Constitutional Law: Outline of the Outline
CAN THE COURT HERE THIS? ........................................................................................................................................ 6
General Review ............................................................................................................................................................... 6
Marbury v. Madison (Established Court’s authority for judicial review of federal legislation
and executive ends: court will reverse statutes that conflict with constitution) ............................. 6
Martin v. Hunter’s Lease (SC has constitutional authority to review constitutionality of state
court decisions (essentially can review state decisions that rest on federal law): since federal
law supreme: that means review question of federal law. Also applies to state legislative and
executive action; criminal and civil) .................................................................................................................. 6
Cooper v. Aaaron (when SC interprets the constitution, that interpretation is supreme law of
the land and binding on everyone) ..................................................................................................................... 7
1. Is it a political Question? ......................................................................................................................................... 7
Baker v. Carr (district apportionments case: 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) ........................................................................ 7
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)) .................... 8
Nixon v. United States (senate has sole power to try impeachments, the courts cannot review
impeachment proceedings) ................................................................................................................................... 8
2. Is there a procedural Issue? Mostlly Case/controversy/Standing ......................................................... 9
Muskrat v. United States (Court will not issue advisory opinions: need a case or controversy)
........................................................................................................................................................................................ 10
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) ................. 10
3. Congressional Control of Supreme Court Jurisdiction ............................................................................. 11
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) ............................................................................................................................ 11
Federalism Questions (1. federal power generally 2. commerce power (early, middle, late) 3.
taxing and spending powers 4. state autonomy and congressional power to regulte states 5.
federal limits on state power (Preemption, DCC)) .............................................................................................. 13
Generally ......................................................................................................................................................................... 13
1. The scope of federal power................................................................................................................................. 13
McCulloch v. Maryland Part I (Bank 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; states can’t tax federal gov; SHOPLIFT) ............................................. 14
McCulloch v. Maryland Part II: (Necessary and proper: not strictly necessary; broad discretion
of the means by which powers fed gov can carry out power it has) .................................................. 15
McCulloch v. Maryland Part III: (states can’t tax fed gov) ...................................................................... 15
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) ..................................................................................................................................................................... 15
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Commerce Power (early Years) what can the federal government do? ................................................ 16
Gibbons v. Ogden (ferry case: defining the commerce power (commerce, among the states,
regulate): 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) 16
United States v. E.C. Knight Co. (Sugar monopoly: commerce power does not include power
over everything that implicates interstate commerce (manufacture)) (1895) ............................. 16
Shreveport Rate Case (R.R. rates case: congress can regulate intrastate rates of common
carrier that have substantial effect on interstate commerce) (1914) ............................................... 17
Champion v. Ames (lottery: congress can regulate the transportation of goods in interstate
commerce (lottery tickets): motivation is irrelevant) (1903) .............................................................. 17
Hammer v. Dagenhart (child labor: commerce power does not include regulation of interstate
goods that affect local activities (production)) (1918) (overturned by Darby) ............................ 17
Carter v. Carter Coal Co. (coal worker hrs: commerce power does not include power to
regulate activity (producing) just because it affects commerce) (1936) ......................................... 17
Commerce Power: Middle Years (expanding): constitutional moment ................................................. 18
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 (getting
rid of pre/post shipment distinction)............................................................................................................. 18
United States v. Darby (labor standards in shipment: effect on local activity doesn’t matter)
(commerce power extends to intrastate activities that substantially affect interstate
commerce) (ends not important) (overturns Hammer) ......................................................................... 18
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) .............................................................................................................................................................. 19
Heart of Atlanta Motel v. United States (discrimination affects interstate commerce, so within
commerce power: applying rational basis) .................................................................................................. 19
Katzenbach v. McClung (BBQ case) (congress can compel non-discrimination on commerce
grounds when food provided traveled through interstate commerce) ............................................ 19
Commerce Clause: recent Cases: 3 categories.................................................................................................. 20
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: too attenuated to economic won’t count)
........................................................................................................................................................................................ 20
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:) ...................................................................................... 21
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)
........................................................................................................................................................................................ 22
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) ................................................................................................................................. 23
Roadmap for dealing with Commerce Clause Questions ................................................................ 23
2. Taxing Power .................................................................................................................................................... 24
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Child Labor Tax Case (can tax as long as primary purpose is to raise revenue, not to regulate
through taxation) .................................................................................................................................................... 24
Unites States v. Kahriger (Gambling tax case: without penalty provisions for breach of activity
under regulation of state, court will not invalidate a tax.) ..................................................................... 25
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) .................................................... 25
Spending Power ........................................................................................................................................................... 26
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) ...................................................................................................................................................... 26
South Dakota v. Dole (drinking age case: Congress can regulate beyond commerce power
through conditioned grant of money) ............................................................................................................ 26
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. Severed part) ......................................................................................................................................... 27
State autonomy from congressional control..................................................................................................... 27
National League of Cities v. Usery (no fed min wage on state employees, overruled by Garcia)
........................................................................................................................................................................................ 27
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
(political), not 10th amendment). .................................................................................................................... 27
States do have some protections… ....................................................................................................................... 28
New York v. United States (Toxic Waste Case: Fed can’t compel states/local legislators to
enact and enforce a federal regulatory program) (doesn’t apply to spending power, but could
be coercive) ............................................................................................................................................................... 28
Printz v. United States (cannot compel state/local executive officers to enforce federal
regulatory program).............................................................................................................................................. 28
Federal Limits on State Power (no state power over federal gov) .......................................................... 29
U.S. Term Limits, Inc v. Thornton (states have no power respecting the federal government
that the constitution does not grant) .............................................................................................................. 29
Federal Preemption .................................................................................................................................................... 29
Silkwood v. Kerr McGee Corp. (federal nuclear safety law: preempted state regulation, but not
state tort action; bc that’s not in congressional scheme)........................................................................ 29
Preemption Tree .......................................................................................................................................................... 30
Dormant Commerce Clause ..................................................................................................................................... 30
Gibbons v. Ogden (start of dormant commerce clause) .......................................................................... 30
Facially Discriminatory Cases................................................................................................................................. 32
Dean Milk Co. v. City of Madison (milk case: cannot regulate, even if protecting legitimate local
interest, if there are reasonable non-discriminatory alternatives) .................................................... 32
City of Philadelphia v. New Jersey (state laws that discriminate on their face are
presumptively unconstitutional)...................................................................................................................... 32
Camps Newfound/Owatonna, Inc. v. Town of Harrison (Maine Camp Case: Same definition of
commerce applies to DCC as to affirmative commerce power) ........................................................... 32
Discriminatory in Purpose and Affect (Category II) ...................................................................................... 32
Regulation that burdens interstate commerce: PIKE balancing approach (category III) ............... 32
3
South Carolina State Highway Dept. v. Barnwell Bros. (regulation on S. Car. Roads for trucks
was okay bc it did not discriminate) ............................................................................................................... 32
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) ...................................................................................................................................................... 33
Southern Pacific Co. v. State of Arizona (RR LENGTH: INVALIDATED STATUTE BECAUSE IT
IMPOSED A SERIOUS BURDEN ON INTERSTATE COMMERCE: APPLYING PIKE TEST) ............ 33
Exception to DCC: Market Participant ................................................................................................................. 33
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).......................................................................... 33
Exception to DCC: Congressional Consent ......................................................................................................... 34
Prudential Ins. Co. v. Benjamin (insurance tax case: when congress has acted affirmatively to
allow non-uniform treatment: DCC does not apply)................................................................................. 34
Decision Tree for Federalism Based Concern .................................................................................................. 34
Seperation of powers: exec power of domestic; Exec power of foreign; war on terror; exec
priv/immunity; congressional control of leg.; congressional control of exec (appts/removal ......... 36
Executive Power of Domestic Affairs ................................................................................................................... 36
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) ......................................................................................... 36
Executive Power in Foreign affairs....................................................................................................................... 37
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) ........................................................................................................................................................ 37
Executive Power: War on Terror .......................................................................................................................... 38
Ex Parte Milligan (if detained without writ being suspended: citizen have right to normal trial
even if writ has subsequently been suspended) ........................................................................................ 38
Ex Parte Quiran (german sub case: unlawful enemy combatants can be denied jury trial and
be subject to military tribunals) ....................................................................................................................... 38
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) ............................................................................................................... 38
Hamdan v. Rumsfeld (president cannot try non-citizens by military commission (against
Uniform code of military justice) absent congressional approval)..................................................... 40
Executive privilege...................................................................................................................................................... 40
United States v. Nixon (criminal privilege: president enjoys a qualified executive privilege
in criminal proceedings: better claim if national security type thing) .............................................. 40
Presidential immunity ............................................................................................................................................... 41
Clinton v. Jones (the president is not immune from suit for actions done before he was in
office)........................................................................................................................................................................... 41
Congressional Control: the legislative Process ................................................................................................ 41
Non-Delegation Doctrine: congress, which the constitution grants the legislative power,
cannot delegate that power: needs clearly intelligible principle: bc then it’s not delegating
legislating................................................................................................................................................................... 41
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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) .................................................................................................................................................. 42
Legislative Veto: bicameralism presentment issue........................................................................................ 42
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) ........................................................................................ 42
Line item veto: Non-delegation or separation of powers? Bicameralism presentment cont…
Combing above two .................................................................................................................................................... 43
Clinton v. New York (line item veto case: it’s unconstitutional because it violates
bicameralism/presentment. Seems like a non-delegation issue though) ........................................ 43
Congressional Control: executive Offices ........................................................................................................... 43
Appointments clause: article II sec. 2: ............................................................................................................ 43
Removal........................................................................................................................................................................... 44
Myers v. United States (congress cannot reserve role in power to remove officers (completely
unfettered part ruled out)) ................................................................................................................................. 44
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
(even principle ones). Myers restricted to purely executive officers) ............................................... 44
Policy arguments for unfettered v. restricted removal ........................................................................... 45
Bowsher v. Synar (comptroller budget case: congress cannot reserve power over officer doing
executive role) ......................................................................................................................................................... 45
Marrison v. Olson Removal (essentially overrules Myers; Humphreys) (special prosecutor
case: Limitation on presidential removal is okay as long as it won’t substantially interfere
with his ability to execute the laws) ................................................................................................................ 45
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) ............................................. 46
Appointments ............................................................................................................................................................... 47
Marrison v. Olson appointments (essentially overrules Myers) (special prosecutor case: 1.
Can’t be incongruity between functions performed by delegating authority and performance
of duty they appoint. 2. Who count’s as principle/inferior officer) .................................................... 47
Standards of Review
 Complete Deference
o Political Questions
 Rational Basis: there must simply be a rational basis to believe the means are towards a
legitimate government (within it’s power) objective (McCulloch v. Marlyand)
o Virtual per se upheld
 Middle Level Standard: important ends with substantial relations
o Ex.
 Strict Scrutiny: the objective pursued must be compelling and the means chosen must be
necessary to achieve that end. (Dean Milk)
o Necessary: no possible less restrictive ends
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
o Government action (usually gonna be state action): will almost always be struck
down
Per Se Test: not valid
CAN THE COURT HERE THIS?
General Review
Supreme Court Powers
 Review of constitutionality of federal statutes (Marbury v. Madison)
 Review of State Court Decisions: When they have to do with federal law (Martin v.
Hunters Lease)
 Federal Jurisdiction: Art. III sec 2:
o 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 Congress decides what type of cases the SC may hear, but can’t expand past general
federal judicial power
 Question still open congress could prevent federal review (appellate or
original) in a whole field.
Marbury v. Madison (Established Court’s authority for judicial review of federal legislation and
executive ends: court will reverse statutes that conflict with constitution)
 Court avoided answering the real question by saying it’s O.G. under the judiciary act was
unconstitutional, therefore couldn’t hear case.
o Read “shall” as “may only” (but this mutually exclusive list decision later reversed)
o Said judiciary act gave court MORE power than constitution said it could;
 But now: if there is a constitutional and an unconstitutional way to read a statute, read it as
constitutional
 Marshell Used 8 arguments: structure; institutional logic; nature or written constitution;
judicial function; textual; judicial expertise; democrative theory; undemocratic theory.
Martin v. Hunter’s Lease (SC has constitutional authority to review constitutionality of state court
decisions (essentially can review state decisions that rest on federal law): since federal law supreme: that
means review question of federal law. Also applies to state legislative and executive action; criminal and
civil)
 Textual argument: shall=must at least be able to review fed questions.
o Since fed. issues arise in state courts: gotta be able to review otherwise won’t
necessarily have power of federal questions
 Uniformity argument: want uniform interpretation of fed. Law everywhere
 Institutional rationale: point of fed. Cts was bias local interests. (applies to criminal in
Cohen v. Virginia)
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Cooper v. Aaaron (when SC interprets the constitution, that interpretation is supreme law of the land and
binding on everyone)
 Doesn’t just bind the parties: but everyone
 Court is just making it clear what constitution is saying: and constitution is binding on
everyone. So SC decision is just like plain language of constitution.
Dickerson v. US: congress can’t pass bill previously declared unconstitutional
How Can Prez/Congress oppose courts decision
1. Voice opposition
2. Power of appointments
3. Take narrow view of holding: court just binding on two parties (BUT Cooper v. Aaron)
4. Presidential non Acquiescence: just don’t listen (never done)
5. Congressional response: statute against SC holding
a. Depends on broad or narrow view. But can make slight changes to get around
reasoning of ct but still overrule (BUT Disckerson v. US)
6. So when prez fights the court: gotta do it in court: (oath they take is to uphold court
decisions too: since that’s the constitution now)
Requirements for judicial Review (federal law-Marbury) (state court, exec, and leg against fed.
(thus supreme) law-Martin v. Hunter’s Lease) (everything else in their jurisdiction: but seems
appellete review can be restricted)
Can the Court hear the Quesiton?
1. Is it a political Question?
Baker v. Carr (district apportionments case: 1 of 6 factors must be present for question to be nonjusticiable political one. Equal protection claims on state assembly apportionments are justiciable (1
person 1 vote), don’t violate any of factors)
 Factors (1 of which must be present to be a political question): none here
o 1. Textual commitment: constitutional text commits decision to another branch
o 2. Lack of judicially manageable standards: no standard to resolve question
 1 person 1 vote standard
o 3. Policy determination: initial policy determination (role of leg.) necessary for
court to make a decision
 1 person 1 vote: that was fine: even though previously thought of as policy
determination
o 4. Avoid disrespect: some need to avoid disrespecting another branch
 seems impossible in any court decision
o 5. Unquestioning adherence needed: some need to adhere to another branch of
gov. where political decision already made
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o 6. Avoid embarrassment/One Voice of government: need for gov to speak with
one voice to avoid embarrassments from various pronouncements on single issue
by diff. departments. (maybe int’l stuff)
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))
 “house shall be judge of its members” not enough of a textual commitment. Only judge the
three factors: age, citizenship, residency
o ethical conduct attachment: beyond constitution. And not textually committed to
house to decide
o court: deciding what constitution says: decided those are the only three
requirements constitution puts on congressman
but then opposite as above…
Nixon v. United States (senate has sole power to try impeachments, the courts cannot review
impeachment proceedings)
 delegating some of impeachment proceedings to committee is political question
 Court says: this is political question: court can’t review senate impeachment proceedigns
o Textual: “senate has soul power to try cases” (BUT powell: just opposite)
o Lack of judicially manageable standards: what does “try mean”
 Nothing for court to decide if Nixon was tried
o Judicial shouldn’t interfere in procedure for removing judges
 Concurrences: should be able to review if congress adhering to procedure (White and
Blackmun), or at least if senate acting in manner seriously threatening to the integrity of
the decision (Souter)
Seems every judicial review violates the political question factors
1. Text: Marybury not from text
2. Lack of standard: that’s what constitutional questions are all about
3. Policy: policy determinations based on constitution are still policy
4. Avoid disrespect: every time you strike anything down
5. Need for unquestioning adherence: Just what Marbury said you can do
6. Avoid embarrassment: same with Marbury
Factros are circular/manipulatiable: but still there: power to punt
 To remain a-political: remain good in public eye
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: (Suiter:
Nixon Concurrance)
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2. Is there a procedural Issue? Mostlly Case/controversy/Standing
o article 3: “cases” and controversies”: limits what supreme court can here
 1. No advisory opinions: beyond limits of constitution
 2. Is there standing?
o Injury: suffered or likely enough
o Injury is individualiises
o Action challenged is cause in fact
o redressibility
 3. Is It Moot?
o Moot if events after litigation filed deprived litigant of stake
 4. Is it Ripe?
o Must be sufficiently concrete to adjudicate
 5. Political question?
o Raises an issue whose determination is clearly committed by the constitution to
another branch of the federal government, rather than to the judiciary
 6. Has congress stripped judiciability? Unclear if it’s okay if they don’t have original
jurisdiction
1. No advisory opinions (Muskrat v. US)
 article III is only cases or controversies: so won’t give advisory opinions
 bc better decisions when have adverse parties
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 threat is not enough
 usually to challenge law: break it, try to argue invalid: can’t get a declaratory judgment on
the law.
 Two alternative ways
o 1. The hardship P will suffer with or without pre-enforcement review (AND)
 the greater the hardship P will suffer: more likely federal court will hear?
o 2. The fitness of the issue and the record for judicial review
 does federal court have all it needs to decide the issue?
 Even if hurt by law’s potential: (like lowered stock value): can’t bring suit
3. Mootness: if injury to P ends after the case is filed, case shall be dismissed as moot
 Central issues are moot: parties don’t have sufficient stake
4. Standing: (the who question: focus on the party): litigant must have significant stake in the
controversy to merit his being the one to litigate it.
 This is only thing that focuses on the party: not the matter
 So what kind of interest in outcome is enough?
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
o Not sufficient: general interest of a citizen in having his government behave
constitutionally is not sufficient.
 More than citizen at large: more than ideologically P (Allen v. Wright)
Three requirements
o 1. Injury: P must have been or eminently will be personally injured
 actual and concrete: not merely speculative
 Boochey Case: not let in to medical school (said wasn’t traceable bc he
wouldn’t have been let in despite affirmative action): BUT: affirmative
action cases: lost opportunity to compete: counts as injury
 can’t come too far in the future or too speculative
 must be a concrete and individualized harm
 not minority group (Meyer v. Wright)
o 2. Traceability: injustice must be fairly traceable to D’s unlawful conduct: court not
interested in percentages/speculation
o 3. Redressability: favorable court decision for P against D would redress the ability.
 Relief being sought, if granted, has a reasonable likelihood of redressing the
injury
 Affirmative action cases: redressible in getting chance to compete
o Luhan Case: if you are being regulated by the agency: you have standing (like school
bringing suit)
 Apposed to Allen: not being regulated, but kind of effected by it: no standing
Muskrat v. United States (Court will not issue advisory opinions: need a case or controversy)
 Just asking advice on constitutionality of possible law not allowed
 Need individuals bringing suit
o Must by case or controversy: what it sounds like (controversy could be slightly less
than a case: some issue in civil suit)
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)
 Not saying they were discriminated against: but that IRS breached duty
o Stigmatic injury: IRS being racist
o Real Injury: lost chance to attend desegregated schools
 4 reasons for rejecting this type of claims
o 1. Docket: stignamtic injury: too many ppl could bring suit. (anyone felt
stigmatized)
o 2. Separation of powers: P’s asking courts to take executive role: making sure IRS
performing the law better
o 3. General grievance: political process to resolve generalized grievances: not the
courts role
 can’t sue as citizen based on interest of gov. following law
 BUT: seems political process didn’t work: ran it’s course, IRS not
doing law, they’re not maj.
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

o If they had been denied entry: would be allowed to bring suit
probably.
o 4. Stake in outcome: having real stake in outcome makes sure best arguments
 without: undermines case/controversy: BUT: clear stake if took it to supreme
court: presumes ideologically driven P’s not zealous
Requirements for Standing
o 1. Injury: need a cognizable injury
 1. Kids inability to attend desegregated schools: cognizable, but not traceable
or redressible to this
 2. Harmed by gov aiding discrimination: not cognizable: general class injury
o 2. Traceability: causation question the injury must be traceable to the thing you’re
challenging: not here bc too attenuated a connection:
 court wouldn’t accept a purely speculative connection
 dissent: elementary economics: majority didn’t buy it
o 3. Redressibility: granting P’s relief will resolve the injury
 here: speculative again: that denying tax exemptions would reduce
segregation
o if parents could show: that enough discriminatory private schools receiving tax
exemptions that made a real difference in desegregation: would have standing, as
long as the change would shift the proportions.
 BUT: if schools denied money: they would have right
Stevens DISSENT: opportunity for integration: % counts as good standing
3. 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
 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
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)
 Congress tried to strip jurisdiction after the person petitioned for habeas relief
 Statute was fine: bc congress can make exceptions to the appellete jurisdiction of the SC in
constitution
o This was not an exception to the O.G. of SC: that wouldn’t be allowed
 But if congress grants jurisdiction: it can take it away
o Leveling with Marbury: SC could still hear this type of case through original
jurisdiction: so not against Marbury
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o So court could not proceed on this case, BUT: could still hear through OG: Ex Parte
Yeger
Question Remains: can congress completely bar ability for SC to hear a type of case: never
answered
 Text: “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 SC must exist: seems must be at least able to hear cases under constitution
o But can strip appellate jurisdiction. BUT: hard to say congress could deprive all federal
courts ability to hear a type of federal issue
 Congress creates lower courts: could it regulate them?
o Federal question: “shall issue on federal law” so some courts gotta hear it
o Poltical battle: courts are resepected. But can’t answer too many political questions or
lose it
 BUT: Pledge protection act: would have stripped SC appellate jurisdiction. Still probably
fine, as long as some federal court can hear the issue
o What would probably be unconstitutional: is if no Federal Court could hear the issue
at all. Probably runs against Marbury interpretation of federal courts power: back to
“shall issue”
What happens with stripped SC jurisdction?
 Cons
o Reverse supreme court precedent (strip jurisdiction and let state courts do
whatever without reversal)
o Essential functions: get rid of check on congress (eliminate check)
o Uniformity/rule of law: constitution would mean different things in different
places
o Anti democratic checks: gets rid of these
 Pros
o Check: important check on rougue court
o Democratic values: let majority rule
Other methods of stripping courts power: would it be necessary given below?
 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
 4. Amendments to the Constitution: article V: can amend
 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
 6. The Bully Pulpit: enough attacks on court decisions, can affect
 7. The threat of non-acquiescence: never happened (political problems)
 8. Budget Constraints: can’t diminish a justice’s salary, but can reduce budget of courts
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FEDERALISM QUESTIONS (1. FEDERAL POWER GENERALLY 2. COMMERCE POWER
(EARLY, MIDDLE, LATE) 3. TAXING AND SPENDING POWERS 4. STATE AUTONOMY AND
CONGRESSIONAL POWER TO REGULTE STATES 5. FEDERAL LIMITS ON STATE POWER
(PREEMPTION, DCC))
Federalism Questions: are about the limits on state and federal gov. mostly about limits on what
federal government can do.
Generally
 “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
o question is: “as long as the means are rationally related to constitutional goal”
(McCulluch)
Centralize power…. (federal gov has enumerated powers; but supreme)
 National values: don’t let states make decisions on national values
 Maximize welfare: uniform rules might be better (articles of confederation problems, free
rider problems)
 Protect liberty: some rights all over: shouldn’t have to move to get them
Decentralize power… (state gov has police powers
 Maximize total welfare: more likely you get your way in your state (and can move if you
don’t
 Promote democratic republicanism: state/local govs more responsible
 Promote liberty: absolute power corrupts: and can move for more rights
 Laboratory: states can make best solutions, but also try stuff
Neither (no encroachment on indi rights; or concurrent powers)
1. 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
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



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 (Bank 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; states can’t tax federal gov; SHOPLIFT)
 SHOPLIFT argument for Bank being good.
 Bank (the means) is rationally related to the constitutional ends (taxing, commerce, raise
armies and navies):
o Gov doesn’t have to say what ends is
 Rejecting strict enumerated power: 10th amendment only covers what’s not under some
power of federal government.
Arguing for Federal Power SHOPLIFT
 History: post ratification
o 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” from enumerated
o In articles of confederation: “expressly” gave powers, constitution not
 Political Theory: route of declaration of independence
o Power lies with people: gave their power to federal gov
o Power comes directory form the people, not the states
o So states can’t exercise power over all people
 BUT: states just can’t exercise power over all ppl, doent mean fed can do this
 Logic: think of constitutional government logic
o Must read it broadly: to achieve the ends it was created for
o If list is just a code, then congress can barely do anything
 Institutional role of constitution
o If couldn’t be interpreted, would never be embraced
o Broad details should be filled in or won’t make sense
 Functional argument: think of functional way of achieving enumerated power
o “raise armies and navies” and “tax” so need bank to be able to collect tax
o congress must have ability to choose means of achieving enumerated powers
o to deny: denies congress of its reason for existing
 Text: we the people: people gave power to fed gov
o Dropped “expressly” from articles of confederation
o Intratextual argument: list of powers: why ID limit if these are explicitly all they can do?
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McCulloch v. Maryland Part II: (Necessary and proper: not strictly necessary; broad discretion of the
means by which powers fed gov can carry out power it has)
 Textual: N+P in sec. 8: giving power, not limiting it: if strict necessity, would be in section 9
as limiting
 Intra textual argument: art 1 sec 10: what state’s can’t do “absolutely necessary”: if meant
it would have said it
 History: debates: N+P thought of as giving power
o Madison: said fed has more powers than specifically enumerated
 Conclusion: constitution allows national legislation broad discretion with respect to
powers it has. That’s it’s legislative duty.
o 1. Ends are legitimate (within scope of constitution)
o 2. Means which are appropriate which are plainly adopted to that end (in letter and
spirit of constitution)
 unless expressly prohibited
 so almost complete deference to legislature in means as long as legitimate ends
o if stricter test: courts have to determine best way for ends, that’s legislative role
McCulloch v. Maryland Part III: (states can’t tax fed gov)
 federal gov is supreme. Power to tax is power to control. So states would be supreme
o structural: supreme power: taxing goes against supremecy
o Political Theory: part cannot impose tax on the whole: taxation without
representation
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)
 Look to see whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power
 Five points
o 1. Broad authority of N+P for federal crimes: already can do fed crimes: useful to
exercise of that power
o 2. Civil commitments: modest addition to fed priosn
o 3. Reasonable extended longstanding civil commitment system: can protect ppl
around prisons from ppl in fed jail, same for after
o 4. Statute properly accounts for state interest
o 5. Links between stuate and enumerated power aren’t too attenuated
 statute is N+P for what exercising same fed. Authority as federal crimes
o can make federal crimes, can make jails for them, part of jails power to protect ppl
around, just extending after sentence runes=not too attenuated. At least this isn’t
too attenuated
 THOMAS DISSENT: 2 steps is not okay. Crimes rationally related to enumerated power.
Jails N+P for that. But further is unconstitutional.
o BUT: what about prison guards? Or regulations on guards?
o Tension with federalism: by rational basis test congress setting it’s own limits
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Commerce Power (early Years) what can the federal government do?
Commerce Power
 Article I sec. 8: congress has 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: defining the commerce power (commerce, among the states, regulate):
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)
 Holding: federal law within commerce power; then supreme over the state law (Ogden thus
can’t claim Gibbens not allowed-bc fed let him)
 The commerce clause is expansive and broad
o Commerce: includes all commercial intercourse, including commercial navigation
and shipping of goods and ppl (not just buying/selling)
o Among the states=intermingled with the states
 Middle reading of among: congress can regulate intrastate matters if they
have an affect states generally
 So can regulate intrastate matters if they affect other states
o Regulate: plenary power: prescribe the rules in which commerce is to governed
 Full and complete power to regulate commerce, only subject to express
constitutional limits (essentially rejects 10th amendment as independent
limit)
 (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.”
Early Cases: Court Being A dick: regulating the thing directly
United States v. E.C. Knight Co. (Sugar monopoly: commerce power does not include power over
everything that implicates interstate commerce (manufacture)) (1895)
 PA corporation trying to control entire sugar market: prevented by Sherman anti-trust act
 Manufacturing is not commerce: it’s inherently local: so Congress can’t regulate
o Involves control of distribution: but that’s secondary, so can’t regulate
 Congress: can’t regulate anything that might implicate commerce
o Form over effects test
BUT THEN…
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Shreveport Rate Case (R.R. rates case: congress can regulate intrastate rates of common carrier that
have substantial effect on interstate commerce) (1914)
 Texas RR charging less for intrastate rates, even though shorter distance
 Holding: congress CAN regulate intrastate rates because they have an affect on interstate
commerce
 This is kind of precursor to “instrumentalities of interstate commerce”: category II
o Narrower holding: Can prevent common instrumentalities of interstate and
intrastate commerce from being used to discriminate against interstate commerce
 Effects over form
Commerce prohibiting technique to extend commerce authority
 Regulating the sale across state lines instead of the thing they wanted to regulate directly
Champion v. Ames (lottery: congress can regulate the transportation of goods in interstate commerce
(lottery tickets): motivation is irrelevant) (1903)
 Prohibited sale of lotter tickets across state lines: category I precursor
o Goal was to stop practice that was seen as immoral
 Holding: commerce clause s plenary (Gibbons), this is literally the regulation of items being
transported interstate: so within commerce power
 Just bc this power can be abused: doesn’t mean unconditional
o Motivation is irrelevant
o Form over effects test (but for more 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: said couldn’t ship goods produced with child labor interstate
o Means: interstate shipping (Champion)
o Ends: regulate manufacturing (E.C.Knight)
 Holding: this is invasion of purely local activity
o Congress cannot regulate commerce if the effect of that regulation is on local
activities
o If allow this: nothing left to states: violation of 10th amendment)
o Difference from Champion: the thing shipped was what was being regulated, here,
what’s truly regulated is pre-commerce
 DISSENT HOLMES: this is beyond Gibbons: plenary power of commerce: should be able to
literally regulate
o Can regulate shipment of the harmful good (the goal): but can’t regulate labor under
that guise
o Effects over form: motivation is relevant
Carter v. Carter Coal Co. (coal worker hrs: commerce power does not include power to regulate activity
(producing) just because it affects commerce) (1936)
 Statute: regulation of coal workers hours: through restricting shipment
 Holding: producing and shipping (commerce) are two different things
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o Congress may not regulate activity simply because it affects interstate commerce
o Difference from Shreveport: the thing they were regulating was before commerce:
so not okay
o Form over effects
Effects (substance) v. Form Cases OR direct cases (commerce) v. indirect effect (came before
commerce) cases
 After Hammer and Carter Coal: very strict test
o Carter coal: the thing regulating must be commerce
o Hammer: thing regulated must be the thing shipped to be commerce
Commerce Power: Middle Years (expanding): constitutional moment
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 (getting rid of pre/post
shipment distinction)
 Statute: NLRB regulated how steel mills could discriminate against employees: regulates
production directly
 Holding: substantial affects test: congress has the power to regulate local matters that
have a substantial affect on interstate commerce
o Power to regulate local matters that affect commerce is power to regulate
commerce. Without that power (to close and essential things) congress can’t
regulate commerce: N+P to commerce power
o Substantial affects test: to avoid unlimited national power: too attenuated a
connection wouldn’t be allowed (10th amendment concerns)
 Immaterial if regulation begins before/after interstate movement of goods
 Hiring/firing has substantial affect on interstate commerce: labor strike would fuck it.
 Implication that 10th amendment is not an independent limitation
Commerce to police power: the ends are not important…
United States v. Darby (labor standards in shipment: effect on local activity doesn’t matter) (commerce
power extends to intrastate activities that substantially affect interstate commerce) (ends not important)
(overturns Hammer)
 Statute: lumber industry: can’t ship goods in interstate commerce where employees aren’t
paid overtime/min wage
 Holding: congress can regulate interstate commerce regardless of effect on local activities
 Effects test: if regulated activity has affect on interstate commerce, congress can regulate
it. Also can regulate activity that would undermine congressional ability to regulate
commerce
o Extends to intrastate activities which affect interstate commerce or the regulation of
interstate commerce to make regulation of them an appropriate means of the
attainment of a legitimate end
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o The tenth amendment is not an obstacle to the this: congress already has
commerce power
 Regulating local activities that affect it: just part of commerce power
o Result: congress can impose any condition on activities that substantially affect
interstate commerce (without indi constitutional bar)
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)
 Statute: quotas on wheat production. Farmer was just doing home use
 Holding: if local activity, in the aggregate, has a substantial affect on interstate commerce,
then congress can regulate it
o Aggregate similarly situated ppl. Not being able to regulate would hurt ability to
regulate interstate commerce
 So question becomes: does it have a substantial economic affect in the aggregate (not is
it direct or indirect)
o Everyone who grows for home: doesn’t use interstate market
o So commerce power includes local activity that is not commercial
 Just rational basis: if congress has rational basis for holding that wheat
production for home use has substantial effect on interstate commerce: may
regulate
Civil rights application… (14th amendment was thought to only apply to gov)
 Civil rights act: “public accommodations can not discriminate”
 Rationale: because interstate travel (and food that passes) has significant impact on
interstate commerce: can regulate it
o But now can they do anything? Court: deference on this bc otherwise maybe civil
rights unconstitutional
 Applied Comstock: rational basis: it’s fine
 Test was: congress must have rational basis to think local activity, taken in
the aggregate, has substantial affect on interstate commerce
Heart of Atlanta Motel v. United States (discrimination affects interstate commerce, so within commerce
power: applying rational basis)
 Owner advertised/was used by out of state: discriminatory nature chills inter state travel
 Congress can regulate local activity if it has substantial and harmful effect on interstate
commerce. Means must be rationally related to the ends (enumerated power)
o Ends not important Darby
Katzenbach v. McClung (BBQ case) (congress can compel non-discrimination on commerce grounds
when food provided traveled through interstate commerce)
 Restaurant refusing to serve black ppl: food traveled through commerce
 Ruel: congress just needs rational basis to think regulated activity has substantial affect on
interstate commerce
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Scrutiny of commerce clause authority
 Rational basis: uphold if rational belief that activity, in the aggregate, could have
substantial affect on interstate commerce.
 Judicial restraint: when congress helping indi rights (let it go)
 Strict scrutiny: when protecting individual rights it seems
Commerce Clause: recent Cases: 3 categories
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: too attenuated to economic won’t count)
 Guns free school zone act: in category III without factors
 Category I 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; Heart of Atlanta (the ppl)
 Category II 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 (Shreveport Rate; Gibbins; McClung)
 Category III substantial Affect: congress can regulate activities that have a substantial
relation to interstate commerce
o Split between economic and non economic activity
 Below
 Rule from case: congress cannot regulate local, non-economic activity, simply because it
only has a substantial affect on interstate commerce when viewed in the aggregate (bc then
congress can regulate anything it wants)
o If economic: rational basis test: can view in aggregate
o If non-economic: look at following four factors (more vigilant in looking at them
than you would for economic: less deference)
 1. Jurisdictional elements: (category 1 and 2: automatic) look for a
jurisdictional thing linked to interstate commerce
 2. Findings: no findings necessary, but can help explain what congress is
doing
 3. Attenuation: inference after inference: maybe too attenuated: where
non-economic: more vigilant with attenuated arguments
 4. Traditional areas of state concern: family law/edu policy/crime:
traditional areas of state control: to make sure congress doesn’t completely
take over laws
o claimed they were not overruling Wickard: by distinguishing economic: seems
congress could definitely regulate buying and selling, then this aggregate might
matter
o apply stricter standard in non-economic activity: pay attention to elements
 BREYER DISSENT: apply the rational basis test: it’s fine
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o May want to limit commerce power: but no longer using rational basis test of
McColluch
Why would court protect state’s rights?
Reasons For (Lopez Majority)
 Institutional logic: congress wouldn’t self impose
 Precedent: courts have always had last say
 Protection of Liberty: ppl more free when states decide
 Conventional arguments: if accept judicial review, court should limit congress on
federalism issues
Let Congress decide (Breyer Dissent)
 History: states rights used for bad shit
 Political Safeguards: we can vote/veto
o Opposed to indi rights: where individuals don’t get political help, no state is like a
minority
 Institutional competence: congress better for economic questions
History has changed: might have different reasoning now
 1787: ppl didn’t have direct control over fed gov, now do, so states don’t need rights
 1787: ppl could only live in one place, everything was local: so local authority of it: now:
everything is interstate commerce: everything has out of state ripple
How to respond then?
 Thomas/Scalia dissent: congress power to regulate frozen at 1787 lvl
 Reihnquest (maj.) Souter: Middle: congress must reach new things bc the world is different.
But to give absolute congressional control is inconsistent with constitution
o Basically limits in spite of text
 Breyer: world has changes, everything has effect on interstate commerce. Congress can
regulate interstate commerce: so can regulate everything
Comes down to originalism v. non-originalism
 Originalism: conservatives: bc we were more conservative in 1787
o Judicial constraint: don’t want judges to find what they think should be in
constitution
o Consistency of law: if const. changes without amendment, what is it?
o Democratic values: changing constitution goes beyond election of it
 Rejecting laws on constitutional grounds: anti-dem.
 Non-originalism: liberals: can produce conservative results though
o Flexibility: framers wanted flexibility
o Legitimacy: if follow original meaning, nobody would find constitution legit
o Originalism: requires bogus historical support
o Anti dem needs: protecting minority in area silent on, or against
But in indi rights: originalist courts want restraint (not expanding const): but in federalism, same
judges say need intervention (bc at time of constitution: fed had less power)
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:)
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

Defended on aggregate: substantial affects on interstate commerce and economy (this
court saying that doesn’t work for)
Holding: Can’t regulate local non-economic activity (violence against women): if causal
cahin to substantial economic affect too attenuated
o Basically: just bc the activity will have an economic affect: doesn’t mean it can be
aggregated and in commerce: the economic affect can’t be too attenuated
o Here: violence against women hurts the economy
o Can’t regulate local non-economic activity if causal chain to substantial affect is too
attenuated
 Lopez factor 1: jurisdictional hook: not in this case: still probably relevant
 Lopez factor 2: Ignore congressional findings: bc otherwise congress could
regulate anything: which is inconsistent with limits on federal power and
traditional role of states (element)
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)
 This is an as applied challenge: how fed statute applies to individual
 Defended: CSA: in the aggregate, activity being regulated has a substantial affect on
interstate commerce
 So issue: is it economic? If so: then only need rational basis to find in the aggregate, it
has a substantial affect on interstate commerce
 Stevens Holding: CSA: regulates the commodities of interstate drug sale. Production,
distribution, and consumption of commodities with lucrative interstate market is an
economic activity
o Individual application is not a question for the court: just see if statute is
constitutional or not
o Because the CSA is economic regulation as a whole, the application of it is
consittuitonal
 Why is it economic?
o 1. (as applied) There will be affect on the commodity’s market: since users won’t
have to buy on the market
o 2. The CSA regulated the production, distribution, and consumption of commodities
for which there is lucrative market
o prohibiting intrastate production and possession of an article of commerce is
rational means for regulating commerce
 providing exception would undercut regulation of inter state commerce. So
as applied challenges are difficult: bc look at regulation as a whole
 conclusion: congress can regulate purely intrastate activity that is not itself commercial
(not produced for sale) if it concludes that failure to regulate that class of activity would
undercut the regulation of the interstate market of that commodity
o so can bring class III B into class III A by activity having an affect on interstate
commodities market
 SCALIA CONCURRANCE: yeah: that’s N+P for constitutional scheme
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
o So congress can regulate noneconomic, local, and intrastate activity if that
regulation is necessarily part of more general regulation of interstate economic
market
O’CONNOR DISSENT: activity is not commercial, it’s not economic, cannot be regulated
o About weed not in stream of commerce, not bought or sold
o This means fed. Reg. of local activity is immune to commerce clause challenge bc
congress acted broadly and ambiguously
 Means everything can be economic: staying at home playing charades (not
economic) an be regulated bc you’re not buying movie tickets
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: individual mandate: requiring individuals to buy insurance or pay government. BC
otherwise, nobody would get insurance (just buy it once you get sick and can’t get rejected)
o Seems to be easy application of Gonzalas: either directly economic or part of
economic scheme (health care transactions)
 HOLDING: Roberts: powr to regulate presupposes economic activity to be regulated: not
power to create it: the individual mandate does not regulate an existing activity, it compels
individuals to become active in market: on ground that failure to do so will affect
commerce
o Power to regulate commerce means there must be activity regulated
 Seems like bull: not getting insurance=economic; lots of other statutes let
congress compel us to do things; N+P to scheme
 Roberts on N+P: that’s about carrying into power something congress otherwise can do.
Commerce doesn’t allow congress to compel. Individual mandate vests congress with the
ability to create the necessary predicate to the exercise of an enumarted power: congress
is not permitted to tell us what to do under commerce clause (Katzenbach: force sale,
but sale already happening. PPL not buying insurance not doing anything (although self
insuring)
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 regulate 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
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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
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 non-economic
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)
2. Taxing Power
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
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taxation)
 Intent of law was the same as Hammer: trying to use it as a tax
 Holding: exercise of taxing power will be upheld if primary motivation is raising revenue,
but not if primary motivation is regulation through penalty (at least when congress can’t
regulate another way: now commerce wider)
o This was a fine: can’t pass law in Hammer, can’t pass it here
o Tax will be struck down if it regulates through penalty
 how to tell if it’s a penalty
 1. Does the tax impose an exceedingly heavy burden
 2. Is imposed exaction only on those who break a regulation (scienter)
 3. Tax enforced by department of labor
 But okay to have incidental regulatory affect
 How to tell if it’s a penalty: presence of extensive penalizing featured indicate
purpose was to regulate
Unites States v. Kahriger (Gambling tax case: without penalty provisions for breach of activity under
regulation of state, court will not invalidate a tax.)
 Challenged: congress just trying to regulate what they don’t have power to
 Court: penalty provisions added for breach of regulation concerning activities only subject
to state regulation caused court to declare taxes invalid.
o Unless there are provisions, extraneous to tax needs: courts without authority to
limit exercise of taxing power
 Jackson CONCURRING: all tax is social determination, this is approaching
unconstitutionality
 Frankfurter Dissent: can’t tax matters not within congressional power (court just shutting
eyes to matter of regulation 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)
 Apply child labor tax features
o 1. Does the tax impose an exceedingly heavy burden? NO
 it’s more or less price of insurance: you have a choice
o 2. Is it imposed exaction only on those who break a regulation? (state of mind
requirement): thatt’s typical of punitive statute
 here: no
 no scienter: not punishing unlawful act (and IRS can’t do criminal stuff)
o 3. Tax was enforce by DoL: here: IRS
 so not a problem
 complies with other tax rules: capitation taxes must be proportional: here,
not that kind of tax: so fine
 not a problem that it’s a tax for omission: don’t have to do something to be
taxed: whole point of capitation taxes
 power to tax is wider than commerce power: can influence conduct but can’t be punitive
 DISSENT: this is exactly a penalty: if you don’t follow regulation, you pay:
o Majority said: not punishment, it’s just a choice: just complying
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Spending Power
 Broader than commerce: but can’t be coercive.
 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”
1. Can congress rely on spending power to accomplish things not in commerce power?
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: Ag. Adj. Act: raise farm prices.
 Spending power three possible views?
o 1. Granting View: if in general welfare, can make rule (REJECTED)
o 2. Madisonian view: provide for general welfare: preamble to enumerated: so no
new powers (REJECTED
o 3. Hamiltonian View: middle ground: congress can spend for general welfare even
if congress could not achieve direct regulation (ADOPTED)
 BUT: congress use spending power to regulate something reserved to states: so…
o 1. Must be for the general welfare (everything)
o 2. Not used to coerce action left to state control
o problem is: everything not enumerated left to the states (10th amendment): so no
additional power
o Today: only followed for Hamiltonian Rule
 BUTLER Dissent: threat of loss rather than hope of gain is mark of coercion: so as long
as not coercing through threat of loss, in taxing power (later adopted)
2. can congress grant money to states to make states regulate in terms of federal power?
South Dakota v. Dole (drinking age case: Congress can regulate beyond commerce power through
conditioned grant of money)
 Could’ve probably passed rule directly, but avoiding 21st amendment questions
 Holding: even if congress can’t regulate using commerce clause, can seek to regulate that
area through conditioned grant of money
o 5 Factor test
 1. Must be in pursuant of general welfare: always defer
 2. Must be unambiguous: condition must be clear
 3. Germaneness: condition imposed must be germane to purpose for which
congress approved spending program to begin with
 4. Independent constitutional bar: can’t violate another provision of the
constitution (but not issues with NY/Printz bc that’s only about coercion)
 this is not new limit
 5. Coercion: can’t cross line between inducement to coercion
 5% cut was not coercive at least. It’s a question of degree
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
 if it’s grant, probably won’t be a problem
O’CONNOR DISSENT: germaneness issue: under and over inclusive
o Under: fails to apply to over 21 drunk drivers
o OVER: applies to under 21 non drinkers
o For her: can say how to spend money: but nothing more.
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. Severed part)
 ACA expanded Medicaid: states either accept it (and gov pays almost all) or lose all
Medicaid money (10-15% of total state budgets)
o Application of dole. Coercion problem: federal government may not compel states
to enact or administer a federal regulatory program
 Allowed to condition money so states will take action, but can’t regulate
 If it’s coercive: they are forcing regulation: not allowed (Printz)
 Threatening to take away old money v. giving new money: change in Kind v.
change in degree.
 Medicaid was given for neediest. Here: to socialize medicine. Different
thing, states now reliant on Medicaid, can’t now condition it
 Taking away 10-15% of budget is coercive. Money too much, couldn’t
just sit out Medicaid. No real choice. Forced states to adopt new
regulation or lose old money (but could just repeal old bill and
reenact): so court severed taking part: now states have choice
State autonomy from congressional control
National League of Cities v. Usery (no fed min wage on state employees, overruled by Garcia)
 Unconstitional under 10th amendment (carvout for compelling states)
 Telling states how much to pay employees does not let them make choices reserved to
them: carvouts congress cannot reach bc concerns about state sovereignty.
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 (political), not 10th
amendment).
 Minimum wage applies to state employees
 Court will not look for traditional areas of state control: the structure of constitution
protects states rights
o Political safeguard: states play a role in fed.
o Political theory: ppl can just not reelect their congressman if do this
o States rights generally: don’t need same protection as individual rights
 As long as fed provision falls in enumerated power, congress has power to act
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States do have some protections…
New York v. United States (Toxic Waste Case: Fed can’t compel states/local legislators to enact and
enforce a federal regulatory program) (doesn’t apply to spending power, but could be coercive)
 Statute to control nuc. waste: states asked for it. Getting rid of free rider problem. 3
provisions
o 1. Monetary incentive: approved (have choice): can charge other states more
o 2. Access incentives: approved: can deprive other states dumping
o 3. Take title provision: if state didn’t make a plant, forced to take title to waste
 this part unconstitutional: only left states with 2 unconstituitonal options to
be forced into…
 1. Take title to waste: no different then fed commandeering state in
service of federal regulation
 2. Force them to make waster site: commandeering state legislative
decisions
o problems
 Accountability: state official blamed for fed act (gotta fuck some town)
 No choice like in spending
 Text: 10th amendment preserves state power (but same problem as always)
 Original meaning/structure: 10th amendment: protects some state control:
 Articles of confederation: fed through states
 Constitution: fed direct over ppl: so lost power to regulate through
states: (BUT: constitution just gave more power, didn’t take away)
o Congress lacks authority to instruct states legislatures according to its directives
 Congress could do it themselves, but can’t compel states to do it (either
through coercive spending) or by directing state legislature
 BUT: protecting state’s rights by limiting states options
So here: concurrent powers are carved out when fed. Is telling state legislatures to do it rather
than doing it through federal execution
Printz v. United States (cannot compel state/local executive officers to enforce federal regulatory
program)
 Statute: temporarily compelled state officials to do background checks
 Scalia holding: congress may not compel the states to enact or enforce a federal law
o They can probably acquiesce: state tax collectors. And state judges do this, but
judges different that exec officers (they have constitutional authority to do so
o Original meaning: earlier congresses didn’t see self as having this power
o Structure: state/federal concurrent power over ppl: not fed over state
 Hurts accountability: ppl will blame local cop, not fed
 Same articles of confederation issue as above
o Precedent: Ny v. US: legislative version: but don’t have this power
 in every exec enforcement: there is some policy making: so forcing that
o congress cannot circumvent prohibition on forcing legislators to enact federal
regulatory program by forcing state officers to do it directly
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
Dissent Suiter: original meaning: everyone thought fed could do this.
Dissent Breyer: constitutions of other parts of the world: okay
Taken together: NY/Printz: what’s left?
 Congress passes emergency plan (can’t force state officials to execute, but could give money
incentive for state legislature to pass): can also threaten preemption
 Congress passing localized min wage: congress can’t tell states to figure one out; but can
force states to comply (but doesn’t that just force execs to implement fed law?)
o BUT: congress can’t force state officials to implement federal law (Printz)
o congress can force states to comply with federal law (Garcia)
 implementation: enforcing against a third party
 complying: just following yourself
Federal Limits on State Power (no state power over federal gov)
U.S. Term Limits, Inc v. Thornton (states have no power respecting the federal government that the
constitution does not grant)
 statute: limited terms for congressman
 issue: does rule from Powell apply to states?
 Stevens Holding: states have no power respecting the federal government that the
constitution does not expressly give them
o 10th amendment can’t reserve something they never had: McCulloch all over
 THOMAS DISSENT: only powers fed has are enumerated, all others in states
o So states can add more qualifications, just can’t demolish ones constitution gave
o McColluch was just about supremacy
Federal Preemption
Silkwood v. Kerr McGee Corp. (federal nuclear safety law: preempted state regulation, but not state tort
action; bc that’s not in congressional scheme)
 Federal law on nuclear safety: preempted state control on nuclear regulation
 Court: congress preempted state control, but did not remove the remedy under state law
o Not conflict preempted, bc not impossible to comply with both, and doesn’t hurt the
goal by giving punitive damages
Hypo: federal law: expressly preempts state requirements on cig packages
 Suit 1: Breach of express warranty: not good, bc state tort action like this would be state
requiring cig to put a different warning: that’s preempted
 Suit 2: failure to warn: it is good: language was cig. Companies warning was their warning.
They didn’t warn of danger (even though it was federal language): can be sued
o Not preempted: not requiring different warning, requiring not breaching that
warning
 Avocado Case: federal gov requires 9% oil. Cali law requires picked after certain date
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o No conflict
o Issue is: is this a floor or a ceiling? This is question every time you are dealing with
preemption problem
--Liberal Judges: find less preemption: bc want ceiling not floor so more regulation okay
--Conservative Judges: more preemption (more ceilings, so fed gov overs state)
 Reversal of normal roles: either bc they are statory interpretation case: with same results,
or ends based decisions
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)
Dormant Commerce Clause
Gibbons v. Ogden (start of dormant commerce clause)
 C.J. Marshell: commerce power so braod, even without federal scheme, NY maybe couldn’t
set monopoly. From trade war problems.
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.
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Older test: Williams v. Blackbird March: if state law fine (in police power) but state’s
objective is to try to regulate interstate commerce: state law not good: abandoned
Cooley Test: state regulation regulates interstate commerce if the subject matter at issue
requires either one single national standard (then state cannot regulate) or whether the
subject matter at issue is the type of standard that can be left to varying state or local
requirements (then state can regulate) : never overruled ,but only cited to say no absolute
DCC and that there is some DCC
Three categories of DCC: Modern approach
o 1. Facially discriminatory: clear on face that in state interests are treated better
than out of state interests or burdens out of state that aren’t on in state
 virtually per se violation of DCC: only excepted once
 if facially discriminatory it’s invalid unless it advances a legitimate
state interest that could not be advanced by reasonable nondiscriminatory means: (Maine v. Taylor)
o 2. Discriminatory in purpose and affect: state law that appear to be either
motivated by desire to discriminate or so clearly have such an effect that the court is
willing to assume they were motivated by that purpose
 presumably unconstitutional: unless same exception as above
 virtually per se unconstitutional if: purpose is discriminatory or effect of
discrimination (effect so discriminatory that purpose could only be to
discriminate)
o 3. Incidental burden on state commerce: PIKE BALANCING TEST: laws that are
neutral in their application but nevertheless impose a burden on interstate
commerce or on an out-of state interest
 presumptively constitutional if apply equally to in and out of state
 BUT: if burden on interstate commerce outweighs the benefit the
state receives=unconstitutional (Kassel, Pacific Co.)
 Where applies evenhandedly for legit local interest, and effects on interstate
commerce are only incidental, upheld unless burden on commerce is
excessive in relation to the local benefit
 So 1. Find legit local interest. 2. Balancing of local interest v. burden on
commerce (and whether it could be reduced by other reg. means)
Dormant commerce clause problem can be overruled by congress: bc about inaction
Standard of review: category three: harder than rational basis. Categories 1 and 2: strict
scrutiny (virtually per se invalidity)
Why have DCC?
o Promotions
 1. History: framers didn’t want protectionist barriers
 2. Economic: DCC hurts free flow of goods: inefficient
 3. Institutional Logic: unrealistic for congress to preempt everything
 also worried about quid pro quo trading of exceptions
 4. Political theory: some citizens bare cost w/o political recourse
o Cons
 1. Text: no textual DCC, 10th amendment seems against it
 2. Institutional Logic: DCC is anti democratic: judges making econ policy
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
3. Separation of powers: up to congress to preempt, not judges
4. Federalism: states should be allowed if in legit state ends
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)
 even if within legitimate interest to protect health: state/local can’t discriminate against
out of state products if there is a reasonable, nondiscriminatory alternative, adequate to
conserve legitimate local interests.
City of Philadelphia v. New Jersey (state laws that discriminate on their face are presumptively
unconstitutional)
 facially discriminatory statute presumptively unconstitutional
 doesn’t matter if prupose of statute is health/safety.
o Doesn’t matter if purpose good
o Doesn’t matter if regulation not about the good, or if not helping in state business
 Bc it was the dumps that were the resource being protected: hurt business
o Overrules Williams v. Blackbird March
 DISSENT: 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)
 Same definition of commerce applies to DCC and commerce clause (about a tax break)
 If economic in aggregate affect (or category I and II): if facially discriminatory: presumption
unconstitutional
o If interstate commerce is affected: doenst matter who’s affecting
 Scalia: this is just like welfare: but applied indirectly: it’s fine.
Discriminatory in Purpose and Affect (Category II)
 Same scrutiny as above: if motivated by discriminatory purpose or have affect of
discrimination
 Court elevated form over language: look to the effect: if the law is explainable only by
discriminatory affect, the low is unconstitutional (Powell in Kassel)
o Purpose too hard to parse: can just say whatever.
o Concurrence in Kassel: look at purpose, it’s here
Regulation that burdens interstate commerce: PIKE balancing approach (category III)
South Carolina State Highway Dept. v. Barnwell Bros. (regulation on S. Car. Roads for trucks was okay
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bc it did not discriminate)
 Regulation non-discriminatory: allowed for safety/economic concerns when no uniform
national standard needed.
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. Claimed for safety reasons, but gov rejected bc didn’t help
Iowa interest
o argument: since it’s non-disc.: it’s okay since congress left to states
o COOLEY test: don’t need uniform national standard for this
 Plurality Powell: safety statutes that further the purpose so marginally, and interfere with
commerce so substantially, as to be invalid under commerce clause
o Safety statutes: most reluctant to overturn: but here: didn’t actually help
o Actually hurt safety
 Brennen Concurrence: point of law was discriminatory: look at leg. History. Cat. II
Southern Pacific Co. v. State of Arizona (RR LENGTH: INVALIDATED STATUTE BECAUSE IT
IMPOSED A SERIOUS BURDEN ON INTERSTATE COMMERCE: APPLYING PIKE TEST)
 Invalidated statute because it imposed serious burden on interstate commerce w/o/ ben.
 PIKE BALANCING TEST: is the burden more substantial than appropriate when viewed
against the benefit state is achieving through regulation?
o Safety: none or negativeregulation: very burdensome
 Problem: making policy choice for other states w/o/ political accountability
 Something like RR: if gonna regulate: need national standard
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
Exception to DCC: Market Participant
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)
 Alaska was regulating down stream transactions, not the transactions they were a part of
 When state is acting as a market participant rather than regulator, DCC doesn’t restrict
o Alaska is acting as regulator: not in the market they’re conditioning=regulating
o State owned business: can favor resident purchasers: but may not attach conditions
that will burden interstate commerce later down the stream: limited to particular
market
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
Rehnquist Dissent: can achieve through any other means: this is form over substance:
allow it
Why have DCC Market Participant Exception?
 Pro: (ppl who want small DCC, want big exception): 1. lvl market, state can act like normal
business (BUT they have huge market interest, can regulate bc of huge share); 2. Small
impact on commerce; 3. State autonomy
 Cons (ppl who want big DCC): 1. State can essentially regulate this way: too big market
share 2. States can swallow DCC this way
 Another way to analyze: would normal business ever do this? No: trying to regulate. Yes:
undermines reasoning for market participant exception
Exception to DCC: Congressional Consent
Prudential Ins. Co. v. Benjamin (insurance tax case: when congress has acted affirmatively to allow nonuniform treatment: DCC does not apply)
 Statute: federal law on insurance only extends to point state law doesn’t.
o Bc DCC only about when congress doesn’t act: acting around DCC allowed
o So congress is not dormant: so DCC does not apply
 Applying DCC when congress has acted it opposite of what DCC is supposed to protect
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)?
 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
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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. 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
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
No: Did congress authorize the statute? (prudential v. Benjamin)
 Yes: state law valid
 No: state law invalid
 No: state law valid
SEPERATION OF POWERS: EXEC POWER OF DOMESTIC; EXEC POWER OF FOREIGN; WAR
ON TERROR; EXEC PRIV/IMMUNITY; CONGRESSIONAL CONTROL OF LEG.;
CONGRESSIONAL CONTROL OF EXEC (APPTS/REMOVAL
Executive Power of 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
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)
 Truman instructing sec. of commerce to nationalize steel industry, informed congress, they
didn’t respond. In response to failed attempts between steal workers and co in Korean war
 BLACK HOLDING (formalistic): the president’s power, if any, to issue orders: must either
stem from an act of congress or from the constitution itself
 Constitutional Powers
o Unjustified as commander in chief: that’s for commanding our troops abroad
o Unjustified in all exec power vested in prez: seizing mill is a legislative power, not
exec
o Unjustified under faithfully executing law: president must be acting under law,
here he is making law: president is not a law maker: this case limits presidential
authority in domestic matters
 Ends over means test
 Act of congress: there were laws on point
o Against taft Hartley act: actually rejected this move
o Against defense production act: circumstances not present
 President has no unemumerated powers
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
FRANKFURTER CONCURRANCE: history gives gloss on constitution of what prez can do:
but not this
JACKSON CONCURRANCE: president’s power is not fixed, but fluctuates dependgin on
disjunction/conjunction with congressional action: three catagories
o 1. Authorization of congress: apex of presidential power: cating in pursuant with
express or implied authorization of congress: executing laws
o 2. Absence of congressional grant: twilight zone: congress might have concurrent
authority, or in which it’s distribution in uncertain
o 3. Contradiction to express or implied will of congress: lowest ebb: must have
independent constitutional authority
Hypo: Congress says prez can do all actions he believes necessary for the war
 delegates policy making to prez: but courts have upheld. Often the line is difficult
 Black textual/formalist: line between policy making and executing. But then if congress
acts to grant: he’s doing the same action, but it’s executive and not legislative
 Frankfurter Functionalist: look to real world functions: here, congress explicitly did not
give president power to do this: but stuff prez does do often: puts gloss on constitution
o So prez has some inherent power: can act in absence of
congressional/constitutional authority: if history and practice suggest it.
 Justice Jackson: tripartite system: question about interaction of prez/congress
o 1. Apex: congress gives express or implied authority: pwr unless indi const. bar
 Boomied case: independent constitutional bar
o 2. Twilight zone: congress silent: prez residual authority, combined with
congressional silence: may give prez power to act
o 3. Lowest ebb: congress with implied/express prohibition: prez may only act if
within specific prez authority under constitution (Youngstown: congressional
silence was implied prohibition bc thought about it)
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.
Executive Power in 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 (with senate approval); apt 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)
37



Rehnquist (functionalist: gloss type case): enactment of legislation closely related to the
question of prez’s authority in this case evinces legislative intent to accord prez with broad
discretion: can give indi prez power
o Congress former acquiescence means implied consent: apex of power
o The Jackson chart is a spectrum
o Implied consent: puts a gloss on constitution: long continuing practice is
acquiesesence by congress: presumption that action is pursuant to congressional
grant.
 1. Inferences from legislation congress has enacted (congress can’t
predict everything: so past statutes on same general
 2. History of acquiescence
Problem though: aren’t they getting around treaty? Called an exec agreement: seems
unconstitutional but maybe non-judicial question: need gov to speak with one voice
Default Rule: pro presidential authority, with congressional silence (at least in foreign)
o But court narrowed the holding: necessity, major foreign policy, congressional
acquiescence
What result are we left with?
 Pros: prez can act w/o implicit authorization: if congress has a problem, be clear: so
flexibility and fast acting
 Cons: encroachment on senate’s power, if exec agreement equivalent to treaties, they can
overrule previous treaties: prez getting around old laws w/o proper procedure
Executive Power: 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)
 Suspension of habeas corpus does not justify not trying not trying indi before writ gone
 American citizen detained before writ was suspended: must be tried in normal court
Ex Parte Quiran (german sub case: unlawful enemy combatants can be denied jury trial and be subject
to military tribunals)
 Enemy combatants may be denied the right to jury trial before civilian courts, and instead
be put in front of military tribunal
 Distinguishing Milligan: that was breaking domestic law, this is 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)
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



O’CONNOR PLURALITY: in category I: AUMF authorized military force
o Implicit in use of force: detain ppl captured in war
o Action of president was fine unless it violated another part of the constitution.
o BUT: do get right to present evidence and rebut about classification due process
 War is not a blank check: can’t eliminate factual challneges: that’s court’s
role: separation of powers infringement
 so: president can detain enemy combatants indefinitely: but American
citizens get the due process of law to determine if they are combatants
SOUTER: Really dissented, but joined to give some due process
o This action violated the detention act: therefore in category 3
o Court is implying from AUMF an explicit act of congress against power
o For prez to have power if previously under category 3: congress must clearly
express resolution of competing claims
THOMAS DISSENT: AUMF does give this power, but wrong abt scope of prez power
o Congress granted prez to use force: courts don’t question that
SCALIA DISSENT: court is suspending habeas corpus: if want to do it, must do it explicitly
o Absent that: citizen gets right to full trial
Implications of authorization to use force?
 Indefinitely detain US citizen captured abroad: Yes (Hamdi 5-4)
 Indefinitely detain US citizen captured in US: maybe (Rumsfeld v. Padia: ct avoided)
o But implication: not allowed: Milligan all over
 Try non-citizen enemy combatants by military court w/o/ procedural rights? No Hamdan
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 by congress
 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: but 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: bc politically unpopular opinion
o Otherwise: US citizen must be charged with a crime
o Focusing on individual liberties
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
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Hamdan v. Rumsfeld (president cannot try non-citizens by military commission (against Uniform code
of military justice) absent congressional approval)
 Court: trying non-citizen in way bush wanted to violated Military Justice Act
o Where AUMF vague, can’t ignore other laws
But then: congress passed military commissions act. Limited habeas relief for foreign combatants
 Explicitly said prez interprets what counts as torture: don’t need Hamdi Review
o If non-citizen: no Hamdi review
o Broad definition of enemy combatant
Boumediene Case: Military commission act was unconstitutional suspension of habeas corpus
 This is unconstitutional, even with congressional consent
 Not adequate substitution for habeas, and didn’t suspend haveas, so no good
BUT: drone attacks: prez can set protocols and assassinate: but can’t try as he wants
 but that’s battlefield
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 Probably because shifting make-up of the court
Executive privilege
United States v. Nixon (criminal privilege: president enjoys a qualified executive privilege in criminal
proceedings: better claim if national security type thing)
 Nixon claiming absolute priv from federal prosecutor. Shielding communications
 Court: we decide what law is: even if concerns core function of another branch
o Privilege claim: role of courts, decide trials. Said not a political question
 1. Does constitution confer a privilege? No explicit, so…
o history: all prez’s believed they had priv: Frankfurter Gloss
o Separation of powers: prez co-equal branch, shouldn’t be controlled by court
 But: prez ordered to follow directives of congress
o Functional: will chill advice to prez
 2. Scope of that privilege: prez has a qualified privilege: overcome when need for info
outweighs the need to keep information confidential
o Privilege side: presidents need for confidentiality and candid advice: but here was
only general need, not talking about national security
o Overcoming factor: criminal proceeding: need for all evidence: ensuring due
process
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
Presumption of privilege: but here, need for confidentiality minimal, need for evidence
high
o This is not common: usually public pressure will make prez back down (or if in front
of congress: congress back down
Presidential immunity
Nixon v. Fitzgerald (president has absolute immunity from civil suit in official act)
 Fitzgerald claimed he was fired bc testified before congress: NIXON says abs immune
 POWELL holding: president is absolutely immune from suit for official act
o Rationale: implying from congressional immunity, same logic (but const. silent)
 Distraction: don’t want to distract prez, always dealing with suits
 Chill discretion: every time prez would make decision, there would be suit
 WHITE DISSENT: this puts prez above the law. Immunity for lawsuits that impair ability to
do job, but not when acting lawlessly. BUT: hard to draw line, costs just always outweigh
So now question: what counts as official act? At least not before prez.
Clinton v. Jones (the president is not immune from suit for actions done before he was in office)
 Prez does not enjoy any civil immunity for unofficial acts (at least those done before office)
 Rationale: no worry about chilling discretion,
o Distraction: court says Fitzgerald really just about chilling discretion. Plus unlikely
this will really become a distraction. Very few prez’s have been sued
 PRez’s argument: unique constitutional role, needs all time (Nope, won’t take that much
time); Formalist: prex co-equal (Nope, court decides law, prez can’t take that role)
Functionalist: just takes time (Nope, above: but probably wrong after clintin)
 BREYER CONCCURING: but basically a dissent. Prez should be able to present evidence to
stay the trial.
Congressional Control: the legislative Process
Non-Delegation Doctrine: congress, which the constitution grants the legislative power, cannot delegate
that power: needs clearly intelligible principle: bc then it’s not delegating legislating
 Upheld incredibly sweeping authority: FCC: for “public interest and as necessary”
o Or “as long as fair and equitable”: need clearly intelligible principle (but bull)
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
 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?
41
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)
 Congress does not impermissibly delegate legislative power if it provides an intelligible
principle to guide the executive delegee
 Here: clearly intelligible principle: level requisite to protect public health
o Choice to weigh costs done for EPA: but other ones without that choice still upheld
 Amount of allowable discretion varies with scope of thing regulated: national regulation,
probably need more guidance: but certain amount of decision (lawmaking) inherent in
most exec or judiciary action
Legislative Veto: bicameralism presentment issue
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)
 Congress overturning AG suspension of deportation by either house
 BURGER: The legislative veto is unconstitutional
 All action that is legislative in character must meet bicameralism and presentment
 Legislative action: an act by congress is legislative in character if it has purpose or effect
of changing rights/duties of individuals outside the legislative branch
o Here: Chadha’s and A.G.’s rights affected. But wasn’t A.G.’s action leg then?
o Formalist argument: constitution requires legislative power to comply with
bicameralism and presentment. 2. Legislative veto is legislative action. 3. Veto
doesn’t comply. 4. Therefore unconstitutional
 BUT: most exec agency is legislative action under this: but somehow they don’t violate
constitution despite presentment/bicameralism lacking
 POWELL CONCURRANCE: when quasi judicial body applies predetermined set of
standards: that’s judicial power. Congress can’t do this: trials by congress not allowed
o All shit is legislative, exec, or judicial depending on who does it, get rid of
distinctions
 WHIITE DISSENT: functionalist argument: separation of powers is about practicality
o Constitution is flexible to allow stuff that helps constitutional scheme
o Proper question for separation of powers issue: protecting one branch from another
encroaching on it’s power. Why should leg. Be able to give away legislative power
but not able to maintain some: just trying to keep tabs on admin. State.
o BURGER: response : pursuant to non-delegation doctrine: congress can’t give away
legislative power. So formally when veto retained, it’s retaining executive power by
having veto; that’s usurpation of exec power.
 BUT: functionalist agaisnt legislative veto: can’t veto on the back end, must do things
themselves to have power, 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)
42
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)
Line item veto: Non-delegation or separation of powers? Bicameralism presentment cont… Combing
above two
Clinton v. New York (line item veto case: it’s unconstitutional because it violates
bicameralism/presentment. Seems like a non-delegation issue though)
 Line item veto: prez can cross out stuff spending, as long as it reduces deficit, doesn’t
impair essential gov function, and doesn’t harm national interest
 STEVENS HOLDING: violates constitution bc now you have bills that did not go through
procedure of bicameralism and presentment
o Gov argued it’s just like where prez has discretion; or suspending tarrifs
o Court: No, 1. no changed circumstances, 2. no direction, 3. prez is deciding the policy
determinations and returning bills that were never passed by congress.
o BUT: isn’t this like every agency delegation?
o Veto in this way unconstitutional: bc congress gives direction on how to veto
o Not like other discretionary spending: bc that didn’t change the text of a bill
 SCALIA DISSENT: this is about non-delegation: the bill is exactly like bills that give
president discretion: would be upheld if bill just said: this money is discretionary. As
intelligible a principle as anything else
 BREYER DISSENT (functional): congress just doing what it originally could, separate bills
(but they probably wouldn’t pass individually). This is same as just putting astricts that
says everything is discretionary: it’s fine.
o BUT: it does allow the president to enact a law that would never pass.
Congressional Control: executive Offices
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
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
 who’s principle? Good question: At least: members of the cabinet, ambassadors, federal
judges
Inferior Officers
43


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 (Morrison)
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
Removal
Congress can’t have removal power itself: just known
Reserving role for self…
Myers v. United States (congress cannot reserve role in power to remove officers (completely unfettered
part ruled out))
 statute: said that to dismiss postmaster, must get advice and consent of congress
 Holding: power to remove is incident to power to appoint: therefore, congress cannot
require their advice and consent to remove an exec officer.
o If congress reserves role in removal, prevents prez from whole exec power.
Limiting prez ability to remove…
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 (even principle ones).
Myers restricted to purely executive officers)
 Issue: can congress feter prez’s ability to fire FTC officers only for cause?
 MYERS: was only about purely executive officers, that’s why need unfettered control
 FTC officers: quasi legislative, quasi judicial, So congress can limit firing
 Beginning of independent agencies: congress can create agencies with officials not
under unfettered presidential removal power
o So at this point: question is if agency is executive or not. If it’s executive (myers):
unfettered removal, if it’s not exec: can place limits
o Formalist means of creating indi agencies
44
Policy arguments for unfettered v. restricted removal
 Restricitons on removal: immunize from realities of politics
 For no restrictions
o Formal: prez responsible to execute laws, can’t do it if can’t remove
o Functional: ppl will blame prez for actions beyond his control
Bowsher v. Synar (comptroller budget case: congress cannot reserve power over officer doing executive
role)
 Comptroller general (head of GAO) makes balanced budget if prez cant. Comp. Gen
appointed by prez from list of 3 names by congress.
o Comptroller general can only be fired by 2/3 vote in both houses (with veto)
 Rule: congress can’t reserve removal power to itself
 HOLDIGN BURGER (formalist): statute is unconstitutional: bc comptroller general is
exercising executive power and congress is reserving removal power over him
 Removal is like control: general trend
o Therefore against rule that congress can’t reserve removal over exec officer
o This is like impermissible execution of law by congress: they are maintaining
control over what is now an executive officer.
 STEVENS CONCURRING (formalist): comp gen is agent of congress, making a legislative
action. Does it without bicameralism and presentment, therefore unconstitutional.
 WHITE DISSENTING (functional): argument is overly formalistic, congress has minimally
significant control, harder than normal impeachment. Using that to strike huge bill
Circle of non-delegation and removal problem here
 Rule 1: congress may not delegate legislative power
 Rule 2: congress can have removal power over non-executive official
o So can only have power over legislative/judicial officer. But can’t delegate
legislative power, so give clearly intelligible principle; that way they are executing
and not legislating. But if they’re executing and not legislating, then congress can’t
have control over them. So congress can have control over no officer.
Marrison v. Olson Removal (essentially overrules Myers; Humphreys) (special prosecutor case:
Limitation on presidential removal is okay as long as it won’t substantially interfere with his ability to
execute the laws)
 Special prosecutor ethics in government act: appointed special prosecuter by panel of
judges, can be fired by A.G., but only for good cause (or by congress through impeach)
 Issue: is the limitation on removal okay? Reading Myers/Humphreys different (almost
overruling): even though purely exec officer:
o CONGRESS CAN’T LIMIT PRESIDENTIAL POWER TO REMOVE AN OFFICER IF
THAT WOULD IMPERMISSIBLY INTERFERE WITH PRESIDENT’S POWER TO
CARRY OUT LAWS.
o In application: the less exec, the less he’s gonna interfere with president’s power
o The more inferior: the less likely he would interefer
45

o Functional argument: bc limited in scope, duration and jurisdiction, lack of fireable
at will would not impermissibly interfere with ability to carry out law
SCALIA DISSENT: the removal provision impermissibly intereferes
o Formal: prez has absolute exec (unitary exec theory); special prosecuter gets
some of that; not subject to presidential control; so unconstitutional (congress is
taking away exec power of prez)
o Functionalist answer to majority (worried about bad results of Watergate firing):
 There is a conflict of interest in giving prez unitary executive: but
unavoidable
 Have the political check (Nixon pressured): wont be reelected
 Congress created sole exec for this very problem: ppl know to reelect
or not
 Balancing approach will substantially interfere: he was right
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)
 SEC commissioners can only be fired for neglect of duty; inefficiency; and malfeasance of
office. Board under SEC: can only be fired under good cause
 Roberts Holding (formalist): two levels of protection remove the president from any
decision on whether good cause exists to remove exec officer: so impermissible taking
away executive power.
o Narrowest: when inferior officer determines policy and enforces laws (is exec)
o Since president has no ability to fire officers: can’t make sure laws are faithfully
executed. If doesn’t think so, can’t hold anyone responsible.
o Court just struck second layer of protection
 Who’s principle: 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 But can still be inferior with for cause requirement.
 DISSENT functionalist: the first layer gives all the same protections, second layer doesn’t
add anything
o 1. Prez/SEC commission: both want to fire: doesn’t matter
o 2. PRez/Sec commissioner: both want to keep: doesn’t matter
o 3. Prez wants to Fire/SEC officer wants to keep: Layer one allows SEC commissioner
to make that determination. Layer 2 is irrelevant
 BUT: decision not to fire might not be malfeasance. Therefore prez more
restricted
o 4. Prez wants to keep/SEC wants to fire: layer 2 actually helps prez
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
46
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 is not dispositive test)
o Question is: how important is officer to president’s execution of the law?
Appointments
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
Marrison v. Olson appointments (essentially overrules Myers) (special prosecutor case: 1. Can’t be
incongruity between functions performed by delegating authority and performance of duty they appoint.
2. Who count’s as principle/inferior officer)
 Special prosecutor appointed by panel of judges, can only be fired for good cause
 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
 Morrison: was inferior: even though no at will firing
 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”
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Application: it’s fine: bc courts appoint private attorney for prosecution all
the time: same thing
SCALIA dissent:
o He’s principle officer: not subject to removal by anyone, principle: that was the
whole point of statute


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.
48