I.
Judicial Power
A.
B.
C.
D.
Constitutional Interpretation
 Textualism: Reading the direct language of the constitution/ statute.
 Originalist: Constitution means today what it meant the say it was ratified. The
meaning and scope remain the same, thus the same question should produce the same
answer. Promotes:
o Consistency/ predictability
o Objectivity/ democracy (keeps unelected judges from striking down the will of
legislature/people)
o Social contract: changing the meaning of the Constitution, voids the social
contract
 Non-originalist: Framers intended to paint with a broad brush and it should be read to
evolve. Constitutional law is like the common-law, interpreting the constitution should
protect broad principles and values. Promotes:
o Practicality (originalism is impossible in practice since we don’t know what was
actually originally meant)
o Legitimacy (the constitution is binding because we choose to accept it as so since
it keeps up with changing notions of liberty and equality)
o Protection of Minorities (The danger of democracy is the tyranny of the majority,
judges protect the minority)
 Structuralist: Looking at the structure of our government not explicitly in the
constitutional text—separation of powers, federalism, and judicial review.
 Formalism: Looks at the text and form of the Constitution.
 Functionalism: Looks at the real world consequences of the action.
Judicial Review
 Review of Federal Action: There is no explicit textual authority for federal courts to
review federal legislation and federal executive actions as to their constitutionality.
However, Marbury v. Madison implied this power under Art. III of the Constitution.
 Federal “judicial power” defined: Unless a case falls within one of the “cases or
controversies” identified in Art. III, §2, an Art. III federal court must dismiss the case for
want of subject matter jurisdiction. (See, Muskrat v. U.S.)
 Supreme Court Jurisdiction: Original, Appellate & Discretionary Review
o Original Jurisdiction—Supreme Court original jurisdiction is defined by Art. III.
It cannot be enlarged or diminished by Congress. (Marbury v. Madison)
o Appellate Jurisdiction (Congressional Power)—The Supreme Court’s
appellate jurisdiction is vested by Art. III to the “cases and controversies”
enumerated there subject to congressional exceptions.
o Discretionary Review—Supreme Court review of lower court decisions is
almost entirely a matter of discretion.
Supreme Court Review of State Court Judgments
 Review of State Action: Art. VI requires state courts to make decisions in conformity
with the U.S. Constitution, thus when state court judgments “aris[e] under the
constitution” as defined in Art. III, §2 the Supreme Court has the power to review them
as a function of its appellate jurisdiction (federal question doctrine). (Martin v. Hunter’s
Lessee).
Judicial Supremacy
 Extension of Supreme Court Rulings: Because Supreme Court rulings are the
supreme law of the land, everyone is bound by the constitutional interpretation of state
E.
F.
II.
judgment, federal question case if the case in question clearly extends. (See, Cooper v.
Aaron).
 Limits on Judicial Supremacy: Judicial supremacy can be fought by (1) trying to name
and confirm new justices (2) political branches overrule the court by amendment (3)
Congress can tinker with the law. Ultimately, judicial supremacy rests on Congress, the
President, and the people because the Court’s rulings mean nothing unless the
president respects and enforces it. Occasionally, the court spends its capital testing the
public’s capacity for deferring to the Court, but tend to accept out of respect/fear of
tyranny of the majority.
Limits on Judicial Power (Justiciability)
WHAT MAY BE LITIGATED?
 The Political Question Doctrine: Questions found to be political based on the Baker v.
Carr test are non-justiciable (Brennan) argument that everything can pass the test
o Textual Commitment, Judicially Discoverable/ Manageable Standards, Policy
Determination, Respect for Other Branches, Unquestioning Adherence, Avoid
Embarrassment (See also, Nixon v. U.S.)
 NO Advisory Opinions: Advisory opinions are NOT “cases or controversies” in
adversary form and because there is no issue pertaining to real people in an advisory
opinion it is not in a context that is capable of judicial resolution. Additionally, judicial
restraint prevents the Court from issuing advisory opinions to prevent violation of
separation of powers. (Muskrat v. U.S.)
o Pro-advisory opinion argument: More efficient for the Court to issue advisory
opinions if they will just strike down a law in the long run. Judges are the true
experts in our system and can prevent the costs of making people live under an
unconstitutional law. It is not a violation of separation of powers, but an
opportunity for the branches to work together.
WHO MAY LITIGATE?
 Constitutional standing: Plaintiff must have a personal stake in the outcome by
establishing an actual injury that can be remedied by a lawsuit.
WHEN CAN THE CONSTITUTIONAL QUESTION BE LITIGATED?
 Mootness: A case must be dismissed when because of change in circumstance the
court’s determination of the legal issue cannot have any practical effect in achieving the
desired result.
 Ripeness: There must be a present injury (legal question/controversy) in order to sue.
Checks on Judicial Power
 External limits: President can appoint new justices; Senate can reject nominees,
Constitutional amendments; Congressional impeachments; Lack of enforcement
mechanism; Potential addition of justices; Congress can impose schedule limitations;
Congressional Budget Control
 Stripping Jurisdiction: The Court’s Appellate Jurisdiction may be subject to limitations
arising from separation of powers principles and constitutional rights and liberties (See,
Ex Parte McCardle).
Federalism
A.
Necessary and Proper
 Congress may enact laws that are “necessary and proper” to carry out its (delegated)
powers so long as they are within the scope of the Constitution. (See, McColloch v.
Maryland)

B.
Congress may enact laws that are rationally related to its enumerated powers (1)
extension of long-standing policy, statute-accounting for state interests, and narrowly
tailored to only address the legitimate federal interest. (U.S. v. Comstock)
The Commerce Power
 Definition: Congress has power to regulate “commerce among the several states”
which has come to mean interstate commerce. However, the commerce power
provides the basis for congressional regulation even of local intrastate activities.
1.
Early History
o Commerce: The traffic of buying and selling goods, the interchange of
commodities, shipping and all commercial transactions based on a textual and
originalist understanding of Const. (Gibbons v. Ogden)
o “among the several states”: Among means “intermingled with” thus commerce
that concerns more than one state. (Gibbons v. Ogden)
o Regulate: Congressional authority to do whatever it wants within its spheres of
power. (Gibbons v. Ogden)
o A formal view of the Commerce Clause: Congress has power only to regulate
commerce narrowly defined, and not the effects of local activity on interstate
commerce (U.S. v. E.C. Knight Co., bad law).
o Effects test: Congress has the authority to regulate intrastate matters that have
such a “close and substantial relation to interstate traffic that the control is
essential or appropriate to the security of that traffic, to the efficiency of
interstate service, and to the maintenance of conditions under which interstate
commerce may be conducted upon fair terms and without molestation or
hindrance” (Shreveport Rate Case)
o Social Regulation & The Commerce Clause: The Court originally made
distinction between allowing Congress power to regulate interstate shipment of
goods when its motive was to enforce its own social and moral view (Champion
v. Ames) and that Congress cannot regulate even interstate commerce if the
effect of that regulation is to control intrastate activity (Hamer v. Dagenhart, bad
law overturned by Darby).
o Direct & Indirect Effects: Congress has power to regulate only an intrastate
activity’s direct effects on interstate commerce. (Carter v. Carter Coal Co., limited
by Darby)
2.
Later History (The New Deal & Beyond: An Expansive View)
o Substantial impact: “Although activities may be intrastate in character when
separately considered, if they have such a close and substantial relation to
interstate commerce that their control is essential or appropriate to protect that
commerce from burdens and obstructions, Congress cannot be denied the power
to [regulate them]” (NLRB v. Jones & Laughlin Steel Corp.)
o Overturning Hamer & limiting Carter Coal: Congress may regulate not only
interstate commerce itself, but also “those activities intrastate which so affect
interstate commerce or the exercise of the power of Congress over it as to make
regulation of them appropriate means to a legitimate end.” (U.S. v. Darby)
o The Aggregation Principle: The effect of activity which wouldn’t have any
discernable impact on its own should be “taken together with that of many
others similarly situated” to see if it has a substantial impact on interstate
commerce and is thus under Congress’ authority to regulate. (Wickard v. Filburn)
o The Rational Basis Test: Does Congress have a rational basis for concluding
that the regulated conduct, whether viewed alone or in the aggregate, has a
3.
substantial effect on interstate commerce? Note: Courts tend to defer to
congressional judgment (see, Wickard v. Filburn)
o Social Regulation & The Commerce Clause: Racial discrimination in the
aggregate (whether a small restaurant or a motel housing interstate travelers)
has a significant impact on interstate commerce and therefore Congress has a
rational basis for regulating it. (Heart of Atlanta Motel & Katzenbach)
The Modern Test
o Channels of Interstate Commerce: Local activities (intrastate commerce) can
be regulated if they are part of the “stream” of interstate commerce. (U.S. v.
Lopez, citing Darby; Heart of Atlanta Motel)
o Instrumentalities of Commerce (or persons or things in interstate
commerce): Congress’ power to regulate and protect interstate commerce
extends even to local activities that threaten the instrumentalities of interstate
commerce. (U.S. v. Lopez citing Shreveport Rate Case)
(NOTE: If the regulated activity falls in the channels of interstate commerce or is
an instrumentality of commerce, then it doesn’t NEED to have a substantial effect
to fall under Congressional control, but it can still be discussed for analysis)
o The Affectation Doctrine: Under the N&P clause, Congress can regulate
intrastate activities if it can rationally conclude that such activity has a
substantial effect on interstate commerce.
 Four factors to determine whether an activity substantially affects
interstate commerce:
 Economic Acitivity: Congress has authority to regulate local
activity on the theory that, in the aggregate, it substantially affects
interstate commerce only if the activity is “economic” in nature.
(U.S. v. Lopez, limits Wickard’s aggregate principle to only apply
when the activity is economic see also, U.S. v. Morrison)
o EXCEPTION: “Congress can regulate purely intrastate
activity that is not itself ‘commercial,’ in that it is not
produced for sale, if it concludes that failure to regulate
that class of activity would undercut the regulation of the
interstate market in that commodity.” (Gonzalez v. Raich)
 Jurisdictional Element: Whether the object sought to be
regulated had moved in interstate commerce, ensures through
case by case inquiry that the activity in question affects interstate
commerce  Does the statute contain explicit language tying the
regulated activity to interstate commerce (U.S. v. Lopez)
 Congressional findings of an Economic Link: While Congress is
not required to make formal findings as to the substantial burdens
that an activity has on interstate commerce, to the extent that it
does must show a substantial effect. (U.S. v. Lopez)
 How attenuated is the link between the regulated activity and
interstate commerce? The Constitution creates Congress as a
body with enumerated powers, the Court cannot allow for
regulation of such attenuated activity as to give Congress limitless
power. (U.S. v. Lopez, see also U.S. v. Morrison)
o As-Applied v. Facial Challenges: An “as-applied” challenge is an argument that
the law was unconstitutional as it applied to the specific conduct (see, Gonzalez v.
Raich). An “on its face” challenge argues that the statute was unconstitutional in
its entirety (see, U.S. v. Lopez). Generally, it is easier to win on an as-applied
challenge than a facial challenge, but considering the decisions above it may be
C.
D.
E.
easier in Commerce Clause cases to prevail on a facial issue—at least if Congress
has not created a comprehensive regulatory scheme.
4.
The Modern Test, Part II
o Creating Commerce: Congress only has the power to regulate existing
commerce under the Commerce Clause, but not to create commerce to regulate.
If Congress could create commerce, there power would be unlimited in
compelling individuals and thus cannot exist with dual sovereignty. (National
Federation of Independent Business v. Sebelius- OBAMACARE case)
The Tenth 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.”
 “[D]istinguishing encouragement from Coercion”: Congress cannot constitutionally
command states to regulate or to enforce a federal regulatory program, since this would
undermine political accountability and dual sovereignty. In such cases, there is no
judicial balancing of national and state interests. But Congress can require states to
regulate or face preemption by a federal program. (New York v. U.S.)
 Commandeering State Officials: The historical understanding of the Constitution
(from the early Congresses) “suggests an assumed absence” of the power to force state
officials to execute Federal law (distinguished from judges). The structure of the
Constitution’s “dual sovereignty” upon which Federalism is built does not allow the
states to be treated as subdivisions of the federal government that can be regulated by
Congress. Precedent in New York v. U.S. supports this argument. (Printz v. U.S.)
The Taxing Power
 “The Congress shall have power to lay and collect tax, duties, imposts and excises to pay
debts and provide for the common defense and promote the general welfare.”
 The Scope of the Taxing Power: Congress has the fiscal power to create taxes as a
revenue-raising measure with an incidental motive to regulate. However, this is not a
regulatory power and “penalties” may not be imposed in the guise of taxes. (See, Child
Labor Tax Case)
o Doctrine of Objective Constitutionality: Courts today tend to accept any tax as
a fiscal measure if, on its face, it is a revenue producing measure. (U.S. v. Kahriger
effectively overruling the “penalties found in Child Labor)
o Functionality Test: A penalty is a punishment for unlawful behavior. Thus, if
the statute at hand does not suggest an act is either lawful or unlawful, it
functionally acts as a tax. (National Federation of Independent Business v.
Sebelius- OBAMACARE case)
The Spending Power
 “The Congress shall have power to lay and collect tax, duties, imposts and excises to pay
debts and provide for the common defense and promote the general welfare.”
 The General Welfare Clause: Congress is permitted to spend for the general welfare
even if Congress could not achieve its desired objective pursuant to its other
enumerated powers. Thus, Congress’ power to spend is an independent fiscal power
not limited to the regulatory powers of Art. I, §8. (Hamiltonian View; see U.S. v. Butler)
o Adam’s View (Broad): The General Welfare Clause grants authority that is
separate from the preceding provision that confers the power to tax—in effect,
to read, “Congress shall have the Power To… provide for the common Defence
and general Welfare of the United States.” This would allow Congress to pass
virtually any regulation, making limits on Congress’ other powers would be
irrelevant thus destroying dual sovereignty and functional aspects of our
Constitution. (see, U.S. v. Butler, not correct interpretation)
F.
o Madison’s View (Narrow): The General Welfare Clause could be read as a
shorthand reference to the enumerated powers that follow in Article I, §8,
meaning that Congress would have power to tax or spend only when it is acting
legitimately pursuant to one of its other enumerated powers. (see, U.S. v. Butler)
 The Limits on the Spending Power:
o (1) Congress must act in pursuit of the general welfare (2) Any conditions on the
states’ receipt of federal funds must be imposed unambiguously; (3) The
conditions imposed on the receipt of funds must be germane to the purposes for
which Congress approved the grant; (4) The condition cannot require action that
would violate some other constitutional provision; (5) Congress cannot offer the
states financial inducements that amount to coercion. (South Dakota v. Dole; see
also, National Federation of Independent Business v. Sebelius- OBAMACARE case
RE: COERCION, 20% is too much)
 Congress may impose any reasonable conditions for participation in
federal spending programs even if this induces states to conform to
federal standards. The courts defer to Congress’ judgment of
reasonableness.
 The Tenth Amendment is not likely to be a barrier to congressional
spending so long as the states remain free to reject the federal grant and
its conditions.
The Dormant Commerce Clause
 The Dormant Commerce Clause, as interpreted by the courts, limits state power to
enact regulations affecting interstate commerce. States may not discriminate against
interstate commerce absent substantial justification. Nor may states place
unreasonable burdens on interstate commerce.
1.
Facial Discrimination: A state law that purposefully discriminates against interstate
commerce, e.g., by restricting imports thus protecting local producers from external competition
or limiting exports thus preserving goods for local consumers is virtually per se invalid.
o In order to overcome the strict scrutiny placed on facially discriminatory
statutes that presumes unconstitutionality it must (1) narrowly serve a
compelling state interest [typically dangerous or unwanted items: quarantine
laws, baitfish, diseased cattle]; (2) AND it cannot be overcome by
nondiscriminatory means. (Dean Milk Co.; Hughes v. Oklahoma; City of
Philadelphia v. New Jersey)
2.
Intent and Effect
o Facially Neutral BUT Discriminatory Intent or Effect: A state law (under
strict scrutiny) that does not directly treat out-of-state interests differently from
in-state interests has the potential to create effects on commerce outside the
borders of the state imposing the regulation is invalid. (Kassel v. Consolidated
Freightways)
3.
Undue Burdens—balancing:
o In determining if a nondiscriminatory state regulation of interstate commerce is
valid, the courts balance the local interests in maintaining the law which cannot
be solely economic in nature against the burden on interstate commerce.
(Southern Pacific v. Arizona)
 Jurisprudence concerns: Some members of the Court reject the Intent &
Balancing extensions of the dormant commerce clause because of
institutional competence concerns arguing that these extensions “compel
[the court] to function more as legislators than as judges” in making
“policy-laden decisions” (Thomas’ dissent w/ Scalia and Chief Justice
Rehnquist Camps Newfound/Owatonna, Inc. v. Town of Harrison).
4.
III.
Exceptions
o Market Participation Doctrine: When the state acts, not as a regulator, but as a
private business, buying or selling goods or services in the market place, the
Dormant Commerce Clause doctrine doesn’t apply. Even state discrimination in
favor of its own citizens is permissible.
o Dangers of the Market-Participant Exception: “Unless the ‘market’ is
relatively narrowly defined, the [market-participant exception] has the potential
of swallowing up the rule that States may not impose substantial burdens on
interstate commerce even if they act with the permissible state purpose of
fostering local industry.” (South-Central Timber v. Alaska, plurality)
o Congressional Consent: Congress may authorize states to enact laws that
would otherwise violate the Dormant Commerce Clause because the Dormant
Commerce Clause is a quasi-constitutional doctrine—it is there to preserve an
area for the federal government, thus the federal government (Congress) can
limit it.
Separation of Powers
A.
B.
C.
Executive Power over Domestic Affairs
 The President has no inherent power to act, but instead is limited to those powers
granted in the Constitution and by statute. (Youngstown v. Sawyer; Black’s Majority-Textual Analysis)
o See also, Frankfurter Concurrence—Historical Analysis; Jackson Concurrence—
Functionalist Analysis; Vinson Dissent
Executive Power over Foreign Affairs
 Treaties: The President “shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur.” Art. II,
§2.
 Executive Agreements: An executive agreement is an agreement negotiated with a
foreign nation by the President without subsequent ratification by the Senate. (Dames &
Moore v. Reagan)
Executive Power in the War on Terror
 The War Power: The Constitution divides responsibility between the President and
Congress over matters related to war. The President’s Art. II power gives him authority
in making war, but Congress alone has the Art. I power to “declare War”, “make Rules
concerning Captures on Land and Water”, to “raise and support Armies”, “provide and
maintain a Navy”, and “make Rules for the *** Regulation of the land and naval Forces.”
 Habeus Corpus: Art. I, §9, cl. 2 Congress may remove the right to habeus corpus
when necessary to protect public safety in times of invasion or rebellion. Given the
background of Ex Parte Milligan (finding a US citizen tried by a military commission for
violating domestic laws [Civil War plot] was not given proper due process), Ex Parte
Quirin (finding Nazi saboteurs’ due process rights were not violated by a military
tribunal trying them for violating the laws of war), and the Non-Detention Act (“No
citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act
of Congress”) the President’s authority to detain enemy combatants (absent a
suspension of the writ of habeas corpus) are…
o Under the Authorization to Use Military Force (AUMF), the President does not
have the power to order the military to detain a U.S. citizen captured on a
battlefield abroad and alleged to be an enemy combatant without trial or
access to lawyers, and the ability to challenge their enemy combatant status
before an impartial authority. (See, Hamdi v. Rumsfeld, plurality opinion)
D.
E.
F.
G.
o The President likely does not have the power under AUMF to detain a U.S.
citizen arrested in the United States without charges or access to a lawyer.
(See, Rumsfeld v. Padilla where a 5 justice majority failed to decide the issue on
procedural grounds but a 4 justice dissent found no authority, with Scalia’s
opinion in Hamdi suggest as 5 justice majority would the question have been
decided)
o As a response to the decision in Hamden v. Rumsfeld, Congress enacted the
Military Commissions Act of 2006 and amended the Uniform Code of Military
Justice in order to authorize the President to use military tribunals to try NONcitizen enemy combatants for war crimes.
o Persons detained at Guantanamo Bay because it is under de facto control of
the U.S. military enjoy the privilege of habeas corpus to test their status as
enemy combatants. (Boumediene v. Bush).
Delegation of Legislative Power
 The “non-delegation” Doctrine: Congress impermissibly delegates its legislative
power (not the power to make laws, but the authority for administrative agencies to
make policies and rules to implement statutes) only when it fails to provide an
“intelligible principle” to guide the agency’s or the executive official’s exercise of
discretion. The courts defer to Congress in determining reasonableness. (See, Whitman
v. American Trucking Associations).
The Legislative Veto
 Unconstitutional provisions: Retention of power by Congress to review and veto
executive exercise of delegated power is legislative action, which violates the
Presentment and Bicameralism provisions of Art. 1, §7. (Immigration and
Naturalization Service v. Chadha)
The Line Item Veto
 The Veto Power: A presidential refusal to sign an act into law can be overridden by a 2/3
vote of both houses. But, the Line Item Veto Act violates the Presentment Clause of Art. I,
§7. Instead of the law-making procedure outlined in Art. 1, §7, the Act allows the President
to cancel or repeal particular spending provisions thus changing the signed law. This is
inconsistent with the constitutionally prescribed Veto Power. (Clinton v. New York).
Congressional Power over Executive Officials
 The Appointment Power: Art. 2, § 2, cl. 2 (“All Superior Offices must be appointed by
the President with the advice and consent of the Senate”), vests the power to appoint
federal officials, subject to the Senate’s advice and consent, in the President.
o Congress may vest appointment of inferior officers in the President, courts of
law, or heads of departments, but not in the Congress itself.
o Congress may not vest the appointment power in persons other than those
specified in Art. 2, §2, cl. 2.
o Whether an official is a principal or an inferior officer depends on a functional
analysis of her independence, power, jurisdiction and tenure. (Morrison v. Olson).
 The Removal Power: The President generally has the power to remove purely
executive officials even without just cause (Myers v. U.S.), BUT Congress may limit (but
not prohibit) the removal power if it is an office where independence from the
President (or politics) is desirable (Humphrey’s Executor v. U.S.). The President only has
the power to remove quasi-judicial or quasi-legislative officials subject to the to the
standards established by Congress—good cause. (Humphrey’s Executor).
o Congress may not give itself the executive removal power (outside the
impeachment process). (Bowsher v. Synar)
o Congress may not structure removal so there is a “double layer” of insulation
from presidential removal (Free Enterprise Fund).
o Consider whether Congress’ removal restrictions impede the President’s ability
to perform his constitutional duty.(Morrison v. Olson).
IV.
H.
Executive Privilege
 The Court has recognized the existence of an executive privilege for internal
confidential communication with executive advisors based on the separation of powers
principle and Art. II. BUT this privilege is qualified and subject to a balancing test. (U.S.
v. Nixon)
I.
Executive Immunity
 President has absolute immunity from civil liability resulting from actions within
Presidential duty (Nixon v. Fitzgerald). BUT the President has no immunity for criminal
or civil actions committed outside of his Presidential duties although such actions can
be stayed while the President is in office if there is need that meets a balancing test
“does not have a right to delay lawsuits for private acts even while still serving as
President” (Clinton v. Jones).
Conclusion
A.
Bush v. Gore
 Federalism: Case was primarily an issue of state law – state law governs election
procedures—BUT there is an overarching federal interest in the Presidential election.
Thus, the issues presented before the court were whether the recounts were
constitutional under the Equal Protection Clause and if they were unconstitutional what
is the remedy?
 Separation of Powers: Here, the Court needed to step in to create finality on the issue
and avoid a Constitutional Crisis despite federal law and the Constitution indicating the
legislature should have stepped in instead (functionalist argument). But, what
implications are the results of this action by the Court? There’s a strong argument that
this was a political question and the court’s decision to act places judicial supremacy
above democracy (formalist argument).
 Judicial Legitimacy & Neutrality: The political nature of this decision has led to
accusations of partisanship and conflict of interest by the Conservative justices
particularly Justices Rehnquist and O’Connor who had expressed interest in retiring
under a Republican administration. The Court itself limited this case so as not to allow
it to serve as precedent in any voting rights case.