


The facts matter.
What is the level of generality?
What are the limits?
Arguments to always consider:
- Congressional Silence
- SOP
- Federalism
- Justiciability
- Textual vs. Functional Approaches
MAXIMS OF CONSTITUTIONAL LAW & ITS LIMITS:
1. Any purported exercise of constitutional power must come within the defined scope of
that power.
2. The purported exercise of power may not violate limitations inherent in the structure
of the Constitution, particularly those principles embodied in the separation of
powers.
3. An exercise of Constitutional power may not transgress any external limits or
guarantees imposed by the Constitution. (such as those found in Bill of rights)
JUDICIAL REVIEW:
Authority for Judicial Review:
Marbury v. Madison (1803)
Issue: Essentially whether the Constitution (and Article 3) means anything?  YES.
- Creates SCOTUS authority for judicial review for Congressional and Presidential
action
o “The province and duty of the Judiciary is to say what the law is”  Government
of laws, not men.
- Nothing expressly in Constitution that makes case come out this way
o Marshall says it’s obvious that SCOTUS has this power
 If SCOTUS didn’t have this power, then Congress would be Supreme Law of
the land and not the Constitution.
- Power grab argument is undermined by the fact that in this case, this holding gave
SCOTUS less power.
- SCOTUS has authority to invalidate statutes that are unconstitutional.
o Also establishes that SCOTUS has appellate jurisdiction so whether or not they
could issue the writ of mandamus could not be addressed there first because they
do not have original jurisdiction  thus writ of mandamus act of 1789 violated
the constitution.
Judicial Supremacy:
RULE: Decisions of SCOTUS interpreting the Constitution are the “supreme law of the land”
for purposes of article iv, and are therefore binding on all state officers.
Martin v. Hunter’s Lessee (1816)  case about the power of the federal courts to review and
invalidate decisions by state courts/laws.
1
Issue: Whether SCOTUS can review state court decision?  YES. (for their compliance with US
Constitution)
- Creates SCOTUS authority to review Constitutionality of state court judgments and
the actions of state and local officials (so long as there are federal questions).
o Rationale = Article 3 confers appellate J to SCOTUS but says that Congress CAN
create lower federal courts. Since the framers did not require there to be lower
federal courts, clearly they envisioned SCOTUS to be able to review state law
decisions for their compliance with Constitution.
 Needed to be some mechanism to ensure that Constitution remained
supreme and that is SCOTUS.
 Additional need that Constitution is interpreted uniformly among the
states.
- State court’s are still the last word on state law  BUT for federal and constitutional law,
SCOTUS is last word.
o SCOTUS will not decide questions of state law except to exercise constitutional
avoidance.
o State court’s don’t have to follow lower federal courts – only SCOTUS
- If case hadn’t come out this way  serious undermining of federal government and
SCOTUS power.
o Congress wouldn’t be able to pass unconstitutional laws, but the states could.
o Big impact on criminal cases:
 Almost all criminal cases arise in state court system
 If no SCOTUS judicial review over state decisions re. federal laws 
criminals would not get protections guaranteed by the Constitution.
Cooper v. Aaron (1958)
Issue: Are state officials bound to comply with SCOTUS rulings and court orders based upon
SCOTUS’s interpretation of the Constitution?  YES.
- State actors are bound by federal court decisions.
o Rationale = Supremacy Clause  if a state official could override the Constitution,
then he would be the supreme law of the land.
 At the end of the day, it’s not the Constitution, but SCOTUS’s interpretation
of the Constitution, which is supreme law of the land  need this enforcing
mechanism (ie. interpretation) to make the Constitution a body of LAW
and not just a series of expected political/moral norms.
 Here  Because Brown found the segregation policy to be violation
of SCOTUS interpretation of the 14th Amendment, the same policy –
which was trying to be employed by Cooper – would obviously be
unconstitutional.
 State under a general duty to comply with the judicial order in Brown.
- State actors MUST obey court orders even if they think they are unconstitutional.
 SCOTUS’s role to decide if they are actually unconstitutional.
 Does NOT matter if state official was not an original party to the issue 
still have to follow SCOTUS’s rule.
 Right to day in court ≠ right to re-litigate and decide that you’re
not bound until that’s decided.
JUSTICIABILITY DOCTRINES:
2
Limits on ability to adjudicate = JUSTICEABILITY DOCTRINES
- Focus of the inquiry is on the fact that Article 3 courts are vested with the power to
exercise a specific and limited type of authority:
o This authority = to function as decision makers in the context od disputes that are
commonly understood to be susceptible to a judicial resolution.
- All 4 elements/doctrines must be met for any federal court at any level to hear the case.
- Why do we have justiciability doctrines?
o Partially because of Article 3 “case or controversy” requirement and partially
because of policy considerations involving perceptions of the proper role of the
federal judiciary within the constitutional structure of government.
o Provide a limit on federal judicial power.
- Requirements for “Case and Controversy”: (analysis starts here!)
-
SCOTUS doesn’t issue advisory opinions  will only rule if there is an actual dispute 
“CASE OR CONTROVERSY”
o RULE: SCOTUS may exercise its judicial authority over those matters
 1. In which there is an actual dispute involving the legal relations of
adverse parties AND
 2. For which the judiciary can provide some type of effective relief.
-
IS THERE STANDING?: Whether P is the proper party to bring the matter to the court for
adjudication?
 RULE (combines all 3 elements)  P must allege personal injury that,
“but for” the defendant’s actions, would not have occurred and that
this injury is likely to be addressed by the relief requested from the
Court.
 RULE  taxpayers do not have standing as taxpayers, to challenge
anything as far as federal tax expenditures are concerned. (would
breed too much litigation).
o EXCEPTION: Can challenge those which violate the
Establishment Clause.
 ^^^^Where P seeks several different forms of relief or asserts a
number of different claims, P must separately establish standing as to
each claim.
ELEMENTS:
o 1. Injury  this P has been injured or will be injured imminently
 P can present only injuries that he personally has suffered.
 Allen v. Wright: black family wanting to sue over IRS subsidies to
segregated schools. Couldn’t because this particular family didn’t
experience the harm personally / harm was too attenuated.
o Harms alleged by P:
 1. Mere fact of financial aid to private schools creates
a direct harm.
 2. Federal tax exemptions impair their ability to have
desegregated public schools.
 No bright line rule for when P has been injured  keep in mind the
basic principle that when the interest or harm is either conceptually
or factually to abstract or speculative it will not count as an injury.
-
3
P seeking injunctive or declaratory relief must show likeliness of
future personal harm.
 Congress can’t challenge line item veto because no personal injury
 Raines v. Byrd: Line item veto act challenged by Senators and
Congressmen. P’s allege that this voids each representative’s vote so
they are deprived of the Constitutional right to cast their vote.
(Didn’t argue that their votes didn’t count, they simply lost the
vote).
 Footnote there stated that nembers of Congress don’t regularly have
standing simply based on their status as members of Congress.
o No standing because this was an institutional injury  no
member of Congress that was personally harmed and so it
was a generalized grievance.
 No standing because this power is transient and
injures the office, not the individual.
 “abstract dilution of institutional legislative
power” ≠ injury!
 Would be different if
o 2. Causation & Redressability  D caused the injury so a favorable Court
decision would likely remedy the injury for P.
 RULE: Must be an “actual controversy arising between adverse
litigants, duly instituted in courts of proper jurisdiction.”
 RULE: Statute can’t always give a party standing and can NEVER
remove Article 3 requirement for case and controversy.
 Muskrat v. US: Congress passed statute in 1902 granting land to
Cherokees. In 1906, Congress passed new statute granting land to
more Native American’s. Cherokee people whose land grant was
diminished because of 1906 statute sued United States pursuant to
Congress’s statute that told Cherokees to sue if they wanted to
argue over land grant amounts.  NO CONTROVERSY.
o The US has no stake in this matter  even if they lost, the US
doesn’t pay – the Native American’s that were granted land
via the 1906 statute pay because their land grant gets taken
away.  1906 people can’t have their rights taken away
without their day in court.
 Decision not enforceable against 1906 people so if
SCOTUS had issued opinion, would have been merely
an advisory opinion and SCOTUS doesn’t do advisory
opinions.
 RULE: Relief requested must be designed to alleviate the harm D
caused to P.
 Consider whether actions need to be taken by 3rd parties who are
not a part of the case/controversy to fix P’s injury.
rd
o 3. No 3 Party Standing is Allowed  P cannot present claims of others who are
not before the court.
 “One to whom application of the statute is constitutional will not be heard
to attack the statute on the grounds that impliedly it might also be taken as
applying to other persons or other situations in which its application might
be unconstitutional.”

4
EXCEPTIONS:
 Close relationship between P and injured 3rd party
 Injured 3rd party is unlikely to be able to assert their own rights.
o 4. No Generalized Grievances are Allowed  P must not be suing solely as a
citizen or as a taxpayer interested in that the government follow the law.
 RULE: Article 3 courts will not entertain lawsuits in which the only injury
claimed by P is the shared harm experienced by all citizens and taxpayers
when the federal government fails to comply with the Constitution or laws
of the United States.
 REMEMBER  grievance is NOT generalized simply because the
harm generated by the government action is widely shared.
 Taxpayer Standing  ONLY allowed in challenging government
expenditures as violating the Establishment clause.
 Where a person, suing as a general taxpayer, seeks to challenge a
government tax break provision or spending program on the theory
that it affects him/her only indirectly because of its negative effect
on the government’s revenue  NOT allowed.
o Why?
 Can’t find cognizable injury.
 Even if you found one  no evidence that even a
favorable decision would give redress.
o Would be different if there was a tax that only charged
women, blacks, etc. because then it wouldn’t be general
taxpayer status.
 Complaint that laws are not being enforced properly does not give a
taxpayer standing – remedy for this grievance is elections!
o Allen v. Wright: (see facts above) the injury was too
attenuated.

 Conduct has to be traceable to injury.
o In some cases, no one will have standing!
-
-
IS THE ISSUE RIPE?: Is it too soon to decide this issue?
o Criteria to look at:
 1. Probability that the predicted harm will take place.
 2. Hardship that the P will suffer without pre-enforcement review
 Greater the hardship, the more likely reviewed
 3. Fitness of the issues in the record for judicial review
 Does the court have enough before it to decide on the issues?
o Ripeness often blends with standing because there will be an injury issue if it’s too
soon to decide the case.
o Usually a problem of not enough facts.
IS THE ISSUE MOOT?: Is it too late to decide this issue?
o Often events after the filing of the lawsuit end P’s injury and the case will thus be
dismissed as moot.
 Consider changes in facts and changes in law.
o Exceptions:
 1. Wrongs capable of repetition but evading review
 ELEMENTS:
5


-
o a. The challenged action is of such a short duration that full
judicial consideration in not likely. (Think balanced budget
act!) AND
o b. There is a reasonable expectation that the same
complaining party will be subjected to the same action again.
2. Voluntary cessation (D stops but is free to resume again)
3. Class action suits
 P’s claim may become moot but case will not be dismissed as long as
1 class member has ongoing injury.
IS THIS A POLITICAL QUESTION?: allegations of constitutional violations that the
federal courts will not adjudicate.
o Is this the kind of question court’s typically decide?
o Left to elected branches to resolve.
o While the court’s won’t adjudicate  STILL HAVE TO LOOK AT THE MERITS TO
DETERMINE WHETHER OR NOT IT IS A POLITICAL QUESTION. (political
question, not political case!)
o 2 Essential Questions:
 1. Does the issue implicate SOP?
 If no  no PQ
 If yes  keep going!
 2. Does the Constitution commit resolution of this issue to either the
President or Congress?
 Is there a textually demonstrable constitutional commitment to one
of the coordinate branches? (Baker v. Carr)
o If yes  it’s a PQ and court must stay out
o If no  keep going
 Ask the policy question!
 Are there judicially discoverable and
manageable standards for resolving the
controversy?
 Does resolution of the controversy require an
initial policy determination of a kind clearly
for nonjudicial discretion??
 Will judicial resolution express a lack of
respect for a coordinate branch of
government?
 Is there an unusual need for unquestioning
adherence to a political decision already
made?
 Will multifarious pronouncements by various
departments cause embarrassment to the
government?
o Balance!  these questions give
SCOTUS leeway to consider issues that
should stay out of.
 Types of political questions:
 “Republican form of government” under the Guaranty Clause.
 Challenges to president’s conduct of foreign policy
6


Challenges to impeachment and removal process
o Nixon v. United States: federal judge challenging the Senate’s
“trying” of his impeachment by a small subcommittee 
Textual commitment of the issue to another branch.
 Non-justiciable because the Senate’s power to
impeach is solely given to the Congress via Article 1
and not for the judiciary to provide a check.
 Challenges to partisan gerrymandering
o Baker v. Carr: legislative apportionment is not a political
question here because claim rises under Equal Protection
Clause.
 If case didn’t come out this way, there would be no
incentive for TN legislatures to change anything and
stop protecting incumbents, so SCOTUS needed to
find a way to step in.
 Don’t decide on the merits  peak to see if it can be
decided in the courts and SCOTUS says yes!
Things that make a political question, a political question!: (laid out in
Baker v. Carr)
 Constitutional textual commitment of the issue to a coordinate
branch
o Did the Constitution assign the job of answering the question
to a different branch of government?
 Lack of judicially discoverable/manageable standards for
resolving the issue
 Impossibility of deciding without an initial policy
determination of the kind clearly for non-judicial discretion.
o Like balanced budget amendment  there’s enough law to
adjudicate issue that budget has to be balanced, but
determining a remedy is a political question because it
would require the court to make a policy judgment about
how to fix which would invade into Congress turf.
 Impossibility of a court’s undertaking independent resolution
without disrespecting another branch.
o
 Unusual need for adherence to a political decision already
made
 Potential for embarrassment from multifarious
pronouncements by various departments on one question.
LEGISLATIVE POWER:
-
Generally, Congress lacks police power
For Congress to act  must be EXPRESS or IMPLIED authority in the Constitution
o Limited Federal Government (in theory): start from the baseline premise that if
authority is not in the Constitution, then the federal government can’t do it.
o BUT SEE state and local governments can do pretty much whatever they want so
long as the Constitution doesn’t forbid it via supremacy clause.
7
Necessary and Proper Clause: (biggest potential source of power)
-
“The Congress shall have 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 in the Government of the United States, or in any Department or Officer
thereof.”
o N&P clause empowers Congress to provide the coordinate branches with the
means to carry out their respective constitutional duties.
 Ex. Authorizing other branches to create administrative agencies.
o Congress may seek to achieve any end that is legitimate under its express
powers so long as its chosen means are reasonably adapted to achieving that
end.
 McCulloch v. Maryland: Maryland trying to tax federally chartered bank of
the US, which is privately owned but gives loans to the federal government.
 SCOTUS finds that bank is necessary and proper means for the
legitimate government end of securing loans to run operations.
 RULE: States have no power, by taxation or otherwise, to impede,
burden, or retard operations of the laws enacted by Congress to
execute powers vested in the federal government.
 “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.”
o IMPORTANT: N&P can’t subsist on own  needs to be
carrying out an enumerated power.
 Here  the end is funding.
 Court finds that this is ok but doesn’t actually
address which power these means are
forwarding (probably commerce) 
discussion in this case suggests that SCOTUS
wants Congress to actually say what power
they’re using to try to achieve the ends.
o RULE: “In determining whether the N&P clause grants
Congress the legislative authority to enact a particular
statute, we look to see whether the statute constitutes a
means that is rationally related to the implementation of
a constitutionally enumerated power.” (US v. Comstock)
o Read Constitution as an outline  “we are expounding”
 Policy argument:
 “Constitution has to govern us for the ages so we don’t want to
constrain the government too much so that it can’t adjust to
changes” VS.
 “Constitution has to govern us for the ages so we don’t want to
expand beyond its intended limits”
o Necessary = seemingly reasonable/convenient/useful  not absolute
necessity.
 Congress gets to decide what is necessary and SCOTUS won’t really secondguess their judgment.
8
Deciding whether something is “necessary & proper” is a value judgment
 not appropriate for the court’s to weigh these issues because they are
not elected.
o Proper = whether it’s a subject on which Congress may legitimately pass
laws and it not otherwise limited in some respect by the Constitution.
 US v. Comstock: allows for civil commitment of sexually dangerous and
insane federal prisoners by a federal commitment process.
 Upheld on 5 grounds:
o N&P grants Congress broad authority to enact federal
legislation that is rationally related to an enumerated power.
o Civil commitment is a “modest addition” to statutes already
in place for years.
o Reasonably extended a longstanding system to cover more
people.
o Statute properly accounts for state interests.
o Link between statute and Congressional power is not too
attenuated.

Taxing and Spending Power  COMMERCE CLAUSE
-
-
-
Early commerce clause cases decide with adjectives.
o Direct vs. indirect, production vs. commerce, etc.
 Carter Coal: Cardozo says “But a great principle of constitutional law is not
susceptible of comprehensive statement in an adjective.”
Federalism concerns:
o Ask if the state interest is harmed.
Limits concerns.
Later commerce clause cases no longer look to adjectives for rulings  look at practical
consequences.
Willing to largely leave it up to Congress.
Taxing & Spending:
o 1. Congress may tax and spend for the general welfare!
 Taxing and spending is a very broad power!
 RULE: Congress is not limited to spending only to achieve the specific
powers enumerated in Article 1.
 US v. Butler  Power to tax and spend is a distinct Constitutional power,
fully effective on its own without reference to other granted powers.
 BUT  Congress has no power to regulate for the purpose of
providing for the general welfare  may spend, may tax, but can’t
regulate as the only end. (US v. Butler)
 General Welfare = Separate and distinct concepts. Congress can tax
anything as long as for the general welfare of the people. Broader authority
than regulating under enumerated powers. (US v. Butler  court adopts
Hamilton’s interpretation)
 What’s a tax?:
o 1. Does it raise “some” revenue?
 Will basically always be answered yes.
9
o 2. Even if it raises “some” revenue, does it function in a
fashion that is more properly characterized as
prohibitory or penal? (Ie. Is this tax actually just a
disguised regulation?)
 Fact that it may regulate is not enough!  even the
most legit taxes have a regulatory function.
 This provision will usually be invoked where
Congress is trying to get around a previous SCOTUS
ruling, like Child Labor Tax Case and its trying to get
around the ruling from Hammer.
o 2. Penalties are not allowed but taxes are ok  can usually get around this
simply by not calling it a penalty.
 Child Labor Tax Case: 10% tax imposed on profits of companies that
knowingly employed children under 14. Law uses the word “penalty” and
had provision in statute that required that employers know about the
child, thereby making it a penalty and not a tax.
 MOTIVES ARE IRRELEVANT  attempt to raise money is enough,
even if there is a regulatory goal (all taxes will have some type of
regulatory impact). (If law hadn’t made the regulatory end so
blatant, maybe would have been ok).
 To be classified as a tax  must raise revenue
 US v. Kahriger: Excise tax on the business of gambling. 1% of the amount
of wagers are placed, plus annual occupational tax on the business of the
gambler and everyone has to register with the IRS. There is also a
tax/penalty for failing to register. Applies to both interstate gamblers and
intrastate gamblers.
 Even if sole purpose is regulation, as long as tax raises some
revenue then this is enough – motive is irrelevant when
determining if it’s a tax or a penalty.
o Essentially indistinguishable from Child Labor Case but still
comes out the other way.
o 3. Spending Power Inquiry: (from South Dakota v. Dole)
 1. Whether the condition imposed on the receipt of federal funds is
stated unambiguously so that a state accepting the funds is fully
aware of the consequence of that acceptance?
 2. Whether the condition imposed is related to the expenditure?
 Essentially a rational relationship test.
o South Dakota v. Dole  condition easily satisfied because
money govt was going to give to South Dakota for their
highways was dependent on SD raising drinking age to 21.
Condition was directly related to the purpose of highway
funds in that it was aimed at safe highway travel.
 3. Whether the financial inducement to which the condition attaches
is so strong that it passes the point where pressure turns into
compulsion, in which case the spending measure must be upheld (if at
all) only as a regulation?
 Analysis: look at impact of statute on entire state budget. If state has
small budget and the $ from federal govt would be a big percentage
10
-
of their budget then likely very coercive. If state has huge budget
and $ is only a small percentage, not very coercive.
o 4. Limits to tax and spending power: (from South Dakota v. Dole)
 Spending must be in pursuit of general welfare
 Must be unambiguous (have to state condition for the money)
 Must be related to federal purpose
 Can’t be unduly coercive
 Independent Constitutional bar (can’t be something
unconstitutional…DUH!)
 ^^^These are all very malleable  only real barrier is that you can’t
call a tax a penalty.
 Other Limits:
o Can’t tax to get at someone who’s already been subject to
criminal proceedings  double jeopardy issues
o Can’t tax at a rate that is grossly out of proportion to the
activity.
o Can’t tax something that you’re prohibited from regulating
(like speech or religion).
o Affordable Care Act tells us that Congress can regulate conduct directly.
 Motives are irrelevant to the taxing/spending inquiry.
 Attempts to raise money is enough to make it ok  regulatory goal is fine
so long as there is at least an attempt to raise money.
Commerce Clause:
o Congress can regulate commerce with foreign nations, Indian tribes, and among
the states.  MUST FIT UNDER ONE OF 3 PRONGS:
 1. Congress can regulate channels of interstate commerce
 Ex. Highways, waterways, railroad, Internet, etc.
 E.C. Knight: Monopoly was entirely in state and effect was entirely
on in state manufacturing. There is a difference between
manufacturing and commerce and can’t regulate manufacturing
because that’s not interstate commerce (manufacturing all takes
place within one state, in one plant, for example).
o Court said that even if the monopoly affected out of state
prices that was a “secondary” affect and Congress can only
deal with primary affects  ruling by adjectives!
 This is no longer good law.
 Shreveport Rate Case: stands for proposition that Congress can
regulate intrastate rate activity under premise that it will effect out
of state carrier pricing. (regulated party here was a carrier
company…could be significant)
o ^^^Almost indistinguishable from E.C. Knight but here
SCOTUS essentially says we can regulate because we need to
 bad things will happen to interstate commerce if we don’t.
o RULE: “Congress can regulate to foster and protect
interstate commerce”
o RULE: “Wherever the interstate and intrastate
transactions of carriers are so related that the
government of the one involved control of the other, it is
Congress, and not the state, that is entitled to prescribe
11



the final and dominant rule, for otherwise Congress
would be denied the exercise of its constitutional
authority and the state, and not the nation, would be
supreme within the national field.”
o Fact that this was a train helped  relationship between
interstate and intrastate is very tight when you’re dealing
with a train whose tracks literally don’t end at the border.
2. Congress can regulate instrumentalities of interstate
commerce/persons or things moved in interstate commerce.
 Marks a shift into modern commerce clause jurisprudence where
SCOTUS thinks about practical consequences of a regulation rather
than “direct/indirect” impact, etc.
 Katzenbach v. McClung: Congress uses foods shipped in interstate
commerce as the hook to apply the commerce power to say that
Ollie’s BBQ can’t discriminate anymore.
3. Congress can regulate activities that have a substantial effect on
interstate commerce. (Adopted via NLRB v. Jones & Laughlin Steel)
 Wickard v. Filburn: Congress can regulate how much wheat farmer
grows for his own personal consumption if it would, in the
aggregate, have a substantial impact on interstate commerce.
 Heart of Atlanta Motel: Congress can get at civil rights problems
with the commerce clause by saying discrimination affects
interstate commerce because of access to lodging, etc.
o SCOTUS should defer to Congress’s hunch that
discrimination will have chilling effect on commerce.
o Raich RULE: “When Congress is engages in broad regulation
of a commercial activity, even after Lopez and Morrison, it
may regulate purely non-commercial and intra-state
instances of that activity, if it reasonably believes that failure
to regulate these instances would jeopardize the success of
the overall regulation scheme.” (Medical marijuana case)
 Darby Rule: The power of Congress over interstate commerce
is not confined to the regulation of commerce among the states.
It extends to those activities intrastate which so affect
interstate commerce or the exercise of the power Congress
over it as to make regulation of them appropriate means to the
attainment of a legitimate end, the exercise of the granted
power of Congress to regulate commerce.”
o N&P + Commerce Clause = Substantial Effect Test
*****LIMITS ON COMMERCE POWER:
 Regulation has to be arguably close to commercial activity 
Congress can’t regulate non-economic activity and argue that
maybe somehow in the aggregate it would have a substantial impact
on commerce somewhere sometime.
o Needs to be “economic activity”:
 1. Either the activity being regulated must itself be
properly characterized as economic in nature OR
12
2. The regulation of the activity must be “an
essential part of a larger regulation of economic
activity”.
 ^^^^2 readings of this framework:
o 1. Both elements need to be present
o 2. Absence of economic activity merely
undercuts the argument that there’s a
“substantial affect on interstate
commerce”, but it can still be overcome.
 Basically less deference to
Congress if no finding of
“economic activity”
o US v. Lopez: Statute that unconstitutional where it bars
possession of guns in school zones because this is not
commerce (link to commerce was too attenuated) 
Congress tried to pass law using the commerce power.
 SCOTUS saying to Congress that the commerce power
is very broad but they need to be responsible in
writing laws and need to be clear about where the
commerce hook comes into play.
 Keep in mind that lots of times states can easily deal
with the issues that these commerce clause cases are
trying to regulate.
 Lopez  states already had no guns in school
zone laws.
 Morrison  states could easily have passed
laws that regulated violence against women.
o Violence against women is not
economic activity!
 NO WAIVER: even if the states
ask Congress to pass a federal
statute on the issue it will still be
found unconstitutional if it is
unconstitutional  this is a
long-term compact between
states and federal government
and federalism needs to be
enforced. Can’t have ebbs and
flows of power. (want to
maintain what framers thought
was the proper balance.)
 See Affordable Care Act notes at end.
o Congress’s Power under 14th Amendment:
 Congress can’t create new rights or expand the scope of rights
 May prevent violation of rights already recognized by the courts

Commerce Clause analysis should always ask:
13
1. Start with proposition that the federal government has limited/enumerated powers.
2. Is statute allowed or does it go too far?
a. If we allow this, what else is allowed?
i. If you can’t find a limit, then it would seem to exceed even the VERY
BROAD commerce power.
b. What tool within the commerce tool is Congress using to apply the Commerce
power?
i. For example  shipping, industry, production, etc.?
c. What is carried in commerce?
i. If dangerous  seems like you can regulate (Champion)
d. Will the conduct have substantial effects on commerce?
i. Can be in other state after the commerce occurs
ii. Need not be actual effects  can be potential effects also.
e. Will there be a federalism problem?
i. Most likely to come up in the “substantial effects” cases.
FEDERALISM:
The principle of federalism posits that the government of this nation is shared between two sets of
sovereigns – one national and one state.
10th Amendment: “The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or to the people.”
Is this an intrusion on power of states?
vs.
Federal law trumps state law under the Supremacy Clause.
3 types of preemption  express preemption, implied conflict preemption, implied field
preemption.
- Presumption in favor of NOT finding preemption when the preemption clause is
susceptible to more than one plausible reading.
Express Preemption:
- Federal statute says that federal law is exclusive in a field  state and local laws are
preempted.
o Silkwood v. Kerr-McGee Corp: federal statute expressly preempted nuclear
regulation because thought the NRC was best equipped to deal with nuclear
safety.  BUT express preemption of nuclear regulation did NOT bar states from
having tort actions for nuclear plant bills.
 Statute anticipated tort actions by requiring plants to carry insurance.
o US Term Limits, Inc. v. Thornton: setting term limits for congressional seats by
keeping names off of ballot was found to be an unconstitutional extension of 10th
Amendment.
14

In setting the standards for congressional office, the Constitution’s
requirements act as both a floor and a ceiling  Ct says that state’s never
had this power under Articles of Confederation, it can’t be “retained” here.
 Essentially express field preemption via Constitution’s Elections
Clause.
Implied Preemption:
- Congress does not expressly state that it intends to preempt state or local law, but
manifests an intent to do so through structure or purpose of congressional action.
- Conflict Preemption:
o If federal law and state law are mutually exclusive, then state law is deemed
preempted  CANNOT simultaneously comply with both laws.
 Literally physically impossible to comply with concurrent state and federal
law.
 Infer intent to preempt through direct clash between federal and state law.
o If state law impedes the achievement of a federal objective, then the state law is
deemed preempted.
 A state law may be preempted if it conflicts with federal law by creating an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.
 To analyze:
o 1. Identify the federal objective and
o 2. Determine the extend to which the state law interferes (if
at all) with the realization of that objective.
- Field Preemption:
o If Congress evidences a clear intent to preempt state laws in a particular field,
then state law is preempted.
 EVEN STATE STATUTES THAT DO NOT CONFLICT ARE PREEMPTED.
(rare)
DORMANT COMMERCE CLAUSE: SEE SEPARATE NOTES
-
-
-
-
State and local laws are unconstitutional if they place an undue burden on interstate
commerce.
o OVERVIEW RULE: States cannot treat interstate commerce differently from
intrastate commerce where there is a reasonable, nondiscriminatory,
alternative way of furthering the state’s legitimate interest.
No express provision in the Constitution that gives this authority  why it’s “dormant”
o States subject to IMPLIED limitations even when Congress has not attempted to
regulate a particular aspect of commerce.
o “Mere presence of commerce clause in Constitution may bar burdensome or
discriminatory state commerce regulation”  SCOTUS
ANALYSIS:
o Who’s the actor?
 State law?  dormant commerce clause
 Federal law?  regular commerce clause
LIMITS ON STATES POWER TO REGULATE COMMERCE: REAL RULES!!!!!!!!
o 1. Can never place an undue burden on interstate commerce.
15
o 2. Where the state has attempted to regulate a subject for which a uniform
national standard is necessary.
 Ships! Trains! Trucks! (oh my!)
 Cooley v. Board of Wardens: State law that requires that a local
navigator be hired for docking or the ship has to pay a fine equal to
half the cost of the navigator.
o Not discriminatory or protectionist aimed  purpose was
safety because a local dock worker would know the waters
best and could safely navigate most effectively.
o Just because many states follow the same law doesn’t make a
different one automatically invalid.
 AFFECTS INTERSTATE COMMERCE, BUT NOT PER SE
INVALID BECAUSE NO UNDUE BURDEN ON
INTERSTATE COMMERCE.
 Wabash v. Illinois: Local regulation that set rates for interstate
railroad transportation was NOT constitutional because this type of
regulation required a uniform national standard.
o If each state had a different rate to travel through it there
would be huge efficiency problems.
 South Carolina Highway Dept. v. Barnwell Bros.: SC law that
regulated weight and width limits on trucks driving through South
Carolina was OK because the statute was applied equally, even to
South Carolina operators. (Legitimate local initiative of safety
because of road widths. )
o Fact that no other state had a law like this in place raises
suspicion, but doesn’t necessarily = protectionist.
 South Pacific Co. v. State of Arizona: Arizona law that requires
shorter trains to travel through AZ was NOT constitutional because
it was undue burden on interstate commerce and protectionist.
o Statute applied to all trains on its face, but in practicality 9395% of all trains traveling through AZ will have to shorten
(more jobs for AZ people).
 Fact that most other states have longer length train
requirements doesn’t matter in the sense that AZ is
the only one doing it  matters because it means that
LOTS of long trains traveling across the country will
be coming through AZ and have to shorten.
o No legitimate safety end because shorter trains = more trains
and more trains = more accidents.
 ***Kassel v. Consolidated Freightways of Delaware: Iowa law that
restricts length of trucks but provided exceptions for border towns
and Iowa farms was NOT constitutional because of protectionist
exceptions.
o “Incantation of safety does not save laws from commerce
clause analysis.”
o Exceptions to statute’s are telling of true purpose  if
exception can’t be explained by justification for having the
rule it is likely the true, hidden intent.
16
o 3. State can’t pass laws that would be protectionist  protect local interests
at the expense of out of state interests.
 Dean Milk Co. v. City of Madison, Wisc.: Local law that required the
distance from the town where milk be pasteurized was NOT
constitutional because this method was too protectionist and
burdensome.
o There are other less protectionist/burdensome ways to
achieve the end of purely pasteurized milk.
 Can’t exclude perfectly good milk when your
intention is to provide good milk.
o Effect of the law was to exclude milk from being brought in
from Illinois and other parts of Wisconsin.
 City of Philadelphia v. New Jersey: NJ laws that says that no trash
from other states can be brought in state and dumped in a landfill is
NOT constitutional because its too protectionist.
o Trash = commerce (bc private landfills  buy/selling makes
it commerce)
o NJ tries to argue that there is an environmental safety
concern but SCOTUS rejects, stating that this ruling will help
them in the future when they need to depend on their border
states for something.
o Stands for proposition that free flow is always better  to
win this case, NJ would have needed to show that PA garbage
is more detrimental to the health/safety/environment then
there own garbage.
 Camps Newfound v. Town of Harrison: State law which gave tax
rebate only to non-profit organizations that served mostly in state
residents was NOT constitutional because too protectionist.
o As applied  law discriminates against out of state campers
because since there’s no tax break for the camp (bc they
serve mostly out of staters) the camp is more expensive than
it otherwise should be.
o Statute expressly grants benefit to serve in-state clientele.
o 4. EXCEPTION  WHEN STATE IS ACTING AS A MARKET PARTICIPANT:
 CAN discriminate in buying
 Alexandria Scrap  MD could place additional burdens on out of
state cars when buying for scrap.
 CAN restrict who to sell to
 Reeves Inc. v. Stake  SD restricts selling cement to its own
citizens. This is OK because it’s the state’s property and they can use
their discretion over what they want to do with it.
 CAN be a contractor imposing on sub-contractor
 White v. MA Construction  Boston gave preference to its own
citizens for employment even in cases where it contracts work out
to another.
 CANNOT be a seller who imposes on buyer
 South Central Timber v. Wunnicke  Alaska can’t change price of
timber depending on whether it will be processed in state or not.
17
o May be different if Alaska had owned the processor because
could still be acting as a market participant if that were the
case.
o Downstream conduct is discouraged and usually not allowed.
 CAN require all businesses to go to state owned monopoly
 United Haulers v. Oneida Herkimer Waste Management Authority
 NY measure that some cities wanted additional recycling services
so that state created state-owned plants and required haulers in
those areas to only dump at the state-owned plants at a higher cost.
o Helpful that NY residents voted for this  placed the burden
on themselves.
o Not discriminatory because everyone uses the facility.
o Trash/recycling typically within province of state power
either way.
o 5. Interstate taxation  BRIGHT-LINE RULE
 RULE: If the company has any facility in the state (plant, retail store,
call center, etc.) state can force company to collect sales tax. Without a
physical presence within the state, there is no duty to collect sales tax
from buyers in that state.  Quill Corp. v. North Dakota
 Means that states can’t tax internet sales  Congress could step in
but has not.
 Court will uphold a state tax in the face of a commerce clause
objection when:
 1. The tax is applied to an activity with a substantial nexus with
the taxing state.
 2. It is fairly apportioned.
 3. It does not discriminate against interstate commerce.
o Test by asking  if every state were to apply the same tax,
would commerce be unduly burdened?
 4. It is fairly related to the services provided by the state.
o 6. Privileges and Immunities Clause:
 “The citizens of each state shall be entitled to all privileges and
immunities of citizens of the several states.”
 Anti-discrimination measure that limits the ability of states to
treat out-of-state citizens differently from in state citizens.
 Only limits discrimination with respect to rights that are
fundamental to the promotion of interstate harmony.
 Clause might allow a state to discriminate against nonresidents even with respect to certain important rights if the
state has a substantial reason for the discrimination.
 “Citizens” means US citizens only  no corporations.
 Strong argument under P&I clause that you don’t need dormant commerce
clause, which isn’t written into the Constitution, when you have P&I, which
protects from discrimination against out of state commerce.
 Counter argument: Dormant commerce clause also concerns undue
burdens (not just discrimination) and there have been cases struck
down where there was no discrimination  maybe you do need
both lines of jurisprudence?
 ANALYSIS:
18


If the state or local law does not discriminate against out of
staters:
o Privileges and immunities clause does NOT APPLY.
o If the law puts a burden on interstate commerce, then the
law violates the dormant commerce clause if the burdens on
interstate commerce outweigh the benefits of the law.
If the state or local law does discriminate against out of staters:
o 1. If the law puts a burden on interstate commerce, then
there must be necessary or compelling government interests
served to be upheld. (no less discriminatory alternative)
o 2. If the law discriminates against an out of stater’s ability to
earn a livelihood, then it violates the P&I clause unless it’s
necessary to achieve an important government purpose.
 ELEMENTS FOR APPLYING P&I:
 There must be discrimination against out of
staters.
 The discrimination must be with regard to civil
liberties or the ability to earn a living.
o Ex. Mass Bar Admission (P&I would
apply) vs. Montana elk hunting (P&I
would not apply  would likely be
different if these people depended on
hunting elk for their livelihood)
 Corporations and aliens cannot invoke this
provision, refers to individuals.
 Discrimination would be allowed only if it
were necessary to achieve an
important/substantial purpose.
o Ex. Regulating a particularly source of
evil, like the lottery tickets case.
 Still consider whether there is a
less discriminatory alternative.
FEDERAL EXECUTIVE POWER: SEPARATION OF POWERS!
Textual Approach to SOP issues:
- Based on specific clauses of the Constitution.
- Ex. Power to declare war belongs to Congress while power to conduct war belongs to the
President. If the President were to declare war without approval from Congress, there
would be a textual challenge for SOP.
Structural/Functional Approach to SOP issues:
- Even where no specific textual provision of the Constitution has been violated, the action
of one branch may nonetheless run afoul of SOP because it threatens the tripartite
structure of the federal government by offsetting the balance of power among the
branches.
o Structural threat arises when:
 One branch aggrandizes itself by encroaching upon or usurping functions
that are most appropriately performed by a coordinate branch OR
19


Ex. Congress passes a law barring President from firing certain
executive officials without approval from the Senate.
Even where one branch is not aggrandizing its own power, it nonetheless
encroaches on another branch’s legitimate sphere of authority.
 Ex. Congress were to prohibit President from nominating any
person for a federal district judgeship without the consent of the
governor of the state.
ANALYSIS:
1. Has one branch of government exercised a power or performed a function that a specific
clause of the Constitution requires to be performed by, or only in conjunction with,
another body or branch?
2. Has one branch of government aggrandized its authority by usurping power that more
appropriately belongs to a coordinate branch?
3. Has one branch of government encroached upon the functions of a coordinate branch so
as to undermine that branch’s integrity or independence?
***If YES to any…likely a SOP violation.
SOP ISSUES IN THE DOMESTIC ARENA: (see notes dispersed throughout)
-
-
-
-
Presidential Lawmaking Issues:
o Article I § 1 “All legislative powers herein granted shall be vested in a Congress of
the United States”  focus on word ALL
o President CAN’T make laws  if he does, SOP issue.
 Youngstown v. Sawyer
 Court rejected president had “inherent power” to do this. Said that
President’s actions were “incompatible with expressed or implied
will of congress”  lowest ebb of Jackson 3-tier.
o President CAN participate in legislation by recommending new legislation and
veotes.
Delegation Issues:
o Congress CAN delegate lawmaking power to agencies/other branches as long as
Congress sets forth by statute “an intelligible principle to which the person or
body authorized to act is directed to conform”.
 Intelligible principle from Whitman v. American Trucking Association was
merely “requisite to protect the public health” with an “adequate margin of
safety”.
 SCOTUS very lenient with intelligible principle requirement.
Line Item Veto Issues:
o Line item vetoes are unconstitutional because they give the president the practical
and legal authority to amend acts of Congress by unilaterally repealing portions
thereof after they have already been enacted as laws.
 Violation of the procedures set forth in the Constitution for making laws.
 Article I § 7  before a law may be enacted, amended, or repealed it
must be approved by both Houses and either signed by the
President or vetoed.
 Essentially President could create a different law.
 Clinton v. NY
Legislative Veto Issues:
20
-
o Any legislative action on the part of Congress must meet the requirements of
bicameralism and presentment set forth in Article 1 § 7.
 Bicameralism  mandates that a legislative act of Congress must be
approved by the House and the Senate.
 Presentment  requires that before any measure approved by the House
and Senate can become a law, it must be presented for approval to the
President.
 If the president vetoes  can only become a law if it is repassed by
a 2/3 majority in each house.
o Legislative veto provision allows either or both Houses of Congress to disapprove
action taken by the executive branch  NOT allowed because doesn’t meet
requirements of bicameralism and presentment.
 INS v. Chadha  REMEMBER: bicameralism and presentment
requirements only apply to “legislative action” on the part of Congress.
 Legislative action = that which has the purpose and effect of altering
legal rights, duties, and relations of persons….outside the legislative
branch.
o In Chadha  House of Representatives passed a resolution
blocking AG’s decision to suspend deportation of Chadha,
acting pursuant to a statute which allowed him to do so in
cases where the alien would undergo extreme hardship if
deported. The same statute authorized either House or
Senate to override the AG’s decision.
 SCOTUS held that this one-house veto amounted to
legislative action because it affected the rights and
duties of both Chadha himself and the AG and was
thus unconstitutional because the legislative action
did not meet the bicameralism and presentment
requirements.
Scope of Authority Given to Admin Agencies Issues:
o Congress CAN use its enumerated powers to create agencies within the executive
branch, each charged with implementing or executing certain federal
laws/programs.
 Agencies are frequently endowed with both legislative and judicial
authority.
 Lots of leniency in delegation.
o Real SOP issues come up when Congress tries to limit Presidential control over
executive branch agencies.
 Appointments:
 Process by which someone is appointed depends on whether they
are 1) a principal officer of the US; 2) an inferior officer of the US; or
3) a mere employee.
 Article II § 2  PRINCIPAL OFFICERS must be appointed by the
President with the advice and consent of the Senate.
 Article II § 2  Congress has options for the appointment of
INFERIOR OFFICERS:
o 1. Appointed same as principal officers
21


o 2. Congress may elect to vest the Appointment of such
inferior officers as they think proper, in the President alone,
in the Courts of Law, or in the Heads of Departments.
 Morrison v. Olson  Congress vested power to
appoint special prosecutor in the judicial branch.
 Bowsher v. Synar  SCOTUS said it was OK for
Congress to authorize the President to appoint
comptroller general who is a part of the legislative
branch.
o IMPORTANT  Congress cannot reserve for itself the
authority to appoint officers of the United States because the
Appointments clause simply doesn’t state this as an option.
Issue  How do you classify particular government positions?
o “Officer of the US” = any appointee exercising significant
authority pursuant to the laws of the United States. (Buckley
v. Valeo)  Principal Officer Examples = AG, Cabinet
members, secretary of state, etc.
 “The line between inferior and principal officers is far
from clear.” (Morrison v. Olson) These are the factors
to consider when trying to classify:
 1. The nature and extent of the official’s
duties, and whether or not they include
policymaking functions;
 2. The amount of independence and source
of supervision;
o Ie. whether the official answers directly
to the president, to a principal officer,
or to someone lower in the government
hierarchy?
o  To be inferior depends on whether
he has a superior who is a principal
officer.
 Inferior Officers found by the
court already = supervisors of
elections, US Commissioners,
Postmasters First Class, Special
Prosecutors, Independent
Counsel.
 3. The position’s tenure in terms of
whether it is continuing, temporary, or
intermittent, and the circumstances under
which the official may be removed.
o “Employee” = lesser functionaries who are subordinate to
officers of the United States. (Buckley v. Valeo)  Employee
examples = Mail carriers, prison guards, etc.
Issue  When can Congress directly participate in the
appointment process?
o If the position is purely legislative in the sense that it
involves only the performance of investigatory, informative,
22

or other tasks for Congress. If such person performs ANY
duties of officers of the US, they must undergo appointment
pursuant to Article II § 2.
o If officers were appointed in accordance with Article II § 2,
there is no Constitutional violation if Congress later gives
them the additional duty of sitting on another council or
commission.
o If person were appointed as an inferior officer by the
President alone, head of a department, or by the courts could
not be named by Congress to a position whose duties involve
those of a principal officer  any appointment as a principal
officer may be made only by the President with advice and
consent of the Senate.
Removals:
 Constitution is silent on issues of removal that are less egregious
than impeachment.
 Congress’s Role in the Removal Process:
o Congress may NOT reserve for itself a role in the
removal process of executive branch officials because it
would violate SOP. (Myers v. US)
 SOP violation because Congress has no right to
participate in the exercise of executive power (other
than through impeachment.)
 If they could participate in the removal process in
executive branch, this would “in practical terms,
reserve in Congress control over the execution of the
laws.” (Bowsher v. Synar)
 Bowsher v. Synar  Congress tried to reserve
the removal power over the comptroller
general by joint resolution. (Joint resolution
requires approval by the House, Senate, and
the President). Congress can’t do this because
the comptroller general is an officer designed
to perform executive functions. Further, since
the comptroller general is an officer of
Congress, SOP precludes Congress from giving
him the role of implementing the Balanced
Budget Act because execution of laws is an
executive branch power.
o Congress MAY participate directly in the removal of
legislative branch officials and agents.
o Congress MAY still curtail the President’s removal
authority over people in the executive branch by vesting
the power to remove a particular executive branch
official in some executive branch official other then the
President.
 Ex. Each assistant US attorney is subject to removal
by the AG (not the president.)
 If President wanted to get rid of assistant US attorney,
would have to request the AG remove him. If AG
23

-
wouldn’t comply, president would have to dismiss the
AG and name a successor who would carry out his
wishes.
 BUT SEE  in some instances, Congress may NOT
do this. Some executive branch officials work so
closely with the president that he must be able to
terminate their services at will. (Morrison v. Olson)
 Any congressional interference would be an
impermissible encroachment upon the
integrity and independence of the executive
branch.
o Congress MAY still curtail the President’s removal
authority by providing that a particular executive
branch official may be removed only for cause.
 Ex. An independent counsel may be removed from
office, other than by impeachment and conviction,
only by the personal action of the Attorney General
and only for good cause, physical or mental disability,
or any other condition that substantially impairs
performance of such independent counsel’s duties.
 These provisions are fine so long as the nature of the
position does not make it “essential to the President’s
proper execution of his Article II powers that the
officer be removable at will.” (Morrison v. Olson)
 Congress can provide for judicial review when there
is a “good cause” stipulation to verify that there was
actually good cause for removal.
Judiciary’s Role in the Removal Process:
o Judiciary may NOT dismiss a prosecutor from office
while an investigation or court proceeding is underway,
for the judicial performance of this administrative
function would aggrandize the judiciary and encroach
upon the executive’s domain.
War Power Issues:
o Article I § 8  “Congress shall have the power to declare war.”
o Article II § 2  “President shall be commander in chief of the army and navy of
the United States.
o War Powers Resolution  requires that in every possible instance the President
must consult with Congress before sending troops into such hostile situations and
that he in any event must notify Congress within 48 hours after troops have been
introduced into the territory, airspace, or waters of a foreign nation while
equipped for combat unless the deployment is merely a supply, replacement,
repair, or training operation.
 If troops sent into hostile situation  President is obligated to terminate
their use within 60-90 days unless Congress has declared war, specifically
authorized the use of troops, or extended the period in the interim.
 War Powers Resolution was vetoed by the President, but was
subsequently overcome with a super-majority.
24
General Presidential Powers:
o Execution of the laws
 Very general!
 Like N&P, but for the President.
o Commander in chief  leads and directs the armed forces.
 CANNOT declare war (some war powers left to Congress)
 Not as broad as it appears.
o Makes treaties with Senate approval.
 Appoint ambassadors, federal officers (federal judges, cabinet members,
etc.)
o Foreign Policy
o Issue pardons for federal offenses
o Veto power
-
Foreign Policy:
o Treaties  negotiated by President and consent entered by Senate via 2/3 vote,
then President ratifies.
 State laws that conflict with treaties are invalid.
 Conflict between a treaty and a federal statute  the one adopted last in
time controls.
 Treaties are invalid if they conflict with the Constitution.
 Self-Executing  establishes enforceable domestic law without any further
action by Congress.
 Non self-executing  requires legislative implementation before its
provisions can be of any effect as a domestic law.
 Generally, treaties that require an appropriation of money or the
criminalization of specific conduct are deemed to be non selfexecuting.
 President gets to cancel treaties but no agreement on why.
 Senate has no standing to challenge his cancellation of a treaty.
o Executive Agreements  Agreement between US and foreign country when they
are signed by the President and a leader of a foreign nation.  do not require
advice and consent of the senate.
 US v. Curtiss-Wright Export Corp  power to enter into executive
agreements is inherent in the concept of nationhood
 Exception to the normal rule that federal government is one of
enumerated powers.
 3 types of executive agreements:
 1. Those that are congressionally authorized be either a prior
statutory delegation or subsequent statutory implementation;
 2. Those that are authorized by the provisions of a preexisting
treaty;
 3. Those that are undertaken under the independent
constitutional authority of the executive branch.
o Choice of whether the use a treaty or executive agreement is
essentially a political judgment to be made by the executive
branch.
25
Executive agreements prevail over conflicting state laws, but never over
conflicting federal laws of the Constitution.
 Some require Congressional (House and Senate) action.
 Federal action can be implied!
o Dames & Moore v. Regan: President, through an executive
agreement, created a tribunal for US citizens to settle their
claims with Iranians after a hostage situation.
 SCOTUS found this was OK because Congress had
implied its approval through action.
 Congress had previously passed the
International Claims Settlement Act and
created a Foreign Claims Settlement
Commission which showed that it had
anticipated future settlement agreements.
o (Seems inconsistent with Youngstown)
 No policy objection to what the President was doing
[getting hostages back] so read narrowly.
 If no express or implied approval  President will appeal to his
inherent authority in emergency situations.
Difference between treaties and executive agreements:
 Treaty  requires 2/3 approval of Senate
 Executive Agreement  simple majority in both houses
US v. Curtiss-Wright Export Corporation: (case is about what President can do
with or without Congress’s authority)
 President, with Congress, releases joint resolution that declares it illegal to
sell weapons to countries engaged in conflicts in Chaco region. D sells guns
to Bolivia  sues.
 Foreign policy essentially requires one voice in the President for
consistency reasons  so give him lots of power in foreign policy.
o (President promises something, he needs to uphold it /
speak with one voice / ongoing treaty negotiations should
remain quiet so the other side doesn’t know what you have
and this is best done via one person / etc.)
 Under Jackson 3-Part Test  Congress and President working
together so should be the most power possible. (see below)
o No doubt that Congress could have made the law here, issue
is was it right for them to delegate power in this area to the
President?  YES, this is fine because President has wide
latitude in the sphere of foreign policy.
Practical reasons for using an executive agreement instead of a treaty:
 1. Executive agreements can take effect even in the face of Senate
opposition that would doom a treaty.
 2. Even where adequate Senate support may exist, executive agreements
can take effect immediately without the long delay that sometimes comes
with ratification of a treaty.
Practical reasons NOT to use an executive agreement instead of a treaty:
 1. If the executive agreement requires legislation for implementation or
appropriation of funds, the President’s use of an executive agreement may
alienate the Congress by excluding the Senate from the process.

o
o
o
o
26
-
-
President’s Power in War:
o War Powers Resolution of 1973 attempts to limit President’s power to commit
troops abroad without congressional approval/declaration of war.
 President vetoed  but Congress overrode veto with super-majority in
both houses.
 Big standing issue  who could possible sue?
 Looks a lot like a political question (impose on president)
 Similar to Nixon v. GSA, even where there’s law have to balance the
interests.
o Hamdi v. Rumsfeld: (case is about President’s power during war)
 P is an American citizen participating for other side in war.
 SCOTUS finds that it’s OK to detain him, but at some point they have to
have a hearing about whether he is in fact an enemy combatant.
 Habeas Corpus can only be suspended by Congress and President
can’t hold him forever under a sort of made up/implied suspension
of Habeas Corpus.
 2 years after 9/11 so now real argument that President’s
emergency powers apply.
 More power to President than Youngstown because SCOTUS didn’t
say no to the detention, they just said you can’t detain him forever
 how long is too long was never addressed by the court
(constitutional avoidance).
President’s Power in Domestic Affairs (during wartime???):
o Youngstown Steel v. Sawyer: (case is about the fact that SCOTUS will come in and
right SOP issues even at time of war)
 SCOTUS determines that executive order stopping steel industry from
increasing prices and ordering workers on strike to return to work is read
as a LAW  president has power to execute laws, not make them. NOT OK.
 Presidential authority needs to come from Congressional
authorization or from the Constitution  neither here.
o Commander in Chief power does not give President right to
control private property.
o Level of Generality Argument: President wants to limit
SCOTUS’s view of this issue to the level of it being a time of
war and so the stakes would be different. SCOTUS looks are
the bigger picture of President overstepping his role as
executor of the laws, not maker.
 Ex. Does the federal government (as a whole) have
the power to do this? vs. Does one branch of the
federal government have the power do this?
 Frankfurter  President has done similar things in the past with
authorization from Congress. Congress’s silence = acquiescence.
 Problem’s with this argument:
o 1. What’s “similar”? (is it similar because it’s war time? is it
similar because its taking over a whole industry? is the
justification the same? is the duration the same?, etc.)
o 2. NEVER READ SILENCE AS ANYTHING MORE THAN
SILENCE.
27
So many reasons for Congress not acting….can’t read
it as anything.
Jackson 3-Part Test:
 1. Express or implied authorization by congress  President’s
authority is at a maximum.
 2. President acts without Congressional grant or denial
(Congressional silence)  Presidents power is less here, acting only
on his own power, but without express denial of authority from
Congress.
o Areas that are often concurrent authority or unclear power
divides.
 3. President acts incompatibly with the express or implied will
of Congress  Power is at the minimum. Acting only on President’s
own power, with direct denial from Congress.


PRESIDENT’S PRIVILEGE AND PRESIDENT’S IMMUNITY:
- President’s Qualified Executive Privilege:  Privilege against compelled disclosure of
information.
o President’s conversations and papers are presumptively privileged, but must yield
to overriding need for the information.
 No source for this authority, but all Presidents have claimed it exists and
SCOTUS has recognized it as being implicit in the structure of the
Constitution.
 Policy  without some assurance of confidentiality, those who advise the
President may feel a need to “temper candor with a concern for
appearances and for their own interests to the detriment of the decisionmaking process.” (US v. Nixon)
 Rooted in SOP because it seeks to protect the independence of the
executive branch within its own sphere.
o When President invokes the privilege  court will use a balancing test:
 President’s side: Basis on which the President claims the privilege
and the degree of disclosure sought.
 If seeking to protect military or diplomatic secrets  will almost
always be granted.
 If seeking to protect just on a general interest in confidentiality 
privilege may have to yield.
 Opposing Party’s Side: Purpose for the information sought.
 If information is sought as evidence in a criminal trial  privilege is
likely to yield. (Nixon v. Fitzgerald)
o US v. Nixon: (case about how the executive privilege is not absolute.)
 EXECUTIVE PRIVILEGE IS NOT ABSOLUTE!
 RULE: “When the grounds for asserting privilege to
subpoenaed materials sought for use in a criminal trial is based
only on a general interest in confidentiality it cannot prevail
over the fundamental demands of due process of law in the fair
administration of criminal justice.”
 Judicial review over assertions of privilege are justiciable.
28
Congress could make the privilege larger, but probably couldn’t limit it
because of SOP problem.
o Nixon v. GSA:
 Congress passes statute so that archives can take over Nixon’s
papers/tapes/etc. Nixon says that some of his papers are personal
property and doesn’t want them given over. (personal and work papers all
mixed in together in millions of documents).
 Presidential privilege is not for the President, but for the republic as
a whole so he can effectively run his office without worrying about
exposure over every comment he makes.
o Next President NEEDS those papers.
 P argues this is bill of attainder:
o Bill of Attainder = legislative act that imposes a forbidden
type of punishment
 Argues that the fact that he’s singled out as the only
President who has to give up papers where this has
never been done before is a forbidden punishment
that hasn’t been decided by judiciary.
 Court rejects  the statute puts policies in
place for other presidents moving forward, P
would just be the first one affected, but not the
only one. (Also, all other President’s have
willfully given access to their papers). Law is
no more punitive than necessary to deal with
the problem AND he gets just compensation.
 RULE: Congress can pass laws that effect the President’s duties
provided that they don’t interfere with carrying out his duties
in office  judged by a “reasonableness” standard.
o Here  objective evidence that this law is reasonable
because incoming President Ford said he was fine with it and
it seemed reasonable.

-
President’s Absolute Immunity from Civil Damages:  Immunity from suit.
o President, Vice-President, and other executive branch officials enjoy no immunity
from criminal actions. (Article I, § 3). “Officer who has been impeached may still
be subject to criminal prosecution.”
o Executive branch officials enjoy qualified immunity from civil damages actions
based on their having violated a person’s constitutional or statutory rights.
o President has absolute immunity from civil damages actions:
 “In view of the special nature of the President’s Constitutional office and
functions, we think it appropriate to recognize absolute presidential
immunity from damages liability for acts within the ‘outer perimeter’ of his
official responsibility.” (Nixon v. Fitzgerald)
o Nixon v. Fitzgerald: (How can the President claim immunity here when in
Youngstown, the president was sued and there was no immunity?)
 RULE: The President has absolute immunity in civil suits for money
damages for anything done while carrying out the office of the
President.
 (In Youngstown they were seeking injunction.)
29

“Carrying out the office of the president” is no real limit on this rule
because isn’t the President acting as president 24/7?
o BUT  when the President acts, he almost never acts alone,
so just because you couldn’t sue him, there would probably
be someone else you could sue and collect damages from.
 Policy Considerations: Prevents pressure on President when
decision-making.
o Clinton v. Jones:
 RULE: President has no immunity for actions that allegedly occurred
prior to taking office.
 Factors you should look at when determining whether immunity /
stay of trial/discovery should apply?
o Nature of relief sought?
o What law actually applies?
o What are the issues?
o What is the nature of the dispute?
 Would it be distracting from President’s ability to
carry out his office effectively?
 Would be nice for Congress to step in, but this
issue is dicey  Congress would likely
calibrate the scope of immunity inaccurately
so better to stick with the malleability of
common law.
CONGRESS AND THE LEGISLATIVE PROCESS: SEPARATION OF POWERS!
Congress’s Delegation Power:
- Congress can only delegated the legislative power when it provides an “intelligible
principle” to the agencies to operate within.
o Non-Delegation Doctrine: Congress delegates when it fails to provide an
“intelligible principle” to guide agency or executive official’s exercise of discretion.
 To consider if Congress delegated  first have to ask is what we’re dealing
with “legislation”?
 Elements of legislation:
o 1. Regulatory in nature?
o 2. Prospective? (not retroactive)
o 3. Penalties for non-compliance?
 Whitman v. American Trucking (EPA Case)
 All 3 elements of EPA regulation satisfy test of regulation but this is
OK because agency worked within the guidelines (followed the
“intelligible principle” that Congress gave them.
o Agencies often make policies through their rules and that is
OK.
 Even though Congress is elected so they are
inherently better suited to make policy calls.
 Here  Congress expressly delegated to EPA
and that makes it easier to find that
regulations are not legislation because the
accountability argument would carry over
when EXPRESSLY delegated.
30
o Agencies are perhaps in a better place than Congress to
make rules because they have more expertise in the area,
more flexibility, more research ability, and have better
systems for getting public input.
Congressional Control over Appointment and Removal:
- Appointment Power:
o President appoints ambassadors, federal judges, and officers of the United States
with Senate confirmation. “Officers of the US”
o Congress may vest the appointment of inferior officers in the President, the head
of departments, or the lower federal courts.
o Congress cannot give the appointment power to itself or its officers.
- Removal Power:
o Unless removal is limited by a federal statute, the President can fire any
executive branch official.
 Statutes must not prohibit removal, can only limit it to where there’s
good cause.
 Humphreys Executor v. US: agencies like the FTC are more
independent from the President and need more independence
in their actions. Can only be fired for cause.
o Theory is that this limitation on Presidential removal power
doesn’t impact the President’s ability to function in the way
that the President’s inability to fire those who are closer to
him (ie. his cabinet) would.  how this case is distinguished
from Myers.
 Myers v. US:
o RULE: President can fire people “exclusively” in the
Executive branch at will.
 Policy:
 President needs to be able to get rid of people
who are directly responsible for implementing
his policies.
 Having to get Senate approval would frustrate
his purpose because Senate could deny
removal simply so that an official doing a bad
job is kept in office and reflect negatively on
the President. (party politics/gaming)
o President has power to remove executive officials, but Congress may limit
power to remove if the office is one where independence from the President
is desirable.
 Morrison v. Olson: special prosecutor is there to investigate
(potentially) the president, so president shouldn’t get to fire him.
o RULE: Judiciary appoints the special prosecutor and
President can still fire, but has to be for cause.
 Appointments clause allows for judicial appointments
which is what happens here  Executive retains a
“check” on the process because appointment has to be
approved by the AG (executive branch).
31

Judicial appointment must be an inferior
officer.  seems hard to argue that someone
who is investigating the President is an
inferior officer (especially where 1st class
postmaster wasn’t even an inferior officer) but
the fact that special prosecutor has to be
approved by AG and can be removed by the AG
is enough to say he’s an inferior officer.
o Congress cannot retain removal power over an officer of the United States.
 For Congress to remove, would have to be through the impeachment
process.
 Only restriction they can place is “for cause”.
o Congress cannot give power to execute laws to one of Congress’s People:
 Bowsher v. Synar: Comptroller General is an office appointed by the
President with advice and consent from the Senate. He serves a
single 14 year term and his office is under complete control of
Congress.
o RULE: “Because [the legislative branch in the form of]
Congress retained removal authority, the Comptroller
General may not be entrusted with executive powers.”
 Both firing and appointment are Congressionally
dominated on the front end and back end  Congress
gives President list of 3 people to appoint from.
o RULE: Congress can’t retain removal control over
someone charged with the execution of laws except
through impeachment.
 If you want to get rid of him  President has to do it
or Congress can impeach.
 Comptroller general offering opinions regarding the
budget wouldn’t pose a SOP issue, but Congress
mandated that President apply his budget and this
presented the SOP issue.
Legislative Vetoes and Line Item Vetoes are UNCONSTITUTIONAL:
- Legislative Vetoes:
o Law enactment and repeal needs bicameral approval and presidential signature.
Variations from this structure between the President and Congress are
unconstitutional.
 Creation of agencies is fine!
o Especially bad if it changes the “default position” of action/inaction:
 INS v. Chadha: before law, Chadha would have stayed, after law, Chadha
has to go because of a single committee in the house vetoes.
 Problematic because Congress is trying to circumvent
Constitutionally prescribed method of creating legislation 
Congress can’t create and apply the law.
 RULE: Where Congress takes actions that have the purpose and
effect of altering legal rights, duties, or relations of persons
outside of the legislative branch, bicameralism and
presentment are required.
32
o House, Senate, and President can still make their own rules
so long as they don’t effect outside branches directly.
Chadha violates SOP!
-

Line Item Vetoes:
o Presidential line-item veto is unconstitutional.
o No presidential authority to amend Congressional acts after signing it.
 Clinton v. NY: before this case, the default was wholesale accept or deny,
now can send back individual items that if Congress can’t muster the votes,
are stricken from the law.
 Difference between voting on a comprehensive measure and an
individual portion  upsets the balance of compromise in creating
legislation.
 No line item veto’s / can’t waive 2 houses + President requirement
because it’s about complying with the structural protections in our
Constitution.
Case coming into SCOTUS involving question about President’s recess appointment power:
- President has power to fill up all vacancies that happen during the recess  for many
years Presidents has construed this power broadly to give them substantial authority in
recess appointment.
o Noel Canning  company with standing to challenge what has been going on with
recess appointments.
- De Facto Officer Doctrine: courts have upheld orders issued in circumstances like this if
the person was appointed with apparent authority.
- Cases were spurred by 2 things that happened:
o 1. Confirmation of both article 2 officers (executive branch) have to go through
the president and senate. Judges and justices go through same process. Recess
appointments provision applies to all officers of the United States. (Courts of
Appeals judges  given recess appointments and were subsequently affirmed,
but gave decisions before confirmed.)
o 2. Senate wanted “no recess recess policy” and Obama said no but this set off
whole series of claims that Senate had authority on its own to determine what a
recess is vs. “the recess” means only between sessions of Congress. (could shorten
the recess to nano-second so president couldn’t appoint anyone)
o 3. Theory that president can appoint only vacancies that took place DURING the
recess “That happen” vs. could appoint anyone to fill a vacancy that occurred even
before recess and continued to be vacant into the recess.
 Senate vs. President (not republicans vs. democrats)
 Likely will come out to limit president’s appointment power
Balanced Budget Amendment:
-
Government will spend more than it takes in  if the
amendment passes and you do this it’s unconstitutional.
o What does this mean?
 Congress can’t fix it because they wrote the
law (SOP problem)
33
President can’t unilaterally stop spending once
already implemented and not vetoed.
 All that’s left is the courts, but is it justiciable?
 Ripeness issue: assume we all know at
the beginning of the year that
amendment will be signed in October. Is
dispute going to be legal or factual?
 Factual  is budget balanced?
Litigation will be a mess because
“evidence” of imbalance will all be
based on estimated per section 6. So
there will be no real evidence.
o Discovery will take forever and
will never hit target because
always changing estimates.
 August 1 rolls around…we know there’s a 10%
overspending and fiscal year ends September
30. What do we do?
 Compress the 10% over the last two
months? This is a tremendous amount
of money that government has to save.
Court enforces  Constitution now
says you MUST have a balanced budget.
o Who gets cut? How do you
decide?
***Big, long, complicated litigation that will have to go to trial and at the end, a judge will decide
something then there will be appeals then SCOTUS which will be a long, massive case and will need
to take place by August 1.

Justiciability issue:
-
Would could be P?
o Who is being injured?
 Taxpayers  but no standing (Congress could
create standing for the taxpayers, but they
won’t because they don’t want every tax payer
to be able to sue.
 Congress  no personal injury so no standing.
- No judicially manageable way to give a remedy!
o Remedy is outside the courts because who would you
raise taxes against to balance out the spending?
**Takeaway  way too many variables to put economic proposals into the Constitution.
- Analogize to continuing to use common-law privilege principles for President, simply
because Congress could not adequately take all considerations into account in trying to structure
the scope.
Affordable Care Act:
o tells us that Congress can regulate conduct directly.
 Motives are irrelevant to the taxing/spending inquiry.
34
Attempts to raise money is enough to make it ok  regulatory goal is fine
so long as there is at least an attempt to raise money.
Can they make you buy health insurance under the commerce power?
o Nobody disagree with need for health care reform, so why strike this down?
 Mandate regulates economic INACTIVITY  penalizes/taxes people for
choosing not to participate in the market.
 Precedent argument is a tie: never regulated inactivity before by
nothing that says you can’t do it either.
 “Power to regulate commerce presupposes the existence of
commercial activity to be regulated.” – Chief Justice NFIB v. Sebelius
 Can’t use the N&P clause: need an enumerated power because N&P is not
an independent power.
 Ginsburg  not really regulating inactivity
o You’re choosing not to buy something is an economic choice
(not a matter of IF but WHEN you will participate in health
care.)
Can they pass it with the taxing power?
o Majority says it’s a tax and its fine..
 Willing to disregard the label of penalty and regard it as a tax (would have
been easier if they’d called it a tax in the first place)
 No real line between revenue raising / incentives / penalties.
o At some point the Court could say that this has no relation to
revenue and its clearly a penalty but no indication where
that line is.
o Dissent says it’s a regulatory penalty and its bad.
 Focus on the fact that it’s a “requirement” = legal obligation, so you’re in
violation of the law if you don’t comply.
Can they pass it with the spending power? Medicaid issue!
o Majority struck down under this power.
 Said it was unduly coercive because if states didn’t want in they would lose
100% of their Medicaid funding.
 Chief Justice says 3 reasons:
 1 New program.
 2. Without warning.
 3. Unduly coercive.

-
-
-
35