Con-Law I Outline – Professor Cheh
I. Background of the Constitution
A. Constitution- planned gov’t
1. Carves out/ limits gov’t: theory of a limited and enumerated gov’t, with all remaining rights
left to the state and local gov’ts
2. Federalist papers shed background light
B. 2 characteristics:
1. Grant of broad powers, but separation of powers in fed. Gov’t- prevents any one branch from
becoming too powerful w/checks and balances
2. Federalism: federal gov’t and state/ local gov’ts- split the level of sovereignty
II. Power of the Judicial Branch
A. POWER OF JUDICIAL REVIEW
1. The power of the federal courts, and ultimately the Sup. Ct. to interpret the Constitution and
declare acts of gov’t and governmental actors unconstitutional or void.
2. Marbury v. Madison- establishes the power of judicial review; Marbury sought writ of
mandamus directed to Pres. and Sec. of State to deliver his commission of justice of the
peace; filed suit in Sup. Ct. under Jud. Act of 1789; Held- Art. 3 of Const. prevails over Jud.
Act, case dismissed
3. Martin v. Hunter’s Lessee- VA confiscated Martin’s land, gave it to Hunter; later, U.S.
treaty promises to honor land titles of former Brit subjects; VA Ct. Appeals rules for Hunter
despite Sup. Ct. telling it to find for Martin; Held- Sup. Ct. has review auth. over state court
judgments involving federal law; Sup. Ct. decisions- law of the land
4. Opposing Views on Exercise of Judicial Review
a. Court should be activist, expansive exercise of judicial review b/c:
i. judges have lifelong tenure and are insulated from politics
ii. judges well-suited to interpret Const. b/c their mode is rationality in interpretation
iii. court is umpire, least dangerous branch (no army, all it has is legitimacy)
b. Court should be restrained; judicial review is a liability b/c:
i. not elected, court is counter-majoritarian
ii. it diminishes democracy, dulls legislators commitment to conforming to Const.,
dulls people’s involvement
B. QUESTIONS THE COURT WON’T ANSWER: Political Q’s, Advisory Opinions, Abstract Q’s
1. Political Questions (court has labeled as a political Q: Congress’ desire to expel a member,
impeachment of a president or judge (Nixon), foreign policy matters, military command)
a. 2 key factors make something a political Q:
i. whether the matter itself has been textually committed by the Const. to another
branch to decide
 Powell v. McCormick- House decided to exclude Powell from his seat by
majority vote; Held- not a political Q b/c tho Art. I provides Congress shall be
the judge of the qualifications of its members (based on age, citizenship, and
residency), Powell was being excluded for another reason here, so okay for the
Court to decide
ii. if the Q is beyond the competence or enforcement capability of the judicial branch
(court lacks judicially discoverable and manageable standards to decide a case)
b. Views
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i. Formal View- textual commitment; interpret Const. to decide which branch should
decide an issue
ii. Functional View- if no clear principle/ judicially discoverable stnds, courts should
compromise
iii. Prudential Considerations- is it wise to decide a certain issue
 contrasted w/view that if the Court has jurisdiction, it shouldn’t have a choice
c. Baker v. Carr- Held- retreated from Court's political question doctrine; reapportionment
(attempts to change the way voting districts are delineated) issues present justifiable
questions – enabling federal courts to intervene in / decide reapportionment cases
d. Goldwater v. Carter- Pres. Carter terminated a mutual defense treaty w/Taiwan; Sen.
Goldwater thought it out of Pres.’s auth.; Held- this is a political Q, the issue can be
resolved other ways; also not ripe for judicial review (resolution introduced was never
voted on by Congress, need official action for a case)
e. Nixon v. United States- Nixon protests the method of his impeachment proceedings
based on Const. provision stating Senate will “try” such a case (Senate formed a
Committee instead of having a full trial); Held- this is a political question; up to Senate
to decide what “try” means
2. Advisory Opinions: where the parties won’t be bound by a judgment of the court
a. classic case- G.Washington asked for advice on whether treaties he was considering
were valid; court refused to give opinion b/c it wouldn’t be binding
b. Muskrat v. United States- Congress grants land to Native Am.s, later grants it to be
shared w/another group; Congress passes statute stating Const. Qs of Act can be brought
to ct.; Held- Court refuses to issue an advisory opinion b/c may not need to be decided,
can be left to other branches, will dissipate Court’s authority
3. Abstract Qs: Qs that lack specificity, nature of a hypothetical
a. Socialist Labor Party v. Gilligan- SLP wanted to challenge a state law requiring taking
of an oath to get on ballot; Held- need specificity about operation, case is too abstract
4. Rules of Self-Restraint; Rules Court imposes on itself to avoid Const. Qs; 3 classes:
a. federal courts fond of refusing to decide a Const. issue unless necessary and then only as
narrowly as possible
b. if a case w/Const. issues can be disposed of on non-Const. grounds, better to not have to
reach the Const. issue
c. statutes should be construed in a way as to avoid Const. issues if possible
C. JURISDICTION
1. 11th Amendment Limits- places a limitation on the jurisdiction of federal courts; a suit by a
private party (i.e. an individual, a business) against a state cannot be taken into federal court
a. states are protected from being sued in federal court; the limitation extends to include
citizens of the state too
b. 11th Am. codified the principle that states have a general sovereign immunity not to be
sued (unless they have agreed through statute to some suits against themselves)
c. Exceptions:
i. doesn’t apply to state officers (may sue a state for an injunction, naming the state
officer who is committing the action)
ii. may sue in federal court if you have consent of the state
iii. 14th Amendment, § 5- Congress may pass laws to enforce the protections of due
process and equal protection against the states
2. Art. III Limits
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a. 1st Limit: Kinds of cases that may be heard in federal court
i. Fed. Q jurisdiction– arising under jurisdiction involving matters of fed. law
ii. Diversity of citizenship cases
iii. Handful of other kinds: admiralty, ambassadors, where U.S. is a party, etc.
b. 2nd Limit: Congress’ power to control jurisdiction
i. Congress doesn’t have to confer full jurisdiction possible under Art. III (amt. in
controversy req. for diversity jurisd.); Congress must confer the jurisd. for fed. cts.
to have the power (no req. of lower fed. courts)
ii. Congress may not abolish the Sup. Ct. or alter original jurisdiction
iii. Art. III- Sup. Ct. has appellate jurisd. subject to “exceptions” as Congress may
make; scope of exceptions power (to what extent can Congress use the exceptions
power to shrink the appellate jurisd. of the Sup. Ct.)?
 Ex Parte McCardle- McCardle claimed being held unconstitutionally, relied on
Congressional statute conferring writ of habeas corpus; before decision by Sup.
Ct., Congress abolished the habeas law; Held- no jurisdiction for Sup. Ct.;
Congress may w/draw classes of cases from appellate jurisdiction
c. 3rd Limit: JUSTICIABILITY - requirement of a real Case & Controversy
i. Who is bringing suit (standing)
ii. When is suit being brought (ripeness, mootness)
iii. What is being asked (i.e. pol. Q?)
d. DOCTRINE OF STANDING
i. Π must show 3 things:
 Injury in fact- direct, personal harm suffered by Π (real and imminent or actual)
 Causation- most be able to show the Δ is responsible for the harm you are
complaining of; harm must be fairly traceable
 Redressability- the court’s order must be able to resolve the problem
ii. INJURY IN FACT
 satisfied by any conventional injury; may also claim intangible harms,
environmental harms, etc.
 the harm must be actual, concrete, and personal to the Π
 Sierra Club v. Morton- illustrates the ideological Π; Sierra Club objected to
gov’t allowing a recreational club on federal land of pristine wilderness but
made no allegation any club members would be directly affected; HeldDismissed, ideological fervor not a substitute for actual injury; no standing
o But See United States v. SCRAP- group found to have standing where
they complained gov’t action would degrade the environment, where
those individuals walked on trails and breathed air (affect them
personally); most expansive interpretation of injury in fact
 See Lujan (below)
iii. CAUSATION
 must show the harm you are complaining about is fairly traceable (connected)
to something the gov’t did/ didn’t do
 Simon v. East. KY Welfare Rights Org.- Πs assert IRS has not met mandate of
the fed. tax code encouraging hospitals to provide indigent care b/c it has given
tax exempt state to hospitals, even though they are only giving indigent care in
the ER (& not gen. care); Held- fails on causation; no evidence the hospital’s
decision to deny gen. indigent care related to tax code
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 Allen v. Wright- Π parents of black school children sue IRS- discriminatory
private schools should not get tax exempt status (prevents integration); Heldconnection too loose to satisfy causation; not clear w/drawing tax exemption
would change attendance at priv. schools
o also don’t want to confer standing b/c it raises sep. of power concerns (Ct
monitoring how exec. branch carried out duties)
iv. REDRESSABILITY- Πs must show relief they seek will resolve alleged harm
 Worth v. Seldon- Πs challenge Pennfield housing zoning practice (min. lot
size), asserting it prevented low income/ minorities from affording ability to
live there; Held- causation/redressability not satisfied; probable no developers
would build housing Πs want despite zoning
o But See Village of Arlington Heights- Π able to show zoning kept a
specific developer from building housing he wanted, standing satisfied
e. Specialized Rules of Standing:
i. Taxpayer Standing- citizen challenges an action of the gov’t as a taxpayer, asserting
an unconstitutional law has been passed related to gov’t spending
 Frothingham v. Mellon- taxpayer complains giving fed. $ to states for having
certain programs amounts to taking her property w/o due process; Held- does
not pass min. injury threshold; court wary of floodgates
 Flast v. Cohen exception- gov’t $ being given to religious schools to buy
supplies/books; Held- 2 necessary ingredients to escape the no taxpayer
standing rule:
o #1: must establish a logical nexus btw you and gov’t action (challenging
a taxing/ spending action)
o #2: must be invoking a constitutional provision that operates as a
specific limit on taxing/ spending
 the only specific limit on gov’t spending the Court has recognized
is the Establishment Clause
 heart of Establishment Clause historically: “not even a penny”
should aid/ abet religious activities, and all of us should have the
right to enforce this
 Valley Forge v. Americans United- Congress gave away ½ million in property
to religious college, AU- violates Estab. clause; Held- no standing b/c
challenging action done under Congress’ property power, neither a spending
action (as req. by Flast) nor Establishment Cl. issue
 Hein- Held- no standing; taxpayer standing exception doesn’t apply when
Congress has not authorized or mandated $ be spent (President spending of
discretionary $ out of gen. appropriations for faith based initiatives okay)
 United States v. Richardson- Π failed challenging gov’t financing of CIA w/o
publishing accounting info under provision requiring public accounting
ii. Statutory Standing- claim that Congress has given them a right under a statute and
that the interest has been harmed
 Limitations:
o Person suing must be w/in the zone of interest Congress meant to protect
by the statute
o Must show you have been directly harmed (Art. III’s req. of injury in
fact must still be met); - issue in Lujan
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o Statute should anticipate a private cause of action
 Akins v. Federal Elections Commision- Πs assert injury b/c FEC is not
requiring AIPAC to register as a political organization; Held- generalized
grievance (injury is not receiving requested info statutorily req. to be provided)
is fairly traceable to FEC and redressable
 Lujan v. Defenders of Wildlife- Πs challenge Sec. of Interior’s interpretation of
Endangered Species Act- now only applies to actions w/in US or on high seas
(Π’s want old application back- applied to any projects financed by U.S. abroad
too); Held- no injury in fact b/c no imminent injury- Πs were going to go back
to the habitat “someday”
 But See Friends of Earth v. Laidlaw- environmental group sues polluting co.
for violating Clean Water Act; Friends used testimony from ppl who lived
nearby and no longer used the creek recreationally; Held- established direct,
concrete injury and redressability (civil penalty discouraged polluter)
iii. 3rd Party Standing
 general rule- no 3rd party standing, injured party should bring suit; better case
if injured party litigates (sharpened issues, better adversary)
 Hardship Exception: 3rd party standing okay if 3 factors met:
o 1. person in front of court also has an injury
o 2. person in front of court has a close rel’ship w/the 3rd party
o 3. there must be a hardship affecting the 3rd party’s ability to protect
their own interest
 Singleton v. Wolf- Dr. sues on behalf of patient in challenging anti-abortion
statute; Dr. had injury (lack of fee for procedure, ability to give care), close
rel’ship (Dr./patient); hardship present (notoriety assoc. w/having abortion) 
appropriate 3rd party standing
iv. Standing of Associations/ Organizations – where association raises rights of its
members
 Requirements:
o must be direct injury to 1+ members
o injury must be relevant to a purpose of the association
o nature of injury- won’t need individual participation of each member
 Ex.- apple grower’s assoc. files suit on behalf of members to enjoin NC from
discriminating against out-of-state apples; direct injury to growers relevant to
purpose of assoc. and indiv. participation of growers not req.
f. TIMING: when you can sue
i. Mootness
 Rule- a case must be alive at all stages of the litigation, incl. on appeal; events
may take care of a problem, making it moot
 classic mootness case: Defunis v. Odeguard- student applied to law school,
denied admission, files suit asserting admissions policy is unconst. (racially
discriminatory); when it reaches Sup. Ct., he is about to graduate; Held: mootthere is nothing Court can do on Π’s behalf; events resolved it
 4 Exceptions:
o class action- won’t be moot as long as it stays alive to at least one
member of the class;
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o injury/ discriminatory act is capable of repetition to that Π (but dies b/c
of nature of injury; Roe v. Wade- Π could become pregnant again);
o by-products (collateral consequences)- signs of life in an apparently
dead suit
 i.e. Powell- by time reached Sup. Ct., he’d re-taken his seat; byproduct- backpay for the time he was excluded
 i.e. someone wrongly jailed having already served their time; byproduct of effect of conviction on one’s rights
o Δ’s voluntary cessation of illegal activities; Test: if Δ has voluntarily
ceased their illegal behavior, it will not be moot unless there is no
reasonable likelihood Δ could violate again
 i.e. Laidlaw case- not moot b/c the co. still retained a cert. of
operation and could reopen the plant
ii. Ripeness- timing is too soon; things must still occur before issue is joined; must
have a bleeding Π, not speculation about what might happen
 Goldwater v. Carter- see above
 i.e. someone is challenging a law that has only been proposed and might not get
enacted; or dead letter statute on books for years, no immediate threat of harm
III. Powers of Congress
A. THEORY OF CONGRESSIONAL POWER
1. power of the legislature must always touch base w/the Constitution- must trace back every
act of Congress to a source of authority in the Constitution
a. gov’t does not have a police power (constrasted w/state gov’ts, which have a general
power to act for the health, safety and welfare of their citizens)
2. gov’t of limited and enumerated powers
a. scope of the powers; 2 basic limits:
i. internal limitations- looking at what the clause itself covers
ii. external limitations- even if you can regulate a subject, regulation of it may violate
individual liberties or gen. principle of federalism (under 10th Am.)
3. power of the legislature almost always viewed in contrast to what the states can do
4. Art. I § 8 lists the bulk of the powers
B. THE NECESSARY AND PROPER CLAUSE, Art. I, § 8
1. not an independent source of power, but amplifies other powers; as a boost to other powers –
allows Congress almost unlimited power
2. McCulloch v. Maryland- Congress re-charters a national bank, and MD wants to tax it;
issues: does Congress have the power to charter it? violation of supremacy for MD to tax it?
Held (Marshall)- reas. for Congress to conclude creation of a fed. bank was necessary and
proper to carry out enumerated powers (taxing, coining $); MD may not tax b/c ruins fed.
supremacy and would harm political acctability
a. state gov’t may in no way hinder the legitimate action of the fed. gov’t
3. U.S. Term Limits, Inc. v. Thornton
C. THE COMMERCE POWER- Art. I, § 8, Congress has the power to regulate commerce w/foreign
nations, among the states, and w/Indian tribes
1. Historical background
a. Initial period- broad, functionally expansive use of the Comm. Cl.
i. Gibbons v. Ogden- clash btw state law (granting Ogden monopoly) and fed. law
(granting Gibbons license) over steamboat nav. btw NYC and NJ; issue: may
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Congress’ power control navigation? Held (Marshall)- everyone knows navigation
is an essential feature of commerce
b. In btw period- 1880s – 1930s- Court attempts to find limits on Commerce power
i. Congress reacting to results of capitalism (poor treatment of workers, concentration
of power among titans); Court has laissez faire approach
ii. goal- keep federalism intact, preserve state’s powers
iii. assertion there should be a categorical limit; commerce should not include anything
that is not just buying/selling over state lines
2. Next  New Deal Period- restoration of Marshall’s expansive interpretation of Commerce
Power
a. United States v. Darby- lumber co. not following min. wage/ max hrs. req.s; Heldproduction of goods for commerce is enough of connection to Comm. Cl.; w/in proper
end of Congress to regulate w/regard to nation-wide competition
b. Wickard v. Filburn- farmer growing wheat for home consumption exceeded
Congressional statutory quota; farmer challenged as beyond Comm. power; HeldCongress could rationally find that the potential aggregate/cumulative effect on
prices/market is substantial and may regulate it
c. Heart of Atlanta Motel v. United States- issue: constitutionality of Civil Rights of 1964,
which banned racial discrimination in various public venues; challenged by motel (near
an interstate highway); Held- Congress could rationally conclude that racial
discrimination in hotels could, in the aggregate, substantially restrict IC
3. Current period- attempt to find limits
a. 2 Limits Court establishes:
i. limits on what Congress may do when its law applies to state/local gov’t
b. 1st Limit: Some subjects Commerce power can’t reach:
i. United States v. Lopez- Congress made it a fed. crime to possess a gun w/in 1,000’
of a school; Held- statute is unconstitutional; a statute that affects purely intrastate
activities and has nothing to do w/commerce/economic activity, is not w/in Comm.
power; Congress has 3 areas where it may regulate under Comm. Cl. (here, too
wide a net is cast, not incl. in the categories):
 channels of commerce (persons/goods moving in commerce)
 instrumentalities of commerce (mails, phones, buses)
 activities that have a substantial affect on IC
ii. United States v. Morrison- fed. statute created cause of action for gender-based
violence; Held- no substantial connection to commercial activity, gender-based
violence not economic; must have a line btw what is local vs. national, assertion of
federalism- Ct. refuses to allow attenuated reasoning, fears slippery slope
iii. Gonzales v. Raich- Court upheld the Fed. Controlled Substances Act as applied to
homegrown medical mj; Held- mj commercial in nature; Congress not required to
show there would be a subst. effect on IC, just need a rational basis for concluding
the intrastate activities could have a cumulative effect on IC (similar to Wickard)
(i.e. rational to think mj might get out into illegal market)
4. 2nd Limit: what Congress may do when its law applies to state/ local gov’t; Sovereignty
of the States in the Federal Scheme
a. Can Congress force states to comply w/federal law? left to political process
i. National League of Cities v. Usery- Congress applied the Fair Labor Stnds Act
(FLSA- min. wage/ max hr.) to state/ local employers; Held- in areas of traditional
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gov’t activity, Congress may not pass laws that unduly interfere w/states (impairs
state sovereignty)
 spawned confusion- what are trad’l state activities? extent of impairment
required?
 Court gave up trying to apply this standard; Usery overruled by Garcia
ii. Garcia v. San Antonio Transit Auth. (SAMTA)- SAMTA sought declaratory
action that FSLA didn’t apply to local gov’t workers; Held- Usery does not provide
a workable test, difficult to tell what applies; this is not an issue for the judiciary,
better left to the political process
b. Can Congress tell states what laws to enact as their own state statutes? No
i. New York v. United States- Congressional statute requiring states to deal
w/disposal of nuclear waste or pass legislation as their own; Held- intrudes upon
state sovereignty; violates political accountability b/c members of state legislature
would be held accountable w/o having control over it
c. Can Congress force state executive officials to enforce federal law against the state’s
own citizens? No
i. Printz v. United States- Congress told state executive officers to enforce a fed. law
against their own citizens controlling handgun purchases; Held- invades state
sovereignty: defeats pol. accountability, allows Congress to frustrate Exec.’s role in
carrying out laws by bypassing Exec.; gov’t may try to get cooperation but can’t
force states
d. Can Congress auth. citizens to sue their states under federal causes of action? No
i. 11th Am. bars private entities from suing a state in federal court
ii. Congress may not provide a cause of action against the state in its federal courts or
state courts
 Fundamental principles of federalism and sovereign immunity protects the
states
 Alden v. Maine- probation officers prohibited from suing the state for back-pay;
Congressional creation of cause of action against the states in their own state
courts would violate sovereign immunity and subject state to possibly crippling
$ judgments
D. CONGRESS’ TAXING AND SPENDING POWER
1. Power to Spend
a. Congress has broad auth. to spend tax for the gen. welfare
b. Congress regulates indirectly by “bribing” states- offering $ as incentive for compliance;
way around Const. limitations
i. if asked about the reach and find no Congressional auth. under Comm. power, note
spending power is another way Congress may accomplish its objective
c. Limits on spending power:
i. 1st limit- the spending must be for the “general welfare”; defined very broadly by
courts
ii. 2nd limit- must clearly be a condition; ambiguity in a statute will be resolved in
favor of the state
iii. 3rd limit- the condition(s) must have a reasonable relationship to particular national
projects
 South Dakota v. Dole- Congress made portion of states’ highway $ dependant
on the states adopting a 21 yr. drinking age; Held- reasonable rel’ship to $ given
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for highways b/c different drinking ages among states will result in young ppl
driving from one jurisdiction to another, creating danger on highways
iv. 4th limit- the conditions can’t violate an independent Const. limit; i.e. the power
can’t be exercised in a way that would violate individual liberties
2. Power to Tax
a. Congress shall have the power to lay and collect taxes, … to pay the debts and provide
for the common defense and general welfare [uniformity]
i. if taxing the same thing, it must be taxed uniformly across the states
ii. no limit on what is for the gen. welfare- Congress decides
b. Rule- a taxing statute will be upheld as a taxing statute so long as it raises some
revenue; easy-to-satisfy, court is hands-off
c. doesn’t matter if the motive was to regulate- Courts will not attempt to discern this any
longer
E. CONGRESS’ POWER TO ENFORCE THE PROVISIONS OF THE 14TH AMENDMENT
1. § 5 power- conferral of power to enforce by legislation the provisions of the 14th Am.
2. “nor shall any state deprive any person of life, liberty, or property w/o due process of law, or
deny them equal protection of the laws”
a. Congress may directly apply this against the states to protect individual liberties, won’t
be barred by the 11th Am.
b. Problem- Congress may not redefine meaning of due process or equal protection to give
relief for state behavior that is not an actual violation of the 14th Am.
i. the remedy must be proportional and congruent to an actual violation
ii. Congress may pass preventative measures as a deterrence against rights violations,
but a test is required (must be an activity likely to lead to a rights violation)
iii. there must be a foundation of connectedness, and the remedy must be tailored
c. Katzenbach v. Morgan- NY law required a literacy test to vote; prior case- Sup. Ct. said
literacy tests don’t violate 14th Am., but Congress then banned literacy tests (which NY
law violates); Held- it is w/in Congress’ power to determine some practices, even if they
don’t directly violate 14th Am, could lead to violations
d. City of Boerne v. Flores- Held- Congress went too far in passing the Religious Freedom
Restoration Act (RFRA), which stated a regulatory state/local gov’t law that interferes
w/relig. practices requires a compelling reason (Congress WAS responding to
Employment Div. v. Smith- where Sup. Ct. held that generally applicable laws will be
upheld if reasonable and don’t target relig. practices)
IV. Constitutional Limits on States’ Power
A. BACKGROUND
1. States possess a police power- undifferentiated power to act for the general health, safety,
welfare, and morals of the citizens
a. Federalism- the Const. carves out enumerated powers given to the federal gov’t, and all
other powers are left to the states
2. 4 kinds of state power limits:
a. States are expressly prohibited from certain actions under the Const. (i.e. coining $)
b. States are expressly prohibited from certain actions under the Const. w/o Congress’
permission (i.e. states may not wage war w/o Congressional consent).
c. Limits b/c of the supremacy of federal law and principles of preemption.
i. if conflict btw state and fed. law  fed. law always prevails (Art. 6)
ii. conflict present if:
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 Congress passes law saying state may not act in a certain area
 physical impossibility (can’t comply w/both at same time)
 state law frustrates federal law
 fed. gov’t occupation of a field w/regulations so extensively implies no room
for states to regulate in the same area
d. Limits arise out of the Const. where Const. gives Congress authority in a certain area,
implying states aren’t permitted to act in that area. (i.e. Negative Comm. Cl.)
B. NEGATIVE COMMERCE CLAUSE (Dormant Comm. Cl.)
1. General Background
a. applicable where a state/ local law regulates some area of IC that the Const. grants auth.
to Congress over (even tho Congress hasn’t acted there/ no conflicting fed. law)
b. Limit- since Congress’ power includes extensive coverage of subjects, can’t oust states
entirely from regulating in the same areas (or there would be little left for states to do).
c. Challenge: balancing Congress’ broad power to provide a uniform, national response to
IC, while allowing states to regulate ordinary activities w/in their borders under their
police powers
2. Historical Background
a. Gibbons v. Ogden (see above)
i. 2 Extreme Options:
 Exclusivity- state is ousted from any area Congress may regulate but hasn’t;
Rationale?
o preserve uniformity and efficiency (of nation as a single economic unit)
o Congress may have chosen not to regulate and wants the area free of
regulation (state interference would frustrate this goal)
 Concurrent Authority- until Congress says something, the states may regulate
how they want (prevents impairing states from acting)
ii. We don’t apply either of these- something in between
iii. Marshall- if the source arises elsewhere (i.e. police powers), state action might be
okay; test- nature/ source of the authority (Blackbird Creek Marsh Co.)
b. Cooley v. Board of Wardens- test: nature of the subject; if nature of subject is peculiarly
local, states (in absence of action by Congress) should be able to regulate (even if some
affect on IC); if nature of subject is national, states should not regulate; Held- local
pilotage law okay b/c all ports are different (no need for uniform rule)
3. Modern Focus
a. Basic Rule- states may pass laws that affect/ regulate IC, but 1. they may not
discriminate against IC, and 2. they may not unreasonably burden IC
b. 2 kinds of discrimination
i. purpose is economic protectionism (to achieve in-state economic advantage)
 this is per se invalid
ii. purpose is to achieve a health and safety objective (i.e. under police power)
 this will be allowed in some circumstances
 the test: the state must prove that it had no reasonable, non-discriminatory
alternatives to achieving its objectives
c. Burden on IC
i. states given wide latitude to regulate; if law applied equally to in-state and out-ofstate businesses, it will generally be okay
ii. Economic Protectionist Discrimination
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 Hunt v. Washington Apple- NC statute required only USDA labeling, which
hurt Wash. Apple, who had a superior product; Held- NC must find a
reasonable, non-discriminatory alternative
iii. Discrimination for health/ safety reasons will only survive if state proves no
reasonable, non-discriminatory alternatives available (very tough test)
 City of Philadelphia v. New Jersey- NJ passed law prohibiting importation of
out-of-state garbage; Held- even if possible purpose is health/safety, law must
be struck down b/c NJ did not consider reasonable, non-discriminatory
alternatives
 Dean Milk v. Madison- City of Madison required milk sold locally to be
pasteurized locally for health/ safety reasons (ensure wholesome milk); Heldinvalid law; there are ample non-discriminatory alternatives available (use of
inspectors, require fed. health stnds to be followed, etc.)
 Maine v. Taylor- ME banned importation of live baitfish for safety/
environmental reasons (to prevent infection of parasites, for which there wass
no test or cure); Held- discriminatory but not protectionist, but may be upheld
b/c no non-discriminatory alternatives
iv. Unreasonable Burden Test- heavy burden on IC w/little benefit to the state – will be
struck down
 South Pacific v. Arizona- AZ limited length of train cars binding all trains;
Held- unreasonable burden on IC b/c the benefit from shorter trains more than
offset by the danger of having many more trains running (excessive burden and
marginal safety benefits)
 Bibb v. Navajo Freight Lines, Inc.- IL required trucks to have a contoured
mud-flap; Held- not discriminatory; heavy burden on IC and marginal/zero
safety benefit
 Kassel v. Consolidated Freightways Corp.- Iowa restricted length of vehicles
on its highways; judge used a burden analysis/ balancing test- consider other
state’s regulations, state’s purpose (health/safety?) – the nature and its
effectiveness, and the burden/ cost
d. Exceptions to the Negative Comm. Cl. Rules
i. Market Participant Doctrine- if the state is acting as a buyer/seller in the market,
there is no Comm. Cl. applicability
 rationale- state is acting like any other private trader and should be able to reap
the benefits/costs of participating in the market
 Reeves, Inc. v. Stake- SD’s state operated cement plant sold first to in-state
businesses during a cement shortage; Held- SD is not acting as a market
regulator but as a market participant so no barrier under Comm. Cl.
 Hughes v. Alexandria Scrap Corp.- Ct. upheld MD burdening IC by favoring
in-state businesses when purchasing “hulk” cars
ii. A state may use its regulatory power to tell a private entity in the market that it has
to deal w/the state; Court will apply a burden analysis
 United Haulers Assoc. v. Oneida- counties required waste haulers to use a
gov’t operated waste facility, which charged a higher fee; Held- b/c it’s a state
business (market participant), this form of discrim. ok; don’t want courts to
interfere unbounded w/loc. gov’t; also- no econ. protectionism, waste disposal
trad. gov’t fnct, and no pol. acctability issue
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iii. A state gov’t may use its own $ to subsidize suffering in-state businesses
 But, a gov’t may not impose a tax on in-state and out-of-state businesses
(appearance of non-discrim.) and then use that $ to subsidize in-state businesses
o West Lynn Creamery v. Healy- Mass. taxed milk and then used the $ to
subsidize local farmers; Held- struck down, taxing differentially by
giving a rebate of the tax only to local businesses
iv. Congressional Authorization/ Permission- states may discriminate or burden IC if
Congress gives them permission to do so
 Congress has broad power and may preempt, as well as permit, state action
C. PRIVILEGES AND IMMUNITIES CLAUSE – Art. IV
1. Background
a. Citizens of each state are entitled to all the privileges and immunities of the citizens of
the several states
i. equal protection, anti-discrimination clause
ii. states may not discriminate against an out-of-state citizen
iii. goal: knit us together as a nation and foster harmony among the nation
b. what counts as a privilege and immunity? must be some interest vital to the nation
i. Requirements:
 must have a very good reason to discriminate
 must be able to show out-of-staters are the source of a problem you’re trying
to solve
 must have a well-tailored response to the problem
ii. most important protected right- right to engage in a lawful occupation
 a state may not condition employment on residency unless it has some
overriding reason and shows out-of-staters are peculiarly responsible for some
identified evil
 Hickman- AL wanted oil businesses to hire only state citizens b/c of high state
unemployment; Held- law not well-tailored to the problem; AL’s best approach:
establish training program for residents, keep jobs reserved, then- non-residents
compete w/res.s
o ownership of resources doesn’t place the state entirely outside of Priv.
and Imm. (tho it can be an impt factor)
 City of Camden- Camden ordinance req. at least 40% of employees of
contractors working on city construction projects be Camden residents; HeldCamden’s justification acceptable and properly tailored, but insuff. findings of
fact, remanded
o Held- if law is well-tailored enough and has a strong justification, then
discrimination will be allowed
o Factors to consider: ownership of the activity, justification, precision in
drafting
iii. does NOT apply to:
 recreational activities (i.e. right to hunt elk)
 discriminating against out-of-staters w/respect to state benefits (i.e. welfare
program, subsidies can be reserved to in-state citizens)
 illegals or corporations (it refers to citizens only)
c. discrimination by states can violate the commerce clause, as well as the privileges and
immunities clause
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d. Congress CANNOT approve any discrimination under privileges and immunities
e. Overlap btw Priv. and Imm. and the Comm. Cl. = discrimination (but born of different
motivations); the Comm. cl. is about Free trade, while Priv. and Imm. is more about
unity/ harmony
i. Under Comm. Cl., Congress can approve certain types of discrimination by States
ii. Congress may Not approve any discrimination under Priv. and Imm.; Priv. and
Imm. also has a broader scope than Comm. Cl.
V. Federal Executive Powers (powers of the President)
A. BACKGROUND
1. Art. II
2. best understood by comparing Pres.’ power in rel’ship to the powers of Congress
a. i.e. when each branch can act w/o the other; rel’ship btw the 2 branches
3. division of the Pres.’ power: domestic sphere, commander in chief, foreign affairs
4. Courts play a secondary role, reluctant to give input; mostly plays out in political arena
B. DOMESTIC ARENA
1. Domestic Lawmaking
a. direct role of Pres.- signing bills or using veto power
i. no line-item veto power (vetoing only a specific portion of a bill)
b. makes legislative suggestions, sets the agenda
c. power to execute the laws; this power sometimes means the President has a duty to
execute the laws
2. Executive Orders
a. orders to the executive branch to take action or to not
b. Rule: the Pres. must have some legislative/ Congressional authorization behind it; at the
very least, Congress may not have said “no” to the action Pres. is taking
i. Exception: in limited circumstances, there is executive authority to act w/o
Congressional authorization; 2 necessary factors:
 there must be an emergency
 Congress cannot have said “no” to the action (President’s action preserves the
status quo)
 also, okay if the action is of a temporary nature
ii. Youngstown Sheet and Tube Co. v. Sawyer- Pres. told fed. official by exec. order
(i.e. w/o Congress. auth.) to take over steel mills under threat of strikes (during
Korean War); Held- Pres. could not act; Congress had previously rejected the idea
of gov’t assuming control of factories
 Jackson’s concurrence – 3 scenarios:
o 1. President acts pursuant to express or implied Congressional authority
(apex of Pres.’ power)
o 2. Twilight zone: absence of a Congressional grant/denial of authority,
Pres. might be able to act, esp. in emergency
o 3. President acts contrary to Congressional will, relying on granted
Const. powers minus any negation by Congress (lowest ebb of auth)
 Jackson- Youngstown falls into the last category
3. Congressional delegation of authority to the President
a. When Congress passes legislation, it usually sets out general principles, often delegating
to administrative agencies the auth. to adopt rules and regulations.
i. they may function like mini-courts/ adjudicatively
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b. Limit on how much Congress may delegate?
i. Rule: the delegation will be upheld as long as Congress provides some intelligible
principle to guide the agency
ii. Chada- Congress passed a Legislative Veto- ability to delegate broadly to admin.
agencies while reserving the right to veto particular acts/regulations of the agency;
Held- this is unconstitutional; can’t short-circuit form required by Constitution,
legislative process requires both Houses to pass and Pres. to sign/veto
4. Appointment and Removal Power
a. Appointment Power
i. Executive officials- President has the chief role of their appointment (w/the advice
and consent of the Senate)
ii. Inferior officers- Congress may vest their appointment in the Pres., dep’t head, or
courts of law
iii. Morrison v. Olson- issue: does apptment by the AG (and limitation on removal by
Pres.) of an independent counsel (to investigate wrongdoing by Exec. officials),
rather than Pres., violate apptmt clause/ subst. impair Pres. from carrying out his
duties? Held- doesn’t violate sep. of powers b/c she is an inferior official (lmtd,
temp. jurisdiction, answers to superior in exec. branch); functional approach to sep.
of powers
b. Removal Power
i. Pres. has the power of removal; Congress may never directly remove an executive
official except through the impeachment process
C. FOREIGN AFFAIRS
1. Background
a. President has the power to at w/o any approval of Congress when acting as the chief
foreign policy spokesperson for the gov’t; vast unilateral power
b. Treaties: Const. requires ratification by the Senate for approval
c. Executive Agreements: valid so long as there is no negation of approval by Congress; if
Congress dislikes the agreement, it may nullify it w/legislation
2. United States v. Curtiss-Wright Export Corp.- Congress authorized Pres. to place an
embargo on arms shipments, which Roosevelt did; now arms dealer liable under the statute
asserts Congress couldn’t delegate that auth. to the Pres.
a. Held- broad scope of Presidential authority in foreign affairs upheld; Pres. has “plenary”
powers in the foreign affairs field not dependent upon congressional delegation
3. Dames & Moore v. Regan- D & M had an attachment against gov’t of Iran in a suit; to get
our hostages back, Pres. agreed to release all claims/attachments; issue: did Pres. have power
to nullify the claims?
a. Analysis: #1: is there legislative authority (has Congress authorized Pres.’ action; if yesPres. authority at its apex)? Held- yes, Congress has specifically allowed Pres. to nullify
attachments by law
i. Held- statutes indicate broad scope of exec. action under such circumstances; also,
Congress has not negated this; Congress has implicit approved these kinds of
settlements
ii. if no statute granting authority: look for customary behavior amounting to gen.
approval; or statutes that can be woven together to show approval
b. #2: if no statutory authorization, is there Const. approval?
4. Congress’ purse strings- biggest limit on power Congress may impose
D. WAR/ MILITARY ACTION
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1. Background
a. Rule: Congress alone has the power to declare war; Pres. has auth. to conduct military
operations once war is declared (as Chief General)
b. Unilateral power of President? Pres. may constitutionally repel sudden attacks/
invasions and perform other emergency acts to protect property and citizens, incl.
those abroad
i. Theory: except for emergencies, the Pres. must have Congressional approval to
wage military actions
ii. Strongest justification of Pres. action is Congressional approval (resolutions,
statutes, implied authority)
iii. Reprisals- questionable
c. War Powers Resolution
i. passed at end of Vietnam; never repealed, but used as more of a rhetorical tool
ii. Pres. required to justify commitment of troops after a period of time and seek
Congress. approval of that commitment
iii. may only introduce troops under certain circumstances (i.e. dec. of war, statutory
auth., national emergency, etc.)
d. Congress can stop a military action using its purse strings
2. Hamdi v. Rumsfeld- Hamdi, U.S. citizen, picked up in Afghanistan after 9/11; issue: does
Pres. have independent authority to detain citizens as enemy combatants indefinitely?
Negated by anti-detention act?
a. Held- no majority; but recognized the power of the government to detain unlawful
combatants, but ruled that detainees who are U.S. citizens must have the ability to
challenge their detention before an impartial judge
E. PRESIDENTIAL PRIVILEGES AND IMMUNITIES (2)
1. the privilege not to disclose information
a. United States v. Nixon- criminal prosecution for break-in at Watergate Hotel; prosecutor
got subpoena for tapes Nixon had from conversations in the Oval Office; Test:
balancing test: privilege of confidentiality vs. substantial/ specific need for the info
(here, interest in fairly prosecuting this type of case); Held- subpoena ok; criminal
prosecution- due process considerations; no fishing expedition; in camera review
b. Rule: the Pres., as a functional matter, has a presumptive privilege not to disclose
confidential, presidential communications
2. the immunity from civil lawsuits for actions taken while President
a. Nixon v. Fitzgerald- Nixon had Fitzgerald fired after he testified before a Congressional
subcommitt about military cost overruns; Held- Pres. has absolute immunity from
private suits for damages for any acts Pres. takes as Pres.
i. theory: want Pres. to act w/o fear of lawsuits; don’t want president distracted
b. Clinton v. Jones- Pres. may be sued while in office for actions taken prior to presidency
VI. State Action
A. BACKGROUND
1. Easy cases for state action- treaties, regulation, etc. – clearly gov’t action
2. Gov’t agents acting on behalf of the gov’t – will be state action, even if they are acting
beyond the scope of their duties, as long as they are acting “under color of law”/ are “clothed
w/official
3. Issues present when trying to determine if state action is presented in gov’t non-action or
gov’t acting together w/private entities
B. CASES
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1. Civil Rights Cases- blacks sue theaters/ transit co.s/ hotels for discriminating; HeldCongress lacks auth. under 14th Am. to outlaw racial discrimination by private individuals
and organizations (Civil Rights Act of 1875 unconstitutional)
a. Harlan (dissent)- use Art. IV privileges and immunities clause to hold that as a U.S.
citizen you are entitled the ordinary rights of everyone else; also, treat action of private
entities as gov’t action- they only exist b/c state chartered them/ gave them legal basis
2. Public Function Doctrine
a. Marsh v. Alabama- Marsh, Jehovah’s Witness distributing materials, charged
w/trespassing on streets of a privately owned town (run by corp.); Held- falls under state
action; if a private actor engages in activities that gov’t engages in, they will be treated
like a state actor for the purposes of those activities (cannot violate 1st Am. rightsfreedom, relig.)
i. this has not been overruled; will apply to something w/very similar facts
3.  Significant State Involvement
a. treated as state action when private entities act w/significant involvement/blessing of the
state
b. Shelley v. Kraemer- neighbor sues to enforce a racial covenant when Shelleys, black
family, purchase a home subject to it; Held- judicial enforcement of private rights (i.e.
racially restrictive covenant) is enough to imbue it as state action; enforcement would
deny Shelleys of equal protection
i. not overruled, but will be state action only confined to its facts
c. Burton v. Wilmington Parking Auth.- restaurant in gov’t owned/built parking garage
refuses to serve Burton, black man; Held- significant involvement decided on facts case
by case; here, where state leases public property, there is enough connection to
determine state action (and violation of the equal protection clause)
4.  New Approach (after civil rights acts passed)
a. Moose Lodge No. 107 v. Irvis- Irvis, black guest of white lodge member refused service
(food/bev.); Π asserts regulatory connection based on liquor license (ltd. # in
community); Held- not enough connection; the state must be involved/responsible for
the discrimination
b. Jackson v. Metropolitan Edison Co.- Π’s electric provided by private co. terminated
w/o notice; Held- gov’t regulation of utility providers is not enough of a connection;
state must have been responsible for the discrimination
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