual goods across actual
state borders
3. Spending Power—Covered in the NY v. US and South Dakota v. Dole
a. Generally: Comes from Art. 1, §8
i. Power to tax (for whatever it wants)
ii. Uses this power to persuade states to comply when federalism otherwise would keep Congress
from doing what it wants
b. Rule: Congress may use the spending power to create fiscal incentives to get states to pass federal law
i. MUST spend with “general welfare”
c. Test: Congress MUST attach “reasonable conditions” with legislation
i. Must help/be related to the general welfare
ii. Must be expressly explicit—can NOT just sneak it in there
1. If it’s ambiguous, the states will get the money and won’t really have any strings attached
to it—the courts will side with the states, not with congress on ambiguity issues
iii. Conditions on federal grants must have a “reasonable relationship” with a legitimate federal
interests in a particular federal program
1. Reasonable relationship has a wide latitude (seen in SD v. Dole—hwy $ & drinking age)
Page 18 of 38
iv. Other constitutnal provisions may provide an indpndnt bar to the conditional grant of fed. funds
d. Limits:
i. Congress does NOT always regulate by dangling a financial carrot in front of the state b/c they
may run out of money and it is not reasonable in the long run
LIMITATIONS ON CONGRESS: 10TH AND 11TH AMENDMENTS
1. Can Congress require states to comply with federal law? YES—Whenever it wants
a. Typically considered a 10th amendment question: “The powers delegated to the US by the constitution,
nor prohibited by the states, are reserved to the States respectively, or to the people”
i. During the broad time of the CC allowance, the 10th amendment was seen as a “truism” that
served mostly as a reminder to respect state’s rights
1. Court’s were sick of this when Usery was decided
b. National League of Cities v. Usery
i. Summary: Congress enacted the “Fair Labor Standards Act” and required employers covered
under the Act to pay their employees a minimum wage and time and a half over 40 hours; several
states and cities challenged the constitutionality of this act
ii. Rule: In areas of “traditional state activities”—federal government can NOT infringe on state
decisions b/c of federalism and the 10th amendment
1. Problem: No definition of “traditional state activities”
iii. Holding: Limited by the 10th amendment
1. “States qua states”: States can choose to be a state and operating as such, and sovereigns
do NOT let other sovereigns tell them how to things—there are “functions essential to
separate and independent existence”
iv. Policy Justifications: Increases costs for states, decreases cadet training times, forces states to cut
services to meet the increase in salary wages
c. Garcia v. San Antonio Metropolitan Transit Authority—Step back (Blackmun switched his vote)
i. Holding: Overrules Usery—it is “unworkable and unsound”
1. Determining what constitutes “traditional governmental functions” is too difficult to use
as a rule and has lead to inconsistent results
2. This allows unelected courts to choose when they like a regulation and when they don’t
3. This is NOT an area best left up to the judicial realm because:
a. 10th amendment does NOT have a meaningful thrust (a provision which
prohibits this)
b. States can protect themselves through the political process—senators are chosen
by states and electoral college selects the president
i. States are protected by the structures of the constitution (provisions
which protect states)—instead of substance of the constitution
c. Not a workable standard—too much impairment and discrepency
ii. Rule: Congress CAN apply rules to states if generally applicable (if it happens to affect states,
that is OK—it just can NOT be aimed directly at states)
iii. Dissent:
1. Rehnquist says that we will probably come back to this philosophy soon—this makes the
court look illegitimate and a body that does NOT enforce core constitutional values
2. This decision “reduces the 10th amendment to meaningless rhetoric when Congress acts
pursuant to the CC”
3. “The court, an unelected majority of five justices, today rejects almost 200 years of the
understanding of the constitutional status of the 10th amendment”
iv. Effect: 10th amendment has NO “meaningful thrust” in these types of cases
1. Congress must be very explicit in its language
2. The 10th amendment, if congress has the CC hook, will NOT stand as a limitation to the
federal government’s power to force states to comply with federal law
2. May Congress tell the states what laws to enact? NO (5-4)
a. NY v. US (5-4 decision)
Page 19 of 38
i. Summary: A federal law created a statutory duty for states to provide safe disposal of radioactive
waste generated w/in their border; the law provided states would “take title” to any waste w/in
the borders that were NOT properly disposed of and would be liable for any/all damages incurred
ii. Holding: “The federal government cannot commandeer the legislative process” and the take
title provision “commandeered” the state governments by directly compelling them to participate
in the federal regulatory system
1. “States are NOT mere political subdivisions of the U.S.—state governments are
neither regional offices nor administrative agencies of the federal government”
2. Majority adopts a very formalistic approach
iii. Rule: 10th amendment precludes Congress from forcing a state to pass law—Congress has power
to encourage (through “dangling a carrot”) states to pass law, but is prohibited from
“compelling” a state to pass a law
1. Congress may do the following:
a. Force states to obey federal law
b. Say that congress will be taking over the whole field and only federal laws will
govern in that area
c. Entice the states to act by “dangling a carrot”
i. May use the spending power (see previous section on hooks)
iv. Reasoning:
1. Government can NOT force a legislative act b/c there is NO political accountability—if
the states are required to pass the law, the citizens will be mad at the state government,
not the federal government
a. Makes it so congress is NOT accountable to the people and the states are the one
who get the “bad rap”
2. Two choices between two unconstitutional provisions is NO choice at all
3. “State officials canNOT consent to an enlargement of the powers of Congress beyond
those enumerated in the constitution”
a. Even if it is “OK” with everyone else
v. Dissent: (Functionalist approach)
1. “The ultimate irony of the decision today is that in its formalistically rigid obeisance to
federalism, the court gives Congress fewer incentives to defer to the wishes of the state
officials in achieving local solutions to local problems”
a. The statute passed was a cooperative scheme
b. South Dakota v. Dole
i. Summary: Federal government passed the “National Minimum Drinking Age Act” that required
all states to pass a law limiting drinking age to over 21 or they would lose 5% of their hwy fund
grant given by the government; ND had 18 yr old drinking age and didn’t want to change it
ii. Holding: Congress had a “reasonable link” between (regulation) regulating drinking age and
(condition) federal highway funds
1. Court interpreted broadly the third test in the spending power
2. See spending power discussion
iii. Dissent:
1. By the majority’s interpretation, the link is too easy to make and Congress can regulate
almost anything
2. Although nothing is “forcing” the states to take the money, they are effectively being
forced b/c they need the money to operate/maintain their roads
3. May Congress force state executive officials to enforce federal law against state’s own citizens? NO
a. Printz v. US
i. Summary: Brady Act was passed requiring background checks before purchasing a handgun;
until the federal agency was ready to do it, the Act required local state police to do the
background check for each purchase
ii. Majority:
1. Text:
Page 20 of 38
a. Not much textual support—the 10th amendment does NOT articulate specific
provisions of protection
2. Tradition/History:
a. Congress has historically made “suggestions” to state legislatures—they never
required them to enforce them
b. State court can be mandated to take federal cases b/c of a federal order, but the
constitution provides for this
3. Structure:
a. Federalism and separation of powers arguments
b. States under our system operate independently; since they are sovereign, they
cannot be told what to do
c. Federal government has its own executive branch, and congress could get
around the president by assigning actions to local executive authorities and
NOT the federal executive authority
4. Precedent:
a. US v. NY provided that you could NOT do this—not really a good argument b/c
the facts and situations are completely different—and the same political
accountability and separation of power concerns exist here
5. Policy/Dynamic Interpretation:
a. Temporary usurpation is STILL unconstitutional
b. Federalism is a fundamental aspect of our government
c. Lack of accountability to congress
d. Very formalist approach
iii. Minority:
1. Text:
a. The CC coupled with the N&PC allow for Congress to do this
b. 10th amendment is NOT a limitation to enumerated powers—the text reads
that “powers not delegated to the US by the Constitution, nor prohibited by the
states, are reserved to the States respectively, or to the people”
i. Test Note: INCLUDE THIS ARGUMENT! Jones really likes this
argument and it would go well in 10th amendment analysis
2. Tradition/History:
a. A of C failed b/c of this problem—thus they gave more power to the fed govt
b. Federalist papers argued for this power and that this would occur
c. Early on the federal government relied on state officials to collect taxes
3. Structure:
a. States are already represented by Senators (E.g.- Unfunded Mandate Reform)
b. “A structural problem that vanishes when the statute affects private
individuals as well as public officials is NOT much of a structural problem”
4. Precedent:
a. There is NO mandate in the Brady Bill for state legislatures to enact laws like in
NY—this is merely asking the states to do something that they are already
equipped to do (not an additional burden)
b. Commandeering the executive is different than commandeering the legislative
5. Policy/Dynamic Interpretation:
a. If there is an emergency, not allowing for exceptions or for the federal
government to do this would really hurt efficiency and possible help that could
be rendered
b. We actually have the federal power to press private people into action—to the
extent we can demand our citizens to do something surely we can require the
states to do it too
c. Very functional approach
b. Reno v. Condon- Tell states to obey fed law = OK, tell states to enact federal law = NOT OK
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i. Summary: Federal law prohibited states from disclosing personal information gained by
departments or motor vehicles, such as addresses, phone numbers, SSN #s, and medical info
ii. Holding: “The law does NOT require the states in their sovereign capacity to regulate their
own citizens. It does NOT require SC legislature to enact law or regulations, and it does NOT
require state officials to assit in the enforcement of federal statutes”
iii. Rule: Congress may prohibit state governments from engaging in harmful conduct, particularly
if the law also applies to private entities
1. Congress may not impose affirmative duties on state governments
iv. Reasoning:
1. Data is a “thing” or “good” of interstate commerce (Authorization)
2. Congress passed the law themselves and it “prohibits” the states from doing something
3. This law affects BOTH state and private entities
4. Regulates state actvties, but does NOT control the states way of regulating the people
5. Different then prior precedent:
a. Contrary to NY b/c this is NOT requiring state to pass a law
b. Unlike Printz b/c it is congress enforcing a law against the state—not forcing
state executive to enforce a law against the people
v. Overall Summary:
1. When it is just a federal statute regulating the behavior of entities (whether state or
private) the 10th amendment is NOT offended b/c no commandeering of the state leg. or
exec. process; rather, we have an application of a general law against the state
4. May Congress authorize citizens to sue their states under federal causes of actions? NO—but there are
exceptions
a. 11th amendment: (Answer to the above question is governed by the 11th amendment)
i. Text: “The judicial power of the US shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the US States by Citizens of another state, or by citizens
of subjects of any foreign states”
1. This means that a private plaintiff may NOT sue a state for damages in federal court
2. 11th amendment serves as a limit on the jurisdiction of federal courts
ii. The 11th amendment was passed in response to the Chisholm case
1. Chisholm: SC said it was OK to sue the state of Georgia and there was an uproar
iii. Current 11th amendment interpretation:
1. As a matter of case law, 11th amendment is read to mean that in-state and out-of-state
citizens can NOT sue the state governments
a. Hans case made states immune from suits from their own citizens
2. States can NOT be sued for damages in federal court—period
3. States have full sovereign immunity where they are seeking monetary damages for
states violating federal law—can NOT happen in state or federal courts (Alden v. Maine)
a. Alden v. Maine
i. Summary: Congress using §5 of the 14th amendment authorized federal
courts to award monetary damages in favor of private parties
discriminated against by a state government on the basis of their “race,
religion, sex, or national origin”
ii. Rule: State governments may NOT be sued in state court, even on
federal claims, w/o the state’s consent
iii. Reasoning:
1. Constitution does not speak directly to this issue, but it hinges on
the “fundamental aspect of sovereignty that the states
enjoyed before ratification and they enjoy up to this day”
2. Federalism requires that this occur—“state sovereign immunity
is necessary to maintain the state sovereignty that lies at the
heart of federalism”
3. “Sovereign immunity derives NOT from the 11th amendment,
but from the structure of the original constitution itself”
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4. Must respect a sovereign—don’t need to worry that states will
violate their own peoples rights
a. Jones thinks this is a really weak argument b/c it would
mean that states never do anything bad to their citizens
b.
c.
d.
e.
iv. Problems:
1. Must choose between federalism and textualism b/c 11th amendment is NOT textually
as broad as it has been interpreted
Exceptions (“ways around”) sovereign immunity
i. A citizen may sue state officials for injunctive relief
1. Done through a “ex parte young” case
2. Can only get injunctive relief—cannot get monetary damages or relief
ii. States can waive their 11th amendment immunity
1. Courts will NOT “assume” lightly that they waived their immunity—there must be an
explicit waiver of the rights
2. Usually occurs when the federal government requires them to waive immunity to get
federal aid or grants
iii. Federal government may sue in behalf of a class of people
iv. 11th amendment does NOT bar suits against cities and municipalities
v. States may be sued for money damages under 13th, 14th, and 15th amendments
1. These civil rights amendments were pass later and trump the 11th amendment
WHY may Congress authorize suits against states pursuant to § 5 of the 14th amendment?
i. 14th amendment was enacted after 11th (thus meant to supersede)
ii. 14th amendment is meant to protect individual liberties from incursion by the state (acts as an
express limitation on the states)
1. “Nor shall any state deprive any person of… without due process of law and equal
protection”
iii. §5: Acts as a new grant of authority (new enumerated power)
1. “Congress shall have power to enforce, by appropriate legislation, the provisions of
this article”
2. Gives Congress a new hook—no longer need Article 1 hooks/powers
3. It is a power expressly given to Congress to regulate states
iv. Rule: When Congress, acting appropriately to §5 of 14th amend., then the federalism
limitations we discussed leave
1. Congress may tell states what to do, AND
2. Congress may subject states to suits in federal courts, AND
3. This section is NOT limited by powers of federalism
v. The real question becomes: When is Congress acting appropriately pursuant to §5?
WHO can Congress regulate under the 14th amendment?
i. Rule: Congress may ONLY regulate state actors, not private citizens using §5 (Morrison)
1. This is different than the 13th amendment (slavery) which applies to private actions
2. CanNOT regulate IBM or Google using the 14th amendment
ii. US v. Morrison
1. Summary: A college girl was raped; school did very little; she sued under the VAWA
which provided a civil remedy for the victims of gender-motivated violence
2. Holding: §5 canNOT be used to regulate private behavior
3. Reasoning:
a. Text of the 14th amendment is clear that it applies ONLY to the states
i. Court did NOT stop here b/c there is VERY strong policy arguments
against the text (i.e.- where is the rape victim’s remedy?)
b. This was passed during the civil war, and the consensus was that this was only a
state action (judges on the court that first interpreted it were ones that helped
pass it so they would know what it meant) (Historical support)
HOW can Congress enact laws under §5?
i. §5 reads: “Congress shall have power to enforce…”
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ii.
iii.
iv.
v.
1. ONLY the power to enforce
a. This allows them to give remedies and enforce rights and powers under 14th am
Rule: Courts determine what rights due process and equal protections protect, congress
protects those rights
1. Congress canNOT create those rights!
Katzenbach v. Morgan & Morgan—This is an OUTDATED approach
1. Summary: Voting Rights At provided anyone from Puerto Rico who graduate 6th grade
could NOT be denied voting rights b/c they were unable to speak English; NY sued
stating this was unconstitutional
2. Holding: Congress acted appropriately under §5—“Congress can used §5 to prohibit
conduct that does NOT violated the 14th amendment, but could lead to a violation of the
14th amendment”
a. This is enforcement—not a creation of a right
3. Reasoning:
a. Ct. gives huge amount of deference to congress
i. “It was for congress to assess and weigh the various considerations”
ii. This was a rational basis test
b. “Prophylactic measures” are appropriate use for Congress
i. They are appropriate b/c §5 gives power to Congress to “enforce” by
“appropriate measures”
1. This is like the N&PC
ii. Just as the N&PC lets congress do things that are “appropriate”, so
does §5—it lets Congress enforce the problems the courts have
recognized and do things that are “appropriate”
4. Dissent:
a. Judicial branch defines, NOT congress
b. If Congress is allowed to define liberties, it would contradict what the
constitutional expressly disallows
City of Boerne v. Flores—(6-3) This is the CURRENT approach
1. Summary: City challenged the Religious Freedom Restoration Act which expressly
overturned the recent SC decision and reinstated the “compelling government purpose”
test; church in Texas was prevented from remodeling b/c it was a historical landmark
2. Holding: Katzenbach was NOT overturned—§5 can still be used to regulate conduct
explicitly stated by the ct and prophylactic measures are OK, but that is NOT the case her
a. §5 power is to enforce, NOT define new rights
b. §5 power is “remedial”—NOT “definitional”
c. Congress canNOT decree “the substance of a right by changing it”
3. Test: (Two parts) The behavior of the states and response by congress must be
congruent and proportional
a. Congruence, AND
i. Congruence = the right kind of law
b. Proportionality
i. Proportionality = the right amount of the law
4. Reasoning:
a. “If congress could define its own powers” the constitution would “no longer be
the superior law” and congress could tinker with it as they desire
b. They originally considered using “necessary and proper” for the 14th amendment,
but they reworded the amendment to limit the power to enforcement only
5. Dissent:
a. Not really focused on this case, but want the decision in Smith to be changed
Pennsylvania v. Union Gas Co.
1. Holding: Congress may override the 11th amendment and authorize suits against state
governments pursuant to any of its constitutional power so long as the law in its text
expressly authorizes such suits
Page 24 of 38
f.
a. Congress must explicitly articulate they are abrogating state immunity
vi. Seminole Tribe of Florida v. Florida
1. Summary: Congress passed the Indian Gaming Act that authorized a tribe to bring suit in
federal court against a state to compel the state to negotiate in good faith with the Indians
for a compact for gambling; Florida refused to enter into a negotiation with local Indians
2. Holding: Overruled Union Gas AND gave test for valid abrogation of state immunity
3. Reasons Overruling Union Gas is OK:
a. It created confusion in the lower courts
b. It didn’t have a majority rationale to reach the decision
c. It was a departure from the previous understanding of how the constitution
worked
d. Wasn’t decided too long ago—reliance issue
e. It was a “constitutional” case—court is more willing to overturn if it is a
constitutional case
i. Congress can easily fix a statute, but it is difficult to change the
constitution—a misinterpretation of the Constitution is more dangerous
and really, really hard to amend the constitution—the court itself can
just fix the mistake it has made
4. How Broadly SHOULD state sovereign immunity extend?
a. Majority: It is broad and sweeping principle and monetary damages can only be
brought it if is line with the proportionality and congruence test
b. Minority: The text of the 11th amendment does Not support the holding and the
judges are using state rights and sovereign immunity to get rid of distasteful
federal social regulations
i. It is lack of candor—conservative judicial activism
Test/Process for Valid Sovereign Immunity
i. (A) Unequivocal expressed intent by Congress to abrogate states immunity in statute, AND
1. Typically need to put the word “states” in there to ensure it is explicit enough
ii. (B) Congress acted “pursuant to a valid exercise of power”
1. Must use §5 AND be (1) Congruent and (2) Proportional
a. CanNOT be a Article 1 power (e.g. CanNOT use the CC as the hook)
b. Congruent= fits, and Proportional= fits (must “fit” and “fit”) 
2. Three Step Process to Determine if it is Congruent and Proportional
a. (1) Identify the underlying constitutional right of the issue
i. Determine what type of right it is and how much protection is given to it
by the constitution
ii. Constitutional Rights/Levels of Deference:
1. Rational Basis
a. Rule: Is it reasonably/rationally related to a legitimate
government interest
i. Give GREAT deference to states—it is very
rare that the state’s actions are unconstitutional
b. Areas that are NOT given suspect classification
i. Ex: Age, economic rights, religious freedom
2. Intermediate Scrutiny
a. Rule: Is it substantially related to an important
government interest
i. This means less deference to states—won’t
uphold if action is merely reasonable
b. Ex: Gender
3. Strict Scrutiny
a. Rule: Must be narrowly tailored to meet a compelling
government interest
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i. Give very little deference to states—this means
most behavior will be unconstitutional
b. Ex: Race, free speech, appear in court, or other suspect
classifications
b. (2) Assess the history of unconstitutional conduct by the states and the
adequacy of congressional findings
i. Look to see if there is a “pattern and practice” of the state violating the
constitutional right
ii. Look for the “§5 prophylactic trigger”
1. Look for the pattern of discrimination so that the right needs to
be protected
c. (3) Compare constitutional doctrine with statutes remedial scope (it is over
or under inclusive)
i. Check that the “means and the ends” fit—this is the test
g. Application of Valid Abrogation Test in Cases
i. Florida Prepaid v. College Savings Bank & US
1. Summary: Congress amended patent laws to expressly abrogate state immunity; P
claimed that Florida violated his patent for financing future college expenses
2. Holding: Met prong 1, but NOT prong 2
a. Constitutional Right: Patent Infringement
i. No level of scrutiny is being applied here b/c it is an authorization case—
not a rights case
ii. Tried to use Art. 1 authorization (patent clause and CC), but it did not
work
b. Adequate History: Insufficient—no real evidence that the state was acting
unconstitutionally, not just acting badly
i. Congress even said in their finding that states typically “obey patent
laws”, but wanted it passed to protect future problems
ii. This is a crock b/c the Boerne standard was NOT in place when this Act
was first passed by Congress
ii. Kimel v. Florida Board of Regents (Rational Basis Right)
1. Summary: ADEA makes it unlawful for an employer, including a state, to “fail or refuse
to hire or discharge an employee on the basis of their age”
2. Holding: Met prong 1, but NOT prong 2
a. Prong 1: Explicitly stated that immunity was abrogated
b. Prong 2: Not met because…
i. Right: Age discrimination (rational basis)
1. States have a rational basis to discriminate on age (it saves them
money not to employ old people who easily get sick)
ii. Evidence: Insufficient evidence of a “pattern of discrimination”
1. The evidence presented of discrimination was in the private
sector—not by the states
2. Court requires a “large” record of state discrimination
3. Dissent:
a. It does not make sense that Congress can pass a right, but not give a remedy to a
violation of that right
i. How can they have a hook for the statute but NOT the remedy?
b. This is a political question—let the political process take care of it, NOT the cts
c. How can we assume that just because one magically works for the state
government they will stop their discriminatory tendencies—if one discriminates
in the private sector those same people will do it in the government sector
d. All 4 dissenters want Union Gas to be the standard (all you need is expressed
intent to abrogate)
iii. Board of Trustees Univ. of Alabama v. Garret (Rational Basis Right)
Page 26 of 38
1. Summary: P was diagnosed with cancer and was head nurse; took leave of absence and
when she came back they didn’t give her the head nursing job again
2. Holding: Met prong 1, but NOT prong 2
a. Prong 2:
i. Right: Not be discriminated b/c of a disability (rational basis)
1. State had a rational basis to discriminate b/c of a disability to
save money and time for the hospital
ii. Evidence: (More here than Kimmel, but it is still insufficient)
1. There is A LOT of evidence showing discrimination, BUT
although it was bad, very little was unconstitutional
2. O’Conner comments that the lack of litigation on the issue in
the past indicates that not much of the discrimination was
unconstitutional
3. Not enough for “widespread pattern of unconstitutional
behavior”
a. Example included: Deaf teacher and hearing test
3. Dissent: (Breyer)
a. If there is a pattern and practice in private conduct of discrimination, why
would it be any different for the state?
iv. Nevada Dept. of Human Resources v. Hibbs (6-3) (NOTE: Rehnquist switched his vote to write
the majority opinion and save doctrine the ct had established thus far) (Intermediate Scrutiny)
1. Summary: P sought leave from his job w/the state to care for his ailing wife; they fired
him for taking too much time off
2. Holding: Met prong 1 AND met prong 2
3. Analysis: (Prong 2)
a. Right: Gender (Intermediate level right)
b. Evidence:
i. Rule: Heightened scrutiny = easier to establish pattern of violation
by state
1. Don’t need to necessarily show unconstitutional behavior by
the states, just need to show some level of discrimination
ii. “B/c the standard for demonstrating the constitutionality of a gender
based classification is more difficult to meet than our rational basis
test—it was easier for Congress to show a pattern of constitutional
violations by the state”
v. Tennessee v. Lane (Strict Scrutiny)
1. Summary: D is a paraplegic who had to appear in a court house and had to crawl up
flights of stairs to access the court room; other paraplegics couldn’t access court
2. Holding: This case dealt with rational basis, intermediate scrutiny, and strict scrutiny
rights, but the court parsed our the strict scrutiny right and held that Title 2 could be
used to abrogate state sovereign immunity
3. Analysis:
a. Right: Appear in court (strict scrutiny)
b. Evidence:
i. B/c right is so large and important, the court is very generous in their
reading of the record and will find that the means and ends fit—even if
the record is lacking
4. Rule: Appropriateness of the remedy depends on the gravity of the harm that is
trying to be prevented
a. Given the huge right on the other side of the scale, the prophylactic measure is
appropriate
i. Even one violation may be sufficient (under strict scrutiny) to warrant
the prophylactic measure
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b. Means must be “tailored”—they were here b/c states had to only make
“reasonable accommodations” for people to attend court
5. Dissent:
a. Scalia: “I yield to lessons of experience—the ‘congruence and proportionality’
standard, like all such flabby tests, is a standing invitation to judicial
arbitrariness and policy driven decision making”
i. Get rid of the standard rely merely on “enforcing” the 14th amendment
principles like the amendment reads
b. The broad sweep of legislation (covering private actions) shows that the act was
NOT congruent or proportional
vi. US v. Georgia
1. Summary: Paraplegic inmate in Georgia was denied outside access, couldn’t move
wheelchair, and had to sit in own feces
2. Holding: In a case where P himself argues a constitutional violation, §5 is immediately
satisfied and you don’t need the proportionality or congruence test—it is
IMMEDIATELY fulfilled b/c this is NOT a prophylactic measure, but truly enforcing a
right that existed under the 14th amendment
a. If you have an actual constitutional violation (not alleging that they violated a
statutory right created by congress—e.g. ADEA), you don’t need §5 analysis
b. Scalia: Still need to limit the test to “enforcement”
5. Federalism Policy Discussion:
a. Pro-Federalists: (Pro state rights)
i. Framers wanted power to be diffused btwn the diff. states b/c they were fearful of federal tyranny
ii. Each state needs to be a laboratory to try to see if we can get things to work differently
iii. Each state has different weaknesses and they know best how to handle them
iv. Democracy functions through speaking to your local leader who really knows you/your problems
b. Anti-Federalists: (Pro federal government)
i. A of C didn’t work for a reason—you need a strong centralized government
ii. Communication has progressed enough where the federal government is close enough to the
people to know their needs and wants
iii. Uniformity is better
iv. Civil war erupted over states rights
v. Our federal government is structured in such a way that state’s voices can be heard
6. When Stare Decisis May be Disregarded
a. See Seminole Tribe
LIMITS ON STATE POWER
DORMANT COMMERCE CLAUSE
1. Generally
a. Police Power
i. Congress has enumerated powers, but the states have the “general police power”
ii. Power of the states to protect the health, safety, welfare, and morality of its citizens
iii. Policy Support: The states had this power before they ratified the constitution and the power
remained with them after the ratification
b. Limitations on State Action:
i. Express Limitations: Written in the constitution
1. Textual limitations committed in the constitution
a. Ex: States can’t coin money
2. States may be expressly limited from doing things UNLESS congress gives its consent
a. Ex: Waging war
3. Express limitation housed in the individual liberties of the constitution
a. Ex: Bill of rights and the guarantees to individuals are applied against the state
ii. Implied Limitations: Come from doctrines that have to do with state’s place in federal system
1. Supremacy—federal law trumps state law (Article 6)
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a. State and federal laws do NOT have to be in direct conflict for federal law to
trump
i. No testing on the supremacy clause
2. Preemption—federal law preempts state law
a. Congress passed a statute
3. Dormant Commerce Clause
a. No statute has been passed
2. Rule: State and local law may NOT place an “undue burden” on interstate commerce
a. Congress has NOT passed a statute—if they had, then it would be preemption
i. ONLY occurs in situations where Congress has NOT regulated a certain industry, but could if
they wanted
b. Involves a state law that touches on some aspect of interstate commerce
3. Justification for the Doctrine:
a. Arguments For:
i. Text:
1. Art. 1 §8 makes regulating commerce the specific business of Congress
ii. Structure:
1. “The Constitution was framed upon the theory that the people of several states must sink
or swim together, and that in the long run prosperity and salvation are in union and not
in division”—Cardozo
iii. Historical:
1. Framers intended to prevent state laws that interfered with interstate commerce
2. Framers “meant” for this to happen—they didn’t want protectionalist legislation
iv. Economic:
1. Economy is better off if state and local laws don’t impeded interstate commerce
v. Political:
1. States and citizens should NOT be harmed by laws in other states where they lack
political representation
vi. Functionability:
1. It is NOT reasonable for Congress to follow each state and see if any of their laws
infringe on interstate commerce—they don’t have time
b. Arguments Against:
i. Text:
1. Little textual support—nothing in the constitution, just inferences
ii. Structure:
1. Separation of Power: Court in administering their test acts more like a legislature
a. Judicial restraint—constitution gives congress power to regulate commerce and
congress can invalidate laws that unduly burden interstate commerce—NOT for
judiciary to decide
2. Federalism: Courts should not invalidate state laws
iii. Policy:
1. Let the politically accountable branch be the one that decides
2. Developing a balancing test is clumsy and unworkable
a. It is like “judging whether a particular line is longer than a particular rock is
heavy”
4. Evolution of the DCC: Past tests have never been overruled and there isn’t anything giving deference to a
particular one, so they are all factors in the current balancing test
a. Police Power v. Commerce Power (Gibbons- Steamboat)
i. Rule: If states purpose was to do “police power stuff”, it was OK
1. If purely commercial or commerce—NOT ok
b. Local v. National Subject Matter (Cooley- Required to use local pilot to leave the bay)
i. Rule: Laws under local subject matter were OK,
1. Laws under national subject matter were NOT OK
Page 29 of 38
ii. Local subject matter was something that you didn’t need uniformity on, but national subject
matter were items where uniformity was needed
iii. Problem: Subject matter could be local, but its influence could be severe nationally
c. Direct v. Indirect Burden
i. No one knew what this meant—casebook didn’t even cover it—still no one knows what it is
5. Current DCC Approach: (Explicit Balancing Test—see bullet point 9)
a. Rule: Weigh/balance the benefits the states get against the national impact/burden of the legislation on
interstate commerce
i. Threshold Question: Does the law discriminate against out of staters? (MUST ASK FIRST)
1. If discriminatory—Strong presumption (rock) against being constitutional
a. State must dig itself out—burden on the state to prove benefits are greater than
the burdens to interstate commerce
2. If NOT discriminatory—Strong presumption (rock) for being constitutional
a. Burden on the individual to prove that burdens outweigh the benefits
ii. 2 Ways To Be Discriminatory
1. Facially discriminatory
a. Draws obvious lines between in and out of staters
2. Neutral on its face, BUT is discriminatory in its affect OR purpose
a. No geographical discrimination
b. Applies equally to in and out of staters
c. Functionally equivalent to facially discriminatory
b. Justices Opinions about the Approach:
i. Scalia and Thomas HATE this test!
1. “Like judging whether a particular line is longer than a particular rock is heavy”—
Scalia
2. They just want to have the threshold question—nothing else
6. Threshold Cases: Balancing Burdens/Benefits (Using the Modern Approach)
a. South Carolina State Hwy Dept. v. Barnwell Bros Inc.
i. Summary: SC passed a law limiting the weight and width of tractor trailers on their highways
ii. Holding: The benefits of regulating hwy safety outweigh burden of making truck comply
iii. Rule: When the thing claimed by the state is safety, cts are VERY deferential to their findings
1. States legislatures are in the best position to know what is the best thing for safety
2. Police power puts rock on the constitutional side of the test
b. Southern Pacific v. Arizona
i. Summary: AZ limited the train length for trains coming into AZ; cost a lot more money to the RR
ii. Holding: Although AZ stated “safety” as their purpose, the local problem was very minimal
compared to the national burden of trains trying to stop and change lengths
iii. Reasoning/Balancing:
1. National v. Local: This impaired uniformity and decreased national efficiency
2. Police v. Commerce: Safety may have also decreased by having this statute b/c it
required more stops/starts
3. Direct v. Indirect: Direct impact on the free flow of commerce
7. Facially Discriminatory Laws/Cases
a. City of Philadelphia c. New Jersey
i. Summary: NJ law prohibited out of staters to bring their trash to be disposed w/in the state
ii. Holding: Trash is an item of commerce and “whatever NJ’s ultimate purpose, it may NOT be
accomplished by discriminating against articles of commerce coming from outside the state
unless there is some reason, apart from their origin, to treat them differently”
1. Can’t improve your environment at the expense of other states
iii. Rule: When you go out in an overt way and discriminate against other states, it violates the DCC
iv. Dissent: His is more about NJ’s serious health concerns than commerce (police power)
b. C & A Carbone, Inc. v. Town of Clarkstown NY
i. Summary: City passed a “flow control” ordinance that required all waste to go through the newly
created city processing plant before it could leave the city
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ii. Holding: Law is unconstitutional b/c it was facially discriminatory AND NY was trying to horde
all of the business
1. Purpose and effect was to horde business
iii. Rule: If the state/municipal law discriminates against out of staters AND instaters, it can still
be discriminatory
1. The fact that an ordinance harms instaters too, isn’t enough to save a discriminatory rule
c. Hughes v. Oklahoma
i. Summary: OK passed a law that provided no person could ship minnows for sale outside of the
state; cited their reason as “conserving a state’s natural resource”
ii. Holding: The reason cited by the state, although facially impressive, is bogus and the real reason
is protectionalism and propping up a state’s industry
1. There is no embargo on instaters, just out of staters = discriminatory
8. Facially Neutral Laws (Two types)
a. Type 1: Disparate Impact/Purpose = Discriminatory (Discriminatory effect makes it unconst.)
i. Hunt v. Washington State Apple
1. Summary: NC passed a statute which required all close containers of apples to use the
USDA branding—not Washington branding; WA had invested a lot of money and time to
branding their product as superior; their branding was an industry standard/accpeted
2. Holding: Although not facially discriminative (law said “all containers”) it was
discriminatory in effect
3. Rule: A facially neutral statute is discriminatory in effect IF it….
a. Increased costs for those that produce out of state apples
b. Destroys WA competitive advantage
c. It “insidiously advantages local producers”
ii. West Lynn Creamery v. Healy, Comm. Mass
1. Summary: MA passed a pricing order on all milk (both in and out of state); MA receives
80% of milk out of state; the tax was paid by all, but was used to ONLY subsidize dairy
farmers within the state
2. Holding: Although it was facially neutral, it was unconst. b/c it only subsidizes instate
diary producers at the expense of out of state producers
3. Rule: A facially neutral statute is discriminatory if…
a. Creates a political process that cannot prevent abuse
i. Milk producers inside the state wouldn’t complain, but the ones outside
the state had no recourse
b. Discriminatory in purpose
i. MA had a commission made to find out the problem and then seek a
solution to boost dairy producers within the state
c. Taxes and subsidies are tied in a direct way to a discriminatory purpose, it
makes something constitutional on its face, become unconstitutional
i. Flat taxes are do NOT violate the DCC—it has to be died to the
discriminatory effect
ii. Even if done it two separate statutes, it may still be discriminatory
b. Type 2: Disparate Impact/Purpose ≠ Discriminatory
i. Exxon Crop. v Governor of Maryland
1. Summary: Oil refiners could NOT have gas station in the state; all refiners were out of
state; statute did NOT distinguish between in and out of state retailers; this seemed to
violated the CC b/c it would only apply to out of staters since no instate refineries
2. Rule: Consider if one party will “necessarily” win or given the competitive advantage
3. Holding: Not discriminatory because…
a. Did NOT create barriers from interstate independent dealers
i. It only discriminated against one type of dealer
b. No line was drawn between in and out of state producers
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c. No one will “necessarily” win (not necessarily giving a competitive advantage
to the instaters)
i. The instaters will most likely win, BUT current independent out of
staters could also possibly win
d. This was an industry based target—not a state based target (as in Hunt)
e. It is possible that a Marylander someday could be subject to the rule—thus there
is political recourse
ii. State of Minn. v. Clover Leaf Creamery Co
1. Summary: Minn. statute forbids all retail sale of mile in plastic nonreturnable containers;
must use paper; hoped to benefit the local pulp industry; Minn had no plastic industry so
this would definitely benefit their local industries
2. Rule: Consider who will necessarily win and if it targets an industry
3. Holding: Not discriminatory because…
a. “There is no reason to suspect that the gainers will be people from Minn. and the
losers will be from out of state”—not certain “virtually all” out of staters lose
i. Not necessarily certain that it would benefit only in-staters—it could
benefit out of state pulp production too
ii. Just don’t want a situation where the instars necessarily win and out of
staters necessarily lose
b. Targeted an industry, not a state
i. OK to if it just favors an industry predominately in your state, but still
has a possibility of benefiting out of staters
9. Balancing Test (Weighing Process)
a. Generally (if discriminatory)
i. The ct will use increased scrutiny
ii. It is “virtually a per se rule of invalidity”—C & A Carbone v. Town of Clarkstown
b. Two part test
i. State must argue that the statute serves a “legitimate (important) local benefit that is nonprotectionist in character”, AND
1. Ct uses “legitimate”, but that does NOT mean rational basis review; rather, it must be of
high “importance” that feeds into the states police power
2. Should NOT be economic preservation
ii. State must show that there wasn’t some less burdensome/restrictive way of achieving the
alternatives
c. Analysis/Cases if law is deemed discriminatory
i. Generally:
1. Not necessarily a true balancing test—it is a big burden to overcome (you start out with
a huge rock on one side—must prove least restrictive means)
ii. Dean Milk Co. v. City of Madison, Wisconsin
1. Summary: Madison passed a law that makes it unlawful to sell any milk within the city
that was NOT pasteurized within a radius of 5 miles of the city
2. Rule: It must be the “least restrictive means” even if the purpose (protecting the health
and safety of the people) is a important
a. Look at necessity of the means—if it is absolutely “essential” to achieve the
welfare goal the requirement is met
3. Holding: Protecting the city from bad milk is a lofty safety goal, BUT they could have
done it through less burdensome means—thus it is unconstitutional
a. They could have used inspection regulation (less restrictive means)
iii. Maine v. Taylor (This is the ONLY case where a facially discriminative statute is constitutional)
1. Summary: Maine passed a statute that prohibits the importation of live minnows; D
owned a baitfish store and illegally imported some minnows
2. Rule: If the benefit is great enough and the means fit, it is NOT unconstitutional
3. Holding: The statute is NOT unconstitutional because
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a. Served an important local benefit—the local minnow population is very
susceptible to parasites that come from other minnows
b. There is NO less restrictive alternative—a ban from out of state (nonindigenous) minnows is the only way to protect against the harm
d. Analysis/Cases if law is deemed non-discriminatory
i. Generally:
1. This is closer to a true balancing test—the presumption is much lighter (you start out
with a much smaller rock on one side—balance burden on commerce v. state benefit)
2. Challenger MUST prove that the burden is much worse than the benefit
3. “Where the statute regulates even-handedly to effectuate a legitimate local public interest,
and its effect on interstate commerce is incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the local putative
benefits”-Loren
ii. Loren Pike v. Bruce Church Inc.
1. Summary: AZ required that all cantaloupes grown in AZ must be packaged within the
state and approved by the supervisor; facially, nothing is discriminatory; P lived on the
border of AZ and CA and their closest packaging plant was in CA—40 miles away
2. Rule: Must overcome the lighter presumption by a “clear showing of the burden”
3. Holding: The statute is NOT constitutional
a. The burden of building a $200,000 facility is greater than the statute’s benefit
iii. Bibb, Director of Public Safety v. Navajo Freight Lines
1. Summary: Ill. passed a law requiring “contoured” mud-flaps on all semis; surrounding
states required straight mud-flaps; not discriminatory b/c instate and out of staters had to
comply with the law
2. Rule: If it “unduly” burdens interstate and the benefit is small, it is not constitutional
3. Holding: The court usually defers to states regarding safety regulations, but the statute
“unduly” burdened interstate commerce more than it benefited the state’s safety
a. Changing flaps costs time and money
b. No real “safety” benefit
iv. Consolidated Freightways Corp of Delaware v. Kassel
1. Summary: IA passed a law requiring semis to be less than 60 feet long; didn’t allow
“twin” semis; P had to use more semis and trucks to transport material
2. Rule: Benefit must be greater than the burden
3. Holding: “The states safety interests has been found to be illusory, and its regulations
impair significantly the federal interests in efficient and safe interstate transportation, the
state law cannot be harmonized with the commerce clause”
a. Burdens: Costs time and money to reroute, more chances for accidents
b. Benefit: Safety of state is minimal and may decrease by increased traffic
4. Dissent:
a. This allows for judicial activism—every time there is a balancing test we invite
judges to subject their own policy views into the law
b. “The only valid state truck limit is one on which this ct has not been able to get
its hands on”
c. We should defer heavily to the states on safety questions—majority is NOT
adequately doing that here
10. Exceptions to the DCC
a. Congressional Approval
i. Rule: Congress’s plenary power over interstate commerce allows them to confer on states the
ability to discriminate and this does NOT violate the DCC because the CC is no longer dormant
(congress acted)
1. This is one of the few areas where Congress can overrule the supreme court
ii. Western and Southern Life Insurance Co v. State Board of Equalization of CA
1. Summary: CA had a retaliatory tax against states that taxed CA insurance companies;
insurance companies from other states sued; congress passed an act allowing this
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2. Holding/Rule: In the exercise of this plenary authority, Congress may confer upon the
states an ability to restrict the flow of interstate commerce that they would not
otherwise enjoy
b. Market Participation Doctrine
i. Rule: When state is acting as a business (participant in the market) and NOT as a regulator, it
is free to discriminate in interstate commerce—unfettered by the DCC
1. Reason for rule: Main reasons for the DCC are NOT applicable when the state is acting
as a market participant and NOT as a regulator
ii. Reeves Inc. v. Williams
1. Summary: SD had a cement factory that it built in response to a cement shortage; another
cement shortage hit after it was built and the factory sold to all instaters and withheld
cement from out of staters until all the needs of the state were met
2. Holding: SD was acting as a market participant and thus did NOT violate the DCC
3. Reasoning:
a. For the exception:
i. Nothing in the constitution states that the DCC does NOT allow for this
type of activity by the states
ii. State sovereignty matters—we care about the states making decisions
w/op regard to federal control
iii. Underlying reasons for the DCC do not apply in this situation
iv. It is only fair to allow state factories, built by tax dollars from citizens, to
benefit the citizens of the state first
v. It is best to keep the judiciary out of the decisions of who the states have
to sell their products too
b. Against the exception: (Dissent)
i. This is economic protectionism and this is why the A of C were
disbanded and the states adopted the constitution
ii. Application of the DCC should depend on the nature of the government
activity—should be limited to “traditional government areas”
1. Problem: Where do we “draw the line”? Ct didn’t like this
before in previous cases, why now?
iii. DCC purpose is to stop protectionism by state governments and it should
NOT allow it now even though states are acting as market participants
iv. No clear distinctions on when the government is acting as a market
participant as opposed to a regulator (where’s the line)
iii. South-Central Timber Development v. Comm. of Alaska
1. Summary: Alaska opened up a lot of timber for sale from the state parks, but required
that anyone who purchased the timber to have it processed in Alaska; P wanted to
purchase logs, but used Japan to refine logs (if they refined them at all)
2. Rule: The moment that the state regulates a party beyond the deal, it is NO longer a
market participant and the DCC disallows the regulation/law
3. Holding: Alaska is NOT acting as a market participant and thus it violates the DCC
4. Reasoning:
a. Different from Reeves because:
i. Cement is a thing you make, but timber is a natural resource
1. Trees are natural and NOT processed
ii. Reeves imposed a duty on themselves for the state, but Alaska is
imposing a rule on trading partners AFTER the sale is complete
1. Downstream regulation- When a state tries to affect parties
beyond whom they contracted with, the DCC kicks in and stops
the state regulation
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5. Dissent:
a. The majority states they could have gotten around this by just selling to people
they know will only process the timber in the state, but that is an “artificial
distinction” that is “unduly formalistic”
11. Privileges and Immunities Clause (PIC)
a. Art. IV §2: “The citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the
several states”
i. Protects out of staters from state discrimination
b. Rule: If a state discriminates, they must:
i. Have a “substantial reason” to justify the discrimination, AND
ii. State law is “closely related” to the justification
Most show discrimination?
Can be invoked by…
Congressional approval and
market participant exception..
Covers…
DCC
NO
Corporations and individuals
Yes—they apply
Interstate commerce
PIC
YES
Only individuals (can NOT be
LLC or other corporations)
No—do NOT apply
Constitutional rights and
important economic activities
-State cannot deprive out of
staters from basic rights (access
to court, property rights,
abortion)
-State cannot deprive them of
“important economic activities”
(this is the actual language of the
court) (right to a certain job, get a
license, or a trade)
- If discrimination is found, the
state must go through the two
part test to overcome it
- Does NOT work in cases where
it is less than a substantial
- States can and DO charge
different rates for hunting
licenses because it is a
“recreational” activity—it is
not a constitutional right
INCORPORATION AND STATE ACTION
1. Background: The framers thought that an enumeration of rights was unnecessary because they had created a
government with limited powers and thus w/o the authority to violate basic rights. They were also concerned that
the enumeration of some rights would imply that other rights were not protected
2. Doctrine of Incorporation
a. First 10 amendments = Bill of Rights
i. These protect individuals against impositions by the federal government
ii. Say nothing textually about them apply to state governments
b. States at the time had their own constitutions and could limit their government as they saw fit
c. Barron v. Mayor of Baltimore (No application of bill of rights to the state governments)
i. “These amendments (the 10) contain NO expression of an intention to apply them to the state
governments”
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1. If the framers wanted them to apply to state governments, they could have easily have
done so
d. Civil war occurred, and people realize there was nothing restraining the states—so 13-15 were passed
e. 14th amend, §1, gives us the incorporation clause – “nor shall any state deprive any person of life, liberty,
or property, without due process of law”
i. This has been interpreted that states cannot deprive citizens of liberty and it is up to the court to
see if the liberties being deprived are of the fundamental liberties that cannot be taken away (they
pick and choose from a list—similar to the bill of rights)
ii. For a principle to be protected under the 14th amend, it must be a “principle of justice so rooted
in the traditions and conscience of our people as to be ranked as fundamental” (Palko)
f. Twining v. NJ
i. Expressly opened the door to the SC applying provisions of the Bill of Rights to the states by
finding them “incorporated in the DP clause of the 14th amendment”
g. Approaches to Incorporation (Selective v. Total Incorporation)
i. Total Incorporation
1. Exactly as the name implies—the bill of rights are totally incorporated through the phrase
listed above in the 14th amendment
2. Promoted by Justice Black by stating the primary reason for the enactment of the 14th
amendment was to bring about the incorporation of ALL of the bill of rights
3. Benefits:
a. It is clear and easy to understand—simplicity
b. Broadly protects our individual rights
c. Uniformity of protection
4. Disadvantages:
a. Not grounded in historic reality and lacks any originalist or historic support
b. Federalism—this isn’t respecting the state’s rights because you are imposing a
rule on the states that the federal government had designed for itself
ii. Selective Incorporation (AKA “Fundamental Rights Theory”)
1. Not plausible to suggest that the 14th amendment makes all the liberties guaranteed by the
bill of rights, the term liberty is its own stand alone principle that judges have to interpret
on their own in each case and judges are left to interpret what type of liberties are
“fundamental” and are thus incorporated in the 14th amendment
2. Process: If it is a “fundamental” liberty it is included within the 14th amend and you take
each bill of right liberties and one by one ask if it is “fundamental and essential to the
fundamental scheme of ordered liberty” (Duncan v. Louisiana)
3. Benefits:
a. Has textual support and conforms with tradition
4. Disadvantages:
a. Tricky and time consuming where judges have to determine if the liberty is
“fundamental” and “of the very essence of the scheme of ordered liberty”
b. Allows for judicial activism
i. Counter argument to this is that both approaches allow for judicial
activism
5. This approach won the day and is what is currently used
h. Where we are today:
i. Pretty much all have been adopted except:
1. 3rd (quartering), 5th (grand jury), 7th ( right to jury trial in civil trials), and 8th amendments
ii. Technically it is NOT accurate to say that the state “violated the 1st amendment”—you must say
that the state “violated the 1st amendment as applied to the states through the 14th
amendment”
iii. Once incorporated, the right is exactly the same as the federal right
3. Doctrine of State Action
a. Rule: The constitution only protects rights from government action, not private action
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i. Any official act of any government entity or official acting under color state authority will be
subject to the scrutiny of the constitution protection of individual liberty
b. Policy Arguments:
i. To what extent do we want to insulate the
ii. Why would we want to limit government action
iii. The text and the original intent prohibits any expansion of coverage of the constitution
c. Public Function Doctrine
i. Tests:
1. Marsh: Balancing test that looks at the public and private uses
2. Jackson: Look to see if function is traditionally and exclusively a state function
ii. Marsh v. Alabama
1. Facts: Shipbuilding corporation owns the entire town; town is privately owned; town
wanted to infringe on a person’s right to free speech
2. Holding: Court did not allow them to infringe on a person’s free speech and adopted a
balancing test
a. “When we balance the Constitutional rights of owners of property against those
of the people to enjoy freedom of press and religion, as we must here, we remain
mindful of the fact that the latter occupy a preferred position”
3. Rule: Ownership does not mean absolute dominion—“the more an owner for his
advantage, opens up his property for the use by the public in general, the more his rights
become circumscribed by the statutory and constitutional rights of those who use it”
iii. Jackson v. Metropolitan Edison Co
1. Facts: Lady wanted power, but the company cut her power
2. Holding: Power providing is NOT something traditionally and exclusively done by a
government function
3. Rule: If the private function is traditionally and exclusively reserved to the states, then
the constitution and the bill of rights apply
4. Dissent: Exclusive would mean that nothing would ever fall under the public function
doctrine. This opinion essentially restricts Marsh to its facts
d. Nexus or Entanglement Exception
i. Rule: This focuses on the acts of the government and if the government is so involved enough in
the private actions, state action should be found
1. The SCt does NOT say that this exception exists!
ii. Shelley v. Kraemer
1. Facts: People entered into a racially restrictive covenant; blacks moved it, and the whites
sued to rescind the sale to exclude the blacks
2. Issue: If the government enforces the racial covenant, is that considered state action?
3. Holding: The sate action is the judicial enforcement of legal agreements
4. Problem: EVERYTHING will be considered state action if they try to enforce the
contract that they have privately made
5. Narrow Interpretation: In the absence of the state court’s enforcement, the willing
buyer and seller would have completed the action, and here, it is an affirmative role of
the court to enforce discrimination
a. There is a difference between abstaining and enforcing an action
6. Instances Shelley would be invoked:
a. Peremptory challenges
b. Prejudgment attachment context
iii. Burton v. Wilmington Parking Authority
1. Facts: The coffee shop would not provide coffee to a negro; state was renting the shop to
this owner; black person sued
2. Rule: Look for the relationships that are “mutually beneficial”, “interdependent”,
“symbiotic”, “but for relationships”
3. Note: The government could have written into the least that stated that the shop couldn’t
discriminate
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4. If the state tolerations behavior it is NOT enough, it must be
a. Active facilitation of the conduct, OR
b. Mutually beneficial state of affairs where the line between public and private is
too thin
5. Significant subsidies and monopolies have been insufficient; government issued liquor
license is not enough
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