CONSTITUTIONAL LAW 1 OUTLINE KEYED TO: SULLIVAN CASEBOOK • The Supreme Court's Authority and Role ○ Judicial Review • ROL→

Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction.  Marbury v. Madison  →Established Judicial Review. Court Held that a writ of mandamus to deliver a commission made by John Adams fell under the Sup. Court's appellate jurisdiction and therefore could not be brought in that court originally under Art. III b/c it is repugnant to the Constitution ○ →Supreme Court Authority to Review State Court Judgments • ROL→ The United States appellate power also extends to REVIEW state court judgments  →Judiciary Act of 1789, § 25: Provides for supreme court review of final decisions of the highest state courts rejecting claims based on federal law • Martin v. Hunter's Lessee • →A Virginia citizen willed his Virginia land to his nephew, P, a British subject and resident of England. Virginia, according to state law, had the right to confiscate land owned by British subjects and did so. Virginia granted this land to D, who then ejected P from the land. But, the treaties of 1783 and 1794 with Great Britain had anticonfiscation laws saying that the states won’t take the land of British citizens. Supreme Court exerted its authority to review the Virginia court's judgment and held that Supremacy Clause declares that the Federal interpretation will trump the States interpretation) • Cohens v. Virginia • →SC upheld its jurisdiction to review the validity of state laws in criminal proceedings) ○ →Judicial Excusivity • ROL→ It is exclusively the court's duty to interpret the constitution and say what the law is; Supremacy Clause makes the Constitution the Supreme Law of the Land and is therefore binding on all the states, regardless of any state laws contradicting it.  Cooper v. Aaron • →Gov. of Ark. refused to obey a Supreme Court order to integrate schools after deciding Brown v. Board of Education. The State legislature had amended its constitution to oppose desegregation. Court held that the Brown decision was binding upon the states and they were required to comply with the integration order despite being repugnant to Arkansas state laws • ROL→ Article V provides that Congress can initiate an amendment to the Constitution and the amendment process can be used to overturn a constitutional interpretation of the Supreme Court  Dickerson v. United States (Remember this case from Crim Pro where congress tries to overrule Miranda!!)  →Held that Congress cannot legislatively supersede Supreme Court decisions interpreting and applying the U.S. Constitution ○ Political Restraints on the Supreme Court • →Judicial Selection: Nomination and Confirmation Process  Art. II § 2, cl. 2 provides that the appointment of Justices will not be effective unless the President obtains the "Advice and Consent of the Senate" • →Impeachment  Art. III, § 1 confers presumptive life tenure  Art. II, § 4 provides that any officer of the United States, including judges, may be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors

→Court Packing  Art. III, § 2 provides that Congress sets the size and budget for the Court • →Court Stripping  Art. III, § 2 gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction • Ex Parte Mcardle • →Held that the Sup. Ct. lacked jurisdiction to issue a writ of habeas corpus b/c Congress has power under the Constitution to limit the court's appellate jurisdiction….The Constitution established the judicial courts, and their organization, which conferred their power/authority. “with such exceptions and under such regulations as Congress shall make.”…Congress repealed an act authorizing the Court to grant habeas corpus to anyone restrained in violation of the Constitution and in doing so limited its jurisdiction) • →Constitutional Amendments  Art. V talks about two methods: • Congress, by 2/3 vote, may propose amendments for ratification of 3/4 of states • 2/3 of states may apply to congress to call a constitutional convention ○ "Case or Controversy" Requirements • →Article III, § 2, cl. 1 provides that the Judicial Power shall extend to a list of enumerated cases and controversies  →Advisory Opinions: Court will not issue Opinions on the legality of executive or legislative action that do not involve an actual case  →Standing • **Elements: • →Injury in fact: actual injury that is imminent, particularized, concrete, distinct, and palpable (most obvious examples are claims of material bodily or financial harm…but intangible injuries can also confer standing) • →Causal Connection btw injury and ∆'s conduct: Places burden on ∏ to show that the harm alleged is fairly traceable • →Likely that the injury will be redressed by a favorable decision • →Cases: • Lujan v. Defenders of Wildlife • →∏s claim they are injured b/c the ESA which protects threatened species, is interpreted as only applying to the U.S. and not foreign nations. Court held that ∏s did not suffer injury in fact b/c hopes of someday visiting the threatened wildlife was not concrete enough to support injury in fact…furthermore there was no redressability so ∏s lacked standing..Court also mentions that generalized grievances suffered by the public do not constitute injury in fact) • Massachusetts v. EPA • →Held that ∏s had standing to sue EPA for failure to regulate greenhouse emissions b/c the rise in sea levels as a result of global warming would continue to harm Mass., demonstrating concrete injury, also the risk would be reduced if ∏s got the relief they sought • United States v. Students Challenging Regulatory Agency Procedures • →Based an Enviro. group's standing to challenge a railroad freight surcharge on the grounds that increases in railroad rates would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods….Book says this is the most attenuated injury conferring standing to date!) • →Prudential Standing Doctrines: imposed by the Court on top of what is required by the Constitution • →Third Party Standing:

or other high crimes and misdemeanors" • →Impeachment proceedings are nonjusticiable b/c the Constitution has given Congress sole power of impeachment • →Constitutional Amendment Process • →Presidential Election Process: • Bush v. and conviction of treason. II. shall be removed from office on impeachment for. § 4) of the Constitution and Justice Frankfurter had ruled that this issue was nonjusticiable • →Court held that the case issue was justiciable if brought under the equal protection clause of the fourteenth amendment…b/c an equal protection issue is one which cannot be decided by any other branch of gov.. sec. Greene..∆ claimed he had met all of the formal requirements …Speaker of the house said it was a question to be decided by Congress…but the court found the congressional qualification issue to be justiciable and "at most a textually demonstrable commitment to Congress to judge only the qualifications set forth in the Constitution • →Treaty Abrogation: nonjusticiable b/c Involves the authority of the President and foreign relations • →Impeachment Proceedings: • ROL (Art.. McCormack • →A seat was refused to representative Powell b/c he had wrongfully diverted funds. bribery. a similar suit was brought under **Guaranty Clause (Art IV. Gore 3|Page • . 4)→"The pres. vice pres. Abortion cases  →Ripeness: When a suit is to early to bring b/c of too many contingencies or uncertainties  →Political Questions: • →2 types: • →That some matters are committed to the unreviewable discretion of the political branches • →That some otherwise legal questions ought to be left to other branches as a matter of prudence • Baker v.) • →Dissent= Says it is really a guaranty clause claim masquerading as an equal protection claim and should not be justiciable • →Distinguishing legal from political questions • →Congressional qualifications • Powell v. • →Generalized Grievances: • Court will not adjudicate a claim where the harm alleged is suffered a large segment of society and not specific to one person or small group of people • →Zone of Interest: prudential limitation on standing usually in the form of citizen-suit provisions contained in statutes  →Mootness: Occurs when litigants who clearly had standing to sue at the outset of the litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has commenced • Exception: Cases that are "capable of repetition" Ex. Previously in Colegrove v. and all civil officers of the US. Carr • →Voters of Tennessee sought injunction to reform the outdated legislative districting plans and claimed the current system to be a violation of the Equal Protection Clause of the 14th Amendment....→"Plaintiff must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties" • →Court generally restricts standing to ∏s directly injured but there are some exceptions to this.

C. Co. 18)→“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. and among the several states. Knight Co. • →Held the fact that an article is manufactured for export to another state does not itself make it an article of interstate commerce. just b/c it involves intrastate commerce as well…that alone doesn't remove congress' right to regulate it  Stream of Commerce test: • ROL→ local activities can be regulated by Congress b/c they themselves are "in" commerce or as an integral part of the "stream of commerce" • Swift & Co.• • →Court actually heard this case (it was justiciable)…and held that the recounts ordered by the Gore team were unconstitutional and violated equal protection b/c they were being conducted under nonuniform standards…also. • →Sugar Trust Case • Invalidated the Sherman antitrust Act as it was applied to a monopoly of sugar manufacturing. Ogden • →Involved challenge to a steamboat monopoly…Court held that operating steamboats among two states is interstate commerce and Congress has the absolute power to regulate all interstate commerce subject to limitation only by the Constitution) • →Most expansive view of Commerce Power • 3 Tests  →Direct vs. United States • →Shreveport Rate Case…. and all other Powers vested by this Constitution in the Government of the United States. United States 4|Page • . v. E. T.) • →Rationale=Railroads are interstate carriers which are instruments of interstate commerce. .” • →**McCulloch v. Indirect effects test: What is the relation between the activity or condition and the effect? • United States v. v. Ry. or in any Department or Officer thereof. it falls under the "necessary and proper" clause… • →BUT State of Maryland could not impose a tax on the bank b/c states cannot tax or interfere with any Constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Gov The Commerce Power and its Federalism-Based Limits ○ Commerce Clause→ Congress has power "to regulate commerce with foreign nations. the date by which the votes must be conclusive.Court sustained congressional authority to regulate intrastate rail rates that discriminated against interstate railroad traffic…Rates to haul loads btw places in TX was lower than rates for going to Lousiana…Court said it unjustifiedly discriminated in favor of traffic within TX. and with the Indian Tribes" • Pre-New Deal  Gibbons v. §8. there was no possible remedy the situation by 12/12. and the intent of the manufacturer does not determine the time when the article or product passes from the control of the state and belongs to commerce  →Substantial Economic Effects test • ROL→ Congress can regulate intrastate transactions which are so comingled with or related to interstate commerce that it must be regulated entirely in order to properly control interstate commerce • Houston E. & W. under US statutes The Nation and the States in the Federal System ○ →Necessary and Proper Clause (Art. Maryland  →Held that Congress had the power to create a national bank in Maryland because although not within its enumerated powers.. cl.

Filburn • →∆ sues sec. Jones & Laughlin Steel Corp. of agr. Dagenhart • →Child labor case…A statute enacted by Congress aimed at standardizing the ages at which children may be employed in mining/manufacturing within the states… • →Congress cannot regulate the production of articles even if they are intended for interstate commerce b/c production is a purely local matter. mailing. if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens/obstructions. and trade practices of the poultry industry…. Substandard working conditions produce unfair competition which affects interstate commerce  Aggregation Principle→ Activites which.Court says it was necessary to prevent strikes. have trivial effects may have substantial effects when taken together with that of many others similarly situated can be regulated by Congress. or interstate transporting of lottery tickets… • →. Case has 2 holdings→ • →1. Congress can exercise that control • NLRB v. • 5|Page .the Act applied to purely intrastate commerce and exceeded the commerce power b/c the Slaughterhouse only sold to local retailers. Dagenhart…Court sustains the validity of a law regulating lumber manufacturing. by themselves. United States • →Held that congress could not regulate the wage. v. • →Court upholds the regulation b/c it substantially affects interstate commerce… this is the broadest exercise of commerce power. • →Court upheld a law allowing the NLRB to prevent any person from engaging in unfair labor practices. which would have a catastrophic effect on interstate commerce) • United States v.v Ames • →Lottery Case…Court upheld Federal Lottery Act which prohibited importing. hour. doing so would subject all local manufacturer intended for interstate commerce to federal regulation) Commerce Power and the New Deal  Schecter Poultry Corp.• • • →Sale of Cattle is considered interstate commerce b/c they are expected to end up at their destination in another state and are therefore within the stream of commerce) National Police Power  Champion .. Carter Coal Co. Congress can regulate shipment of goods across state lines even if its motive is to control local production • →2. Darby • →Overrules Hammer v. • Wickard v. which were not subject to federal control)  Carter v. • →Held that Congress could not regulate coal mining b/c it is a local concern…and otherwise does not have a "direct" effect on interstate commerce. Court rejects argument that Congress can enact laws for the general welfare of the nation as a whole b/c production is purely local activity! Post New Deal  ROL→ Even though activities are intrastate in character when seperately considered.Congress can use the commerce power to prohibit the movement of harmful items that move through interstate commerce as a police power to protect the public health)  Hammer v. to enjoin enforcement of a marketing penalty imposed on him for exceeding the market quota of wheat production which was for his own personal consumption and not for commercial purposes..

concert hall. lunch counter. United States • →Guy loans money to owner of a butcher shop and threatens violence when the owner couldn't pay back in the agreed upon installments…Court holds that extortionate credit transactions. lunch room. and other establishments…even though there were no congressional findings. or persons or things in interstate commerce. effects on interstate commerce are substantial Commerce Power and Civil Rights ○ Civil Rights Act of 1864 • Prohibits discrimination on the ground of race. even if coming from only intrastate activities  Commerce power includes the authority to regulate activities having a substantial relation to interstate commerce • Cases: 6|Page . theaters. • →Court upholds the validity of the law b/c even though discrimination is local in character. or if discrimination is supported by state action • → Covered facilities: any inn.Congress passes a law making it illegal to discriminate and motel owner subsequently challenges the act under the commerce clause. may in the judgment of Congress affect interstate commerce in the national setting ○ →Limits on the Commerce Power • **3 Broad Categories of Commerce Power**  Regulation of the use of channels of interstate commerce  Congress empowered to regulate and protect the instrumentalities of. but when you add up all the wheat farmers together. hotel. facilities are covered if its operations affect commerce. religion. McClung  →Court finds burdens placed on interstate commerce by racial discrimination in restaurants. Congress had a rational basis for determining that racial discrimination in restaurants substantially affects interstate commerce • → the food being served in Ollie's barbecue had moved through interstate commerce therefore subject to regulation by Congress • Congressional Findings • ROL→ Congress is not required to make formal findings to sustain legislation as rationally related to substantial effects on commerce • →Congressional findings are neither necessary nor sufficient to ensure a statute's constitutionality under the commerce clause** • →Commerce Power and Crime  Perez v. sports arena • → establishment affecting commerce: any establishment that offers to serve interstate travelers or a substantial portion of the food which it serves has moved in commerce  The act extended to private economic conduct not covered by equal protection because there is no state action involved ○ ROL→ determinative test of commerce power is whether the activity sought to be regulated is commerce which concerns more than one state and has a real and substantial relation to the national interest • Heart of Atlanta Motel v. motel. cafeteria. though purely intrastate.• • →"Aggregation" principle says ∆'s contribution to the demand for wheat by itself is minimal. restaurant. nowadays people tend to travel which burdens interstate commerce if they are refused a motel room (they have nowhere to go!!)) • Katzenbach v.. United States  →Motel owner discriminates against blacks and refuses to rent them rooms. theater. or national origin in certain places of public accommodation  Under the law. color.

Court says no way! Regulation of schools is local in nature and the criminal statute has nothing to do with commerce…the effects that carrying a gun to school would have on interstate commerce are too remote to allow Congress to regulate it  United States v. channels. nor prohibited by it to the states.. Lopez • →Congress tries to regulate criminal possession of weapons in schools through its commerce power.. sanitation. United States • →Court upheld the application of a federal tax to State of Nys sale of bottled mineral water from state-owned springs…Congress is allowed to tax and its taxing power extends as far as its commerce power therefore the state of Ny was not immune • Garcia v.Gov tries to sustain the Violence Against Women Act as a regulation of activity that substantially affects interstate commerce… • →Court held that Congress may not regulate noneconomic. its aggregate effects substantially affect interstate commerce… • →Court assesses the activity being regulated at a very general level and finds the CSA as a whole on a national level to regulate activities that are "quintessentially" economic. police. regulation and punishment of intrastate violence that is not directed at the instrumentalities. are reserved to the states respectively. United States v. Filburn and holds that congress did not exceed its commerce power authority b/c even though marijuana cultivation is an intrastate activity. California • →Court upheld a penalty imposed on a state owned railroad for violation of the FSAA.∏'s challenge the statute as exceeding congress' commerce power. Court analogizes the facts to Wickard v. Oklahoma • →Invalidated a condition in the federal enabling act for admission of OK to the union that purported to specify the state capital.b/c the sovereign power of the states.  Pro-State Autonomy Cases • National League of Cities v. • →Court held that power to locate the state capital and change it are state powers beyond the control of congress • United States v. parks and recreation) are typically regulated by the states and federal gov cannot take this power away from the states under the 10th amendment  Anti-State Autonomy Cases • Coyle v.. or goods involved in interstate commerce has always been the province of the states  Gonzales v.. Usery • →State autonomy defense finally succeeded…case involved amendments to the fair labor standards act that extended minimum wage and maximum hour provisions to employees of state and local govs… • →the court struck it down b/c employer-employee relationships (areas of fire prevention. violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce.... is necessarily diminished to the extent of the grants of power to the federal government in the Constitution • New York v. or to the people. ○ External Limits on the Commerce Power • →Tenth Amendment  →The Powers not delegated to the United States by the Constitution.. Morrison • →Case makes an economic/noneconomic activity distinction. Raich • →California passed legislation that decriminalized marijuana use for medicinal purposes… But the federal controlled substances Act prohibits marijuana use. San Antonio Metropolitan Transit Authority 7|Page . public health.

• →Issue here is whether congress may direct or otherwise motivate the states to regulate in a particular field or a particular way??? it cannot b/c the "take title" provision of the statute gives a state the choice to either accept ownership of the waste or regulate it according to congress instructions . • →"Any rule of state immunity that looks to the traditional or integral or necessary nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which policies it favors or dislikes"… • →Court found definitions of traditional state governmental functions to be unworkable and says the proper area for states' rights to be protected is the political process not the judicial process  Post-Garcia • South Carolina v. how the states regulate their own citizens but not Congress's ability to regulate the state's own conduct under general laws that also regulate the similar conduct of private actors 8|Page • . Baker • →Upheld removal of an exemption from fed income tax for interest from bearer bonds issued by the states….• → Overruled National League of cities…Court held a municipal transit authority was properly subject to the Fair Labor Standards Act….state of SC alleges that there was a defective political process b/c Congress was uninformed and relying on incomplete information. but this does not invoke the 10th amendment  Commandeering State Governments • →Two Federalism Questions • →Whether an act of congress is authorized by one of the powers delegated to congress in Art. states as regulators ○ →NY and Printz rejected congress's authority to dictate through federal prescription. waste generated within the state. the constitution does not give congress the ability to compel the states to do so…. united States • →Held that a fed statute requiring state and local law enforcement officers to conduct background checks on prospective handgun purchasers was unconstitutional b/c it purports to direct state law enforcement officers to participate in the administration of a federally enacted regulatory scheme States as objects of federal regulation vs.BUT this clear cut coercion by congress which is unconstitutional… • ROL→ Congressional action compelling state officers to execute federal laws is unconstitutional  Printz v. United States (Radioactive waste case) • →Court held that while Congress has substantial power under the Constitution to encourage the states to provide for the disposal of rad. 1 of the constitution • →Whether an Act of congress invades the province of state sovereignty reserved by the tenth amendment • ROL→ Congress may not commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program • →Alternatives to commandeering= • →Spending Power= Congress can condition the payment of relevant fed funds on a state's agreement to take title to waste if it has not already provided a waste disposal facility • →Commerce Power=if it has a substantial impact on interstate commerce • →Conditional Preemption=Congress can threaten to pass fed legislation under the commerce clause which will preempt the state regulations  New York v.

rather than seeking to control or influence the way in which states regulate private parties Eleventh Amendment ○ →ROL=The judicial power of the united states shall not be construed to extend to any suit commenced or prosecuted against one of the United States by citizens of another state. The federal statute prohibited state motor vehicle departments from disclosing private information. Union Gas Co. the court held that this was permissible under the tenth amendment b/c the law merely regulates state activities. when acting under its Art. may not abrogate a state's sovereign immunity w/o the state's consent.• →ROL=Congress may directly regulate a state's own conduct as long as it does not direct the state's regulation of its citizens • Reno v. Court could issue an injunction against state officials who sought to enforce an unconstitutional state law.  →Congress has the authority to create a course of action when legislating pursuant to the Commerce Clause and such suits are not barred by the eleventh amendment ○ ROL=The courts cannot have jurisdiction over a state that does not consent to being sued. OR  →a significant portion of the population has suffered injury • →Bankruptcy Proceedings ○ Exceptions: • Certain Actions against State Officers:  →Actions against state officers for prospective relief (injunctions)  →Actions against state officers for monetary damages from officer b/c it is against the individual acting outside of his official capacity so he is stripped of immunity (stripping doctrine)  →Actions against state officers for prospective payments from state treasury (can't be retroactive) • Congressional Removal of immunity under the 14th amendment ○ Cases: • Ex Parte Young  →Fed. Condon  →Court upheld a federal law limiting the commercial vending of personal data by the states. Eleventh Amendment restricts the judicial power under Article III and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction • Seminole Tribe of Florida v. or by citizens or subjects of any foreign states • Hans v. Bitzer  →Congress may abrogate the state's immunity from suit in federal court by making its intention unmistakably clear in the language of the statute • Pennsylvania v. This case arose from the Indian Gaming Regulatory Act which provided that an indian tribe may conduct certain gaming activities ○ 9|Page . Jordan  →Eleventh Amendment permitted lawsuits for prospective injunctive relief against state officers. Louisiana  →Eleventh amendment applies not only to cases within federal diversity jurisdiction but also to cases within the federal question jurisdiction of the federal courts ○ What is not barred? • →Actions against local governments • →Actions by the United States Government • →Actions by other states  →have to show direct injury to the state. Union Gas co and • →holds that Congress. on the ground that the ∆ was not really the state but rather the official acting beyond his constitutional authority • Edelman v. Florida  →Overrules Pennsylvania v. although not law suits for retrospective relief via judgment for damages • Fitzpatrick v. Section 8 power.

 →Congress' attempt to abrogate the state's sovereign immunity was unconstitutional  Board of Trustees of the University of Alabama v. to pay the debts and provide for the common defense and general welfare of the United States • →Taxing Power  ROL= A tax is invalid when it acts as a penalty in regulating an activity. Spending programs on states' agreement to waive sovereign immunity ○ State Sovereign Immunity and Federal Agency Proceedings • ROL=State sovereign immunity extends to adjudications within federal administrative agencies  →Hans Presumption • →Constitution was not intended to raise up any proceedings against the States that were anomalous and unheard of when the Constitution was adopted  FMC v. 1. B/c the ADEA failed the congruence and proportionality test. unconstitutional b/c it requires the state to deal in good faith w/ the indian tribes or be subject to a lawsuit • →Congress can only abrogate a state's immunity through 14th Amendment legislation! ○ State Sovereign Immunity in State Courts • ROL=Congress cannot abrogate a state's sovereign immunity from lawsuits against that state in its own courts  →**Exceptions: • →Suits by the federal government itself • →Suits brought under section 5 of the 14th amendment  Alden v. treaties. Section 8. imposts. and Foreign Affairs ○ →Art. 10 | P a g e . 4="Congress shall have the power to establish uniform laws on the subject of bankruptcies throughout the United States"  →ROL= State sovereign immunity does not bar Congress from subordinating a state entity to other creditors in a federal bankruptcy proceeding Taxing. by state probation officers seeking damages for the state's failure to pay them overtime compensation required by the federal Fair Labor Standards Act ○ State sovereign immunity and other federal laws • ROL=Valid 14th amendment legislation is the sole of possible congressional authority to abrogate sovereign immunity  Kimel v. cl. Florida Board of Regents • → Congress exceeded its 14th amendment authority in allowing state employees to sue the states for violations of Age Discrimination in Employment Act. duties. and excises. Maine • →Affirmed dismissal of a suit filed in Maine st. Section 8 cl. War. 1: "Congress shall have power to lay and collect taxes. Spending. Federal Remedies • Alternative mechanisms of enforcing federal laws against states:  Injunctions against state officials (Ex Parte Young)  Officials may enforce federal statutes through federal agencies at federal expense  Congress may condition fed. South Carolina State Ports Authority • →Sovereign immunity bars the FMC from ajudicating complaints filed by private parties against a nonconsenting state b/c sovereign immunity bars civil litigation and FMC administrative proceedings and civil litigation are very similar ○ State Sovereign Immunity and the Bankruptcy Power • Art 1. Garrett • →Held invalid Congress's attempt to abrogate sovereign immunity for state-employer violations of Title 1 of ADA because it was not a valid exercise of 14th amendment power ○ Federal Power vs.• only in conformance w/ a valid compact btw the tribe and state in which the activities are located.. ct.

The act levied a tax on persons engaged in the business of accepting wagers and required such persons to register w/ the IRS →Spending Power  →ROL: Congress may spend in any way it believes would serve the general welfare. the tax should be considered a penalty • →ROL=A federal excise tax does not cease to be valid merely b/c it discourages or deters the activities taxed nor is it invalid b/c the revenue obtained from it is negligible • United States v. Court says this a penalty rather than a tax b/c Congress is attempting to regulate and punish child labor and is therefore invalid • →Veazie Bank v. Butler • →Adopts Hamiltonian view of spending=Agricultural Adjustment Act of 1933. (Child Labor Tax Case)  → they couldn’t do this under the commerce power so…Congress imposes a tax on child labor for departure from a detailed and specified course of business. limited only by the requirement that it shall be exercised to provide for the general welfare of the United States  →ROL=The attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted • United States v. so long as it does not violate another constitutional provision • →2 limits on tax & spending: • →“General Welfare” phrase. Kahriger • →Court upheld a federal occupational tax imposed on gambling. of agri.•  →Taxes are sometimes imposed primarily to obtain motive but w/ the incidental motive of discouraging certain activities…But when the primary motive is regulation and punishment it is no longer a tax. 11 | P a g e . but becomes a penalty • Bailey v. Court says congress may restrain by suitable enactments. The payments came from a processing tax paid by the processor. Fenno • →Court upheld a tax on circulating notes of persons and state banks from 1% to 10% and the tax was challenged as being excessiv. circulation of money of any notes not issued under its own authority • →McCray v. Doremus • →Narcotic Drug Act cannot be declared invalid just b/c another motive other than taxation might have contributed to its passage  →Federal Excise and License Taxes • →ROL=Where intent to prohibit and to punish violations of state law is evident. and • →10th Amendment  →Two Views: • →Madison View=Power to tax and spend is only incidental to the exercise of the enumerated legislative powers and should be so be confined • →Hamilton View=Separate and distinct from the enumerated powers and is not limited by them. United States • →Tax on oleo margin upheld b/c a motive disclosed in selecting a subject for taxation to discourage sale of manufacture of an article by a higher tax on some other does not invalidate the tax…judicial inquiry into congressional purpose is improper • →United States v. Employers who violate the standards have to pay 1/10 of their entire net income in business for a full year. To make contracts with farmers to reduce their productive acreage in exchange for benefit payments. which sought to stabilize farm prices by curtailing agricultural production authorizes sec. Drexel Furniture Co.

inducement or persuasion does not go beyond the bounds of power • Charles C.• Case arose from imposition of a processing tax on cotton upon a corporation. isn't allowed to intermeddle into matters of state concern and cannot appropriate money necessary to purchase compliance with a regulation which otherwise could not be enforced also b/c it is coercive in nature  →ROL=Abatement of a tax upon the doing of an act that will satisfy the fiscal need. of Transp. terminate the credit. • →Court found that the federal law did not violate the 21st amendment b/c Congress is allowed to achieve indirectly what it cannot do directly as long as it comports w/ the other requirements of the spending power…Rather the spending power may not be used to induce states to engage in activities that would be unconstitutional • →Court says Congress is allowed to condition receipt of highways funds on states raising their drinking age b/c the relatively small tax is not coercive and 21st amendment poses no independent bar →War and Treaty Powers and Implied Power Over Foreign Affairs  →ROL=War power includes the power to remedy the evils which have arisen from its rise and progress and continues for the duration of the emergency • →War power does not necessarily end with the cessation of hostilities!! 12 | P a g e . enabling states to exercise their choice knowingly • →Must be related to the federal interest in particular national projects • →Other constitutional provisions may provide an independent bar to conditional grant of federal funds • South Dakota v. as to whether the spending power has invaded the province of the states  Current Approach to Conditional Spending • →Limitations on the spending power (4 part test): • →Must be in Pursuit of the General Welfare • →Congress must unambiguously condition states' receipt of federal funds. Butler attacked the tax. To withhold 5% of federal highway funds to any state that sold alcohol to people under 21. claiming that it sought to unconstitutionally regulate agriculture which is the province of the states • →Court says this isn't allowed b/c fed. credit provision in the tax was sought to induce the enactment of state laws that complied w/ federal standards. Steward Machine Co. Davis • →discretion belongs to congress. Employer was entitled to a credit of up to 90% of the federal tax for any contributions to a state unemployment fund certified by a federal agency as meeting the requirements of the Act…. statute directed Sec. and return to where it was before) • →Condition is not directed to the attainment of an unlawful end • Helvering v. Dole • →Arose from a challenge to a federal law that conditioned highway funds to states on the states' agreement to raise the drinking age. Davis • →Court upheld unemployment compensation provisions of the Social Security Act. • →Court distinguishes Butler: • →Proceeds of the tax not earmarked for a special group • →Unemployment compensation law has had the approval of the state and could not be a law w/o such approval • →Condition is not linked to an irrevocable agreement (state itself could repeal its law. v. tax and alternative being approximate equivalents. Gov.

the federal law will prevail • Gibbons v. • Missouri v. Black Bird Creek Marsh Co. • →Court upheld constitutionality of a state law that authorized construction of a dam across a navigable stream b/c it was under the state's police power rather than commerce power  ROL=Mere grant of commerce power to congress does not deprive the states of their power to regulate commerce where congress has legislated on the matter and has explicitly left its regulation to the states • Cooley v.. • →Court upholds the treaty as coming under the power to make treaties as long as it doesn't violate the Constitution…against 10th amendment challenge. • →Court says Congress was invoking its war power to cope w/ a current continuing condition of which the war was a direct and immediate cause therefore the statute is a valid exercise of the war power  →ROL=Congress can freely make treaties as long as they do not violate the Constitution.. Ogden pt II • →Held that NY navigation laws regulating interstate commerce must yield to the law of Congress  ROL=a state can make regulations of commerce for the protection and health of its citizens as long as they do not conflict with a law of congress • Willson v. Miller Co. it is necessary and proper for the government to function effectively in dealing w/ foreign nations • Zschernig v. Cloyd W.• Woods v. Holland • →US made a treaty w/ Great Britain to protect migratory birds. Miller • →Court barred application of a state alien inheritance law b/c it intruded into the field of foreign affairs which the constitution entrusts to the President and Congress Federal Limits on State Regulation of Interstate Commerce ○ →Three Situations (Old School): • →Dormant Commerce Clause=Congress is silent on the matter court looks at the negative implications of the commerce clause  ROL=Where there is a conflict btw a federal law and state law regulating commerce. which is free from the restraints of the Constitution… • Congressional Power over Foreign Affairs • →ROL=Even though there is no specific grant of power to Congress to regulate foreign affairs in the Constitution. it doesn't violate the tenth amendment b/c the birds being protected are transitory and do not have a permanent habitat in the United States… • Supremacy of Treaties over state law • →ROL=valid treaty overrides a state law on matters otherwise within state control • Treaty power and Congress's other powers • Reid v. Covert • →Dealt w/ congressional power to provide for military jurisdiction over civilian dependents of American servicemen overseas…Justice Black says that no agreement (treaty) w/ a foreign nation can confer power on Congress or any other branch of government. • →Congress passed the Housing and Rent Act of 1947 (federal rent controls) to deal w/ the shortage of housing after World War II b/c of demobilization of veterans and shortage of building materials. Board of Wardens • 13 | P a g e .

New jersey • →Court held unconstitutional a NJ law that prohibited the importation of most solid or liquid waste which originated or was collected outside the state. or whether it can be fairly viewed as a law directed to legitimate local concerns. Court says it facially discriminated against interstate commerce b/c its main purpose was protectionist to suppress competition and stabilize prices for NJ residents and was therefore invalid. It was invalid under the dormant commerce clause b/c it discriminated against interstate commerce and the state had not first tried any nondiscriminatory alternatives 14 | P a g e • . AND 2) →That the purpose could not be served as well by available nondiscriminatory means. There was also a congressional statute saying you have to follow the laws of the states. Local Distinction • →Regulations national in character are to regulated exclusively by congress however regulations local in character can be regulated by the states • Direct vs. Taylor • →court upheld a state law banning importation of out of state baitfish b/c it had a legitimate environmental purpose • →Once a state law is shown to discriminate against interstate commerce. the burden is on the state to show BOTH that the statute: 1) →Serves an important local purpose.→arises from a PA law that required ships entering or leaving the port of Philly to engage a local pilot to guide them through the harbor. The Court upheld the PA law b/c the federal said to follow the state regulations and the mere fact of congress having commerce power does not make it exclusive enough to exclude state regulation • National vs. Oklahoma • →Held invalid under the commerce clause an OH law forbidding any person to transport or ship minnows for sale outside the state which were procured w/in the waters of that state. if not a penalty was imposed. Indirect Distinction • →Direct burdens on interstate commerce are unconstitutional but indirect burdens are allowed  →ROL=Congress can consent to state regulations of commerce that would otherwise be barred by the dormant commerce clause  →Modern Trends: • Three Categories: • →State laws that facially discriminate against out of state commerce are per se invalid • →Apparently facially neutral laws that favor local interests at the expense of out of state competitors • →Invalid if they have an impermissibly protectionist purpose or effect! • →facially neutral laws that have a disproportionate adverse effect on interstate commerce (applies a balancing approach) • Facial Discrimination: • →ROL=State laws w/ solely protectionist purposes are always invalid • Philadelphia v. w/ effects upon interstate commerce that are only incidental • Permissible Facial Discrimination(Exceptions): • →Quarantine laws • Maine v. • →Test: Whether the law is basically a protectionist measure. • →State Hoarding of Natural Resources: • Hughes v.

may not use their regulatory power to favor local enterprise by prohibiting patronage of out of state competitors or their facilities • C & A Carbone. Dairy farmers. v. Law that imposed an assessment on all sales of milk to Mass. The ordinance was challenged by a milk producer based in Ill. taxation of that subject as a means of regulation is also unconstitutional • →Exception: a facially discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and substantially similar tax on intrastate commerce does not offend the dormant commerce clause • Oregon Waste Systems. in traditional governmental areas. Court said this is ok b/c government has legitimate interests in discriminating against interstate commerce unrelated to protectionism →"Market Participant Exception"=Applies when government acts as a buyer or seller of goods or services or engages in a program of subsidies or other economic incentives to aid instate businesses 15 | P a g e . v. • →ROL=States/local gov. Madison • →Court invalidated an ordinance barring the sale of pasteurized milk unless it had been processed and bottled at an approved pasteurization plant within 5 miles of the central square of Madison. Retailers. To compete with the lower out of state prices →Home Processing Requirements=Requirements that products be shipped. Inc. inspected. or treated inside the state before they may be shipped out of state are usually invalid • →ROL=A discriminatory state or local law may be valid if it furthers an important. thereby allowing higher milk prices in Mass. Oneida-Herkimer Solid Waste Management Authority • →Similar facts to Carbone. v. That pasteurized its milk there. processed. Court strikes it down and says it is also subject to the per se rule of invalidity. do not discriminate against interstate commerce • United Haulers Ass'n v. noneconomic state interest and there are no reasonable nondiscriminatory alternatives • Dean Milk Co. Inc. →Facially Discriminatory Subsidies: • →ROL=States cannot tax all producers of a product and then provide subsidies to instate producers by giving them a rebate part of the proceeds • →Straightforward cash state subsidies of in state business are permissible under the dormant commerce clause** • West Lynn Creamery.• • • • →Facially Discriminatory Taxes: • →ROL=Where a state regulation impermissibly discriminates against interstate commerce. Clarkstown • →An ordinance requiring all nonhazardous waste to be deposited in a privately owned facility within the state was unconstitutional b/c it discriminated against interstate commerce by prohibiting out of state facilities from soliciting business from in state entities • →ROL=Laws that favor the gov. b/c it made milk produced out of state more expensive. but rebated all the proceeds from the assessment to Mass. but treat all private businesses (whether in state or out of state) the same. WI. Inc. Healy • →Court invalidated Mass. v. except that the ordinance required all waste to be disposed of in a state-run waste facility. Department of Environmental Quality • →A state law imposed a higher tax on out of state waste which was discriminatory.

the state could deny foreign distributors licenses at the outset. State claims that economic benefit is only a secondary motive and that the law was primarily for the health and general welfare of its citizens. Du Mond • →Statute which required a commissioner to determine whether or not granting of an additional license to distribute milk would affect the intrastate market was unconstitutional b/c by that rationale. had its own standards. • H. v. Hood and Sons v.• • →State purchasing scrap cars from its citizens at a higher price than what it pays nonresidents=OK • →State policy restricting the sale of cement from a state-owned plant to state residents=OK • →City ordinance requiring all construction projects funded by city funds to be performed by a workforce of at least 50% city residents=OK • Limitations: • →Interstate Privileges and Immunities Clause • →"Downstream" Restrictions • →state cannot avail itself of the market participant doctrine to immunize its downstream regulation of a market in which it is not a market participant and consequent burdens on interstate commerce • →ROL=State cannot impose conditions that have a substantial regulatory effect outside of that particular market • →South Central Timber Development. Court held the law unconstitutional as applied to out of state milk producers. Washington.P. Wunnicke→ Alaska proposed sale of state-owned timber subject to the condition that the purchaser process the timber in Alaska before it was shipped out of state. Seelig • → Arose from state effort to stabilize milk prices. Inc. Court struck it down b/c it had downstream effects on interstate commerce which were outside the market in which the state participated →Facially Neutral Laws with Protectionist Purpose or Effect • →Protectionist purpose can be inferred from the effects of a state rule • →ROL=One state in its dealings w/ another may not place itself in a position of economic isolation • →ROL=Police power may not be used by the state of destination w/ the aim and effect of establishing an economic barrier against competition w/ the products of another state • Baldwin v. Milk control act prohibited NY sales of out of state milk if the milk had been purchased below the price for similar purchases within NY. which directly affects interstate commerce • →dealt w/ power of a state to deny additional facilities to acquire and ship milk in interstate commerce where the grounds of denial are that such limitation upon interstate business will protect and advance local economic interests →Identifying Protectionist Purposes and Effects • Hunt v. however. Washington State Apple Advertising Comm'n • →Court invalidated a NC law requiring that closed containers of apples offered for sale or shipped into the state bear no grade other than the applicable US grade or standard. Court says this burdens interstate commerce b/c: 16 | P a g e • .

• →Court said the burden imposed on the grower to build its on packing plant within the state was too great in relation to the local benefits under the balancing test • Kassel v. therefore it all traveled in interstate commerce. Governor of Maryland • →Court upheld a law prohibiting refiners or producers of petroleum from operating retail service stations within MD. • →Arizona statute requiring arizona grown cantaloupes advertise their state of origin on each package ("Home Processing Requirement"). Dias • →Hawaii tax on liquors and fruit wine produced instate invalid. Clover Leaf Creamery • →Upheld a state law that banned retail sale of milk products in plastic nonreturnable containers but permitted the same if they were made of pulpwood. • →Challenge to an Iowa statute that prohibits the use of certain large trucks within the state on b/c it unconstitutionally burdens interstate commerce. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits • Pike v. v. Court says it doesn't discriminate b/c it prohibits all milk retailers from selling their milk in plastic containers w/o regard to whether they are instate or out of state. not particular interstate firms • Exxon Corp. • →Unconstitutional= • Favors Local producers or Out of State Producers • Exempting Local products from tax. an AZ grower.• • → Increases costs of doing business within the state of NC • → Strips away Washington apples' reputation • → Protects NC growers by leveling Washington apples w/ NC apples • →ROL=Any effort to confer a benefit upon a local industry not granted to out of state industry is presumptively invalid as discrimination under the commerce clause • Bacchus Imports. therefore it is OK. v. Violated the commerce clause b/c it had both the purpose and effect of discriminating in favor of local products. and its effects on interstate commerce are only incidental. No gas was produced or refined in MD. nor does it favor local producers and refiners. Consolidated Freightways Corp. • Minnesota v. sent theirs to CA where they were cheaper to pack. • →ROL=Commerce Clause protects the interstate market. Ltd. Church. Bruce Church. Inc. It is a huge pain in the ass to interstate commerce b/c∏ can't bring its big 17 | P a g e . while taxing out of state products • Conditions granting of an additional license to distribute on whether it is destructive competition • Prohibits buying milk out of state if bought at a lower price than instate • →Constitutional= • Prohibits operation of businesses within state by producers of that product when there are no producers of it instate • Banning the selling of products in certain containers when that ban is across the board (affects instate and out of state distributors equally) →Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce= laws that are neither protectionist nor discriminatory • →"Balancing Test"=Where a statute regulates even-handedly to effectuate a legitimate local public interest. Court says it doesn't discriminate against interstate goods.

• →Court held unconstitutional Ill law designed to regulate tender offers made to target companies that had certain specified business contacts with Ill. • →court struck down a FL law prohibiting ownership of local investment advisory businesses by out of state banks. Struck down b/c it placed an unconstitutional burden on interstate commerce • →Business Entry • Lewis v.. Inc. State failed to produce evidence demonstrating that the statute has any safety benefits. Navajo Freight Lines. • →Prevents foreign enterprises from competing in local markets. Inc. v.. Mite Corp. the statute is unconstitutional • →Opinion says you have to look at congressional intent in promulgating the statute. Barnwell Bros • →Court upheld SC law prohibiting trucks that were over 90 inches wide or over 20. • →Commerce Power=Congress has exercised its power challenging inconsistent state action under commerce clause and supremacy clause • →Privileges and Immunities Clause=bars certain state legislation that discriminates against out of state economic interests ○ →Interstate Privileges and Immunities Clause of Article IV • →ROL=The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states  Serves as a restraint on state efforts to bar out of staters from access to local resources  Protects citizens against discrimination on the basis of state residency 18 | P a g e .trucks through Iowa and instead have to go around. v. Dynamics Corp. BT Investment Managers.000 lbs. bank holding companies and trust companies. • →Balancing Interstate Harm Against Local Benefit • South Carolina State Highway Department v. • →Court applied the "Pike" balancing test and found that the statute imposed a substantial burden on interstate commerce which outweighed its local benefits • Cts Dynamic Corp. forbidding contoured ones and was inconsistent w/ 45 states which authorized straight mudguards. Safety is a legitimate local concern and the statute is not invalid even though it burdens interstate commerce as long as it does not discriminate against interstate commerce • Southern Pacific Co. of America • →upheld IN law providing that a purchaser who acquired controls shares in an indiana corporation could acquire voting rights only to the extent approved by a majority of the vote of the prior disinterested stockholders. Arizona • →Court rejected an AZ statute limiting the length of trains going through the state b/c national uniformity is necessary to maintain an efficient railroad system and only Congress can regulate this matter • Bibb v. therefore there is no countervailing local interest against which to balance the burden on interstate commerce. therefore cannot be justified as an incidental burden necessitated by legitimate local concerns • Edgar v. • →Ill law requiring use of contoured mud flaps on trucks and trailers conflicted w/ an Ark. not what the defense lawyers stated purpose is. Law requiring straight mudguards.

• →Two part test= • →Court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause • →Whether an out of state resident's interest in employment on public works contracts in another state is sufficiently fundamental to the promotion of interstate harmony as to fall within the purview of the clause • In order to justify discrimination= nonresidents must somehow be shown to constitute a peculiar source of the evil at which the statute is aimed  Supreme Court of New Hampshire v. not a compelling interest) • United Building & Construction Trades Council v. and the laws of the United States which shall be made in pursuance thereof. • →When the fed. Piper • →state rule limiting bar admission to in state residents violated the privileges and immunities clause. completely occupies a given field or an identifiable portion of it= • →Whether The matter on which the state asserts the right to act is in anyway regulated by the federal government • 19 | P a g e . and all treaties made. so long as it discriminates against nonresidents the statute is unconstitutional. and • →The discrimination practiced against nonresidents bears a substantial relationship to the state's objective • →Court considers the availability of less restrictive means • →Court says the practice of law is a fundamental right! ○ Preemption • →Supremacy Clause=The constitution. only needs to show a substantial interest. Reg. • →Court says it doesn't matter that the also ordinance discriminated against Non Camden NJ residents b/c they can resort to the political process to vindicate their rights. Mayor and Council of Camden  →ordinance requiring that at least 40% of the employees of contractors and subcontractors working on construction projects be Camden residents. v. Co. under the authority of the United States. or which shall be made. the federal law may supersede a contrary state law b/c of the operation of the supremacy clause • →Three types of preemption: • Express preemption • Congressional intent from a scheme of fed. Gov.→Differences from commerce clause:  Corporations enjoy no protection here  Congress cannot waive privileges and immunities rights  Extends only to exercise of fundamental rights  Also less demanding standard of review (gov. shall be the Supreme Law of the land  →ROL=When congress exercises a granted power. so pervasive as to make reasonable the inference that Congress left no room to supplement it • Actual conflict w/ a contrary state law • Pacific Gas & Elec. Court held that congress left sufficient authority to the states to allow development of nuclear power to be slowed or even stopped for economic reasons. Woman who lived in VT took and passed the NH bar. • →Case deals w/ a statute enacted by congress and a state statue which are both attempting to regulate nuclear waste disposal. State Energy Resources Conservation & Development Comm. but was denied admission b/c she was out of state resident • →Clause does not preclude discrimination against nonresidents where= • →There is a substantial reason for the difference in treatment.

National Solid Waste Management • → Federal scheme which forbade duplicative regulation. Santa Fe Elevator Corp. court departs from the clear and manifest intent requirement when superseding state police powers  Preemption and foreign affairs power= President is invested w/ authority to handle foreign affairs and the states cannot interfere w/ this authority • Crosby v. states cannot inconsistently with the purpose of congress conflict or interfere with curtail of complement the federal law • Hines v. FL avocados were considered mature under fed. Laws b/c they interfered w/ Congressional objectives • Congressional Consent to State Regulation  → Congress can validly consent to state laws when the constitutional limitation on state power is not matched by a similar or identical limitation on federal power • Federal development grants and local-hire rules  → Court upheld an executive order by Mayor of Boston reserving 50% of jobs on public works projects to Boston residents • → Upheld against dormant commerce clause challenge under the market participant exception • Where state or local government action is specifically authorized by congress. Davidowitz • →State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of congress • → Identification of the federal objective • → Determination of the extent to which state law interferes • Florida Lime & Avocado Growers v.→Field Preemption=scheme of federal regulation so pervasive as to make reasonable the inference that congress left no room to supplement it • Rice v. Paul→ described conflict preemption as a situation where compliance with both federal and state regulation is a physical impossibility. North Dakota→  → substantial nexus w/ the state is greater than minimum contacts with a state required under the due process clause  20 | P a g e . Regulations but did not have the minimum oil content under CA standards. National Foreign Trade Council→ • → Federal sanctions against the nation of Burma superseded the more stringent sanctions imposed by Mass. Tax on shipper of automobiles for the privilege of doing business in the state • → Interstate commerce is not immune from state taxation  Four-part test→ state tax may be sustained when: • Applied to an activity w/ a substantial nexus with the taxing state • Fairly apportioned • Does not discriminate against interstate commerce • Fairly related to the services provided by the state • Quill Corp v.  →Conflict Preemption= • →When congress has enacted a complete scheme of regulation. Court says the federal government cannot supersede historic state police powers unless it was the clear and manifest purpose of congress. Brady→  → Court upheld against commerce clause challenge a Miss. • →Area that states typically regulated under their police powers. it is not subject to the commerce clause even if it interferes with interstate commerce ○ State Taxation of interstate business • Complete Auto Transit v. Court upheld this b/c CA only required a minimum standard (there was no physical impossibility of complying w/ both standards) • Gade v.

a non-rebellious state. his authority is at is maximum ↓ • When president acts in absence of either a congressional grant or denial of authority . He was tried by a • 21 | P a g e . Held that the power to make laws belongs to congress and he overstepped his boundary in this case. he can only rely on his own independent powers (but there is a zone where he and congress may have concurrent powers) • ↓ • When the president takes measures incompatible w/ the expressed or implied will of congress. Congress retains authority to raise and support armies and provide and maintain the navy. his power is at its minimum (he can rely on his own powers. places a heavy burden of proof on anyone who challenges it • Burden of proof was not met in this case • Emergency Powers  Ex Parte Milligan • → Milligan was a long time resident of Indiana. • 3 ebbs of Presidential Power= • When the president acts pursuant to an express or implied authorization of Congress. He was arrested and captured when he was suspected of being involved in the rebellion. so the president seized the steel mills to continue producing b/c the country was at war and necessary to stop a national catastrophe. and that he shall be commander in chief of the army • ROL=President's power must either stem from an act of congress or the constitution itself  Youngstown Sheet & Tube Co. minus any constitutional powers of congress in the matter) ↓ • Executive Agreements  → Interstate compacts are separate from treaties which require the advice and consent of the senate • → narrow and limited in scope  → Held that an executive agreement takes precedence over conflicting state policy • Dames & Moore v. A fugitive from justice must be delivered by the state to which he fled • Interstate compact Clause:  States cannot compact w/ each other so as to impair the supremacy of the United States Separation of Powers ○ Executive Power=shall be vested in a president. Regan • → President's action in nullifying Iranian attachments and ordering transfer of frozen assets was taken pursuant to congressional authorization. Sawyer→ steel workers went on strike. v. that he shall take care that the laws be faithfully executed.• Held it permissible under due process. or • → On an agency or instrumentality so closely related to the gov that the two cannot be separated • Neither States nor federal government can destroy the autonomy of the other ○ Mutual Obligations Among the States= • Privileges and Immunities Clause • Extradition Clause:  When demanded. not under the Auto transit test to tax out of state business that had no physical presence in the state and whose only contacts w/ the state were by common carrier or the mails ○ Intergovernmental Tax Immunities • States cannot impose property taxes directly on federal property or activities  2 situations: • → When the tax falls on the US itself. therefore: • → it is supported by the strongest presumption and the widest latitude of judicial interpretation.

• • military tribunal. Bush • → Guantanamo detainees claimed they were being held unlawfully • → Whether the habeas statute confers a right to judicial review of the legality of executive detention of aliens in a territory over which the US exercise plenary and exclusive jurisdiction. or • → Civil War. But the Court issued a writ of habeas corpus. due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker • In this case congress had authorized the detention. Eisentrager • → German civilians accused of being enemy aliens captured in a theater of war were tried by a military tribunal • → could not be extended the privilege of litigation in US courts b/c they at no relevant time were within any territory over which the US is sovereign  Rasul v. but not ultimate sovereignty • Held that the habeas statute applied to Guantanamo detainees b/c it was US territory where there is jurisdiction. appointed by order of president. on charges preferred against them purporting to set out their violations of the law of war and articles of war. is in conformity w/ the laws and constitution of the US • → Germans came over in a submarine to try and attack the US when we were at war w/ Germany • Court held that they were in violation of law of war enacted by Congress. convicted and sentenced to death. so no need to determine whether article 2 confers that authority 22 | P a g e . where • → The courts are actually closed! Executive Detention and the trial of Enemy Combatants  → Habeas Corpus • Suspension of writ may require legislative approval  Ex Parte Quirin • → Whether the detention of petitioners for trial by Military commission. distinguishable from Eisentrager • Court has power of judicial review over habeas corpus applications!  Hamdi v. • → Court held that president's suspension of writ of habeas corpus had not properly empowered him to try and convict before military tribunals citizens who had been detained during the war • Based on idea that constitution should apply the same during times of peace and war • Milligan was entitled to: • → an Article III civilian court • → trial by jury • Martial Rule can only apply when: • → Foreign Invasion. therefore they were properly triable by a military court  → Lawful Combatants= • Subject to capture and detention as prisoners of war by opposing military forces  → Unlawful Combatants= • Also subject to capture and detention • Subject to trial and punishment by military tribunal Executive Detention and Trial of Enemy Combatants after 9/11  Johnson v. Rumsfeld • → whether the executive has authority to detain citizens who qualify as "enemy combatants" • → Held that although congress authorized detention if combatants.

House passed a resolution that the deportation of Chadha not be suspended. Congress cannot infringer on this authority • INS v. • →Nondelegation principle is weaker for foreign affairs than domestic affairs • →Involved joint resolution of Congress to prohibit sale of arms to Bolivia and Paraguay. and gave Pres the right to veto legislation • →Bicameralism=Has to pass two houses of Congress. placing Bush's power at lowest ebb • → Pres using his own powers. Rumsfeld • → American citizen arrested by feds in Chicago airport for helping to plot a bombing. • →Presentment Clauses=all legislation must be presented to president before becoming law.Does not apply to initial capture. only when citizens are to be detained for an indefinite amount of time! • → Due Process to be given is determined by weighing= • Private interest that will be affected by the official action • Against the gov's asserted interest. captured in Afghanistan and was prisoner at Guantanamo. Pres deemed eligible for trial by military tribunal • →Court held that the military commission convened to try Hamdan lacks power to proceed b/c in violation of UCMJ and Geneva Conventions • Military commissions typically used in 3 cases= • →times and places where martial law is in place • →temporary military government in occupied enemy territory • →when there is a violation of laws of war ○ Congressional Violation of the Separation of Powers • Congressional Control over the actions of the executive branch  →Nondelegation • →Congress may not delegate its powers to another branch • →Does not prevent Congress from seeking assistance from other branches • United States v. but then Pres has unilateral veto which can be overruled by 2/3 vote of both houses • →Congress delegated authority concerning deportation to attorney general • →Held that actions taken by the house were unconstitutional b/c it didn't fall into either of the 4 exceptions authorizing one house to act alone • →Decision strikes down the legislative-veto  →Presidential Vetoes • →Line item veto 23 | P a g e • . including: • The function involved. Curtiss-Wright Export Corp. minus any power of congress over the matter • Military tribunals for enemy combatants  Hamdan v. and • Burdens the gov would face in providing greater process  Padilla v. Pres proclaimed an embargo • →Court held that President alone has the power to speak w/ regards to foreign nations. Rumsfeld • →Yemeni national. turned over to Dept of defense as an enemy combatant • → Held that the Non-Detention act constituted express congressional prohibition against executive detentions absent congressional authorization. Chadha • →statute authorizing one house of congress to invalidate decision of executive branch to suspend deportation of a deportable alien if the alien met specified conditions and would suffer extreme hardship if deported.

Removal of Executive Officers • →Appointments clause is silent as to removal of executive officers • Bowsher v. United States • →Applied Humphrey's rule rather than Myers rule • →Held removal by pres unconstitutional b/c it was intrinsically judicial • →Power to remove only exists if Congress confers it Constitutionality of Independent Counsel • →Congress created independent counsel to investigate possible criminal wrongdoing by high ranking executive officers can conduct preliminary investigations. United States • →Court held unconstitutional a statute providing that certain groups of postmasters could not be removed by the pres w/o the consent of senate • →Unconstitutional restriction on pres control over executive personnel • →Myers Rule=unrestrictable power of the pres to remove purely executive officers • Humphrey's Executor v. Synar • →Whether the assignment by congress to the comptroller general of the US of certain functions violates separation of powers • →Constitution doesn’t contemplate an active role for congress in the supervision of officers charged w/ execution of the laws it enacts • →Once appointment has been made. United States • →Held that pres could not remove a member of an independent regulatory agency in defiance of restrictions in the statutory framework • →Congress could limit the pres power of removal of FTC commissioner to removal for cause and limited Myers to purely executive officers • →Officers here were quasi-judicial and quasi-legislative • Wiener v.    Clinton v. Counsel could only be removed for good cause by the attorney general and is subject to judicial review 24 | P a g e • . 7 Congressional Control Over Executive Officers • →President can appoint superior officers under the Appointments Clause with the advice and consent of senate but grants congress authority to appoint inferior officers who report to superior officers • Buckley v. 1. several organizations challenged the cancellation • →Held that the Line item veto is unconstitutional and violation of separation of powers b/c it allows the Pres to create new law. constitution explicitly provides for removal of officers of the US by Congress only upon impeachment by the House and conviction by Senate • →Court held that congress cannot reserve to itself power of removal other than by impeachment and comptroller is a position of executive nature designed to implement legislation therefore can only be removed by impeachment • →allows congress to intrude on the executive function Fettering Executive Removal Power • Myers v. Valeo • →Congress appointed a bunch of officer to the FCC in violation of the appointments clause • →Congress can't do this b/c it is the president's job to appoint superior officers that who undertake executive or quasi-judicial tasks. sec. which is the legislature's job violates art. New York • →Pres clinton used line item veto to cancel a provision in the balanced budget act allowing NY to keep certain funds it would otherwise have to pay fed gov under medicaid program.

but he moved to quash on ground of executive privilege • →whether subpoena should be quashed b/c it demands confidential information btw pres and his close advisors that is protected by executive privilege • →neither need for confidentiality or sep of powers without more can give the pres absolute immunity • →exceptions: • Military • Diplomatic • Sensitive national security secrets • →have to weigh importance of the general privilege of confidentiality of pres communications in performance of his responsibilities against inroads of such a privilege on fair administration of crim justice  →Court held that when ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality. it cannot prevail over the fundamental demands of due process of law • Scope and Limits of Executive Privilege  →Amenability to Judicial Process 25 | P a g e • .Morrison v. Olson • →Issue Is whether the restriction of having to show good cause for removal interferes w/ president's duties • →When congress creates a temporary office. Dist ct issued subpoena to have Nixon submit the stolen tapes. an executive branch office  Other interbranch appointments • Mistretta v. Nixon  →members of pres Nixon's reelection committee stole tapes from democratic headquarters. the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place. United States • →Court rejected attacks on the unusually composed US sentencing commission • →commission was set up as an independent commission in the judicial branch • →Members removable by pres for good cause • →Case applied Morrison approach • →Congress' decision to create an independent rulemaking body and vest its authority in the judicial branch is not unconstitutional unless Congress has vested in the Commission powers that are more appropriately performed by the other branches or that undermine the judiciary • →Rulemaking can constitutionally be performed by the judiciary • →does not violate sep of powers • →does not interfere w/ judiciary ○ Executive Privileges and Immunities • United States v. it may vest power to define the scope of the office in the court as an incident to the appointment of the officer pursuant to the appointments clause • →Independent counsel does not need to be terminable at will by pres in order to avoid intruding on executive authority • →Does not exceed authority under sep of powers • →congress is limited to receiving reports of the counsels findings. which is a legislative function • →No judicial usurpation • →terminable by attorney general. Congress appointed special prosecutor to investigate.

the right to be treated like other citizens of that state • →Entails privileges and immunities of the second state • →Right protected by status as a new citizen. not in the identity of the actor who performed it • →Clinton claims the suit will unduly burden his time and impair his functioning. so it should be postponed • →BUT court says just b/c it makes it inconvenient. There was also a federal statute authorizing the states to do this. Roe  →involved challenge to state law that distinguished btw new and old state residents In the distribution of welfare benefits. but also as citizen of the US • →Citizenship Clause • →does not allow degrees of citizenship based on length of residence • →equates residence w/ citizenship • →Court says the statute is invalid b/c Congress cannot authorize states to violate the 14th amendment  26 | P a g e . doesn’t mean it violates the constitution • →Doctrine of sep of powers does not require federal courts to stay all private actions against the president until he leaves office Privileges and Immunities of National Citizenship ○ →Based on the 14th amendment • Saenz v. he sues pres Nixon and other officials for 1st amendment violation  →Presidential Immunity from Civil Damages Liability for Unofficial Actions • Clinton v. • →"Right to Travel" • →Protects the rights of a citizen of one state: • to enter and leave another state • The right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state • For those who choose to become permanent residents. Jones • → whether litigation concerning a pres actions taken before his term began should be deferred until his pres term ends • →Pres Clinton made sexual advances to a woman at a conference in a hotel while he was gov of Arkansas so she sues him later when he is President • →Immunity from suits for money damages arising out of official acts is inapplicable to unofficial conduct • →sphere of protected conduct must be closely related to the immunity's justifying purpose • →immunities are grounded in the nature of the function performed. CA enacted a statute limiting max welfare benefits available to newly arrived residents.• • →Pres is not immune from judicial process while he is in office →Scope of Executive Privilege • →cannot shield an executive from criminal wrongdoing  →Presidential Immunity from Civil Damages Liability for Official Actions • Nixon v. Fitzgerald • →President is absolutely rather than qualifiedly immune from civil damages liability for his official acts at least in the absence of explicit affirmative action by Congress • →making pres amenable to private suits would hamper the functioning of gov by distracting pres from his duties • →says there is still constitutional check of impeachment to rely on! • →Guy was fired b/c of publicly made statements.

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