CONSTITUTIONAL LAW I OUTLINE 1
I.
THE WHAT, HOW, AND WHO OF CONSTITUTIONAL LAW
a. The Text of the Constitution; Bobbitt, The Written Constitution
i. Bobbitt:
1. 18th century: overwhelming majority in England believe sovereign is inseparable from
King and Queen
2. Written US CON reflect separation of sovereignty and State; written to limit discretion
and to have a record of the laws
ii. CON law seems to have a body of common law
iii. What is not always a straightforward Q to A; but CON Qs always have As
1. Example: Is the air force constitutional?
a. Yes?
i. Congress has power to "provide for the general welfare and the
common defense"
1. But the gov't could justify all actions if this is the standard
ii. Congress can raise and support an army, Art I, § 8, cl 12, and a navy, cl
13, AF is like the navy—both exist to keep enemies away from US
b. No?
i. CON does not explicitly say you can create an AF
ii. AF is separate from army and navy—cannot infer that CON grants its
existence (textual canon  doc lists A & B, but not C  doc means to
exclude C)
1. Rebuttal: framers listed other forms of defense; they could not
have conceived of airplanes at time of writing
c. Which argument is right?
i. Not CON—can always amend to include AF (Art V)
ii. CON—gov’t needs to protect the country
iii. Resolve legal dispute by saying it is impractical to conclude that it is not
CON
iv. Who presides over the Senate meetings when the VP is being impeached (VP is normally Pres. of
Senate)?
1. VP cannot preside over own impeachment hearing
a. If a federal judge were being impeached, VP would preside If he cannot, Pres.
pro tempore presides
2. Can Pres. pro temp of the Senate preside over VP’s hearing? No—conflict of interest
Pres. pro temp becomes Pres. of Senate if VP is impeached
3. What if Pres. is being impeached?
a. VP can't preside—conflict of interest If Pres. is impeached, the VP becomes
Pres.
b. Text of CON says Chief J presides Can he preside over VP’s hearing as well?
i. Probably the best option b/c CON does not explicitly State who should
v. What about double jeopardy?
1. Example: Powell is tried for federal crime of manufacturing widgets in DC, which carries
a penalty of potential imprisonment 400 years He is tried and acquitted Then he is tried
again and the Grand Jury indicts him Can this be done?
CONSTITUTIONAL LAW I OUTLINE 2
a. No? Cannot be tried twice for the same crime!
b. Yes? Double jeopardy clause only refers to capital crimes Life imprisonment
w/o parole is not a capital crime
b. The Two Qs of Constitutional Law; McCulloch v Maryland
i. Q1: authority?
1. CON Law only applies to fed gov’t; should only asks these Qs if there is a federal actor
(Powell telling us to, “Shut Up,” does not violate our 1st Amend rights b/c he is not a
federal actor)
2. No—can’t do it legally
3. Yes—ask Q2: prohibited?
a. Yes—can’t do it legally
b. No—gov’t can proceed
ii. Authority and prohibition are not the same even if they seem to be; grants of power are
trumped by prohibitions on that power
1. Example: Congress prohibits Bibles being sold through IC
a. Q1: authority? Yes—Congress can regulate IC regulation includes prohibition
b. Q2: Prohibited? Yes—1st Amend.
i. Unamended CON didn’t prohibit this act always follow later provisions
(i.e. Amends.)
iii. X Amend: powers not delegated to Fed gov't exclusively are delegated to the States
1. One view: Congress has been authorized limited powers
2. Other view: X Amend reflects a prohibition
iv. McCulloch v. Maryland (1819) (Q1: authority part)
1. First part of opinion is Chief J Marshall's observations about the 1st Nat Bank Act of
1791
a. Jefferson had advised the Pres. that the Nat’l Bank Act was unconstitutional
b. Madison also opposed the Bank Act in 1791, but signs and enacts the 2d Bank
Act in 1816
2. Luther Martin (AG of MD) does not think Nat’l Bank Act is CON
3. What is the CON?
a. Martin: compact b/w the States created by the States
b. Marshall: not a compact, but was created by the ppl. as a way to exercise their
political powers
i. What is the objection to Marshall's opinion?
1. CON was made by the State conventions
2. CON can be amended and ratified by instrumentalities/reps
from each State
ii. What is Marshall's response to this objection?
1. "We the ppl..…"
2. Ppl. created nation; Nation created States
c. Who is right? (they are disagreeing on normative matters)
i. Argument is who are “the ppl..?”
1. Is it the ppl. of America? (Marshall)
2. OR is it the ppl. of the State of ____? (Martin)
CONSTITUTIONAL LAW I OUTLINE 3
ii. Marshall has won this argument—particularly since Civil War
4. Marshall: what the CON ought to be, not what it actually was when created
5. Marshall's affirmative argument
a. Q1: authority—first part of opinion
i. Nothing in CON about a Nat’l Bank or the gov't chartering corporations
ii. Martin: no text in the CON stating this  no enumerated power
iii. Marshall: not dispositive; X Amend says the powers not delegated, not
the powers not expressly delegated
1. Don’t expect a CON to list everything the gov't can do
2. It is an outline of powers; the details are to be hammered out
through fair reading and interpretation
iv. Art I § 9: list of what Congress may not do If it is not listed here, the
Framers thought it might be possible for Congress to do
v. Enumerated powers = vast powers
1. "Bank" and "Incorporation" not in enumerated powers
2. Marshall: not in interest of ppl. to deny Congress means to fulfill
powers
3. Martin: CON's text does have prohibitory words; power to
makes laws that are necessary—Nat’l Bank is not necessary so
CON does not permit its creation
4. Marshall’s Response:
a. Makes no sense to limit Congress's means—must obey
conclusions of CON, but can't restrict Congress to what
is just necessary
i. Art I, § 10: "absolutely necessary"
ii. Art I, § 8: "necessary and proper"
iii. Art I, §§ 8, 10 encompass different meanings;
absolutely is not in § 8 for a reason
iv. Martin: "proper" is another limitation on
necessary
6. Would have been better not to restrict Congress, but the CON does
a. Art I, § 9: restrictions; Art I, § 8: grants of additional power
b. Spectrum of "absolutely necessary" to "conducive towards"
i. Large disparity according to Martin
ii. Q of necessity is a genuine CON issue, which should be discussed in
Congress and /w Pres.
7. What enumerated power is the bank carrying into action?
a. Power to tax and borrow—gov’t needs to put the money somewhere
v. Criticisms of Marshall (Marshallian view v. Jeffersonian view)
1. Jefferson and the Nat’l Bank:
a. If you take McCulloch seriously, isn’t Jefferson right that Congress can do
anything?
i. Can’t you find something is always “conducive” to an enumerated
power?
CONSTITUTIONAL LAW I OUTLINE 4
1. Congress does not have unlimited powers!
2. Madison:
a. McCulloch leaves no room for judicial review, at least wrt Congress’ scope of
authority
3. Marshall’s response to criticisms:
a. To Jefferson: if some ppl.. don’t think Bank Act is sufficiently “necessary,” the
degree of necessity is to be discussed in Congress and the Pres.’s decision to
sign or veto, not S. Ct.
b. To Madison: judiciary not giving up its role in exercising judicial review, the
court will still have a role of making sure Congress remains w/in the bounds of
its Art I powers
i. If Congress exceeds those bounds it is the “painful duty of this tribunal”
to strike it down
4. Jefferson: it won’t do b/c foundation of CON is lacing Congress up w/ enumerated
powers
5. Marshall: missed the point of Congress and Pres. having the duty under the CON to
follow it (oath bound)
6. Jefferson: but they themselves will define what is good and evil and that is in essence
permitting them to choose whatever they want; easy for them to be led astray
7. Jeffersonian approach summarized
a. Is it w/in the common language meaning of the enumerated power?
b. If not, is it necessary to recognize Congress’ power to do this b/c otherwise the
enumerated power itself wouldn’t have any efficacy?
i. If it’s just “conducive” or “appropriate” Congress can’t do it!
1. If you let it happen, nursery rhyme about “The House That Jack
Built” will come true
8. Who is right?
a. Powell: must make a choice b/w the views b/c they are incompatible and one or
the other will be at work
b. There’s always an answer—our history suggests Marshall is “right” b/c we
follow Marshall, but Jefferson’s view persists even to today
vi. McCulloch v. Maryland (Q2: prohibition part)
1. Can Maryland impose this tax?
2. Nothing in Bank Act prohibiting taxing Bank of US
3. Said in Q1: authority part that Bank Act was CON so question is now supreme v. less
supreme
a. Supremacy Clause (Art VI, § 1, cl 2) says federal law preempts “repugnant”
State laws
b. Power to tax = power to destroy  MD tax law is repugnant
c. If allow MD to tax a little they could tax a LOT
i. Martin: that’s always true of taxes though
ii. Marshall: political check on taxing power nonexistent here
1. Ppl of US can’t throw out MD legislature
CONSTITUTIONAL LAW I OUTLINE 5
vii. Final Notes
1. How modern lawyer would argue case: MD tax designed to tax only one bank!
2. McCulloch expresses flexible and affirmative attitude toward Congress’ powers
a. Decision rests on Marshall’s nationalism and optimistic view of politics
i. Jefferson perennial pessimist when it comes to politics
3. Holmes’ “power to tax is not power to destroy”: legal questions are questions of degree!
a. Argument missing from Bank Act debate
b. Judicial review shouldn’t be written off so quickly
c. Judges and lawyers can draw lines
i. Letting a State tax the Nat’l Bank a little does not mean it can tax it any
amount it wants
c. In Lieu of Marbury
i. Question of judicial review was settled far before Marbury v Madison
1. Issue in Marbury is really one of judicial supremacy
2. Judicial review of executive power took place in England long before
ii. Marbury important b/c modern lawyer think about judicial review in its terms
1. Two perspectives:
a. “Aw shucks, I’m just doing my job” explanation
i. Judge must answer substantive Qs
ii. Can’t throw out case b/c no law to apply
1. Sometimes too much law and supremacy must be established
iii. Just b/c judge thinks law is unCON doesn’t mean Congress or Pres must
b. Official duty of judicial branch to say what the law is (Marbury view)
i. Some Qs are particularly to be decided by the courts
ii. Once S. Ct. has spoken, that’s what the CON means and everyone must
follow
d. What Constrains Judges?
i. Legal realists know that law isn’t determined by argument but by hundreds of factors
1. Law looks different to every person
a. Marshall: “America is my country (not VA) and Congress is my gov’t”
i. Looked at CON out of revolutionary war experience
b. Jefferson: different influences
2. Marshall realized legal realism in 1805
ii. Always Q1 authority issue
1. Judicial power doesn’t extend to answering private Qs
2. Art III, § 2, cl 1: power extends to all cases and controversies arising under CON
a. This only extends to cases w/ a federal interest
iii. Muskrat v. US (1911) (Cherokee Lands Case)
1. Congress enacted law that increased number of persons w/ claims to Cherokee lands
2. Later law allowed persons w/ original interests to sue and challenge validity of “any acts
of Congress passed since [the] act of [1902]
3. US has no dog in the fight  no actual controversy under Art. III
a. May be conflict b/w groups having claims under different acts, but US is not an
adverse party to any of them
CONSTITUTIONAL LAW I OUTLINE 6
i. US has no “vested interest”
4. US is requesting an advisory opinion
5. Court lays out some principles about what it will/will not hear:
a. No advisory opinions
b. There must be adverse parties (actual controversy)
c. P must have standing
i. Legal interest
ii. Ruling will make difference  resolves case
d. Case must be ripe
i. Not too early, and not yet moot
ii. Possible exception: capable of repetition & avoiding review
1. Roe v Wade
e. Dispute must be about legally cognizable issue
i. As opposed to a political, or non-legal dispute
ii. Example:
1. Was it good to elect Clinton Sec of State? Not legal Q
2. Was it lawful to elect Clinton Sec of State? Legal Q
e. Executive Authority to Decline to Execute UnCON Statutes
i. AAG Dellinger’s thesis: there are circum in which Pres may appropriately decline to enforce
statute he views as unCON
ii. Arguments against:
1. Congress passing law must have decided that law was CON (defer to Congress)
2. CON says it is the Pres.'s duty to enforce the law (“Take Care Clause” Art II, § 3)
3. Congress created by sovereign (ppl.) and Congress's act is therefore done by sovereign
a. But the Pres. is equally derived from the ppl.
4. Pres. can veto Congress's laws
a. But Congress can overrule the veto (superior interpretative power?)
5. Pres. is given the power to do X (faithfully execute laws of US)  implicitly denies power
to do Y (not enforce the laws)
6. Don’t favor authoritarian decisions (just Pres. thinks unCON)
a. Ethical arguments are a perfectly valid form of argument
7. “Special role” of courts to strike down unCON laws (Marbury)
a. But issues that can’t reach court OR reaching court relies on Pres. acting in a
certain way
iii. Dellinger position
1. How can Pres. “faithfully execute” laws that he believes unCON w/o violating his oath?
a. CON takes precedent over other forms of law
2. Has S. Ct. implicitly vindicated Dellinger’s view?
a. Myers v. U.S. (1926)
i. Pres. Wilson didn’t follow statute preventing him from removing
postmasters w/out Senate approval
ii. No S. Ct. precedent on point at time
iii. S. Ct. struck down statute as unCON, but didn’t comment on actions of
Wilson in not enforcing
CONSTITUTIONAL LAW I OUTLINE 7
f.
3. Dellinger sees Pres and lawyers going through CON analysis:
a. Will S. Ct. uphold act? (underlying “special role” of judicial interpretation)
b. If not, Pres has choice:
i. How severe intrusion on liberty will be if act enforced?
ii. How severe intrusion on Pres powers will be if act enforced?
iii. What best way to get act before court?
iv. Other concerns
1. Practical significance to allowing executive branch to Q CON’ality
a. Some things can’t be decided by courts, i.e., political Qs
2. Gov’t system presumes that there will be disagreements
a. Checks and balances/separation of powers
3. S. CT. interpretation is supreme law of land but why is Pres bound by this?
a. Madison’s view in 1809: S. Ct. issues order, duty of executive branch to enforce
it; improper to Q court’s orders
i. Notable exception: Lincoln during Civil War
4. AG—It is unCON to do X, but rest of act is really important so tells Pres to sign and
refuse to enforce X
a. Powell: Pres duty bound not to sign unCON bill into law (minority)
5. Most powerful argument against Dellinger: Pres has veto power, line item veto can’t be
overridden
6. Conclusion: settled by history and practice; Pres can’t disregard judiciary
a. Some instances of apparent deviation (e.g. Jackson)
b. Official position of executive: can disregard Congress in some circumstances,
but not the court
Q of Judicial Supremacy
i. Thinking about issue
1. S. Ct. says CON means X, X is supreme law of land
2. Supreme law is CON, not S. Ct.’s interpretation
a. S. Ct. overrules itself from time to time
ii. Must a governor of State obey a S. Ct. interpretation?
1. Can go on own CON interpretation, but must obey judicial interpretation
iii. McCulloch: State decisions contrary to federal law can’t be allowed to stand
iv. Cooper v. Aaron (1958)
1. Governor of Arkansas resisting desegregation plan for schools set in Brown
a. Brown: 14th Amend. forbids States to use their gov’t powers to bar children on
racial grounds from attending schools w/ State participation
2. Case is really about federal v State authority (Supremacy Clause)
a. Opinion should’ve been written this way
b. Chief J Black wrote opinion about judicial supremacy instead
3. Holding: (per curiam); federal judiciary not agent of State sovereigns, but of the ppl.. b/c
CON comes directly from ppl..  ppl.. gave authority to federal judiciary
a. Settled in McCulloch
b. If CON was compact of sovereign States, AK might have been able to overrule
4. S. Ct. seems to fuse CON w/ its interpretation as the supreme law
CONSTITUTIONAL LAW I OUTLINE 8
a. Powell: today S. Ct. more inclined to fuse their own political opinions w/ the
CON
v. After Miranda, Congress passed a statute saying a confession that is voluntary is still admissible
regardless of Miranda rights being read or not
1. Executive branch refused to enforce
2. S. Ct. in Dickerson said Congress can’t overrule its opinion by statute
a. Isn’t that Miranda warnings are required by CON; Miranda needed to give effect
to CON
b. S. Ct. rulings binding as CON law as the CON itself
vi. Current practical State of affairs
1. Judiciary follows own view of CON
a. S. Ct. implementer of law of CON; practically supreme law of land
i. Lawyer first looks to S. Ct. precedent
2. Executive branches will obey and enforce judiciary decisions  not a choice
3. Space left after S. Ct. decisions for legislatures to advance own interpretation, but when
S. Ct. notices someone is circumventing their decisions tend to make it known
g. Political Q Doctrine
i. Some Qs judiciary can’t answer b/c not proper form
ii. Justiciability = amenable to judicial decision
1. Political Qs are not
iii. Comes in form courts can’t answer b/c should be answered by political person
1. Still question of law!
a. Question of law for Congress and Pres
b. Marshall’s optimism in McCulloch
i. Degree of necessity to be determined by Congress and Pres
iv. Baker v. Carr (1962) (Apportionment Case)
1. TN voters argue that district lines should be changed b/c population growth means ppl..
in rural areas have more political power
2. Holding: Brennan: justiciable Q b/c issue is state action v. CON (vertical axis)
a. Political Q is function of separation of powers (horizontal axis)
i. Brennan: no separation of powers issue here
1. Rest of opinion may be dicta
b. Guarantee Clause (Art IV, § 4) claims aren’t justiciable
i. No judicially manageable standard
c. Equal Protection clause (14th Amend.) claims are justiciable
i. Precedents
d. Political Q test (Powell boiled factors down):
i. CON tells you somebody else’s job
1. “Textually demonstrable commitment to coordinate political
branch”
ii. Law Q tied up w/ non-law (political) things
iii. Can’t leave Q up in the air (once have answer must stick /w it)
1. Can’t afford any other answer
CONSTITUTIONAL LAW I OUTLINE 9
2. Example: Pres appealing impeachment, executive power must
always be vested in someone (nuclear codes)
a. Practical reasons
3. Brennan constructing political Q doctrine as rationale for certain types of cases
a. Powell: doctrines made up, construct something as way to think about things in
CON
i. Way to keep judiciary in proper role as judges, instead of as legislators
1. Judges decide when it is not for them to answer
2. Police themselves (a lot of debate over what fills the void)
4. Frankfurter dissent:
a. Majority just letting them hide guarantee clause claim w/in EP claim
b. Response: as long as claim can be put in judicially manageable form end of
problem
5. Reynolds v. Sims: two years later “one person, one vote” established
v. Nixon v. US (1993) (Corrupt Judge Case)
1. Federal judge facing Senate trial for taking bribes and bringing dishonor to judiciary
2. Issue: Senate Impeachment Rule XI  committee can take and receive evidence
a. Judge Nixon claims violates Art I, § 3, cl 6: Senate shall have “sole” power to try
all impeachments
i. Nixon wanted judicial style trial
3. Holding: Rehnquist: political Q, we won’t tell you the answer
a. Use of word sole implies political Q b/c assigned to Congress only
i. Textual commitment to Congress?
4. White concurrence: use of sole doesn’t imply commitment to Congress
a. Framers just concerned w/ House interfering w/ impeachment
b. “Try” is a judicially manageable standard
i. Trials are what we do!
c. However, agrees w/ judgment b/c historical and textual evidence that Senate
only bound to minimal procedures
5. Souter concurrence: follows Frankfurter in Baker, political Q is prudential device
a. If not hot-button issue, okay for us to decide
i. This impeachment not a hot-button issue
b. Different view from Brennan in Baker
i. Rehnquist would defer to flipping of coin by Senate, but Souter
wouldn’t
vi. S. CT. only said something political Q twice since Baker
II.
THE POWERS OF CONGRESS: THE COMMERCE POWER
a. Early Interpretations
i. Keep in mind the debate between Marshall and Jefferson
1. Marshall: ppl.. created US
2. Jefferson: created gov’t through States
3. Legal limits to ppl.. AND Congress
CONSTITUTIONAL LAW I OUTLINE 10
ii. Three Commerce laws, Art. I, § 8, cl. 3, each w/ own interpretation
1. Foreign nations (pretty uncontroversial)
2. Commerce “among the several States” (controversial)
3. Indian tribes (settled: Congress can regulate and deal w/ everything related to Native
American nations)
iii. Gibbons v. Ogden (1824) (Steamboat Case)
1. NY granted monopoly to Ogden over steamship use in its waters
2. Gibbons disobeyed this b/c he has a coasting license from federal gov’t
a. Based on act of Congress
3. Gibbons: federal law trumps State law b/c Supremacy Clause Art VI, § 1, cl 2
a. McCulloch: federal gov’t “limited in its powers, but supreme w/in its sphere”
i. Is regulating steamboat travel in NY w/in its “sphere?”
4. Ogden’s response:
a. Authority: no permission to break State laws
b. Prohibition: is coasting license unCON  no conflict w/ federal law if federal law
is unCON
5. Holding: Marshall; coasting license CON  NY law unCON
a. Commerce is more than buying and selling (common understanding)
i. Communication and traffic
ii. Navigation  one of problems w/ Art. of Confed. was States destroying
the economy of other States
6. Ogden: this is purely w/in NY, not “among the several States”
7. Marshall’s response:
a. Congress’ power to regulate commerce should be viewed broadly
i. Regulating b/w States sometimes means regulating w/in State
b. If affects States generally, Congress can regulate (plenary power)
i. Regulate all things connected w/ commerce (steamboats)
1. Whatever left is reserved to States
c. Congress’ power is limited  enumeration principle
i. “Not power to regulate completely internal”
ii. Jefferson: no obvious limits, everything affects everything else, nothing
left to States!
8. Factors affecting Marshall’s opinion in Gibbons:
a. Hard to predict interconnectedness of 2011 in 1824
b. Assumes ala’ McCulloch that Congress will draw lines
i. Some truth: Madison vetoed bill that was given to him by Congress after
they fiercely debated its CON’ality
1. 8 such debates took place early on
c. Not predisposed to worry about national power b/c of influences
i. Nationalist, revolutionary war experience
iv. After Gibbons Congress begins to assert powers
1. Interstate Commerce Act (1887)
2. Sherman Antitrust Act (1890)
CONSTITUTIONAL LAW I OUTLINE 11
v. U.S. v. E.C. Knight (1895) (Sugar Monopoly Case)
1. 90% of sugar production controlled by one co.
a. Potential to interfere w/ interstate sugar market by effecting trade prices
outside of the State even if monopoly is w/in one State
2. Holding: Fuller; sugar monopoly cannot be broken up b/c manufacturing not commerce
a. Not until shipment/distribution that it effects IC
b. Definitional boundary being drawn:
i. Direct v. indirect (secondary) effects on commerce
1. Manufacturing indirect b/c too many steps b/w production and
interstate sale
c. No intent to restrict trade of sugar  cannot use Sherman Act (monopoly
doesn’t always = intent to restrain trade)
3. Harlan dissent: majority engaged in arid formalism
a. Manufacturing combinations such as this affect IC
4. Majority doesn’t strike down Sherman Act—just type of conduct here (Ks to buy other
sugar companies in State)
5. Majority drawing line to preserve enumeration principle
a. Responding to Gibbons ambiguity
b. Problem: proximate cause is matter of policy
vi. Champion v. Ames (1903) (Lottery Ticket Case)
1. 1895 Act prohibited interstate importation, transportation, and mailing of lottery tickets
a. Congress worried about gambling (morality)
2. Holding: Harlan; Carrying lottery tickets from state to state is IC (Congress can regulate
diseased cattle being transported)
a. Regulation sometimes appropriately a prohibition
i. “Congress alone has power to occupy, by legislation, whole field of
interstate commerce”
b. Marshall in Gibbons: “sole restraints” on Congress are its “wisdom and
discretion” and “influence constituents possess at elections”
c. Doesn’t address motivation of Congress (gambling)
3. Fuller dissent:
a. Issue of morality beyond Congress’ powers—morality is a State issue
i. Encroaching on State police power
b. Marshall in McCulloch: Congress can’t use powers pretextually
4. Court didn’t mention E.C. Knight
a. Cases representative of Court’s early struggles w/ Commerce Clause
5. Both majority and dissent claimed to follow Marshall’s CON views
b. Rise and Fall of Federalism Limitations
i. Shreveport Rate Case (1914) (R.R. Rate Case)
1. R.R.s charging more for trips in TX than to go out of TX
2. Holding: Hughes; Congress can regulate IC if it hinders interstate commerce
a. Charging different rates is discouraging travel b/w TX and LA
3. Reconciling E.C. Knight and Shreveport Rate Case
CONSTITUTIONAL LAW I OUTLINE 12
a. Picking up on E.C. Knight idea Congress can regulate intrastate if direct relation
b/w intrastate transaction and IC
i. Rates here have direct relation b/c distorting commerce b/w TX and LA
ii. Hammer v. Dagenhart (1918) (Child Labor Act Case)
1. Law prohibited interstate transportation of goods made w/ certain forms of child labor
2. Holding: Day; Child Labor Act unCON b/c “two-fold repugnancy”:
a. Q1: no authority b/c Act is controlling the production (child labor) not the
product (furniture) that is in Interstate market
i. Congress trying to use Commerce Clause pretextually (McCulloch)
ii. Production is not commerce  not direct enough (E.C. Knight)
iii. But here, unlike EC Knight, there is actual shipping across State lines
b. Q2: X Amend. prohibition b/c child labor and employment conditions are “local
concerns” that are w/in State police power to address
i. Tries to distinguish Champion:
1. In Champion, immoral thing (lottery tickets) spread out of State
2. Here, immoral thing (child labor) remains in the State
ii. Response: evil spreads one way or another; unfair for one State to use
cheaper labor than other
3. Holmes dissent: no opposition if w/in sphere (McCulloch)
a. Enumerated powers are tools (means), not ends
i. Not for Court to judge Congress on questions of policy or morals
(McCulloch)
b. Doesn’t matter if interfering w/ domestic policy of State
i. Forerunner to Stone in Darby (“X Amend. a truism”)
4. Majority adopting rejected Champion argument
5. Decision is consistent w/ E.C. Knight b/c about regulating intrastate actions
6. Distinction b/w Champion and Hammer works, but in technical way; Holmes’ opinion
more congruent
iii. Carter v Carter Coal (1936)
1. Commission created that was authorized to create code regulating working hours and
wages in coal industry
a. Any company not following would have to pay a tax
2. Holding: Sutherland; quantity doesn’t define directness
a. Still too many steps b/w wages & hours and IC
b. “Relation of employer and employee is a local relation”
3. Cardozo dissent: labor regulations affect price of interstate transactions for coal
4. Reaffirming Hammer majority view
5. Dead by 1937 when Court changes
iv. Nineteen Thirty-Six and What Came After (Powell)
1. Dec 31, 1936: Definitional Limits:
a. Must regulate IC, not just a means (Hammer)
b. Limit to prevent power from becoming plenary
c. Must be directly related, legal/logical relationship, not big effect
CONSTITUTIONAL LAW I OUTLINE 13
2. 1937 was revolution in terms of Congress’ powers  most important date in history of
CON law
3. CON debates of 1930s three central issues:
a. How broad and flexible are Congress’ powers?
b. How rigid CON protections for individual economic rights?
i. K clause of Art. I, § 10 and Due Process clauses of V and XIV Amend.
c. How aggressively should federal courts “say what law is,” particularly wrt CON?
4. Three blocs:
a. Van Devanter, Sutherland, McReynolds, and Butler JJ
i. Read Congress powers narrowly, expansive protection to economic
liberty, not hesitant to enforce views of CON
b. Brandeis, Stone, and Cardozo
i. Deference to Congress, more concern over exercising judicial power
c. Hughes and Roberts
i. Less predictable; Hughes closer to second group in approach to CON
5. First years of Roosevelt presidency, Court’s decisions about New Deal not uniformly
negative
6. By end of first term in 1936 answers to all three issues favored Van Devanter bloc
7. Then came West Coast Hotel v. Parrish and Jones & Laughlin in March/April 1937
a. Court starts to construe Congress’ powers broadly and CON protections of
economic liberty narrowly
8. Court then began to adopt attitude of judicial caution associated w/ Holmes
a. In Erie R.R., Court described own decision as violation of CON (Swift v. Tyson)
9. By 1941, last member of Van Devanter bloc gone
a. Jones & Laughlin essentially overrules Carter Coal
b. Darby expressly overrules Hammer
i. Commerce power = tool
ii. No separate sphere of State autonomy  “X Amend. is a truism”
v. NLRB v. Jones & Laughlin Steel Corp. (1937)
1. 4th largest steel producer discriminated against members of union, violated NLRB
a. Tension b/w union and company threaten to shut down industry
2. Holding: Hughes; strikes affecting steel industry affect IC
a. Uses indirect v. direct talk of E.C. Knight, but says “question is necessarily one
of degree”
i. Here, the steel industry is a large enough manufacturer that regulating
employees’ self-organization and collective bargaining rights affects IC
3. Van Devanter bloc dissent: makes direct/indirect argument of Carter Coal
4. Practical decision, essentially overrules Carter Coal
vi. U.S. v. Darby (1941) (FLSA Lumber Case)
1. FLSA prohibited shipment interstate of goods produced for IC employer violated FLSA
a. GA lumber company is accused of shipping lumber interstate and employed
workman at less than FLSA prescribed minimum
2. Holding: Stone; overrules Hammer: distinction that articles themselves must have
deleterious effects on IC is unsupported by CON
CONSTITUTIONAL LAW I OUTLINE 14
a. Motive or purpose of IC regulation is for Congress to decide (McCulloch)
b. Congress may choose means reasonably adapted to attainment of permitted
end, even if involve controlling intrastate activities (Shreveport Rate Case)
i. Means: labor regulations; end: regulating interstate shipment of goods
ii. Commerce clause is tool  can use instrumentally
c. “X Amend. is a truism”—powers not delegated are reserved
i. More a general statement about structure of Union than words trying to
preserve some things as purely local
3. Holmes: “expressly” was left out of X Amen. on purpose
vii. Wickard v. Filburn (1942) (Wheat Case)
1. Farmer Filburn sought injunction from $117 penalty b/c grew 239 bushels more wheat
than quota established by Agricultural Adjustment Act
2. Holding: Jackson; individual effect is infinitely small, but aggregated effect of all farmers
in his position has substantial effect on IC
a. Even if he doesn’t sell his wheat, it “competes w/ wheat in commerce” b/c
satisfies his needs
b. Darby doesn’t apply b/c there regulation prohibited interstate shipment of
goods intended for IC
i. Here, prohibits production not intended for interstate commerce, just
consumption on his own farm
3. Rational Basis approach: Congress had rational basis for concluding that regulated
conduct, when viewed in aggregate, has substantial effect on IC
a. Not whether Court actually thinks substantial effect (McCulloch)
b. Quota scheme would be useless if Court ruled other way
4. N & P Clause doesn’t strictly mean necessary; there are also prohibitions
a. Answering Q1 (authority) does not mean you have answered Q2 (prohibition)
b. Why is Q2 not discussed here?
i. Leaving out weaker Q2 argument, not ignoring
viii. 1937-1942: scope of Commerce Power remains same
ix. Civil Rights Act of 1964
1. Wanted to get to private acts of discrimination and XIV limited to State, State official,
and gov’t discrimination  use Commerce Clause
2. CON objection to using Commerce Clause?
a. Not directly or substantially related to IC—but this argument is hopeless
i. Commerce power is a tool and can use it to reach purely private
behavior (Darby; Wickard)
b. Pretext  about discrimination, not commerce; doesn’t matter b/c tool!
c. When ppl. gave power in XIV Amend, deliberate decision to give power only for
public, not private discrimination
i. No formalistic line b/w public & private
ii. Worthless to say they are cheating by using Commerce Power
3. Rational Basis for effect on IC?
a. Heart of Atlanta Motel (1964)
i. 75% of guests from outside GA
CONSTITUTIONAL LAW I OUTLINE 15
ii. Holding: Clark; legislative history of CRA—shows that Congress found
private race discrimination placed substantial burdens on IC
b. Katzenbach v. McClung (1964) (“Ollie’s BBQ”)
i. No claim interstate travelers frequented restaurant
ii. Restaurant bought $70K of food moved in IC
iii. Holding: Clark; testimony shows that, in aggregate, discrimination
imposed substantial burden on interstate travel and flow of food
iv. White concurrence: possible remote lunchroom sells to locals and buys
all food locally would be beyond Congress’ reach
1. Wouldn’t still effect spending and interstate travel of blacks?
c. Rehnquist Court Doctrine
i. U.S. v. Lopez (1995) (Brady Bill Case)
1. Gun Free School Zone Act—fed offense to possess a gun w/in 1,000 feet of school
2. Rehnquist: three categories of activity Congress can regulate:
a. Channels of IC: (Darby; Heart of Atlanta)
b. Instrumentalities of IC, persons or things in interstate commerce, even if threat
from intrastate activity: (Shreveport Rate Case)
c. Substantial Effect on IC: (Jones & Laughlin)
3. Holding: Rehnquist; unCON: authority to regulate local activity if substantially affects
IC only if activity “economic” in nature
a. Criminal statute nothing to do w/ commercial transactions
b. Not essential part of larger regulation of economic activity which would be
undercut if intrastate activity not regulated (Wickard)
c. No jurisdictional element ensuring firearm possession in Q affected IC
4. Kennedy concurrence: gov’t would be taking over regulation of entire area of traditional
state concern, criminal law
a. Decision does nothing to change New Deal view that Congress has plenary
authority over nat’l economy
i. O’Connor joins this view
5. Thomas concurrence: 1937 has led court away from proper meaning of CON
a. Substantial effects test is a blank check for Congress, not a test
6. Souter dissent: 1937 was court’s proper recognition of powers
a. Congress had rational basis here, not for us to question Congress (McCulloch)
b. Economic/noneconomic distinction is just the old direct v. indirect argument
c. Lesson of 1937: Court is not competent to administer what legislative branch
does w/ economic matters
7. Rehnquist tries to split difference b/w Thomas and Souter
8. Breyer dissent: rational basis; gun-related violence around schools decreases quality of
education  burden on IC
a. Majority cannot intend distinction to focus on whether gun possession by itself
is “commercial”
i. Transaction in Ollie’s BBQ was not commercial (race-based exclusion)
b. Rehnquist does not want to justify it here for fear it will give Congress unlimited
police power
CONSTITUTIONAL LAW I OUTLINE 16
ii. U.S. v. Morrison (2000) (VAWA)
1. Under VAWA, person who commits crime of gender motivated violence liable to injured
party for compensatory and punitive damages
2. Holding: Rehnquist; applying Lopez: violence against woman not economic/commercial
a. Like Lopez, no jurisdictional element
b. Unlike Lopez there was congressional findings that gender motivated violence
has a substantial effect interstate travel of victims (Heart of Atlanta and “Ollie’s
BBQ”)
c. If Congress can regulate this subset of violence, can regulate violent crime in its
entirety
i. Q2 prohibition: “no better example of police power”
3. Souter dissent: should not use definitional concepts—history shows it doesn’t work
a. Going back to E.C. Knight: indirect/direct definitional limitation
b. Congress has a rational basis for using commerce power—have data showing
the aggregate effects on IC!
4. Breyer dissent:
a. Fine distinctions = random results  difficult to apply economic/noneconomic
distinction
b. Technologically advanced society  hard to develop meaningful subject-matter
categories
5. Rehnquist trying to draw line around Wickard aggregation test
a. Want meaningful role for Court in policing federalism boundaries
iii. Gonzales v. Raich (2005) (CSA Case)
1. As-applied challenge, not unCON on its face like Lopez and Morrison
2. Ps argue unCON to apply CSA to them b/c State law allows their use of marijuana for
medicinal purposes and using intrastate, not effecting IC b/c not even in market
a. Unlike Wickard:
i. He used personally and sold in market
ii. Different magnitude—everyone was farming, here, not everyone needs
marijuana for medical reasons
b. Court will not accept argument that they are not part of “market”
3. Holding: Stevens; two rationales for finding CON to appl.y to Raich
a. If Congress can regulate market for marijuana only issue whether rational basis
for concluding prohibition must be universal
i. Rational b/c leaving out marijuana cultivated for medicinal use at home
affects price and market for marijuana, undercuts ability to regulate
market (“seepage”)
1. No specific congressional finding, but not necessary
ii. Fits under second Lopez category of instrumentalities or things that
move (Shreveport Rate Case)
1. Congress protecting outcome it is seeking
b. Fits under third Lopez category of Wickard aggregation also
i. Unlike Lopez and Morrison, activities regulated by CSA are
“quintessentially economic”  can Wickard aggregate
CONSTITUTIONAL LAW I OUTLINE 17
4.
5.
6.
7.
III.
1. Established and lucrative interstate market
ii. Therefore, all matters if rational basis for thinking personal cultivation in
aggregate has substantial effect on IC
Scalia concurrence: accepts first rationale (instrumentality of commerce)
a. Power to regulate intrastate activity comes from N + P clause
i. Different than Marshall who thought power came from phrase “among”
States?
b. Rational b/c marijuana fungible and can be introduced into market at any time
c. Avoids dispute over whether possession of marijuana for medicinal use
economic or commercial
O’Connor and Thomas dissent: decision is drafting guide; just need to embed otherwise
questionable regulations into larger economic regulatory scheme
a. Also, not subject to Wickard aggregation b/c not economic for two reasons
i. E.C. Knight (never overruled) held production isn’t commerce
ii. If this is economic  everything is and Morrison/Lopez limitation
useless
After case—Congress amends CSA to include a jurisdictional element (gun moved in IC)
Gonzales represents wide scope of what it means to be considered commercial
activity for purposes of Wickard aggregation
OTHER ARTICLE I POWERS
a. Taxing and Spending Powers (Art I § 8, cl. 1)
i. Independent powers: may tax subjects and spend money on activities it could not regulate
directly under any enumerated power (such as commerce power)
ii. Taxing Power
1. Purposes:
a. Raise Revenue
b. Create disincentives for engaging in behavior
2. Can raise $ for general welfare, but can Congress tax anything (tool or limit)?
3. Bailey v. Drexel Furniture (Child Labor Tax Case) (1922)
a. Taxed if you use child labor; tax on its face, CON objection to Congress’ motive
 using tax power for non-revenue raising goal
i. Apply Hammer  powers are tools
b. All taxes have a deterrent effect
i. Differentiate b/w true tax and a penalty:
1. High tax; regulatory scheme; revenue irrelevant  most likely a
penalty
a. At some point, tax should be viewed as a penalty
c. Holding: Taft; Child Labor Tax Act unCON b/c trying to use tax power as a
regulatory scheme
i. Subjective approach: look at language and operative effect to
determine if tax’s dominant intent is in fact revenue raising
1. Tax raises little revenue?
2. Who enforces tax?
a. Labor Department, instead of Treasury
3. How much detailed activity?
CONSTITUTIONAL LAW I OUTLINE 18
a. Specific requirements: greater than 16 in mills and
factories, can’t work more than 8 hours a day or 6 days
a week
4. Whether scienter?
a. Child Labor Tax Law required knowing departure from
requirements
5. Amount?
a. Tax greater than expected for activity
i. 1/10th of entire net income!
d. Before Darby: Congress can directly prohibit child labor
4. United States v. Kahriger (Bookmaker Case) (1953)
a. Tax levied on bookmakers
b. Holding: Reed; tax not invalid just b/c revenue obtained is negligible
i. Objective approach (different from Bailey): despite apparent regulatory
purpose, does tax in fact raise some revenue?
ii. Filing of papers aided in collection of tax
iii. Court assumes that there is no separate power to prohibit gambling
c. Jackson concurrence: Court holds tax valid w/ “heartburn”
i. Dissenters didn’t come up w/ better test, fearful to go against Congress
and strike down tax
1. McCulloch: politics only protection against tax
5. Middle ground between penalty and tax is not well-defined; Kahriger is still “good
law”; Court hasn’t invalidated federal tax after Kahriger
6. Approach to regulatory taxes:
a. (1) Does Congress have power to regulate area affected by tax?
i. Yes—valid exercise of power under N + P clause
ii. No—go to (2)
b. (2) Dominant intent of tax to raise revenue?
i. Yes—valid
ii. No—invalid
1. See Bailey for factors (not in opinion, but come from that
approach)
iii. Spending Power
1. Power to spend for the general welfare of United States
a. Legislating for general welfare (“general welfare power”) left up to States
2. If Congress can directly regulate an activity via its enumerated powers then can always
spend for such regulation via N + P clause
3. Even if can’t directly regulate, Congress rarely doesn’t have power to regulate activities
related to federal spending program
4. United States v Butler (AAA Case) (1936)
a. Under Agricultural Adjustment Act, farmers were to receive checks for reducing
acreage
b. To generate revenue for this spending, processors of the commodities were
taxed
c. Holding: Roberts; Q1: yes, authority under spending power broad, but Q2: No,
b/c X Amend. prohibition (regulating agricultural production left to States)
i. Rejects Madison view that spending power limited to scope of
enumerated powers
ii. Adopts Hamilton’s view of broad independent power
iii. Finds prohibited by X Amend. b/c still holding on to Hammer view that X
Amend. includes list of prohibited actions
CONSTITUTIONAL LAW I OUTLINE 19
1. Pre-Darby: “X Amend. a truism”
iv. Also finds that program is not voluntary, “coercion by economic
pressure”
d. Stone dissent: contradiction to say power to spend for national welfare, but not
allowed to impose conditions on which funds may be used
i. Limitations on spending power:
1. National purpose
2. Can’t coerce action left to States (remember, pre-Darby)
3. Politics (McCulloch)
e. Fundamental idea of Butler that spending power broad is still “good law”
5. South Dakota v. Dole (Drunk Driving Case) (1987)
a. Challenge to 23 USC § 158 directing Secretary of Transportation to w/hold part
of federal highway funds if drinking age is under 21
b. Court assumes, w/out deciding, XXI Amend. reserves for States right to regulate
drinking age
i. But argument that Commerce Power would allow b/c highways
channels of commerce
1. Drunk drivers under 21 burden commerce b/c reduce safety
c. Holding: Rehnquist; act valid in terms of spending power, cites Butler (spending
power broad), comes up w/ number of limitations:
1. Pursuit of general welfare
a. Should defer to Congress (McCulloch)
2. Unambiguous (so States know what their choice is)
3. Condition imposed on receipt of funds germane to purposes
for which Congress approved grant
a. Inexactness not a problem (McCulloch)
4. Can’t induce States to engage in unCON activities
5. Cannot be coercive
ii. Limitations applied to 23 USC § 158:
1. Congress decided drinking age affects general welfare of drivers
2. Clear b/c one condition: lower drinking age
3. Germane b/c lowering drinking age germane w/ purpose of
federal highway funds  promote safe Interstate travel
4. SD raising drinking age doesn’t violate person’s CON rights
5. SD would only lose 5% of highway funds
d. O’Connor dissent: doesn’t feel establishing minimum drinking age sufficiently
related to funds for constructing highways (not germane)
i. Also interprets Butler to mean Congress can’t go beyond specifying how
money should be spent if not relying on delegated power
1. If go beyond then it becomes a regulation  must fall under
delegated power
2. Butler Court saw that AAA was regulation, only problem was
their crabbed view of Commerce Power
b. Necessary and Proper Clause (Art. I, § 8, cl. 18)
i. United States v. Comstock (Civil Commitment Case) (2010)
1. Issue: whether Congress has power to enact 23 USC § 4248
2. § 4248 allows civil commitment of someone in federal prison if: (1) previously engaged
in sexually violent conduct, (2) currently has serious mental illness, and (3) sexually
dangerous to others
a. Indefinite commitment
b. Serious Q2 Due Process concerns, but Court doesn’t address
CONSTITUTIONAL LAW I OUTLINE 20
3. Holding: Breyer; civil commitment is a mean “plainly adapted” to carrying out
enumerated powers that allow Congress to create federal crimes and, therefore, run a
federal prison system
a. McCulloch: necessary doesn’t mean “absolutely necessary”
i. Up for Congress to decide how to run prison system
1. Congress felt N + P to protect public from dangers created by
federal prison system
2. Civil commitment rationally related to running prison system 
end of judicial inquiry
b. N + P clause allows more than single step b/w enumerated power and Act
4. Thomas dissent: exactly pretext situation Court allowed to strike down based on
McCulloch
a. Civil commitment beyond sentence not “plainly adapted” to carrying out
Congress’ power to run prison system
i. Simply comes to opposite conclusion of Breyer
ii. Congress trying to get at State police power
5. How Powell would’ve wrote opinion:
a. Congress may run prisons how it wants to
b. § 4248 consistent w/ Holmes’ view (dissent in Hammer) that Congress can use
enumerated powers as tools to accomplish its goals/aims
i. Can use enumerated powers that give it power to set up prison system
to provide for civil commitment if it so chooses
c. Congress’ goal/aim may be w/in police power (public safety), but along w/
Holmesian view comes Darby idea that X Amend. is a truism
c. Treaty Power (Art II, § 2, cl 2)
i. Pres. empowered to make treaties w/ foreign nations “w/ advice and consent of two-thirds of
Senate”
1. Can consent w/ conditions; if not agreed to  Pres. can’t ratify (United States v. Stuart)
ii. Under Supremacy Clause (Art VI, § 1, cl 2) treaties confirmed by Senate supreme law of the land
1. Any State statute that conflicts is invalid
2. Last in time wins in conflict w/ act of Congress
a. Congress can alter or repeal by subsequent statute
i. Still international obligation of US
iii. May be self-executing or expressly/impliedly require effectuating legislation via N + P clause
1. If not self-executing and Congress hasn’t enacted laws to effectuate, then Pres. can’t
require States to abide (Medellin v. Texas)
iv. Missouri v. Holland (Bird Treaty Case) (1920)
1. Missouri sued to prevent a game warden of the US from enforcing the Migratory Bird
Treaty Act of 1918
2. MO makes X Amend. State autonomy argument: CON prohibits federal interference w/
State management of natural resources (Hammer argument)
a. S. CT. in Greer said CON for State to declare it owns wild animals
3. Holding: Holmes; Act enforceable
a. Act of Congress must be made “in pursuance of CON,”
b. Treaty must be made only “under authority of the United States”  suggests
only limitations Pres. proposal and Senate ratification
i. Independent power: permits federal action over subjects outside the
other enumerated federal powers in CON
1. Powell example: gun regulating along border
ii. X Amend. reserves to States only nondelegated powers, and treaty
power is delegated
CONSTITUTIONAL LAW I OUTLINE 21
c. Treaty valid if subject something properly may be treaty (ordinary intercourse
b/w nations)
i. Protect wildlife that moves b/w US and Britain
d. N + P clause allows legislation to carry valid treaty into effect
4. Majority in Hammer joins Holmes here
a. Their rationale is Hammer concerned domestic federal powers
b. Legislative authority not divided b/w federal and State legislatures
5. Scope comes from 1840 Taney opinion (Holmes v. Jennison): power given in CON in
general terms, w/o description of objects intended to be embraced
a. Also historical, plain meaning, political practice arguments
b. Structural argument: everything mentioned about international affairs given to
federal government
v. Limitation: treaties cannot contravene CON prohibitions that protect individual rights
d. War Power (Art I, § 8, cl 11)
i. Woods v. Cloyd W Miller Co (Rent Control Case) (1948)
1. Federal rent control law after hostilities have ended in WWII
a. Trying to remedy housing deficit caused by demobilization
2. Real property very close to State’s domain
a. SG doesn’t want to challenge on Commerce Clause grounds
3. Holding: Douglas; legislative history showed Congress invoking War Power to cope w/
current condition directly caused by war
a. N + P clause allows Congress to remedy evils created by war
4. Jackson concurrence: still technically in state of war, although war powers can’t be
indefinitely prolonged
5. Other arguments (Powell):
a. Declare war technical 18th century term meant “move nation into total war”
i. Changed from make war to declare war
ii. Powell Emergency Nuke Act hypo:
1. Post-war power probably not so unlimited as to swallow up limits on congressional
power, but absent CON protected personal liberty, Court probably give very limited
judicial review
IV.
FEDERALISM LIMITATIONS ON ARTICLE I POWERS
a. Rise (Again) of the Federalism Limitation
i. Ordinarily State interests are better protected by inherent restraints of State participation built
into structure of federal system (State representation in Congress) than judicial review
ii. National League of Cities v. Usery (FLSA Case) (1976)
1. Court upheld validity of wage and hour provisions of FLSA in Darby
2. In 1974 Congress extended provisions of FLSA to almost all public employees
3. Holding: Rehnquist; doesn’t adopt Hammer view that list of matters w/in States’ police
powers
a. Didn’t say beyond Commerce Power to regulate wages & hours
b. There are “attributes of sovereignty” protected against interference
i. Just as I Amend. protects certain liberties against such interference
c. Congress cannot interfere w/ States’ “integral governmental functions”
i. E.g. State autonomy to make fundamental employment decisions
d. Internal workings of State government, not external governance of public
4. Blackmun concurrence: thinks majority adopted balancing approach
a. Federal interest greater and State facility compliance w/ federal standards
essential?
5. Brennan dissent: repudiating Marshall in McCulloch (defer to Congress)
CONSTITUTIONAL LAW I OUTLINE 22
iii.
iv.
v.
vi.
vii.
viii.
6. Rehnquist sought intellectually consistent way giving meaning to enumeration
principle
Garcia v. San Antonio Metro Transit Authority (1985) (FLSA Case)
1. Another challenge to FLSA by municipal owner of mass-transit system
2. Holding: Blackmun overruled National League
a. Congress can impose FLSA wage and hour rules on states
b. National League was unworkable in practice and unsound in principle
i. Invites judiciary to make decisions about which State policies it favors
c. Principal safeguard of State autonomy is political
i. Variety of ways in which the national political process insures that
interests of States as polities are part of decision making in Congress
d. Judicially-enforced prohibitions should relate to “procedural nature” of CON
protection of State autonomy
3. O’Connor dissent: structural restraints not enough
a. “States’ role in government is matter of CON law, not legislative grace”
b. Province of judiciary “to say what the law is” since Marbury
c. X Amend. adopted specifically to ensure important role of States
i. Seems to be going against Darby view of truism
d. Political safeguards weaker given direct election of Senators, weakening of
political parties on local level, rise of national media
Opinions in National League and Garcia share binary character: either substantive restraint on
commerce power or not
1. Middle road can be found in Blackmun concurrence in National League and O’Connor
dissent in Garcia
a. Degree to which act of Congress interferes w/ internal working of State gov’t
should be factor in balance
i. Consistent w/ Holmesian view, but hard to appl.y consistently
General regulation that affects both State and private conduct doesn’t violate X Amend.
1. Gives broad representation in political process to those similarly affected
Regulating States alone:
1. (1) Congress may not compel States to enact or enforce a federal regulatory program
2. (2) Can’t commandeer States’ legislative process nor require State executive officials
to enforce federal law
3. (3) Can hold out incentives to influence State policy choices (South Dakota v. Dole)
New York v. United States (Radioactive Waste Case) (1992)
1. Congress adopted Low-Level Radioactive Waste Policy Act
2. If State didn’t regulate low level nuclear waste according to federal standards, State
must take title to waste generated w/in and liable for all damage
3. Holding: O’Connor; “Congress cannot compel States to enact or enforce a federal
regulatory program”
a. Can’t commandeer State legislature by forcing it to enact a law to carry out
purposes of federal statute w/in Commerce Power
i. Can give carrots and sticks
ii. Or can directly enact federal standards (such as FLSA) and impose on
anyone in market (private parties or States)
b. Rationales:
i. CON intended clear lines of responsibility
ii. State legislatures should adopt own policy
Printz v. United States (1997)
1. Required CLEO to make reasonable effort to ascertain w/in 5 business days whether
receipt or possession in violation of law
CONSTITUTIONAL LAW I OUTLINE 23
a. Part of comprehensive regulation of gun market
2. Issue: can Congress commandeer state executive officials to enforce a law w/in scope of
Commerce Power
3. Holding: Scalia; No, comes up w/ several rationales:
a. Text (not directly on point): Supremacy Clause provides state judges are
“bound” by federal law, different from power to require state executive officials
to implement federal law
b. Political practice: Federalist No 27 rests on assumption that States have to
consent to allowing officials to assist federal gov’t
i. No 39: States retained “residuary and inviolable sovereignty”
c. Structural concerns: Brady Act contradicts both federalism and separation of
powers
i. Federalism: treats state officers as part of centralized gov’t
ii. Separation of powers: Congress gave part of Art II executive power to
officials whom Pres. cannot control
d. Precedent: New York appl.ies to executive officers
i. Executing law involves policymaking (CLEO has to decide what
“reasonable effort” is)
ii. Obscuring Congress’ responsibility for what officers are executing
e. Whether “impermissible intrusion” doesn’t depend on magnitude
i. Anti-commandeering prohibition absolute b/c structural concerns
4. Souter dissent: New York (where joined majority) established that Congress can’t use
state legislatures as tools
a. Principal still good here, Congress can use Executive officials as tools
i. Their job to carry out someone’s laws
1. Brady Act not changing their jobs
ii. Also historical argument:
1. No 27: “incorporated into operation of national gov’t, as far as
just and CON authority extends; and will be rendered auxiliary
to enforcement of its laws”
2. No 36 and 45 anticipated State collection of federal revenue
3. Powell thinks Souter more persuasive in historical argument
b. Majority opinion goes against States’ sovereignty b/c creates incentives for
federal gov’t to aggrandize itself w/ national bureaucracies
ix. Reconciling Garcia and Printz:
1. Garcia still good law
a. Congress can impose FLSA on States b/c same requirements it imposes on
private parties
b. But requires State officials to do record-keeping and reporting
c. Solution: Congress can regulate states if participants in market (such as labor
market), but cannot force states to regulate a market for it
i. When State official fills out FLSA form, acting like private employer
ii. When State official looks up criminal records of would-be gun owner,
acting like public official regulating public  being commandeered
x. Approach to federal regulation of State gov’t:
1. (1) Does federal regulation reach private conduct as well as State?
a. Yes—probably doesn’t violate X Amend.
b. No—go to (2)
2. (2) Does it compel or merely encourage State legislature or official to act?
a. Encourages—doesn’t violate X Amend.
b. Compels—violates X Amend.
CONSTITUTIONAL LAW I OUTLINE 24
b. State Sovereign Immunity
i. Art III, § 2, cl 1: judicial power extended to “Controversies between a State and Citizens of
another State” and “between a State, or Citizens thereof, and foreign States, Citizens”
ii. Chisholm v. Georgia (1793)
1. Suit arose under state law; plaintiff sought to recover debt he claimed state owed him
for goods he previously provided the state
2. Holding: Art III authorizes private citizen of another State to sue the State of Georgia
w/o consent
iii. After Chisholm XI Amend. passed
1. Judicial power “shall not be construed to extend to any suit commenced against one of
the United States by Citizens of another State, or by Citizens of foreign State”
a. Appears to provide only that citizen of one State may not sue another State in
federal court w/o State’s consent (overrule Chisholm on its facts)
b. Also been interpreted to prevent federal question suit by citizen against own
state (Hans v. Lousisiana)
iv. What is barred?
1. Actions against state gov’t for past damages (Edelman v. Jordan)
2. Actions against state government for violating state laws
3. Actions against state gov’t for violating federal laws enacted by Congress pursuant to
powers granted in Art I
v. What is not barred?
1. Suits by federal government against States (United States v. Texas)
2. Actions in which state has expressly and unequivocally waived its immunity
3. Appellate review in S. CT. of civil or criminal action from state court that would’ve been
barred if originally brought in federal court
4. Actions against local gov’t
5. Actions against state officers for violation of federal law or CON rights (Ex Parte Young)
a. May seek injunction or monetary damages from officer personally
6. Actions against state officers for prospective payments from state
7. Actions for damages where Congress removed immunity via power to enforce XII, XIV,
or XV Amend. (Fitzpatrick v. Bizter)
vi. Congress has no power under Art I to abrogate state immunity under XI Amend. (Seminole
Tribe)
vii. Alden v. Maine (1999) (Another FLSA Case)
1. Officers alleged State had violated overtime provisions of FLSA; suing for past damages
2. Issue: can citizen sue his own State in State court w/o consent of State?
a. Art III not in question
b. Hans v. Lousiana said not allowed to sue own state in federal court
3. Holding: Kennedy; CON structure and original understanding make clear that states’
historical immunity from suits against them in own courts is fundamental aspect of their
present sovereignty
a. One assurance by Hamilton in Federalist No 81: “inherent in nature of
sovereignty not to be amenable to suit of an individual w/out consent”
b. Theme echoed by Madison in VA and Rhode Island Convention
c. Chisholm decision shocked States  XI Amend. passed to restore original
meaning of sovereignty, not tethered by Art III
d. Later decisions support idea that States’ immunity is determined by
fundamental postulates in CON design
e. When State asserts immunity question not primacy of federal law, but
implementation of law in manner consistent w/ CON sovereignty of States
i. Private suits may threaten financial integrity of States
CONSTITUTIONAL LAW I OUTLINE 25
4. Souter dissent; no evidence Framers thought sovereign immunity was fundamental in
sense of being unalterable natural law
a. Federalist No 81 gives support to majority, but more widespread view that
sovereign immunity derived from common law
i. Not indefeasible; could not have been thought to shield State from suit
under federal law enacted pursuant to Art I powers
b. Also view that sovereignty of ppl.. made sovereign immunity out of place in
United States
c. Structure argument wrong
i. Maine is not authority that promulgated the FLSA, on which right of
action depends
ii. Where there is a right, there is a remedy (Marbury)
viii. Conflict b/w Garcia and Alden?
1. Garcia: citizen or US can sue State to make them enforce FLSA
a. If don’t enforce will be held in contempt of court
i. Settled in Ex Parte Young
b. State sovereign immunity doesn’t apply, Congress made law
2. Alden: citizen can’t sue state for back wages under FLSA b/c of sovereign immunity
3. No disagreement b/c power not delegated to Congress to subject non-consenting states
to private suits in State courts (Seminole Tribe)
V.
THE RECONSTUCTION AMENDMENTS ENFORCEMENT POWER
a. The Civil Rights Cases (1883)
i. Civil Rights Act of 1875 enacted 89 years before Civil Rights Act of 1964 and would’ve banned
public accommodations discrimination
1. Would’ve been valid under Commerce Power (Heart of Atlanta)
2. Action to recover statutory penalty
ii. SG: slavery only existed b/c embedded in other things; Congress has power to eliminate
iii. Holding: Bradley; Civil Rights Act of 1875 can’t be enforced under XIII or XIV Amend.
1. Can’t enforce using § 5 of XIV Amend.
a. XIV Amend. only applies to state action
b. § 5 is not primary, it is corrective
i. Power to counteract and redress operation of prohibited state laws or
proceedings of state officers
2. Here, simply a wrongful act of an individual, unsupported by state authority
a. Fundamental right is not destroyed/injured b/c right is something you hold
against gov’t or something gov’t will vindicate
i. State official stops you from voting v guy w/ gun stops you from voting
3. Can’t enforce w/ § 2 of XIII Amend. either b/c only gives Congress power to pass all laws
N + P to abolish “badges and incidents of slavery”
a. Refusal of public accommodation has nothing to do w/ slavery (compulsory
service, restraint of movements except by master’s will, disability to own
property, etc)
iv. Harlan dissent: feels discrimination badge of slavery
1. Also thinks XIV Amend. applies b/c § 1 affirmative in nature
a. Granted former slaves full citizenship  equal civil rights
v. Civil Rights Cases still good law, but not on the facts of these cases
b. Warren Court Doctrine
i. Katzenbach v. Morgan (1966) (Puerto Rico Case)
1. New York English literacy test requirement to vote
a. Encourage immigrants to learn English
CONSTITUTIONAL LAW I OUTLINE 26
b. Need English for intelligent exercise of franchise
2. Literacy tests not unCON according to Lassiter
3. § 4(e) of Voting Rights Act of 1965: any person educated in Puerto Rico beyond sixth
grade where English wasn’t primary language cannot be prevented from voting
4. Issue: does striking down State law using XIV Amend. require court to find such law
unCON first?
5. Holding: Brennan; no, § 4(e) valid use of enforcement power under § 5 of XIV Amend.
a. Appropriate use of enforcement power if passes McCulloch standard
i. Plainly adapted to enforce prohibition
ii. W/in letter and spirit of CON
b. Also satisfies McCulloch standard if rational basis b/w legislation and
enforcing prohibition  end of judicial inquiry
i. Examine congressional record to see if rational basis
ii. Here, rational basis b/w enfranchising Puerto Ricans and preventing
State officials from discriminating in allocation of public services
iii. Rationale 1: Voting is a defensive tool
c. Doesn’t matter if court has ruled NY law unCON or not or if NY is lying
i. Take away from resourcefulness and Congressional responsibility for
implementing § 5 of XIV Amend.
ii. Rationale 2: Congress can act on its own judgment
6. Dissent: upsetting balance of power b/w Congress and Court
a. Undermining Marbury: not for Congress to decide substantive scope of EPC
i. EPC claims are bread and butter issue for courts capable of judicial
determination (Baker)
1. Court already said CON here in Lassiter
7. Response: Congress through § 5 can make CON protected rights bigger if rational basis,
but not smaller (“ratcheting”)
a. Reconstruction Amends. shifted balance of power b/w Congress and Court
b. May enforce through appropriate means (means end analysis)
8. Is anybody hurt?
a. Yes, liberty and inequality expansions infringes on State power/discretion
b. Not that literacy law is unCON; under Supremacy Clause, state law loses
ii. Jones v. Alfred (1968) (CRA of 1866 Case)
1. Challenge to CON of part of Civil Rights Act of 1866, 42 USC § 1982
a. All citizens same rights as white citizens to hold, convey property
b. Jones alleged he was prevented from buying home
2. Issue: can Congress use XIII Amend. enforcement power to reach private transactional
behavior?
3. Holding: Stewart; valid use of XIII Amend. enforcement power
a. Racial barriers to acquisition of property is “badge and incident” of slavery
b. Two Rationales:
i. Up to Congress
ii. History makes this something that must be decided judicially
4. Note: Reconstruction Court wouldn’t have found badge or incident of slavery
a. Jones disingenuous b/c slaves were prevented from owning property by State
law
c. Rehnquist Court Doctrine
i. Boerne v. Flores (1997) (RFRA Case)
1. City denies building permit to enlarge church
2. Issue: under § 5 of XIV Amend., can Congress expand its power?
CONSTITUTIONAL LAW I OUTLINE 27
a. Congress didn’t like the strict scrutiny appl.ied by the courts in Smith limiting
individual liberty under Free Exercise Clause of I Amend. and passed Religious
Freedom Reformation Act to protect religious practices from gov’t control
i. RFRA required courts to see if: (1) state substantially burdened free
exercise of religion and, if it did, (2) if there was a compelling interest of
gov’t to justify burden
3. Holding: Kennedy; RFRA exceeds Congress’ power under § 5 of XIV Amend.
a. Congress has broad, but not unlimited power under XIV Amend.
b. Congress can prohibit some conduct that is CON so long as there is congruence
and proportionality b/w the violation and Congress’ remedy:
i. Congruence: means must be connected to the end sought
ii. Proportionality: remedy constrained by size and nature of problem
4. Does not overrule, but sidesteps McCulloch standard of Katzenbach v. Morgan
a. Katzenbach does not need to be interpreted as expanding Congress’ power to
enact legislation under § 1 of XIV Amend.
ii. US v. Morrison (2000) (VAWA Case)
1. Private suit under Violence Against Women Act authorizing victims to sue attackers
2. Issue: whether § 5 of XIV Amend. is limited to state action so or can allow private civil
remedies
3. Holding: Rehnquist; cannot regulate private conduct here when not C + P
a. VAWA not congruent b/c didn’t target State’s inaction in failing to adequately
enforce and punish certain crimes
b. VAWA not proportional b/c too large in scope, given fact some States in fact
enforcing law adequately
4. Breyer dissent: just imposing private liability on action already prohibited by State law
iii. Tennessee v. Lane (2004) (ADA Case)
1. Individuals seeking damages from State under Title II of ADA for being unable to access
courthouse
2. Boerne test:
a. (1) Identify CON right that Congress sought to enforce when enacted law
b. (2) Then ask if it is an appropriate response, i.e., C + P
3. Issue: has State sovereign immunity been properly abrogated by valid § 5 legislation?
4. Holding: Stevens; yes, court looks at “this sort” of plaintiff (one seeking courthouse
access), as opposed to looking at wide scope of law
a. Congruent: access to courts is protected Due Process right, and if State denies
such access there is a XIV Amend. violation  Congress targeting CON right
b. Proportional: long record of disabled person lacking access to public services,
namely courts; remedy is carefully tailored so Congress not overreaching
5. As-applied decision; persuasive wrt other denials of access to public services; likely
Court would uphold other situations
6. Rehnquist dissent: does not like case-by-case application; should analyze broadly to see
if law as a whole is CON
a. XIV Amend does not protect much of what Title II targets  not congruent
i. Powell example: access to ping-pong tournament
7. Scalia dissent: too easy to manipulate C + P test at middle, only works at extremes
a. But problem w/ all CON tests; Holmes: nature of legal rules to be clear at
extremes, not invalidated b/c more difficult in close cases
b. Should apply McCulloch standard: allow § 5 only where Congress supplying
remedy for CON violation
iv. Middle Ground b/w Warren/Rehnquist Courts (Powell):
1. Court should take Congress’ intent seriously
CONSTITUTIONAL LAW I OUTLINE 28
2. If congruent, defer to Congress on proportionality
3. But Congress cannot just insist on its own views
VI.
STRUCTURAL LIMITATIONS ON STATE POWER
a. Dormant Commerce Clause Cases
i. Limitations on State power over legitimate State objects resulting from structure of Union
ii. (1) Congress must be silent, (2) an issue which Congress could’ve addressed, (3) State must be
doing something interferes w/ interstate commerce
iii. Development of doctrine:
1. Interpreting Gibbons to mean if something w/in Commerce Power it is exclusive power
of Congress (akin to foreign affairs and war)
a. Problem: key State functions (e.g. health/safety regulations) affect IC
2. Uniformity needed on issue
a. Problem: how decide if uniformity needed?
3. Structural argument: Commerce Clause creates nat’l common market  if States
interfere w/ this market too much then unCON
iv. Current Two (and a half) Lines of Analysis:
1. (1) Facial discrimination  invalid unless goal to secure legitimate state end (e.g.
safety) and use of discrimination against IC necessary for that purpose
a. Facially discriminatory if expresses discrimination against IC or walls state off
from participation/competition in Nat’l common market
2. (1.5) Protectionist legislation  treat as if facially discriminatory
a. Protectionist if law isn’t put in facially-discriminatory terms, but clear that
discrimination against IC is purpose (Brennan view of IA law in Kassel)
b. Not separate line of analysis; subset b/c what is important is debate b/w
Brennan and Rehnquist in Kassel over how determine State’s purpose
3. (2) No facial discrimination (or clearly protectionist), BUT significant negative impact
on IC  “Pike balancing”
a. Value to State of achieving legitimate goal > damage to IC; if so  invalid
b. Incidental burden okay if enforcing a legit state concern
c. “Excessive burden rule”: depend on nature of local interest impact on IC
v. Hughes v. Oklahoma (1979) (Minnows Case)
1. Can’t transport natural minnows out of OK for sale, can take out for other purposes
2. OK says trying to preserve natural resources, but could still deplete w/in state
3. DDC prerequisites met  issue: facially discriminatory?
4. Holding: Brennan; facially discriminatory b/c blocks flow of minnows at border
a. Can’t exclude other States once something enters commerce
b. Discrimination against IC not necessary for conservation purpose
i. No limit on # minnows taken in State
ii. Doesn’t limit how minnows can be used in State
iii. Only forbids transportation out of state to sell
5. Rehnquist dissent: not facially discriminatory; regulation applies to everybody  not
using State power to protect own citizens from outside competition
a. Can still transport w/in State as a non-citizen
vi. Kassel v. Consolidated Freightways (1981) (IA Truck Case)
1. IA law prohibits trucks using IA highways if 65 feet long
2. Exceptions made for border cities, mobile homes, trucks w/ farm equipment
3. State argued law not facially discriminatory
a. Evidence that law placed substantial burden on IC  Pike balancing needs to be
applied
CONSTITUTIONAL LAW I OUTLINE 29
4. State response (three-part argument):
a. (1): pursuing a legitimate state interest—safety
b. (2): rational basis to conclude shorter trucks safer
c. (3): S. Ct. gives special deference to State highway laws w/ safety purpose
5. Holding: Powell in plurality opinion; accepting arguendo that law’s purpose legitimately
safety State loses Pike balancing
a. District court: fact 65-foot trucks no more dangerous than 55 or 60-footers
i. Rational basis wrong or immaterial (not clear)
b. No special deference b/c law’s exemptions and legislative history suggest IA
trying divert interstate traffic away from IA except border where citizens benefit
c. Pike balancing: positive X burden > 0 safety value to IA
d. Powell close to saying that IA law facially discriminatory
6. All justices agreed IA law not facially discriminatory
7. Dissenters debate over how to determine State’s purpose
8. Brennan concurrence: protectionist legislation intended to benefit IA thinly veiled in
facially nondiscriminatory terms
9. Rehnquist dissent: shouldn’t question State’s purpose (McCulloch), if substantial burden
on IC and rational basis b/w discrimination and safety  Pike balancing
a. Takes issue w/ Brennan: can’t determine State’s actual purpose, no one
discernable purpose among individual (widely different reasons for voting)
b. Appropriate judicial role not to overrule a lot
i. Don’t get rid of Pike balancing completely; just see if rational basis
1. Trying to cabin force of DCC (thinks exception to idea power
that Congress doesn’t exercise reserved to States)
ii. Powell: whether like it or not Pike balancing is about Court making
decision not rational basis
c. Problems w/ Rehnquist opinion:
i. Lawyers for state can just state any purpose that has a rational basis
(fake judicial scrutiny)
ii. Reduces Pike balancing to nothing
10. Concern w/ Pike balancing: cost-benefit analysis looks too much like legislating
a. Federalism and separation of powers concerns
b. Nevertheless, Powell’s Pike balancing opinion is the law
c. Powell: Pike balancing way to smoke out discriminatory purpose
vii. Approach to State regulation of IC:
1. (1) Does State regulation affect activity addressed by federal legislation?
a. Yes—
i. Invalid if federal law conflicts or preempts
ii. Valid if federal law authorizes
b. No—got to (2)
2. (2) Does it discriminate against IC?
a. Yes—invalid unless:
i. Favors local gov’t activity
ii. Furthers important, noneconomic State interest and no reasonable
nondiscriminatory alternative
iii. State acting as market participant
b. No—go to (3)
3. (3) Burden IC?
a. Yes—invalid if burden undue or unreasonable on IC after balancing against
State’s interest
b. No--valid
CONSTITUTIONAL LAW I OUTLINE 30
b. Recent Developments
i. Market Participant Exception:
1. Applies when State gov’t acts like private business, buying or selling goods or services in
market
a. Court will not limit State gov’t market activities, even if favoring in-state buyers
or sellers
ii. What if State enacts laws that favor themselves (monopoly on trash collection)?
1. Exclude all business, including out-of-state ones  discriminating against IC?
iii. United Haulers Ass’n v. Oneida Waste Management (2007) (Trash Case)
1. NY flow control ordinance: all waste—regardless of who collected it—is delivered to
State facility for processing
a. State part regulating and part participating in market
2. Holding: Roberts plurality opinion; in-state and out-of-state private businesses treated
the same under ordinance  not discriminating against IC
a. Case different from Carbone where State wasn’t participating in processing, just
regulating by designating one private facility
b. Up to States decide what activities appropriate for gov’t undertake v. private
c. Incidental effects on IC not important
d. DDC: find discrimination when State shifts regulation costs to other states 
burden unlikely alleviated by political restraints of other States
3. Scalia concurrence: nothing in Commerce Clause says public and private treated same
a. Pike balancing should be left to Congress though
4. Thomas concurrence: DDC unworkable; turns on policy considerations
5. Market participant exception didn’t apply b/c State acting in distinctive gov’t capacity
a. Not competing, instead enacted laws give State gov’t advantages
i. Directed at number of goals unrelated to protectionism (health, safety,
welfare of citizens)
iv. State not market actor when State hands out $ w/ specific conditions on the use of that $ (Camp
Newfound)
1. Often tax money used so State wants to favor State citizens
2. Problem: balance DCC with State taking care of its ppl.?
v. Camp Newfound v. Town of Harrison (1997) (ME Camp Case)
1. Local property tax break given for nonprofit facilities operated principally for the benefit
of Maine residents and who don’t charge over $30/week
2. Camp says tax break violates commerce clause b/c 95% of its campers are out of state
and they charge $400/week
3. Law facially discriminatory against out of state residents
4. State response:
a. State subsidizing its own children
b. DCC doesn’t apply b/c Congress couldn’t have regulated
5. Holding: Stevens; even though camp nonprofit engaged in commerce that Congress
could regulate
a. Similar to Heart of Atlanta: hotels offer guests goods and services consumed
locally, but IC substantially affected by out-of-state patronage
i. Discrimination that limits access of nonresidents to summer camps
create similar impediments
ii. Lopez: channels of IC
b. Indirect subsidy argument fails: if camp for-profit no argument that commerce
i. No reason for categorical distinction b/w for-profit and non-profit org.
c. Also Wickard aggregation b/c, although nonprofit, paying for summer camp is
“economic” and in aggregate substantially affect IC
CONSTITUTIONAL LAW I OUTLINE 31
d. UnCON b/c facially discriminatory
i. Penalizes camps that do principally interstate business, encourages
limiting out-of-state clientele
6. Scalia dissent: it has always been legit for states to limit welfare benefits to residents
(shouldn’t even be DCC analysis)
a. No reason why State shouldn’t be able provide social services indirectly
7. Thomas dissent: thinks DCC is wrong—(1) not based on CON text and (2) nothing to
support justifying a doctrine w/o a textual basis
a. Two theories Court has offered to support DCC
i. Exclusivity wrong, commerce can also be regulated by states
ii. Congressional silence pre-empts state legislation
1. But again states can regulate their own commerce
b. DCC taken us beyond invalidating laws facially discriminatory to IC to legislating
i. Have to decide whether serves legitimate local interest?
ii. Whether affects IC incidentally or excessively?
iii. What is nature of local interest?
iv. Whether alternative means of furthering interest?
8. Scalia agrees w/ Thomas, but doesn’t think whole DCC should be thrown out b/c
precedent
a. Practicalities not part of CON law (McCulloch): if CON demands result, must live
with it
b. But Holmes spectrum: need a workable gov’t, so to some extent, Courts do deal
w/ practicalities
c. Thomas claims to follow Marshall too: sometimes CON imperatives too strong
to get around
c. Related Issues
i. Congress may authorize States to pass legislation that would otherwise violate DCC analysis
1. Prudential Insurance (1946) (Insurance Case)
a. U.S. v. S.E. Underwriters Ass’n: insurance is part of commerce and can be
regulated by Congress
b. Congress passes McCarran Act stating that fed law will regulate insurance only
when not regulated by state law
c. SC taxes out of state insurance cos. more than in state
i. Facially discriminatory, but allowed by McCarran
ii. Q2 (only Q wrt State laws): prohibited by CON?
d. Holding: Rutledge: no DCC analysis  Congress spoke through McCarran Act
i. Act overrides judiciary’s power
ii. Judiciary is only allowed to keep market free as far as Congress says it
should be
ii. Equal Protection Clause (XIV Amend. § 1)
1. Metro Life v. Ward (1985) (AL Premiums Case)
a. AL imposes a lower gross premium tax rate on AL state insurance companies v.
out-of-state insurance cos.
b. Holding: Powell violates EPC by discriminating against non-residents
i. Need a legit reason for discriminating and fostering business is not
rational basis
c. O’Connor dissent: can’t be okay under if pleaded under commerce clause, but
not under EPC  shouldn’t matter what law was pleaded
2. Case is wrong: not reconcilable w/ Prudential, but it does remain the law (even though
S. Ct. ignores it)
CONSTITUTIONAL LAW I OUTLINE 32
a. 5-4 decision; problem when extremists (4 dissenters) agree to disagree w/
majority
iii. Approach to State taxation of IC:
1. (1) Does tax affect an activity addressed by federal legislation?
a. Yes—invalid
i. Supremacy Clause
ii. Only valid if federal law authorizes state tax
b. No—go to (2)
2. (2) Does tax discriminate against IC?
a. Yes—invalid
b. No—got to (3)
3. (3) Does tax unduly burden IC?
a. Yes—invalid
b. No—valid
iv. Privileges & Immunities Clause (Art. IV, § 2, cl. 2)
1. Principles of P & I Clause:
a. (1) Anti-discrimination measure—can’t discriminate in state v. out of state
b. (2) Limited to fundamental rights
c. (3) Allowed to discriminate if state has a “substantial” reason for doing so
d. (4) Citizen = resident for purposes of in state v. out of state analysis
i. Meant to apply to ppl. not corporations
2. Baldwin v. Fish & Game Comm’n (1978) (Elk Hunters Case)
a. Non-residents pay 75 to 25x more for hunting licenses than Montana residents
b. Holding: Blackmun; sport hunting is not an essential activity so a state may
discriminate against non-residents in this area
i. Sport hunting is not a fundamental right
1. Does not bear upon the vitality of the Nation as a single entity
VII.
SEPARATION OF POWERS
a. Congressional Modifications of the Law-Making Process
i. General Principles:
1. Formalism (Chadha)
a. Is there a rule  if so should follow it
b. Did you follow the rule?
2. Functionalism (White dissent in Chadha)
a. What are the points, principles, and goals of the separation of powers?
b. Are we serving the purpose of the separation of power?
ii. Non-Delegation Principle:
1. CON text does not expressly forbid Congress from delegating legislative power to other
gov’t actors
a. S.Ct always said Congress must provide intelligible principle to guide that gov’t
actor’s exercise of discretion (J.W. Hampton Jr. & Co.)
2. No definition in CON of “legislative power” and impractical (if not impossible) for
Congress to make every policy decision
a. Scalia: problem w/ Congress delegating its powers is one of degree
b. Discretion must be “bounded” so that there is a way to say when they have
gone beyond what was delegated to them
3. Since 1937, no laws have been struck down under broad intelligible principle standard
4. Both Chadha and Clinton simply look like delegation cases
CONSTITUTIONAL LAW I OUTLINE 33
iii. Legislative Veto
1. Provision in a statute says that Congress (or just House or Senate) can decide that if an
agency says “X will happen,” Congress can come in and say “no,” and X will not happen
2. Immigration & Naturalization Serv. v Chadha (1983) (Immigrant Case)
a. AG has discretion under Immigration and Nationality Act to prevent someone
from being deported if they meet certain requirements
i. Chadha met those requirements, so AG didn’t deport him even though
the general rule was to deport
b. House committee felt that Chadha and other aliens didn’t meet hardship
requirement and their permanent residency was vetoed (“one House veto”)
i. Not submitted to Senate or Pres.
c. Holding: Burger; legislative veto provision is unCON b/c Congress can only act
through usual legislative process
i. There is a single, express, exclusive process for Congress to affect the
world, which is bicameral passage of legislation w/ presentment
1. If want to alter how ppl. act legally
2. This instance is not one of the exceptions (which are explicit and
unambiguous)
a. House can initiate impeachments (Art I, § 2, cl. 6)
Possible Exam Q:
b. Senate alone trial after impeachment (Art. I, § 3, cl. 5)
Is it proper for Congress to
c. Senate ratification of treaties (Art. II, § 2, cl. 2)
keep putting legislative
d. Confirmation of Pres. appointments (Art. II, § 2, cl. 2)
ii.
AG
was
acting
properly w/in his power
vetoes into Acts?
iii. Powell concurrence: House is engaged in adjudication, but Congress is
not the courts
1. Not bound by due process or the rules of evidence
2. This was not a delegation issue
a. This legislative veto is unCON, but not all are
iv. White dissent: legislative veto legitimate way to check discretion given
to executive
1. Just fulfilling the purpose of the separation of powers
a. Didn’t present an actual, functional threat to separation
of powers
v. Why does Congress keep putting in legislative vetoes?
1. Works in part through political practice (McCulloch)
2. Interaction b/w branches below formalism
d. Hypo: what if this was looked at as a delegation issue?
i. House itself is voice of ppl. (greater force + democratic check—
McCulloch)
1. Legislative vetoes don’t satisfy intelligible principle (if treat
House as if it were an agency)
ii. House made actual decision here w/in intelligible principle AG bound by
1. Nothing in statute said had to follow, but read in statute as
condition on grant of legislative veto power
iv. Line Item Veto
1. Can Congress give Pres. authority to selectively disapprove provisions of laws?
a. Many State CON provide governors w/ line item veto power
2. Clinton v. NY (1998) (Line Item Veto Act)
a. Line Item Veto Act allows Pres. to “cancel in whole” three types of provisions:
i. Any $ amount of discretionary budget authority
ii. Any item of new direct spending
CONSTITUTIONAL LAW I OUTLINE 34
iii. Any limited tax benefit
b. Before cancelling, he must assure that it will (1) reduce fed. budget deficit, (2)
not impair essential gov’t functions, and (3) not harm Nat’l interest
c. Issue: whether Congress can give Pres. a line item veto to cancel parts of
legislation that has been duly signed by both the House and Senate?
d. Holding: Stevens; Pres. can only sign or veto the whole bill
i. Act gives Pres. power to change text unilaterally of duly enacted
statutes
1. CON allows Pres. to return a bill, but is silent about amending
parts of it after Congress has signed it
2. Here—CON silence must be construed as an express prohibition
ii. When Pres. cancels item of new direct spending or limited tax benefit
rejecting policy judgment made by Congress and relying on own policy
iii. Not like discretionary spending b/c here “changing text” of statute
e. Scalia concurrence (in part) and dissent (in part):
i. Problem is in using words “veto” and “cancel”
ii. No difference between allowing Pres. to cancel a spending item and
allowing money to be spent on a particular item
iii. Powell: either find this point of Scalia convincing or not
f. Breyer dissent: need a “workable gov’t”
i. Majority’s argument is purely formalistic: can’t pass each appropriation
as separate bill; back in day Congress could’ve done so and allowed
Pres. to veto each individual one
g. This would be lawful delegation if non-delegation principle had applied b/c
intelligible principle given (lots of criteria)
b. Congressional Control over Executive Officials (Art. II, § 2, cl. 2)
i. Two models of executive branch:
1. Rules model: Pres. sets out rules and everyone obliged to follow them
a. Compare to judiciary: lower courts follow higher courts, but can’t remove Art. III
judge
2. Command model: Pres. chooses ppl. who will faithfully execute laws and fires those who
won’t
a. Appointment and removal
ii. Civil Service Commission (1871)
1. President Grant wanted civil service commission to write and grade exams, and have
results determine who gets job
2. AG Akerman: executive branch has two types ppl.: (1) “officers,” and (2) “employees”
a. Employees = not so much in charge; not depository of CON power  no
separation of powers issue if Congress sets up employment process
i. Exams, interviews, chosen based on performance in both
b. Officers = ppl. in charge; if exercise “significant authority” pursuant to laws of
U.S., then must be properly appointed officer (nominated by Pres. and
confirmed by Senate)
i. Principal officers: must go through formal appointment process
1. Traditional list: ambassadors/diplomats, judges, executive
cabinet
2. Other ppl. could be too
ii. Inferior officers: Congress may by law vest appointment power in Pres.
alone, courts, or heads of departments
CONSTITUTIONAL LAW I OUTLINE 35
3. Could you use competitive exam to choose inferior officers?
a. Not directly—examiners not listed as choice Congress given in appt. cl.  not
CON “depository” of appt. power
b. Appt. power is not “merely formal”
i. Lot of history went into creating it; founders wanted depositories of
appt. power (“appointing officers”) to exercise will and judgment
c. But appt. power “may avail itself of judgment of others as means of info.”
4. Could you use competitive exam to limit universe of possible appointees?
a. To an extent—Congress’ right to create inferior officers implies right to
prescribe qualifications
i. Saying person qualified if he or she does well on exam like saying person
qualified to be judge if “learned in the law”
b. Still needs to be some exercise of judgment and will by officer Congress vest w/
appt. power
i. Pres., courts, heads of department have interest in choosing ppl. who
will succeed
c. Problem: what if test results only give Secretary five candidates
i. Not likely says Akerman: Holmesian before Holmes
iii. Myers v. U.S. (1926) (Postmaster Case)
1. Act said postmasters were to be appt. by Pres. nomination w/ advice and consent of
Senate, hold office for four years, unless removed w/ advice and consent of Senate
2. Issue: can Congress by statute limit Pres. ability to discharge executive officers he has
appt. w/ advice and consent of Senate?
3. Holding: Taft; unCON b/c Pres. charged w/ faithfully executing laws must choose
subordinates who execute laws according to his discretion  needs to remove those he
cann no longer be responsible for
a. Pres. better informed than Congress if subordinate capable or loyal (practical
reason)
b. Claims first Congress came close to saying Pres. had sole removal power
iv. Humphrey’s Executor v. U.S. (1935) (FTC Commissioner Case)
1. FDR tries to fire Humphrey who was appt. by Hoover to seven year term
a. Claimed couldn’t rely on Humphrey b/c political differences
2. FTC Act said commissioner may be removed only if inept or corrupt
3. Executive branch claims Myers: FTC takes antitrust laws and implements them
4. Holding: Sutherland; Myers not applicable b/c FTC is not an executive branch agency!
a. Makes investigations/reports for Congress and carries out antitrust policies
(legislative), prosecutes ppl. (executive), resolves disputes itself (judicial)
b. Congress wants some matters handled in an apolitical way
i. Antitrust laws require dispassionate enforcement; technical
enforcement of law  requires experts
c. Problems with this reasoning (Powell):
i. No sharp division b/w technocrats and politicians
ii. Circular: point should’ve been Congress can’t decide executive functions
are independent of Pres.
5. Nevertheless, Humphrey’s states the law: heads of independent regulatory agencies
cannot be fired at will b/c not there to carry out administrator’s agenda
a. Big deal: includes SSA, FDA, EPA, SEC . . .
v. Bowsher v. Synar (1986) (Balanced Budget Act)
1. Gramm Rudman Hollings Act set maximum deficit amt. for federal spending; if exceed
by specified sum, then agencies have to make “automatic” reductions via procedure
CONSTITUTIONAL LAW I OUTLINE 36
a. OMB and CBO independently estimate deficit and calculate program-byprogram reductions; report to Comptroller General
2. CG reviews reports then gives conclusion to Pres. who orders sequestration order
3. CG can be removed by joint resolution of Congress for cause; Pres. can veto, Congress
can override w/ 2/3 majority
4. Holding: Burger; Congress cannot reserve power of removal of officer charged w/
execution of laws except by impeachment (Myers principle)
a. Exercising “independent judgment wrt to estimates”  “interpreting law
enacted by Congress” is “very essence” of executive function
i. Act commands Pres. to carry out CG’s report
b. Once Congress enacts legislation  participation ends
c. Cannot retain removal power b/c retaining control over execution of law
5. Delegation problem?
a. No, CG only ascertaining facts about world and making decisions about world
(tariff example of Field v. Clark discussed in Clinton)
6. Steven concurrence: not about removal per se; about being legislative officer who is
making policy of Nation w/out bicameral passage and presentment (Chadha)
7. White dissent: function not really executive at all, it’s legislative b/c deciding how much
funds to appropriate  Pres. has no role in this decision anyways
a. Congress really has no power of removal given Pres. veto
8. Blackmun dissent: Congress did poor job if intended to make CG its pawn given forcause removal provision requiring joint resolution
a. Just strike out removal provision and uphold important law
c. Free Enterprise Fund v. Public Co. Acct’g Oversight Bd. (2010) (SEC Commission Case)
i. Sarbanes-Oxley Act created five-member board tasked w/ supervising accounting industry
1. Officers b/c exercising “significant authority” over laws supervising entire industry
2. Members appointed to five-year terms by SEC Commissioners
a. Can only be removed “for good cause shown”
ii. Pres. can only remove SEC Commissioners themselves for cause under Humphrey std.
iii. Issue: do two layers of for-cause removal unCON limitation on Pres. executive power?
iv. Holding: Roberts; yes b/c second layer of tenure protection allows Commission to shield its
decision from Pres. review by finding good cause is absent
1. Such a decision wouldn’t be itself cause to fire commissioners
2. As such, Commission itself is protected  Pres. cannot easily overturn decision
a. Myers: hampers Pres. ability to “take Care that laws be faithfully executed”
b. When Pres. finds necessary to remove subordinate officer statute prevents it
3. If no second layer, then Commission would have no excuse to retain officer not faithfully
executing law or misbehaving  Pres. could still indirectly enforce his judgment
a. If SEC refused to remove, then neglecting duty and Pres. can remove
Commissioners
4. Madison: early view that “prevailed as most consonant to text of CON” was if
responsible for carrying our law, need to control ppl. carrying it out
v. Breyer (chief functionalist after White) dissent: just one of four scenarios (but central issue)
vi. Powell: majority tolerates Humphrey’s as exception to general Myers rule b/c Pres. can still
enforce judgment, albeit more narrow judgment
VIII.
FOREIGN AFFAIRS AND NATIONAL SECURITY
a. The Steel Seizure Case (1952)
i. During Korean War dispute arose b/w steel companies and employees over collective bargaining
agreements
ii. Federal mediation and Federal Wage Stabilization Board Report failed
CONSTITUTIONAL LAW I OUTLINE 37
iii. April 4, 1952 United Steelworkers gave notice of nationwide strike on April 9
iv. Pres. Truman issued E.O. 10340 to nationalize steel mills hours before strike; told Congress
v. Two statutes authorized temporary seizures by Pres. via process, but too “cumbersome”
1. Congress has power regulate wages, hours, labor relations via Commerce Clause (Darby)
vi. Holding: Black; unCON: Pres. has no CON authority to take over steel mills
1. Two important points:
a. Pres. has no extra-legal powers: authority must come from CON or statute
i. Contrary to Sutherland in Curtiss Wright
b. No authority under Commander-in-Chief Power: not w/in “theater of war”
2. Congress would have power here: can authorize takings and regulate labor
3. Congress considered amendment to Taft-Hartley Act of 1947 authorizing such seizures
and rejected
vii. Frankfurter concurrence: political practice good evidence how system is to work (McCulloch)
1. “Gloss which life has written upon” words of CON
2. 16 time Congress provided for executive seizure w/ limitations  hasn’t done so here
viii. Jackson concurrence: three tiers of Pres. power:
1. (1) Pres. + Congress: most powerful presumption of CON
2. (2) Pres. alone: “twilight zone”
a. “Imperatives of events rather than abstract theories of law”
b. Pres. advisors must do thoughtful analysis of whether lawful or not
c. Weighted against Pres. acting on his own
3. (3) Pres. – Congress: CON of action suspect (separation of powers at stake)
4. Jackson claims third-tier here b/c implied congressional prohibition
a. Congress has processes in two acts that can be used; meant to be exclusive
b. Notion of “implied congressional prohibition overruled by Chadha
i. But here could argue issue of fair statutory construction
5. Can sustain Pres. only if seizure w/in his domain and beyond Congress control
a. Vesting Clause: allocation of generic powers stated, as opposed to “all legislative
powers herein granted”
b. Commander-in-Chief power: Pres. wide latitude in foreign affairs, but can’t use
to supersede representative gov’t of domestic affairs
c. Take Care Clause: only reaches so far as there is law
6. Leaves some room for inherent power for Pres. to act although stresses founders well
aware emergency powers would “kindle emergencies”
ix. Powell:
1. Narrow decision limited to facts; was proper to advise Truman he had lawful authority
2. Is Youngstown wrong b/c inconsistent w/ Chadha?
a. No presentment, but Congress carefully construed another way for Pres. to
seize  told may seize, but only w/ limitations (two statutes)
b. Issue of fair statutory construction, but likely Congress didn’t think of what
Pres. wanted to do when passed two statutes
3. Problem: after 9/11 domestic sphere is w/in theater of war
4. Problem: attack renders Congress unable to act  Pres. have inherent power to act?
b. Executive Initiative in Foreign Policy
i. U.S. v. Curtis Wright (1936) (Chaco War Case)
1. Congress gave Pres. authority to make selling arms to certain countries involved in
Chaco War illegal if he finds it would lead to reestablishment of peace
a. Q1: yes b/c foreign commerce power
2. Issue: Q2; unlawful delegation of lawmaking power in foreign policy?
3. Holding: Sutherland; no: delegating where Pres. already has independent authority
a. Marshall: “Pres. sole organ of nation in external relations”
CONSTITUTIONAL LAW I OUTLINE 38
b. Geo. Wash. supported view that Pres. needs some secrecy and discretion so as
not to be embarrassed
c. History of Congress giving Pres. more discretion in foreign affairs
d. In foreign affairs Pres. may have some additional powers not conferred by CON
or statute
i. This view has been clearly rejected in Youngstown
4. Powell: case doesn’t resolve much; just difference in what Congress can delegate in
foreign/domestic affairs
a. Doesn’t answer controversial Q: what if Congress speaks on foreign affairs and
says, “Follow our policy!”
ii. Goldwater v. Carter (1979) (China Case)
1. Carter trying to abrogate treaty made w/ advice and consent of Senate in order to
recognize PRC as sole gov’t of China instead of ROC
2. Issue: Pres. have power to abrogate treaties made w/ advice and consent of Senate?
3. No one doubts Pres. + Senate can abrogate (they made it)
4. Could abrogate by statute and presentment (Chadha)
a. Conflicting statute supersedes treaty b/c treaties on par w/ statutes
5. No express prohibition; Congress hasn’t spoken  Jackson “twilight zone”
6. Holding: case dismissed; no justices could agree so Court issued order and various
justices wrote opinions
7. Powell concurrence: not ripe; just Barry Goldwater disagreeing w/ Jimmy Carter
8. Rehnquist concurrence: can’t answer b/c political Q
9. Brennan dissent: Q which branch has been given CON decision-making power 
justiciable Q
a. Baker said if “CON committed” to political branch then political Q
b. Congress commits power to recognize nations to Pres. alone, which implies
withdrawing recognition  Pres. can abrogate treaty here
10. Powell: supports Brennan view that justiciable Q
iii. Dames & Moore v. Regan (1981) (Iran Settlement Case)
1. Carter entered into agreement w/ Iran to terminate all litigation b/w countries, bring
about settlement of all claims through arbitration, and set up Claims Tribunal
2. “Twilight zone” b/c Congress hasn’t spoken
3. Issue: Pres. have power to suspend claims and require courts not to adjudicate cases?
4. Holding: Rehnquist; yes, views Jackson three tiers on a continuum (explicit
congressional authorization to explicit congressional prohibition)
a. Enactment of closely related legislation in IEEPA (blocking removal/transfer of
Iranian property) “invited independent Pres. responsibility” (Youngstown)
b. Settlements historically made by E.O. (10 binding settlements)
c. Congress implicitly approved by creating Foreign Claims Settlement Commission
d. Frankfurter in Youngstown: “unbroken executive practice, pursued in
knowledge of Congress” = “gloss” on executive power
e. Congress hasn’t said otherwise
f. Emphasizes narrowness of decision
5. Case important b/c example of thoughtful “twilight zone” analysis
c. The War Powers Resolution (50 U.S.C. § 1541) (1973)
i. Issue: absence attack on U.S. when may Pres. use U.S. Armed Forces?
ii. WPR is Congress’ attempt to provide its answer to question
1. Collective judgment of Congress and Pres. needed to introduce troops into hostilities
or situations where imminent involvement in hostilities clearly indicated by circum.
CONSTITUTIONAL LAW I OUTLINE 39
2. N + P Clause gives Congress power to provide laws necessary for carrying into execution
all powers vested by CON in U.S. gov’t and its officials, including Commander-in-Chief
power
3. Pres. limited to introducing troops into hostilities or where imminent involvement in
hostilities clearly indicated by circum. where exercised pursuant to: (1) declaration of
war, (2) specific statutory authorization, (3) Nat’l emergency
4. Pres. must terminate use of troops w/in 60 days (extra 30 w/ necessity) after required
report to Congress unless: (1) Congress declared war or specifically authorized, (2)
extended by law 60-day period, (3) Congress physically can’t meet
iii. Follows two strategies:
1. Inform judgment of Pres. and his lawyers, as well as courts
a. § 2(c): list when he may initiate military operations
2. Sets up rules of law:
a. 60-day clock
b. § 8(a): no implicit authorization
c. Congress can remove troops w/ concurrent resolution
iv. Criticisms:
1. Underinclusive: everybody agrees Pres. can use troops to free Americans citizens from
foreign gov’t
2. Implicit authorization: a later Congress can ignore what an earlier Congress has done
and authorize force w/o using “magic words”
3. Concurrent resolution: no presentment (Chadha)
4. 60-day clock: presupposes Pres. can initiative w/o authorization of Congress!
a. Many think unCON b/c if Pres. has power to deploy then has power to remove
v. Powell: significant b/c Art. I branch holds this view
d. Bosnia and Haiti Deployments (1995 & 2004)
i. Executive branch views of Commander-in-Chief power
ii. Agreements:
1. Pres. has independent authority to introduce troops into hostilities w/o consulting
Congress or getting permission
2. This remains a matter of law: when in “twilight zone” of no Congressional authority or
prohibition given, when satisfactory basis for acting on his own? Both give reasons:
a. Regional stability important for Nat’l security
b. Alliance w/ NATO
c. Maintaining viability of U.N. Security Council
iii. Disagreements:
1. Bosnia (Clinton): limit; Pres. may act unilaterally, but not for a full-blown “war,” which
requires collective judgment
a. Bosnia war or police action/foreign policy initiatives?
b. In deciding whether war Pres. considers number factors:
i. Scope, duration, nature of operation
1. Casualties to U.S. expected/expected to be inflicted by U.S.
2. Prevents Pres. from foreclosing Congress’ power to declare war
c. Here, “limited mission ensures stability while peace agreement put into effect”
i. Not aiming at conquest or occupation or even imposing change in
political regime as in Haitian intervention under first Bush
ii. 20,000 boots on ground raises risks of casualties and war, but
deployment in aid of NATO peace agreement
iii. Not analogous to WWII where collective judgment needed
d. Problem: NATO charter says attack on one = attack on U.S.  authorize WPR
action?
CONSTITUTIONAL LAW I OUTLINE 40
2. Haiti (second Bush): no mention of there being a limit; if Pres.’s lawyers say vital to Nat’l
interests  Pres. can act unilaterally in good faith w/ reason
a. WPR doesn’t limit Pres. authority to deploy w/o congressional authorization
b. U.N. Security resolution authorized multinational interim force  Bush sends 50
Marines to “help bring order and stability”
c. Also protecting 15,000 Americans living in Haiti
d. Problem: Pres. can use rationale for any military action?
i. Powell: system presupposes good faith of actors, best example S. Ct.
(McCulloch)
3. Powell: important difference b/w “twilight zone” analysis of Bosnia and Haiti opinions
e. United Nations Operational or Tactical Control (1996)
i. Proposed subsection prohibits Dept. of Defense from using appropriated funds for activities of
U.S. Armed Forces under U.N. operational or tactical control
1. Would effectively prevent Pres. from putting forces in under U.N. control
a. Subject to limitations if Congress authorizes or Pres. says “in the Nat’l security
interests of U.S.
i. Ability to decide who is in charge is the “heart” of the Commander-in-Chief power
1. Akerman: not a “ceremonial” power
ii. Kreczko: UnCON; unlimited power to appropriated, but at some point denial of money becomes
coercive  S.D. v. Dole: Congress can induce, but not command someone give up right
1. Pres. has absolute power to personnel to lead troops under Commander-in-Chief power
2. Can apply same doctrine in Dole to protect Executive? Controversial
a. Executive has held this view since 1860
f. National Security and the First Amend.
i. I Amend. understood to have two aspects from beginning:
1. Gov’t has no power over speech and press (Madison)
2. Prohibition: Congress may not regulate speech unless N + P to regulate in carrying out
enumerated power
ii. Court has long held that I Amend. provides more protection against prior restraints on speech
than it does against subsequent liability for speech
1. Blackstone in 1798: liberty of press exists in absence of prior restraints
2. Everybody in early Republic agreed prior restraints unCON, just whether I Amend. goes
further prohibiting other restraints on speech
iii. Near v. Minnesota (1931)
1. Holding: broad, but not complete prohibition on gov’t regulating speech
a. State can’t enjoin publisher in advance from publishing a defamatory
newspaper, even if state could CON provide remedy after publication
b. Possible exceptions to no prior restraints:
i. Gov’t prevent “obstruction to its recruiting service or publication of
sailing dates of transports”
iv. New York Times v. U.S. (1971) (Pentagon Papers Case)
1. Internal study of U.S. involvement in Indo-China from 1941-1967
a. Could infer sources of U.S. intelligence from papers
2. Daniel Ellsburg gets papers and releases them to Times
3. Executive argues injunction needed to stop papers from being published
a. Q1: Pres. has authority:
i. Curtiss-Wright: Pres. has broad authority in conduct of foreign affairs 
possible for him to act even w/o Congress (third Jackson tier), but rare
b/c of separation of powers concerns
1. Geo. Wash: Pres. needs to keep some things secret!
ii. Also argue in “twilight zone”
CONSTITUTIONAL LAW I OUTLINE 41
4.
5.
6.
7.
8.
9.
10.
11.
1. Congress has given “helpful” statutes (Dames & Moore) here,
outlawing publication of classified information
2. Not statutes disavowing Pres. authority (Black in Youngstown)
for prior restraints by forcing him to prosecute post publishing
b. Q2: no prohibition b/c Near exception met b/c “hot war” going on and entire
U.S. intelligence operation could be figured out
Holding: per curiam opinion; gov’t has not met tough burden needed for prior restraint
Black/Douglas concurrences: Near dicta wrong; no prior restraints allowed, period
a. Not even in “twilight zone”; laws on books don’t deal w/ prior restraints
i. Powell: absolutists, but agreeing w/ everybody’s view in 1798
Brennan concurrence: close to saying Near dicta wrong, but “extremely narrow” class of
exceptions (troop transport example)
a. Pres. can get injunction, but must provide “clear” showing to judges
i. In “no event” are mere conclusions sufficient
White concurrence: doesn’t think Pres. is lying; papers will be damaging
a. But don’t have both political branches speaking  not willing to find burden
met if relying on Pres. “inherent” power in foreign affairs alone
i. Standard wouldn’t be justiciable if just accept Pres. says publishing
papers poses “grave and irreparable danger”
b. Powell: interaction b/w authority/prohibition Qs in White’s opinion
Stewart concurrence: Pres. has authority to prevent top secret information from being
leaked, but can’t step outside executive “sphere”
a. What Pres. wants in injunction isn’t in his “inherent” powers in foreign affairs,
basically saying, “If you run press, I will stop you”
b. Publication enjoined when gov’t proves “disclosure . . . surely result in direct,
immediate, and irreparable damage to Nation or its ppl.
c. Powell: great opinion for executive authority
Marshall concurrence: third-Jackson tier; Congress has “specifically declined to prohibit
publication” of such papers  court cannot grant Pres. injunction
a. Powell: Marshall opinion inconsistent w/ Chadha
i. Congress cannot affect world beyond its door; declining to enact is
nothing
ii. Finding Pres. in third-Jackson tier in Youngstown was fair reading of
statutes, such reading not possible here
Harlan dissent: limited judicial review when Pres. exercises his “very delicate,
plenary/exclusive power” over foreign affairs (Curtiss-Wright)
a. As long as two limitations met no review:
i. Foreign affairs matter
ii. Decision made by proper executive branch official (Head of Dept. gave
matter consideration)
b. Powell: articulates justiciability issues arising from judicial intervention in nat’l
security
Powell: making sense of per curiam opinion in New York Times
a. Whatever standard is, it is tough and gov’t has not met it
b. Look to opinions that are most narrow (answer fewest Qs)
i. Throw out Black/Douglas concurrences b/c no prior restraints at all
ii. Throw out dissenting opinions
iii. Stewart opinion takes broad view of executive, but contains “proper
rationale” of “grave and irreparable harm”
iv. White and Brennan opinions are most narrow
CONSTITUTIONAL LAW I OUTLINE 42
1. Brennan broader b/c some likelihood Pres. alone can establish
Near exception with clear showing
2. White narrower b/c not willing to find exception in absence of
legislation by Congress based on its own findings
g. Ex parte Milligan (1866) (Indiana Rebels Case)
i. Lincoln suspended writ of habeas corpus in 1862 and Congress authorized in 1863
ii. Milligan detained in 1864 by U.S. and accused of plotting against Union
iii. Tried before Civil War ended by a military commission and sentenced to death
iv. Civil grand jury convened after war and failed to indict, but gov’t announced intent to proceed
w/ execution
v. Milligan sued in federal court challenging use of military tribunal
vi. Holding: Davis; suspension of writ of habeas corpus lawful, but military tribunals do not apply
to citizens in states where CON upheld and civilian courts operating
1. Did not address authority of Pres. to suspend writ independent Congress (moot)
h. Ex parte Quirin (1942) (Nazi Saboteurs Case)
i. Eight Nazi saboteurs used German sub to sneak into U.S. with orders to commit attacks
1. At least one of men was American citizen
ii. Roosevelt orders saboteurs to be tried by military commission
iii. Gov’t claimed violated laws of war by crossing military lines out of uniform
iv. Holding: charged w/ violating law of war so military commission upheld
1. Distinguished Ex Parte Milligan by saying it only applied to domestic law
2. Controversial decision
i. Hamdi v. Rumsfeld (2004) (AUMF Case)
i. 1948 Congress passed Non-Detention Act, 18 U.S.C. § 4001(a)
1. “No citizen shall be imprisoned or otherwise detained by U.S. w/o act of Congress
ii. AUMF: week after 9/11 Congress authorized Pres. to “use all necessary and appropriate force
against nations . . . or persons he determines aided in terrorists attacks”
1. Does not define scope of Pres. authority
2. Issued pursuant to WPR
iii. American citizen moved to Saudi Arabia as kid; captured in Afghanistan by Northern Alliance
iv. Classified as “enemy combatant” brought back to U.S. where detained indefinitely
1. Committed treason, but not held on that ground
v. Hamdi claims not enemy combatant; father sues on behalf of son for writ of habeas corpus
vi. Issue: Pres. have authority to detain citizens who qualify as “enemy combatants?”
vii. Holding: O’Connor (plurality opinion); Q1: AUMF authorizes military activity necessary to fight
war against terror  holding enemy combatants “important incident of war” (Ex parte Quirin)
a. If you can shoot Hamdi, then should be able to detain him
2. Q2: Due Process clause of V Amend. does not allow summary detention
a. Minimum required is meaningful opportunity to give his side of story and
challenge gov’t factual assertions
b. Can be intra-executive branch determination as long as independent
3. Can’t be held forever; only for duration of hostilities (active combat operations)
viii. Souter concurrence: Q1: no authority to detain; Non-Detention Act requires clear congressional
authorization for detainment, which AUMF doesn’t provide  Jackson tier-three
1. No extra-statutory authority: Pres. Commander-in-Chief of military, not country
2. Exception: moment of “genuine emergency”
3. Doesn’t reach Due Process Q, but concurs so Hamdi has a chance to get out
ix. Scalia dissent: Q1: AUMF doesn’t authorize detention of citizen w/ clarity sufficient for § 4001(a)
1. Doesn’t matter b/c AUMF not suspension of habeas corpus (Art. I, § 9, cl. 2)
a. Milligan applies here: civilian courts are open
b. Unlike Quirin b/c Hamdi disputing whether he is “enemy combatant”
CONSTITUTIONAL LAW I OUTLINE 43
j.
2. Opinion limited to citizens detained on U.S. soil
a. Adopts old common law view of habeas corpus: relationship b/w citizen and
states, not a jurisdictional Q (hotly debated)
b. May be different if citizen captured and held outside U.S.
x. Thomas dissent: Q1: agrees w/ O’Connor that Congress gave Pres. broad authority in AUMF 
can detain enemy combatants
1. Failure to specifically authorize detentions doesn’t = congressional disapproval (Dames
& Moore)  twilight zone
a. Pres. also has broad discretion in foreign affairs to protect Nat’l security
(Curtiss-Wright), but not necessary to decide Q b/c of AUMF
2. Separation of powers problem: judicial involvement in foreign affairs must be extremely
narrow; determination of whether Hamdi “enemy combatant” for political branches
a. Only limitation is good faith determination by executive
3. Powell: strong resemblance to Harlan in New York Times
xi. Note: four justices believe Pres. lacked authority in circum. to detain Hamdi
Boumedienne v Bush (2008) (MCA Case)
i. Rasul v. Bush (2004)
1. Holding: degree of control exercised by U.S. over Guantanamo Bay is sufficient to trigger
application of habeas corpus rights for foreign nationals
ii. Following Rasul, Congress passed the Detainee Treatment Act (DTA), which provided that “no
court, justice, or judge shall have jurisdiction to hear . . . an application for . . . habeas corpus
filed by . . . an alien detained . . . at Guantanamo Bay
1. DTA also provided for certain procedures for review of detainee’s status
iii. Hamdan v. Rumsfeld (2006)
1. Holding: DTA does not appl.y to pending cases; UCMJ prohibits Pres. from trying war
criminals by military commission unless same procedures as courts-martial use
iv. Congress responded to Hamdan by passing Military Commissions Act of 2006 (MCA)
1. Congress again tried to strip courts of J to hear habeas applications by aliens detained
and classified as enemy combatants; applied to pending cases
v. Issue: has Congress lawfully stripped U.S. courts of habeas corpus J?
1. Axiom of federal law that lower courts have no J unless given to them by Congress
vi. Holding: Kennedy; Suspension Clause applies; “§ 7 of MCA effects unCON suspension of writ”
1. Does suspension clause apply? Yes
2. (1) Gov’t: doesn’t apply abroad, and Guantanamo is outside of U.S.
a. S. Ct. doesn’t reach Q b/c U.S. is de facto sovereign: exercising total control and
own in perpetuity  treated as w/in U.S. for purposes of Suspension Clause
3. (2) Gov’t: doesn’t apply to aliens
a. Habeas corpus isn’t just about satisfying due process standards; it is also
serves a critical separation of powers function
b. Anglo-American experience of balancing overly zealous gov’t and individual
liberty  judicial branch reviewing actions that take away liberty
c. Alien in Chadha allowed to invoke SOP to challenge deportation
4. Does § 7 of MCA deny federal courts power to issue writs of habeas corpus? No
a. Congress didn’t say writ suspended, but rather tried to be “cute” and deny J
i. Powell: suspending writ takes away liberty, Congress should be up front
b. Gov’t didn’t argue § 7 of MCA suspended writ
c. S. Ct. says doesn’t matter if § 7 formal suspension or not as long as DTA review
process adequate substitute for habeas corpus
i. Court doesn’t really explain why a substitute would be adequate
ii. Powell: if going to be formalist and say suspension clause applies, why
not decide whether § 7 of MCA suspends writ?
CONSTITUTIONAL LAW I OUTLINE 44
vii.
viii.
ix.
x.
5. To hold DTA review process is inadequate substitute for writ would come close to
reinstating writ  cuts against purpose of DTA, i.e., denying courts habeas process
a. CSRT also inadequate substitute b/c habeas process isn’t administrative
b. Holmes: “comes from outside, not in subordination to proceedings; opens
inquiry whether they have been more than an empty shell”
i. CSRT is not “from outside”; executive branch following own rules as
authorized by Congress
6. Must give Pres. substantial authority to detain those who pose real threat (CurtissWright)
a. But few exercises of judicial power are as legitimate as responsibility to hear
challenges to being imprisoned by Pres.
Souter concurrence: decision of perseverance; four years after Rasul said habeas available;
detainees still being held
Roberts dissent: CSRTs provide enough due process as required in Hamdi
1. O’Connor in Hamdi: Due Process can be satisfied by intra-executive branch
determination (although dicta)
2. Views writ as “procedural,” not serving SOP function
3. Agrees w/ Scalia that suspension clause doesn’t apply
Scalia dissent: judiciary landing itself in conduct of a war (prudential argument of Bobbitt)
1. Doesn’t think writ historically extended to aliens held abroad
a. Majority admits Q is historically ambiguous
i. Powell: recent scholarship suggests majority could say no
2. Real error is majority’s CON interpretation:
a. Majority: go “clause-by-clause” to see if there is a SOP issue
b. Scalia: clauses themselves not interpreted in light of overall SOP principles
Powell: fundamental disagreement b/w majority and Scalia:
1. Look at CON one-clause after another as opposed to overall meaning?
2. Kennedy: look at overall meaning all time!
a. Examples: federalism and dormant commerce clause
b. Why not with SOP? Jackson tautology in Youngstown = global view of SOP