Constitutional Law Long Outline
I.
INTRODUCTION ................................................................................................................................................... 5
A. HISTORICAL SETTING AND ORGANIZATION OF THE CONSTITUTION ........................... 6
II. JUDICIAL POWER ................................................................................................................................................ 6
A. JUDICIAL REVIEW AND JUDICIAL SUPREMACY........................................................................... 7
Marbury v. Madison (Established Court’s authority for judicial review of federal
legislation and executive ends) ................................................................................................................... 7
Martin v. Hunter’s Lease (SC has constitutional authority to review constitutionality of
state court decisions: since federal law supreme: that means review question of federal
law. Also applies to state legislative and executive action; criminal and civil) ..................... 10
Cooper v. Aaaron (when SC interprets the constitution, that interpretation is supreme
law of the land and binding on everyone)............................................................................................ 12
B. Limits on Judicial Power: Political Questions .......................................................................... 12
Political Question: question one branch can decide without interference from judiciary
............................................................................................................................................................................... 13
Baker v. Carr (1 of 6 factors must be present for question to be non-justiciable political
one. Equal protection claims on state assembly apportionments are justiciable (1 person
1 vote), don’t violate any of factors) ....................................................................................................... 13
Powell v. McCormack (the textual commitment of house being judge of members doesn’t
preclude court from hearing issues about not seating congressmen, only means house
judges the three requirements of constitution, and cannot add more: (ceiling not a floor))
............................................................................................................................................................................... 14
Nixon v. United States (senate has sole power to try impeachments, the courts cannot
review impeachment proceedings) ........................................................................................................ 14
C. Limits on Judicial Power: Case or Controversy and Standing .......................................... 16
Requirements for justiciability ................................................................................................................. 16
Muskrat v. United States (Court will not issue advisory opinions: need a case or
controversy) .................................................................................................................................................... 18
Allen v. Wright (tax breaks segregated school case: to bring suit, P must have real and
individualized injury (not as member of class) that is traceable to the action challenged
and can be redressed by the relief sought: purely ideological Ps will not have standing) 18
D. Congressional Control of Supreme Court Jurisdiction ........................................................ 20
Ex Parte McCardle (Congress may make exceptions and regulations regarding the SC’s
appellate jurisdiction. Does not say congress may strip federal courts in their entirety of
right to issue habeas corpus relief) ........................................................................................................ 21
III. FEDERALISM...................................................................................................................................................... 23
A. The Scope of Federal Power .............................................................................................................. 24
McCulloch v. Maryland Part I (Where the ends is legitimate and within the scope of the
Constitution, all the means are appropriate which are plainly adapted (rationally related)
to that end which are not expressly prohibited) ............................................................................... 24
McCulloch v. Maryland Part II (states cannot tax federal government) ................................... 27
United States v. Comstock (Congress doesn’t have to say what enumerated power an act
is necessary for, just some legitimate interest: rational basis review for laws) ................... 27
B. The Commerce Power: The Early Years ...................................................................................... 28
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Gibbons v. Ogden (ferry case: broad interpretation of commerce and the clause: can
regulate all commercial matters that affect more than one state, as long as regulation
does not violate constitution) ................................................................................................................... 28
Shreveport Rate Case (R.R. rates case: congress can regulate intrastate rates of common
carrier that have substantial effect on interstate commerce) (1914) ....................................... 29
United States v. E.C. Knight Co. (Sugar monopoly: commerce power does not include
power over everything that implicates interstate commerce (manufacture)) (1895) ...... 29
Carter v. Carter Coal Co. (coal worker hrs: commerce power does not include power to
regulate activity just because it effects commerce) (1936) .......................................................... 30
Champion v. Ames (lottery: congress can regulate the transportation of goods in
interstate commerce (lottery tickets)) (1903) ................................................................................... 30
Hammer v. Dagenhart (child labor: commerce power does not include regulation of
interstate goods that affect local activities (production)) (1918) (overturned by Darby)30
C. The Commerce Power: The Middle Years .................................................................................. 31
NLRB v. Jones & Laughlin Steel Corp. (steal unions: Substantial Effects Test: congress may
regulate local activity if that activity has a substantial effect on interstate commerce) .... 31
Commerce to police power: the ends are not important… ............................................................ 31
United States v. Darby (labor standards in shipment: overturning Hammer: effect on local
activity doesn’t matter) (commerce power extends to intrastate activities that
substantially affect interstate commerce) ........................................................................................... 31
Wickard v. Filburn (home wheat: if activity, in the aggregate, has substantial economic
affect on interstate commerce, then it’s under the commerce clause: no need for activity
to be commercial) .......................................................................................................................................... 32
Civil Rights application. 14th amendment only applied to fed, and states. ............................ 32
Heart of Atlanta Motel v. United States (discrimination affects interstate commerce, so
within commerce power) ........................................................................................................................... 33
Katzenbach v. McClung (BBQ case) (congress can compel non-discrimination on
commerce grounds when food provided traveled through interstate commerce) ............. 33
D. The Commerce Power: Recent Cases............................................................................................ 34
United States v. Lopez (guns free school act: Three categories of commerce power: 1.
Channels. 2. Instrumentalities. 3. Activities having substantial affect) (split category 3:
economic can be aggregated, non economic cannot) ...................................................................... 34
United States v. Morrison (violence against women: congress cannot regulate local noneconomic activity if causal chain to substantial effect on commerce is too attenuated.
Findings element gone: probably apply to criminal laws) ............................................................ 37
Gonzales v. Raich (weed growth case: congress can regulate intrastate production and
possession of economic activity that has a substantial impact on interstate commerce: BC
part of a comprehensive scheme that’s within congress’ power. Don’t accept as applied
challenges)........................................................................................................................................................ 37
National Federation of Independent Business v. Sebelius I (ACA under commerce clause:
congress cannot compel individuals to become active in a market, on the ground that
failure to do so affects commerce) .......................................................................................................... 39
Roadmap for dealing with Commerce Clause Questions ....................................................... 40
E. The Taxing and Spending Powers .................................................................................................. 41
Child Labor Tax Case (can tax as long as primary purpose is to raise revenue, not to
regulate through taxation) ......................................................................................................................... 41
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Unites States v. Kahriger (Gambling tax case: without penalty provisions for breach of
activity under regulation of state, court will not invalidate a tax. .............................................. 42
National Federation of Independent Business v. Sebelius II (ACA is a tax: Child labor tax
case problems do not apply to here: complies with tax rules: it’s a tax) ................................. 42
Spending Power: .......................................................................................................................................... 43
United States v. Butler (Hamiltonian view of spending power for the general welfare; but
limited by 10th amendment to not regulate what’s in states power (10th amendment
part no longer followed) ............................................................................................................................. 43
South Dakota v. Dole (drinking age case: Congress can regulate beyond commerce power
through conditioned grant of money) ................................................................................................... 44
National Federation of Independent Business v. Sebelius III (ACA Medicaid: can condition
money so states will take certain action, but can’t regulate through tax. Applies Dole but
coercive.) ........................................................................................................................................................... 45
F. State Autonomy and Congressional Power to Regulate States........................................ 46
National League of Cities v. Usery (no fed min wage on state employees, overruled by
Garcia) ................................................................................................................................................................ 46
Garcia v. San Antonio Metropolitan Transit Authority (fed min. wage. Overruled Usery:
the limitations on federal powers is in having enumerated power, the other limit is
federalist (poltical)). ..................................................................................................................................... 46
New York v. United States (Toxic Waste Case: Fed can’t compel states/local legislators to
enact and enforce a federal regulatory program) ............................................................................. 46
 After NY v. Unites states: Federal Government can’t regulate what it otherwise could
(concurrent interest): if the means is to leave state officials without meaningful choice to
follow regulation ............................................................................................................................................ 47
Printz v. United States (cannot compel state/local executive officers to enforce federal
regulatory program) ..................................................................................................................................... 48
G. Federal Limits on State Power ......................................................................................................... 49
U.S. Term Limits, Inc v. Thornton (states have no power respecting the federal
government that the constitution does not grant) ........................................................................... 49
Preemption ..................................................................................................................................................... 50
Silkwood v. Kerr McGee Corp. ................................................................................................................... 50
H. Federal Limits on State Power: The Dormant Commerce Clause ................................. 51
Dean Milk Co. v. City of Madison (milk case: cannot regulate, even if protecting legitimate
local interest, if there are reasonable non-discriminatory alternatives) ................................. 54
City of Philadelphia v. New Jersey (state laws that discriminate on their face are
presumptively unconstitutional) ............................................................................................................. 54
Camps Newfound/Owatonna, Inc. v. Town of Harrison (Maine Camp Case: Same
definition of commerce applies to DCC as to affirmative commerce power) ......................... 54
South Carolina State Highway Dept. v. Barnwell Bros. (regulation on S. Car. Roads for
trucks was okay bc it did not discriminate) ........................................................................................ 55
Kassel v. Consolidated Freightways Corp. of Delaware (iowa trucking: Safety measure
barely furthered, substantial burden on interstate commerce great=strike down. Most
deferential for safety concerns) ............................................................................................................... 55
Southern Pacific Co. v. State of Arizona (RR LENGTH: INVALIDATED STATUTE BECAUSE
IT IMPOSED A SERIOUS BURDEN ON INTERSTATE COMMERCE: APPLYING PIKE TEST)
............................................................................................................................................................................... 56
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Exceptions to DCC: Market Participant ................................................................................................. 56
South-Central Timber Development, Inc. v. Wunnicke (Alaska timber: when state is acting
as a regulator (imposing conditions beyond their participation) and not just a participant
in a market, the market participant to DCC does not apply) ........................................................ 56
Exceptions to DCC: Congressional Consent ......................................................................................... 57
Prudential Ins. Co. v. Benjamin (insurance tax case: when congress has acted
affirmatively to allow non-uniform treatment: DCC does not apply) ....................................... 57
Decision Tree for Federalism Based Concern ..................................................................................... 57
IV. SEPARATION OF POWERS............................................................................................................................ 59
A. Executive Power: Domestic Affairs ................................................................................................ 59
Youngstown Sheet & Tube Co. v. Sawyer (Steel seizure case: Maj: prez power from
congress or const. presidential assertions of authority in domestic affairs is limited;
Jackson’s concurrence: three catagories of Prez’s power) ............................................................ 60
B. Executive Power: Foreign Affairs ................................................................................................... 61
Dames & Moore v. Regan (Iran cases to admin: history of congressional acquiescence on
similar matters and congressional silence can show implied grant to presidential power.
Foreign affairs) ............................................................................................................................................... 61
C. Executive Power: The War on Terror ........................................................................................... 62
Ex Parte Milligan (if detained without writ being suspended: citizen have right to normal
trial even if writ has subsequently been suspended) ...................................................................... 62
Ex Parte Quiran (unlawful enemy combatants can be denied jury trial and be subject to
military tribunals) ......................................................................................................................................... 62
Hamdi v. Rumsfeld (President can indefinitely detain citizen enemy combatants without
charging them (with congressional approval of military force). But have right to review of
if they’re actually enemy combatants) .................................................................................................. 63
Hamdan v. Rumsfeld (president cannot try non-citizens by military commission (against
Uniform code of military justice) absent congressional approval) ............................................ 64
D. Executive Privilege and Immunity ................................................................................................ 65
United States v. Nixon (criminal privilege: president enjoys a qualified executive
privilege in criminal proceedings: better claim if national security type ething) ................ 65
Presidential Immunity ................................................................................................................................. 66
Nixon v. Fitzgerald (president has absolute immunity from civil suit in official act) ......... 66
Clinton v. Jones (the president is not immune from suit for actions done before he was in
office) .................................................................................................................................................................. 67
E. Congressional Control: The Legislative Process ..................................................................... 67
Non-Delegation Doctrine: congress, which the constitution grants the legislative power,
cannot delegate that power ....................................................................................................................... 67
Whitman v. American Trucking Associations (EPA standards case: Congress does not
impermissibly delegate legislative power if it provides an intelligible principle to guide
the executive delegee) ................................................................................................................................. 68
Legislative Veto: ............................................................................................................................................. 68
Immigration and Naturalization Service v. Chadha (immigration case: legislative veto is
unconstitutional because it violates presentment: here: violates bicameralism as well. All
legislative action must comply with procedure) ............................................................................... 68
Clinton v. New York (line item veto case: it’s unconstitutional because it violates
bicameralism/presentment) ..................................................................................................................... 69
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F. Congressional Control: Executive Officers ................................................................................. 70
Appointments clause: article II sec. 2: ................................................................................................... 70
Myers v. United States (congress cannot reserve role in power to remove officers
(completely unfettered part ruled out)) ............................................................................................... 71
Humphrey’s Executor v. United States (FTC officer case: beginning of indi agencies:
congress can place limits on presidential removal of quasi legislative or quasi judicial
agency officers. Myers restricted to purely executive officers) ................................................... 72
Bowsher v. Synar (comptroller budget case: congress cannot reserve power over officer
doing executive role) .................................................................................................................................... 72
Marrison v. Olson (essentially overrules Myers) (special prosecutor case: 1. Can’t be
incongruity between functions performed by delegating authority and performance of
duty they appoint. 2. Limitation on presidential removal is okay as long as it won’t
substantially interfere with his ability to execute the laws) ......................................................... 73
Free Enterprise Fund v. Public Company Accounting Oversight Board (multi level
protection: not allowed to have two layers of tenure: bc prez cut out of decision) ............ 76
Breakdown (Tree): of removal Power ................................................................................................... 77
I.
INTRODUCTION
Roadmap of Powers
 Federalism: the federal and state governments co-exist
o Limited, Enumerated Powers: powers of federal government are limited to those
enumerated in the constitution
 States have police power
o Separation of powers: each branch has own enumerated powers
 One branch may not take action reserved b the constitution to one of the
other branches
o Congress Commerce Power: congress has power to regulate commerce
 Dormant Commerce Clause: federal commerce power restricts the states from
discriminating against, or unduly burdening, interstate commerce
Standards of Review
 1. Mere Rationalist Standard (easiest connection to satisfy)
o Court holds up governmental action so long as 2 requirements are met:
 1. Government must be pursuing a “legitimate” state objective
 2. There has to be a “minimally reational relation” between the means chosen
by the government and the state objective
 if government not perusing a legitimate state end and rational relation
between the means chosen and the objective: then court will strike down state
action: almost always uphold action under this test
 main problem arise: when a state is violating dormant commerce clause
 2. Strict Scrutiny Standard (hardest to satisfy)
o must meet two requirements
 1. The objective being pursued by the government must be “compelling”
 2. The means chosen by the government must be “necessary” to achieve that
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compelling end
 tight fit between means and ends
 necessary: there must not be any less restrictive means that would
accomplish the government’s objective just as well
o government action will almost always be struck down
 3. Middle-Level Standard (exactly what it sounds like): both requirements between above
two)
o 1. The governmental objective has to be “important”
o 2. The means chosen by the government must be “substantially related”
A.
HISTORICAL SETTING AND ORGANIZATION OF THE CONSTITUTION
History
 America Before the Constitution (Articles of Confederation)
o No Federal Executive or central government
o Congress was powerless
o States fought, minted own currencies, negotiated trade agreements with foreign
nations, taxed products from other states
o Economy was poor/colonies in debt
 Philadelphia Convention
o Small states feared loss of influence/would be outvoted
o States worried that constitution would make the centralized government too
powerful
o So enumerated powers: too prevent trampling on rights (plus bill of rights)
Structure
 Article I: defines power of congress
 Article II: defines power of President/Executive Branch
 Article III: defines the power of Federal Courts
Why not Amend Constitution?
 Retain clean broad principles
 Politically difficult
 Some parts not amendable
 But dead hand problem: bound by old values: undemocratic
 So keep constitution: for principles to stand on, nationalism, self imposed paternalism (don’t
want to be reactionary)
o Binding: bc it was parties of a contract: we’re the parties
o But some old principles: we don’t like: kind of just ignore them (segregation,
flogging, etc)
o So we interpret constitution to reflect our current vales:
o More the values differ: the less respect we give it: interest in being bound
II.
JUDICIAL POWER
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A.
JUDICIAL REVIEW AND JUDICIAL SUPREMACY
Overview of Supreme Court’s Authority
 Supreme Court Review
o Supreme court: and not Congress, which has the authority and duty to review the
constitutionalist of statutes passed by Congress, and to invalidate the statute if it
violates the constitution
 Review of State Court Decisions
o Supreme court may only review state court decisions to the extent that the decisions
was based on federal law
 Federal Judicial Power
o The federal judicial power is set forth in Article III, Section 2 of the constitution
 Includes: (1): cases arising under the constitution or federal statutes (2) cases
of admiralty (3) cases between two or more states (4) cases between citizens
of different states (5) cases between a state or its citizens and a foreign
country or foreign citizens
 Congressional Control of Federal Judicial Power
o Control of Supreme Court Docket
 Congress has the general power to decide what types of cases the Supreme
Court may hear, so long as it doesn’t expand the Court’s jurisdiction beyond
the federal judicial power
o Lower Courts
 Congress may also decide what lower federal courts there should be, and
what cases they may here
Marbury v. Madison (Established Court’s authority for judicial review of federal legislation and
executive ends)
 Facts: Adams was president, appointed Marbury (P) justice of the peace, incoming
prez, Jefferson, chose to ignore them by instructing Madison (secretary of state) (D),
not to deliver charters. P sought writ of mandamus in Supreme Court: to order D to
deliver commission.
o Three questions here
 1. Does Marbury have legal right to job? Yes: signed and sealed, just not
delivered, still had job
 2. If so, does law afford a remedy? Yes: civil liberty gives protection of
legal rights, so has remedy. Law would be meaningless without remedy
 3. If so, is the court authorized to grant that? No (some questions are left
to congress/prez: political questions): basically comes down to: is there
executive discretion? NO… but
 In answer: SC just didn’t have jurisdiction (could only order writs
when acting as appellate court according to judiciary act: but SC
didn’t read it this way, read to give them original Jurisdiction
beyond that of constitution)
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

o Current idea on this: if one reading is unconstitutional and
the other reading is not, then read it as constitutional
Issue: P had legal right to commission, but Judiciary Act of 1789 and the constitution
conflicted as to whether the Supreme Court had original jurisdiction to issue of writs of
mandamus.
o Judiciary Act: authorized S.C. to issue writs of mandamus in cases warranted
by the principles and usages of law, to any courts appointed, or person holding
office, under the authority of the US. (gave original jurisdiction for this in courts
reading)
o Article III of Constitution: “in all cases affecting Ambassadors, other public
Ministers and consuls, and those in which a State shall be party, the SC shall
have original jurisdiction (nothing about writs of mandamus): in all other cases
before mentioned, the SC shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations as Congress shall make.
 Basically turns on what shall means. Here: court says shall means may
only. (if shall meant at least: then congress could’ve given orig. jur.)
 Another Marshell Opinion: reversed this. No longer mutually
exclusive list of original and appellate jurisdictions, bc allowed
state as party to be in appellate jurisdiction (in list of original) too
when it was a federal law (appellate jurisdiction)
Holding: C.J. Marshall: IF THE SC IDENTIFIES A CONFLICT BETWEEN A
CONSTITUTIONAL PROVISION AND A CONGRESSIONAL STATUTE, THE COURT HAS
THE AUTHORITY (AND THE DUTY) TO DECLARE THE STATUTE UNCONSTITUTIONAL
AND REFUSE TO ENFORCE IT
o Application here: treating article III as mutually exclusive (can’t be both),
therefore the Judiciary Act is giving SC MORE power than the Constitution says
it should have (constitution doesn’t say SC has authority of writs of mandamus
within court’s original jurisdiction)
o Reasoning: implicit in the constitution
o 2 questions:
o 1. if statute is against constitution: then must it yield:
 YES: easy question: that’s the whole reason for having a constitution (see
nature of written Constitution)
o 2. Who gets to decide if statute is unconstitutional?
 1. Structure: implicit in the structure of the constitutional that Congress
cannot pass a law that exceeds the powers that congress actually has
 constitution limits powers of federal government (these to first
question)
 2. Institutional logic: does not make sense for a branch to check power
of itself
 even if congress acting in good faith to stay constitutional: will
read it broadly to give self more power
o but: still have bicameral system, veto, and vote
 3. Nature of written constitution: inherent nature of a written
constitution that the limits of constitution trumps all other laws
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

if congress could supersede constitution, no point in having it (to
first question): congress would expand it’s power if could
 4. Judicial function: inherent in judicial function to decide what laws
govern a conflict:
 judges under oath to follow constitution
 and federal question jurisdiction: must interpret constitution to
see what arises under federal law
 5. Textual: commitments in the constitution suggest that courts must
have the power to invalidate a statute. Constitution trumps other laws
by article VI: supremecy clause
 from the supremacy clause and jurisdiction over “all cases arising
under the constitution”
 6. Judicial Expertise: it’s courts job to know and interpret law, therefore
best at determining constitutionality.
 7. Democratic Theory: court is enforcing the will of the people through
the constitution
 people voted to adopt constitution: promoting that opinion by
protecting it
 8. Anti-Democratic theory: constitution protects the minority from
tyranny of the majority, by stating things populous can’t do even if it
wants to
o Counterarguments
 1. Judiciary Act: was passed by members of congress who drafted the
constitution: they didn’t think it was unconstitutional, they made
constitution
 2. Wrong Question: answered the easy question: if statute must yield,
but doesn’t really answer who gets to decide if statute is inconsistent.
 Could also be the president and congress doing together: they
also have vote
 3. Against Text: nothing in constitution that power of judicial review in
courts. There could be plenty of constitutional questions in courts
without judicial review power
 constitution didn’t say judicial review: so why do they get it?
 4. Anti-Democratic: having unelected court make these decisions, don’t
represent will of people, hard to get rid of them, striking down majority
wants
 5. Supreme court is controlling it’s own power here (in judicial act): so
why can’t congress
2 interlocking arguments
o 1. “it is emphatically the province and duty of the judicial department to say
what the law is”
 those who apply the rule to particular cases must by necessity expound
and interpret that rule. If two laws conflict, courts must decide operation
of each: that’s they’re job: legal rather than political judgment
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so supreme court may review the constitutionality of acts of congress
and of president: despite no express constitutional authority to do so
o 2. Constitution is Paramount: very purpose of a written constitution is to
establish a fundamental and paramount law, it follows that any act of the
legislature that is repugnant to the constitution must be void
court essentially waited to do jurisdictional question until the end to give itself power
of review. Also could have interpreted judiciary act narrower: (giving appellate review
of writs, allowed by constitution: and wouldn’t be problematic)


Martin v. Hunter’s Lease (SC has constitutional authority to review constitutionality of state court
decisions: since federal law supreme: that means review question of federal law. Also applies to
state legislative and executive action; criminal and civil)
 facts: Land owned by Lord Fairfax (a loyalist) was seized by Virginia and given to
Hunter. But in Treaty ending revolutionary war, states precluded from seizing land
from Loyalists. Martin, claims got land from Fairfax, so should have land now. Virginia
seizure was invalid bc against federal law. (Supremacy clause: validly enacted treaties
and laws made in furtherance of constitution are supreme law)
o Virginia SC: decided for Hunter: saying seizure was valid. SC found for Martin,
bc treaty supremacy over Virginia law on seizure. Remanded. Vir. SC refused to
obey SC mandate.
 Rationale: if litigation commenced in state court, then up to state court to
say if action violated federal law. Vir. SC had different interpretation of
the treaty.
 Logic (prez can’t veto governor, congress can’t veto state leg.,
same here)
 Holding: J., Story: THE SC HAS AUTHORITY TO REVIEW STATE COURT JUDGMENTS
RESTING ON ISSUES OF FEDERAL LAW
o Rationale: Textual Argument
 1. Federal courts must have either original or appellate jurisdiction over
federal laws: Art II sec. 2 “Judicial power shall extend to all cases under
federal law”
 shall=must: or must at least have jurisdiction over all cases under
federal law
 2. issues of federal law arise in state court (didn’t have lower federal
courts prior to judiciary act, so state courts have to be able to have the
original jurisdiction or else nobody would when SC doesn’t, plus
interrelated claims still happen today)
o and bc of supremacy clause, state law and federal law
might clash, gotta see if fed. Law supersedes state one
 so federal issues in state court
 3. So federal court must have appellate power: or else won’t have
jurisdiction over federal law. That’s against constitution.
 Therefore: must be able to appeal to SC
 VA counter
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
Just create lower federal courts with easy removal. But if wont
listen to federal judges then won’t listen to removal
o Uniformity argument: if Supreme court can’t review, going to have varying
interpretations of federal law
 If follow VA argument: then federal law (including constitution) could
mean different things in VA and MA: which brings back to articles of
confederation
 APPLIES TO TREATIES, FEDERAL STATUTES, AND ANY STATE ACTION
(LEGISLATIVE, EXECUTIVE AND JUDICIAL)): POWER OF JUDICIAL
REVIEW OVER STATE ACTION: TO SEE IF STATE ACTION AGAINST
CONSTITUTION (AND THUS FEDERAL LAW)
 Also applies to criminal cases: Cohen v. Virginia
o Institutional Rational: constitution is premised that states/judges may be bias
for local interests (whole reason for diversity jurisdiction). Also, federal judges
are experts on federal law
 Example: process of federal judge appointment v. state judge elected
 Might cloud decisions for local interests (subject to majoritarian
pressures.
Presidential/Congressional Opposition to the court
 President/Congress: can’t directly defy an order of the court, but can respond in other ways to
check courts power
o At same time: ensure that the court can protect the minority by issuing binding
decisions
 President
o 1. President could voice opposition
o 2. Can exercise prospect of appointment to voice opinion against the court’s ruling
o 3. Take Broad view of Holdings: Prez has to follow courts interpretation of
constitution as binding on everyone
 Justification:
 if narrow view: too many things litigated, SC already answered
(efficient)
 one actor binds everyone, lets ppl know where rule stands
 stops similar unconstitutional action
o justificaitons for Marburry support that: invest power in ct on
these quesitons
o 4. Take Narrow view of holdings: suit is only about the parties, that’s all it binds
 ex: case that says gov must pay for abortions
 narrow view: all gov has to do it pay for the parties
 broad view: gov must pay for all
 congress passes statute: don’t have to pay: broad view:
unconstitutional, narrow view: find, suit just about parties
 justifications
 broad view undemecoratinc
 Dread Scott: took so long to overturn (if bad decision, fucked)
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o 5. Presidential non-acquiescence: just don’t listen (never done but close)
 Hard to enforce against prez. Congress has more impact, and also politically
dangerous for prez to ignore court
 Congress
o 6. Enact statute against the SC holding
 under broad view: couldn’t do: bc SC saying it’s unconstitutional
 under narrow view: could do: bc congress not a party
Cooper v. Aaaron (when SC interprets the constitution, that interpretation is supreme law of the
land and binding on everyone)
 Facts: Governor of Arkansas: saying not bound by Brown v. Board of Education (and
Brown II). School board saying chaos/dangerous: must delay. Desegregation blocked
by governor
 Issue: was governor of Arkansas bound by Brown v. Board even though not a party?
 Holding: WHEN SUPREME COURT ISSUES A DECISION INTERPRETING THE
CONSTITUTION, THAT INTERPRETATION IS SUPREME LAW OF THE LAND AND
BINDING ON EVERYONE
o Rationale: because constitution is binding on everyone, when court interprets
it, just making clear what constitution is saying, so binding in same way clear
language of constitution is. Court ruling is the supreme law of the land, on all
people and all branches of government
 Dickerson v. US: congress can’t pass bill previously declared
unconstitutional
o So broad reading of Marbury is correct: (so as applied to above: can’t do #6, #5
(obviously), or #4)
o but practically: prez gets around by creativity: not subject to same
constitutional rule. But his oath: protects constitution and court’s interpretation
of it now. This is now understanding of courts role: says what constitution says
 when prez/congress fight court: do it in court: overrule case or amend
constitution are only options
B.
Limits on Judicial Power: Political Questions
 is court correct branch to decide the question?
Overview of Justiciability (partly combines next two sections)
 for case to be heard: must be justiciable: series of procedural obstacles
 1. Advisory Opinions: court may not issue opinions based on abstract or hypothetical
questions
o reasoning: constitution limits federal court jurisdiction to cases or controversies
 2. Standing: can hear a case only when P has standing: the P must have significant stake in
the controversy
12
o requires: “injury in fact”: P must show that he himself has been injured in some way
by conduct he’s complaining of
 1. P must show he suffered, or likely to suffer, an “injury in fact”
 2. The injury suffered must be concrete and “individuated”
 3. The action being challenged must be the “cause in fact” of the injury
o prevents litigant from asserting constitutional rights of third persons not before the
court
 3. Mootness: (can’t be heard if moot): a case is moot if events occurring after the filing have
deprived the litigant of an ongoing stake in the controversy
 4. Ripeness: case must be ripe: case is not ripe if it has not yet become sufficiently concrete
to be easily adjudicated
 5. Political Questions: case is for another branch to decide: case is non-justiciable political
question if it raises an issue whose determination is clearly committed by the constitution to
another branch of the federal government rather than to the judiciary
o like impeachment
o Lack of Manageable Standards: case may be non-justiciable political one if there
is no manageable standards to guide the judiciary in deciding that issue
Political Question: question one branch can decide without interference from judiciary
Baker v. Carr (1 of 6 factors must be present for question to be non-justiciable political one. Equal
protection claims on state assembly apportionments are justiciable (1 person 1 vote), don’t violate
any of factors)
 Facts: TE voters said apportionment of Tennessee general assemble violated their equal
protection rights. Bc the lines were drawn 50 years earlier, no longer reflected populations
(some voters thus got more say in legislature than others). Legislature not fixing lines (bc no
incentive to do so), asked court to either direct elections at large or decree an appointment
according to most recent census
 Issue: is this a political question? (current precedent said it was)
 Brennan Holding: 6 factors to consider: each related to separation of powers: AT LEAST
ONE FACTOR MUST BE PRESENT IN ORDER TO MAKE AN ISSUE NONJUSTICIABLE POLITICAL QUESTION
o 1. Textual Commitment: constitutional commitment in text to a branch of
government (congress, legislature)
o 2. Lack of judicially manageable standards for resolving the question
o 3. Policy Determination: court cannot decide the issue without initial policy
determination of a kind clearly for non-judicial discretion
o 4. Avoid Disrespect: for the other branches of the government
o 5. Unquestioning Adherence need: there is a need to adhere to another branch of
government where political decision already made
o 6. Avoid embarrassment/One Voice of Government: the need for the government
to speak with one voice to avoid embarrassment from various pronouncements on a
single issue by different departments of government
 Frankfurter Dissent
o We have two problems
 (3): we first have to make a policy judgment: what does equal protection of
13
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
the law mean? 1 person 1 vote? Or just law applies to everyone? That’s a
requisite policy decision that must be made first. Should be left to elected
leaders
(2): no standard in constitution what to do when voter’s power is diluted
 now we say 1 man 1 vote: but different before, no real standard: it’s
policy question
 Brennen Response: constitution says equal protection: means you get
an equal vote. All you need is calculator. So if constitution says this,
then not a political question: but does constitution really say this?
this is just about the Guaranty Clause: (guaranteeing state republican form of
government): have held implicating this clasue is non-justiciable—
masquerading as 14th amendment claim
Powell v. McCormack (the textual commitment of house being judge of members doesn’t preclude
court from hearing issues about not seating congressmen, only means house judges the three
requirements of constitution, and cannot add more: (ceiling not a floor))
 facts: there was elected member of house, but house refused to seat him. Met qualifications in
constitution to be a congressman (age, location, citizenship).
 House claims: in constitution: “house shall be the judge of its members”: so can decide,
makes it non-justiciable through textual commitment
o court response: that just means house judges age, location, citizenship
o court can still review other reasons for house refusing to seat him.
 Like ethical conduct
 This might be embarrassment to house: but sometimes will be required if
court will protect the constituton
 Holding: CONGRESS’S TEXTUAL COMMITMENT TO BE JUDGES OF ITS MEMBERS
LIMITS HOUSE POWER TO JUDGE THOSE QUALIFICATIONS, NOT OTHER ONES,
AND CANNOT ADD OTHER ONES
o Rational: the constitution lays out specific requirements, didn’t want any more of
them in there. Would frustrate the impeachment clause if they could just get around
it’s requirments by refusing to seat
 The limits are a ceiling not a floor
 The court holds the final constitutional interpretation: interpret it as just
saying these are the only requirements house can judge
 Furthermore: if house refused to seat by saying 28 year old is really 19, then
court might still override them
o But if this is not textual commitment: what could be?
Nixon v. United States (senate has sole power to try impeachments, the courts cannot review
impeachment proceedings)
 Facts: Judge Nixon took bribes and put in jail, but kept collecting salary, must be impeached
from office. Must be impeached by House and convicted by senate to be removed from
office. Senate invoked a rule to: to appoint committee to try judges. They wrote a report,
then all heard testimony from prosecutors and defendants
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


Issue: was the senate rule constitutional? bc “senate ‘shall try’” cases, arguing the rule
didn’t let senate try.
Holding: THIS WAS A POLITICAL QUESTION. COURT CAN’T REVIEW SENATE
IMPEACHMENT PROCEEDINGS. What does court rely on?
o 1. Textual commitment
 senate has the soul power to try cases. Senate decides on plain terms
 BUT: Powell just held opposite for house
 And maybe “sole” just means it’s gotta be in the building
o 2. Lack of judicially manageable standards: what does try mean? “tried” doesn’t give
court standard to determine what a senate trial means.
 BUT: judges whole job to “try” things, how much clearer do you need?
 Also, most of what we prize in constitution isn’t clear standard
o Together: these show it’s not clear what “trial” means: so should be left to senate.
Plus, this is only way to get judges out of office, judicial shouldn’t be involved
White and Blackmun’s Concurrence: should have judicial review to assure senate adheres to
minimal set of procedural standards in impeachment
Souter Concurrance: if senate were to act in manner seriously threatening to the integrity of
decision (just flip a coin): then judicial interference would be appropriate
Where are we left with political Question Doctrine?
 Constitution seems to never give one branch power exlusive power
o Example: judicial review: goes against political question doctrine
 1. Text: Not in the text: but it’s not reviewed: so wtf
 Text doesn’t give real standing
 2. Lack of standard: nothing clear about judiciary power
 Prized provisions are most indeterminate
 Court doesn’t give up judgment: that’s what judicial review is
 1 person 1 vote after carr: much more clear, but not from text
 3. Policy determinations
 equal protection: 1 person 1 vote was policy, same with can’t
discriminate on sex, but can on age, etc
 making policy determinations on theory of constitution: still policy
 constitutional theory itself: seems to be political
 4. Avoid disrespect
 how can court ever strike something down without being disrespectful
 example: president going to war: without congress approval
o if say prez can’t do it: then disrespecting prez (and text as
commander in chief)
o if say prez can do it: then disrespecting congress declaration
of war (and text on war decloration) and standard of what war
is: iffy
 5/6 can help here: need unquestioning: for troop moral,
military credibility, etc
 virtue in flexibility
 5. Need for unquestioning adherence
15
 that’s just against marburry: which held constitution requires nonunquestioning adherence
 6. Avoid embarrassment/need for one voice in government
 again, against whole Marburry holding
 so factors are circular/manipulatiable: but remains the test
o political question doctrine: gives courts the power to punt
 courts attempt to remain a-political: and can say congress/prez must decide
 impossible on some constitutional questions
 court wants to avoid some questions: to retain public acceptance of court
spectrum of political question
 left: complete deference to congress/prez (veto power, pardons, senate impeachment it seems
Nixon v. United States)
 right: no deference (segregation laws by congress; equal protection it seems US term limtis)
 most questions: middle ground
o hypo: if senate flipped a coin on impeachment: seems court would interfere: J.
Suiter)
o wildcard way to punt/be flexible
Complete Deference
No Deference
Political Question (discretionary in exec/leg)
Indi Rights (segregation)
Most things
C.
Limits on Judicial Power: Case or Controversy and Standing
Justiciability Doctrine
 article 3 defines the federal judicial power using the words as “cases” and
“controversies
 this limits the court’s power to hear issue
Requirements for justiciability
 1. No Advisory Opinions (must be a case or controversy) The court has long refused
to render advisory opinions
o Artiticle III: only extends to cases or controversies. With adverse parties
o Court will make better decisions when in the context of actual dispute, between
people with something at stake
o Muskrat v. United States
 2. Ripeness: court will not hear an injury under a statute that is not yet enacted b/c a
controversy has not yet happened: pendency of law that poses a threat to you is not
enough
o Usual way to challenge: violate the law, get prosecuted, then argue as a defense
that it was unconstitutional or otherwise invalid: No declaratory judgments
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

o Two criteria for otherwise
 1. The hardship the P will suffer with or without pre-enforcement review
 The greater the hardship P will suffer: the more likely federal
court will hear case
 2. The fitness of the issues and the record for judicial review
 Does the federal court have all it needs to decide the issue
 Even if you’re hurt by laws potential (like reduces your stock): can’t
bring suit
3. Mootness: if injury to P ends after the case is filed, case shall be dismissed as moot
o Bc if central issue is already moot, parties don’t have a stake in the case and the
court will dismiss it
4. Standing: (the who question) litigant must have significant stake in the controversy
to merit his being the one to litigate it
o Standing: the party asserting the claim must have significant stake in the suit
 This focuses on party, not what’s being litigated. Everything else focuses
on issue
 So question is: what kind of interest in outcome is enough?
 The general interest of a citizen in having his government behave
constitutionally is not sufficient stake to permit litigation
 So individual interest must be more direct and individualized than that
of citizen at large
o Another way (like political question) for court to get out of making a decision it
doesn’t want to resolve
o Requirements
 1. Injury: P must show that he has been or eminently will be personally
injured
 can’t come too far in the future or be too speculative
 a lot of ppl could qualify: litigant must allege the requisite
concrete and individualized harm
o membership in minority group won’t derive standing if
government conduct denigrates that minority group
 ex. abstract stigmatic injury generally caused by
racial discrimination
 2. Traceability: injustice must be fairly traceable to D’s unlawful
conduct
 court not interested in playing with percentages/speculating
 3. Redressability
 favorable court decision for P against D must redress the injury
 if ruling for P without this, then it’s an advisory opinion
 relief being sought, if granted, has a reasonable likelihood of
redressing the injury
5. Not a political question: if one of six factors, can call it a political question
o 1. Textual Commitment: constitutional commitment in text to a branch of
government (congress, legislature)
o 2. Lack of judicially manageable standards for resolving the question
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o 3. Policy Determination: court cannot decide the issue without initial policy
determination of a kind clearly for non-judicial discretion
o 4. Avoid Disrespect: for the other branches of the government
o 5. Unquestioning Adherence need: there is a need to adhere to another branch of
government where political decision already made
o 6. Avoid embarrassment/One Voice of Government: the need for the government
to speak with one voice to avoid embarrassment from various pronouncements on a
single issue by different departments of government
Muskrat v. United States (Court will not issue advisory opinions: need a case or controversy)
 facts: congress thinking about legislation effecting indian lands. Looking for advice on
constitutionality
 requires parties with meaningful stake in the lawsuit
o congress can’t just ask court to resolve legal question, congress can’t authorize court
to do so
 judicial power: IS TO DECIDE CASE BETWEEN PARTIES: LIMITED TO CASES OR
CONTROVERSIES
o congress can’t authorize more: reviewing statute: not a case or controversy
o case: suit institutited in accordance to regular course of judicial proceeding
(adversarial parties)
o controversy: if less: then just a little less comprehensive than case
 court could decide: when Individuals bring suit about the issue
Allen v. Wright (tax breaks segregated school case: to bring suit, P must have real and
individualized injury (not as member of class) that is traceable to the action challenged and can be
redressed by the relief sought: purely ideological Ps will not have standing)
 facts: parents of black children undergoing desegregation sue IRS for continuing tax
exemptions to private schools that discriminate. Want to order a list of non-tax exempt
schools then new policy. Not saying they were trying to go to those schools, or being
discriminated against themselves: just that IRS breached duty to deny tax exemptions to
racially discriminatory schools
o harms asserted: (1) suffering lack of attending desegregated schools (2) harmed by
fact that IRS not executing laws: harmed in that it hurts (1)
 Issue: do they have standing?
 Court: failed standing under article III for 4 reasons
o 1. Docket: if could bring suit for stigmatic injury, too many individuals would have
standing
 anyone that felt racially stigmatized by some government action
o 2. Seperation of Powers
 executive branch: takes care that the law is executed. That’s what P’s are
asking for, not the courts role
o 3. General Grievance: political process is to resolve general grievances, not
individual court proceedings.
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

P can’t sue solely as a citizen interested in making the government follow the
law
 But: political process ran: P not part of majority, didn’t work,
o IRS not doing it’s job even though politically told to
 If the P’s had been denied admission to private schools, they would
have had a cognizable injury. Same question against IRS, but then
could be seen in courts (but then maybe traceability question)
o 4. Stake in the outcome: having a real stake in the outcome makes sure that best
arguments will be presented to the court
 undermines the case/controversy question: they’re outraged but not tangiable
grievence
 BUT: clearly had stake if took all the way to the supreme court.
 Starts with presumption that ideologically driven Ps wont be as
zealous
Requirements for standing
o 1. Injury
 1. their kids are suffering from inability to attend desegregated
schools (bc tax breaks incentivices white parents to send their kids to
white private schools)
o cognizable injury: but then go to traceability problem
 2. harmed by mere fact that government is aiding discriminatory
schools (by IRS not doing duty to deny non-profit status)
o not a cognizable injury: just part of general clause: not denied
entry to schools, just part of class
o 2. Traceability (cause in fact problem)
 since Brown v. Board: seems inability to attend desegregated schools is real
injury
 but: that problem is not traceable to IRS granting tax exemptions: Causation
question
 denying tax exemptions, means less donations, means higher tuition,
means more parents choose public schools instead of moving or still
going to private school
 not traceable: purely a speculative connection between maintaining
tax exemptions and desegregation of schools
 and even if logic holds: would cause judicial branch to interfere with
executive execution in everything
 dissent: line of logic is elementary economics. Denying traceability is
denying the government decision means anything
o 3. Redressibility
 linked to traceability: just speculative that changing IRS policy will redress
the injury, so injury is not redressable by the court
o what must the parents have shown?
 1. That there was enough racially discriminatory private schools receiving
tax exemptions in P’s area for withdrawal of those exemption to make
appreciable difference in the public school integration
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
2. That schools would, if threatened with loss of tax exemption, change their
policies
3. That parents in segregated schools would transfer children to public
schools if the exemption were withdrawn
problem with reasoning in Allen v. Wright: if schools denied status, would have standing
o 1. Injury: denied money
o 2. Traceable: direct
o 3. Redressability: just give them status
o so those regulated have standing, but beneficiaries of regulation do not have standing
 standing doctrine 1 way: can bring suit to stop imposing burdens, but can’t
bring suit to make others be regulated (can challenge over regulation, but not
under regulation)
 promotes court/gov’s roll as protector of liberties
 more likely to have suit for overregulating: so fashion rules to
underregulate
 but then IRS is more responsive to private schools than black families
Court Standing Requirements: not so challenging
 injury: must be actual/concrete: not speculative or hypothetical. Must be imminent
o Bochey Case: White student not allowed into medical school
 Injury: wasn’t let in
 Treaceable: NO: bc other white kids would’ve gotten in before him had there
been no affirmative action
 But since then: affirmative action claims: lost opportunity to compete
for all the spots: allowed
 Redressibility: counts if can show you would get chance to compete for all
the spots
 In the Stevens Dissent: opportunity to have integrated schools: about percentages not
guarentees. Would increase chance of having integrated schools.
 This is another way for court to not see suits they might not want to hear
o But widened standards. Luhan Case: (Scalia) ppl living around powerplant suing bc
managers at plant not being trained well. Injury: more likely accident. Traceable:
(causation) very hard to say this increases likelihood. Redressable: same problem
 Also in that case: congress can’t authorize indis to bring suit if couldn’t
under Allen standard.
D.
Congressional Control of Supreme Court Jurisdiction
To what extent can congress curtail the jurisdiction of the SC, or of the Lower Federal Courts?
 Art. III sec. 2: in all cases not falling within the SC’s original jurisdiction, the SC shall have
appellate jurisdiction both as to law and fact with such exceptions, and under such
regulations as the congress shall make
20

Art. III sec 1: federal judiciary power shall vest in the SC and in such inferior courts as the
congress may from time to time ordain and establish
o So lower courts don’t even exist until congress establishes
o But seems a federal court has to be able to hear a federal claim
Ex Parte McCardle (Congress may make exceptions and regulations regarding the SC’s appellate
jurisdiction. Does not say congress may strip federal courts in their entirety of right to issue habeas
corpus relief)
 Facts: McCardle was imprisoned under military government imposed by congress as part of
post-civil war reconstruction, essentially without trial and for speach. McCardle brought
habeas proceeding under act of 1867, which gave SC appellate jurisdiction over these cases,
claiming reconstruction act under which he was imprisoned was unconstitutional. Denied by
lower court, appealed to SC. After granting cert and hearing argument, congress passed act
of 1868.
 Statute: stripped SC of appellate jurisdiction in certain habeas cases, repealing portion of act
of 1867 which allowed SC appeals of these (Congress really afraid SC would find
reconstruction act unconstitutional).
 Holding: upheld statute: CONGRESS’ RESTRICTION OF SC APPELLATE
JURISDICTION UPHELD BECAUSE SC APPELLATE JURISDICTION IS
CONFERRED WITH SUCH EXCEPTIONS AND UNDER SUCH REGULATIONS AS
CONGRESS SHALL MAKE.
o Rationale: congress granted SC jurisdiction in 1867, did not make exception to the
constitutional grant of jurisdiction. Provision of grant can be expressly repealed. In
constitution pretty clearly.
o Application: without jurisdiction, the court could not proceed on McCardle’s appeal
 But: court could still hear habeas writs through court’s original jurisdiction to
hear habeaus corpus cases, just not appellate (Ex Parte Yeger)
 How to level with Marbury: don’t have appellete jurisdiction, but do have
original jurisdiction, so can still answer the question. Not confronted with
law that makes supreme court unable to hear federal cases, just not on appeal
 Begs question: can congress completely bar ability for SC to hear a type of
case? Never answered
 Art. III sec. 2: might be more about guaranty to jury in certain types
of cases, not about motive. Haven’t answered
Why would congress Strip Jurisdiction?
 CONS
o 1. De Facto Reversal of Supreme Court Precedent: without prospect of SC
review, state court judges can diverge from prior interpretation, not follow precedent
o 2. Essential Functions: congress could strip SC of its powers, then courts’ check on
congress’ actions under the constitution/protection of the minority from tyranny of
majority is eliminated
 BUT: voter check, president check
o 3. Uniformity / Rule of Law: the constitution would mean different things in
different places, seem need court of last resort for circuits too
21
o 4. Anti-Democratic Values: don’t want to leave congress as the sole responsibility
to protect the minority, because they represent the majority
 PROS
o 1. Check: power to strip jurisdiction is an important check on the court’s power
o 2. Democratic Values: since judicial review is undemocratic, we have to worry
about court’s exercise of power
Other methods of Stripping Court of Power: would it be necessary given below checks?
 1. Power of Appointment: president nominates justices
o but difficult to predict how judges will rule / judges take stare decisis and prior
precedent seriously / appointments are nor frequent
 2. The senate must Confirm appointments: senate can check who gets appointed
 3. The Impeachment Process: congress can impeach federal judges
o but it’s difficult (supermajority in senate to convict)
 4. Amendments to the Constitution: article V: can amend
o BUT: only four times it’s been amended (supermajority in congress and states)
 5. Congress can regulate the size of the court/set the time of their meetings: just have
them barely meet. Put a ton of justices in, or just a few
o but public will see as interference with independent judicial branch
 6. The Bully Pulpit: enough attacks on court decisions, can affect future decisions/reversals
 7. The threat of non-acquiescence:
o BUT: people respect court as supreme law, if political branch, public will view them
as lawless
 8. Budget Constraints: can’t diminish a justice’s salary, but can reduce budget of courts
Can Congress Strip the court of all jurisdiction, or not let them hear a type of case at all?
 Never answered
 Textual: “judicial power shall (must) be vested in one court, and lower federal courts as
congress shall grant, and additional power shall (must) extend to all cases arising under
constitution”
o Seems to imply at least SC exists, and must be able to hear cases arising under
constitution
o So seems congress couldn’t deprive all federal courts ability to hear a type of federal
issue
 Congress created lower courts: could destroy them, why not regulate them?
o Federal question jurisdiction: court “shall issue” on federal law
o And courts won political battle: people would dislike congress that stripped court of
power
 But this means court can’t answer too many political questions to maintain
public respect
 Congress has rarely limited SC appellate jurisdiction: but threats to have been effective
 If congress did deprive all federal courts to deprive litigant of right to hear case in any federal
court, that’s probably textually against constitution
o So congress probably can’t deprive federal court of at least some issues (Ex.
bankruptcy)
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III.
FEDERALISM
Overview
 Federal system: US has federal system, in which national government and the government of
states co-exist
 Federal government has limited power: federal government is one of limited, enumerated
powers
o Three branches may only assert those powers specifically granted by the constitution
 “Necessary and Proper Clause”: congressional power to make laws that are “necessary and
proper” for carrying out its enumerated powers
o therefore: if congress seeking an objective that falls within the specifically
enumerated powers, congress may use any means that is rationally related to the
objective being sought, that is not specifically forbidden by constitution
(McCulluch?)
Federalism generally
 Federalism: comes from federation: league of states, decentralized power
o BUT: bc US federalists supported constitution, federalists actually wanted
centralized powers
o Federalism question: about the limits on state and federal gov: mostly about limits
on what federal government can do
 But constitution also supported decentralization: for three theories
o 1. Maximize total welfare by recognizing range of interests
 if national law 50/50 split, 50% of people frustrated
 but if state decides, each state will have majority (in state might be more like
80/20), plus can move states
 experimental laboratory of federalism: each state can have different
sollutions (bc local problems) but also to test
o 2. Promote democratic republicanism
 state/local government more responsive to needs: bc individual influence on
local electorate is stronger
o 3. Promote liberty
 absolute power corrupts absolutely
 can move to get more freedoms
 why centralize
o 1. National Values: don’t let states make decisions on national values (segregation)
o 2. Maximize welfare: uniform rules better for business (articles of confederation
problem)
 free rider problem: externalities (environment); race to bottom (child labor,
taxes)
o 3. Protect liberty: some rights should be all over, shouldn’t have to move to get the
right
 homogeneous units (states) more likely to oppress
 recent history: federal gov. and not states protectors of civil rights
Power Structure
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


A.
federal powers (enumerated)
state powers (police power)
concurrent powers
individual rights: can’t be limite by anyone
The Scope of Federal Power
Enumerated Powers
 Article 1, sec. 8: 18 clauses granting power to congress: including power to
o Lay and collect taxes
o Provide for the defense of the country
o Borrow money on the credit of the US
o Regulate commerce with foreign nations, and among the several states
o Regulate immigration and bankruptcy
o Establish post offices
o Control the issuance of patents and copyrights
o Declare war
o Pass all laws needed to govern the D.C. and federal military enclaves
o Make all laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this constitution in the government
of the US
 Article I, sec 9: limits congressional power
 Article II: power and duties of the president
 Article III: confers the federal judicial power (and gives congress to control SC jurisdiction)
 Amendment specifically give congress the power to enact supporting legislation (14
amendment)
McCulloch v. Maryland Part I (banks case: Where the ends is legitimate and within the scope of the
Constitution, all the means are appropriate which are plainly adapted to that end which are not
expressly prohibited)
 facts: United states banks, constitutionality in question, to regulate currency and solve
economic problems. Maryland enacted anti-bank act to tax banks not chartered by Maryland
(US bank). US bank cashier (McCulloch) refused to pay the tax. Action for statutory penalty
in Maryland state court, appeal for writ of error in SC.
 Issues: (1) could the US create the bank? (2) could Maryland tax the bank?
o Maryland: federal government has enumerated powers. Making a bank isn’t one of
them. 10th amendment: explicitly reserved rest of power to the states.
o C.J. Marshell: Says this is bull: SHOPLIFT
 Structure: look to the structure of the constitution:
 list of powers as basic authority: chartering banks not there
 but: article I sec. 9: limits congressional power: redundant if list is all
congress can do
 10th amendment: drops “expressly” so doesn’t reserve all powers to
states that constitution hasn’t “expressly” given to congress
 History: post ratification
24
 When constitution is ambiguous, look to history to see how it was
treated. Give some weight to historical consensus
 Original meaning/intent: dropped the word “expressly”
 In articles of confederation: “expressly” gave powers, constitution not
 Political Theory: route of declaration of independence
 Power lies with people: gave their power to federal gov
 Power comes directory form the people, not the states
 So states can’t exercise power over all people
o BUT: states just can’t exercise power over all ppl, doent mean
fed can do this
 Logic: think of constitutional government logic
 Must read it broadly: to achieve the ends it was created for
 If list is just a code, then congress can barely do anything
 Institutional role of constitution
 If couldn’t be interpreted, would never be embraced
 Broad details should be filled in or won’t make sense
 Functional argument: think of functional way of achieving enumerated
power
 “raise armies and navies” and “tax” so need bank to be able to collect
tax
 congress must have ability to choose means of achieving enumerated
powers
 to eny: denies congress of its reason for existing
 Text: we the people: people gave power to fed gov
 Dropped “expressly” from articles of confederation
 Intratextual argument: list of powers: why ID limit if these are
explicitly all they can do?
o Marshall Argument 2: “necessary and proper clause” confirms extended powers
 Maryland: might be useful to have banks, but not necessary for regulation of
commerce/taxing/etc
 Textual: necessary and proper is placed in art. I section 8: in list of powers
 Therefore it expands power rather than limiting it (Maryland
argument)
o If it limited powers: it would be in article I section 9.
 So must be enumerated powers imply others
 If necessary and proper only meant absolutely necessary: it would
limit powers already found.
 Intra-textual argument: article I sec. 10: compare the wording
 Sec. 10: what state’s can’t do: “absolutely necessary”
 So if founder meant absolutely necessary: they would have said so
 History: debates: anti-federalists really worried about this clause,
“sweeping”
 MArshell already said greater powers than enumerated (above
argument): doesn’t make sense to limit those be what’s necessary in
granting section
25
o This would undue the “express” problem in articles of
confederation
o Marshell conclusion: “we think the sound construction of the constitution must allow
to the national legislature that discretion, with respect to the means by which the
powers it confers are to be carried into execution, which will enable that body to
perform the high duties assigned to it, in the manner most beneficial to the people.
Let the end be legitimate, let it be within the scope of the constitution, and all means
which are appropriate, which are plainly adopted to that end, which are not
prohibited, but consist with the letter and spirit of the constitution, are
constitutional.”
 In other words: as long as the ends are in it’s powers, the means are
appropriate as long as they’re not prohibited.
 Not absolutely necessary: can’t require absolute necessity, bc if there are two
options for end, neither will be absolutely necessary
Other possibility of deference
 Marshell Test: as long as not explicitly prohibited, if ends are are in enumerated powers,
means are appropriate (almost complete deference
 Middle ground: close relationship between means and ends (not too attenuated a connection)
o If less restrictive means: must do that
o Marshell Response: hampers ability for congress to respond to problem
 Splitting hairs
 Structural argument: determining best way to ends is legislative
determination
 If accept Maryland: calling on court to make policy arguments: political
question
Complete Deference: to legislature/Prez
Political
Question
N+P: almost complete
deference: (rationally
related) protecting
majority interest:
don’t need court
Strict Scrutiny
Free Speech
Restriction:
(goal: moral of
army): but
court would
look for less
restrictive
means. BC
protecting
minority
rights, role of
court
Internal tension being a limited list and a broad interpretation
 Example: post offices and post roads enumerated
 Seems obvious congress can higher postal workers
 Necessary and proper clause
26
McCulloch v. Maryland Part II (states cannot tax federal government)
 Issue II: can Maryland tax the instrument of the federal government?
 Holding: NO: taxing is a concurrent power: there is list of things state can’t tax, this not on it.
o Structural: in constitution, laws by federal government are supreme and cannot be
controlled by states: federal supremecy
 Power to tax is power to destroy: can tax it out of existence, goes against
supremacy clause
o Political Theory: a part cannot impose a tax on the whole: taxation without
representation
 Maryland legislature imposing tax that federal gov pays, all people pay,
taxpayers have no recourse against Maryland legislature.
o Therefore: STATE CANNOT TAX THE FEDERAL GOVERNMENT
United States v. Comstock (civil commitment case: Congress doesn’t have to say what enumerated
power an act is necessary for, just some legitimate interest: rational basis review for laws)
 Statute: allowed district judges to order civil commitment of federal prisoners who might be a
sexual danger: commit for longer sentence. Lasts until state assumes responsibility or
condition improves (we barely talked in class about this
 Challenge: congress doesn’t have the power to enact this
 Rule: “we look to see whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power”
 Breyes: Holding: Within congress’s Power: 5 reasons
o 1. Broad authority of N+P for federal crimes
 already allow federal crimes+prisons, useful to exercise of that power
o 2. Civil commitment: modest addition ot federal prison and health related stuff
 history grounds
o 3. Reasonable extended longstanding civil commitment system
 ppl already in federal custody, as custodian of prisons, can protect nearby
communities
o 4. Statute properly accounts for state interests
o 5. Links between statute and enumerated power aren’t too attenuated
 same powers that justify federal crimes+prisons: justify this
 together: 5 considerations: statute is N+P means of exercising same federal authority that
permits congress to create federal criminal laws, punish violators, provide for them,
maintain security of non-imprisoned who may be effected. So congress is authorized.
o Essentially: federal crimes are rationally related to enumerated power: this is just
small extension of that.
 THOMAS DISSENT: federal crimes rationally related to enumerated power, prisons N+P
for that. But congress can’t look for N+P to carry into execution another law that was N+P
for enumerated power.
o BUT Federal crimes (commerce power): so need federal prisons. Federal gaurds
(probably also N+P to prosecute federal crimes): what about rules for treating
prisoners (N+P for N+P for N+P): this would break Thomas’s rule.
o Arbitrary lines: what McColluch was trying to avoid.
27

B.
BUT: now congress can decide limits on own power: tension with federalism
The Commerce Power: The Early Years
Commerce Power
 Article I sec. 8: congress ahs the power “to regulate commerce with foreign nations, and
among the several states, and with the Indian tribes”
o Rationale: to end hostile state restrictions, retaliatory trade regulations, and
protective tariffs on imports from other states
o Under articles of confederation: congress had no commerce power among states
 This was major extension of federal power
 Purposes
o 1. Acts as a source of congressional authority
o 2. Acts implicitly as a limitation on state legislative power (dormant commerce
clause)
Gibbons v. Ogden (ferry case: broad interpretation of commerce and the clause: can regulate all
commercial matters that affect more than one state, as long as regulation does not violate
constitution)
 facts: NY legislature granted Ogden the exclusive right to operate steamboats in NY waters.
Gibbons operated a steamboat service in violation of Ogden’s monopoly, but licensed by
federal law as a “vessel to be employed in coastal trading”
 issue: is the federal law constitutional? (did congress have authority): if so, it would be
supreme over NY (supremacy clause)
 Marshall Holding: Ogden’s claim was barred because federal statute authorized Gibbons to
operate the steamboat. Federal law is within congress’ authority under commerce clause.
o Rationale: commerce clause is expansive/broad
 Commerce: includes all commercial intercourse, including commercial
navigation and the shipping of goods and people
 Reject Ogden: buying and selling, not navigation
 Original meaning argument: everyone understands commerce to be
more than buying and selling
 Intratextual argument: constitution limits power over ports: so must
have some power over ports to limit that power
 Among the states: “intermingled with the states”
 Narrow reading: between states: transactions at the borders
 Broadest reading: in the states: congress unlimited power to regulate
commerce
 Marshell (middle ground): congress can regulate intrastate matters if
they have an “affect” on states generally
o cannot regulate conduct that is solely conducted within one
state, unless it effects other states
 Regulate: plenary power: to prescribe the rules to which commerce is to be
governed
 Full and complete power to regulate commerce, only subject to
express constitutional limits
28
o Basically rejected 10th amendment as an independent limit on
congress’ power
 Rule from case: (bc of general character of government power): “action is to be applied to all
the external concerns of the nation, and to those internal concerns which affect the states
generally, but not to those which are completely particular to a state, which do not affect
other states, and with which it is not necessary to interfere, for the purpose of executing
some of the general powers of the government.”
o Political reasoning: congress must be able to regulate within states that affect other
states, bc otherwise decision in Ohio that affects PA with no PA political recourse.
o Federalist rationale: national gov to control things that affect more than one state
 Supremacy: when congressional regulation and state regulation conflict, congressional
regulation is supreme.
Economic Regulation Cases: origins of substantial effects test
 Congressional regulation (pre 1937): within commerce power so long as the activities being
regulated had a “substantial economic effect” upon interstate commerce.
Shreveport Rate Case (R.R. rates case: congress can regulate intrastate rates of common carrier that
have substantial effect on interstate commerce) (1914)
 Facts. Congress set R.R. interstate rates. Texas R.R. charged less for in state transport, even
though longer distance. Agency set price for intrastate rates as well.
 Hughes: CONGRESS CAN REGULATE INTRASTATE RATES BECAUSE THEY HAVE
EFFECT ON INTERSTATE COMMERCE
o Rationale: can prevent common instrumentalities of interstate and intrastate
commercial intercourse from being used in intrastate operations to the injury of
interstate commerce (made more expensive to do business with out of state)
o So can regulate discriminatory against interstate commerce
o Applying effects (substance) over form test
United States v. E.C. Knight Co. (Sugar monopoly: commerce power does not include power over
everything that implicates interstate commerce (manufacture)) (1895)
 Facts: PA corporation bought stocks to control whole sugar market in US, considered
essential element of life
 Issue: can congress prevent this through Sherman anti-trust act?
 Fuller Holding: NO: power of manufacture is not commerce.
o Rationale: manufacture involves control of distribution, but that is secondary.
o COMMERCE POWER DOES NOT INCLUDE POWER OVER EVERYTHING
THAT MIGHT IMPLICATE COMMERCE
 Harlen DISSENT: monopoly obstructs buying/selling of articles in interstate commerce.
Remedy is of national government.
o BUT (back to maj.): different from Gibbons: bc that was shipping between states.
 When manufacturing, not yet commerce. When ship it, then commece
 Form over substance test, limiting definition on commerce.
Commerce Prohibiting Technique to extent Constitutional Authority
 Instead of regulating activity directly: regulating sale of it across state lines
29
Carter v. Carter Coal Co. (coal worker hrs: commerce power does not include power to regulate
activity just because it effects commerce) (1936)
 Statute: regulated prices/hours of coal workers and working conditions of coal to be shipped
across state lines
 Sutherland Holding: producing and shipping are two different things
o Producing not part of commerce: local activity
o Rule: CONGRESS MAY NOT REGULATE ACTIVITY SIMPLY BECAUSE IT
EFFECTS INTERSTATE COMMERCE
 Conduct regulated not commerce, can’t regulate activity by regulating the
product of it
 Production is separate activity than shipping
o Form over substance test

Champion v. Ames (lottery: congress can regulate the transportation of goods in interstate
commerce (lottery tickets)) (1903)
 Statute: regulated the sale of lottery tickets across state lines. To stop practice that was
seen as immoral (goal had nothing to do with commerce)
 Harlen HOLDING: commerce clause is plenary, this is literally the regulation of items
being transported in interstate commerce, can be regulated
o States have police power: so can directly regulate. Fed has plenary commerce
power
 Just because this power could be abused: doesn’t mean it’s not proper
 Motivation irrelevant if regulating interstate commerce
Hammer v. Dagenhart (child labor: commerce power does not include regulation of interstate goods
that affect local activities (production)) (1918) (overturned by Darby)
 Statute: prevents sale of goods produced by child labor across state lines
o Means: can’t sell goods across state lines
o Ends: curve child labor
 Holding DAY: to uphold statute would be an invasion of purely local activity
o Distinguishing from Ames: harmful good regulated v. harmful local activity
regulation
o CONGRESS CANNOT CONTROL COMMERCE IF THE EFFECT OF THAT
REGULATION IS ON LOCAL ACTIVITIES
 if allow law like this, nothing left to states: violates 10th amendment
 BUT: congress can’t have power and then not have it from 10th amend.
 Dissent Holmes: this is well beyond Carter Coal, plenary commerce power, can literally
regulate any good in interstate commerce, effect on local activity irrelevent
 Made motivation relevant: trying to reach manufacture by interstate commerce
30
o Can regulate shipment of harmful good (the goal) but can’t regulate labor
practice under that guise
Effects (substance) v. Form Cases (or direct (commerce) v. indirect effect (came before commerce))
 Effects Cases: Gibbons to Shreveport Rate (then switched to forms test)
 Form Cases: E.C. Knight to Carter Coal to Ames (allowed bc literally interstate commerce)
 Hammer: seems to take effects test and flip it
 After Hammer: very strict test, the regulation must be over the actual thing being put into
interstate commerce
o Resulted in Court Packing Plan: court began to change theories
C.
The Commerce Power: The Middle Years
Middle Years: (1937-1995): loosening nexus between intrastate activity regulated and interstate
commerce
Substantial effect…
NLRB v. Jones & Laughlin Steel Corp. (steal unions: Substantial Effects Test: congress may
regulate local activity if that activity has a substantial effect on interstate commerce)
 Statute: NLR Act created NLRB. Regulates corporations ability to discriminate against unions
and discriminatory tactics. Regulates how steel can be produced.
o Corp D: under Carter Coal: regulating labor, unconstitutional
 Hughes Holding: Substantial Affects Test: CONGRESS HAS THE POWER TO
REGULATE LOCAL MATTERS THAT HAVE A SUBSTANTIAL EFFECT ON
INTERSTATE COMMERCE
o Rationale: the power to regulate local matters that have effect on commerce is the
power to regulate commerce. Without that power to regulate things with such a close
and essential relationship with commerce, congress could not regulate congress
 Essentially: regulating local activity with substantial effect is necessary and
proper to regulating congress
 Substantial test: to avoid unlimited national power: if too attenuated power
that regulation would destroy local/national distinction: may not be able to
regulate (10th amendment concern)
o It is immaterial if the regulated activity occurs before, during, or after the interstate
movement of goods
o Application: Jones has interstate network of operations. Hiring and firing not
commerce, but has substantial effect on interstate commerce. So labor relations can
be regulated. Labor strike would have substantial effect on commerce
o Implication that 10th amendment is not an independent limitation of commerce
power (doesn’t matter if goal is for reaching police power)
Commerce to police power: the ends are not important…
United States v. Darby (labor standards in shipment: overturning Hammer: effect on local activity
31
doesn’t matter) (commerce power extends to intrastate activities that substantially affect interstate
commerce)
 Statute: may not ship goods in interstate commerce that were produced by underpaid workers
 Stone Holding: CONGRESS CAN DIRECTLY REGULATE INTERSTATE COMMERCE
REGARDLESS OF EFFECT ON LOCAL ACTIVITIES.
o Rationale: when congress is regulating shipment: literally regulating commerce.
Question is not if congress is regulating labor practice, here is per se commerce
o Adopting effects test: if regulated activity has effect on interstate commerce, can
regulate it. Also, can regulate activity that would undermine congressional ability to
regulate congress
 Relatively small player: has ripple effect (race to bottom or workers demand
equal pay): so regulation on small company has substantial effect
 Rule: COMMERCE POWER EXTENDS TO THOSE INTRASTATE ACTIVITIES WHICH
SO AFFECT INTERSTATE COMMERCE OR THE EXERCISE OF THE POWER OF
CONGRESS OVER IT TO MAKE REGULATION OF THEM AN APPROPRIATE
MEANS TO THE ATTAINMENT OF A LEGITIMATE END, THE EXERCISE OF
ENUMERATED POWER TO REGULATE INTERSTATE COMMERCE.
o 10th amendment not an obstacle: because congress already has commerce power, not
held to states. Motivation doesn’t matter
o therefore: congress can impose whatever conditions it wishes on activities that
substantially affects interstate commerce, unless independent constitutional
prohibition (no review of too attenuated from NLRB)
aggregation of activity…
Wickard v. Filburn (home wheat: if activity, in the aggregate, has substantial economic affect on
interstate commerce, then it’s under the commerce clause: no need for activity to be commercial)
 facts: Filburn was farmer, to prevent enforcement of marketing penalty under agricultural
adjustment act of 1938: put quotas on wheat production. Filburn used excess wheat for
home use
o Filburn argument: his excess production was for home use, therefore it cannot have a
substantial effect on interstate commerce
 Jackson Holding: IF THE LOCAL ACTIVITY, IN THE AGGREGATE, HAS
SUBSTANTIAL (ECONOMIC?) EFFECT ON INTERSTATE COMMERCE, THEN
CONGRESS CAN REGULATE IT
o Rationale: look at aggregation of similarly situated people. Their activity, in the
aggregate, has substantial effect on interstate commerce. Therefore, under
congressional control.
o Question: substantial economic effect, not direct or indirect
o Application: every individual who home grows, doesn’t buy on market. Theirfore,
substantial affect on interstate commerce
 Therefore: commerce power includes local activity that is not commercial
o Applied the rational basis: if congress has rational basis for holding that wheat
production for home use, has substantial affect on interstate commerce
Civil Rights application. 14th amendment only applied to fed, and states.
32


So couldn’t invoke civil rights act under natural justification
Civil rights act art. II: “public accommodations could not discriminate”
o Public accommodation: business that offers to serve interstate travelers or
serves food that travels through interstate commerce
o It seems if congress could do this, could do anything.
 Court: if worry about that: then no civil rights. Show deference.
 Apply Comstock rational basis to commerce power:
 Test: rationally believe that local activity, taken in aggregate, had
substantial affect on interstate commerce
Heart of Atlanta Motel v. United States (discrimination affects interstate commerce, so within
commerce power)
 Facts: owner advertises in and out of state, most patrons are out of state, refuses to rent to
blacks
 Issue: is this commerce?
 Rule: CONGRESS CAN REGULATE LOCAL ACTIVITY IF IT HAS SUBSTANTIAL
AND HARMFUL EFFECT ON INTERSTATE COMMERCE. ENDS MUST BE
RATIONALLY RELATED TO ENDS PERMITTED BY CONSTITUTION
o Application: discriminatory hotel discourages interstate travel, that’s commerce, can
regulate it
o Ends were to end discrimination, but not important (Darby). Rationally related to
interstate commerce
Katzenbach v. McClung (BBQ case) (congress can compel non-discrimination on commerce
grounds when food provided traveled through interstate commerce)
 Facts: restaurant on highway, refuse to seat black people
 Issue: can restaurant that serves $70,000 worth of out of state food from out of state be
regulated by congress?
 Rule: commerce clause: substantial effect. needs rational basis for regulatory scheme
o Application: black ppl spend less money in interstate commerce, so there is rational
basis. Additionally, segregation has overall depressing effect.
o Aggregate businesses: significant impact on commerce
o Motivations do not matter: as long as regulating interstate commerce
 So if restaurant serves food from out of state/travelers: then within commerce power
 Concurring: just under the 14th amendment: but was interpreted as only applying to state
Scrutiny of Commerce Clause authority
 Rational basis: court will uphold a congressional assertion of commerce caluse if congress
could have rationally believed that the activity, when viewed in the aggregate, could have a
substantial effect on interstate commerce
 Judicial restraint: intervene when congress has infringed on individual rights
 Strict scrutiny: is there a compelling governmental interest to address this congressional
action
33
D.
The Commerce Power: Recent Cases
United States v. Lopez (guns free school act: Three categories of commerce power: 1. Channels. 2.
Instrumentalities. 3. Activities having substantial affect) (split category 3: economic can be
aggregated, non economic cannot)
 Statute: illegal to have a gun in a school zone (no requirement it traveled through interstate
commerce)
o Government: guns near school affect interstate commerce
 Rehnquist Holding: THREE BROAD CATEGORIES OF ACTIVITIES CONGRESS CAN
REGULATE UNDER THE COMMERCE CLAUSE. (1) CHANNELS OF INTERSTATE
COMMERCE (2) INSTRUMENTALITIES/PERSONS/THINGS OF INTERSTATE
COMMERCE (3) ACTIVITIES HAVING A SUBSTANTIAL AFFECT ON INTERSTATE
COMMERCE.
o 1. Channels: congress can regulate the channels of interstate commerce: can directly
regulate the sale of goods across state lines or things shipped through interstate
transaction (Champion Case)
 ex. highways,
 routes through which interstate commerce take place: actual interstate
transactions
 the actual interstate trade
 cited Heart of Atlanta (referencing the traveler himself: but seems cat. 2)
o 2. Instrumentalities: Congress can regulate the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat may
come only from intrastate activities
 anything that has at some point traveled interstate
 instrumentalities: things that facilitate commerce (Shreveport Rate)
 Persons or things in interstate commerce: all forms of intercourse that cross
state lines (Gibbons)
 Ex. radio waves, insurance, stock
 Ex. a train or car: can regulate the instrumentalities or things themselves
 McClung: food that went through interstate commerce
o 3. Substantial Affect: congress can regulate activities that have a substantial
relation to interstate commerce
 not enough to say regulated activity just affects commerce. Must
substantially affect
 Application: risk of violence near schools stunts learning, kids learn less, they’re less
productive, affect on interstate commerce.
o But majority: this is too attenuated: gives federal government police power
 If congress can regulate local, non, economic activity then there is nothing
congress can’t regulate (and enumarted powers=congress doesn’t have police
power)
o Rule: CONGRESS CANNOT REGULATE LOCAL, NON-ECONOMIC
ACTIVITY IF IT ONLY HAS A SUBSTANTIAL AFFECT ON INTERSTATE
COMMERCE WHEN VIEWED IN THE AGGREGATE
 Then could regulate family law, everything reserved to states
o If economic activity: use rational basis test
34
o If non-economic activity: look to following four factors (be more vigilant in looking
at them at non economic activity)
 1. Jurisdictional elements: specific kind of jurisdictional elements
 categories 1 and 2: automatic. But in 3, look for piece connected to
interstate commerce
 2. Findings
 no findings necessary to show connection (if economic, rational basis)
 but explain what congress is doing
 3. Attenuation:
 inference after inference, maybe too attenuated
 when non-economic activity: more vigilant with attenuated arguments
 4. Traditional Areas of State concern
 family law/edu policy/crime: traditional areas of state control
 make sure congress doesn’t completely take over laws
o claim not overruling Wickard: Economic v. non-economic. But Lopez could have
argued local gun possession impacts interstate market of guns.
 Congress could definitely regulate buying and selling of guns
 Breyer DISSENT: apply rational basis test: could congress believed, viewed in the aggregate,
that the regulated activity could affect interstate commerce. When you do this, nothing
congress can’t control: so enumerated now irrelevant.
o Past: showed judicial restraint for good reasons. Might want limit, this is an odd one,
no longer using rational basis test of McColluch
Question now: should court limit congress’ power: when it exceeds enumerated power
Court protecting state rights (Lopez Majority)
 1. Institutional logic
o Congress won’t find any self imposed limits
o Judicial expertise
 2. Precedent
o Courts have always had the last say
 3. Protection of Liberty
o Ppl more free when states decide for self
 4. Conventional Arguments
o If accept judicial review: it should be courts job to limit congress on federalism issue
o But for years: court gave huge deference
Congress Deciding Self (Breyer Dissent)
 1. Presidential veto
o prez can always veto if goes to far
 2. Political safeguard
o can always vote ppl out
 3. History of state’s rights
o individuals need protections, not states
o and states rights have been asserted for pretty terrible things
 4. Institutional competence
o congress can have hearings, reports, evidence. Courts limited
What’s different about federalism
35
 1. History
o invocation of states rights: guise for right to choose distasteful stuff
 2. Political safeguards of federalism (central issue)
o our system already does a good job regulating (vote, veto)
o with individual rights: minorities fucked without court. With states rights, nobody is
a minority
 3. Institutional competence
o congress better for economic questions: hearings, etc
Changes through history
 1787: ppl could not directly elect president or senators, so need to retain safe rights
 today: more direct election of Washington
 1787: ppl could only live in one place, anything they interact with was local
 today: everything you buy is in interstate commerce. Every in state event has out of state
ripple
Three ways to respond to changes
 1. (Thomas/Scalia Dissent): congress’ power to regulate commerce is frozen at 1787 level
 2. (Reihnquest (maj) and Souter) Congress must reach new things today than it did in 1787
because the world is different. But it would be inconsistent with constitutional principles to
have unlimited congressional power
o look to role of original understanding
 3. (Breyer/Souter): World has changed, everything has effect on interstate commerce.
Congress can regulate interstate commerce. So congress can regulate almost anything
o in a way original though: bc still gives some limit in spite of text. High level of
generality that constitution has limits
This comes down to fight between originalism v. non-Originalism
 Originalism Rationale (tend to be conservative, bc we were more conservative in 1787)
o Judicial constraint: don’t want judged to find what they think should be in
constitution
o Consistency of law: if constitution changes without amendment: then no certainty
for ppl or regulators (what law really means): to change it, not faithful to ppl who
enacted
o Democratic values: constitution ratified under particular meaning, undemocratic to
just change it
 Rejecting laws on constitutional grounds: anti-democratic
 Non-Originalism Rationale (tend to be liberal, but can produce conservative results)
o Flexibility: framers wanted a flexible constitution for evolving values
o Legitimacy
 If followed all original meaning, nobody would find constitution legitimate
 Alabama could say public flogging is fine.
 Original meaning of 14th amendment: Brown v. Board wrong
 Find constitution legit bc we change it
 Indeterminate: constitution is not specific enough (like due process question)
o Originalism would make judges find bogus historical support
 Anti democratic needs
o Protecting minority in area constitution silent on, or really against
In individual rights context: originalist judges say courts need restraint (not expanding constitution)
36
but in federalism, say judges need judicial intervention to limit congress power (bc time of
constitution, Fed had limited powers)
 Example: GTA is punishable by death (statute): challenged on cruel and unusual punishment
o Originalist: no grand theft auto at the time, so look at similar rules (horse taking)
o Higher originalist: that’s generalizing, not original
o Non originalist: cruel and unusual evolves: societal changes on what’s cruel
 Look at common law interpretations, pros and cons, apply
 Or what’s “unusual”: what do other countries do?
United States v. Morrison (violence against women: congress cannot regulate local non-economic
activity if causal chain to substantial effect on commerce is too attenuated. Findings element gone:
probably apply to criminal laws)
 Statute: violence against women act. Everybody who has been victim of gender motivated
crime can bring civil suit in federal court. P was raped by football players
o D: the statute was beyond federal power
o United States: defended statute on ground that in the aggregate it had a substantial
affect on interstate commerce
 Rehnquist Holding: Lopez rule (that regulation of economic activity not under fed. Power just
bc in the aggregate it has a substantial affect on interstate commerce) not a categorical rule
o Jurisdictional element: means when statute itself is limited to things that affect
interstate commerce
 App: here there was no jurisdictional element (but still probably important)
o Findings: there had been lots of findings on substantial economic effects: costs
economy 5-10 billion dollars a year
 Court: too attenuated a connection: CAN’T REGULATE LOCAL NONECONOMIC ACTIVITY IF CAUSAL CHAIN TO SUBSTANTIAL
AFFECT IS TOO ATTENUATED.
 Ignores congressional findings, bc otherwise congress could regulate
anything. Inconsistent with limits on federal power (and traditional state law
matters: family law, murder, etc)
 Findings are worthless: even though in Lopez, seemed findings would
make court pass statute
 Seems to echo formalism of 1930s (manufacturing doesn’t count as
commerce: here: economic v. non economic activity)
 A substantial effect, in the aggregate, in interstate commerce cannot be based
on non-economic activity
 Suggests that Lopez rule will be major obstancle when congress uses
commerce power to regulate conduct that is non-economic
Gonzales v. Raich (weed growth case: congress can regulate intrastate production and possession of
economic activity that has a substantial impact on interstate commerce: BC part of a comprehensive
scheme that’s within congress’ power. Don’t accept as applied challenges)
 Statute: California law: can grow weed at home with doctor license for home
consumption. Conflicts with federal law against growing weed (at all)
37



o Previous cases: fed. Statute that might be beyond commerce power. Here:
challenge how federal law is applied: challenge was that constitutional law can’t
be applied to me (in home growth/use of weed)
 Regulation of drugs: clearly under commerce (intrastate drug
use/production/sale has a substantial affect on interstate commerce)
o US defends: in the aggregate, regulation of local activity that has substantial
affect on interstate commerce
o So issue: is the regulated activity economic?
 Once it’s economic: standard: if viewed in the aggregate, has substantial
affect on interstate commerce. Certainly is rational basis to find home
growth of weed will affect interstate commerce (won’t buy on market)
o Rule: congress can regulate purely local activities that are “economic” and have
substantial affect on interstate commerce when viewed in aggregate”
Stevens Holding: look to what the C.S.A. does: regulates the commodities of interstate
drug sale. Production, distribution, consumption of commodities with lucrative
interstate market is economic activity
o Exception for locally cultivated weed for personal use would have substantial
interstate market impact, undermine orderly enforcement.
 Unlike Lopez or Morrison: the challenge is to individual application of
valid statute: courts don’t have power to excise individual instances of
validly controlled substance
 Unlike Lopez or Morrison: these activities are economic: production,
distribution, consumption of commodities in interstate market
 Therefore, since CSA is economic regulation as a whole, this application
of it is constitutional
o Why is it economic?
 1. There will be effect on the commodity’s market: since users wont have
to buy on the market
 2. The CSA regulated the production, distribution, and consumption of
commodities for which there is a lucrative interstate market
o prohibiting intrastate production and possession of an article of commerce is
rational means for regulating commerce
 providing exception would undercut the scheme of CSA
 so appears as applied challenges difficult, bc look at regulation as a
whole now.
conclusion: CONGRESS CAN REGULATE PURELY INTRASTATE ACTIVITY THAT IS NOT
ITSELF COMMERCIAL, IN THAT IT IS NOT PRODUCED FOR SALE, IF IT CONCLUDES
THAT FAILURE TO REGULATE THAT CLASS OF ACTIVITY WOULD UNDERCUT THE
REGULATION OF THE INTERSTATE MARKET IN THAT COMMODITY.
Scalia CONCURRANCE: this is part of the N+P clause: necessary to achieve goals of
constitutional scheme. N+P clause is what allows commerce to regulate intrastate
activity. It’s necessary for interstate regulation.
o Congress can regulate noneconomic, local, and intrastate activity if that
regulation is necessarily part of a more general regulation of interstate
commerce
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
O’Connor DISSENT: Activity is not commercial: non-economic, cannot be regulated
o Marijuana not been in stream of commerce, not bought or sold
o From decision: federal regulation of local activity is immune to commerce
clause challenge bc congress chose to act with ambitious, all encompassing
statute
o Everything could be economic: staying at home and playing charades, economic
bc you’re not buying movie tickets (Which is economic activity)
National Federation of Independent Business v. Sebelius I (ACA under commerce clause: congress
cannot compel individuals to become active in a market, on the ground that failure to do so affects
commerce)
 Statute: 2 relevent pieces. (1) requires insurance companies to engage in commercial
transactions with ppl they normally would not (2) individual mandate: everyone must
have insurance.
o 1. Not challenged. Prohibition of pre-existing rejection. No dropping ppl: fine
under commerce power: economic activity, substantial affect
o 2. Individual mandate: everyone must have some insurance. $700 fine if you
don’t. added because with (1): incentive to just not get insurance and wait until
sick. Free rider problem.
o Challenge: in exceeds congress’ power to compel people to engage in commerce
they otherwise wouldn’t.
o Easy case? From Gonzales: congress can regulate local economic activity, if in
the aggregate it has substantial affect on interstate commerce.
 Application: if don’t have insurance and want treatement you go to the
ER (economic), sell alternative medicine (econ), ask family for money
(economic), public health clinic (economic). And buying insurance:
economic.
 Holding Roberts: Power to regulate presupposes economic activity to be regulated (not
power to create it)
o “THE INDIVIDUAL MANDATE DOES NOT REGUALTE AN EXITING ACTIVITY, IT
COMPELS INDIVIDUALS TO BECOME ACTIVE: ON GROUND THAT FAILURE TO
DO SO WILL AFFECT COMMERCE”
o 1. There is no commerce market to “regulate”
 power to regulate commerce means there must be an activity to be
regulated
 BUT: not getting insurance is just self insure: lots of economic
consequences: economic decision
 BUT 2: why does this matter? Lots of powers where congress
compels us to do things (draft, census, jury duty): why should
commerce be different?
o Even if commerce power alone not enough, under N+P
clause? Either from majority or concurrence of Gonzales
 Congress can regulate local activity, if left
unregulated, would undermine broader regulatory
scheme (Gonzales)
39
Individual mandate: just reasonable means of
exercising that power as part of scheme (bc
mandate is necessary for the scheme to avoid free
rider problem)
o Roberts: N+P clause just authorizes congress to carry into
power something it otherwise can do. Nothing in
commerce clause allows someone to buy things. So
nothing for N+P to predicate on
o BUT: pre-exiting condition things: is predicate, within
commerce power: mandate is necessary to carry that into
power.
o 2. If congress can compel you to purchase, then can do anything
o “INDIVIDUAL MANDATE VESTS CONGRESS WITH THE ABILITY TO CREATE
THE NECESSARY PREDICATE TO THE EXERCISE OF AN ENUMERATE POWER”
 Gov: 2 responses. (1) healthcare is different than buying other things,
everyone is already iengaged in healthcare market. (2) congress can
already force us to buy things: social security: same thing
 and political check: unlikely congress would start compelling us
to buy things.
 Roberts: Congress is not permitted to tell us what to do under
commerce clause:
o this was more of an individual liberty issue than a commerce issue. But since
1937: courts weren’t intervening with laws that forces ppl to enter contracts
 court wouldn’t intervene unless it was violation of constitutional right
 BUT: Katzenbach v. McClung: forced sale: distinguish: BBQ already
selling, just telling them who they must sell to. BUT: ppl not buying
health care seem to still be engaged in market (self insured)

Roadmap for dealing with Commerce Clause Questions
1. Does the statute regulate the “channels of interstate commerce”? (actual trade between
across states; highways, mail, maybe even intrastate R.R. (champion v. Ames) or interstate
activity then shipped (Darby))
 Yes: likely upheld (but Lopez/Morrison: don’t explain if any scrutiny here)
o Ex. Champion v. Ames: regulating the actual shipment of lottery tickets
 No: move on
2. Does the statute reguatle the “instrumentalities of Interstate commerce” or “person or
things in interstate commerce”? (ex: trucks, a RR (Shreveport Rates: maybe here) (or things to
be shipped, or that have been shipped)
 Yes: likely uphold
o Ex. guns free school zone act: redone to only include guns that went through
interstate commerce. Then should be fine
Now in substantial affects land
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3. Does the statute compel a commercial transaction?
 Yes: likely invalid (Sebellius): but don’t know how broad this is
 No: move on
4. Is the local activity economic?
o defining economic is difficult. Possession seems not to be, but eating wheat yourself
may be (Wickard v. Filborn)
 Yes: 4.1: Did congress have a rational basis for concluding that the regulated activity, in
the aggregate, has a substantial affect on interstate commerce
o Yes: likely uphold (Darby, Raich, Wichard (high water mark)
o No: probably never gonna be no: (McColluch): but if so utterly attenuated, possible
it’s bad
If not Economic…
5. Is the regulation part of a “comprehensive scheme” that would be undercut without
regulation?
 Yes: likely uphold (Reich: need regulation of local cultivation for scheme)
 No: move on (Lopez/Morrison land)
6. Look at the following factors
 1. Is there a jurisdictional element? does it only apply to cases that affect commerce?
o Yes: more likely to uphold: but then probably back at top
 2. Are there congressional findings: saying the activity related to regulation of
commerce?
o Yes: more likely to uphold (Lopez): BUT Morrison doesn’t matter
 3. Is regulation an area traditionally reserver to state power?
o No: more likely to uphold
 But after Lopez/Morrison: these might not really matter. Can’t regulate local noneconomic activity even if in the aggregate it has a substantial affect on interstate
commerce
o If Hypo statue regulates interstate transaction: stop near top. Exam gonna be
near bottom.
o Only statutes overturned: Gun Free School Zones Act (Lopez); violence against
women act (Morrison); ACA (Sevillius)
E.
The Taxing and Spending Powers
Article 1: sec 8: taxing power: “congress can tax… for the general welfare
 Congress can also regulate through taxing
Child Labor Tax Case (can tax as long as primary purpose is to raise revenue, not to regulate
through taxation)
 Statute: 10% tax on plaes that use child labor
 Intent: same thing as Hammer
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 Court: exercise of taxing power will be upheld if primary motivation is raising revenue, but
won’t be upheld where primary motivation was regulation through penalty
o At least when congress doesn’t have power through another way
o Application: this is basically just a find. In Hammer: couldn’t place $1,000,000 fine,
so can’t place million dollar tax
o Tax will be struckdown if just to regulate through penalty
 But will be upheld, if to raise revenue, even if it has incidental regulatory
affect
 Presense of extensive penalizing features indicated primary purpose was to
regulate, therefore tax invalid
 This limit mattered more when commerce power was low. Now wider commerce power, tax
limits probably lessoned
Ex: gas tax: people will keep getting gas, raises a lot of revenue. Purpose matters, but difficult to
figure out. Congress could be trying to dissinsentivice driving
Unites States v. Kahriger (Gambling tax case: without penalty provisions for breach of activity
under regulation of state, court will not invalidate a tax.
 Statute: taxed bookies, engaged in illegal activities in most states
 Challenge: just attempt to make illegal something left to states: just taxing a business
they don’t have power to regulate. The motive is o surpress wagering: not proper use
of tax power: just a penalty
 Court: PENALTY PROVISIONS IN TAX STATUTES ADDED FOR BREACH OF A
REGULATION CONCERNING ACTIVITIES IN THEMSELVES SUBJECT ONLY TO STATE
REGULATION HAVE CAUSED COURT TO DECLARE ENACTMENTS INVALID. UNLESS
THERE ARE PROVISIONS, EXTRANEOUS TO TAX NEEDS, COURTS WITHOUT
AUTHORITY TO LIMIT EXERCISE OF TAXING POWER
o Here: no such penalties: valid tax.
 Jackson Concurring: all tax has social determination, here, just plan to tax out gamblers
that haven’t been prosecuted. Approaching constitutional limit
 Frankfurter Dissent: when tax power used to matters not within congressional power,
court cannot shut eyes to tax obviously disguised to control conduct left to states
National Federation of Independent Business v. Sebelius II (ACA is a tax: Child labor tax case
problems do not apply to here: complies with tax rules: it’s a tax)
 Statute: individual mandate: pay amount calculated by income/cost of care if don’t get health
insurance
 Issue: is it a valid tax?
 Rule: apply Child Labor Case problems to this case
o 1. Does the tax impose an exceedingly heavy burden
 here: no
o 2. Is it an imposed exaction only on those who break a regulation: (state of mind
requrment
 scienter requirement: typical of punitive statutes (penalty part)
 here: no
o 3. Tax was enforced by department of labor
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 here: iIRS
 Here: same analysis:
o 1. Burden: more or less price of insurance: financial decision to pay or not
o 2. No scienter requirement: not a penalty
o 3. Collected by IRS: looks like a tax
o Rule expanded health insurance coverage: every tax is in some way regulatory
 “if penalty means anything, it means punishment for unlawful act or
omission”
 here: no such punishment, failure to get insurance is a choice: you just pay
IRS
o still complies with other tax rules:
 1. Penalty: no
 2. Capitation (on everyone) taxes must be proportionate (if direct tax, must
be proportional)
 here, not a direct tax: only on those who choose not to buy
 3. Tax for omission, rather than act: not a limit constitution places
o power to tax wider than commerce power: congress can influence conduct through
tax: can’t be punitive, but this is a tax (limited, reasonable amount)
 DISSENT: by its terms, statute says if you pay if don’t follow regulation. So this is
punishment for not following term. (maj. Not punishment bc it’s a choice: just complying)
Spending Power:
 Article I section 8: congress may “lay and collect taxes… to pay the debts and provide for
common defense and general welfare of the United States”
Two Questions Important
1. Can congress rely on spending power to accomplish things not in commerce power?
2. Can congress grant money to states to make states regulate in terms of federal policy
On first question
United States v. Butler (Hamiltonian view of spending power for the general welfare; but limited by
10th amendment to not regulate what’s in states power (10th amendment part no longer followed)
 Statute: agricultural adjustment act, sought to raise farm prices by cutting back agricultural
pro
 Issue: is this under the spending power?
o Three possible interpretations of the spending power
 1. Granting View: As long as making law for general welfare (everything
congress does): they can make any rule
 treats “provide for general welfare” as another enumerated power
 2. Madisonian View (narrowest holding):
 “provide for general welfare” is preamble for enumerated powers to
follow
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 there is no independent authority in the spending power: just confirms
spending for enumerated powers
 3. Hamiltonian View (middle ground: adopted): congress can spend for the
general welfare even if congress could not achieve direct regulation through
enumerated powers
 Court: adopting Hamiltonian View: BUT: CONGRESS CANNOT USE SPENDING POWER
TO REGULATE SOMETHING RESERVED TO THE STATES
o so 2 restrictions on spending power: (1): for the general welfare (2) not used to
coerce action left to state control.
o “If the expenditure is for a national public purpose, that purpose will not be thwarted
because payment is on condition which will advance that purpose”
o Application: congress can do more with spending than enumerated powers, but the
10th amendment reserves everything not in enumerated powers to the states
 So congress can spend for the general welfare, unless it’ll achieve a goal
outside of enumerated powers: really adopting Madisonian view
 So congress can spend money, but not attach conditions
o Today: still good law for Hamiltonian view, but not followed to 10th amendment
 BUTLER DISSENT: threat of loss rather than hope of gain is mark of coercion
On Second Question
South Dakota v. Dole (drinking age case: Congress can regulate beyond commerce power through
conditioned grant of money)
 Statute: if states want all of highway funding, must change drinking age to 21
 Court: could probably pass this rule directly (commerce power): but might not be able to
under 21st amendment: maybe reserves states exclusive control of alcohol sales
 Rule: accepted Hamiltonian view: EVEN IF CONGRESS CAN’T REGULATE USING
COMMERCE CLAUSE, CAN SEEK TO REGULATE THAT AREA THROUGH
CONDITIONED GRANT OF MONEY
o Limits
 1. Must be in pursuit of general welfare
 defer to congress: no real limit
 2. Must be unambiguous: condition must be clear, not implied
 court could interpret if ambiguous, but don’t want states to
accidentally lose funds
 3. Germaneness: condition imposed must be germane to purpose for which
congress approved spending program to begin with
 drinking age relates to road safety: crossing state lines to drink
 4. Independent constitutional bar: can’t violate another provision of the
constitution
 can’t condition money on violating constitution: can’t justify state
violation of constitution: no real limit
o remember: that NY v. US/Printz would not be independent
constitutional bar: because you’re not compelling: because if
you’re are compelling: then spending would be bad anyway
(#5).
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
5. Coercion: can’t cross line between inducement to coercion.
 App: 5% cut not coercive: states have genuine choice
 Question of degree
 But every state accepted: maybe just means made that choice
 Justice Stone: threat of loss, rather than promise of gain, means
coercive
o O’Connor DISSENT: Germaneness grounds: both under and over inclusive
 Under: fails to apply to over 21 year old drivers: threat remains on roads
 Over: applies to ppl under 21 who don’t drive
 Her requirements: can say how to spend money, but nothing more. Example:
must use to pave highways, or higher cops to administer breathalyzers
National Federation of Independent Business v. Sebelius III (ACA Medicaid: can condition money
so states will take certain action, but can’t regulate through tax. Applies Dole but coercive.)
 Statute: ACA: expanded Medicaid. Where fed. Gov pays states in exchange for covering ppl.
ACA expands number of ppl covered, will pay 100% costs for 2 years, then 90%. If states
didn’t accept, they would lose all their Medicaid money (10-15% of budgets)
 Issue 1: Within the Dole limitations?
o 1. General welfare: deference, but this definitely fits
o 2. Clear statement: conditions were very clear
o 3. Germaneness: law telling states how to spend money for insurance
o 4. Independent constitutional bar: in every act (previous parts of case)
o 5. Coercion: “FEDERAL GOVERNMENT MAY NOT COMPEL THE STATES
TO ENACT OR ADMINISTER A FEDERAL REGULATORY PROGRAM”
 can condition money so states will take certain action, but can’t
regulate
 it’s coercive: “conditions that do not here govern the use of funds
cannot be justified on general welfare upholding basis”
o threatening to take away old money, instead of new money.
Threatening to terminate independent grants.
 “change in kind” v. “change in degree”
o Medicaid was to held neediest: this is to help socialize
medical care. So this was change in kind, you’re fucked.
 Roberts Holding: taking away 10-15% of the budget is coercive
 The amount was just too much to turn down. Can’t sit out on Medicaid
for a year while they decide.
 Application: this was coercive because it forced states to join new program or
lose old money.
 BUT: seems you culd just repeal Medicaid, reenact it with this
attached
 Court: just severed the part about losing money from the bill. Now states
have more obvious choice.
 Government argued: just a modification. But that just slightly altered
categories, this is huge shift.
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F.
State Autonomy and Congressional Power to Regulate States
National League of Cities v. Usery (no fed min wage on state employees, overruled by Garcia)
 Statute: federal minimum wage, applying to state and local government employees.
 Court: it is unconstitutional under the 10th amendment
o Although fair labor standards act constitutional under commerce clause: court held
there are carvouts that congress cannot reach because of general concerns of state
soveirengty under the 10th amendment
o Invalidated the application of minimum wage to state employees
o Application: if force wages, then states no longer have soverieignty. Must raise
taxes, can’t decide how money is allocated.
o Look at traditional roles
Garcia v. San Antonio Metropolitan Transit Authority (fed min. wage. Overruled Usery: the
limitations on federal powers is in having enumerated power, the other limit is federalist (poltical)).
 Statute: same as above. Fair wage and standards act applied to state/local gov
employees.
 Court won’t look for traditional areas of state control; structure of federal government
protects state’s rights.
o Political safeguards: federalism protects states from obstructive legislation:
they have representatives.
o Political theory: can not reelect congress if too many burdens
o States Rights generally: don’t need same protection as individual rights
 AS LONG AS THE FEDERAL PROVISION FALLS WITHIN CONGRESS’ ENUMERATED
POWERS (COMMERCE CAUSE), CONGRESS HAS THE POWER TO ACT, REGARDLESS OF
STATE SOVEREIGNTY CONCERNS (10TH AMENDMENT)
Now there appears to be no way to limit federal authority over states, but below
New York v. United States (Toxic Waste Case: Fed can’t compel states/local legislators to enact and
enforce a federal regulatory program)
 Statute: to control disposal of radioactive waste. No state wanted to hold it. Statute had three
parts.
o 1. Monetary incentive: can charge more for waste outside of state coming in
 approved: have a choice
o 2. Access incentives: can deprive producers in other states access to dump
 approved: have a choice
o 3. Take title provision: if state didn’t make a plant, state takes title of waste, and
liable for what happens with waste
 within Federal Authority? Yes. Economic transaction, in aggregate, has substantial affect.
And also probably in category II as well. So congress can regulate: could create federally
mandated waste dumps. Instead, wanted to leave to the states
 Court: Take title provisions forces state’s hand, so beyond federal power. Alternatives for
state: both unconstitutional for fed. To force state to do
o 1. Take title to waste: no difference than congress commendearing state in service of
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federal regulatory purpsoes
o 2. Force them to make waste site: also commendearing state to do federal bidding
o since fed couldn’t do either individually: can’t leave only this choice
o why?
 1. Accountability: state official blamed for federal official act, despite no
choice. Hard for voters to tell who’s at fault.
 Where congress just encourages (through spending): legislature has a
choice, and therefore should be liable
 Here: legislature has no choice (but gotta fuck some town): so held
accountable for not their decision
 Also: fed. Gov wont be as accountable if don’t have to do it
themselves
 2. Text: 10th amendment preserves state power (but same problem of 10th
amendment truism)
 3. Original Meaning/Structure: 10th amendment: protects some incidents
of state sovereignty
 articles of confederation: power of fed through the states
 constitution: direct control of ppl
 Virginia plan=constitution: didn’t have to get permission of states to
regulate
 since constitution overruled articles of confederation, strange if
congress could still regulate through states
 therefore: congress lacks authority to instruct states according to its
directives
o BUT: DISSENT: constitution expanded federal power,
shouldn’t read it as losing powers it had udner articles of
confederation.
 Also: congress was just responding to state requrest for
this: striking down law on state’s rights growns that
state’s asked for
Federal Power
State Power
 After NY v. Unites
states:
Federal
Government can’t regulate what it
otherwise could (concurrent interest): if the means is to leave state officials without
47
meaningful choice to follow regulation
o But: they could do it through other means: just regulate themselves
 So striking down choice to left to states in how to implement on grounds
that it is unconstitutional interference to state autonomy
o Hypo:
 Statute I: all states must implement federally designated test or lost
money in federal education funds
 This would be fine: so long as not unduly coercive (Sebellius III).
Spending power with condition attached
 Statute II: every state must design and implement a test to measure math
and reading
 Unconstitutional (NY v. US)
 Even though better for state autonomy
Printz v. United States (cannot compel state/local executive officers to enforce federal regulatory
program)
 Statute: temporarily requires state law enforcement officers to do background checks on gun
purchasers.
 Challenge: congressional action compelling state officers to execute federal law is
unconstitutional. Defense: done before, for state judges. (Scalia throws out, judges diff)
 Scalia Holding: CONGRESS MAY NOT COMPEL THE STATES TO ENACT OR
ENFORCE A FEDERAL REGULATORY PROGRAM BY COMPELLING ACTION BY
STATE AND LOCAL EXECUTIVE OFFICERS, AND THEREFORE, THE
BACKGROUND-CHECK PORTION OF THE BILL IS UNCONSTITUTIONAL.
o Rational: looks to federalist papers. State tax collectors would collect federal taxes,
but nothing that would force them. Judges under power, but that’s in constitution.
And state legislatures already aren’t subject (NY v. US)
 1. Original Meaning: earlier congress didn’t understand selves to have this
power
 although maybe just worried, about non-acquiesence
 2. Structure (dual sovereignty): system where both federal and state has
power over ppl, not one through the other
 hurts accountability, (someone who doenst get a gun more likely to
blame local cop than fed gov.)
 same articles of confederation argument
 inconsistent with separation of powers: if congress could use state law
enforcing officers: would reduce president’s power.
 3. Precedent: NY v. US (legislative version): but still shows don’t have this
power. “reasonable effort” required: som policy making: how much effort?
 Conclusion: congress cannot circumvent prohibition on forcing legislators to enact federal
regulatory program by forcing state officers to do it directly.
 DISSENT: Suiter: original Meaning: everyone expected federal power would regulate state
officials. Different between forcing legislators to make decisions and forcing executive
officials to implement them is crucial
 DISSENT: Breyer: looks to constitutions of other parts of the world. This is okay
48
Difference Between NY and Prince?
 NY: forcing decision making role
 Prince: enforcer being controlled
What are we left with if take NY and Prince together?
 Hypo: there’s an emergency, governor of state is killed.
o Congress passes emergency plan: states can’t implement (probably can’t be forced
to, but maybe they could if they wanted to)
o Congress gives money on condition in plan: Fits Dole
o Congress threatens preemption: Either state makes a plan or adopt ours.
 Hypo II: congress wants to pass minimum wage law sensitive to local concerns
o Congress can’t require states to enact min. wage law: NY v. US
o Congress can force states to pay minimum wage: Garcia
 But forcing states to pay minimum wage: then congress is forcing state
officials to do stuff (change payroll, etc)
 But doesn’t that go against Prince?
 Distinguish between implementation and compliance
o CONGRESS CAN’T FORECE STATE OFFICIALS TO IMPLEMENT FEDERAL
LAW: Prince
o CONGRESS CAN FORCE STATES TO COMPLY WITH FEDERAL LAW:
Garcia
o Implementation: enforcing against a third party
 Like cant’ force prosecutor to must bring indictments against ppl who violate
federal crime
 But prosecutor can’t violate federal crime
o Complying: just following yourself
G.
Federal Limits on State Power
U.S. Term Limits, Inc v. Thornton (states have no power respecting the federal government that the
constitution does not grant)
 Statute: limited terms fon congressman from Arkansas.
 Issue: does the rule from Powell (congress cannot add requirements to seats in house that
aren’t in constitution): apply to states?
 Stevens Holding Default rule: STATES HAVE NO POWER RESPECTING THE FEDERAL
GOVERNMENT THAT THE CONSTITUTION DOESN’T GIVE THEM.
o Rationale: states had no federal government before the constitution, so the 10th
amendment can’t reserve power over the fed. Gov to the states
o Consistent with McCulloch: 10th amendment just lets states retain power the
already had
o Constitution was contract among the states: rights to choose congressman
belongs to the people and not the states
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 THOMAS dissent: all the power surrendered by the constitution were the enumerated
ones: all other powers in the states
o So if constitution doesn’t say federal government has the power, the states have
the power
o Although states cannot demolish constitutional house member qualifications:
they can add their own qualifications (minimum not floor)
o McCulloch was about supremacy
 BUT: seems to really be splitting power up power
Preemption
Silkwood v. Kerr McGee Corp.
 Preemption issue: if federal law preempted punitive damages in wrongful death at nuclear
plant
 Field Preemption: congress evidencing intent to occupy a given field
 Conflict preemption
o 1. Conflicts with federal law: impossible to comply with both
o 2. State law stands in an obstacle to the accomplishment of the full purposes and
objective of congress
 here: federal nuclear safety law: preempts state control: on nuclear regulation
o Kerr argues: punitive damages have regulating effect: so preempted
o Court: congress did not provide federal remedy for persons injured by conduct:
congress did not mean to remove legal remedy. No interference by personal injury to
federal statute: not conflict preempted
Preemption Problems
1. Federal law: federal cig label law: expressly preempts state requirements on cig packages
 Suit 1: breach of express warranties. If find for P, under state law tort, then D’s have to put
more warnings on packages. P: this isn’t state law, but common law tort. But only way to
avoid, is put more warnings: essentially a state law.
o Preempted: this would be state requiring more warnings: expressly preempted
 Suit 2: failure to warn: warranty on package, in language of federal government requirement,
was their own warning: not a good one. Still failed to warn
o Not Preempted. Not requiring different warning, requiring not breaching that
warning
2. FAA has very broad ability to make rules. But no regulation of when flights take off
 Burbank rule: about when flights can take off
 No obvious conflict with federal law
 Field preemption: congress evidencing intent to occupy the whole field: makes everything
preempted
 Comprehensive scheme: but still not field preempted here
3. Secretary of Ag.: maintain minimum standards of agricultural commodities. Cali law: bans
Avocados under oil content. Agency rule: no avacodos sold picked too early
 Not field preemption: states regulate agriculture all the time. Easiest when conflict. Second:
when state law an obstacle to objectives and purposes of congress
 But here: congress just setting a floor. Every time there is a different state and federal
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question
Preemption Tree
 Express Preemption: congress can expressly declare through an express statement that
federal law is excusive in that field and state and local law is therefore prohibited/deemed
preempted
o Ex “only congress may regulate the labels on meat”
 Implied
o Field: occupation of the regulatory field
 When congress has occupied an entire field, and there is a federal interest in
regulating that field, state law is preempted
 Here: court assumes that congress wanted states not to have the
authority to regulate in this area, even if no obvious conflict between
state and federal regulations
 When congress has regulatory agency with broad powers: may mean
field preemption
o Ex: federal aviation law
 More likely when there is a comprehensive scheme of federal
regulation or an area of federal interest (immigration)
o Conflict
 Direct: when it is impossible to comply with both state and federal law:
preempted
 Stands in obstacle of general objective: where state or local law impedes
the achievement of a federal objective, then state law preempted
 BUT: mere fact that federal and state law are different, does not mean it’s preempted
o Look if it’s a ceiling (the standard): or the floor (minimum standard)
Liberal Judges: don’t find preemption: states have authority too: value of federalism
Conservative Judges: find more preemption
 Why reversed from normal states powers cases?
o Benign reason: preemption cases aren’t constitutional law cases but statutory
interpretation cases. Same debate in statutory interpretation (text/history/purpose)
 Conservative: textualist, so find preemption: don’t look at history
 Liberal: look at purpose to see if conflict: less likely
o Cynical Reasons: (means based): more aggressive preemption results in more
concervative results (bc fed law has to hold, so if it’s less restrictive than state, hold
that at line; if more restrictive than state: doesn’t matter)
H.
Federal Limits on State Power: The Dormant Commerce Clause
 When Congress is silent on an issue: if state can regulate.
Gibbons v. Ogden (start of dormant commerce clause)
 C.J. Marshell: commerce power so broad it might be exclusive. So even without federal
licensing schme: NY maybe couldn’t set that monopoly. Commerce power to prevent trade
wars: so don’t let states regulate.
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Dormant Commerce Clause
 Generally: State and local laws are unconstitutional if they place an undue burden on
interstate commerce because the mere existence of the federal commerce power restricts the
states from discriminating against, or unduly burdening, interstate commerce.
o Commerce clause: “congress shall have the power to regulate commerce among the
several states”
o Court has read that this limits state legislation where congress has not acted
 William v. Blackbird Creek March
o Test: to see if police power practice or federa common law power: often overlap
 Look at state’s objective: if within state’s authority or trying to regulate.
 Abandoned view
 Cooley Test
o A state regulation regulates interstate commerce if the subject matter at issue
requires either one single national standard (then states can’t regulate) or whether the
subject matter at issue is the type of standard that can be left to varying state or local
requirements (then states allowed to regulate)
 Never overruled: but only followed to say neither absolute dormant
commerce clause but there is some limitation by it
 3 categories of DCC cases (all about the state/local statute): modern approach
o 1. Facially Discriminatory (Philadelphia v. NJ; Madison Milk): statues that make
clear on their face that in-state interests are treated better than out-of-state interests
or burdens on out-of-state interests that are not imposed in in-state interests.
 Presumptively unconstitutional: virual per se
 Exception: if facially discriminatory it’s invalid unless it advances legitimate
state interest that could not be advanced by reasonable non-discriminatory
means
 Almost strict scruitiny for laws that discriminate on their face
 Only upheld one law: Maine v. Taylor: preventing bate fish that fuck
up ecosystem. But vey likely to strike down
o 2. Discriminatory in purpose or effect: do not actually state on their face that outof state interests are burdened in a way that in-state interests are not, but they appear
to be either motivated by such a desire or so clearly have such an effect that the
court is willing to assume that they were motivated by that purpose
 presumptively unconstitutional: unless state couldn’t achieve goal in another
way
 same scrutiny as facially discriminatory purpose if…
 motivated by discriminatory purpose
 have the effect of discrimination
o 3. Incidental Burden on Interstate Commerce (PIKE balancing test: Southern
Pacific co. / Kassel): laws that are neutral in their application but nevertheless
impose a burden on interstate commerce or on an out-of state interest
 non-discriminatory=presumptively constitutional
 but: if the burden on interstate commerce outweighs the benefit the state
receives from the law=unconstitutional
 where the statute regulates evenhandedly to effectuate a legitimate local
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public interest, and its effects on interstate commerce are only incidental, it
will be upheld unless the burden imposed on such commerce is clearly
excessive in relation to the local benefits
 if a legitimate local purpose is found, then the question becomes one of
degree. Extent to the burden tolerated depends on the nature of the
local interest involved, and on whether it could be promoted as well
with a lesser impact on interstate activities
 dormant commerce clause unique
o taxes: concurrent power. And here: congress could just overrule statute, preempt
o bc of that: congress can overrule the SC despite Maybury v. Madison: can give states
permission to discriminate (US v. NY power plants case)
Standard of Review for Dormant Commerce Clause Cases
 Complete deference: rarely applied
 Rational Basis: close to complete deference
o MccCulloch and Raich
 The PIKE balancing Test: (middle deference) (category 3) laws that are neutral in their
application but nevertheless impose a burden on interstate commerce: if the burden on
interstate commerce outweighs the benefit the state receives: unconstitutional
 Pacific Co. and Kassel Failed this. But Kassel kind of in category 2.
o Presumed constitutional.
o Court: trying to promote economic efficiency in national market
 Strict Scrutiny: uphold regulation only if it is serving compelling state interest and is
narrowly tailored
o category 1 of DCC: but basically a per se rule
o Also category 2: will be here. Probably if couldn’t achieve in another way: may be
okay too
 Per Se Invalidity
o Court Rarely operates here.
o When Facially Discriminate: almost here: if facially discriminatory, but if it
advances legitimate state interest that could not be accomplished through reasonable
non-discriminatory means: Maine v. Taylor is the only case here
So why have DCC?
 Pros
o History: framers didn’t want states imposing burdens on interstate commerce and
imposing protectionist barriers on out of state business. Constitution adopted to stop
these measures, so states can’t do them anymore
o Economic: DCC statutes hurt free flow of goods: inefficient
o Institutional Logic: not realistic to think congress could preempt all state regulation
that burdens interstate commerce. And could get trades in congress, let this slide for
my state, let you slide for yours: bad for national interest
 Congressional silence=don’t want regulation
o Political Theory: some citizens bear costs but can’t vote out state legislatures that
pass bill
 Anti
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o Text: no textual support for DCC. In fact, 10th amendment against it
o Institutional logic: DCC is anti democratic. Federal judges making economic
decisions left to the legislature
o Separation of Powers: up to congress to preempt state regulation if they want to.
Judges acting as super legislatures. Congress is proper body
o Federalism: states should be able to pass bills that are in legitimate state interest:
point of federalism
Facially Discriminatory Cases
Dean Milk Co. v. City of Madison (milk case: cannot regulate, even if protecting legitimate local
interest, if there are reasonable non-discriminatory alternatives)
 Statute: milk sold in Madison had to be processed within 5 miles. Source of milk had to get
permit from Madison officials
 Challenge: P denied license bc he was more than 5 miles away
o Madison standard slightly different than US standard, so not necessarily preempted
 Court: Madison is exercising it’s authority to protect health and safety of its people. But
can’t discriminate out of state products if there is a reasonable, nondiscriminatory
alternative, adequate to conserve legitimate local interests.
o App: reasonable alternatives: just follow US standards or send inspectors to other
places
City of Philadelphia v. New Jersey (state laws that discriminate on their face are presumptively
unconstitutional)
 statute: NJ law prohibiting the importation of garbage into the state.
 This regulation falls within commerce clause: about transfer of goods across state (NY v. US)
o Category 1: discriminatory on it’s face
o NJ is attempting to reserve it’s resource, land, for its own residents and attempting to
allocate its limited resources only for its in state residents
 Rule from this case: STATE LAWS THAT DISCRIMINATE ON THEIR FACE ARE
PRESUMPTIVELY UNCONSTITUTIONAL: virtual per se rule
o NJ: argues that the purpose of the statute is health and safety of citizens: court:
doesn’t matter, it’s a protectionist matter (overruling Marshells reading)
o Doesn’t matter that the regulation is not about the good in interstate commerce, or
that it’s not helping NJ business
 Rehnquist Dissent: this is like statutes to prevent spread of disease, distinguish between a
good and a bad.
Camps Newfound/Owatonna, Inc. v. Town of Harrison (Maine Camp Case: Same definition of
commerce applies to DCC as to affirmative commerce power)
 Statute: Tax exemption for property owned by charitable institutions: excludes organizations
that operate principally for benefit of non-residents
 Challenge: camp in Maine that is mostly out of state: had to pay more taxes bc out of state
campers
o Defense: DCC not applicable: bc congress can’t tax real-estate and it’s not interstate
commerce
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o Summer camps: like hotels. Heart of Atlanta Motel: impact on interstate commerce.
Business activity local: interstate commerce feels the pinch, doesn’t matter who
applies the squeeze.
o Definition of commerce is the same when relied on to strike down or restrict state
legislation as when relied on to support some exertion of federal control
o Application: this is discriminatory bc it distinguishes between businesses that serve
in v. out of state patrons. Non profit/for profit doesn’t matter.
 Scalia Dissent: this is just like welfare: just applied indirectly to charities: it’s fine
Regulations that discriminate in purpose or Effect (category II)
 Same scrutiny to facially discriminatory regulations: if motivated by discriminatory purpose
or have the affect of discrimination
 Hypo: Iowa enacts law that particular form of corn (only grown in Iowa) is not taxed
o Not facially discriminatory: in practice same effect. Can’t avoid DCC by putting in
neutral terms
 Court elevated form over language: (purpose of statute is difficult): so look to affect. If the
law is explainable only by discriminatory effect: the law is unconstitutional
Regulation burdens interstate commerce: balancing approach (kind of)
South Carolina State Highway Dept. v. Barnwell Bros. (regulation on S. Car. Roads for trucks was
okay bc it did not discriminate)
 Statute: South Carolina statute prohibited operation of trucks on state highways
 Rule: Since regulation was non-discriminatory: the regulation was okay.
o App: congress left to states. State has primary concern, can impose
nondiscriminaoory regulations as safety and economic (maintain highways)
measures. Court pointed out that congress decided not to regulate this.
 No uniform national standard required here: doesn’t violate Cooley: so okay
Kassel v. Consolidated Freightways Corp. of Delaware (iowa trucking: Safety measure barely
furthered, substantial burden on interstate commerce great=strike down. Most deferential for safety
concerns)
 Statute: prohibits longer trucks on highway
 Iowa: for highway safety reasons, and to protect road from damages
 Plurality Powell: SAFETY STATUTES THAT FURTHER THE PURPOSE SO
MARGINALLY, AND INTERFERE WITH COMMERCE SO SUBSTANTIALLY, AS
TO BE INVALID UNDER COMMERCE CLAUSE.
o statutes that touch on safety are most reluctant to overturn, but here barely furthered
that interest, so strike down
 longer trucks: doesn’t=more safe really. And result of statute is more miles or
more trucks=more accidents. So less safe. Normally defer safety judgment to
state, but less deference when regulation applies disproportionately
 Brennen Concurrance: point of the law was to shield Iowa roads from out of state interests
o Governor rejected normal standard because it wouldn’t help Iowa business
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o This puts it in category 2: strict scrutiny
For Sure category 3
Southern Pacific Co. v. State of Arizona (RR LENGTH: INVALIDATED STATUTE BECAUSE
IT IMPOSED A SERIOUS BURDEN ON INTERSTATE COMMERCE: APPLYING PIKE
TEST)
 Statute: limited length of trains in Arizona
 Court: INVALIDATED THE STATUTE BECAUSE IT IMPOSED A SERIOUS BURDEN ON
INTERSTATE COMMERCE: APPLIED THE PIKE BALANCING TEST.
o Pike Balancing Test: is the burden more substnatuial than appropriate when
viewed against the benefit state is achieving through regulation?
 Burden: RR companies have to do lots of reorganizing to obey law, or go
around Arizona, effects neighboring states too. Actually more dangerous
to do this than just have longer trains
 Benefit: local safety (kind of): but wrong about safety.
 Applied: no benefit: lots of harm: invalidate statute
o Problematic: bc makes a policy choice for another state without political
recourse: no accountability.
o For something like RR travel, if going to regulate, need national rule bc of
widespread effects.
Hypo: Maryland passes law restricting trucks bc roads can’t handle it
 PIKE: does burden outweigh legitimate state interest. Maryland law burdens states around
them, or states around Maryland regulate them. Catch 22
 Scalia Challenge: PIKE is just policy determination: which interest is more important. Better
left for legislature (money v. lives) (convenience v. safety) etc
o BUT: same issues: avoid protectionist, or inefficient market
Exceptions to DCC: Market Participant
 If the state is acting as a market participant instead of a regulator, it may favor its own citizens
over others: therefore not limited by DCC
 But when state attempts to affect parties beyond those who it’s contracting with, court may
conclude that the regulatory consequences of the state’s action outweigh it’s market
participant consequences: thus under normal DCC analysis (South Central Timber)
South-Central Timber Development, Inc. v. Wunnicke (Alaska timber: when state is acting as a
regulator (imposing conditions beyond their participation) and not just a participant in a market, the
market participant to DCC does not apply)
 Statute: regulation: if buy timber from state of Alaska, must have it processed within the state
o Doesn’t have to be a law: can just be regulation
 Issue: is Alaska a market participant?
 Rule: WHEN STATE IS ACTING AS A MARKET PARTICIPANT RATHER THAN
REGULATOR: DORMANT COMMERCE CLAUSE PLACES NO RESTRICTION ON
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ACTIVITY
o Application: here: Alaska is acting as a regulator (not just buying/selling). Alaska is
not a market participant in timber processing, just timber selling, then imposing a
restriction down the processing market, so exception does not apply.
o State owned business: can favor resident purchasers: but may not attach conditions
to the sale of products that will burden interstate commerce. They are limited to the
particular market they are a participant
 Rehnquist Dissent: could achieve this through other means (process themselves, subsidize
processors to make cheaper): this is form over substance
Rationale for Market Participant Exception?
 Pro: (ppl who small DCC: want bigger exeption)
o Levelign market: acting as a normal business entity, should be able to do what a
normal business does
 BUT: states have huge market interest. Can regulate by conditioning
purchase more than normal business
o Little effect on interstate commerce
o State autonomy: should be able to f
 Cons: (if want big DCC: want narrowest exception: so like exception to the exception)
o State can essentially regulate this way: too big a market share
o With exception: states could swallow up DCC altogether (so want exception to the
exception: so can’t do that by regulating beyond market)
 Another way to analyze: would normal business ever include this provision?
o No: then suggess state is trying to regulate
o Undermines argument for market participant exception
Exceptions to DCC: Congressional Consent
 DCC is a default rule: but congress can overrule courts in this regard
o DCC: predicated on congress’ silence: congress can therefore decide state
interference is consistent with national interest.
o Congress may authorize state to violate DCC
 Where congress and state have coordinated action: never invalidated a statute
Prudential Ins. Co. v. Benjamin (insurance tax case: when congress has acted affirmatively to allow
non-uniform treatment: DCC does not apply)
 Statute: federal regulation of insurance only extends to point that state law doesn’t (reversal of
DCC)
 State statute: Out of state insurance companies must pay more tax (facially discriminatory)
 Court: DCC: when congress is dormant. Here, congress has acted, consenting to
discriminatory regulation.
o Applying DCC would limit congressional power: not purpose of DCC
Decision Tree for Federalism Based Concern
1. Is there a federal statute on point (make sure it’s in federal powers, then move on to this)?
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 Express Preempted?
o Yes: state law invalid
o No: move on
 Implied Preempted?
o Yes: Does Federal government occupy the field? (look at Silkwood like analysis)
 Yes: State law invalid
 Likely scenarios
o 1. Comprehensive federal regulation
o 2. area of particular federal interest (immigration)
 No: Move on
o Yes: Is there Conflict Preemption?
 Yes: is it impossible to comply with both federal and state law?
 Yes: genuine conflict preemption: state law invalid
 Yes: Does the state law stand as an obstacle to federal objective?
(inconsistent with thrust/force of federal law?) (Silkwood analysis)
 Yes: conflict preempted: state law invalid
 No: move down
o No: move down
 No: move down
2. Is there an implied limit on state’s ability to act? (where state prohibited from regulating)
 Trying to tax federal government? (McCulloch v. Maryland)
o Yes: state law invalid
 Is state trying to regulate federal government? (U.S. Term Limits)
o Yes: state law invalid
 No: move down
Now: in dormant commerce clause doctrine…
3. Does state law discriminate on it’s face? (treats things from different states differently) (Dean
Milk; City of Philadelphia v. NJ; Camps Newfound)
 Yes: is there a legitimate state interest and no reasonable non-discriminatory means of
achieving that goal? (Maine v. Taylor)
 Yes: state law valid: but only once ever.
 No: Is the state a market participant? (remember exception to Market
Participant exception (South Central Timber Alaska timber case))
 Yes: state law valid
 No: Did congress authorize the discriminatory statute? (Prudential v.
Benjamin)
o Yes: state law valid
o No: state law invalid
 No: move down
4. Does the state law discriminate in purpose or effect? (is the state trying to discriminate:
sometimes affect itself convincing evidence of purpose (only logical reasoning for law). Mere
discriminatory effect: then might not be here. The effect is just to find the purpose) (Kassel v.
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Consolidated Freightways Corp. Brennen Concurrance)
 Yes: is there a legitimate state interest and no reasonable non-discriminatory means of
achieving that goal? (Maine v. Taylor)
 Yes: state law valid: but only once ever. (Maine case)
 No: Is the state a market participant? (remember exception to Market
Participant exception (South Central Timby Alaska timber case))
 Yes: state law valid
 No: Did congress authorize the discriminatory statute? (Prudential v.
Benjamin)
o Yes: Not invalid
o No: state law invalid
 No: move down
5. Does the state law burden interstate commerce?
 Yes: does the burden clearly outweigh the local benefit? (PIKE test) (Kassel v. Consolidated
Thomas Plurality; Sothern Pacific v. Arizona)
o Yes: state law invalid
o No: Is the state a market participant? (remember exception to Market Participant
exception (South Central Timber: Alaska timber case))
 Yes: state law valid
 No: Did congress authorize the statute? (prudential v. Benjamin)
 Yes: state law valid
 No: state law invalid
 No: state law valid
IV.
SEPARATION OF POWERS
A.
Executive Power: Domestic Affairs
President’s Powers
 Art. II sec. 1: “the executive shall be vested in a president”
o Much of president’s powers are implied from this
 Art. II sec 2-3: pres power to…
o Take care that th e laws be faithfully executed, make treaties, nominate ambassadors,
grant pardons, be the commander-in-chief of the army and navy.
 Madison 51: aggregation of power in one person is tyranny: checks and balances
o Absolute separation unfeasible: but prevent one power from becoming too powerful
by checks and balances.
o President: just to put into force laws of congress: normal exec’s have more power:
but that’s a monarchy
 Hamilton: Prez has some inherent exec authority.
o Article II (unlike art. I): doesn’t just say “here in granted”
o Prez has all exec power: gets power of normal head of state
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Youngstown Sheet & Tube Co. v. Sawyer (Steel seizure case: Maj: prez power from congress or
const. presidential assertions of authority in domestic affairs is limited; Jackson’s concurrence:
three catagories of Prez’s power)
 facts: Truman instructed the secretary of commerce to nationalize the steel industry. Informed
Congress, congress didn’t respond. In response to failed negotiation attempts between steel
workers and Co’s during Korean war.
 Challenge: Prez. Didn’t have power to do thin (supreme court was same court to pass on the
merits)
 Black Holding (formalistic): “THE PRESIDENTS POWER, IF ANY, TO ISSUE ORDERS:
MUST STEM EITHER FROM AN ACT OF CONGRESS OR FROM THE
CONSTITUTION ITSELF.”
o Constutuional:
 Unjustified as commander in chief: that’s for commanding our troops
abroad: using that domestically seems to be tyranny.
 Unjustified as all exec power vested in prez: seizing mill is a legislative
power, not an executive one.
 Unjustified under faithfully executing laws: president must be acting under
the laws congress makes, not here. Refutes idea he is law maker
o Act of Congress
 Law on point: congress actually rejected ability to do this in leg. History.
 Against taft Hartley act: rejected this move
 Defense Production act: circumstances not present
 This was under commerce clause: but congress didn’t give authorization\
o President has no unenumerated powers
 Frankfurter concurrence: history can give gloss on constitution of what president has power to
do: not this.
 Jackson’s Concurrence: President’s power not fixed, but fluctuate depending on their
disjunction/conjunction with congressional action.
o 1. Authorization of Congress: apex of presidential power. Acting in pursuant with
express or implied authorization of congress: executing the laws
o 2. Absence of Congressional Grant: twilight zone: congress might have concurrent
authority, or in which it’s distribution is uncertain.
o 3. Contradiction to the express or implied will of congress: lowest ebb: must have
power from constitution.
 Read this case as limiting prez power in domestic affairs
Under this theory: means over ends test. Prez could maybe send troops and say you’ll work
something out.
 What if congress said: Prez can do all actions he believes necessary for the war.
o This delegates policy making to prez. But courts have upheld. Hard to tell difference
between execution of lawmaking.
 Problem with Black’s Opinion (textual/formalist): exact same action permissible allowance
of executing laws through a statute (congressional approval): but then the prez is making the
same policy decisions. Same act can be law making and law executing (if congress spoken).
So this distinction doesn’t settle question.
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 Justice Frankfurter (functionalism): pay attention to real world functions. In this case:
congress explicitly didn’t give prez power
o But: President often does stuff, congress acquiesces: gloss on constitution
o So president enjoys some inherent power: can act in absence of congressional
grant/constitutional authority: if history and practice suggests the need to do so
 Justice Jackson: Tripartite scheme. Questions of presidential authority are about interaction
between legislature and executive
o 1. Apex: Congress gives express or implied authorityPrez has most power (can act
unless independent constitutional barrier or congress couldn’t enact the law) (green
light)
o 2. Twilight zone: Congress is silentPresidential residual authority, combines with
congressional silence, may give president power to act
 this is functionalist area usually: what’s real world situation related to past
o 3. Lowest Ebb: Congressional Implied or express ProhibitionPrez can only act if
within specific presidential authority under constitution (red light) (ex. veto power:
congress couldn’t take away)
 Youngstown Seizure here: Implied prohibition on presidential authority to
seize (congress thought about it, said no). Congressional silence in the statute
was prohibition (bc considered the question)
How Broad is Commander in Chief Power?
 Unclear if prez can defend the nation in emergency:
o Maybe commander in chief power depends on how big threat to nation is.
 But: war power: to congress. Bc responsible for sending constituents to war.
 No express emergency power: because “emergency power tends to create emergencies”
o If can just act by emergency power: bypass congress.
B.
Executive Power: Foreign Affairs


Congressional Power: impose duties, regulate commerce with foreign nations, declare war,
raise and support armies and navies
Presidential Power: Power to negotiate treaties (subject to senate approval); appoint
ambassadors
Dames & Moore v. Regan (Iran cases to admin: history of congressional acquiescence on similar
matters and congressional silence can show implied grant to presidential power. Foreign affairs)
 Facts: President made deal with Iran in which all claims against Iran would go into
administrative court, and holds on Iranian assets would be released. P’s lost their hold,
 Challenge: this deal was beyond presidential power
 Rehnquist Holding: ENACTMENT OF LEGISLATION CLOSELY RELATED TO THE
QUESTION OF PREZ’S AUTHORITY IN A PARTICULAR CASE WHICH EVINCES
LEGISLATIVE INTENT TO ACCORD THE PREZ BROAD DISCRETION MAY BE
CONSIDERED TO INVITE MEASURES OF INDEPENDENT PRESIDENTIAL
AUTHORITY
o Rationale: this is the top of Jackson’s categories. If congress has acquiesced in the
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past, implied consent
 Jackson’s chart is spectrum: we’re just below express consent
 Look to: for implied consent: put gloss on constitution. Long continuing
practice is acquiesced by congress: presumption the action taken is pursuant
to its consent.
 1. Inferences from legislation congress enacted
o congress can’t anticipate everything: so past statutes on same
general question: show acquiesence
 2. History of acquiescence
o Application: IEEPA: nullified attachments to Iranian assets. But statute didn’t say
prez could transfer all suits to admin court. BUT congressional authority to do this in
the past: which spoke about future applications of it.
 Was this unconstitutional? Looked like a treaty (called it exec. Agreement; so wouldn’t have
to be ratified by seante). But important: prez needs to be able to speak for country.
o The default rule: seems to be pro-presidential authority, with congressional silence
 But court had narrow holding: cited: necessity, major foreirn policy,
congressional acquiescence
Pros/Cons of implications of Dames & Moore
 Pros
o Prez can act without implicit congressional authroiztion: but congress can be clear if
there’s a problem
o Ability to be flexible
o Ability to act fast
 Cons
o Encroachment on senate’s treaty ratification power
o If exec agreement are equivalents to treaties, they would be superseded by prev
litigation: so prez can get around treaties
C.
Executive Power: The War on Terror
Writ of habeas Corpus: Art. 1 sec. 9: won’t be suspended without rebellions/invasion as public
safety requires it: by congress
 Can only suspend by congress (bc in art. I) to protect public safety in invasion/rebellion
 Entitles imprisoned person to force gov to justify his detention
 Linclon suspended unilaterally. Later congressional approval
Ex Parte Milligan (if detained without writ being suspended: citizen have right to normal trial even
if writ has subsequently been suspended)
 Facts: Lincoln suspended Habeas Corpus. Milligan detained before war
 Holding: suspension of habeas corpus does not justify not trying individuals detained
before writ was suspended
o American citizens detained before the writ was suspended: still need to be tried
in normal court
Ex Parte Quiran (unlawful enemy combatants can be denied jury trial and be subject to military
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tribunals)
 Facts: German nationals arrested after trying to sabotage lands
 FBI arrested: military tribunal tried them: put to death
 Holding: unlawful enemy combatants may be denied the right to a jury trial before
civilian courts and instead be subject to trial before military tribunals
 Distinguish from Milligan: that was about breaking domestic law, this was violating
law of war
Hamdi v. Rumsfeld (President can indefinitely detain citizen enemy combatants without charging
them (with congressional approval of military force). But have right to review of if they’re actually
enemy combatants)
 Facts: American citizen captured in Afghanistan. US gov claimed he was enemy combatant,
and could be detained without being charged.
 Issue: can president detain an American citizen captured abroad without trial?
 Plurality O’Connor: We are in Category 1: AUMF: authorization to use military force: after
9/11
o (Souter): really dissented to this part: but joined with majority so Hamdi gets some
due process.
o Thomas DISSENT: said AUMF did grant this power: but dissented on scope of prez
power
o Back to Plurality: implicit in use of force: detain ppl captured in war.
o App: authorization to use force includes allowed to detain
 What are alternatives? Execute on the spot? Or let them go?
o Because in category 1: action by president was fine unless violated another part of
the constitution: due process clause. Can present evidence and rebut about
classification. War is not a blank check for president: can’t get rid of factual
challenges: role of courts: separation of powers issue
 Therefore: President can detain enemy combatants indefinitely: but American
citizens get the due process of law to determine if they are enemy combatants
 Souter Concurring in Part (just to give some due process): This action violates the detention
act, therefore we are in category 3.
o AUMF didn’t make a clear statement around detention act
o If wanted to get around detention act: gotta say so. Court is essentially implying
from language that AUMF overrules the express language of detention act
o So when capture an American Citizen: must turn them over to normal court and
charge
o For prez to have power if previously under category 3: need clearly expressed
congressional resolution of competing claims
 Scalia: this is statutory construction question. If congress wants to suspend habeas corpus
(what this is doing): must do it expressly. Absent suspention of habeas corpus: citizen has a
right to full trial
 Thomas Dissent: Congress has authorized prez to use force. Courts don’t second guess: bc
Prez acting within constitutional authority
Implicaitons of President authorized to use force
 Indefinitely detain US citizens captured abroad?: Yes (Hamadi 5-4)
 Indefinitely detain US citizen captured in US? Maybe (Rumsfeld v. Padia: ct avoided
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question): but implicationcan’t do it: (Milligan)
 Try non-citizen enemy combatants by military court without full procedural rights? No
(Hamden)
If look at real question of Hamdi: could prez do this absent congressional approval
 Majority: didn’t have to settle: congressional approval
o Separation of powers: given to prez
 Thomas: prez has the authority: inherent in constitution
o Separation of powers thing: no judicial review here, unless not in good faith
 Souter: We’re in category 3 bc detention act. So need express approval of congress to get
around. Maybe in emergency: btu would be rare/temporary until congress can act
o Focusing on separation of power
 Scalia: PRez doesn’t have this authority unless congress suspends writ of habeas corpus.
o But protection: be politically unpopular opinion
o Otherwise: US citizen must be charged with a crime
o Focusing on individual liberties
Can President do this?
Pres.
Congress
Bush view Thomas
Souter
Scalia
Power?
Apex
Authorized Yes
Yes
Yes
NO (unless
suspension
of habeas
corpus by
congress)
Twilight
Silent
Yes
Yes
Rare/Temporary No
Nadir
Prohibition yes
Yes
No
No
Hamdan v. Rumsfeld (president cannot try non-citizens by military commission (against Uniform
code of military justice) absent congressional approval)
 Facts: Bush said any non-citizen deemed to be member of Al-Qaida will be tried by military
commission
 Court: this violates the Uniform Code of Militray Justice: so president can’t do it absent of
congressional approval
o AUMF did not allow president to ignore uniform code of military justice or Geneva
convention
o Therefore: AUMF vague: does not allow president power to violate other statutes.
Congress must do this explicitly (basically Justice Suiter’s view)
But then: congress passed military commissions act. Limited habeas relief for foreign combatants
 Allowed president to interpret Geneva convention and what counts as torture. Said don’t need
Hamdi type review
o If not citizen: no Hamdi review
o Broad definition of enemy combatant
 Boumediene Case: Military commission act was unconstitutional suspension of habeas corpus
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 Test: Review these types of cases under Youngstown Steel analysis: But remember: Boomied
case: there may be unconstitutional suspension of Habeas still.
o Military commissions act: not adeate and effective susbstiatute for habeas corpus. Bc
congress not specifically suspended Habeas (Scalia view): congress couldn’t do this.
 BUT: drone attacks: Prez can set protocals: assassinate American citizens abroad
o Differentiate: this is battle field
Result after these cases: prez can still pretty much do what he wants in foreign powers.
 Hamdi: prez can detain enemy combatant (US citizen) until end of war
o Just afforded watered down process to challenge label
 Hamden: president can’t try foreign combatants in military tribunals: but could if congress
authorized it.
 Boumediene: congressional approval in required in Hamden was unconstitutional writ of
Habeas Corpus: must do so explicitly
o But Scalia dissented: said this act was fine for habeas relief, no suspension of the
writ, so no judicial review
o Probaby because shifting make-up of the court
D.
Executive Privilege and Immunity
United States v. Nixon (criminal privilege: president enjoys a qualified executive privilege in
criminal proceedings: better claim if national security type ething)
 Facts: Nixon claimed absolute privilege from federal prosecuter
 Issue does the president have an absolute executive privilege to shield communications from
discloser
o Nixon claim: courts must accept the claim of executive privilege. (1) Don’t have
authority to review what falls in scope of privilege or (2) decide question if there is
an exec priv
 Court: The court’s role is decide what law is, even if concerns the core function of another
branch
o Is this a political question? Seems congress/president could work it out (congress can
impeach as check on president): but when controlled by same party, that check won’t
work
o Plus: courts role to do criminal trials: privilege would interfere with court’s ability to
perform it’s function: liberty of indi dependants on line: so review privilege
 So court must decide: (1) if constitution confers privilege? (2): scope of the privilege?
o No explicit privilege: so where does it come from?
 1. History: all prez’s believed/invoked exec privilege
 Frankfurter Gloss argument
 Constitution/congress silent: look at actual life/practice
 2. Separation of Powers: prez is co-equal actor to court: shouldn’t be
controlled by the court
 just like congress can’t tell prez to pardon, courts can’t tell prez to
disclose
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 BUT: prez in some way ordered to follow directives of congress when
constitution silent
 3. Functional: will chill advice to president if prez could be forced to
disclose information. No more frank and candid advice
 chilling effect on exploring all options.
o Holding: there is an executive privilege. Now Scope question
 President enjoys a qualified privilege: executive privilege can be overcome
when the need for information outweighs the need to keep information
confidential
 Conduct a balancing test
o Privilege factors: president need for confidentiality and
candid advice. But here: only generalized interest: not talking
about national security
o Overcoming factor: criminal proceeding: need for all
evidence
 Ensuring due process: evidence could get ppl off
 And can conduct in-camera review
 Need for evidence in a criminal trial can outweigh executive privilege. But the presidents
interest in privilege (like national security concerns) then privilege.
o Presumptive executive privilege exists: to ensure candid advice
Not common case: if prez asserts priv (usually before congress): public pressure overcomes it; or
public thinks congress is fishing: so congress backs down.
Presidential Immunity
Nixon v. Fitzgerald (president has absolute immunity from civil suit in official act)
 Facts: Fitzegerald claimed he was fired because he testified before congress, breaching his
first amendnment rights
 Nixon: President enjoys absolute immunity
 POWELL holding: THE PRESIDENT IS ABSOLUTELY IMMUNE FROM SUIT FROM
OFFICIAL ACT
o Rational: congress is immune (so constitutional silence means president is not?)
same logic applies to president: article 9 sec. 6: general need for privilege
 Distraction: concerned about distracting the president: always dealing with
suits
 Chill discretion: every time the president makes a decision, someone would
bring suit. Won’t have discretion in same way if sued for acts.
 White dissenting: president should not be able to avoid liability for intentionally wrongful
acts: not above the law
o So give him qualified immunity: grant immunity form lawsuits that will substantially
impair his ability to do his job.
 BUT: hard to draw this line. Maj just thinks costs of civil suit always
outweigh benefits
Question becomes: what counts as an official act
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 Speech: not rule of law: but carrying weight of office
 At a minimum: things you do before you’re president are not official act
Clinton v. Jones (the president is not immune from suit for actions done before he was in office)
 Facts: president sued for acts he did while governor: sexual stuff, workplace retaliation.
Clinton trying to assert temporary immunity until term was over. In Fitzgerald: Nixon had
privilege even after he was out of office.
 Stevens Opinion: THE PRESIDENT DOES NOT ENJOY ANY CIVIL IMMUNITY FOR
UNOFFICIAL ACTS (at least those done before he was president).
o Rationale: look to two Fitzgerald concerns
 1. Chill discretion: it’s inapplicable here: because not being sued for
anything to do with discretion in duty as president
 2. Distraction: applies here: but Fitzgerald was really only about chilling
discretion. Unlikely presidents will be unduly distracted by civil suits
 historical analysis: difficult to find clear historical consensus on the
issue: but few presidents have been sued
o Clinton used a formalist and a functionalist argument
 Formalist/functionalist mixed: prez unique in constitutional role (all exec
power); requires constant dedication and attention; if has to defend suit:
won’t be able to fulfill that duty
 COURT: nope: won’t take prez so much time, rare occurance
 Formalist: Prez is co-equal of the court; prez is allowed to refuse suit
 COURT: nope: role of court to decide what law is; prez can’t take that
role: court reviews presidential actions
 Functionalist: just takes a lot of time
 COURT: nope: won’t take substantial time. Court seemed to be wrong
here (although right for Bush/Obama: not thousands of frivolous
politically motivated suits)
 Justice Breyer: concurred, but basically dissented: bc court wanted to speak with one voice:
should be able to present evidence for need to stay the trial
E.
Congressional Control: The Legislative Process
Non-Delegation Doctrine: congress, which the constitution grants the legislative power, cannot
delegate that power
 Non delegation has almost no bite: only 2 statutes invalidated: during 1930s era
 Upheld incredibly sweeping authority: FCC: for “public interest and as necessary”
o Or “as long as fair and equitable”
 So really don’t need much of an intelligible principle to be okay.
o Rationale
o 1. Flexibility: congress shouldn’t have to make strict rules: bc want flexibility to
solve real problems: would have to amend statutes all the time for changing
circumstance
o 2. Expertise: congress gives power to agency that actually has expertise.
o 3. Distinction is allusive in practice: everything is between legislative and exec in
delegation
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
by court making decision: court is deciding what’s the more important policy
decision: telling congress what policy decisions to make
o BUT: bad for accountability: congress punting: but how decide?
Whitman v. American Trucking Associations (EPA standards case: Congress does not
impermissibly delegate legislative power if it provides an intelligible principle to guide the
executive delegee)
 Statute: Clean air act: gives EPA power to promulgate standards for different types of
omissions
 Rule: congress cannot delegate it’s legislative power
o This is not separation of powers issue: bc it’s congress trying to give away it’s
power
o Executive power: delegates tons of stuff. But that’s not supposed to be decision
making: just delegating duty to carry out law, not making policy choices
o Problem: the EPA is not accountable for policy choices
 Rule from Case: CONGRESS DOES NOT IMPERMISSIBLY DELEGATE LEGISLATIVE
POWER IF PROVIDES AN INTELLIGIBLE PRINCIPLE TO GUIDE EXECUTIVE DELEGEE
o Here: intelligible principle: levels requisite to protect public health with
adequate room for safety
o Fight was about: if EPA should look at cost to industry?
 Court: congress made that decision: said health over money
o How much discretion is okay?
 Almost never second guess congress
 Amount of allowable discretion varies with the scope of the thing
regulated
 National regulation: more substantial guidance
 But never required determinate criterion for how much harm is
too much.
 Certain amount of discretion, and thus lawmaking, is inherent in
most executive or judicial action
Legislative Veto:
Immigration and Naturalization Service v. Chadha (immigration case: legislative veto is
unconstitutional because it violates presentment: here: violates bicameralism as well. All legislative
action must comply with procedure)
 Statute: administrative hearing to see if deportation, if so, attorney general can suspend
deportation. Then, congress can override that suspension by vote in either house or senate.
 Court: Legislative veto is unconstitutional: legislators reserving power to override executive
power
o Broad holding: ALL ACTION THAT IS LEGISLATIVE IN CHARACTER MUST
MEET BICAMERALISM AND PRESENTMENT
o Specific holding: Chadha can stay
o Rationale: there are only four cases where where one house can act alone (listed:
treaties, confirmation, impeachment, conviction after impeachment)
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o Legislative action: an act by congress is legislative in character if it has purpose or
effect of changing duties/rights of individuals outside the legislative branch
 Here: legislative because attorney general and Chadha’s rights are affected
 BUT: if house action to deport Chadha was legislative, wasn’t attorney
general’s decision to let him stay?
o this is a formalist argument:
 problem: then most executive and agency action (EPA guidelines) is
legislative action. They are affecting rights of ppl without going through
bicameralism and presentment. Same with judicial (District Lines: 1 person 1
vote case)
 sylagism: 1. Constitution requires legislative power to comply with
bicameralism and presentment. 2. Legislative veto is legislative action. 3.
Veto doesn’t comply with bicameralism and presentment. 4. Therefore, it’s
unconstitutional
 POWELL concurrence: when quasi judicial body applies predetermined set of standards:
that’s judicial power. Congress can’t do this: acting in judicial rule: Trials by congress are
not allowed. (except things designated to them)
o Decisions can look legislative, executive, or judicial depending on who makes the
decision
 WHITE Dissent: (functionalist argument) separation of powers about practicality
o Constitution is flexible enough to allow what’s flexible enough to permit this when it
helps maintain constitutional system
o Question: if the rule is consistent with the broad purpose of separation of power
 To protect one branch taking power of another branch
 Why should the legislative branch be able to give away legislative power but
not be able to maintain some of that power. Just keeping tabs on
administrative estate.
o BURGER responding: pursuant to non-delegation doctrine: congress can’t give
away legislative power. So by formalism: it’s retaining check on executive power,
can’t do that. Must pass new legislation
 Functionalist issue with legislative veto: if can’t veto at back end, then must do the thing
themselves that would otherwise be delegated. Therefore more accountable?
So how can congress keep tabs on administrative agencies?
1. Enact statute repealing action they don’t like (but sometimes can’t: bc retroactive)
2. Enact specific statutes (delegate less choice to administrative agency)
3. Money (cut funding if don’t like what agency is doing: but cutting funding can actually hurt
what congress is trying to prevent: deporting more ppl)
4. Appointments (but don’t always know what ppl will do)
5. Oversight (shame admin agency into doing what they want)
Clinton v. New York (line item veto case: it’s unconstitutional because it violates
bicameralism/presentment)
 Statute: line item veto case. When president receives the law, signs it. Within 5 days, prez can
cancel independent provisions of the statute that grants discretionary budget authority, new
direct spending measure, any limited tax beneift. Congress can override that with 50% vote,
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but that can be vetoed
Requirements for president to line item veto: 1. Reduce the deficit, 2. not impair essential
government functions, 3. and not harm the national interest.
Stevens MAJORITY: THE LINE ITEM VETO FAILED TO FOLLOW THE
CONSTITUTIONAL PROCEDURE FOR PASSING LAW: PRESENTMENT AND
BICAMERALISM
o Gov argued: this is just like Fied v. Clark: where prez could enact terrifs
 Three differences
 1. Prez had no discretion (following directive)
 2. Different condition when making tarrif, v. same conditions
 3. Prez executing policy of congress: not here
o 1. The bill is returned with changes after it has been signed into law
o 2. The cancellation could apply to only part of the bill, veto requires veto of the
entire bill.
o Constitution is silent on this: but not allowed bc explicit about how to veto/how to
pass laws
Therefore: the bill that becomes law is different than the bill that passed bicameralism and
presentment. This would authorize president to make new laws: not following bicameralism
and presentment.
o Not like other delegation of money: bc those were not changing text: making
allowed choice. And about changed circumstance. And says result of change
SCALIA dissent: This about non-delegation doctrine case: This bill is exactly like bills that
give president discretion to spend money or not: upheld a bunch of time, this is the same
thing. Would be upheld if bill just said: this money is discretionary. As intelligible a
principle as anything else.
BREYER dissent: (functional argument): congress just trying to do what it originally could:
pass each bill individually (but is that true? Logrolling). This is not presidential power to
amend laws in different way. Congress could just put astricts saying each one saying could
spend or not in this way. Same thing just applied to all. Congress could just say portions of
future bills aren’t subject to this to get around it.
Regardless of calling it cancellation or repeal
 Allowed president to enact a law that would never have passed
o So if can do that: same thing for environmental protection or civil rights law
o If congress and prez same party: add these rules so prez doesn’t have to comply with
laws from previous parties majority
F.
Congressional Control: Executive Officers
Appointments clause: article II sec. 2:
 president shall nominate, and by and with the advice and consent of the senate, shall
appoint ambassadors, judges of the SC, and all other officers of the united states.
 Congress may by law vest the appointment of such inferior officers, as they think
proper, in the president alone, in the courts of law, or in the heads of departments.
 Bukley v. Volleo: congress can’t assign itself or to some of its members power to
appoint. As long as it’s an independent officer: congress can’t make appointments
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Principle Officers
 The president, not congress: is given the power to appoint principle officers / officers
of the united states
o President nominates: senate must advice and consent: decide whether to
approve
o Congress may not take away the president’s right of appointment
 who’s principle? Good question: At least: members of the cabinet, ambassadors, federal
judges
Inferior Officers
 congress has the right to limit the president’s right of appointment
o BUT: congress cannot reserve power to make such appointments itself
o Congress can give power to appoint to…
 1. The president
 2. The judiciary/courts of law
 3. Heads of departments (cabinet officials) (which indirectly brings
appointments in this class within the president’s powers)
 inferior officers: are those subordinate to another officer (check my notes)
o problem: cuts president out of the loop: but as long as president can fire: can
control ability to appoint inferior officers
 power to appoint in conjunction with power to remove. If can remove
officers, then can control appointments effectively
 then: as long as prez can control officers who make the
appointments: not concerned about other officers appointing
Since power to remove will make all the difference: (bc can fire ppl for not appointing right
ppl): we focus on removal.
 2 was congress can try to control power of removal
o 1. Congress may try to assign itself the power of removal
o 2. Congress tries to limit the ways a president can fire
Myers v. United States (congress cannot reserve role in power to remove officers (completely
unfettered part ruled out))
 facts: postmaster fired by direction of prez to postmaster general: trying to get
backpay
 statute: Postmasters shall be appointed and removed by president and with advice and
consent of senate, and shall hold their offices for four years unless sooner removed or
suspended.
 Issue: did this encroach on president’s power to removal (advice and consent to
remove too)
 Holding: POWER TO REMOVE IS INCIDENT TO POWER TO APPOINT: THEREFORE
CONGRESS CANNOT REQUIRE THEIR ADVICE AND CONSENT TO REMOVE AN
EXECUTIVE OFFICER.
o Reasoning: president takes care laws are executed, can’t do it alone, so makes
appointments. Must be able to remove the officers to make sure laws being
faithfully executed.
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o Power of removal is incident to the power of appointment, not power of
advising and consenting
o At minimum: this means congress can’t reserve removal role to itself.
Second way to control removal…
Humphrey’s Executor v. United States (FTC officer case: beginning of indi agencies: congress can
place limits on presidential removal of quasi legislative or quasi judicial agency officers. Myers
restricted to purely executive officers)
 Statute: commissioners of FTC appointed by the prez with adivise and consent of
senate, but can only be removed by president for inefficiency, neglect of duty. (not
congressional power to reject removal)
 Issue: can congress restrict president’s ability to fire FTC officers only for cause?
 Distinguish from Myers: President had unfettered removal over Myers because he was
purely an executive officer.
o Here: FTC officials don’t exercise executive authority: they are quasi legislative
and quasi judicial duties: therefore Myers doesn’t control, and congress can
limit firing.
o BUT: FTC officers enforce and implement trade laws: isn’t that executive?
 They promulgate rules: but following congressional direction
 Therefore under non-delegation (following intelligible principle): not
legislative (so executive). But under removal analysis, are not executive.
o This was beginning of independent agencies: CONGRESS CAN CREATE
AGENCIES WITH OFFICIALS NOT UNDER UNFETTERED PRESIDENTIAL
REMOVAL POWER. Depends on the nature of the agency
 Congress can create these agencies: in so, they can set terms for
removal of their officers
 So now: question is if agency is executive or not
 If executive: no additional grounds for removal
 But if legislative or judicial: can place limits on removal
o This was formalist means of creating independent agencies.
Policy behind this
 For restrictions on removal
o Immunize officers from realities of politics (FTC commissioner preventing
friend of prez from monopolizing the market)
 For unfettered removal ability
o Formalist: prez responsible to take care of law effectively: can’t do that if can’t
fire
o Functionalist: people will blame the president for actions beyond his control
 Indi officers not elected, no accountability if can’t get fired
Bowsher v. Synar (comptroller budget case: congress cannot reserve power over officer doing
executive role)
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Statute: balancing federal budges. Comptroller general (head of GAO) gets budget
reports: comes up with way to balance budget.
o Comptroller general: president chooses from 3 ppl congress gives him
o Violation of non-delegation? NO: intelligible principle to follow
o Comptroller can only be fired by 2/3 vote in both house and senate (and prez
can veto)
Rule: congress can’t reserve removal power to itself for
Court Burger (formalist reasoning): THE STATUTE IS UNCONSTITUTIONAL:
COMPTROLLER GENERAL IS EXERCISING EXECUTIVE POWER (INTERPRETING
STATUTE TO FULFILL FUNCTION): AND CONGRESS IS RESERVING REMOVAL POWER
 Exercise of authority by an officer removable for cause by a joint
resolution of congress is analogous to the impermissible execution of
law by congress
o Reasoning: 1. Comptroller general is exercising executive authority. 2. Congress
maintains control over comptroller general (can fire him with 2/3 vote):
therefore: statute is unconstitutional
o But question? Isn’t comptroller general exercising legislative and not executive
power? Apportioning funds is legislative role: “has effect of duty and rights of
ppl outside the legislature.”
Stevens Concurring: (formalist as well): Comptroller is agent of congress, making a
legislative action (making budget): does that with out presentment or bicameralism:
therefore unconstitutional.
o Cant delegate congressional power to officer, one house, or individual. Bc gotta
follow article I sec. III
 Congress can’t delegate power to itself without going through procedure
of constitution.
White Dissenting: (this is overly formalistic): minimaly significant legislative feature
to invalidate huge statute.
o The removal of comptroller general is harder than normal impeachment. Bull
shit threat to separation of powers.
Appointments and removal…
Marrison v. Olson (essentially overrules Myers) (special prosecutor case: 1. Can’t be incongruity
between functions performed by delegating authority and performance of duty they appoint. 2.
Limitation on presidential removal is okay as long as it won’t substantially interfere with his ability
to execute the laws)
 Statute: ethics in government act: appointment of an independent special council as
needed by a 3 judge panel to investigate and prosecute high level government officials
who were suspected of breaking federal criminal laws. AG does investigation, if finds
reasonable grounds to find misconduct: must go to special division of court.
o Could be appointed only by a request of the attorney general and could be
removed only by the attorney general, for good cause, or by congress through
impeachment
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o Challenge: 1. Not appointed by the president (only matters for principle
officers) 2. Who can appoint 3. Not removable at will of A.G. or prez and 4.
Independent from the president (all violates separation of powers)
 This was congress way to respond to Nixon problem of firing special
prosecutor.
Holding Reinquest: (functionalist)
Issue 1: is the special prosecutor a superior or inferior officer
o If superior: president must appoint: so would be unconstitutional
o If inferior: then can you allow judicial panel to appoint?
 Factors to see if inferior:
 1. Subject to removal by higher branch official: inferior rank
(but here needs good cause) to A.G.
 2. Limited duties: doesn’t have power to make policy: so
probably more inferior (like head of DOJ might have)
 3. Limited jurisdiction: more limited, more likely to be inferior
 4. Limited Tenure: single task
Issue 2 (came about from issue 2): can congress grant the appointment power in the
judicial branch
o No textual commitment: just says “as they see proper”
 “CONGRESS’ DECISION TO VEST THE APPOINTMENT POWER IN THE
COURTS WOULD BE IMPROPER IF THERE WAS SOME INCONGRUITY
BETWEEN THE FUNCITONS NORMALLY PERFORMED BY THE COURTS
AND THE PERFORMANCE OF THEIR DUTY TO APPOINT”
 Application: it’s fine: bc courts appoint private attorney for prosecution
all the time: same thing
Issue 3: Is the limitation of presidential removal okay?
o Humphrey: only for purely executive officer, need unfettered removal. If quasi
legislative or quasi judicial: then congress can restrict.
 Here: special prosecutor seems to be purely executive: definition of
executive.
o Holding: reading Humphrey’s and Myers: CONGRESS CAN’T LIMIT
PRESIDENTIAL POWER TO REMOVE AN OFFICER IF THAT WOULD
IMPERMISSIBLY INTERFERE WITH PRESIDENT’S POWER TO CARRY OUT
LAWS.
 so in application:
 the less executive: the less it’s gonna interfere with with
president’s power to carry out law (more toward Morrison, but
not absolute)
 the more inferior: the less likely to interfere probably
o BUT: no-at will firing: doesn’t mean superior officer (here)
 Application: Court making functionalist argument: bc limited in scope,
duration, and jurisdiction: prez’s lack of ability to fire at will would not
impermissibly interfere with ability to carry out the laws (But see
Clinton)
SCALIA DISSENT (formalist and functionalist argument):
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o Objected to both parts of holding
 1. Inferior v. principle: not inferior bc not subordinate to anyone
 Whole point of statute: to render prosecuter independent
 2. Removal provision (unitary executive theory)
 prez has absolute exec. Power
 independent council gets executive power
 not subject to presidential control
 so unconstitutional: giving president’s exec power w/o prez
control: congress taking away some of executive power
o balancing tes is bull. Bc constitution gives all exec power to
president
 here (unitary exec theory): whatever power the president has, he
can control all of it
 majority: functionalist argument: formalist unitary power theory leads
to bad results: Watergate firing (but political pressure led to rehiring)
 Scalia: functionalist answer
o Conflict of interest: sure, but same as congress deciding
own salary: unavoidable
o And there is a political check: if abuse power: you wont be
reelected (forced Nixon to higher new spec. prosecuter)
o So constitution created sole executive: solving the
problem: ppl will know to not reelect president
 Furthermore: the balancing approach is just wrong: this will
substantially interfere: (Ken Starr: no accountability to public
pressure: went after Clinton like a mad man).
Inferior/superior Officer questions?
 4 factor test from Morrison
o 1. Subject to removal by higher branch official: inferior rank (but here needs
good cause) to A.G.
o 2. Limited duties: doesn’t have power to make policy: so probably more
inferior (like head of DOJ might have)
o 3. Limited jurisdiction: more limited, more likely to be inferior
o 4. Limited Tenure: single task
 Alternative Test: If subordinate, then you are inferior
o BUT: then all sorts of very important ppl that do whole appointment process:
they are actually inferior officer. Only ones left are cabinet members
 Since then: courts have cited this factor as most important one
 Scalia Dissent: necessary, if not sufficient.
Formalist v. Funcitonalist Problem
 Chadha and Clinton v. New York: formalist thingking is unsatisfactory: imposing rigid
typology where it’s hard to calssify
 Morrison: functionalist: just ended up being wrong (Clinton scandle)
o Smart judges: but isolated
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Free Enterprise Fund v. Public Company Accounting Oversight Board (multi level protection: not
allowed to have two layers of tenure: bc prez cut out of decision)
 Statute: SEC commissioners can only be fired for neglect of duty, inefficiency, and
malfeasance of office. Created board under SEC: that could only be fired for good cause
o accountable by removal.
 Run through precedent
 Humphrey’s Executor: congress can create independent agencies
with limited power for president to remove (good cause)
 Morrison: this applies to executive officers as well
o Issue: can prez be restricted in his ability to remove a principle officer, who in
turn is restricted to remove an inferior officer.
 Narrowist: would only count where inferior officer determines policy
and enforces the laws of US (is an exec officer): but not exactly clear.
 Roberts: Opinion (formalist): this is contrary to article II. TWO LEVELS OF
PROTECTION REMOVE THE PRESIDENT FROM ANY DECISION ON WHETHER GOOD
CAUSE EXISTS TO REMOVE AN EXECUTIVE OFFICER.
o Rationale: constitution is understood to employer president to keep officers.
This makes president have no role in decision of firing an executive officer.
 Therefore: prez plays no role in making sure laws are faithfully executed
 If president disagrees with the determination of good cause firing, can’t
fire the principle officer (so can’t hold anyone responsible)
 That is unless it was a malfeasance, inefficiency, or neglect of duty
 But not necessarily the case: so unconstitutional: president can’t
hold ppl accountable
o Court just struck the second layer of protection
 Court said determination of inferior officer: whether one is an inferior officer depends
on whether he has a superior, and that inferior officers are officers whose work is
directed and supervised at some level by other officers appointed by the president
with the senate’s consent:
o here: court said it was inferior: but seems also principle officer bc not fireable at
will by anyone: however: Morrison: good cause doesn’t mean principle officer
 Hypo Problem: seems board members are principle officers: (don’t really report to
anyone: except special prosecuter wasn’t primary officer: Morrison)): and not
appointed by prez
o Plus: first layer of protection gives the same problem to president not have
same control. If primary officer just doesn’t want to fire: same problem as above
 Dissent: (functionalist): look at four options
o Prez/SEC commission: both want to fire: doesn’t matter
o PRez/Sec commissioner: both want to keep: doesn’t matter
o Prez wants to Fire/SEC officer wants to keep: Layer one allows SEC
commissioner to make that determination. Layer 2 is irrelevant
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BUT: the decision not to fire (despite good cause): could not be
malfeasance of office, inefficiency, or neglect: therefore prez is more
restricted in holding ppl accountable.
o Prez wants to keep/SEC wants to Fire: layer 2 actually helps the president keep
person in place

Breakdown (Tree): of removal Power
So what’s the state of presidential removal power?
 Congress can’t reserve to itself the power to remove an executive official…
o By assuming power to fire (Bowers: reserving control over comptroller)
o By requiring president to seek advice and consent of senate (Myers: part that’s
still good law)
 Congress can impose at least some limits on presidential power to remove
o As long as the restriction would not impermissibly interfere with executive
duties (Morrison: congress can limit A.G. and president’s ability to fire as long
as it does not impermissibly interfere with president’s ability to execute the
laws)
Hypo: congress imposes limit on ability to fire A.G.
 Can’t say need advise and consent (Myers)
 But can limit removal: as long as it wouldn’t impermissibly interfere with ability to
execute law:
o this might go to far. A.G. is chief prosecuter, too important to presidential duty
 Humphrey’s Executor: does not say mere fact that A.G. is principle officer makes any
restriction on firing unconstitutional. But might show evidence
o Commissioners of FTC: principle officers: but can limit (Humphrey’s)
 But double level protection is not okay, at least for exec officers: (Free
Enterprise)
o Even if Purely executive (Morrison: not dispositive test)
o Question is: how important is officer to president’s execution of the law?
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