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Framing Constitution
A. Articles of Confederation (Expressly)
1. Expressly Delegated
1. In Congress Assembled
1. Articles of Confederation Problems
a) Factionalism
(1) Balance factions and level of government against each
a) Self-Interest
(1) Ambition to counter ambition
a) Centralized Government distanced from will of the people
(1) Horizontal and vertical balancing of power

A. Congress (Herein Granted)

1. Herein Granted (US Const. Article 1 Section 1) omitting
expressly (Articles of Confed. Article 1)

A. Interpretation (Textualism and

1. Text > Context (Structure within document) > History
(Structure of broader first principles)
a) Start with text > Intent (Drafters or Populations or
Current President)
(1) Drafters? Because they were vested with authority to
pass the law
(1) Population? These were the people from whom the
power derived and who ratified the constitution
(1) Current President? He does the immediate
interpretation prior to enforcement
a) What meaning conveyed?
(1) Meaning of text to the population (Textualism)
i) Judicial Restraint > Less subjective interpretive
tools; History; Common Law interpretive cannons
(1) Intent of the drafters (Intentionalism)
i) Problem of private meaning trumping accepted usage
i) Second Amendment is only one to speak to its own
purpose > To preserve a militia
(1) Clash between meaning and intent
i) Scriveners error > BUT implies narrow error

(a) ACA Healthcare Exchanges > Super Clear Intent +

Super Clear Language (What then?)

I. Horizontal Separation of
A. Judicial Power
1. Supreme Court Limited Jurisdiction
a) Marbury v. Madison
(1) Finite list of items with original jurisdiction
i) The judicial power shall extend (Art. III Sec. 2)
Ambassadors, Public ministers and consuls, admiralty and
maritime, US a party, land grants, diversity
i) In all cases affecting ambassadors, public ministers
and consuls and in which a state shall be a party, the
Supreme Court shall have original jurisdiction (Art 3
Sec. 2)
(a) Affirmative language gives negative implication to
other areas of original jurisdiction
(a) Absence of similar alteration language as with
appellate jurisdiction (Exceptions Clause)
a) Criticisms
(1) Could extend to constitutional floor instead of floor and
(1) Exceptions clause could be meant to take from
appellate and add to original
1. Judicial Review
a) Marbury v. Madison
(1) Courts decide > Executive Discretion or Vested Rights
(Purely Ministerial)
1. Standing
a) Constitutional Limits
(1) Injury In-Fact
i) Concrete/Particularized/Individualized
(a) NO Standing
i) Not general taxpayer grievance
i) Broad Race-Based stigmatic Injury not sufficient
(Allen v. Wright)

i) Father cannot assert daughters rights to not say

under god his ex-wife has not brought suit and
she has tie-breaker custody. (Newdow)
(A) Court does not want to rule on family law issue
(A) His own right to raise his daughter is derivative
of his daughters right which he cannot assert
(Dissent disagrees)
(a) YES standing
i) Massachusetts able to bring claims against EPA
emissions enforcement because of injury to its
own sovereign lands (EPA)
i) Actual or imminent
(a) NO Standing
i) Sierra Club members were not personally affected
by national park development because no one
used the park (Sierra Club)
i) Ecosystem common harm argument rejected and
future harm deemed speculative (Lujan)
(Requirement of recurring interest)
i) The mere threat of enforcement is not an injury
(a) YES Standing
i) Chilling effect on free speech is a cognizable injury
within the zone of protection of the First
Amendment (Susan B Anthony)
(1) Fairly Traceable
i) IRS tax breaks dont directly injury access to
integrated education (Allen v. Wright)
(1) Redressability
i) Limiting tax breaks will not provide and integrated
education (Allen v. Wright)
i) Changes in endangered species law may not impact
agency enforcement (Lujan) No procedural injuries
from the citizen suit provision
a) Prudential Limits (Prudentially created so can be
(1) No Third Party Grievances
(1) No Generalized Grievances
(1) None Outside the Zone of Interest of the Law
a) Example
(1) For an individual to have standing to bring a claim the
constitution requires that the individual have a personal

injury in fact that is concrete, particularized and actual

or imminent to which the defendant's conduct is fairly
traceable and is redressable by this court. Additionally
congress has prudentially limited standing by excluding
cases of third party grievances, generalized grievances
and those outside the zone of interest of the law. These
mechanisms work to ensure that the judiciary only
decides actual disputes between interested parties and
does not issue advisory opinions or address
hypothetical issues to maintain separation of powers
and judicial integrity.
1. Political Question
a) Framing the issue in an area with judicially discoverable
and manageable standards (Luther to Baker)
(1) Luther Republican Guarantee to Baker Equal Protection
a) Brennan Baker 6 Part Test + Bush (Textual commitment,
standards, embarrassment) (NOT when insuring
separation of powers Bush)
(1) Textual Commitment
i) Senate shall try all impeachments (Nixon)
(a) Souter Dissent in Nixon: Try wouldnt be PQ
without meeting some minimum due process.
Mixing with merit decision?
(a) See also (Clinton v. Jones) High crimes will not be
litigated after congressional vote
i) Bush v. Gore: Protecting state legislatures from state
supreme court making law. Each State shall appoint,
in such manner as the Legislature thereof may direct".
(Article II Section 1 Clause 2)
(1) Judicially manageable standards
i) Luther (Republican) > Baker (Equal Protection) >
Jubelirer (Partisan Gerrymandering is PQ
Four Justices in Jubelirer, tried and failed to discover judicially
manageable standards.
No consensus on what standards to apply.
Frankfurter, not worth the costs to discover
i) Bush v. Gore court was able to apply the political
question doctrine in reverse to rule on the Florida
Supreme courts overreach.
(a) Violation of equal protection because the state-wide
recount disrupts normal county system so there

must be state-wide standards for the new

(1) Foreign Affairs (Need to Adhere to Policy)
i) Whether president can unilaterally nullify a treaty is
PQ (Goldwater)
i) But See Zivotofsky (Foreign affairs can be justiciable
when there is congressional encroachment on
executive powers such as passport standards and
foreign relations)
i) Example
(a) Foreign affairs issues are generally non-justiciable
under the political question doctrine when congress
has not acted against the president. See Goldwater
v. Carter (deciding if the president has the political
power to act unilaterally to nullify a treaty without
consulting congress is a political question). But See
Zivotofsky (deciding an issue of foreign affairs area
is justiciable when there is congressional
encroachment on executive foreign affairs power
through statute requiring Israel to be printed on
(1) Policy decision
(1) Disrespect; Embarrassment
(1) + Bush v. Gore: Separation of Powers and Textual
i) Protecting state legislatures against state supreme
court creating law
a) Pro-Justiciability (Wrong incentives; increase legit; PQ
merely judicially created, no textual permission all
(1) Systematic incentives lacking for congress to
address all possibly political questions
(1) Judiciary would increase legitimacy when acting to
secure individual rights
i) If leads to unpopularity > Role of court; Enforce
Constitution, Counter Majoritarian vs. Temporal
(1) PQ is judicially created (Marbury); Article III Section 2
Shall extend to all cases does not give textual
permission to exercise discretion.
a) Pro-Political Question (Separation of powers; interference;
decr. legit; enter the thicket)

(1) Separation of powers requires discretion within each

(1) Judicial interference with intrabranch matters would
decrease legitimacy
i) Especially when are no standards to apply
(1) Worth the credibility injuries to enter the thicket to
find standards?
(1) Rules clause (Art. 1 Section 5) > Nixon try
impeachments gives discretion > hear all cases
gives similar discretion
a) Compromise (Focus on standards Frankfurter in
(1) Frankfurter in Jubelirer, was correct in balancing out
each sides legitimacy arguments and focusing on the
standards before entering into the thicket
a) Example
(1) Brennan Baker Test
i) In Baker v. Carr Brennan put forth a six part analysis
for determining political question issues. First, the
court looks for a textually demonstrable commitment
of the issue to another department. Second one
determines if judicially discoverable and manageable
standards for resolving the issue exist. Additionally,
the court evaluates if an initial policy decision outside
of judicial discretion exists or if independent
resolution will show a lack of respect for other
branches or if there is an unusual need to adhere to
an existing policy or a decision may cause
embarrassment to another branch.
(1) Pro-Justiciability
i) Pro-justiciability justices would argue the systemic
incentives may not be there to encourage congress to
address the problem and therefore the judiciary
should step in and increase their legitimacy by
adjudicating the affected persons individual rights. If
this makes them unpopular that is of no consequence
because this is the court's role as a counter
majoritarian force to protect the constitution for
temporal majorities. The political question is merely a
judicially created doctrine in Marbury with no
constitutional basis. See e.g. dissent Veith v. Jubelirer.
Article III gives power to hear cases and controversy

and nowhere mentions any discretion in exercising

this power as certain controversies but instead
explicitly states the judicial power shall extend to "all
cases. Article III Section 2.
(a) The argument that the political question doctrine is
an expression of judicial humility is a farce because
the power to decide which cases to hear or not hear
was a huge extra-constitutional power grab by the
early court in Marbury. The ability to decide which
cases to hear and the ultimate cordoning off of
entire classes of cases stifles the development of
alternative legal theories and is detrimental to the
ultimate legitimacy of the court as the protector of
individual rights. As Kennedy says in Jubelirer, there
are no judicial standards because the court has
refused to hear the cases but that does not mean
that they cannot be developed in the future.
(1) Pro-Political Question
i) Baker v. Carr and its progenies showed the long
search for judicial standards to apply and the
problems that arise in hearing cases with less than
manageable standards because the decisions are
inherently political and discretionary. The decision to
refuse to hear cases of this nature preserves judicial
legitimacy because there is no decision on the merits
to evaluate or attack with this expression of judicial
humility that is the political question doctrine. As
discussed by and Frankfurter in Veith v. Jubelirer,
there may be a possibility of working through cases to
find manageable standards but the question is if the
messy job of finding them is worth the cost to judicial
legitimacy in the interim. The decision to not hear a
case based on political question is not denying the
claim but merely acknowledging that the decision and
remedy to the claim do not come from the courts
because there is no basis on which to decide the
(1) Compromise
i) Frankfurter in Jubelirer, was correct in balancing out
each sides legitimacy arguments and focusing on the
standards before entering into the thicket

1. Political Controlling Judicial (Traditional tools; jurisdiction

exceptions clause Art II Sec 2)
a) Traditional Political Control Tools
(1) Constitutional amendments
(1) Appointment and impeachment
(1) Determining Number of Judges
(1) Legislating around non-constitutional common law
(1) Exceptions clause to limit supreme court appellate
a) Jurisdiction Modification (Class of cases (McCardle);
NOT Rules of decision/Outcomes (Klein); Essential
Functions Must Vest (New Synthesis)
(1) Article III Section 2 - Exceptions Clause
i) In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law
and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
i) Near Plenary Power
(a) Can remove appellate jurisdiction for class of cases
(a) Cannot prescribe outcomes of individual cases
(Klein) BUT can alter cause of action/jurisdiction or
background law
(a) Essential Functions > Shall extend to all
Federal Question; Ambassadors; Admiralties (New
i) Article III cannot vest in the state courts because
they are bound by federal law (Article VI Section
(a) Example(s)
i) Congress, cannot alter the jurisdiction in a way
that prescribes the outcomes of individual cases
or intrudes on judicial power (Klein). However,
they can remove entire classes of cases from the
appellate jurisdiction, especially when the
jurisdiction was statutorily granted or jurisdiction
for that class of cases is not abolished entirely
from Article III courts so as to destroy article IIIs
essential functions and fail to vest the judicial
power. (McCardle; New Synthesis).
i) Additional textual limits can be argued to exist
between certain classes of cases. Congress may

be unable to entirely remove federal question,

ambassador, or admiralty cases because the
judicial power shall extend to "all" cases and if the
jurisdiction is not assigned to another article III
court the judicial power will not vest as required.
For example federal question jurisdiction cannot
be removed from Article III courts because original
jurisdiction is not granted elsewhere by the
constitution. Federal judicial power cannot be
vested in state courts because they are bound by
federal law and thus judicial power would not
properly vest if it does not vest in a federal court.
Congress can only exercise the exception clause
to entirely remove appellate jurisdiction in other
classes of cases such as jurisdiction such as
diversity in which the judicial power shall extend
but "all" is omitted. See Article III Section 2
(1) Legitimate Exceptions
i) McCardle > Congress removing previously
statutorily granted habeas jurisdiction; Stripping
entire class of cases
BUT cases could still be heard on constitutional grounds
(1) Unconstitutional Exceptions/Regulations
i) Klien > Prescribing outcomes in individual cases
(Interference with BOTH judicial and executive)
Congress prescribing how presidential pardons will be used
as evidence
Pardon is a purely executive discretion act congress is
interfering with

A. Executive Power
1. Inherent Power (No herein granted, Take Care, Discretion to
enforce, Foreign Affairs,Sole Organ, Chief Executive,
Commander in Chief, Self-Executing Treaty)
a) No herein granted, Take Care Clause
a) Greatest in Foreign Affairs > Sole Organ of Foreign
Affairs (Dames & Moore) (Curtiss-Wright)
(1) Congress can delegate more broadly to presidential
discretion in areas of Foreign Affairs (Curtiss-Wright)
Allowing president to determine if selling arms is detrimental to
peace in South America

(1) Theatre of War and Enemy Combatants >

Commander in Chief and Chief Executive
i) Summary process of enemy combatants as
commander in chief
(a) Executive Ability to choose DoJ or DoD (Hamdi)
i) BUT limited by some due process concerns such
as a neutral hearing on enemy combatant status
i) Omission to try enemy combatants under UCMJ is
deprivation of power (Hamdan) BUT see Dames &
i) Example
(a) The president is empowered to detain and subject
enemy combatants to summary process in the
prosecution of war as the commander-in-chief. The
war on terror is problematic for the president's
execution of his war powers because the enemy is
not concentrated exclusively in any theatre of war.
These "enemy combatants" could arguable be
prosecuted for criminal offenses under the DoJ or as
true enemy combatants under the DoD and it is up
to the president to determine which avenue to
pursue as long as they are within the minimum
limits of due process. See Hamdi. An omission by
congress of giving a certain power to the president
such as the ability to try enemies under the UCMJ is
construed as deprivation of that power. See
Hamdan; But see Dames & Moore (finding omission
of power to settle claims when congress had given
similar and broad powers an act of implied approval
or at least acquiescence)
(1) Treaties > Self-Executing?
i) Medellin: Consular treaty language not binding on its
face. Promise for future action. No congressional
action so no law to apply.
i) Bond: Congressional action to ratify treaty interpreted
so as not to interfere with general police powers
1. Relative to Congress (Youngstown - Express/Implied Auth.,
Silence, Defying)(Congress First, President Last))
a) Balance of power with congress (Congress First, President
(1) Congress > Power to act first

i) Congressional Power: Enumerated and implied from

Art 1 Section 8 + Ability to augment scope of
presidents powers by initial action/inaction
(1) President > Power to act last
i) Presidential Power: Commander in chief, chief
executive, sole organ, veto power. Strong power to
interpret and enforce laws constrained only by
faithful execution.
a) Jackson Youngstown Concurrence
(1) Express of Implied Authority
(1) Twilight Zone of Silence
i) Congressional Inaction > Approval/Acquiescence
(Dames & Moore) OR Denial of Power (Youngstown)
(a) Silence as Approval: Post crisis; Foreign affairs; wide
powers given to president in the arena; no record of
consideration (Dames & Moore)
(a) Silence as Denial: Consideration and withholding; no
history of similar presidential action; BUT did
authorize Korean War BUT this is not in the theatre
of war
(1) Opposed to Congress
i) Youngstown: No inherent power to seize steel mills
that the president can rely upon when in opposition
with congress
1. Executive Privilege ((Pres Nixon) Scope by courts,
balancing, vested rights, no liability for presidential action
(Fitzgerald), yes liability before (Clinton)
a) Origin > Need to keep confidence with advisors in order
to give and receive candid advice
a) Not Absolute > Scope by the Courts (Pres Nixon)
(1) When the executive interest in confidence is in conflict
with individually vested rights > Balance Needs
i) Balancing executive prerogative (discretion, military,
diplomatic) with the prosecutors need for information
and vested rights (all avenues exhausted?) (US v.
(a) President invited courts in when created rules and
regulations > Could not enforce them but must
take political hit
(1) No vested rights in disputes with congress so executive
privilege not overcome

i) The same conflicts between vested rights and the

executives need for confidence is not present in
disputes with congress so are not within the scope of
the courts reach
a) Not Liable for damages for actions while president
(Fitzgerald) > Burden on the executive; Target for suits
(1) BUT NOT for actions taken before president (Clinton)
> Some burden permissible; Nature of action (criminal
or civil) and interests behind claims
1. Analogies
a) Broader or sort of congressional authorizations >
Compare Youngstown (Korean War) With Dames & Moore
(EEPA and Hostage acts broad similar authority)
a) Congressional Consideration of Power > Compare
Youngstown With Dames & Moore
a) Emergency Power > Limited to theatre of war
a) Does executive power really hinge on power of the purse
(Douglas in Youngstown)
a) Did the power come from the states?
(1) Foreign affairs power passed from King George; States
never had; no non-delegation (Curtiss-Wright)
a) Youngstown Category Three President defying is enough
for foreign affairs (Zivotofsky)

A. Legislative Power

1. Formalism (Scalia) > Strict demarcations

a) Strict demarcation between branches and separation of
1. Functionalism (Breyer) > Modern Accommodations;
a) Modern accommodations considering the separation of
powers with a primary concern for aggrandizement of any
one branch
1. Non-Delegation Doctrine (Art 1 Sec 7 Bicam/Present
(Panama Inequitable); Enforce NOT Amend (Clinton v
a) Law MAKING must satisfy Article 1 Section 7
Bicameralism and Presentment
(1) Executive > INTERPRET > ENFORCE
i) Delegation By intelligible standards bc w/o >
Making law (Panama; ALA Schetcer)

Panama Refinery: Executive deciding inequitable oil

practices is delegating law making
ALA Shecter: Determination by trade groups of unfair
competition is delegation of law making
(a) NOT amending law on the books (Article I Section 7)
Clinton v. City of New York (Line item veto diverts funds to
lockbox and in effect amends the law while choosing to
simply not spend the funds would have been a permissible
discretionary act of enforcement or execution of the law)
(a) Current practical non-enforcement but some outer
limits are defined
1. Appointments Clause (Article II Section 2)
a) Superior Officers > President Appoint +
Advice/Consent Senate
a) Inferior Officers > President alone, courts, heads of
(1) Congress can vest appointment of inferior officer in
only president, courts, or heads of departments
i) He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose
Appointments are not herein otherwise provided for,
and which shall be established by Law: but the
Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of
1. Control over Executive Agencies (No one-house veto
(Chadha); NO aggrandizement (Myers); NO two level
interference (Free Enterprise); YES pure-executive for cause
(Morrison); Only executive removal of executive functions
(Bowsher); Mixed officer for cause (Humphries)
a) NOT allowed to maintain one-house veto for action that
would otherwise require act of congress (No

(1) Chadha (Impermissible attempt to maintain a onehouse veto over decisions delegated to attorney
general which would otherwise require an act of
congress to accomplish)
a) Removal and Appointment Control Over Agencies
(1) All executive power must be exercised by the president
because they vest in him > Must have general control
over officers; Only executive doing executive functions
(1) Congress CANNOT aggrandize itself; can ONLY provide
one layer of good cause removal
i) Who can remove? and How?
i) Limitation on another branch?
i) Aggrandizement of power?
i) Interference with faithfully execute?
i) Type of Officer and Functions Performed
i) Inferior Officer?
i) How many layers of protection?
a) Legitimate Control
(1) Budgets OR Amending/Repealing agency authority
a) Cases
(1) Strongest Cases
i) Improper aggrandizement with pure executive >
i) Pure Executive for good Cause (Special Prosecutor)
No aggrandizement > Morrison
i) Mixed Officer; Two levels for good cause is
interference > Free Enterprise Fund (limiting
Humphries executor)
i) Executive functions and legislative removal improper
> Bowsher
i) Case Details
(a) Myers: Pure executive superior officer and
aggrandizement (Postmaster general)
(a) Morrison: No aggrandizement. Good cause on purely
executive officer. No interference with faithfully
execute. Second order (Special Prosecutor)
(a) Bowsher: Legislative agent (congressional power to
remove) impermissibly given executive functions.
Congressional removal justification beyond
impeachment is improper (Article II Section 4)
(a) Humphries Executor: Mixed Officer. No
aggrandizement. Good cause. (FTC)

i) Limited by Free Enterprise Fund to one level

(a) Chadha: Inappropriate one-house veto to control AG
(a) Mistretta: Inferior officers appointed by the courts.
Inferior appointments clause. (Sentencing
(a) Free Enterprise Fund: Two levels for mixed officer is
too much
1. Legislative vs. Judicial NO oversight of Article III
(Hayburns); NO reopening final judgments (Spendthrift);
YES changing background law (NO outcomes);
a) Article III Duties and Functions?
(1) Article III functions must be done in Article III cannot be
supervised or revised by non-article III bodies or agents
because judicial power vests solely in the supreme
court and others congress creates. [Hayburns Case
(Executive Supervision); Spendthrift (Legislative
reopening of final judgments); Klein(congress
prescribing outcomes, a judicial function) Article III
Section 1]
i) Congress can alter the background law, even
retroactively if clear, but cannot prescribe outcomes
in individual cases or re-open final judgements (Klein;
Spendthrift Farms)
(1) Non-Article III functions can be preformed by Article III
judges as commissioners (Hayburns Case)
a) Solely Supreme Review?
(1) Cannot have executive (Secretary of War) reviewing
article III decisions (Hayburns Case)
(1) The supreme doesnt HAVE to review (Exceptions
clause) but non-article III cannot be in the chain of
review over any Article III at all
(1) Congress can attempt to make a decision
unreviewable by not creating a cause of action in
the law and then removing the entire class of cases
[Klein (Congress can prescribe law but not outcomes);
McCardle (removing class of cases would be
permissible)]from the courts but these cases will still be
reviewable on constitutional grounds because of the
supremacy clause
a) Final Judgements

(1) Judicial power rests in the finality of rendering

dispositive judgements (Spendthrift)
i) Court decisions are fully retroactive because they are
essentially discoveries of the law
i) Congressional decisions are presumed not to be
retroactive but can be
(a) Would effect cases still in the pipeline as the law to
apply was changed but not final judgments
a) Other Article III requirements (Tenure, pay)
a) Article I Courts
(1) Administrative issues; no shall extend to all for those
classes of cases
(1) Because the issues are primarily administrative and
article III judicial power need not extend to these issues
because of the omission of "all" from the categories of
cases beyond admiralty and ambassadors so congress
may vest the power to hear those cases outside of
article III.

I. Vertical Separation of
Powers (Federalism)
A. Implied Powers
1. Broad Framework (Enumerated; NO expressly, Broad
Principles, Constitution Expounded (McCulloch); Not strictly
a) The federal government is one of enumerated powers
(1) However, the lack of expressly as in the Articles of
(1) and the nature of the constitution as a broad
principles rather than prescriptive detail document
i) Allows for the existence of implied powers which the
necessary and proper clause gives textual permission
(a) Not Strictly Necessary > Among granted powers,
omits absolutely, proper would be superfluous
i) Necessary is not strictly necessary because it is
listed among the grant of powers (Art 1 Section 8)
AND omits absolutely as in Article 1 Section 10.
Further, a strictly necessary interpretation would
make proper Superfluous and thus is disfavored

(1) Example
i) The federal government is one of enumerated
powers.[(Article 1 Section 1 (Herein Granted; Article I
Section 8(Enumerated Powers)]. However, the lack of
"expressly" in the grant of congressional powers in
the constitution, a document of broad principles not
prescriptive details, allows one to infer other implied
powers and the necessary and proper clause gives
the textual permission to do so. The necessary and
proper clause is an expansion of congressional power.
It is listed among the powers granted to congress, not
its limits and omits "absolutely" as it is included in
Article I Section 10. Furthermore, a "strictly
necessary" interpretation would make the addition of
"proper" superfluous making such an interpretation is
disfavored. McCulloch v. Maryland.
(a) Let the end be legitimate, let it be within the scope
of the Constitution, and all means which are
appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter
and spirit of the constitution. McCulloch v. Maryland.
1. No Taxation without Representation (McCulloch)
a) States CANNOT tax instrumentalities of the government
> Serves as indirect tax on other states citizens
States did not have this power before the constitution and are not
textually granted it. The purpose of the constitution is to promote
and enforce democracy and representation.
1. Is X a Federal Power?
a) Does it have a basis in Article 1 Section 8? + Necessary
and Proper
(1) All other powers reserved for the states and people
(Tenth Amendment)(Remainder? (Holland); Core
Sovereignty (Bond); Treaty Not independent (Reid)
i) BUT SEE Missouri v. Holland (Tenth merely remainder
and treaty independent)
i) but even more BUT SEE Bond (No police power even
with treaty)
a) Is it Not included in Article I Section 10?

A. Commerce Clause
1. YES Commerce Clause

a) Articles and Instrumentalities of Commerce

(1) Anything interstate and Anything Commercial (Wickard;
Raich) > Commerce Presumed Interstate (Pretext
doesnt matter (Darby))
i) BUT NOT Inactivity (NFIB) > Cannot create activity
to regulate it
Cf. Raich: Non-interstate and non-commercial BUT the
activity of growing
a) Channels of Commerce
a) Non-Commercial Activities with Substantial Effect (But
must be limit)
(1) Aggregation of minimal effects (Wickard)
(1) BUT NOT Entirely local, non-commercial activities
(Lopez) > Then No Limit
(1) BUT NOT based on costs of crime (Morrison)
(1) YES effects on interstate travel directly when thing is
local (Heart of Atlanta)
a) Necessary to Protect Interstate Regulation Program
(Especially Prohibition)
(1) Raich: To protect marijuana prohibition
a) NO forcing action to regulate it (NFIB)
1. Example
a) Congress always has the power to regulate articles
[Darby (Commerce presumed interstate and articles can
be regulated despite pretext as long as the activities
have economic effects); NLRB (local production within
reach because control is necessary to prevent interstate
commerce from obstruction); Lottery Cases] and
instrumentalities (Shreveport) of interstate commerce.
Additionally congress can regulate those activities that
substantially effect (Wickard local consumption as market
participation and aggregation of de minimis individual
effects) interstate commerce or as necessary to protect
its interstate regulatory scheme when those activities are
interstate or commercial in nature. See Lopez(direct
regulation of guns on school grounds with no commercial
activity involved would leave no room for state general
police powers so is out of reach of congress); Heart of
Atlanta (Congressional policy against discrimination to
encourage African Americans into interstate commerce);
Shreveport Rate (Congressional policy against interstate
rate discrimination, or now as presumed interstate

commerce); NLRB(Congress can regulate steel production

labor relations because its regulation is essential and
appropriate to protect the interstate commerce from
(1) Congress can take action "necessary" to the execution
of those enumerated powers (McCulloch) but that
action must also be "proper" to the letter and spirit of
the constitution that sets out a federal government of
enumerated powers (NFIB) whose powers must have
some limit as to preserve general police powers for
the states so may not be based on generalized effects
on commerce that have no limit such as crime. Lopez
(restricting simple gun possession would imply no limit
to congressional powers and resembles federal
application of general police powers); Morrison (Federal
creation of domestic violence civil remedy inappropriate
because it is purely local activities that are not
commercial in nature and regulation of marital relations
should be left to the states).
i) The mere fact that an activity is non-economic and
local is not enough to make the exercise of a power
"improper". The regulation may be to protect a
broader interstate regulation program (Raich) but the
application of this or other powers must be limited
(Lopez). The power cannot be inconsistent with a
federal government of enumerated powers such as
overstepping into general police powers or
compulsion of action or market participation. (Lopez);
Compare Raich (purely local production of gifted
marijuana is still a class of commercial activities and
necessary to support complete federal prohibition of
marijuana) with NFIB (mandated participation in a
market on nonparticipants would leave federal power
without bounds and be contrary to a government of
enumerated powers); See also Morrison (federal
regulation of local crime would lead to unlimited
power to regulate and infringes on state general
police power and marital relations)
i) Congress can act to regulate markets while it cannot
act to regulate purely local, non-commercial behavior
such as simple possession. Compare Wickard
(regulating the interstate market for wheat which

affects wheat production for local use) with Lopez

(Inappropriate regulation of pure possession
inappropriate because there is no similar market or
commercial activities being regulated). Congress can
regulate those markets and their participants but
cannot directly compel parties into action or market
participation by a direct mandate. Compare NFIB
(Inescapable mandate to purchase healthcare for nonmarket participants; compelling action to then
regulate) with Wickard (Strong incentives created to
curb local wheat production but ultimate choice left
the farmer to participate in the market).
i) There is no constitutionally enumerated power for
congress to solve national problems and in fact it
can be argued that the system is set up in a way to
encourage the states as laboratories for finding
tailored rather than one size fits all solutions.
Congress is empowered to use its enumerated powers
to solve national problems but not to create great
substantive independent powers beyond those
enumerated. See NFIB.
1. Cases
a) Gibbons v. Ogden (yes power): Conflicting ferry

licenses granted by the state and the federal

government. Expansive view of the commerce
Shreveport Rate Cases (yes power): Railroad line
reaches out of state but solely in state activities
are regulated because it is necessary to protect
the interstate scheme of non-rate discrimination.
The power extends to matters having such a close
and substantial relation to interstate traffic.
Lottery Cases(yes power): Punishing carriers of
lottery tickets across state lines permissible
Heart of Atlanta (yes power): hotel near interstate
instrumentality with some civil rights business.
Wickard v. Filburn (yes power): Production of
personal consumption of wheat effects the market
and prices by your lack of participation in it and

those effects when aggregated are substantial

Darby (yes power): Congress can prohibit non
minimum wage articles even though a pretext to
affect the minimum wage. Commerce is
presumed interstate. Look to economic effects no
indirect or direct. Direct regulation of wages as
long as necessary to protect regulation of the
NLRB v. Jones Laughlin Steel: regulation of labor
relations in steel productions because of their
close and substantial relationship to interstate
Carter Coal (No power): Production of coal is
distinct from commerce and proceeds it.
Production is distinct from commerce because
without such a distinction there is no preservation
of state power to regulate intrastate commerce
ALA Schecter (no power): Interstate chickens
coming to slaughterhouse through in state buffer
company and used for local consumption. Regular
flow of commerce does not mean commerce
continues once the item has arrived in state.
EC Knight (no power) (Bad Law): Manufacturing
proceeds commerce and thus is an indirect effect
on interstate commerce and are so
unregulateable by congress
Child Labor Case (no power)(Bad law): Child labor
done once commerce begins despite the
regulation targeting articles of commerce
Lopez (no power): Inappropriate regulation of
pure possession. No market for gun possession
unlike wheat. School is not a market or the cost of
crime is not determinative because this would
leave no limit on the application of the commerce
clause and defeat the idea of a government of
limited and enumerate powers.
Raich (yes power): Wholly intrastate production

and consumption of a federally banned good is a

commercial and economic class of activities,
despite nonpayment, and necessary to support
the absolute federal prohibition on that good. The
court is not in the business of excising as trivial
individual applications of an otherwise valid
Morrison (no power): Federal government can't
provide civil remedy for domestic violence
because of local crime's effect on commerce
because this would leave the power to regulate
unbounded and it infringes on the states general
police power and power to regulate martial

A. State Sovereign Immunity (Eleventh and

Fourteenth Amendments)

1. Eleventh Amendment (+ pre constitutional common law

= SSI) > Consent or state officials can be sued (Alden);
Art 1 Sec 8 cannot abrogate SSI (Seminole)
a) SSI derived from pre-constitutional common law and the
Eleventh Amendment
a) Permissible Mechanisms to Sue States
(1) Consent
(1) State Officials
i) State officials are bound by the constitution
(Supremacy) have a duty to uphold it. Suits against
officials are defended by the states anyway (Alden)
a) Congress cannot abrogate SSI with Article 1 Section 8
Powers (See Seminole Tribe; Eleventh Amendment)
(1) Co-Equal sovereigns and Cores Aspect of Sovereignty
1. Fourteenth Amendment (Fundamental re-ordering; after
11th; Section 1 rights; Section 5 enforcement; noneconomic activity)
a) Fourteenth Amendment AFTER Eleventh Amendment
(1) Section 1 is a fundamental restructuring of the
federal/state relationship
i) Textually expansive for congress and limiting for
states Congress Shall No state shall

(1) Section 5: Congress has the power to enforce, by

appropriate means, the provisions of this article
i) Power to regulate non-economic activity under equal
protection without the use of the commerce clause
a) Fourteenth Application (Redefining right; Level of
scrutiny; violations shown)
Ratchet UP > Katzenbach OR Specific applications Katzenbach
NO redefining right (Flores) finding generally violations where are
none by SC
(1) State Action?
(1) Section 1 Definition? > Target/Violations? > Level of
i) Section 1 violations defined by the courts (Flores)
(a) Congress can ratchet UP protection (Broad
Katzenbach Enforce is a one way word)
(a) Congress can remedy or act prophylactically
when violations are found in specific applications
(Narrow Katzenbach literacy tests being used for
broader disenfranchisement of Puerto Ricans)
(a) BUT Congress CANNOT redefine rights (Flores)
Remedy must be congruent and proportional
i) The remedy must have fair congruence and
proportionality to the violation as defined by the
courts (Flores least restrictive means test
overprotective for generally applicable laws
determined by SC to be constitutional)
(a) Example
i) Congress may be able to broaden or ratchet up
the protections offered by the constitution to
some extent, especially when finding violations in
specific circumstances when the courts ruled on a
practice generally (Katzenbach) but cannot
provide a remedy without a fair congruence and
proportionality to the injury prevented so as to not
redefine the rights unless they can show violations
of an actual or different nature (Flores)
i) Has congress shown the violations? > Congruent
and Proportional (Level of Scrutiny) Garrett and Flores
(No) Katzenbach and Hibbs (Yes)
(a) Rational Basis (Most)
Katzenbach: Literacy tests as applied to Puerto Ricans

i) Any conceivable rational basis and may not have

to be actually asserted
(a) Enhanced Rational Basis (Disabilities and Group
Garrett: Reasonable accommodations for disabled >
Remedy is NOT congruent and proportional to the
violations shown
(a) Intermediate Scrutiny (Hibbs Gender)
Disparate leave policies and childrearing stereotypes.
Reching second order causes
(a) Strict Scrutiny (Immutable characteristics; Race,
Religion, National Origin)
i) Compelling government interest and narrowly
i) Is it legit?
(a) Yes > Violations were identified and
legislation was narrowly tailored to that
violation. The choice among remedies is a
legislative decision (Hibbs) Reaching second order
causes; Violations shown
(a) Yes > Fundamental right; obvious violations (Lane
physical access to courts by disabled people)
(a) No > Overly protective so as to redefine right
(a) No > No pervasive pattern of violations shown.
Enhanced Rational Basis (Garret)

A. Tax and Spend

1. For general welfare?

1. Unambiguous condition?
1. Coercion? on states or people/businesses?merely political
a) On Businesses; Using the political processes > Steward
Machine Unemployment Program
a) Involuntary Choice > 10% of budgets from medicaid
a) 5% of highway funds, 1% of budgets > Legit (Dole)
1. Logical Nexus?
a) Same program or new program? (NFIB)
a) YES logical nexus > Driving and Drinking Age (Dole)
1. Independent Constitutional barriers (Discrimination)

1. Significant Spending > Robbing Peter to Pay Paul (Double

a) NFIB > Penalized for not participating AND paying for

A. Core Zones of Sovereignty (Tenth

Amendment; Treaties; Commandeering)

1. Tenth Amendment (Core Zone > No longer enforceable

(Transit Authority)
a) Does the Tenth Amendment have independent function
aside from mirroring Article 1 Section 8? > YES Core
Zone of Sovereignty
(1) Tenth as negative prohibition on the federal gov >
(1) Tenth as a mere remainder > Holland
(1) Tenth as core zone of Sovereignty > National League
of Cities (payment of government employees
overturned by Transit Authority as no longer judicially
i) Cannot regulate how a state regulates > If could
then nothing left for Tenth amendment to retain to
i) Must be a clear statement to interfere with core
zone > Ashcroft (no clear statement to regulate
judges pay)
1. Treaties and the Tenth Amendment
a) Independent treaty power > YES (Holland but only
reaching an area now in reach of the commerce clause)
a) Self-Executing Treaty? (Medellin consulars) Could
congress regulate this? (Bond local crime)
1. No Commandeering state BY Fed (No legislative (NY), No
executive (Printz), Yes judicial Art VI)
a) Why?
(1) Co-Equal Sovereigns
(1) Political accountability and the democratic process
(1) Essential characteristics of semi-autonomous
governments (Core Zones)
a) No legislative commandeering
(1) New York: Take title to radioactive waste. Forced false
choice to regulate. Encouragement to coercion.
i) Taxes on waste; subsidizing new dumps; authorized
interstate discrimination > all legit

a) No executive commandeering
(1) Printz: Using state sheriffs for Brady Bill background
a) Yes judicial commandeering > Article VI shall be bound
by oath or affirmation to support this constitution

A. Pre-Emption
1. Background (Not independent power, not negate, choice of
law, trump)
a) No independent power to negate state laws
(1) Only supremacy clause as a choice of law rule
(1) Congress has the power to trump where it has the
power to regulate
1. Preemption Types (Congress Action to Inaction)
a) Express Preemption (Broaden Conflict)
(1) Congress expressly adds preemption language
i) Expands scope of regulation beyond actual conflicts
to areas that congress COULD be regulated
a) Conflict Preemption (Impossibility)
(1) Physical impossibility to comply with both state and
federal law
a) Obstacle Preemption (Frustrates Purpose)
(1) State law frustrates the purpose or interferes with
federal law
a) Field Preemption (Pervasive OR strong interest)
(1) Federal regulation is so pervasive that it can be inferred
congress has intended to occupy the field
(1) OR there is a strong or uniquely federal interest
a) Federal Common Law (Judicially created to protect strong
interest (Defense Tort Immunity Boyle)
(1) Judge created law to protect strong federal interests
(Boyle Defense contractor tort liability immunity)
a) Dormant Commerce Clause (Unified National Market, NOT
(1) Strong Federal interest in a unified national market
i) NOT Exclusive because power can give back to states
power to impede commerce
(a) States have the ability to regulate so long as they
dont interfere with interstate commerce
(1) Analysis
i) Facial Discrimination ALMOST Per Se Invalid

(a) Stopping at the border (City of Philadelphia

discrimination against fungible interstate garbage
that presents no greater risk to health and safety
than out of state garbage or in state transportation)
(a) BUT See Maine v. Taylor (Actual risk of
contamination from out-of state baitfish and
narrowly tailored protection) see also Quarantine
cases (Health and safety protection is the goal and
no other way to accomplish it)
(a) Generally applicable tax + in-state subsidy >
Discrimination (Dairy Subsidy)
i) Even handed application with cost and benefits
distributed among local and interstate commerce
(Dairy Subsidy)
(a) NOT a least restrictive means test
(a) Balancing the benefits and burdens on local and
interstate commerce
i) All states acting in own interest would be bad for
the national market
i) They wouldnt engage in this activity if they were
to bear the whole cost
(a) Concern for lack of representation
i) Dairy Subsidy (Out of state had no voice instate to
oppose and money was limited to application to
milk so no political restraints as it was pure
benefit to instate producers)