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CONSTITUTION A. DESCRIPTION 1. Written Constitution a. It is the oldest, continuous written Constitution in existence. a. Supremacy Clause – The Constitution is the supreme law of the land, and its ultimate application is left to the Supreme Court. c. Written clauses restrict freedom of government organizations, i.e. lay out enumeration of powers 3. No Legislative Review – Constitution is not open legislative review, the Supreme Court. serves as the ultimate interpretive authority for Constitutional meaning 4. Based on Federalism rather than Nationalism a. Limits Constitution’s control at state level b. Enumeration of National Powers - Government is organized into 3 Branches with enumerated powers limiting their governmental powers creating a system of checks and balances. B. 2 Categories of Constitutional Questions 1. Challenges to Action by the National Government – D is the government or a government official a. Doctrine of Enumerated Powers - Action not authorized by the Constitution If the power used cannot be traced back to specific powers granted to that governmental body, then it is unconstitutional b. Separation of Powers Action, even though authorized by Constitution, is being performed by the incorrect governmental body c. Unconstitutional Power – Action is forbidden by Con 2. Challenges to Actions Taken by State Governments a. Pre-Emption Doctrine – State has legislated on something that is Constitutionally pre-empted and assigned solely to the National Government (i.e. entering Treaties, maritime law, declaring war or peace, etc.) b. Supremacy Clause – State action conflicts / interferes with national action (Art VI §2 – Supremacy Clause) c. Affirmative Limitations on State’s Power – State is forbidden from taking action due to affirmative limitations placed on it by Constitution (The Untitleable)


CONSTITUTIONAL AUTHORITY A. SUPREME COURT AUTHORITY– Article VI §2 the Con is the “supreme law of the land.” In Marbury v. Madison, the S.C. said, “it is emphatically the province and the duty of the judicial department to declare what the law is.” 1. Federal Legislation & State Actions Federal courts have authority to review whether federal legislation and state actions are Constitutional. Marbury 2. State Court Decisions  Federal courts have authority to review state court decisions if case arises out of a federal question and there are no “independent and adequate” state grounds for court’s decision. Article III; Martin v. Hunter’s Lessee 3. Policy behind Judicial Review  Since the Constitution is silent, it is more practical to have an ultimate arbiter, and that should be the Supreme Court, because they can protect the interests of the minority because they are not subject to political pressures. a. Countermajoritarian Rule  Emphasizes democratic nature of the Constitution. Since judges are not elected, they are appointed, even if they are appointed by elected individuals; the rule is still Countermajoritarian b/c they are not held accountable to the people.


Rule of Deference  p67 [“Congress’s acts]… were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place.” i.e. it is more appropriate for the legislature to decide what is an appropriate means for enforcing its power under the Commerce Clause, the voters review the Acts of Congress. 1  Yes, since the right is conferred w/the President’s seal delivery is not an essential aspect of this legal right; therefore he has a right to the commission. 2  Yes sometimes, the Political Question Doctrine forbids review of some disputes. 3 (a)  Yes 3 (b)  § 13 of the Judiciary Act says that S.C. has the authority to hear this matter, but Art. III of Con interprets Con as saying the S.C. does not have jurisdiction. Constitutional issue is which body of law takes precedent?  Constitution trumps the Act of Congress.

Marbury v. Madison (p. 29), (1803) Jefferson (new President) refused to deliver via Madison the commissions for Justices of the Peace appointed by Adams (old President) this included Marbury. Marbury sues in S.C. for a write of mandamus to compel Madison to deliver the commission. 3 Issues: 1. Has the applicant a right to commission he demands? 2. If yes, and right has been violated, do laws of US afford a remedy? 3. If yes, is it a mandamus issuing from this court? To answer this: (a) Is this the right of writ? (b) If yes, does S.C. have the jurisdiction to issue it? B. CONGRESSIONAL AUTHORITY 1.

EXCEPTIONS CLAUSE -Under Art. III, §2, Congress has power to limit the appellate jurisdiction of S.C by not affirmatively addressing SC jurisdiction; it may not expand the S.C.’s jurisdiction beyond the federal judicial power. Ex-Parte McCardle. a.  Check on the Exceptions Clause if the bill of rights b. NOTE: Justice Douglas contended that there “is a serious question whether the McCardle case would command a majority view today” Glidden.

Congress’s ability to Limit the SC’s authority Ex Parte McCardle (83)(1869), McCardle wrote for  Under Art. III §2 Con grants Congress the plenary a newspaper right after the Civil War during power to make exceptions to the SC’s jurisdiction. reconstruction, his articles were highly critical of However, it may not expand the SC’s jurisdiction beyond federal government’s use of its authority. He was the federal power. arrested and detained; the trial was over whether or  Judiciary Act of 1879 [Limits jurisdictions over cases not his detention was lawful. and controversies] – Lists cases where the SC does have  This is the most authoritative interpretation of the jurisdiction and by not listing cases excludes SC Exceptions Clause. jurisdiction over them, i.e. jurisdictional stripping bills. [Examples of jurisdictional stripping bills is in the  The Exceptions Clause, Art III §2 Handout that he gave us] NOTE – Justice Douglas contended that there “is a serious question whether the McCardle case would command a majority view today” Glidden Klein (87)(1872)– To establish a claim of seized property in the Civil War, a P had to show proof of loyalty to the Union  Congress tried to change the effect of the Presidential pardon The jurisdictional exception at issue here violated the principle of separation of powers in 2 ways 1. By usurping a judicial function 2. By encroaching upon a presidential prerogative




NECESSARY AND PROPER CLAUSE: , Article 1, § 8: a. Under the "Necessary and Proper" clause of Article 1, §8, if Congress is seeking an objective that is within the enumerated powers of the Constitution (i.e., commerce clause, taxing, spending, war, treaty, equal protection), then Congress can use any means that are rationally related to the objective Congress is trying to achieve provided it is not specifically prohibited by the Constitution. McCulloch v. Maryland. b. Doctrine of Enumerated Powers – Just b/c it is not expressly stated does not mean it does not fall under the N & P Clause, i.e. Implied Powers, Policy: This goes largely to the Rule of Deference, there is a wide ranging discretion about means to effectuate enumerated powers, Rationale Basis test  Congress has power to regulate through the Commerce Clause (Art I, §8, sc3) – the N & P Clause, Art I §8 sc18 c. Example: Congress can raise and army and navy. Congress makes law to have national bake sale for army and navy. Nothing in constitution about bake sale, but congress can make a bake sale to raise army. 2. Can Maryland tax the Bank, i.e. can a state tax the national government?  In this case, with a targeted tax, the SC held that Maryland cannot tax the national bank, but it is still to be determined whether or not a broader tax would be allowed. P70  Targeted tax = the power to destroy b/c it gives Maryland the authority to tax a federal entity, i.e. people in other states as well Maryland.  Supremacy Clause – federal objectives should prevail b/c the federal government should have the ability to go about its business without being impeded by states.  First Issue Holding = Courts interpretation of Commerce Clause under McCulloch – Using the N&P, p67, When it comes to ascertaining whether a particular act is within the powers of Congress …i.e. so long as Congress’s choices are reasonable and related to some purportedly Con’l power the courts will sustain the act of Congress – at this point a generous interpretation. SEE APPENDIX for Constitutional Interpretation Analysis using this case.

McCulloch v. Maryland (1819)(61) Maryland is alleging that the Bank of the US has refused to pay a state tax, specifically can James McCulloch, a cashier of a branch of the bank. John James sued on behalf of himself and the state of Maryland quitam. Issues: 1. Can Congress charter the Bank of the US, i.e. is the Bank of the US created by Congress Con’l?  Art I, §8, - Nothing says that Congress has the power to charter a national bank, but other powers listed such as the power to levy taxes. So you look to Implied Power; Art I, §8 sc18th Clause = Congress uses the Necessary and Proper Clause in order to achieve the means necessary to follow through with their powers listed under the Commerce Clause.  The Doctrine of Enumerated Powers – Congress cannot overstep their bounds, however, Necessary & Proper Clause allows Congress to create means with which to achieve goals. Pretext Argument “Is it the SC’s job to act as a lie detector to see whether or not Congress’s stated means are pretext? No.” - Rule of Deference  Art 10 – all powers listed not listed goes to states – does NOT limit Congress’s power to create a Bank C.

STATE COURT AUTHORITY Federal courts also have the power to review state court decisions, but only if the case arises out of federal law and there is no “independent and adequate” state grounds for the court’s decision. Article III; Martin v. Hunter’s Lessee. 1. The Appellate power of the US must extend to cases arising under the Constitution, the laws and the treaties of the US, thus the SC has appellate jurisdiction over Constitutional decisions by state courts. SC has judicial review of state courts.

2. 3.


§25 of the Judiciary Act (which authorizes the exercise of jurisdiction in the specified cases is supported by the Constitution) SC has judicial review of acts of Congress, i.e. National Government. Federal and State courts must follow the decisions of the S.C. SC has judicial review of state and federal courts. SC examines §25 and finds it constitutional, responding to each argument Argument 1  Con says “all cases”, if VA were correct then jurisdiction would be “some cases” Art III  Art VI §2 – all judges are bound by Con  Con contemplated SC review of state cases shown w/“all cases” b/c Con doesn’t say lower federal courts must exist (Art I, §8) so these cases must have meant state cases Argument 2  Art I § 10 – has provisions that limit state sovereignty w/regards to other branches of government, follows would apply to judiciary as well Argument 3  You can’t instill upon a general power a restriction which is not found in the terms in which the power is granted ************  Con suggests that state courts can be partial/unfair b/c otherwise diversity jurisdiction would not exist  Practical Argument: Judicial system requires uniformity throughout federal cases

Martin v. Hunter’s Lessee (51), (1816) Hunter claims title comes from state of VA, Martin claims title through a grant from Britain, a grant recognized as valid in a treaty with between the US and GB. TC – Finds for Martin, treaty valid. AC – Finds for Hunter, VA’s property rights had vested before treaty through an Act of Compromise w/GB. S.C. of US – Finds treaty valid, remands to AC w/direction to find for Martin. AC of VA says No!  SC says that §25 of Judiciary Act says that SC is highest appellate court in the land.  VA says §25 unconstitutional b/c of 3 Arguments listed by #: 1. Art III could specifically deny state courts the authority to hear the cases listed and it doesn’t, 2. §25 encroaches upon VA’s sovereignty 3. It is dangerous for SC to have power over everything

Cohens v. Virginia, SC does have the authority to review judgments of state courts AND where states are parties. Cooper v. Aaron Took the power of the states to interpret the Constitutionality of their laws away, i.e. States are involved and bound by SC decisions, only SC can review Constitutionality of laws.


But. 2. When government is not properly regulating a third party. Not be too generalized – it must be particular and not shared by all or almost all citizens. FEC v. DOW (report which would not affect building projects). B. Wright 1. Injury Likely to be redressed by a favorable decision from the Court – Test: Whether the relief sought from the court will alleviate the P’s injury? b. ACTUAL CONTROVERSY – The SC may not issue advisory opinions. promote judicial restraint. FOUR ELEMENTS: 1. Lujan v. and other harms. PRUDENTIAL STANDING – Standing requirements that are beyond the constitutional minimum. Arguably within the zone of interests protected or regulated by the statutory or Constitutional provision at issue. Jus Tertii 2. ensures cases are not abstract / hypothetical. when a party is directly denied opportunity or is diminished ability. P’s claim must be protected by the Zone of Interest of the law invoked. Aikens (denial of information). Generalized grievance + Concrete Injury = Standing under Article III/Maybe Standing under Prudential. Not really considered. then standing is available. If injury affects opportunity and ability. there must be more than just a denial of opportunity or diminished ability. there is standing. Lack of standing does not indicate a judgment on the merits (a subsequent lawsuit could be filed for same injury by party who would be granted standing). C. NOT an academic exercise). environmental. ARTICLE III STANDING. STANDING – The party invoking federal jurisdiction bears the burden of establishing both Article III and Prudential Standing requirements. if Congress doesn’t override. . CASE / CONTROVERSY REQUIREMENTS – Art III §2 provides that power shall extend to “enumerated cases and controversies. Policy: You should not litigate where a more appropriate remedy is political. Nexus is an important limitation to standing requirements. Simon Eastern Kentucky Welfare Rights Organization. A.” 6 POLICY Designed for docket control. “Fairly Traceable” to D’s behavior – Causation. a. but not if it is abstract. Generalized grievances can be granted standing if injury is concrete. 3. 3. Aikens. 2. Federal Elections Commissions. aesthetic. P cannot litigate for 3rd Party. DIFFICULT FACT PATTERN [w/cases involving the gov’t]: the gov’t has or hasn’t done to someone else and it has an adverse on me. Defenders of Wildlife. [Narrows Article III Standing] Injury must be: 1. Allen v. Injury in Fact / Threat of Injury in Fact Requires a Distinct & Palpable injury Requires a legal injury under common law or statute (includes a wide variety of economic.CONSTITUTIONAL LAW III. Lujan v.

[Difficult to recover damages on of other individuals] Congress MAY WAIVE prudential standing by specifying who has the right to sue. One or more of its members has standing ii. POLICY: Traditionally SC extremely African American Families for those cautious of telling IRS how to regulate enforcement of tax exemption families with black children in public statutes. NOTE: Remember to check statute for waiver (i. Bob Jones University v. Allen v. Individual’s used to establish standing do not necessarily need to participate in litigation. Simon v. but is not traceable or redressible. Wright (92)(1984) [5-3  Issues: Whether or not the Ps have standing? opinion] opinion/Marshall did not  P wants the Court to require the IRS more aggressively control participate] – Class action suit by granting exempt status. Issue to be litigated is “germane” to the organization or association’s purpose iii. allowed private schools to claim taxISSUE: Whether the Ps have standing to sue? exempt status even upon proof school An asserted right to have the government act in accordance with the was discriminating. surcharge on RR freight rates as Might not command a majority today. unlawful. SCRAP (107)(1973) Member’s injury was fairly traceable based upon their use and Environmental groups could enjoyment of park. Standing: Injury is fairly traceable and redressible. race. challenge ICC failure to suspend Fairly attenuated. any citizen may sue for a violation of this statute). IRS powers argument. Requires: i. they are simply not  Plaintiffs alleged two injuries: stigmatic and diminished ability to doing enough to catch these schools. attend integrated public schools. Court held that is speculative whether changing the tax status would increase the care and treatment offered to indigents. Problem from the outset. . Washington State Apple. No Standing: Separation of powers argument. Goode (1976)(95) Well established rule that government is traditionally granted the widest latitude in the disptatch of its own internal affairs. Eastern KY Welfare Rights Organization P argue hospitals should not be charitable organizations b/c hospitals were acting as for profit entities and not providing enough care to indigents. Hunt v. US v. FEC v. disqualifying schools from receiving Diminished ability to attend integraged public schools is an injury in tax exempt charitable status to fact.CONSTITUTIONAL LAW 7 c. No Standing: Injury is too abstract and not traceable or redressable. discrimination. United Stigmatic injuries are generalized grievances so that there is no States – court sustained a law standing.” No Standing: Injury not redressible. schools under desegration orders by Structured law enforcement of executive branch raises separation of Courts or DHS. because of the long chain of institutions intentionally connection leading to the IRS and many things could have prevented discriminating against on the basis of attendance of public schools. Too abstract.e. Exception: Associational Standing. Members “used forests. Millions.. Aikens. but had standing. Rizzo v. IRS is not law is not sufficient standing alone to confer jurisdiction on a federal knowingly allowing race court.

actually have to use the environment. Under statute. the courts just change their interpretation of what constitutes standing. Distinctions the Courts are drawing are not very clear. US Aid reqired to consult with department of the Threatened injury is okay. Aikens (1998)(105) Claimed When it’s a generalized grievance and abstract. Failure to get plane tickets.” New Rule: Anywhere w/in territory of ISSUE 2: “Ecosystem/Animal nexus. inforamtion that Aikens claims the statute HOLDING: When it’s a generalized grievance and concrete. Associational Standing (see outline above HOLDING 2: Fails under Lujan v. No standing because he didn’t suffer a particular concrete injury. no injury in fact. a contingent ecosystem to the one affected by agency or has an DOW was able to bring case based on interest in studying or seeing the animals action has standing. uncomfortable). decision is facing a perceptible harm or works in the very area of insufficient facts.CONSTITUTIONAL LAW 8 Goes to merits. Regents of UCA v. Congress did not grant standing. but would also be denied under political question Lack of Standing for Different Types of Injuries. the world where the species is threatened. DOW(97)(1992)There is an ISSUE 1: Plaintiff’s alleged impairment of ability to observe ESA Act imposing obligations on federal endangered species in their native habitat. Also applies to prudential standings requirements. Questions why no standing in Allen v. “Someday plans are not enough to establish Old rule: Anywhere on continent. then standing is person who works with a particular animal threatened by a federal available. therefore of interior. injury in fact. Extreme Cases where standing was allowed based on denial of opportunity and diminished ability. Legitimate arguments. which seems to be why ct tightening up its standing requirements Court uses standing instead of political question.” Anybody that occupies US. it requires an agency to make public. is an injury. Sierra Club v. US v.HOLDING 4: Court has limited Congress’ ability to determine who has rights to sue though standing requirements. Reinforces separation of powers argument. there is no injury by through inability to obtain injury.Procedural Injury. (Makes Prof. Ch. . Morton (107) endangered species created by secretary (1972). Wright. Lujan v. Generalized Grievances: Specific v. National Wildlife. agencies to make sure any action funded HOLDING 1: Impairment of ability to observe native species is by the agency won’t interfere with sufficient for claim of injury in fact. not standing. Bakke (112)(1978) guy goes to medical school and is denied admission. Also. must for requirements). Jacksonville (1993)(112) ability to get a contract with minority set aside. but you ISSUE 4: P claims violation of procedure . Anyone who visits zoo Nexus is an important limitation to can’t have standing. actually visit the land (no plane tickets). Richardson (108) (1974)CIA budget not available which goes against Article I. Environmental injury is okay. Northeastern Fla. If injury affects ISSUE 3: “Vocational nexus” It is possible and plausible that a opportunity and ability. but must be interior about the agency’s action. may have standing. Of Associated General Contractors v. especially whether they arise from the Constitution. Abstract Injury FEC v. Lujan. The doctrines do not change.” MOST IMPORTANT . standing requirements. Section 1. However. Aesthetic InjuryHOLDING 3: D did not establish. Actual Injury. Brings suit based on reverse discrimination. would they have gotten the K? Gratz v. unlike Aikens. Bollinger (2003)(113)challenging admissions at University of Michigan – he didn’t even apply. and receive a “biological imminent opinion. the construction has not taken place.

Article IV. 2. Baker v.” power through redistricting. §1901 Plain creates legislative a way that it would be impossible for a remedy through districts. and/ or a. c. the court looks at whether there is: i. Potential for embarrassment from a variety of announcements by different governmental departments on one question. Resolves Luther v. one vote” standard. b. ii. District lines justiciable under “one person. US: Congress has the sole power of deciding to impeach someone – judicial branch has no power to look at this decision (it is a political issue).e. normal political processes. i. Nixon v. to identify whether the issue is considered a political question that should not be decided by the Court. Bush v. Other secondary things to consider: 1. one vote” under the Equal Protection clause roughly similar populations in judicial districts. b. as reason why Courts may be reluctant to interpret and enforce the Guarantee Clause (of republican form of government). No way for an independent resolution without showing lack of respect for another branch. 9 POLITICAL QUESTION The Court will not hear political questions. Simms (1964)(136) Requires ”one person. 4. so interests control legislation. Section IV). Note: Don’t confuse things having to do with politics and political questions!! RARE! Things having to do with politics are not necessarily political questions. Injury must be in fact or imminently threatened harm. What to look for if case before court is nonjusticiable? . Whether the Constitution gives us criteria on the Constitutionality of the presidential veto. Carr (119)(1962)In TN voting strength The district plan encroached on the residents in TN in such given to districts. No allegation of disparate is justiciable controversy. If rural Eventually develops “one person. legislature contained disproportionate number of Court is willing to deal with gerrymanding problem and it representatives. one vote standard” that is judicially manageable since no possible remedy through normal political process. one vote standard. Since it does not. not willing to give up that it is a “judicially manageable standard. Gore: can’t come up with a method to recount votes properly. Determining if political question: Per Baker v. 3.” Reynolds v.Stephanie). Need for unquestioning adherence to a decision already made (primarily international affairs and war declarations. Entirely speculative whether he would be arrested again w/ use of chokehold. Gordon. An absence of judicially discoverable and manageable standards to decide the issue. Lyons (1983)(108)Arrestee sued for use of chokehold. b. a.CONSTITUTIONAL LAW City of Los Angeles v. so no judicially manageable standards. Connects to Marbury in discretion. Luther v. Popluation changed so significantly. Iranian hostages could not sue due to presidential treaties . treatment to a particular racial group. Effectiveness of Amendments. Suggested in McCulloch. 3. A textual commitment to an alternate branch of the government. Carr. Gordon (Guarantee Clause. Court will deal with gerrymandering under “one person. a. Impossibility of deciding without a policy determination that is not for judicial discretion (for another branch of government). it cannot be reviewed iii.

but an act by legislature of TN. This is not a political question. Guarantee Clause. Section III. Nixon v.” Congress . Clause 6 before a committee. Madison – Certain executive acts that the Court is not inclined to review. Section 2 There is a “textually demonstrable constitutional requirements of age. etc Is there such a thing as the political quesiton doctrine or is there a decision that states the constitution does not give you a remedy. v. Section III. in the Senate means whatever the Senate decides to Justice Suter’s dissent – what if they flipped a coin? Not do. He claimed he was not tried “Senate shall have sole authority…” Bringing case before by senate as required by Article I. criminal. Would create a chaos due to illigitimate acts of Congress chose to seat representatives of the government . Senate has sole authority to “impeach. Judically manageable standards criteria . constitutues a republican form of government (really only says United States. Article I. authority on part of government to enter the land. Case is justicable. Luther v. Court would not know standard to decide republican government. Borden (120)(1849)Claims in RI of 2 Court won’t deal with claim since it would be called to entities being legitimate government. Powell wins. Section IV – Guarantee Clause . Court decides ejectment from Congress. and residency commitment of the issue to a coordinate political requirements.CONSTITUTIONAL LAW 10 Under McColloch v. declaring king III.vests The President called out millitia to suppress Congress and President with authority to decide what other government faction. Constitution and Court consistenly intrepets Constitution in He brought judicial challenge b/c Congress can ways different than other branches of government. Clause 6. Article IV. Section IV. Maryland – is there an effective political remedy when the power is wrongly distributed and difficult to change due to entrenchment of particular group makes political solution less probable? Under Marbury v. Can imagine that there be some constitution and the meaning of Article I. Artilce I. Section criteria (by identifying outliers. charter government to sit in federal congress. Section IV allows Congress to make or alter regulations of the “Manner of Holding Elections. Could be viewed as a decision on the merits. Jubelirer (137)(2004)Plaintiff’s challenging map being drawn for redistricting PA. P claimed decide which contending faction in RI was lawful trespass against D.Court also Case ultimately dismissed for lack of describes how difficult it would be to identify a manageable jurisdiction. This is not an act by executive. flipping coin. Organizing districts in a way not to equally Does political gerrymandering raise to the level of a political question? Article I. citizenry. not just Congress or President).” Not justiciable. department” and the scope of such a commitment. McCormick (1969)(126) Powell This only requires judicial interpretation of the denied a seat in Congress because of misbehavior. but claimed government. United States (1993)(124)  Nixon sued  Textual commitment criteria – strong basis for finding for failure of Senate to try him for impeachment this to be a political question. D admitted. only refuse to seat on on Article I. republican form of gov’t. Possibly would have contradicted acts of other branches with ruling. Section 3 and Court would be adverse to framers intent that Sentate be should have been tried in the same manner as sole authority for impeachment. Vieth v. Article IV. Not justiciable. Constitutional guarantee of being tried standard for the procedure of “trying” an individual. which would be a decision on the merits. Alleging unconstitutional political gerrymandering. Presidident and Cognress have authority to determine republican form of government. Is the PQ doctrine really a question of politics or is it simply whether the constitutional issue invoked does not allow a remedy? Powell v. This decision actually interprets the a trial on an impeachment.

3.e. 4. 11 is allowed to override a state redistricting plan or make rules. suing to get into school you’ve graduated from).limiting jurisdiction of the federal courts to hear suits brought against states b. Justice Kennedy’s opinion: No political question and no standards to apply. Census mandates redistricting. but th violates Equal Protection Clause of 14 manner in which it was being implemented was arbitrary as Amendment and Due Process Clause. NOT ON EXAM! Bush v. XIV – deeming Americans of African Descent citizens of the United States c. Sims “one person. Section 1.  S. XXVI – setting the voting age 3 Policy Views on whether the Constitution Should Be Amended Madison: We do not need Washington: Proposed Consitutionall amendments only when they amendments b/c the Constitution is amendments should be would remedy huge structural defects. XI .e.  Best way to interpret case. too speculative or remote to warrant judicial intervention (i. the number of unconstitutional infringement of Constitution’s grant of electors. Any allegation that Renyolds v. §1 Life Tenure Federal Judges are Appointed for Life . CONGRESSIONAL POWERS A.  Successful Amendments that have overturned S. b. 5-4 vote decided 2000 Presidential election. XVI – Expanding the power of Congress to tax d. Lujan v.C. FL SCT’s Order was Legislature thereof may direct. Decides the case on the merits. 2. one vote” standard is violated? No. ISSUE 1: Various methods of recounting votes HOLDING 1: FL SCT has right to order recount. Decisions a. sufficiently flexible as it is. suing for housing discrimination when you haven’t applied for an apartment). Ripeness Bars court from deciding cases that are premature. ordered a revote of undervotes cast in FL counties. ISSUE 2: Article II. Amendments: If 2/3rds of both the Senate and the House propose an amendment OR if 2/3rds of the states of the states call for a constitutional amendment AND the amendment is ratified by ¾ of the states. Clause 2. POLITICAL SUPERVISION OF THE SUPREME COURT 1. 4. Appointment of Justices to the S. the standards for counting votes were not uniform. MootnessPrevents Court from hearing cases where the controversy has been resolved (i. Impeachment Art III.C. IV.Ct. DOW. Justices are appointed by the President and subject to consent by Congress.” Direct grant of authority in Constitution power to state’s legislature to FL legislature and FL SCT decision is unconstitutional infringement on power of legislature.Ct. Gore (144)(2000) FL S. Question of TimingNOT ON EXAM! a. not on the doctrine. “each  HOLDING 2: There is a direct grant of authority by state shall appoint in such Manner as the Congress to legislature of states.CONSTITUTIONAL LAW represent parties and gives advantage to one political party. to pollute the vote. welcomed. Is this a claim that some ethnic or racial minority is disadvantaged? No.

natural resources b. Checks and balances . Is it an empty set? Are there things that are exclusively w/in the authority of the state to which national power does not extend? Is there anything states can do that the national government cannot? What might those subjects be? . Neither state nor nation may have power to act i. but a provision that would allow Congress to share authority w/ states iv. Matters that simply are off the table in terms of authority ii. National government may be given exclusive power to regulate in some manner i. Bill of Rights (which does not address States powers) iii. Perhaps not exclusive powers of Congress. Permits local differences to be taken into account c.CONSTITUTIONAL LAW 5. Commerce Clause  are those powers meant for just Congress? iii. If regulation violates the 1st Amendment. States may enjoy some exclusive powers of their own i.dividing authority is more supportive of individuality 2. COMMERCE CLAUSE – Federalism in Action 1. Which law would rule in the event of a conflict? The Supremacy Clause = Congress c. More efficient to allow various jurisdictions to allow government to adjust the manner in which it addresses problems b/c of geography. neither state gov’t nor Congress may adopt it b. Forms that federalism might take (not mutually exclusive) a. What about powers in Article I. 12 Informal Control of Sitting Judges and Self-Imposed Limits  [SC is generally sensitive to the mood of the country and does not generally continue for a long time if it faces intense popular disagreement] B. Some grants of authority given to Congress that are later denied of the states ii. §8. population. Benefits to Federalism a.

Katzenbach. The use of channels of interstate commerce (Gibbons). airspace/commercial travel in planes. Having a great number of species could lead to cure for AIDS.  Examples: Navigable waters. did Congress have a rational basis to conclude that the class of activities of which the regulated activity is a part has a substantial effect on interstate commerce? (Rational basis + aggregation principle) Environmental issues: Biodiversity (potential effect) argument: the availability of a large number of animal and plant species has a substantial effect on interstate commerce. Ecosystem—could be considered interstate commerce if ecosystem greatly affects interstate commerce. Morrison.). Ollie’s BBQ. Heart of Atlanta Hotel. Lopez. radiowaves. highways. A requirement that the thing being regulated has been moved in interstate commerce? Notes following Morrison gives answer. that the [activity] affects interstate commerce?” Jurisdictional Hook (i. the government must inform them. the proper test requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce…” Lopez. etc. automobiles. waterways. • US v. Per Lopez. If the activity is not apparently economic.e.Gibbons v. Congress may regulate three broad categories of activity under the Commerce Clause of Article I. no guns that have been transported in interstate commerce—connection between activity and interstate commerce) Likely sustained. potentially very large category since many articles used every day in interstate commerce) Those activities that have a “substantial relation” to or “substantially effect” interstate commerce. Waterways . 13 COMMERCE CLAUSE: Three Categories Congress Can Regulate: “Consistent with the great weight of our case law. b. the channels of interstate commerce are the places where interstate commerce occurs. §8: a. through a case-by-case inquiry. trucking companies. insurance. trucks. 2) If yes. 3) If its not economic. internet. no guns vs. In view .CONSTITUTIONAL LAW 3. trains (Shreveport Rate Cases). etc. stock. Bass (transportation of gun – requires criminal received gun in interstate commerce. c. even though the threat may come only from intrastate activities (Shreveport Rate Cases. internet. Katzenbach). (Wickard. cattle. Each species is important under this argument b/c it is the number of species that matters. Darby. is there a “jurisdictional element (“jurisdictional hook”) which would ensure. air traffic. “instrumentalities” are things that facilitate interstate commerce  Examples: • Planes. Ogden Railroads – Shreveport Rate Cases The instrumentalities of interstate commerce or the persons and things in interstate commerce. not the characteristics of any particular species. Jones & Laughlin Steel) ANALYSIS: Lopez Substantial Effects Test 1) Is the regulated activity commercial (economic)? Court makes a distinction. telecommunications (telephones. and species is vital to the ecosystem. radio frequencies.

legislation regulating that activity will be sustained. 212: “jurisdictional element which would ensure though case-bycase inquiry. i. NOTE: Legislative findings showing only an attenuated link between the activity and interstate commerce are not sufficient (Morrison). among 3.” Even Wickard. Court examines the statute and the regulated activity to determien whether certain objective criteria are satisfied. 2005). 418 F. S. iii. FORMALIST A textualist approach. sustained if connection to interstate commerce is direct. When looking at reach of federal power. 212 “where economic activity substantially affects interstate commerce. is the activity “an essential part of a larger regulation of economic activity. Too tenuous and remote. • P. yes. that the firearm possession in question affects interstate commerce…” Reminiscent of Hamer v. Realist Approaches a. you’ve either got the wrong test or you’re not applying it right. . which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity. there is a limit to federal power. has Congress made findings that demonstrate a fairly direct link between the regulated activity and interstate commerce? If yes. v. 5) POLICY: • First principle. hasn’t addressed. • If the activity is non-economic. MIGHT NEED CASE-BY-CASE INQUIRY: BUT look at jurisdictional hook language on p. Dorsey. ii. The characterization must be fairly direct. New Deal Era Depression and political maneuvering (stacking the bench) made Court more generous to Congressional regulation under the Commerce Clause. Congress went too far.S. • Rational basis is a mediation between giving carte blanche authority to Congress and complete deference to their acts and requiring the government to prove that the act is connected to Commerce. If no jurisdictional element and if not part of a larger regulation. We need robust proof of the connection with intrastate commerce if it wants to substantiate it. the doctrine of enumerated powers. U. 2. But. Dagenhart Looking back at pretext? 4) If no jurisdictional element.3d 1038 (9th Cir. Congress more willing to exercise power to control interstate commerce b/c the effects of regulation less likely to cause war (war over) b. Not some attenuated version of the effect Court will “not pile inference upon inference” An indirect line of causation is insufficient. Sustaining gun free school zone acts as amended. It is not clear which is the conclusion of the Lopez Court. the rational basis does not apply. the Court goes into an aggressive mode and requires a showing of the connection. Formalist v. it looks at each term (commerce.Ct.CONSTITUTIONAL LAW 14 of Courts of Appeal. Historical Developments Effecting the Commerce Clause a. If test to apply leaves one government power limitless. involved economic activity in a way. in which the regulatory scheme could be undercut unless the intrastate activity were regulated? Aggregation principle and Rationale Basis still available. Civil War  After the Civil War. Court will not apply the rational basis test when it is not economic activity. If it’s non-economic.

FORMALIST = TEXTUALIST = INTERNAL Realist (Functional) Focuses on whether it practically affects commerce. would uphold legislation even if formal definition is not met. No necessity to provide hard evidence by government. Direct/Indirect Test (Regulation of Morals) Hammer v. Tests for Challenging Congressional Regulations 1. but look at the effect of the activity in aggregation. Commerce/Manufacturing Distinction. but NY has given Ogden a monopoly. regulates) and defines the terms of the grant – looking at “internal” grants of power. if all farmers in the class will. Is it “regulation”? Knows NO limit – only limit one might expect ot be found by this power is one that is enforced through the poles.e. i. i. TEST: Effects Test – does this effect other states’ commerce (thus allowing for regulation of intrastate commerce). Substantial Effects Test Does this effect other states’ commerce (thus allowing for regulation of intrastate commerce)? Gibbons v. i. [Not concerned with real effects of regulation.e.e. b. REGULATION: Not okay because child labor occurred 174)Court says that Congressional Act before placed in interstate commerce. it is acceptable regulation. Is it commerce “among the several states”? -Is it completely internal to the state? (NO. Rational Basis Test Scutiny of the linkage between what Congress has chosen to regulate and interstate commerce. i. in EC Knight technicially owning 98% of sugar production doesn’t occur “among the several states” (since it is production) and doesn’t cross state lines. So. rather than individuals of the class. even if the single farmer did not substnaially effect interstate commerce. Don’t look at just the individual before the Court. in EC Knight owning 98% of sugar production definitely affects interstate commerce REALIST = FUNCTIONAL = EXTERNAL 3. TEST: i. Objective.CONSTITUTIONAL LAW 15 several states. [or external limit enforced by Courts]. . Ogden. it will substantially effect interstate commerce. 1824. Court declares the monopoly unconstitutional and says that Gibbons has right to operate a ferry. Gibbons v. Dagenhart (1918)(p.e.) iii. [Concerned with real effects of regulation. Subjective.) -Does not affect other states? (NO. 2. 3. Formalist Focuses on the formal happenings. Regulation: Dormant commerce clause invalidating NY monopoly law. Attempts to determine actual economic impact of regulation or actual motivation of Congress. REALIST A functional appropach. Is Congress regulating “commerce”? ii. Marshall. prohibiting interstate transport of goods TESTS: Commerce/Manufacturing Distinction. Wickard]. Ogden (1824) (p170)Congress passes law allowing Gibbons to operate a Ferry. Effects Test: Still good law today. Aggregation Principle Effects of the entire class matter. EC Knight]. If the Court can immagine a reasonable relationship between what Congress is trying to regulate and interstate commerce.

REGULATES SHIPMENT OF GOODS. Clause with the Commerce Clause. Knight (1895)(p. Object of invokes Sherman Act to set aside sugar company regulation is not directly related to interstate commerce. BAD LAW 16 Direc/Indirect Test This is manufacturing. 175) Filburn was  Court upheld Act on basis of Aggregation Doctrine ordered to pay a penalty imposed by the saying that if all farmers did the same. . regulated whole. He argued the  Aggregation Principle applied. The evil has ended once the goods are manufactured and before they are placed in commerce. Justice Holmes dissent says formalist approach should not look at intent and should remain strictly formal (should uphold the law). 10th Amendment allows states to regulate child labor . Court says Because it is only indirect.” RR has close and substantial relation to interstate commerce traffic. BAD LAW! Formalist approach (but looks at intent). 188) The ICC set a maximum rate applying equally to shipments from Dallas or Marshall to Shreveport. REGULATION: Not okay. thus viewed by court as an “instrumentality of interstate commerce. Rejects Direct/Indirect through Aggregation. they were LOW WATER MARKCourt’s willingness to not required to do because if the Court can immagine a defer to Congressional regulation (contrast with reasonable relationship. Striking miners intended to interfere with commerce. acquisition of 98% of Sugar Refineries.CONSTITUTIONAL LAW produced by factories using child labor is unconstitutional. supplied hard evidence of the relationship between Wickard’s activities and interstate commerce. Commerce/Manufacturing Test United States v. Jones & Laughlin Steel. Clear and Substantial Effect. If not an instrumentality. The collective regulations could not be constitutionally applied to consumption of excess wheat on farms has substantial his crops because part of his crop was intended for impact on the interstate market for wheat. Substantial/Insignificant Test.187) – US Production is not related to interstate clause. RR being regulated is interstate carrier. HIGH WATER MARK Court’s willingness to police Congress (constrast with Wickard). US] (1914) (p. Congress cannot regulate. not commerce. Wickard’s home use and consumption and not interstate small impact is enough to bring his activity within the commerce. While the government REGULATION OF INDUSTRY. Filburn (1942) (p.C. Morals Case: Congress is using commerce clause as pretext to regulate morals. in excess of his assigned quotas. Court ruled that regulation between Dallas and Marshall was permissible. Darby (FLSA). manufacturing. there would be a Agricultural Adjustment Act for producing wheat substantial effect on the economy. REGULATION: Okay. Direct/Indirect Test. This deals with Formalist Approach. Limited by NLRB v. Rational Basis test applied. 188) Court upheld application of the Sherman Regulation: Okay. it is acceptable regulation Hammer). and Manufacturing National/Local Test Wickard v. Direct/Indirect Test Coronado Coal v. it is not constitutionally this is not covered by the Sherman Act because it is sustainable by conjoining the Necessary and Proper only manufacturing. Overruled by US v. Aggregation Doctrine. E. REGULATION: Okay. Congress can regulate intrastate commerce where there is an inseparable relationship between intrastate and interstate commerce. use EC Knight test (direct/indirect test). Direct/Indirect Test Shreveport Rate Cases [Houston East & West Texas Railway v. United Mine Workers (1925) (p.

Direct/Indirect. whereas Champion still allows state lotteries. External argument: Congress’ power is limited by constitutional grants and cannot transcended based on the 10th Amendment (this is province of the state). This is later rejected by Darby. Formalist approach. GOOD LAW. but one that indended direct interference with commerce. which have in themselves a recognized value in money. regulate labor conditions. Carter Coal Co. Direct/Indirect ALA v. Precedent for NLRB v. (p. Stream of Commerce Theory Initiated Stafford v.” IMPORTANT: SEVERABILITY. NY poultry company at end of stream of commerce with an indirect effect on commerce. Champion was indicted for shipping a box of Paraguan lottery tickets from Texas to California. Regulation upheld. Direct/ Indirect: (Regulation of Morals) Champion v. Congress will not examine motives behind legislation. Centerpiece to New Deal regulation. 195) (1936) Regulation: Not okay. 190) (1903)  Federal Lottery Act of 1895 prohibited interstate transportation of foreign lottery tickets. Direct / Indirect Test 17 Stockyards are the throat through which the current flows in the stream of commerce. 189 ) Packers and Stockyards Act of 1921 was held constitutional because it is within the stream of commerce. Jones & Laughlin Steel. constitutes interstat commerce. “Stream of Commerce”. Production local and mines are at beginning of “stream of is off limits. Congress attempts to set up local coal boards to Mines are local and are before stream of commerce. “Stream of Commerce”. Regulation: Not okay. Champion can be distinguished since Hammer legislation would invade state authority by eliminating all child labor. DAGENHART: Hammer which is realist and functional in its analysis. . just prohibits interstate shipping of tickets. The carrying from one State to another by independent carriers of things or commodities that are ordinary subjects of traffic and. The Court declared the Act constitutional. (Distinguished from production in EC Knight). DISTINGUISHED FROM HAMMER V. Direct/Indirect. Internal argument: Court has burden to determine meaning of terms “commerce” “among several states” and “regulate” based on Gibbons (textual). Lottery tickets shipped across state lines. Court begins to look at both formalism and functionalism to make decisions on commerce authority. declaring that mining has Manner of degree has no bearing. Notion of Severability: In this case. you cannot excise one portion of the statute. 193) (1935)  New deal case where court ruled that live poultry codes set up through NIRA to regulation working conditions in the poultry industry were unconstitutional where they applied to NY poultry company at the end of the stream of commerce. Severability Carter v. Two provision: price-fixing and labor provisions. thus not a serious limitation of state soveriegnty. calling it a local act. Schechter Poultry (p. No consideration of direct effect on interstate commerce. commerce. Regulation: Okay. Court the “extent” of the effect but the “relation” between the invalidates these provisions on basis that this is activity and the effect on interstate commerce. Wallace (1922) (p. The opposite of EC Knight. National/Local. TEST: “Stream of Commerce” carried on through interstate commerce. Effects of regulating the local wholesale is not direct or close enough to be controllable by Congress but questions of degree are important.CONSTITUTIONAL LAW Act to a strike against mine operators. looks at motive of congress. Aimes (p.

Clear & Substantial Effect (Regulation of Morals) US v. Labor regulations of steel (1937) The NLRA regulates labor relations. subverts between state and federal governments. Affectation Doctrine. Dangenart Rationales: (overruled). TENTH AMENDMENT DOES NOT APPLY: Court’s conclusion is unaffected by 10th Amendment b/c it p. (p. Generous analysis of the “means” Congress may 2.CONSTITUTIONAL LAW The majority of justices address the labor and not the price fixing and will not excise one portion of the statute. shipped in interstate commerce. Wage and labor provisions. a broader test. Carter v. Motive – Not justicially reviewable. 3. Jones & Laughlin Steel Corp. Not severable. 200) Regulation: Okay. 206 (Important quote). 10th Amendment – No independent barrier to is regulating wages and hours. Purpose to level competition among states. “reasonably adapted to a legitimate end?” Yes. Darby (p. and Carter Coal Maybe Shreveport Rate Case or Special Rule for Instrumentalities Definitely Wickard v. 1. pretext argument of Hammer v. is not a prohibition that would otherwise restrict KEY POINTS: congressional power because it merely states relationship 1. commerce. some of his goods were later Overrules Hammer. Goal is to prevent interstate trade in goods and the means 2.Triumph of Functionalist Approach NLRB v. lumber manufacturer. due to the nature of the How are the activites Congress is trying to Defendant’s national business operations. as long as regulating commerce) Irrelevant Champion ARE THE EFFECTS ON INTERSTATE COMMERE IMPORTANT? No – Unless “direct” EC Knight. Aggregation Principle in Employment Cases . Extends Congressional power to reach activities which affect interstate commerce in some significant way. “Affects” Test  This activity “affects” interstate use to regulate interstate commerce. corporation with plants in many states. Rejects “Stream of Commerce” and “Commerce”/”Manufacturing” Distinction . Carter is implicitly overruled.” ”The question is necessarily one of degree…” Holdings are very fact specific. who wrote Schechter. Effects PRETEXT ANALYSIS DOES NOT APPLY: p. Schechter. Carter Coal Ambiguous Gibbons (Congress can do whatever it wants. More like Hammer and could not be a plainer example of a formalist approach. Dagenhart. 205 (Important quote). Filburn (Modern view). 204) (1941)  Darby was a Regulation: Okay. Court says that efforts to promote fairness are okay. He was indicted Tests: Affectation Doctrine and Clear & Substantial for violating wage and hour provisions of FLSA. Close and Substantial Effect on Commerce. Charged D with unfair labor practices for firing Silently overruled Carter and Schechter as “not employees seeking to unionized. says must Replaced the old “stream of commerce” and consider effects on interstate commerce so indirect “manufacturing”/”commerce” tests with new test: “Close and … and Substantial Relationship to Commerce. controlling. 4. 18 IS PURPOSE OR MOTIVE RELEVANT? Relevant Hammer v. regulate really affecting interstate Commerce? Looks at Wagner Act on case-by-case basis. Are these measures regulation of interstate commerce.” Justice Hughes.

looking at leglislative history that prevented individual instances of the class. Courts can examine to determine the Interpretation of aggregation principle in Wickard. 208)(1964) Regulation: Okay. Do the “receives. “How obstructions in commerce may be removed – what means are to be employed – is within the sound and exclusive discretion of the Congress. Public Accommodations. instrumentalities of interstate commerce. the activity being regulated must itself be economic in nature or “an essential part of a larger regulation of economic activity. that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce…” (p. This interpretive principle is applied sometimes by the Court.” 19  Note 2b. the de minimis character of individual instances arising under that statute is of no consequence. Government tries to link violence in schools to interstate commerce by showing the effects of violent crime on the economy. 211) (1995)  Lopez was convicted for knowingly carrying a handgun in a school zone. Legislation: Not okay. Aggregation Doctrine. but Constitution serves as a background for Court to adopt certain principles. Affectation Doctrine. Clear & Substantial Effect (essentially Rational Basis) Heart of Atlanta Motel v. 209)(1964)  Affectation Doctrine. Defense was that the statute cannot be constitutionally applied to him. This is a jurisdictional hook required. It is a statutory interpretation question. Looks at possession. McClung (p. The Constitution requires no more. constitutionality of an action. 207)(1971)Not a constitutional decision.” “extortionate credit practices” (loansharking). Jurisdictional Hook United States v. When Congress does not speak clearly as to the application of the statute. US (p. possesses and transport” have to be shown to have occurred in interstate commerce? YES. as trivial. Is a constitutional record necessary to establish Aggregation Principle? No. It is subject only to one caveat – that the means chosen by it must be reasonable adapted to the end permitted by the Constitution. 212 quote). it is Case by Case Analysis championed in Jones v. Court has no power “to excise. Regulation of Where economic activity substantially affects interstate commerce. legislation regulating that activity will be sustained. 207. To come within this standard. Government must show “Consistent with the great weight of our case law.” Three categories of activities that Congress can regulate under commerce power: channels of interstate commerce. Lauglin is not necessary that Congress make a record that the abandoned. He facially challenges the entire statute.206) (1968)“Where a general regulatory statute bears a substantial relation to commerce. Closer to test regulated and the class as a whole has an effect on interstate for civil rights cases. No individual instances of employment will be carved out and ignored as long as regulatory scheme as a whole is a proper exercise of power. United States (p. Language of the statute reproduced on p. Aggregation Doctrine. Lopez (p.CONSTITUTIONAL LAW Maryland v. There must be a jurisdictional hook to give rise to the regulation by Congress. A bald prohibition of guns in school zones. Katzenbach v. transport and receipt by a felon of a gun. We cannot say that its choice here was not so adapted. Clear & Companion cases where Court ruled Congress had Substantial Effect (essentially Rational Basis) power to regulate public accommodations under This is a rational basis test: Did Congress have a rational 1964 Civil Rights Act on basis that their food basis for concluding that there was a substantial effect on products were shipped in interstate commerce and interstate commerce? that they affected interstate commerce in various ways. 207)(1971) As long as the person regulated is a member of the class Clarification of Wirtz and Wickard. the Court. and economic activity that has a substantial relationship with . US v. Justice Douglas tells us after commerce. Perez v. Wirtz (p.” THE DOCTRINE: Substantial Effects Test. Bass (p.

If Congress wants to regulate a non-commercial activity. there is very little Congress cannot regulate under the commerce clause. Majority implicitly agrees that the legislation should be subject to greater scrutiny if it invades area of traditional state concern. Desired for economic barriers to be eliminated. Economic policies contributed to view. Statute is part of a larger regulatory scheme intended to regulate interstate commercial activity involving controlled substances. Violence against women not an economic activity. Key concerns of framers and animated Constitution and developing a stronger national government a. Congress cannot assume the aggregation principle is available. Background 1. Marijuana a Type 1 controlle substance (strictest classification under CSA). Substantial Effects Test US v. But. Concede it is within larger regulatory scheme. 20 interstate commerce. Congress argues the “but for” causal chain in the occurrence of violent crime for interstate commerce. Raich (packet)(2005)2 pieces of legislation.” Ps concede CSA is regulating commerce. Congress can regulate things that have a substantial effect on interstate commerce. Wickard principle of aggregation not available. distribution. Controlled Substances Act (Fed) and Compassionate Uses Act (CA). they must provide robust proof of that need. Congress reasonings and studies are not enough. POLICY: Economic activity might be a little bit different. Indirect circular arguments. Court will not excise one portion of a statute when the entire purpose of the larger statutory scheme statute is to regulate interstate commerce. 4.CONSTITUTIONAL LAW Kennedy’s dissent states that this analysis is really about protecting traditional areas of state sovereignty. Regulation: Not okay. Allows a federal remedy for women who are assaulted. Congress must show a substantial effect on interstate commerce. STATE REGULATIONDORMANT COMMERCE CLAUSE—under the dormant commerce clause.” Mere fact that it is economic activity is not enough to invoke rational basis (seeds).  If the activity is non-economic. A. Rape by student athletes of Morrison and got no relief through school processes or tort law. the rational basis does not apply. Morrison (p.222) (2000)  Violence against Women Act. Trying to find a line is very difficult. tariffs between states and protectionism 2. Congressional findings will not save the day unless they are direct and substantial. Issue: “The question presented is whether the power vested in Congress to make powers that are necessary and proper… includes the power to prohibit the local…[use of marijuana]. . so Congressional findings are inapposite. Dictionary definition: “Economics” refers to “the production. once you buy into aggregation principle and rational basis test. Take issue with small portion of regulation (use of marijuana for medicinal purposes in accord with Compassionate Uses Act). The connection is too tenuous. Line from cause to effect is not direct enough to justify regulation. and consumption of commodities . Cases where Congress is trying to regulate non-economic activity. New union looked like a confederation of independent states than a nation. or unduly burdening interstate commerce. it is a broad deferential standard to Congress (not judges purpose to determine the tightness of the legislation to the things regulated therein). states are restricted from discriminating against. Ps want one type of activity removed from CSA (do not contest act). Substantial Effects Test Gonzalez v. b. If it is part of a large legislative scheme.

Over time this has erroded. 21 Theories to Apply a Dormant Commerce Clause (Examine the Statute) 1. 1. 3. protectionist statutes) 2. If there is room for local treatment in objects of legislation. Suggested Exclusive Power Theory.CONSTITUTIONAL LAW B. Ogden would have argued that he does not need a federal statute to engage in the practice and he can challenge NY statute as unconstitutional as contrary to the exclusive power of Congress to regulate commerce.e. Purely Political Theory Promotes idea that citizens are part of a nation working toward national purposes. want all states to achieve maximum economic performance) 3. States cannot regulate in those areas where national treatment is necessary. Court has recognized concurrent authority of states with federal government to regulate commerce. . Cooley v. especially in light of commerce clause interpretation under Gonzalez and Lopez. If there was no regulation. Mixed Theory of Political and Economic Theory: protectionist legislation form the operation of political process understood as “distorted” in ways that lead to the enactment of economically inefficient statutes. Purely Economic Theory Barriers inhibit economic stability (prohibits trade wars between the states and prohibits interference with efficient disposition of resources throughout the country. Some state statutes are incompatible with the ideal of a unified nation (i. Consequences of Exclusive Theory falls by the wayside. Ogden (1824)(170)  Justice Thomas suggested states are constitutionally disempowered to regulate commerce. Gibbons v. Exclusive Power Theory – Consequence would be radical disempowerment of the states. No need for national rule regarding pilotage laws. Barnwell Brothers Appropriate for Court to step in and give Congress power under commerce clause and coupled with the NP clause to preempt state legislature. Radical disempowerment of the states. C. 2. Board of Port Wardens. states can regulate it.

TEST: a. When a conflict between state and federal regulation. Impossible to comply with both state and federal law. Court attempts to determine Congressional intent. Anomoly: With Federal Acts. Types of Preemption: a. but has not addressed the appropriateness of state legislation. Primary ExampleNuclear power regulation for safety reasons.” Congress overruled the Court’s decision of the original package rule in Leisy v. federal statute trumps. c. look for field preemption and conflict preemption. does it specify the Congressional criteria? i. Ogden (Federal statute v. Court denied states ability to regulate. If no. Field Preemption (Implied): Congress has regulated a field so completely that a Court is willing to conclude that the entire area is preempted and no state may regulate. those who oppose state regulation may secure federal legislation preempting it. ii. those who support state regulation may secure federal legislation permitting it. 3. b. Express Preemption: Congress states expressly what states may do. .e. Leisy v. While state has power to regulate consumption and sale of alcoholic beverage. If a challenge is sustained. obstructs or frustrates federal objectives. Primary Example Gibbons v. i. If express.] i. If yes. Are the state’s standards either as or more stringent. 2. Judicial Decision on Commerce Clause Challenge not necessarily final a. c. as specified? c. Conflict Preemption (Implied): Congress has stepped in to regulate a particular area. [No states may regulate this subject matter or States may regulate subject to some caveat.CONSTITUTIONAL LAW D. 22 Preemption – determining what implications are when Congress says something and when they have not. Hardin (1890)(232)State cannot exercise their power to tax items of interste commerce so long as the items remained in their original packages. it could not prevent importation as long as it is in its original package. Court has last word. TEST: Has Congress specified in the statute? a. “and shall not be exempt therefrom by rason of being in original packages. States are free to impose own standards. 1. According to Supremacy Clause. b. it is a commerce clause analysis. but must be AS or MORE stringent. If a challenge is rejected. Clean Water Act (federally mandated pollution controls). This is a regulation of interstate commerce that is discriminatory and must be struck down. Wilson Act Liquor imported into a state “shall upon arrival [be] subject to “ local laws as if it had been locally producd. Courts will hold that there is preemption.e. Has Congress specified in the statute? i. ii. look at preemption. b. b. iii. NY statute). Hardin. If implied preemption. State objectives impede.

State is trying to protect the health and welfare. (Court has moved away from “economic bad” analysis). If FACIALLY discriminatory OR discriminatory PURPOSE it is “Invalid per se. States should be able to preclude economic bads from entering.) The extent of the burden that will be tolerated depends on the extent of the local interest involved and are there reasonably alternative means of achieving the state’s objective. (See Exceptions.” Apply Pike v. City of Philadelphia v. 137. C&A Carbone. a virtually per se rule of invalidity is established. To determine if its protectionist or affects interstate commerce? COSTS: Local landfill operators Out of state waste producers BENEFITS: Out of state landfill operators In state waste producers  NJ law is protectionist because it imposes on out-of-state commercial interests the full burden of conserving the states remaining landfill space. NIMBY – at state level. Bruce Church. Bruce Church. Might impose intolerable costs on states of origin. New Jersey (1978)(236) New Jersey law prohibiting solid waste from outside the state. the Court has adopted a much more flexible approach. TO AVOID INVALID PER SE PRESUMPTION: State has the heavy burden of proving: 1) Legitimate Purpose: that the measure is virtually certain to achieve its legitimate purpose. . ”Where simple economic protectionism is effected by state leglislation. Court worried about “retaliation” through trade wars. Court held that Wilson Act was constitutional exercise of Congress’ exlcusive power to regulate interstte commerce. 2. it will b. Where simple economic protectionism is affected by state legislation.CONSTITUTIONAL LAW 23 In re Raherer. a virtually per se rule of invalidity has been erected…The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders” POLICY: Justice Rehnquist states there is no distinction between quarrantine cases and trash cases. with no integrated economy.” NJ is New York and Philadelphia’s trash dump.. or has a discriminatory purpose against out of states. DEFINITION: If the statute is facially discriminatory. NJ. and 2) NO Alternatives: that the purpose cannot be served well by available. legislates on the basis of geographic origin of the service or product. Philadephalia. the general contours of which were outlined in Pike v. it is per se discriminatory.. “Your trash is your problem.” i. iii. If the state discriminates on the basis of economic origin. it is virtually per se invalid. 397 U. less discriminatory means. If not DISCRIMINATORY (facially or purpose). below. ii. Inc. ANALYSIS 1. When are state’s efforts to regulate unconstitutional? City of Philadelphia v. Inc. POLICY: Court worried about economic balkanization. 142 (1970) Quote Definition ”Assessment on whether the burden placed on interstate commerce by legitimate state interests and its effects on interstate commerce are only incidental. ”But where other legislative objectives are credibly advanced and there is no patent discrimiantion against interstate trade. apply the Flexible ApproachIs the burden on interstate commerce such that the statute should nevertheless be declared unconstitutional? Are the costs on interstate commerce are excessive based on the benefits granted to the state? a. Policy: Avoid protectionism.S.

d. On its face. Is this a legal judgment or a policy judgment? Should it be left to the Courts or the states? Is this the Court’s role? 5. 2. Shipment might wreak havoc upon Maine’s aquatic ecosystem. Barnwell. then the question becomes one of degree. Washington State Apple (p. suggests it will examine the most stringent state standards and see if the incremental difference that burdens commerce is outweighed by the local benefits. Under Cooley. (1977)Two major rivals in apple market (North Regulation applied to all apple growers. South Carolina v. Alternative way to deal with the problem. 2. Challenge to law geographic origin so not discriminatory on its face.” Historical Development: 1. down even if not facially discriminatory. it must coordinate efforts with other states to reduce burdens. (i. of state apple growers over others. and on whether it could be promoted as well with a lesser impact on interstate activities. If want to legislate on national matter. 4. 258 notes following case indicates that statue economic grade standards. 3. 3.CONSTITUTIONAL LAW 24 c.e. Southern Pacific Co. Is there a less discriminatory or burdensome way to accomplish? Court says no. Is North Carolina taking it upon itself to give US Three discriminatory effects: 1. v. 2. TIER 1: Prohibited geographic discrimination. There could be an inspection system. Examine how to make these policy determinations (legislation would save 3 lives annually v. Maine v. such as RRs. Nebraska (239)(1892)  Nebraska Court says cannot discrimination based on economic prohibits sending groundwater to other states unless destination in regulating resources. look at reasonable alternatives to state’s regulation to see if there is a less burdensome way to regulate the matter. that required USDA labels and standards instead of Discriminatory Purpose is that it disparately effects out Washington State Standards that are higher. be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits…If a legitimate local purpose is found. Is there preemption by US FDA laws? No. 3.256) Regulation: Not okay. Applies a rational basis test to determine if state is acting in a sphere that is appropriate. Statutes with discriminatory effect will be struck Important to remember. examine the subject matter of local legislation and consider if it is appropriate or more appropriate for national legislation. Id. ask Congress to regulate and preempt the area. no matter their Carolina and Washington State). has a leveling effect of . Barnwell. Then. FDA laws preemptive effect? deprives economic good will by virtue of superior p. Similar to Quarrantine laws. the other state allows reciprocal sending. Rather than asking the Courts. but the Court finds that it is not adminsitratively feasible to have an inspection system that will do the job of a complete ban. Taylor(1986)(240) Prohibits bait fish from outside state from being imported into Maine. TIER 1: Prohibited legislation due to Discriminatory PURPOSE Disparate Effects Hunt v. out-of-state bait fish have parasites that in-state do not. State’s justification. Southern Pacific Co. 16 cars or 8 cars). it is geographic. Sporhase v. Then applies a balancing test between the local benefits and the burdens placed on interstate commerce. adding costs. Appropriate remedy is judicial challenge not legislative protectionism. $18 million per year to comply). And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved. but not discussed. TIER 1: Allowed facially discriminatory law. Policy Developments: 1.

An idea not explicit in the Constitution (Dormant Commerce Clause) is found to trump an idea explicitly in the constitution (21st Amendment –states can regulate alcohol). very low taxes. C&A Carbone. TIER 1: Rejected facially discriminatory legislation and REQUIRES STATE TO MAKE “CLEAREST SHOWING” OR CONCRETE EVIDENCE. See Law Journal. v. but would not change said that the statute could have been effective without majority’s ruling. instate by out of state producers. not confused consumers. Court should have stayed out of it. Dean Milk Co. patronage of out-of-state competitors or their facilities. water. Subsidies are okay if come out of general It might not be so bad to extend to trash. makes economically Economies of scale are found in other utilities. Clarkstown (240) (1994)  Closing the market completely to out-of-state competition Clarkstown subsidized a private “waste transfer completely burdens interstate commerce. Taylor. can escape by showing a good instate wineries to directly ship wine to consumers. Justice O’Conner’s Concurrence: There is no  State and local governments may NOT use their discrimination here (agrees w/dissent) b/c here no regulatory power to favor local enterprise by prohibiting in-state class favored over out-of-state class. Court does not explicitly call it protectionist or discriminatory. Madison(1951)(245): HYPOS: Geographic discrimination on its face.) 21st Amendment EXPLICITLY grants authority NY and MI give reasons 1. unable to solve the local problem. 25 downgrading Washington apples with apples of less quality. station” to collect solid waste. City passes “flow Discrimination against interstate comerce in favor of local control ordinance” that all waste must pass business or investment is per se invalid. v. reason and no alternative regulation. cause these issues. but colors the whole opinion. etc. Court extends Philadephalia Rule to cover local interests. O’Conner applies balancing test and concludes Close call. also in bad sense. out of state will avoid sales tax. . advance a legitimate local interest.CONSTITUTIONAL LAW was enacted at request of NC apple growers. Court rachets up the showing required by state. but would be expensive. W/o the ordinance. Heald (2005)(Supplement)MI law Geographic discrimination raises presumption of regulates and prevent shipment of wine directly unjustified economic protectionism. Granholm v. violates Commerce Clause. 5-4 vote. while allowing Under Maine v. Court finds both inadequate. TIER 1: Geographic Discrimination on its face. MORE than Maine v. PROF thinks this is a draw! Agrees with Could regulate. minors. MADDENING: does not tell us what the test is. Replacing competition with discriminating on its face by giving it financial subsidies or monopoly – city’s do it all the time. gas. Courts require the “clearest showing” to justify discriminatory state regulation. trash by achieving environmental goals. No design to have the amendment displace the ordinary working of the commerce clause to limit There must be concrete evidence that direct shipping will discrimination or economic protectionism. TIER 2 ANALYSIS: Difficult determination when local protectionism is involved. class of cases in which the municipality can demonstrate. Justice Souter’s Dissent – it is dubious that Arguments must be rejected absent “clearest showing” economic protectionism is the motivation of the that the unobstructed flow of interstate commerce itself is statute. 2. Inc. Court reinforces Philadelphia analysis with a more demanding burden on states to justify reason for discriminatory regulation. save in a narrow through 4 facilities located w/in town jurisdiction. State being held to VERY high burden. Taylor. Justice Kennedy Souter’s reasoning. (Virtual per se rule. limit alcohol access to to the states to regulate importation. This is revenues and not earmarked taxes. Carbone would have shipped under “rigorous scrutiny” that it has no other means to materials to out-of-state destinations at lower cost. TIER 1 VS. not a dormant commerce clause issue.

Not geographic discrimination. Ordinary political safeguards are thought to be enough for general taxes b/c you can address it though ordinary political processes (i. RR would have to choose least number to avoid dismantling trains at state’s border. Healy (1994)(247)Imposed uniform tax and gave refund to in-state dairy producers. even on a local basis. voting. It does not work. then must give deference to state Modern View: Kassel v. Inc. complaining). Consolidated Freightways legislatures. Limits applied both to in state and out of highways. Exxon Corp v. there are many competing interests from the revenue and it is sufficient to ensure that economic protectionism would not be basis for using tax revenues. Is there a rational basis? Yes. Rational basis test and invoking N&P clause. Is there a legitimate state interest? Certainly – protection of RR workers.CONSTITUTIONAL LAW City of Clarkstown. What if it must be processed at only 2 out of 4 located in the city? What if 2 have more state of the art equipment? Why still objectionable? West Lynn Creamery. Balance the putative local benefits against the burdens based on interstate commerce. Race to the bottom. Regulation: okay. If rational basis. Legislation was upheld. In-state discrimination just as much as out of state discrimination. out of state. Madison. There are four waste processing facilities in town. Other interests not represented in that government. City passes ordinance that all waste has to be processed at any one of the four. It impedes access to the regulatory body because local entities have greater representation at enacting level. Economic discrimination of instate v. No denial of state legislation. Facially Neutral Statutes with Significant Effects on Interstate Commerce South Carolina Hwy Dept. v. Just go down to jurisdictional unit acting.Ct. but must show that the benefits exceed the burdens. Another step required. trucks that can be used on South Carolina highways. state trucking firms. Arizona (1945)(255) State regulated number of cars on RR in order to protect safety of RR workers. it would be okay. since equally discrimination against in-city/in-state and out-ofcity/out-of-state.e. yes. the polls. It must be one of 4 located w/in town’s jurisdiction What if only one is chosen and there are several others inside and out side the town? 26 Case cited by S. Barnwell Brothers TEST: #1. Modified by Kassel. Hard to say that discriminatory intent is geographic. WI had requirement that all milk sold in city must be located within 5 miles of city. Has the state identified a legitimate state (1938) (255)  Weight and size limitations placed on interest for the legislation. Benefits must exceed the costs. Very substantial cost. that resembles this case. Dean Milk. . Whether the means of regulation chosen are but will significantly affect intersate commerce. v. Doesn’t necessarily eliminate geographic discrimination. Ask – is city prefering its own to all others? Court includes all discrimiantion. Why? Lack of political fix is a main concern. That’s unconstitutional as well. Corp (1981). v. Whether the state legislature has acted within its Some intrastate carriers could not use trucks inSouth province? At this time. #2. no federal interest in Carolina. Southern Pacific Co. and not earmarked for return to in state dairy producers. If it comes out of general revenues. reasonably adapted to the end sought. If neutral tax went into general pot. Balancing test develops.

Exxon No No (Dissent says yes) Yes (gas supply) Yes. (implied) The legislation seems to have discriminatory effects and the legislation is not reasonably calculated to address legitimate state objectives. Only entities outside MD are affected. 3. Consolidated Freightways Corp. where any state (other than WA) if enacted the statute. Burden on Interstate Commerce is outweight by insignificant safety benefits. Unanimously found truck length statute unconstitutional. they have to divest.CONSTITUTIONAL LAW Governor of Maryland (p. 4. Exxon HYPO – what if TX enacted the same legislation as MD? Would that have a serious impact upon the commerce? 27 ANALYSIS: 1. No gas reserves or refineries in state of MD. (p. State statute limits significant safety benefits and it also imposes heavy burdens length of trucks (double trucks). No disruption to interstate commerce since flow of gas not prohibited – focuses on product market. by wholesale. 2. 265) Regulation: not okay. No-what’s left to balance? Legitimate state interests hint at protectionism (exceptions for border states). Facial Discrimination Discriminatory Effects Legitimate state objectives? Legislation Reasonably Related to legitimate State objectives? Alternatives Balancing? Distinguished Explains different outcomes Both casesout of state interests bear all of the costs. Idea should the accident of geography in MD (where there are no refiners and producers) preclude them from allowing the statute? Hunt No Yes Yes ?No? Yes. No-not explicitly The legislation may have similar discriminatory effects (protect from prime competitor) but is reasonably calculated to address legitimate state objectives. Suggests that there are. The Statute prohibits gasoline refiners and producers from operating retail gas stations.] Yes. v. Is the legislation reasonably related to a legitimate state objective? Yes. Dissent focuses on service market. Court believes State in Exxon not Hunt. MD refineries and producers would be affected equally (practically there are none). Are there any safety benefits from this statute? No. This is a legitimate state interest. Are there discriminatory effects? Yes. Raymond Motor Transportation. would have the same result. Just not by retail. The effects cannot be alleged to be as discriminatory as they are in MD since there are a LOT of in-state producers and refiners thus as discriminatory in-state as out-of-state Compare to Hunt. Is there a legitimate state interest? Yes. Rice (243)(1978)Close in time. Classic multi-factor constitutional analysis in Iowa argued Barnwell: rational basis between regulation . There is a shortage of supply. Regulation does not provide any (1981) Plurality opinion. State of MD is concerned this will exacerbate the shortage and not distribute gas in an effective. on interstate commerce. [No discussion in case. If refiners and producers operate stations. Kassel v. Is there facial discrimination? No. Inc. Gas was being rationed and prices soaring. 259) (1978) Early 1970s major gasoline shortage due to OPEC oil embargo. they will get the gas during times of short supply. Court looking at something else? Can they sell gas in the state? Yes. If they already own them. Kassel No (applies to all trucks) A bit with exemptions No (a bit) Yes (highway safety) ?Dicy.

The Plurality compares the benefits from the 65 feet to 55 feet yield any safety benefits? Compares what other states are doing versus what the state before it is doing. why not appropriate to argue RBT? • Is the state’s interest in avoiding the ill-effects global warming reasonable? YES • Is the regulation legitimate to reach that interests (the state’s objective)? YES – it’s a reasonable first step. Creative argument for attorneys. Rehnquist says the relevant comparison should be the benefits of limiting the size in genral. But is not a benefit to CA and CA alone → not entirely clear that this is a regulation that favors insiders vs. 2 lives vs. Then auto produces would have to make a “special” car just to CA. Is it plausible to argue economic protectionism? 28 and benefits it is attempting to achieve. Does it balance? Doesn’t need to if not reasonably related. HYPO: What if the statute is not something like truck length? What if it’s vehicle emissions? CA suddenly telling everyone they can only have X amount of CO2 emissions and government hasn’t gotten into business of regulating this. Does it yield incremental safety benefits? No. Prof sees Rehniquist will uphold every piece of legislature as long as it passes the RBT. All the other states allow unlimited emissions.6 million. Four justices believe balancing is the way to go. outsiders If challenged under Commerce Clause. . $12. no regulation compared to IA’s regulation. Hints in Kassel that rational basis still might apply. HI. States w/out bordering states (FL. truck length limitation is reasonably related to highway safety. If done this way. Does it yield significant safety benefits? Yes. Five justices do not agree.CONSTITUTIONAL LAW which no single factor seems to be determinative.) would turn out differently. etc.  IA statute bears disproportionately on out of state interests b/c discrimination in Special Exemptions (border cities allowed to have large trucks) and (mobile homes produced in the state can be transported out in larger vehicles than can be used to come in to state).

This factor drives conclusion in Butler and Steward Machine. At some point inducement might turn into compulsion or coercion. Not in Dole test. Coercion can cross into the area of regulation c.e. PRINCIPLE ISSUE: Can taxing and spending powers be used to support objectives that Congress cannot other achieve through the using other methods (i. are the conditions otherwise w/in Congress’ spending powers? a. PROFESSOR: if there is truly no coercion. If coercion involved. Example: Butler would be sustainable today.  IF NO. they would probably be construed not to be conditions at all. Steward – under 21 drinking limit must be related to highway funding (ct found it related) B. 3) Are conditions related to “federal interest” in particular projects or programs? a. TAXING AND SPENDING POWER ANALYSIS: TEST 1) Is the recipient “coerced” into complying w/ conditions attached to spending? a. Court has never struck down a spending program for failing to meet this criteria. b. A. See Pennhurst. but independently in the framework of the Court’s analysis. after Wickard. since regulation of agricultural production is now within the Commerce Clause. b. RATIIONAL BASIS TEST: Very deferential review. Taxing and Spending Power of Congress 29 Taxing Power 1.CONSTITUTIONAL LAW V. not necessarily a reason to say it’s not w/in powers. not some unrelated activity. 2) . 2. CONGRESS HAS WIDE DISCRETION: With passage of 16th Amendment (allowing federal income tax). via Commerce Clause). Maryland  Courts should not normally assess legality of taxes imposed by states. 3. Conditions must be related to the actual Act. Williams astonished if Court would develop adequate criteria for what sort of things establish general welfare → sees it as a political matter* (political question doctrine) 2) Are the conditions stated in an ambiguous way? a. Departs a little bit from Cardozo’s formation in Steward Machine. but doesn’t tell us where that point might be. where “findings” did not clearly equate to conditions on receipt of funding. Remedy for abuse of tax powers is normally political. c. the Dole test: (exact language on p. If Congress intents to interfere with the sovereign rights of the States. If yes. there is not much limit on taxing power. b. This is a powerful check on Congress’ ability to tax. new taxes are very difficult to support politically. b. it must do so in an unambiguous manner. a. 291) 1) Does it promote the General Welfare? Butler. It is sometimes acceptable if the recipient is coerced → b/c there is another power available to Congress. d. REMEDY IS USUALLY POLITICAL: McCulloch v. i. Courts should defer substantially to Congress on what constitutes general welfare. then who cares → the state is making a voluntary choice to obey by the conditions or not – not really able to figure out what this is all a/b IF YES. Steward Machine – what counts as coercion is substantially modified. b.

Congress decided to impose a Child all profits. Congress given blank check to Regulatory measures in statute are justified by purpose to . Court found no violation. the tax power. charged tax. Bailey v. Perez Corrupt commercial activities). Signals in prior decision involving tax authority. c. Sabri v. 30 Appears loosely like a “rational basis” going to resemble the test that is applied in some Commerce Clause situations (“larger regulatory scheme” part) iii. Says there is no reasonable relationship in Steward. Hammer v. not coercive. e.e. the Commerce Clause. Dispute regarding law schools being required to allow army recruitment because of open discrimination against homosexuals. US Federal crime to bribe state or local official of governmental unit receiving more than $10K. When a taxing measure has the primary purpose of generating revenue. Enacted 10% tax on power to regulate an objective Congress could not otherwise entire net profit. narcotic drugs. GOOD EXAM QUESTION (Like US v. so that taxing authority was Commerce Power. Drexel Furniture Co. achieve by penalizing falure to comply. PROFESSOR: If court required to relate conditions to spending programs based on federal concerns → this might be the place where they could do it. FAIR v. Rumsfeld. 4) Violate affirmative limits on congressional power? a. d. conditions reasonably related. If can’t reach it through the with child labor regulations. O’Connor’s dissent –wants a more rigorous test with conditions be closely related to actual spending program. 280) (1919) Whatever motive Congress might have had other than to Harrison Act regulated sale and distribution of tax is not reviewable. Congress decided if it did not have this power under the Commerce Clause.CONSTITUTIONAL LAW ii. Congressional efforts were transparent. This was a punitive tax and coerced compliance Labor Tax Act. we will seek objective through deemed unconstitutiuonal. it would try to reach it through the taxing power. (1922)(p. It analyzes under the Dole framework. Doremus (p. any other purpose or regulation within the statute will be given the greatest deference pursuant to the Necessary and Proper Clause. not really worried about motive. Act required special forms and Argument like Darby.” Defined child labor the same cannot be a pretext to an unconstitutional exercise of taxing way as Child Labor Act. Don’t worry about this element. they were N&P to ensure that tax was actually paid. Rigorous policing these conditions would be a way to tighten up this analysis. Rare cases. Congress’ real motive was to regulate the use of Revenue keeping and forms were all upheld on theory that narcotics. giving money to build particular churches. but STILL violates 1st Amendment Prohibition on Establishing Religion) b. McCulloch “the power to tax is the TEST: 1) Tax cannot be so high as to be coercive and tax power to destroy. Cannot violate the Bill of Rights (i. Congress had already been denied the power under It’s not entirely clear that revenue would be generated. United States v. 281) In Main point was the coercive nature of the tax – 10% on the interim. so this was also unconstitutional exercise of taxing power. Doctor challenged and claimed that worried about purpose. c. After Gonzalez. Dagenhart (1918)(174)Court struck down Child Labor Act for transporation of goods made by child labor. 2) Tax should be designed to generate substantial revenue. Analyze that under the commerce clause. Better way of ensuring Congress isn’t intruding in areas of state concern (*Williams) This is the element where most litigation would occur.

The Condition on Spending must bear a substantial relation to the PURPOSE of the program. but determining it would result in an endless legal inquiry they get a 90% credit for federal The Court refuses to engage in analysis that drove Butler. unemployment tax. regulate this directly by commerce clause due to the 21st Amendment which gives 4-Part Test.288) Social Security Act.CONSTITUTIONAL LAW regulate drugs. Filburn) Providing for the “general welfare” is a restraint on the Goverened by EC Knight Congress cannot taxing and spending power BUT not spending power has regulate production. Pennhurst State School & Hospital v. traditionally reserved to the states – 10th Amendment (not The general welfare is not restricted to Article I. Consistent with McCulloch v. insurance program and 2) that meets federal standards. Davis States challenge stating coercion due to 1) to adopt an unemployment (1937)(p. funds for states unless they impose a minimum drinking age of 21. Halderman In federal legislation. but cannot invade internal limits of Constitution that prohibits  “Conditional appropriation of money” Congress can Congressional action. 2) Coerces complaince with “regulatory” conditions.  Settled Power to spend must be to advance WHY UNCONSTITUTIONAL: 1) Invades powers general welfare. . Very deferential approach to Congress’ taxing authority. or motive. 31 raise money. then it might be unconstitutional]. If Every tax is in some measure regulatory by imposing an economic the employer made contributions on impediment to something taxed vs. Outdated type of argument being advanced. [If state funding related and regulatory inappropriate. not a spending program. What about the minimum criteria requirement? TEST: The Distancing from Butler in terms of CONDITION must bear a subtantial relation to the purpose of the when a spending program coerces. 290 Cordozo – Is the adoption of criteria related to the subject matter and fairly within the scope of national policy and power? Establishes the 4 Part Analysis of Spending power. i. Not presently a good argument. It just cannot Preexisting condititions only. there were a number of conditions (1981)(296)Federal spending in aid of state attached to the federal funding that state’s were required to programs to assist mentally disabled persons. Dole (1987)(291)Statute to withhold 5% of federal highway Is this coercion? No. Lauglin Steel and 6 years taxes. true today under Darby).” before Wickard v. something not taxed. through the spending power to achieve objectives that would be denied under its other spending powers. basis for forcing compliance. Steward Machine Co. Maryland with N&P clause. States had to submit a program to the federal agency. Without the conditions. p. Federal Unemployment Insurance. place restrictions on money it gives. meet. Coercion=regulation. been struck down for failure to pursue the general welfare. It is a temptation qualified state unemployment fund. v. Congress cannot regulate through coercion an area it could not otherwise regulate. Farmers did not have to spend Idea that Congress can’t coerce compliance the money in a particular way. This is a sanction. US v. Congress resorts to spending power Conditions listed must be unambiguous. but privately contract with the government to limit government concedes that the phrase “to provide for the their production. Congress cannot 5% is hardly coercive.e. South Dakota v. states regulatory power over alcohol. This is a tax and spend program. Tax on employers to pay money for Regulation: okay. Farmers punished for not limiting production. 283)Agricultrual It is not contended that this provision grants power to Adjustment Act taxes producers. general welfare” qualifies the power “to lay and collect (2 years before Jones v. 10th Amendment. program. gov’t cannot be sure that the program every tax is in some measure will alleviate the federal burden. Butler (1936)(p. Tax goes into an regulate agricultrual production upon the theory that such earmarked fund that subsidizes farmers willing to legislation would promote the general welfare. Section 8 enumerated power.

. Court held that Congress did not intend state to be bound to protect “rights. 32 Statute had findings that established “rights” of mentally disabled. so did not bind the state.” List of rights would be an ambiguous condition.CONSTITUTIONAL LAW Halderman challenged state’s receipt of federal funds since it did not protect the “rights” of mentally disabled as outlined in statute.

” NO! HYPO: Treaty for human rights. In order to make treaties. . where it was held that the Commerce clause does not allow Congress to legislate “in areas of traditional governmental functions. Aggressive measures preventing violence against women. it is absolutely President invokes Treaty power and Congress enacts same necessary to be able to enforce them througout your law under same power. Dagenhart era. Congressional power under the N&P Hammer v. Missouri v. Legislature cannot be commandeered to crate legislation that meets federal standards. Congress has power to implement the provisions of a treaty though legislation even when there is no independent power to pass such legislation. BUT – it is limited by requirement that it must be a treaty with another nation willing to agree. Wildlife was implements legislation. Holland suggests that VAWA as part of treaty would not represent a violation of 10th Amendment. ANTI – COMMANDEERING ACT ANALYSIS Congress cannot commendeeer the legislative powers of the state. Overruled by Garcia. Garcia. New York v. But see O’Conner dissent in Garcia and tries to resurrect this case in New York v.” National League of Cities. Is this federal sovereign power sovereign somehow restricted by the 10th Amendment. Section 8)? A. Challenge to Treaty power is an independent form of power statute to regulate taking of migratory birds within the that is not constrained by the commerce power.CONSTITUTIONAL LAW X. Lopez and Morrison represent rather weak limitations on Congressional power. This would be N&P under such a treaty. MO v. sovereignty of state protected by 10th Amendment. Garcia overruled National League of Cities. Treaty Power: Under the Necessary and Proper clause. FEDERAL SOVERIEGNTY ISSUESWhether the 10th Amendment or the structure of the Constitution might impose some restraints on Congress’ power (Conferred by Article I. 33 10th AMENDMENT AS A FEDERAL BASED LIMITATION OF CONGRESSIONAL POWER 1. MBTA (Migratory Bird viewed as property of the state. United States. The Court leaves these cases alone because all legislatures in some way will affect state legislation and they wish to: a. own coutry. Missouri v. 2 Strands of Cases: 1. “…and in all other 10th Amendment is a truism – Darby. Holland (1920)(330)Missouri challenges Missouri states that it violates the 10th statute that implements Migratory Bird Treaty between US Amendment. c. Congress reenacts Violence Against Women Act that was held unconstitutional under the Commerce Clause in Morrison. “Is there an powers vested by this Constituion in the invisible radiation from the terms of the 10th Amendment? Government of the United States. can financially induce as long as meets the Dole test). Leave legislation to be rejected/accepted through political safeguards. can preempt. jurisdiction of the state. United States. Holland. 2. This will be a RARE problem. Significant inroad of Treaty Act). d. NOW: State soveriegn interests are more properly protected by procedural safeguards inherrant in the structure of the federal system than by judically created limitations on federal power. Prior statute called Migratory Bird Treaty is not self-executing. therefore Congress Act was struck down by District Court. Clause is invoked to legislate. Avoid political questions (there is no justiciable standard to determine a core governmental functions – this is unique to each state government) b. and Britain (b/c going into Canada at time). (Can induce with incentives. Garcia cases: No Commandeering.

or is the state is acting in a private manner? If yes. United States. Printz v.e. New York and Printz. b. Printz. Accountability issues: who enforces. RULE EXPANDED: Congress cannot use state’s administrative structure to implement and enforce federal law. a. National League of Cities v. FLSA required that states and governments as it is unconstitutional for infringing on traditional aspect of . is it coercion or just a carrot on a stick to get the states to do it)  If Yes: No Commandeering. possessors of information). It is individual rights that are protected.e.  If No: Move On: 3) Does the legislation affect legislative (NY v.  If Yes: move on to next part of test: 2) Does the legislature only affect the judicial processes of the states (judicial functions)?  If Yes: No Commandeering. CONCLUSION: Legislation Must Survive Each Of These Tests In Order To Be Found to Violate Anti-Commandeering Act d. How can Garcia and New York be reconciled “…this is not a case in which Congress has subjected the State to the same legislation applicable to private parties. US cases: Commandeering. the Court will not find Commandeering.  If Yes: Move On: 4) Can the state opt out of performing the tasks required by the legislature without any retaliatory action by the federal government? (i. c. TEST: 1) Is the state targeting only the states or things that can be run by states (i.CONSTITUTIONAL LAW 34 TEST: When state acting in a private manner and the statute is generally applicable to others acting in the same way (i.  Consent is not sufficient to defeat the application of the anti-commandeering principle.” Regulation of “states as states” not as an “employer” as in Garcia. POLICY: Analysis starts to look like National League of Cities (state run railways). New York does not apply since it is not a core function. Power of the federal government would be augmented immeasurably if it impresses officers of state government into service. not state’s interests. Shifts fiscal burdens. Stated Another Way: [Does the legislation affect everyone (is it generally applicable).  If No: Commandeering. POLICIES: a. US) or administrative processes (Printz. careful. CLEOs)?  If No: No Commandeering. CLEOs) [Disparate effects can be an argument here for whether or not something can only be run by states]  If No: No Commandeering. b. FLSA applied to state as private employer is Unconstitutional.e. Usery (1976)(334) Although FLSA substantially affects interstate commerce. who determines whether a reasonable effort has been made. 2. but invokes Garcia as general applicable law. Printz. c. it does not violate the Anti-Commandeering Principle. The court will hold the legislation violates the AntiCommandeering Act in some cases. states that comply don’t have to pay federal taxes. e. zoning boards. NY v.

” breakdown in political processes in a significant way. O’Conners Dissent: New York v. POLICY: Accountability issues: state governments would be politically accountable for federal imposed . Clause 10 – No state can enter into pacts w/out Congressional approval. How do you locate a radioactive waste disposal site? LuLus (Locally Undesireable Land Uses).CONSTITUTIONAL LAW private employers were bound to uphold standards.” Regulation of “states Article I. (Can induce with incentives. Virginia Surface Mining Association (1981)(334) TC held that statute interfered w/ the “traditional governmental function” of land use regulation. Anti-Commendeering Principle: Congress cannot commendeeer the legislative powers of the state. United State. appropriation rider). Relationship between employer (the state) and its (govt) employees are at the core activities of states as semisovereigns Congress cannot reach. 35 state sovereignty. States could not find waste sites due to public opposition.e. TEST: Commerce clause does not allow Congress to legislate “in areas of traditional governmental functions. “core state functions” is a political question due to lack of justifiably manageable standards available NOT PROPER FOR JUDICIAL INQUIRY: Rejected as to the Court. “Core of Sovereignty” Hodel v. Section 8. unsound in principle and unworkable in practice. Held: Federal statute regulating the operation of strip minds was constitutional since it did not affect “State as States” and therefore did not violate a state’s constitutional immunity from regulation. can preempt. Katt (1947)(334) State commissions required to enforce federal standards. procedural safeguards inherrant in the structure of the Cases above demonstrate that the examination of federal system than by judically created limitations on federal power. But see O’Conner dissent in Garcia and tries to resurrect this case in New York v. Garcia v. How can Garcia and New York be reconciled “…this is not a case in which Congress has subjected the State to the same legislation applicable to private parties. No judicial intervention. can financially induce as long as meets the Dole test). a rule of state immunity from federal regulation that turns on a What would justify judicial intervention? Bad judicial appraisal of whether a particular government political process (i. or a function is “integral” or “traditional. States were given no opt out provision and thus were required to carry out federal regulation. Procedural safeguards inherent in federal system protect state sovereignty. United Transportation Union v. Held: Railway Labor Act’s collective bargaining provisions to the state-owned Long Island RR were constitutional Running RR is not a core governmental function or an essential element of commercial activity. United States (1992)(337)Lowlevel radioactive waste regulation (LLRQPAA).” Overruled in Garcia. Long Island RR (1982)(334) Proposition that maintaining the RR was essential to the infrastructure of economic and social activities in NY as is setting wages and hours of state employees. Congress imposed upon states an obligation to make and implement policy to handle its own waste. represented equally). Mandatory consideration requirement on grounds that Congress had the power to preempt state regulation entirely. perhaps judicial intervention might be Procedural safeguard is in the Senate (states are necessary (small window). Overruled by Garcia. Could Congress apply FLSA to states as employers? Darby sustained the act as applied to private employers. NIMBY. Legislature cannot be commandeered to crate legislation that meets federal standards. San Antonio Metropolitan Transit State soveriegn interests are more properly protected by Authority (1985)(335) No facts. Testa v. or adopt less intrusive scheme of PURPA.

New York does not apply since it is not a core function. State commissioners have to apply federal standards. United States Legislation: Brady Act CLEO (Chief Law Enforcement Officer) of each state must make a reasonable effort upon request of gun dealer to conduct a background check on a purchaser during 5 day waiting period. that is. It is individual rights that are protected. [If citizens do not understand. Printz v. O’Conner opens a window to overrule Garcia. the Court has in some cases stated that it will evaluate the strength of federal interests in light of the degree to which such laws would prevent the State from functioning as a sovereign. must create provision for getting consent from drivers. if want to market the information. not just states. Supremacy Clause. CLEOS. shifts fiscal burdens.CONSTITUTIONAL LAW as states” not as an “employer” as in Garcia. POLICY: Same New York accountablility issues: who enforces. Subject to Garcia since the statute it is generally applicable to all possessors of information. Mississippi (1982)(334)Relies on Testa v. Judicial Processes of State Government Can be Commandeered. Certain provisions of the Public Utilities Regulatory Policies Act constitutional – state commission could be required to enforce federal standards. Condon (351)(2000) Driver’s privacy act . Alternatively. the extent to which such generally applicable laws would impede a state government’s responsibility to represent and be accountable to the citizens of the State…” O’Conner suggests there is some life to National League of Cities. and restricts private entities that receive information from states. Mandatory consideration was upheld on idea that Congress could preempt altogether. but permits disclosure if they concent. not adopt federal standards and publish reasons why the standards were not adopted. Reno v. but invokes Garcia as generall applicable law. This falls within the NY anti-comendeering principle. who determines whether a reasonable effort has been made. Commissions are acting like “little courts” with regard to utility disputes. federal law trumps state to perform a federal function. Judicial function is neutal one of applying law. not as states. Looks like National League of Cities analysis(state run railways). 36 programs. Congress cannot use state’s administrative structure to implement and enforce federal law. but in a commercial manner. Requires them to consider. United States Worries him (p. Federal Energy Regulatory Commission v. Legislates against only state officials. BUT Court upholds statute: 1) Regulating state as a possessor of information. law. Does it commendeer? State official must be responsible to ensure that the information is not disclosed.prohibits state officials from selling or distributing information used to get driver’s license to marketers. No imposition on substantive sovereignty. Mild extension of a fairly clear rule. not state’s interests. Constricted Article VI. Testa v.  Consent is not sufficient to defeat the application of the anti-commendeering principle. Only procedural limitations (thin). New York v. and power of the federal government would be augmented immeasurably if it impresses officers of state government into service. Katt (1947)(334) Congress commanded This is not commandeering since: state courts to consider federal claims. 2) State is not acting in a sovereign capacity.343-344). not . Upheld: No coercion. “In determining whether the Tenth Amendment limits the ability of Congress to subject state governments to generally applicable laws. democracy faces much bigger problems – Prof]. Katt.

C. 5. President has veto power. No strict separation. BUT Checks and Balances. When a President acts pursuant to an act of Congress. Constitutional Challenge Might Be Mounted On The Grounds That Power Was Undertaken And Performed By Wrong Branch A. Ad hoc review: fact specific and case specific analysis.e. etc. HISTORICALJUSTICE BLACK ANALYSIS: Basic proposition is Enumerated Powers.e. B. Presidential power is at its zenith. Legislature Power Article I 2. Each power overlaps. 2. Serious and difficult questions about scope of Presidential Power: i. Troops to Iraq (no specific Congressional declaration – later ratified) i. Framework for assessing constitutionality of executive conduct. “take care” b. impose civil penalties. When Congress is silent. “Executive Power” CURRENT ANALYSIS (adopted in Dames and More v. create regulations. 1) 2) 3) . 3. Presidential power at its lowest ebb and can only be sustained if President can find a source of authority in the Constitution that is so robust to B. What about administrative agencies? Execute law. “Things are not quite as simple as they seem…” 1. Either a. 4. Judicial Branch oversees these processes through process of judicial review. and c. Express Congressional Prohibition. “Commander-in-Chief”.CONSTITUTIONAL LAW making policy choices. Pristine framework of task: 1. D.” act might be sustainable. adjudicate disputes. Judicial Branch Article III Not separation of Powers. President is in a “zone of twilight.” 3. Legislation has appointments power (Congressional oversight of president). Wiretapping program. President and Legislature appoint Judiciary. No war since WWII has been “declared” When is Presidential Action Sustained? A. Wyoming (1983)(334) 37 Application of the Age Discrimination in Employment Act to state in employees is constitutional b/c act did not impair states’ abilities to structure their integral operations to a degree making the act unconstitutional. The costs of eliminating mandatory requirement policies were said to be neither “direct” nor “obvious. Presidential Action must be 1) Specifically authorized by an Act of Congress 2) By the Constitution. not authorized by Congress i. Regan) JUSTICE JACKSON ANALYSIS: Spectrum.e. EEOC v. Montesquieu says that all powers must be separate and compartmentalized. Congress has neither approved nor disapproved. Likely to be sustained. Executive Power Article II 3.” Depending upon the circumstances and a range of “imponderables. Leaves open the possibility of emergency action.

but did not grant.” act might be sustainable. executive. Part of power (Frankfurter) for long. President appoints his cabinet anyway. President shall have no say over who is appointed in his cabinet. 3) Express Congressional Prohibition. This is also a political question. conclusion is fiction. Leaves open the possibility of emergency action.e.” DISSENT:  Vincent.) Justice Frankfuter  Gray area where Congress has acquiescence in Presidential action that is been unbroken over time. lacks the power to negotiate the agreement.” Justice Jackson Framework for assessing constitutionality of executive conduct. Presidential Action must be 1. Practically. of Commerce to sieze all steel mills on the theory that a breakdown of production would seriously compromise the Korean War effort and the national defense. Justice Black  Basic proposition is Enumerated Powers. or legislative. Issued executive Order allowing Sec. 1) When a President acts pursuant to an act of Congress. (i. Congress has neither approved or disapproved. If not explicit action. showing Congress’ action is unconstitutional. Either the “take care” “Commander-in-Chief” and “Executive Power. NAFTA was never been ratified by Senate. practically speaking.CONSTITUTIONAL LAW 38 overcome Congressional prohibition. Presidential power is at its zenith. does not want to make this decision. Court Nature of problem: international. Executive power might be deemed to include shore. “Judicial gloss. By the Constitution. When is presidential authority most likely to be upheld? Later becomes a spectrum. go-it-alone action. Presidential power at its lowest ebb and can only be sustained if President can find a source of authority in the Constitution that is so robust to overcome Congressional prohibition. but this was never ratified by the Senate. There Congress. Not prohibition.” clauses. Reed and Minton It was an emergency and he is allowed. President shall have no say over who is appointed in his cabinet. ”President’s power to take care that the law is faithfully executed refutes the idea that he is to be a lawmaker. A contrary to deal with situation appropriately and invite Presidential ruling would mean that the federal government authority to be suitably invoked. President Carter negotiated and President unbroken line of practice by Presidents acquiesced in by Regan made the compliant executive order. judicial. Both cases involve Congressional silence. Dames & Moore v. Ad hoc review: fact specific and case specific analysis. Critical step taken by Black is to put power into one category.” Depending upon the circumstances and a range of “imponderables.) Youngstown Sheet & Tube Co. unbroken practice agreement that all disputes would be heard by Iran acquiesced in by Congress. Considered. (i. is no Congressional action that allows President to Absence of Congressional Action might allow President take actions to implement agreement.e. . Regan (1981)(372) This could be treated as a “gloss” on the executive  President negotiated Iran Hostage Crisis. No disapproval of President’s Claims Tribunal and all property transferred off action. President is in a “zone of twilight. should raise and support troops. However. v. Significant authority under Constitution for President to PROF WILLIAMS: Congressional silence is not engage in foreign relations and treaties – principle agent of always permission. President Bases for finding this is a legislative act: Article V concerned that steel strike would shut down requires expenditures come from legislation or Congress production. Specifically authorized by an Act of Congress President admitted no statute applied. Intrusion by Congress into his domain. Likely to be sustained. President appoints his cabinet anyway. (361)  Nationwide steel strike. It might mean that houses are Adopts Justice Jackon’s framework for congressional evenly spit. 2) When Congress is silent. 2. showing Congress’ action is unconstitutional. Sawyer (1952) Multiple Opinions. Intrusion by Congress into his domain. either US foreign policy. this could be treated as a treaty. Foreign policy issue.

CONSTITUTIONAL LAW 39 Reject Black. Accept Justice Jackon’s opinion as most persuasive. Curtis-Writght (1936)  Action Delegation challenge. enact legislation on his own. APPENDIX: I. a common law approach to Constitutional interpretation?  Precedent reigns in the federal court system – attempt to interpret holdings narrowly or broadly. The Act was found Can President make it a crime to sell arms to Bolivia unconstitutional b/c it exceeded power under without legislative powers? This is Category 2. MARBURY v. Schechter Poultry. Then we ask if Article III can be invoked by a litigant? In Marbury’s case. not likely Commerce Clause and unconstitutional delegation to be sustained. PRECEDENT  Doesn’t really appear in McCulloch.  Stare decisis II. Delegation Doctrine: If Congress delegates too broadly to President. United States v. etc. Does President have authority? Authority over domestic acts – delegate specifically. MADISON ANALYSIS Article III – allows Congress to enlarge the original jurisdiction of the Supreme Court Marbury wins – writ issued Article III – prohibits Congress from enlarging the original jurisdiction of the Supreme Court Depends on who to enforce the limitations of the Constitution – is the court authorized? If judicial review permits court to pass upon the Constitutionality or legality of an action → Marbury loses. Unless it doesn’t take an act of Congress to confer jurisdiction upon the Supreme Court. One year before Court strikes down the NIRA in Authority over international acts – delegate broadly. distinguishing cases. Coupled with Art. If no judicial review → Marbury wins. METHODS OF CONSTITUTIONAL INTERPRETATION Example: McCulloch I. Judiciary Act §13 – does grant SC original jurisdiction Judiciary Act §13 – doesn’t grant SC original jurisdiction Marbury loses – b/c there’s no jurisdictional basis for the suit. TEXT  Looking at Art I §8.I §8’s  If Commerce Clause – look to the N&P Clause necessary & proper clause. he wouldn’t be allowed. Challengers say the delegation is by President to indict and charge people for selling too broad. reasoning by analogy. specific enumerated . it will not be upheld on separation of powers. Marbury loses. but it is the most significant approach  Usually the first thing that you look at: Ask yourself whether it has already been decided. Congress has authority under N&P to of legislative power to executive. power to regulate interstate Comparing Articles to Each Other commerce and such. arms to Bolivians. II.

 In McCulloch – the idea that Congress is intended to be effective. i. it should not be prohibited . the court is probably not the best place for the debate – this goes directly towards the relations between the branches and the structure of the government  BIG ISSUE: Is it determinative not on the second question? Supported by the Supremacy Clause. suggest that a more generous rule be applied. so you shouldn’t interpret it that strictly . the 10th Am. i. does the power emanate from the people or from the state. i. there is another place where these ideas can be debated. .  In McCulloch – We can reinforce democratic V. what is the structure of the Constitution supposed to do? Create an effective government therefore it should be interpreted as a tax code.This was used a lot.the debate between MA and the opposing party about the Constitution. federal government trumps state law. something’s different b/c it’s a Constitution. in the legislative branch.e. maybe the states are the bad guy and the federal government the savior  The idea of deference.  p63 of McCulloch . you might be able to discern the meaning by looking at what the framers intended. i.e. “REPRESENTATION REINFORCEMENT” .e.Sometimes people pull out quotes from Jefferson or Madison and so forth to try to prove their case and what they think the framers meant IV. airlines.How trusting ought the court to be about various Constitutional actors? The court concluded that the stated are where Congressional power has its roots – it would tend to say that the states ought to be the primary place to which people turn in order to get things done while the federal government should be turned to only occasionally i. Marshall .Problems: Today’s world has things that the framers could not have anticipated.CONSTITUTIONAL LAW  Look to the admission and omission of words.  Problems: Who are the framers? The ones who wrote the text? Or was it the people voting in the ratifying process?  Sometimes this goes under the meaning “original meaning”. we might look to ordinary meaning and see how the words would be used in general discourse at the time the Constitution was written  Strict Construction approach – if the framers didn’t intend to prohibit something. and the omission of the word expressly.  Semi-wrapped up in the idea of “living constitution”. genetics. “ORIGINAL INTENT”  When the text is ambiguous or where it seems to be unambiguous. (pink quote bottom p63)  Many variations to this approach: III. internet.e.The government of the Union is emphatically and truly a government of the people” – But what dies this mean? . expressly 40 powers. etc.e. STRUCTURE AND RELATIONS  Reason from what kind of relations are established in the Constitution and the structure of the Constitution what is meant.  More subtle uses of text here.

but are not compelled to do this NO coercion. the best and brightest had thought about this for a long time. consequently. though.e.enhances a government by the people for the people 41 principals by the court’s unwillingness to decide whether a tax is too high. the character of the instrument. last full paragraph. p65.regulating the instrumentalities of interstate commerce – persons or things  States are allowed to do this. and it is a National Bank.e. it is not an adequate safeguard for the interests that are being taxed. p62. again states have the CHOICE → Congress chose to let them deal w/it if they wanted to . p61 “It has been truly said.  In McCulloch. and. that this can scarcely be considered as an open question. supplemental jurisdiction) III. if not XYZ will happen to you" → no coercion 2) ACCESS States can gradually increase their access costs and eventually forbid the importation of out-of-state waste for disposal purposes ( Philadelphia v. i. To have prescribed the means by which government should.” – Does not tell us what it good. execute its powers. it's their choice. STATUTORY ANALYSIS OF NEW YORK: Structured Approaches: 1) MONETARY – surcharge (stick) and spending program (carrot) Congress' ability to do this under CC . entirely unprejudiced by the former proceedings of the nation respecting it” – The idea of the bank had been discussed by the very framers of the Constitution. i. “LIVING CONSTITUTION  The Constitution should be interpreted in a way that helps Congress address the problems of the day merely b/c the framers of the Constitution couldn’t have dreamed of the problems that Congress must deal with in present day VII. then this may suggest that it is Constitutional (Me: such as Miranda rights. New Jersey)  Absent congressional authority this would be violation of dormant commerce clause Lopez category → #2.CONSTITUTIONAL LAW  The Constitution ought to be interpreted in a way that reinforces the Constitution’s commitment to democratic principals – which means? . Congress is not saying "You have to impose a surcharge. LONGSTANDING PRACTICE  If the President and all the Constitutional actors have been engaged in some practice for a long time. top of page. the court ought to give a large measure of deference to this practice that had been sustained VI. recipe for living Constitution theory: “This provision is made in a constitution intended to endure for ages to come. would have been to change. entirely. no taxation without representation  McCulloch: In this case. and give it the properties of a legal code.allows states to impose a tax on out-of-state waste Portion of surcharge collected by states to be turned over to earmarked fund administered by federal government → money then give to states who meet certain milestones toward dealing w/ problem of LL radioactive waste Surcharged as federal "tax" since a portion going to federal government → conditional spending program a condition of the "spending power"  Ct adopts framework established by South Dakota v. this is the people’s job by accepting a tax or not BUT: Only citizens of MA would be able to vote on this tax. Dole  Conditions of spending must be related to some national product or purpose → "conditions imposed are reasonably related to the purpose of the expenditure" (doctrinal clarification) Congress "choosing" to allow states to regulate interstate commerce → but states can decline to regulate. in all future time. to be adapted to the various crises of human affairs.

 States might have to appropriate money to cover their liability in these issues → makes a claim upon the fiscal resources of the states – which is generally under the control of the state legislature – constrains state legislature's choice of which programs should be funded . according to the ct What justifies provisions? Commerce power → activity might have substantial effect upon interstate commerce CONGRESS CANNOT DO THIS – Why? 1) States might have a choice in how to implement federal program. criterion for establishing sites. where problem when Congress trying to regulate something commerce power couldn't reach → but there commerce power can reach this)  This is not directed at the actual participants of interstate commerce (private entities) but at the states themselves → designed to force the State to regulate – "commandeering" the  The anti-commandeering principle – Congress can't commandeer the legislative processes of the state into creating federal regulatory programs Why is it impermissible for Congress to regulate the States as States? Why would the take title provision commandeer legislative processes of state? State would have to adopt statutes authorizing minimum federal standards. but it still HAS TO implement: It's coercion! 2) Because this could fall under commerce power.CONSTITUTIONAL LAW 42 3) THE "TAKE TITLE" PROVISION – Presents a choice to these states: 1) Provide for disposal of its own waste: through citing its own disposal facilities that meet federal standards or regional agreements w/ other states (amended legislation – Congress gave the okay to do that) 2) "Take title" → take ownership of waste generated w/in their state by private parties own waste and they have to figure out what to do w/ it (designed to put pressure on states to get rid of it) What if the state doesn't want to do either of these? Too bad – there's no "opt out" option → which is a problem. isn't it properly coerced? (Recall Butler. etc → some legislation for deciding this disposal sites.