Constitutional Law General Types of Arguments

Textual Arguments

Historical Arguments

Structure of the Constitution (broadly)


Social Policy And/Or Consequences of Decision

Mix of All of the Above (esp. history and text)

Words and placement

Framers Intent

Mix of Opinion

Other Parts of Constitution

Broad Interpretations


Less important to Originalists

Specific Intent At time Tradition

Natural Law Processes of Gov‟t Contemp. Values

Judicial Review & Marshall’s Opinion in Marbury v. Madison

Court’s Role in Interpreting the Constitution

Constitution is supreme law of land and SCOTUS is in charge of interpreting Political & Discretionary Acts

Political powers, actions respect the nation & not ind rights – conscience guides Directed to perform certain acts, individual rights, officer of the law


Limits & Restraints


Rights of Individuals Beginning of Political Question Doctrine

Textual Defenses Appellate review of decisions arising under the Constitution Judges take an oath to the Constitution & must uphold (hence review) Supremacy Clause – laws are made in pursuance of the Constitution

Issues “especially for the courts”

Judiciability Doctrine
Advisory Opinions Standing
Article III – “Cases & Controversies” Linked to Desirability of Judicial Review Broad & Narrow View – Policy Decision “Personal injury fairly traceable to the D‟s allegedly unlawful conduct and redressed by requested relief” Must Bring Some Change Plout Case: No overturn by C of a final judgment (yes to prospective & in litigation)

Actual Dispute between Adverse Litigants “Real & not hypothetical controversy” Hayburn Case No override by Sec. of Def of a Supreme Court decision


Injury In Fact
(a) distinct & palpable, (b) not abstract or hypothetical, (c) personally injured



Washington Question to Justices: Refused to answer b/c advisory and not necessary


Fairly traceable to the action of D, generally measures Ps stake in the outcome

Whether ruling would bind D and have an effect for P
Aikan: Access to information was enough to meet standard Richard: Actual payment of child support not guaranteed Mass v. EPA: Third party

Lyons: Failure to show the possible future injury (D: Marshall)

Mass v. EPA: Congress giving power to create IIF – weight of report & whether concrete injury is clear

Failure to purchase airline tickets… whether imminent enough of a threat (speculation)

Triggers for Standing Problems

Considered together generally

Notes: -Only 1 need standing -State surrender of rights

Generalized Grievance: Gov‟t failing to follow the law and bringing suit to do so (injury in fact)

Third Party Actor: That gov‟t is failing to regulate some 3rd party - q‟s about causation & redressability (Allen v. Wright – IRS failure on tax exemptions for racially segregated schools; Lujan: failure of Sec of Interior on endangered species)

Separation of Powers Problems: Court not having the ability to determine law, concerns about overstepping

Tied to Const. Mootness (most flexible)
Often occur together

Political Question
Final decision would lead to a political outcome (Both sides point back to Marshall‟s Opinion in MvM) Eval through Baker Factors

Ripeness (like IIF)

Rendering a decision is no longer possible or purposeful, or would be hypo

Concrete, certain, and ripe for review – normally need violation; sometimes just never enforced or too hypothetical – (a) probability that event will occur (b) hardship to parties if denied, (c) fitness of record to determine legal issues presented

As a whole, the question is incapable of judicial review A. IV, Sec. 4 = Guaranty Clause = always non-justiciable

Pre-Enforcement Review of Statute or Regulation (Abbott Labs)


Factual Development: *the more facts that can be developed the less chance of a review

Hardship for having to wait *generally economic hardship will allow CT to push through

Textually Committed to Another Branch Art. I, Sec. 5
Powell v. McCormack: House adjudicatory power of Art I, Sec. 5, but determined only as qualifications not power to not seat Goldwater: Rescinding a treaty, question left for executive, must look at terms of constitution to this factor

Lack of judicially discoverable and manageable standards for resolution (competence)
Goldwater: Not appropriate if only left to inferences, dissent (Brennan) says that foreign relations can be det by SCOTUS

Embarrassment Potential for another branch, policy question, or deference to another branch
Goldwater: If there would be multiple determinations from different branches of gov‟t Nixon: Const. did give standards House/ Senate to act & would not be appropriate for SC to determine

Voluntary Cessation: (a) no realistic chance that D will go back to harmful conduct

Capable of Repetition yet Evading Review (a) every time that it comes up, it will be short lived (b) for individual – likely to find for the exception (c) unanswered for ind v. class

Class Actions: Selfinterested parties are still advocating

Collateral consequences: Effect will be longer lasting even if seemingly decided (Poe v. Ullman – no actual prosecution)

Vertical Separation of Powers: FEDERALISM

Enumerated Powers


“All leg powers herein granted” Article I Generally Sec. 8

Necessary & Proper Clause (17) (must be tied to power in Sec 8) McCulloch v. MD:
Marshall gives a very broad interpretation of Necessary & Proper Clause, importance of Const in regulation of ppl not the states; implied/ inherent powers justified

Commerce Clause

10th Amendment & States‟ Rights Rationales Prevent federal tyranny
Enhance democratic rule closer to ppl States as laboratories for projects

Effectiveness of the Federal Government
Elections will be limit, not 10th amd Federalism protects individuals Madison‟s Double Security

Historical Issues

Historical Understanding of the Commerce Clause Art. I, Sec 8

Protection of States‟ Rights Senators no longer elected by state govt

Early Interpretation

Gibbons v. Ogden: Broad interstate, but considered a broad sphere of independence *when only affects 1 state Commerce = „traffic‟ & „interstate‟, „navigation‟, „intermingled‟

Area for Congressional Regulation = intermingled and sharing among state commerce

Limits to C reg based on effect on 1 state = completely internal
EC Knight: direct effects test – mfer is not commerce, no reg if w/ no effect on other state

1890s to 1937: State Sovereignty

(1) Narrow definition of „commerce‟ (2) restrictive of „among the states‟ (3) Cong violates 10th when in area of states

Manufacturing v. Commerce Bright Line Approaches Direct v. Indirect Stream of Commerce

Carter Coal: commerce going elsewhere is NOT subject to regs when inside state TX Railway: intrastate cannot damage industry in another state (move to intra) ALA Schechter: not SOC among states, not direct

10 Amendment Limits: Next Page


Look at effect on commerce, not injury itself More of a Spectrum Approach to Determining Congressional Power

NLRB v. Jones (1937): Steel production regs; statute defines “affecting commerce” - effect on commerce NOT the injury needed for inspection Darby (1941): Overturn Dagenhart, intrastate which so affect interstate commerce or the exercise of power of Congress over to make legitimate end – w/in Cong power Wickard v. Fillmore (1942): Broad interstate, but considered a broad sphere of independence - *when only affects 1 state”; disband ideas of directness, production, et al Katzenbach (1964): Within state = completely within and does not affect other States & not interfering with other goals of govt; - the interstate nature of the restaurant permitted regulation Heart of Atlanta (1964): Moral wrong allowed for regulation, disruptive effect that racial discrimination has had on commercial intercourse – means must be reasonably adapted to the end permitted by Const.

1937 to 1990s: Broad Nat’l Power

Very few limits on Congressional Power, started by G. Depression

Effect on interstate commerce generally

Hodel (1981): Strip-Mining: Regulation permitted so long as rational basis by Congress for regulating Perez (1971): Loan-sharking, Congressional enactment and basis for regulation (even criminal)

Broad “Among the States” Regulation Permitted

Congressional Authorization

Channels affirmed for reg Exclusively State Rights for Some Spheres & 10th amd back in action

Not traditional state activity (fam, ed, land) Congress should give expression of justification 10th Amd = Limit on commandeering and state acting for fed govt

1990s to Today: Shift Back – Cong. Limits

Noneconomic criminal will likely fail under Comm Cl Must be tied to Congress Authorization

Commerce Clause
“A thing in interstate commerce”

(1) Why created - what‟s regulated?, (2) Enumerated/Implied, (3) If Implied then Necessary/Proper - Commerce

Channels of Interstate Commerce Roads, Waters, Airways, Internet, et al.


Substantial Effect on Interstate Commerce
Reference to Lopez/Gonz

Persons or Things Moving Between States Economic


If within the (1) Channels or (2) Instrumentalities then often easier for Congress deference & broad power

“Production, distribution, and consumption of commodities” Rational Basis & Aggregate Effect Examined & Deference to Congress Wickard = Governing Law (Aggregating) & Deference to Congress

Broad Regulatory Scheme (Gonzalez)

Spending Power Limits

Conditioning federal funds to state action

Dole Elements: Highway Funding

Factors for Analysis: (1) type of action linked to commerce (JX link), OR (2) statutory authorization or Congressional findings, OR (3) not traditional function (family, education, landuse) and no national productivity nexus (1) Specific Activity Examination (Non-Agg) & (2) No Deference to Congress & (3) Link to I/C Required

(1) Condition is for the general welfare with extensive deference to Congress

(2) unambiguous – st must now what it‟s losing for funds

(3) related to fed interest through program or project – Reasonable Relation Test

(4) not coercive – ex 5% of highway funds was not, full effect

10th Amendment & Commerce Clause Over Time

Wickard (1942)

Ames (1903)
Harlan: Congressional decision to regulate interstate commerce is PLENARY and complete in self

Garcia (1985) Darby (1941)
If analysis comes within the commerce clause, then no need for 10th amendment analysis,eliminate direct/indirect analys
Katzenbach (1964) Ht of ATL (1964) TX Railway

Guillen (2001)
Thomas: state highway info protected from discovery in civil cases b/c part of channels

Specifically 10th Amendment Limits & Guideposts (only when state actor)
Condon (2000) New York (1992) Printz (1997)
Rehnquist: Allow banning of state info distribution

Overrule Usery, reject state immunity and traditional framework; structure of govt will protect the states Powell/Rehnquist: Court is wrong, too broad interpretation of Cong power, “we‟ll be back”
Hodel (1981) Perez (1971)

Gonzalez (2005)
O’Connor: Broad Regulatory Scheme, places the issue into aggregate analysis

NLRB (1937)

Greater Power Less Power
EC Knight Carter Coal ALA Schecter

Lopez (1995)
Rehnquist: defines 3 categories, says this is sub effect (crim gun statute) – a. ess part of broad; b. tied to Cong authorization; c. not traditional function of state proc by 10th; O’Connor: need for judicial certainty Thomas: sub effect test is bogus creation Stevens/Souter/ Ginsburg: Guns are part of commerce, should look at aggregate – should have found “rational basis”

Morrison (2000)
Rehnquist: Congress exceeds bounds with crim stat on Violence Against Women Act; noneconomic & criminal statute; no express JX element; no Congressional findings (maybe not enough) Thomas: substantial effect doc shld be abolished Stevens/Souter/ Ginsburg: Data was produced by Cong & was sufficient – formalism criticized

US Corps of Eng (2001)
Rehnquist: Ponds not in open water are not a part of the channels; Cong did not clearly intend fed to include ponds Stevens/Souter/ Ginsburg: More than commerce power at stake in question, comm included in birdwatching & hunting; should include natural resources

Dagenhardt (1914)
Employee regs on child labor; no power in Cong to force states to exercise police power = child labor is purely local decision and does not affect inter comm Holmes Dissent: consideration of Congress and not the Court to decide, once product cross state lines then open to regulation

Usery (1976)
Traditional state functions are protected by the 10th amendment, displacement of state decisions (how to fund, spend) – Factors: typical for protection of citizens Brennan Dissent: wrong decision against Darby Stevens Dissent: Should be subject to fed regulation

O’Connor: Scalia: Cannot simply Fed govt may (1) applies to compel states not compel the more than just to eliminate states to enact the states – radioactive or administer a also applies to waste products; federal private entities bad direction to regulatory (2) regs not as states; program – no affirmative act commandeer issuing of but as owners state directives or of database info decisions not command of (3) not a accepted – do state officers or required action through those within to but required spending power administer a prohibition even if states program have accepted Thomas: the regs (no Return to comm choices given clause roots is 10th Amend. to state) needed, 2nd Triggers amd mention White/ Blackmun/ Stevens: Seriousness of the public problem, irony of ignoring state desires, fed is involved in other state areas (railroads, prisons, et al) St/Sout/Gins/ Breyer: Threat of a national emergency, 10th doesn‟t limit delegated powers; historical arguments that taxes were collected by state agents

Commandeering Affirmative actions needed by state govt State capacities

Requiring state legislation

Separation of Powers
Federal Executive Powers
Acting w/ Express Congressional Authorization “Highest Ebb” (a) maximum power (b) strongest presumptions in favor of Congress (c) burden of persuasion falls on attacking party
Article II, Sec. 1 = “Executive powers;” Art. II, Sec. 3 = “Take Care Clause”

Inaction by Congress OR Conflicting Congressional Action “Lowest Ebb” (a) Pres takes measure that is incompatible with express OR implied will of Congress (b) maintained ONLY IF able to disable Congress from decision

Youngstown Framework: Jackson’s Concurrence

Inaction by Congress OR Conflicting Congressional Action Debatable
(a) either absence of Congressional grant/denial (b) OR acting on independent presidential responsibility (c) Cong inertia, indifference or acquiescence (d) Doesn‟t necessarily require a lawmaking process, may just have leg actions

Must tie the Presidential action being challenged to a statute Evaluate the constitutionality of the statute in question w/ strong deference to Congress

Example Youngstown (1952)
Frankfurter & Jackson Opinions – Pres decision is covered by statute so in 3rd and NOT a war power – FF says clear indication of C Vinson/Reed: In Korean War, need to defer to Pres war powers – “take care clause”

Foreign Affairs Line Item Veto Curtis Wright (1936):
No inherent powers in states for foreign relations – solely federal concern; Pres “sole organ” Pres is better branch suited for such determinations

Clinton Case: 2 other branches agree but court finds invalid

Dames & Moore (1981):
Executive Agreements: Place in bucket 1 b/c Cong has approved through statute in Foreign Claims Settlement Comm, exec agreement permitted

War Powers Resolution:
Inaction by Congress may prevent Pres from being able to act; often dismissed on standing or political question doctrines

Executive Privilege

Nature of Power:
Specific regulations on how and why Pres could veto spending section of bill postpassage

Not in line with the “finely wrought procedures of the lawmaking process in the Constitution” must have an amendment if want this power; even though following the law, still not acceptable

Dissent: Different form of government nowadays, court has interpreted broadly the ideas of leg and exec, no need to referee dispute

Nixon Case: Arguments regarding Executive Priv.

Cheney Case: Permitted – Criminal v. Civil

Numerous challenges – not how Const looks

Baker = textually committed, not enough that intra-branch dispute, regular course of criminal proceeding so w/ in Art. III court power

Separation of Powers:
Job of the jud br to “say what the law is” - not shared w/ another branch – must have claim of: (a) military, diplomatic, or sensitive national security secrets for deference (b) evaluate balance of need of judicial process over exec priv

Factors/ Triggers:
- Mindfulness of burdens on the executive branch - public policy - whether criminal or civil case

War on Terror
US can detain for duration of hostilities of conflict if engaged in armed against US Non-Detention Act:
“No citizen shall be imprisoned or otherwise detained by US except pursuant to act of Congress” - after WWII det of JA

“all necessary and appropriate force against nations, organizations, or persons associated with Sept 11”

Process still allowed for US CITIZENS – challenge status as enemy-combatant Writ of habeas corpus is allowed for all citizens Standard of Review – “some evidence” v. private interest of unjust detainment Must be provided: (a) notice of fact-basis of classification, (b) fair opportunity to rebut in front of neutral decision maker

Hamdan (2006)

DTT of NonCitizens:
Order for military tribunals being established and rules of procedure for interrogation/trial

Military Commissions
Civilian in times of martial law Temporary military govt “incident to conduct of war”

Hamdi (2004) O’Connor: Within statute but not in line with due process concerns for citizens

Stevens Maj: UCMJ:
Not in line with the Geneva convention and the court is not permissible – captured in conflict and tried in conflict, not miles away

No blank check for the pres

Thomas Dissent:
Exec should have expansive power in FP, in bucket 1 in this case Alito Dis: Geneva Art 3 satisfied

Ginsburg/Souter: Not within the statute – Korematzu

Stevens/Scalia Dissent:
Cons Suspension Clause (I.9.2) says this is illegal for US citizens

Thomas Dissent:
This is war – get over it; this is an executive power protected by Const

Court Martial instructions

JX was given by congress through DTT

Separation of Powers
Administrative Delegation

Non-Delegation Doctrine Art. I, Sec. 1 = “All Leg”

Appointment & Removal Powers

Principle that Congress may not delegate its legislative power to administrative agencies – generally eroded to standards of delegation

Appointments Clause, Art. II, Sec. 2, cl. 2 – President nominates w/ Advice & Consent from Senate, but may vest power for inferior officers in President, Courts of Law, or Heads of Departments

Has Cong delegated a leg power inappropriately?

Morrison Analysis

Principal Officer

Inferior Officer

Standards Necessary for Discretionary Choices Made by Executive Branch

ALA Schechter:
No restraint on President‟s legislative choices – no standards for trade, industry, or activity – unfettered discretion for enacting laws by President so invalid

Intell. Principle: Criteria to Guide Agency‟s Discretion is Necessary; Agency cannot make policy decision, but may use benchmarks Whitman Trucking (2005):
“Necessary to protect the public health [air standards]” “determinable standard” is not necessary even for Broad Regulatory Schemes – use of scientific data allowed

Legislative Veto as Check = Unconstitutional, Bicameralism

Must be selected by the President and consented to by the Senate

Generally Look At: (1) Incongruity (2) Power Intrusion (3) Power Expansion Scalia Dissent: Any restriction on the executive‟s power should be void and invalid; good cause restriction did so, and so should not be permitted

(1) appointed by President alone, OR (2) appointed by heads of depts, OR (3) appointed by the judicary

Evaluate the legislative nature of the decision Evaluate the Framers‟ Intent (limited indp role for each branch)

No reservation of removal by Congress permitted EXCEPT through impeachment Principals may be removed at will of President, but agency officers generally must have just cause – measure is NOT whether “purely executive”

Subject to removal by higher executive official (i.e. removed by Attorney General) Statute only provides certain, limited, duties (not policy making and no administrative duties outside specific office) Officer is limited in jurisdiction – examine through scope off jurisdiction

Panama Refining (1935):
HOT OIL – Regulation of whole economy based on 1 standard (“unfair competition”); President cannot have choice of what is injurious or “unfair competition” - cannot make these choices and act accordingly, must be left to legislature

Whether efficient or not is immaterial, must protect through sep of powers and structure Includes legislative veto as uncon for all agency rules too, must have bicameralism to overturn exec action Chadha (1983):
Efficiency alone will not save an action; House judiciary comm tried to revoke a hold on deportation for Chadha; Deemed legislative and needed legislative process Dissent: Leg Veto is useful tool and has been used throughout statutes

NO other law has been determined to be invalid based on delegation

Must look to whether removal power restriction impedes Pres executive power to execute laws – is the burden hampering ability to control the official?

If quasi-executive and quasilegislative then “good cause” is permitted to separate from full executive control over office Interference in the executive branch functions?

Limited tenure – generally “temporary” to accomplish specific task

Outside vesting is granted Cong deference but need to evaluate separation of powers concerns – no “incongruous” inter-branch appointments Some means of controlling the actions of officer are included – then does not violate sep of powers