FEDERALIST NO.

15

This section contains eight essays, Chapters 15–22, centered on the theme that the United States could
not long survive if the country continued to be governed under the Articles of Confederation, and
emphasizing the point that the crisis was imminent and necessitated immediate action against
"impending anarchy."

The point next in order, wrote the author, is the "insufficiency of the present confederation to the
preservation of the Union," an insufficiency that had led the country to the "last stage of humiliation,"
being both weak at home and flouted abroad.

The chief vice of the Confederation lay "in the principle of LEGISLATION for STATES or GOVERNMENTS,
in their CORPORATE or COLLECTIVE CAPACITIES as contradistinguished from the INDIVIDUALS of whom
they consist." The consequence was that the resolutions of Congress were not laws, but mere
recommendations to the states, which accepted or rejected them as they chose. "The authority of the
union," under a "general DISCEETIONARY SUPERINTENDENCE," should be extended "to the persons of
the citizens, — the only proper objects of government."

Government implies the power to make laws; laws, if they are to mean anything at all, have to be
attended with a "sanction" — that is, a penalty or punishment for disobedience. Under the
Confederation, the central government did not have the authority or the power to impose penalties on
recalcitrant states, which left it a mere shadow of government, scarcely deserving the name. With what
result?

"The measures of the Union have not been executed; and the delinquencies of the States have step by
step matured themselves to an extreme; which has at length arrested all the wheels of the national
government, and brought them to an awful stand . . . 'till the frail and tottering edifice seems ready to
fall upon our heads and to crush us beneath its ruins."

Analysis

Hamilton here again stressed that the "insufficiency" of the American Confederation arose from the fact
that there was no general "superintendence," and such superintendence should be extended beyond
the confederated state governments to the people themselves in their persons as citizens, "the only
proper objects of government."

Under the Articles of Confederation, the central government had no power to make laws and impose
"sanctions" for disobedience. The central government made recommendations which the states
followed or not, as they pleased. The result was a shambles, with the "frail and tottering" governmental
structure ready to collapse on everybody's head.

The situation was not nearly as desperate as Hamilton painted it for the purpose of advancing his own
arguments. But it was generally agreed that some constitutional changes (not necessarily those
advocated inThe Federalist) might well improve things.

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FERDERALIST NO. 39

In Chapter 39, the first question Madison offers here is whether the new national government would be
"strictly republican" in form. No other form would be compatible "with the genius of the people of
America; with the fundamental principles of the revolution."

Madison defined a republic as a government deriving all its powers from the great body of the people
and administered by persons holding office during the people's pleasure for a limited period, or during
good behavior. The government under the proposed constitution answered that description. The House
of Representatives was to be elected immediately by the people; the Senate and the president,
indirectly by the people. Even the judges along with all other important national officers were to be the
choice, "though a remote choice," of the people themselves.

Many objected that the new government would not be federal in form, based on the sovereignty of the
states, but rather a national government based on a "consolidation" of the states. Madison analyzed this
objection at length, arguing that the new government would be at once a federal and national
government — federal in most respects, but necessarily national in others.

FEDERALIST NO. 51

In Chapter 51, the only way of assuring the separation of legislative, executive, and judicial powers was
to contrive such an inner structure of government that the departments might, "by their mutual
relations, be the means of keeping each other in their proper places."

Each department should have a will of its own, and its members should have no "agency" in appointing
members of the others. Those administering each department should have the constitutional means
and "personal motives to resist encroachments of the others."

Publius continued:
Ambition must be made to counteract ambition . . . It may be a reflection on human nature, that such
devices should be necessary to controul the abuses of government. But what is government itself but
the greatest of all reflections on human nature? If men were angels, no government would be
necessary. . . . In framing a government . . . to be administered by men over men, the great difficulty lies
in this: You must first enable the government to controul the governed; and, in the next place, oblige it
to controul itself.

The proposed Constitution did just that — by so dividing and arranging the several offices that "each
may be a check on the other; that the private interest of every individual, may be a sentinel over the
public rights."

Analysis

This section is largely an elaboration on arguments made more briefly before. The only new matter
introduced in this section consisted of the objections to occasional appeals to the people on
constitutional questions, as advocated by Jefferson (Chapter 49), and the equal objections to periodical
appeals (Chapter 50).

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DAY 2 - Federal Judicial Power

Marbury v. Madison - Issue: whether SCOTUS can review constitutionality of federal laws

RULES

1. Created the authority for judicial review of executive actions

o Draws distinction between areas where there are individual rights (and therefore, govt.
duties), and those where the executive has discretion (which are dealt with by the political
process only)

2. Established that Art. III is the ceiling for OG jurisdiction. Congress can't expand it

o Art. III authorizes the maximum jurisdiction of the federal courts. As a result, Congress can't
authorize jx beyond what Article III specifies and federal courts can't gain jx by consent

3. Establishes authority for judicial review of executive and legislative acts

o Did so by saying that the Judiciary Act of 1789 authorizing the court to exercise mandamus
on OG jx was unconstitutional

 Marbury Rule of Law - The Supreme Court of the United States has the authority to review laws
and legislative acts to determine whether they comply with the United States Constitution.

Federalist No. 78

Federalist No. 78 describes the process of judicial review, in which the federal courts review statutes to
determine whether they are consistent with the Constitution and its statutes. Federalist No. 78 indicates
that under the Constitution, the legislature is not the judge of the constitutionality of its own actions.
Rather, it is the responsibility of the federal courts to protect the people by restraining the legislature
from acting inconsistently with the Constitution:

"If it be said that the legislative body are themselves the constitutional judges of their own
powers, and that the construction they put upon them is conclusive upon the other departments,
it may be answered, that this cannot be the natural presumption, where it is not to be collected
from any particular provisions in the Constitution. It is not otherwise to be supposed, that the
Constitution could intend to enable the representatives of the people to substitute their will to
that of their constituents. It is far more rational to suppose, that the courts were designed to be

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 an intermediate body between the people and the legislature, in order, among other things, to
keep the latter within the limits assigned to their authority."

According to Federalist No. 78, the federal courts have a duty to interpret and apply the Constitution,
and to disregard any statute that is inconsistent with the Constitution:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is,
in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to
ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative
body. If there should happen to be an irreconcilable variance between the two, that which has the
superior obligation and validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the people to the intention of
their agents. . . ."

[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people,
declared in the Constitution, the judges ought to be governed by the latter rather than the former. They
ought to regulate their decisions by the fundamental laws, rather than by those which are not
fundamental. . . .

[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals
to adhere to the latter and disregard the former.
Federalist No. 78 therefore indicates that the federal judiciary has the power to determine whether
statutes are constitutional, and to find them invalid if in conflict with the Constitution. This principle of
judicial review was affirmed by the Supreme Court in the case of Marbury v. Madison (1803).

Limits on the Federal Judicial Power; Interpretive Limits

 Limits on federal judicial power - interpretive limits, congressional limits, and justiciability limits

o Interpretive limits- question of how the Constitution should be interpreted

o Congressional limits - ability of congress to restrict federal court Jx

o Justiciability Limits - Judicially created doctrines that limit the types of matters that federal
courts can decide

 2nd amendment: "A well-regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed."

o 2008, SCOTUS invalidated law violating 2nd amendment and held that the Second
Amendment protects the right to have guns apart from militia service.

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  District of Columbia v. Heller - Subject to certain safety limitations, the Second Amendment to the
United States Constitution creates an individual right to keep and bear arms apart from any
military purpose.

 AZ Legislature v. AZ Independent Redistricting Commission - The Elections Clause and 2 U.S.C. §

2a(c) permit Arizona’s use of an independent commission to adopt congressional districts.

Congressional Limits; Justiciability Limits

 Art. III provides that the "Supreme Court shall have appellate jurisdiction, both as to Law and
Fact, with Exceptions, and under Such Regulations as the Congress shall make."

o Issue is whether Congress may restrict Supreme Court jurisdiction to hear certain cases,
effectively overruling Supreme Court decisions?

o Has been used to no avail in an attempt to keep certain cases out of supreme court, such as
prayer in school or abortion cases

o Major issues: What does the language mean when it says "exceptions and regulations" as
Congres shal make? Does separation of powers limit SC jx?

Exceptions and Regulations Clause

 "both as to law and fact, with such exceptions, and under such regulations as congress shall
make"

 Originalist view: Believe the clause above means Congress has been granted broad powers to
remove certain matters from the Supreme Court's purview.

o Contended that there is evidence of the Framers' intent to be read this way by the fact that
Congress did not vest Supreme Court with appellate jurisdiction over all cases and
controversies in Article III

 Other view: Congress is limit in its ability to control SC jx. Argument is that "exceptions" was
intended to only modify the word "fact"

o Framers were concerned about SCs ability to overturn fact-finding by lower courts,
especially when done by juries.

o Under this view, Congress can limit SC jx to review matters of fact, but can't eliminate
appellate jurisdiction to review matters of law

o Other argument is that Congress can't use this power to violate the Constitution and
eliminating power of review of particular topics would violate other parts of the
Constitution

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  Ex Parte McCardle - Although the United States Supreme Court’s appellate jurisdiction is
derived from Article III of the Constitution, it is conferred subject to whatever exceptions and
regulations Congress chooses to make.

Separations of Power as a Limit on Congress's Authority

 United States v. Klein - Based on the principle of separation of powers in the United States
Constitution, the legislative branch may not impair or direct the exclusive powers of the judicial or
executive branches.

o Klein applies in a situation where congress directs the judiciary as to decision making under
an existing law and does not apply when congress adopts a new law (Robertson v. Seattle
Audubon Society)

Justiciability Limits

 Justiciability Doctrine - Art. III S. 2 authorizes federal courts to hear several types of "cases"
and controversies."

o Justiciability doctrines are judicially created limits on the matters that can be heard in
federal courts.

 Some of these are "constitutional" meaning congress can't override by statute, where
some doctrines are prudential meaning they can be changed

o Five Major Jurisdiction Doctrines: Prohibition against advisory opinions; standing,

ripeness, mootness, and the political question doctrine. All must be met before a federal
court (at any level) can hear a case

 See Principles of Avoidance

 Some of the principles overlap justiciability (prohibition of advisory opinions,

standing, ripeness, mootness, and the political question doctrine)

Prohibition of Advisory Opinions

 FIRST: There must be an actual dispute between adverse litigants

 SECOND: In order for a case to be justiciable and not an advisory opinion, there must be a
substantial likelihood that a federal court decision in favor of a claimant will bring about some
change or have some effect

 Plaut v. Spendthrift Farms - Congress may not pass retroactive legislation that has the effect of
forcing the courts to reopen final judgments, as this violates the separation of powers in the
Constitution.

o Unconstitutional restrictions on Judicial Power:

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  Giving effect to a statute that was said to prescribe rules of decision to the judicial
department of the govt. in cases pending before it (Klein above)

 Congress cannot vest review of the decisions of Article III courts in officials of the
executive branch

o Judicial power - Rendering dispositive Judgments

 A retroactive command to re-open final judgments by Congress violates the principle

established in Marbury v. Madison that the "judicial department" has province and
duty to say what law is in particular cases and controversies

 Retroactive application to final judgment due to a new Congressional act

violates separation of power

 A CASE MUST BE JUSTICABLE: "A case is justiciable so long as the case retains the essentials of
an adversary proceeding, involving a real controversy"

o Also requires standing

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 Constitutional Standing

 SECOND MAJOR JUSTICIABILITY REQUIREMENT: Standing

Standing

 Standing is a determination of whether a specific person is the proper party to bring a matter for
adjudication

o Question is whether the litigant is entitled to have the court decide the merits of the
dispute or of particular issues

 Requirements for Standing:

o Plaintiff must allege that he or she has suffered or will imminently suffer an injury;
o Plaintiff must allege that injury is fairly traceable to defendant's conduct; and
o Plaintiff must allege that a favorable federal court decision is likely to redress the injury

o Major principles of standing

 A party may assert his or her own rights and cannot raise the claims of thir parties
before the court

 A plaintiff may not sue as a taxpayer who shares a grievance in common with all other
tax payers

Constitutional Standing Requirements:

 Allen v. Wright and MA v. EPA = major rules on meaning of injury, causation, and redressability
requirements

 Allen v. Wright - To have standing to bring a lawsuit, plaintiffs must sufficiently allege that they
have personally suffered a distinct injury, and the chain of causation linking that injury to the
actions of a defendant must not be attenuated.

o Art. III confines the federal courts to adjudicating "cases" and controversies"

o Plaintiff must suffer injury; injury must be traceable to D; and relief from injury must be
likely to follow

o Standing injury usually requires ascertaining whether P is entitled to an adjudication of the

claims asserted

o No standing here because no judicially cognizable injury and cannot be fairly traced to the
unlawful conduct of the IRS

 Generally, a claim asserting a right to have the govt. act in accordance with the law
alone is not sufficient to grant standing

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 o Injury accords a basis for standing only to "those persons who are personally denied equal
treatment" by the challenged discriminatory conduct

o Also violates separation of powers because the Executive Branch, not the Judicial branch
has the duty to make sure that laws are faithfully executed

 Massachusetts v. Environmental Protection Agency

(1) The Clean Air Act provides the Environmental Protection Agency with the statutory authority
to regulate new motor vehicle emissions greenhouse gases as an “air pollutant.”

(2) For standing to be appropriate, an actual case or controversy must be present, which is
characterized by a truly adversarial relationship.

(3) Although an agency’s refusal to initiate rulemaking is subject to judicial review, such review is
extremely limited and highly deferential.

o Supreme Court will not entertain citizen suits to vindicate nonconcrete interest In the
proper administration of law

 This is so because Congress must at least identify an injury it seeks to vindicate and
rekate it to the class of persons entitled to bring the suit

 Question is whether the person bringing suit as a personal stake in the outcome of the
controversy

 Here, MA owns a lot of the territory affected by greenhouse gases, thus giving
them a stake in the outcome of the case, making it sufficiently concrete for the
federal court to exercise jx

Notes on Injury

 Injury must be one that the plaintiff has suffered or imminently will suffer. Injury must also be
one personally suffered by the person bringing the suit

 City of LA v. Lyons - A plaintiff who wants to invoke the jurisdiction of the Supreme Court must
allege an “actual case or controversy.” Further, the injury complained of by plaintiff must be
immediate. Past exposure to illegal conduct does not, by itself, show a present case or
controversy.

 Lujan v. Defenders of Wildlife - Congress cannot create standing when an injury in fact, a causal
connection and redressability are not present.

o P in this case only had a special interest in seeing that the govt. consult with respect to
abroad activities that affect endangered species. P not directly affected

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 o Past exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief if unaccompanied by and continuing, present adverse facts.

 Fact that you might return back to Sri Lanka without describing concrete plans does not
support a finding of actual or imminent injury

Notes on Causation and Redressability

 Allen and Lujan stand for proposition that the plaintiff must allege and prove that D caused the
harm, so that it is likely that a favorable court decision will remedy the injury. If the court's
decision will not redress the injuries, it's an advisory opinion

 Linda R.S. v. Richard D. - No standing. Injunction commanding state prosecutions would not
ensure that the mother would receive any additional support money. If granted relief, the father
would be jailed. Prospect that prosecution would lead to payments is too speculative

 Warth v. Seldin - P's denied standing because could not demonstrate that appropriate housing
would be constructed without the exclusionary zoning ordinances being challenged

 Simon v. Eastern Kentucky Welfare Rights Organization - Purely speculative whether a rule that
hospitals could only give indigent people free service in emergency cases resulted in the harm
caused to plaintiffs. Also, no substantial likelihood that victory would result in them getting the
hospital treatment they needed

 Duke Power Co v. Carolina Environmental Study Group, Inc. - Price-Anderson Act limits liability for
utility companies when a nuclear reactor accident occurs. Claim was the Act violated Due Process
Clause because it allowed injuries without compensation.

o Court found Standing:

 P lived in an area that would subject them to injuries if an accident occurred
 Causation and redressability; Yes. But for the Act the reactor would not have been
built and P would not suffer the harms he's exposed to
 Act found constitutional despite court finding standing

Supplemental Readings

 Hollingsworth v. Perry - The Supreme Court held that federal courts only have the authority to
decide cases in which there is an "actual controversy," which means that the complaining party
must have suffered a "concrete and particularized injury" that can be redressed through court
action.

 United States v. Windsor

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 (1) A reviewing court has jurisdiction to hear an appeal even if the appellant is not seeking
redress from an adverse judgment, provided the party retains a sufficient stake in the case to
satisfy Article III of the Constitution.

RIPENESS AND MOOTNESS

PRUDENTIAL STANDING

 Prudential Standing requires (1) the prohibition of third-party standing and (2) the
prohibition of generalized grievances

o BUT, congress can overrule the prudential standing requirement because they derive
not from the Constitution but from the Court's view of prudent judicial administration

Prohibition of Third Party Standing

 Even when P alleges injury sufficient to meet the "case or controversy" requirement, the
Court has held that the plaintiff generally must assert his own legal rights and interest and
cannot rest his claim to relief on the legal rights or interest of a third party"

o Exceptions: One exception is where the plaintiff meets other standing requirements. If
he falls within the exception, he can assert such a claim (see below)

 Singleton v. Wulff - A plaintiff has standing to bring a lawsuit on behalf of a third party’s
right when that right is inextricably bound up with the activity the litigant wishes to pursue,
and when it is unlikely that the third party can or will sue on his or her own behalf.

 The enjoyment of the right must inextricably bound up with the activity the litigant
wishes to pursue the

 The third party must have the ability to assert his own right

o Said differently, the court will focus on two factors: (1) the closeness of the
relationship between the plaintiff and the injured party; and (2) the likelihood that the
third party can sue on its own behalf

Prohibition of Generalized Grievances

 Prohibition on general grievances prevents people from suing if their injury is as a citizen or
taxpayer concerned with having the govt follow the law

 United States v. Richardson - For a taxpayer to show sufficient personal, direct injury to
justify his or her standing to challenge a government action, he must (1) challenge an
enactment under the Taxing and Spending Clause of the Constitution (Art. I, Sec. 8) and (2)
must claim that the challenged enactment exceeds specific constitutional limits imposed on
the taxing and spending power

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 o Grievance is general if "the impact on [plaintiff] is plainly undifferentiated and "common
to all members of the public"

o EXCEPTION (to rule that taxpayers do not have standing): When they challenge
government expenditures as violating the Establishment Clause of the First
Amendment, the provision that prohibits congress from making any law respecting the
establishment of religion

 Flast v. Cohen - Federal taxpayers may have standing to challenge expenditures of

Congress if they show that the challenged expenditure (1) forms part of a federal spending
program and is not just incidental to the program, and (2) that the constitutional provision
under which the taxpayer claims a violation exists constitutes a “specific limitation” on
Congress’s Article I, Section 8 taxing and spending powers.

o Party seeking jx must establish a link between the status and the type of legislative
enactment attacked

 Thus, taxpayers can only challenge the unconstitutionality of an exercise of power

of congress under the taxing and spending clause of Art. I §8

o The taxpayer must establish a nexus between that status and the nature of the
constitutional infringement alleged

 Under this requirement taxpayer must show that the enactment exceeds specific
constitutional limitations imposed on the exercise of congressional taxing and
spending power and not simply that the enactment is generally beyond the
powers delegated to congress under Art. I §8

o Flast only applies to government EXPENDITURES (not grants of land). Also, taxpayers
can't challenge monies paid out of general executive revenue. Doesn't apply to tax
credits given either

 Basically, no standing if the executive branch causes the injury

RIPENESS

 The justiciability doctrine also requires that the case be ripe

o If the injury is speculative and not likely to occur, then the case is not ripe

 To demonstrate ripeness: (1) P must show that review is not premature; and (2) that harm
has occurred or is imminent

o Ripeness/standing questions may overlap

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 o Ripeness is different because it presents the question of when may a party seek pre-
enforcement review of a statute or regulation?

 Poe v. Ullman - For a lawsuit to be ripe for adjudication, the injury threatened must be
relatively immediate and certain to occur without court intervention.

o Fact that state did not yet prosecute deprived the court of immediacy to adjudicate

 Abbot Laboratories v. Gardner - In determining whether a case or controversy is ripe for

adjudication, a court must evaluate (1) the fitness of the issues for judicial decision (is it a
legal question?) and (2) the hardship to the parties of withholding court consideration

o Notes on decisions since Abbot

 Hypothetical threats are not enough (these would be advisory opinions)

 It is irrelevant that there will be a time delay before the disputed provisions come
into effect

 Susan B. Anthony List v. Driehaus - "Credible threat of future enforcement" may also make
a case ripe for review

MOOTNESS
 If anything occurs to a lawsuit while it's pending to end the plaintiff's injury, then the case is
to be dismissed as moot

o Mootness is derived from Article III's prohibition against federal courts issuing advisory
opinions

EXCEPTIONS TO MOOTNESS DOCTRINE

EXCEPTION #1: Wrongs capable of repetition but evading review

o If the injury is likely to recur in the future and it is possible that it could happen to the
plaintiff again and it is of such short duration that it will likely evade review, then the
exception applies

 Defunis v. Odegaard - Pursuant to the limitations of Article III of the Constitution, an issue
is moot, and not capable of federal court review, if its resolution would no longer affect the
rights of the litigants at the time they are before the court.

EXCEPTION #2: Voluntary Cessation

o A case is not to be dismissed as moot if the defendant voluntarily ceases the allegedly
improper conduct but is free to return to it at any time. ONLY if there is no reasonable
chance that the defendant could resume the offending behavior is a case deemed moot
on the voluntary cessation exception

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 POLITICAL QUESTION DOCTRINE

 Political Doctrine - Refers to allegations of constitutional violations that federal courts will
not adjudicate, and the SC deems to be inappropriate for judicial review

o Even though there's a constitutional question, court will dismiss because the Court
believes that some Constitutional provisions are best left to the political branches to
enforce and interpret

o Doctrine is typically defended on separation of powers grounds; Constitution is seen as

assigning certain provisions to other branches of govt.

 EG, some foreign policy issues best left to other political branches because they
have more resources and greater expertise

The Issues of Malapportionment and Partisan Gerrymandering

 Malapportionment is the creation of electoral districts with divergent ratios of voters to

representatives. (unequal representation)

o For example, if one single-member district has 10,000 voters and another has 100,000
voters, voters in the former district have ten times the influence, per person, over the
governing body.

 Partisan (or political) gerrymandering is the drawing of electoral district lines in a manner that
discriminates against a political party.

o Partisan gerrymandering challenges to redistricting plans, like racial bias challenges,

allege violation of the Equal Protection Clause.

 Cases under guaranty clause = nonjusticiable

 Baker v. Carr - A challenge to malapportionment of state legislatures brought under the

Equal Protection Clause is not a political question and is thus justiciable.

The factors to be considered by the court in determining whether a case presents a

political question are:

 Is there a textually demonstrable constitutional commitment of the issue to a

coordinate political department (i.e. foreign affairs or executive war powers)?

 Is there a lack of judicially discoverable and manageable standards for resolving

the issue?

3. The impossibility of deciding the issue without an initial policy determination of a

kind clearly for nonjudicial discretion.

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 4. The impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government.

5. Is there an unusual need for unquestioning adherence to a political decision

already made?

6. Would attempting to resolve the matter create the possibility of embarrassment

from multifarious pronouncements by various departments on one question?

o Guaranty Clause claims are nonjusticiable because they touch on matters of state
governmental organization

o Nonjusticiability resting on Guaranty Clause has no bearing when claims are brought
under the Equal Protection Clause

 Vieth v. Jubelirer - The issue of political gerrymandering represents a nonjusticiable

political question incapable of adjudication by the courts.

o Plurality opinion. Gerymandering questions may or may not be a political question

o Holding in Davis v. Brandemer affirmed because of plurality opinion, just don’t know
what the standard is governing gerymandering claims under Equal Protection Clause

 Political question doctrine is usually applied in 3 scenarios: (1) challenges to restrictions on

congressional membership; (2) challenges to President's conduct of foreign policy; and (3)
challenges to the impeachment process

The Political Question Doctrine Applied: Congressional Self-Governance

 Powell v. McCormack - A challenge to restrictions on congressional membership set by the

United States House of Representatives is justiciable and not a political question.

The Political Question Doctrine Applied: Foreign Policy

 Nixon v. United States - The constitutionality of Senate impeachment proceedings is a

non-justiciable political question incapable of judicial adjudication.

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Introduction: Congress and the States

 A basic principle of American govt is that Congress may act only if there is express or implied
authority in the Constitution, whereas states may act unless the Constitution prohibits the action

 Article I of the Constitution which creates federal legislative power states "All legislative powers
herein granted shall be vested in a Congress of the United States which shall consist of a Senate
and House of Representatives"

 Tenth Amendment: "The powers not delegated to the United States by the Constitution nor
prohibited by it to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people."

o Tenth Amendment often used as basis for protection of state governments from fedral
encroachment

 When evaluating an act of Congress there's always two questions: (1) Does Congress have
authority under the Constitution to legislate? And (2) if so does the law violate another
constitutional provision or doctrine, such as infringing separation of powers or interfering with
individual liberties?

 "Even valid exercises of legislative power are unconstitutional when they infringe on state
sovereignty"

o Congresses powers have been defined reltive to the states throughout history

Framework for Analysis

 McCulloch is the most important SCOTUS decision defining the scope of Congress's powers and
delineating the relationship between the federal govt and the states

 Issue in McCulloch "whether it is constitutional for the State of Maryland to tax the Bank of the
U.S."

o Major dispute of whether congress had authority to create the damn bank in the first place

 McCullough v. Maryland - The Constitution specifically delegates to Congress the power to tax
and spend for the general welfare, and to make such other laws as it deems necessary and proper
to carry out this enumerated power. Additionally, federal laws are supreme and states may not
make laws that interfere with the federal government’s exercise of its constitutional powers.

o Two important propositions: First, the Constitution grants to Congress implied powers for
implementing the Constitution's express powers, in order to create a functional national
government. Second, state action may not impede valid constitutional exercises of power by the
Federal government

Notes

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  Those who favor judicial use of federalism as a constrain on congress's power usually i.d. three
benefits of protecting state governments:

 Decreasing the likelihood of federal tyranny

 Framers though that the possibility of federal abuses could be limited by

restricting the authority of the federal government.

 Threat of tyranny is far more ominous at the federal level than at

state/local level

 Enhancing democratic rule by providing a government that is closer to the people

3. Allowing states to be laboratories for new ideas

 Problem is the questions of when it is worth experimenting and when

experimenting should be rejected because of a need to impose a national
mandate?

 Another major question in evaluating judicial protection of states from federal encroachment is
whether it should be the role of the judiciary to enforce the Tenth Amendment and protect state
sovereignty or whether the issue is best left the political process

Necessary and Proper Clause and Intro to Commerce Power

 National Federation of Independent Business v. Sebelius

(1) The individual mandate contained in the Patient Protection and Affordable Care Act of 2010 is
a valid use of Congress’s power to tax; and

(2) The Medicaid expansion provision of the Patient Protection and Affordable Care Act of 2010 is
an unconstitutional use of Congress’s spending powers.

 United States v. Comstock - Under the Necessary and Proper Clause, Congress has the
authority to enact a law that allows civil commitment of mentally ill, sexually dangerous federal
inmates beyond the end of the prisoners' criminal sentences.

17
 Commerce Power

 Gibbons v. Ogden - If a state and Congress both pass conflicting laws regulating interstate
commerce, the federal law governs pursuant to Congress’s constitutional grant of power to
regulate interstate commerce

o Commerce is intercourse between nations and parts of nations in all its branches, and is
regulated by prescribing rules for carrying on that intercourse.

 "Commerce" comprehends the regulation of navigation as well as every species of

commercial intercourse between the U.S. and foreign nations

o "Among the states" is properly restricted to that commerce which concerns more States
than one. Congress can exercise power to regulate activity when it has a substantial
effect on interstate commerce.

o "Power to Regulate" - Means power to prescribe rules governing commerce.

What is Commerce?

 Three Doctrines Describing Scope of Congress's Powers

 Commerce is narrowly defined as one stage of business, separate and distinct from
earlier phases such as mining, manufacturing and production (which are typically
regulated by the State)

 EG, U.S. v. E.C. Knight SCOTUS held that Sherman Act can't be applied to stop
monopoly of sugar refinery because they were involved only in manufacturing the
sugar. Thus it was only production of sugar, not commerce

What Does "Among the Several States" mean?

 There MUST be a direct effect on interstate commerce

 EG in Shreveport Court upheld the ability of Interstate Commerce Commission to

set intrastate railroad rates because of the direct impact on interstate commerce.
(in this case, railroad was ordered to charge same rates for shipping to
Shreveport, TX regardless of whether the package came from TX or LA)

 Contrast: Schechter Poultry sick chicken case, federal law unconstitutional based
on insufficient effect on interstate commerce.

 As part of New Deal registration, The National Industrial Recovery Act

authorized the president to approve codes on fair competition to prevent
sellers from requiring buyers to buy all of their chickens including the sick
ones.

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  Although the Chickens came from all over the nation, the Court said
the code was unconstitutional because it concerned operation of
business within NYC.

 "The federal govt has authority to regulate where there are direct effects
on commerce, "but where the effect of intrastate transactions upon
interstate commerce is merely indirect, such transactions remain within the
domain of state power."

 Enforcing the distinction between direct and indirect effects on

commerce "must be recognized as essential to the maintenance of
our constitutional system."

 Delineating between direct and indirect effects is tough. But the key
point is that Court has interpreted "among the states" as requiring a direct
effect on interstate commerce.

Does State Sovereignty Limit Congressional Power?

 Even if an activity is commerce and among the states, Congress cannot regulate it if
it was to intrude into the zone of activity reserved to the states

 Tenth Amendment controls regulation of mining, manufacturing, and production.

 EG, Daggenart Court declares unconstitutional a law prohibiting shipment

of materials to factories that employ children because the effect was on
PRODUCTION (case was overruled)

 The Lotter Case - Court held that power to regulate interstate commerce
includes ability to prohibit items from being in interstate commerce.

o Thus, the narrow definition of comemrce,restrictive interpretation of among the states,

and use of state sovereignty as a constraint on congressional power all advance dual
federalism.

Key Decisions Changing the Commerce Clause Doctrine

 NLRB, Darby, and Filburn incredibly important - since these decisions not 1 federal law
declared unconstitutional as exceeding Congress's commercial power.

 NLRB v. Laughlin - Congress may regulate labor relations under its Commerce Clause
power because labor relations have such a close and substantial relationship to interstate
commerce that their control is essential to protect that commerce from burdens and
obstructions.

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 o "Affecting Commerce" means in commerce, or burdening or obstructing commerce or
the free flow of commerce, or having led or tending to lead to a labor dispute
burdening or obstructing commerce or the free flow of commerce.

o The act being challenged as unconstitutional purports to only reach what may be
deemed to burden or obstruct that commerce and, thus qualified, it must be construed
as contemplating the exercise of control within constitutional bounds

o "The Fundamental Principle is that the power to regulate commerce is the power to
enact "all appropriate legislation" for its "protection or advancement"; to adopt
measure "to promote its growth and safety"; to "foster, protect, control, and restrain"

 If there's a substantial relation to interstate commerce, Commerce cannot be

denied its Commerce power right

 U.S. v. Darby - Congress may regulate the labor standards involved in the manufacture of
goods for interstate commerce and may exclude from interstate commerce any goods
produced under substandard labor conditions.

o Congress enacted Fair Labor Standards Act, which is now in dispute. Act prevents
shipment of certain products produced in the U.S. (like wood) in interstate commerce
to states that do not conform to standards regarding labor conditions and hours.

o While manufacture is not commerce, the shipping of these manufactured goods is, thus
falling within the ambits of the Commerce clause.

o Congress is free to exclude from the commerce articles whose use in the states for
which that are destined may be conceived as injurious to public health, morals or
welfare, even though the state has not sought to regulate their use.

o In this case, prohibition of shipment interstate of goods produced under the forbidden
standard of labor conditions is within the constitutional authority of Congress.

o Congress MUSt have a legitimate end that they can reach by regulating, the regulation
must be within constitutional bounds, and the means chosen must be adapted to the
attainment of that end.

 Wickard v. Filburn - Congress may regulate local activity if that activity exerts a substantial
economic effect on interstate commerce.

o Whether the subject of the regulation involves "production," "marketing," or

"consumption" of a good, is not material to deciding whether or not Commercial Clause
can be used to regulate it

 In this case wheat was being grown for personal use. Congress wanted to regulate
its use since overconsumption may have an effect on the market and leads to
shortages

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 o The power to regulate commerce includes the power to regulate prices at which
commodities in that commerce are dealt in and practices affecting such prices.

 Here, home-grown wheat fucks with prices of wheat in commerce. Thus

cCongress can regulate under Commerce Clause

o Commerce includes all stages of business; no longer is a distinction drawn between

commerce and other stages of business such as mining, manufacture and production

 Tenth Amendment is simply a reminder that for Congress to legislate it must

point to an express or implied power. It can no longer be seen as reserving a zone
of activities exclusively for state control (at least in commerce clause analysis)

What Does "Commerce Among the States" Mean?

 In The Civil Rights Cases Supreme Court held that Congress could only regulate govt. conduct
and not private behavior under the 14th Amendment. But then, Heart of ATL came along
(below)

 Heart of Atlanta Motel Inc. v. United States - Congress may enact regulations that prevent
racially discriminatory policies in hotel accommodations because of the negative effects of
those policies on interstate commerce.

o Case considers constitutionality of Civil Rights Act. D argues that it is unconstitutional

under the commerce clause to require him to rent rooms to blacks.

 Court noted the burdens that discrimination based on race and color place on
interstate activity; nation has become more mobile, blacks have been
discriminated against while traveling; and lodging discrimination has a
quantitative effect on interstate travel by blacks

 The same interest in protecting commerce has led to Congress enacting

numerous other laws regarding racial discrimination because eof the disruptive
effect it has on commercial intercourse

o "Even assuming that the motels operation were only local, the Power of Congress to
promote interstate commerce also includes power to regulate local incidents thereof,
including local activities in both the States of origin AND destination, which might have
a substantial and harmful effect upon that commerce. "

 Katzenbach v. McClung - Congress may regulate the discriminatory policies of restaurants

through Title II of the Civil Rights Act if those policies have a substantial effect on interstate
commerce

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 o Considers application of commerce clause to a restaurant that only serves take-out to
blacks, but gets a substantial portion of their food out of state

o The activities beyond Congress's reach are those which are completely within a
particular state, which do not affect other states, and with which it is not necessary to
interfere. -Ogden

 Here burden of refusing service to blacks has imposed burdens on interstate flow
of food and the movement of products generally. They serve out of state patrons
and get most of the food they sell form out-of-state vendors

Notes

 Regulatory Laws - Hodel v. Indiana - "A court may invalidate legislation enacted under the
Commerce Clause ONLY IF it is clear that there is no rational basis for a congressional finding
that the regulated activity affects interstate commerce, or that there is no reasonable
connection between the regulatory means selected and the asserted ends."

 The activities beyond Congress's reach are those which are completely within a particular
state, which do not affect other states, and with which it is not necessary to interfere.

 Criminal Laws - Perez v. U.S. - Consumer Credit Protection Act upheld as constitutional under
Commerce Clause. In regulating interstate commerce, Congress may regulate those activities
which obstruct the flow of interstate commerce, such as the destruction of aircrafts; activities
that impact interstate commerce, such as loan sharking; and the utilization of “channels” of
commerce, such as with stolen goods

Tenth Amendment Application

 Garcia v. San Antonio Metropolitan Authority - Congress’s application of the Fair Labor
Standards Act to the employment actions of a state municipal transit authority is a
constitutional exercise of its Commerce Clause power.

 United States v. Lopez - Congress may not, pursuant to its Commerce Clause powers, pass
a law that prohibits the possession of a gun near a school.

o Congress has broad lawmaking authority under the Commerce Clause, this power
does not extend so far as to authorize the regulation of the carrying of handguns,
particularly when doing so has no clear effect on the economy overall.

o An act of Congress is constitutional (in this case) I the activity to be regulated has a
substantial effect on commerce.

 Here, carrying of handguns (not the buying or selling) in a school zone in no way
affects commerce, either substantially or otherwise

 United States v. Morrison

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 (1) Congress does not have the authority under the Commerce Clause to regulate violence
against women because it is not an economic activity.

o The activity being regulated (violence against women) cannot stand under Lopez
because both cases involve NON-ECONOMIC activity

o The United States argues violence against women affects the travelling, engaging of
business, and employment in interstate commerce of women as a group. This argument
is rejected as Congress cannot regulate non-economic, violent criminal conduct based
solely on that conduct’s aggregate effect on interstate commerce.

 Gonzales v. Raich - Congress may regulate the use and production of home-grown marijuana
as this activity, taken in the aggregate, could rationally be seen as having a substantial
economic effect on interstate commerce.

o Just as the addition of homegrown wheat to the overall market frustrated Congress’s
attempts to regulate the entire market in Wickard, Raich’s addition of homegrown
marijuana to the national scheme, when taken in the aggregate with others similarly
situated, has a significant effect on Congress’s ability to eliminate the national illegal
marijuana market.

o Therefore, the CSA is a valid exercise of Congress’s Commerce Clause power because
Congress acted rationally in determining growing marijuana was an economic activity
with a substantial effect on interstate commerce

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10th Amendment Invalidating a Federal Law

 New York v. United States - Congress may not compel states to enact or administer a federal
regulatory program.

o If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly

disclaims any reservation of that power to the States; if a power is an attribute of state
sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution
has not conferred on Congress.

 10th Amendment limits powers of federal govt.

o Congress cannot commandeer the legislative process of state by directly compelling

them to enact and enforce a federal program

 The Constitution has NEVER been understood to confer upon Congress the ability to
require the States to govern according to Congress' instruction

o Congress MAY attach conditions on the receipt of federal funds. Such conditions must
bear some relationship to the purpose of federal spending

o Here, the States have no choice, they have to either comply with Congress's direction or
take title to radioactive waste themselves. This crosses the line form encouragement to
coercion

 Doesn't matter how strong Congressional interest is in regulating the activity

 Printz v. United States - Congress may not compel state officials to participate in the
administration of federal programs.

o Congress cannot circumvent the prohibition on compelling states to enact or enforce a

federal regulatory program by conscripting the State's officers directly.

o Congress may neither issue directives requiring states to address particular problems, nor
commend State officers, or those political subdivisions to administer or enforce the federal
program. Such commands are incompatible with dual sovereignty

 United States v. Butler - Congress may not use its taxing and spending powers to obtain an
unconstitutional result, such as invading the reserved rights of the states under the Tenth
Amendment.

 South Dakota v. Dole - The receipt of federal funds may be conditional if the exercise of the
spending power is (1) for the general welfare, (2) the conditions are unambiguous, (3) the
conditions are related to a federal interest in a particular national project or program, and (4) the
conditions do not violate any other constitutional provisions such as the Tenth Amendment.

Congress's Power Under the Post-Civil War Amendments

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  13th Amendment abolishes slavery

 14th amendment provides no American citizen shall be deprived of life, liberty, or property
without due process of the law.

o 14th Amendment §5; Congress has power to enforce 14th Amendment's Due Process
Clause via legislation

 15th Amendment Provides that the right of U.S. Citizens to vote shall not be denied on account of
race, color, or previous condition of servitude.

o 15th Amendment §2 says Congress can enforce via legislation as well

Whom May Congress Regulate?

 Congress may NOT regulate private behavior under Amendment 14 §5 (see Morrison)

o 14th Amendment pertains to STATE action

 United States v. Morrison

(1) Congress does not have the authority under the Commerce Clause to regulate violence against
women because it is not an economic activity.

(2) Under § 5 of the Fourteenth Amendment, Congress may only regulate the discriminatory
conduct of state officials, not private actors.

What's the Scope of Congress's Power?

 View #1: Congress only has authority to prevent or provide remedies for violations of rights
recognized by SCOTUS (narrow view)

 View #2 - Congress has authority to interpret the 14th Amendment, expand the scope of rights, or
even create new rights. Under this view Congress may create rights via statute where the Court
has not found them in the Constitution, but Congress may not diminish any of the rights afforded
(Broad approach)

 Katenbach Court took approach #2, broadly interpreting 14th Amendment.

 Flores Court took narrow view #1

 Katzenbach v. Morgan & Morgan - Congress may pass legislation to enforce the Equal Protection
Clause of the Fourteenth Amendment even when the legislation conflicts with state law.

 City of Boerne v. Flores - Section 5 of the Fourteenth Amendment provides Congress only with
remedial powers, and when upholding a constitutional right, Congress may only enforce
legislation that utilizes means proportional to achieving that legislative purpose.

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 o Congress has the power to enforce Amendment 14, but cannot "remedy" laws they
determine to be Constitutional violations; in this case there was a remedy not an
enforcement

 Congress has no power to create substantive legislation binding on the States

o When religion is burdened the government can prevail if they show that the burden (1)
is in furtherance of a compelling govt. interest; and (2) is the least restrictive means of
furthering that compelling govt. interest

 There must be a congruence between the means used and the ends achieved. The
appropriateness of remedial measures must be considered in light of the evil
presented

o Preventative measures prohibiting certain types of laws may be appropriate when there is
reason to believe that many of the laws affected by the congressional enactment have a
significant likelihood of being unconstitutional

 Shelby County v. Holder - Section 4(b) of the Voting Rights Act — which determines which
jurisdictions are covered by Section 5 — is unconstitutional because it is based on an old formula.
As a practical matter this means that Section 5 is inoperable until Congress enacts a new coverage
formula, which the decision invited Congress to do.

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 Congress's Power to Initiate Suits Against State Govts. - 11th Amendment Sovereign Immunity

 11th Amendment - "The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State"

o Also bars suits against a state by its own citizens

o View #1 - Sovereign immunity creates a restriction on federal court SMJ for all suits against
state govts

 Under this view states cant be sued no matter how egregious violations of federal
rights are. BUT there are three ways around this logic

 State officers may be sued in federal court, even when state govts can't be
sued;

 States may waive 11th Amendment immunity and consent to be sued in federal
court; or

3. Congress, pursuant to Amendment 14 §5, may authorize suits against state

govts in state courts

o View #2 - 11th Amendment treats it as restricting only diversity jx of the federal courts

 The Basic Rule: Congress May Authorize Suits Against State Govts Pursuant ONLY to §5 of the
14th Amendment

 Seminole Tribe of FL v. FL - Congress may not abrogate states’ sovereign immunity protected
by the Eleventh Amendment unless through an exercise of power derived from §5 of the
Fourteenth Amendment.

 Kimmel v. Florida Board of Regents - Sovereign immunity cannot be abrogated via §5 of 14th
Amendment with respect to enforcing the Age Discrimination in Employment Act

o Congress MAY abrogate State immunity when: (1) Congress has unmistakably indicated
it's intent to abrogate State immunity through the statute; and (2) Congress must act
pursuant to a valid exercise of power

 Enforcing 14th Amendment §5 or prohibiting conduct protected under the Amendment

is the only means of abrogating State sovereignty. Amendment 14 §5 is an affirmative
grant of power to Congress.

 Congress only has the power to enforce the 14th Amendment and to deter violation
of rights guaranteed under the amendment (no deprivation of life, liberty, or property
without due process)

27
 o Additionally, must show "congruence and proportionality between the injury to be
prevented or remedied and the means adapted to that end"

 Congruence - Must analyze the evil sought to be deterred by the legislation;

 The legislation must be in response to some Constitutional violation

 EG, State violates federal patent law. Sovereign immunity still stands
because federal patent law not targeted at state violators

 Proportionality - If State has their own means of remedying the situation,

proportionality might not be found

 EG State Constitution has provisions for bringing suit against State govt
for patent infringement

Congress’s Greater Authority to Legislate Concerning Types of Discrimination and Rights that Receive
Heightened Scrutiny; Congress’s Power to Authorize Suits Against State Governments in State Courts

 SCOTUS uses heightened scrutiny standard for some types of discrimination and for fundamental
rights

o EG discrimination based on race = strict scrutiny standard; Some types are analyzed under
intermediate scrutiny standard (must be substantially related to achieving a substantial
govt. purpose

o Cases below show Congress has more authority to act when dealing with conduct that
triggers heightened scrutiny standard

 NV Dept. of Human Resources v. Hibbs - Congress implemented a valid abrogation of Eleventh

Amendment state sovereign immunity when it established a private cause of action under the
Family and Medical Leave Act of 1993.

o When strict scrutiny analysis is employed a law can withstand analysis if it serves
"important government objectives" and "the discriminatory means employed are
substantially related to the achievement of those objectives"

 Tennessee v. Lane - Title II of the Americans with Disabilities Act, as applied to circumstances
affecting the right to access the judicial system, represents a valid exercise of Congress’ § 5
authority to enforce the guarantees of the Fourteenth Amendment.

 U.S. v. Georgia - There must be a Constitutional violation alleged by plaintiff in order for a State to
be sued

Congress's Power to Authorize Suits Against State Govts. In State Courts

28
 Alden v. Maine - Congress may not authorize suits against state governments in state courts,
even on federal claims, without the state governments’ consent.

o States also can't be sued in federal agency proceedings without their consent (Federal
Maritime Commission v. South Carolina State Port Authority

29
Inherent Presidential Power; Authority of Congress to Increase Executive Power

 If the president has explicit constitutional authority for particular conduct, then the issues are
solely whether the president is acting within the scope of the granted power and whether he is
violating another constitutional provision

o Conversely, if some statute was enacted giving him power to act, the question is whether
that law is constitutional

 Next case addresses when president may act without express constitutional authority.

 Art II - "The executive Power shall be vested with the president of the united states of America
. . . He shall take Care that the Laws be faithfully executed . . . Shall be commander in Chief of the
Army and Navy of the United States."

o Does not say "herein granted" so question is whether president has powers not mentioned
in the constitution

 Youngstown Sheet & Tube Co. v. Sawyer - The President of the United States may not engage
in lawmaking activity absent an express authorization from Congress or the text of the
Constitution.

o Issue: Whether president acting within power when he issued an order directing the
secretary of commerce to take possession of and operate most of the nation's steel mills.

 Problem is: Art. I states "All legislative powers are vested in a Congress of the United
States"

 Argument is that this is a law that only Congress has the power to make

 The president has no such authority under the constitution to take possession of
property to keep labor disputes from stopping production.

 President's power is to see that laws are faithfully executed, Constitution limits his
functions to the lawmaking process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad

 Congress had authority to act in this case, not the President

Scope of Inherent Power: The Issue of Executive Privilege

 Executive Privilege - The ability of the president to keep secret conversations with or
memoranda to or from advisors; not expressly stated in constitution

 U.S. v. Nixon - Separation of Powers does NOT sustain absolute, unqualified Presidential privilege
under all circumstances absent a need to protect military, diplomatic or national security secrets

o It is the province of the Supreme Court to say what the law is. Marbury v. Madison

30
 o The generalized interest in confidentiality cannot prevail over fundamental demands of due
process of law in the fair administration of criminal justice

 BUT the need for information for use in civil cases, does not share the urgency or
significance of a criminal request (Cheney v. U.S.)

Constitutional Problems of the Administrative State (Non-Delegation Doctrine; Legislative Veto)

 Case below deals with when Congress grants president a power not conferred under the
Constitution

 Clinton v. City of New York - There is no provision in the United States Constitution that
authorizes the President to enact, amend, or repeal statutes.

o The president "shall from time to time give to the Congress Information on the State of
the Union and recommend to their consideration such measures as he shall judge necessary
and expedient" Art. II §3

 Meaning he can initiate and influence legislative proposals

o After a bill passes at both houses of Congress, but "before it becomes a Law" it must be
presented to the President. If he approves it "he shall sign it, but if not he shall return it,
with his Objections to that house in which it shall have originated, who shall enter the
Objections at large on their journal and proceed to reconsider it." Art. I §7 Cl. 2
(Presentment Clause)

 His rejection (veto) is subject to being overridden by 2/3 vote

 Difference between the statute in this case and the Constitutional provision is that the
Pres can veto a specific line item, whereas constitution tells him to reject the whole
bill and the constitutional return takes place before the bill become slaw as opposed
to the statute here

 Dissent: President wasn't amending or repealing law, he was following one (that
granated him the power to veto shit he doesn't like in bill)

The Constitutional Problems of the Administrative State

 Administrative agencies have been given broad powers

o Power to legislate - Meaning they can promulgate rules

o Executive Power - power to enforce rules

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 o Judicial Powers - Power to employ administrative law judges who hear cases brought by
agency officials against those who break their rules

The Nondelegation Doctrine and Its Demise

 Nondelegation Doctrine - The principle in administrative law that congress cannot delegate its
legislative powers to agencies. Rather, when it instructs agencies to regulate, it must give them an
"intelligible principle” on which to base their regulations.

 Panama Refining Co. v. Ryan - Congress may not delegate legislative power to the executive
branch without providing clear standards for how the executive must exercise that power.

o "All legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives." Article I, § 1.

o And the Congress is empowered "To make all Laws which shall be necessary and
proper for carrying into Execution" its general powers. Article I, § 8

 The Congress manifestly is not permitted to abdicate or to transfer to others the

essential legislative functions with which it is thus vested.

o This law has not been followed, but it also hasn't been overruled

 Whitman v. American Trucking - When Congress confers decision-making authority upon

agencies Congress must "lay down by legislative act an intelligible principle to which the
person or body authorized to act is directed to conform"

o Agencies are allowed to create sufficient, but not necessary guidelines

o When Congress grants a degree of policy judgment to an administrative agency, the

court rarely second-guesses the authority conferred

o Court has never required a statute to provide a "determinate criterion" saying how
much of the regulated harm is too much

Legislative Veto and Its Demise

 Since the nondelegation doctrine is demised, question is how the power of the
administrative agency is checked and controlled

 Legislative veto was created as a check on administrative agencies

o A typical form of legislative veto authorized congress to overturn an agency decision

by resolution of one house of Congress. Another took the form of overturning

32
 agency rules by resolution of both houses of Congress or even by action of a
Congressional committee.

 Legislative veto declared unconstitutional in the case below

 Immigration and Naturalization Service v. Jagdish Rai Chadha - Legislation providing Congress
with a veto over an action of the executive branch does not meet the constitutional requirements
of presentment and bicameralism.

o Every Bill which shall have passed the House of Representatives and the Senate, shall,
before it becomes a Law, be presented to the President of the United States . . .

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of Adjournment) shall be
presented to the President of the United States; and before the Same shall take Effect, shall
be approved by him, or being disapproved by him, shall be repassed by two thirds of the
Senate and House of Representatives, according to the Rules and Limitations prescribed in
the Case of a Bill."

 Art. I §7

 Meaning, legislation should not be enacted unless it has been fully considered
by our nation's elected officials

 In this case, the administrative agency passed a resolution without

submitting it to the Senate or the president

o Congress must abide by its delegation of authority until that delegation is legislatively
altered or revoked

o Case clearly establishes that if Congress wants to overturn an executive action there
must be bicameralism, passage by both houses of Congress, and presentment, giving the
bull to the President for signature or veto. Anything less is a legislative veto and legislative
vetoes are unconstitutional

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Checking Administrative Power -Congress Limiting Admin Agency Power

 Congress can control administrative agencies through statutes

 Congress can overturn agency decisions by statute

 President can veto statutes, requiring 2/3 vote to effectuate the check

 Another important check is that Congress controls administrative agency budgets

 The President's has authority to select members of agencies, subject to confirmation by the
Senate, also directs conduct of the agency

 President's power to remove agency officials is another check

Appointment Power

 Art. II §2 Cl. 2

[The President] shall have the 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 Councils, 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
Departments.

o Inferior officers could be appointed without executive/senate approval

o Heads of departments

 Key issue is who may possess the power of appointment? See Olson Case Below

 Alexia Morrison Independent Counsel v. Theodore B. Olson - A law vesting the judiciary
with the power to appoint an inferior executive officer (an independent counsel) and
prohibiting removal without cause does not violate separation of powers principles.

o Principal officer appointment requires senate approval, inferior officers, however, can
be appointed by the President, heads of departments, or by the judiciary

o Office is inferior in this case based on the following factors:

 Officer was subject to removal by a higher executive branch official (the AG in this
case)

 The officer only empowered to perform certain limited duties

34
  The officer's office had limited jurisdiction

 The officer had limited tenure

 Can't be an inferior office unless you have responsibility to someone

else in the department, thus not requiring senate approval. Congress can
impose or not impose senate confirmation

 There is no 1 test determining who an inferior officer is. Court has a lot of
discretion in determining who an inferior officer is

o District Judges vote on magistrate judges. Congress can appoint lower court judges also

 Myers v. United States - The Constitution grants the president the sole power to remove
executive officers.

 Humphrey’s Executor v. United States - Under Myers v. United States, 272 U.S. 52 (1926),
the President has unrestricted power to remove executive branch officials, such as the
postmaster.

o President Wilson appoints postmaster general, President Coolidge wants to get rid of
him

 Free Enterprise Fund v. Public Company Accounting Oversight Board -A President may
not be restricted in his ability to remove a principal officer, who is in turn restricted in his
ability to remove an inferior officer, because such multi-level protection from removal
prevents the President from fulfilling his Article II duty to ensure that the laws are faithfully
executed.

What these cases collectively Mean According to Chemerinsky

 The president may fire any executive official (person responsible for executing the laws)

o BUT Congress can limit this power by statute IF:

 (1)it is an office from which independence from the president is desirable

 (2)The statute does not prohibit removal, but limits it to cases where "good
cause" is shown; and

 (3) The statute does not prohibit the president from firing executive officials
where there is good cause

35
 o The ultimate questions is essentially whether these mechanisms for controlling these
administrative agencies - statutes, budget, informal committee controls, appointment,
and removal - are sufficient

 NLRB v. Canning - The Recess Appointments Clause should be interpreted as granting the
President the power to make appointments during a recess but not offering the President the
authority routinely to avoid the need for Senate confirmation. However, for purposes of the
clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules
– it retains the capacity to transact Senate business.

o Issue: president's power to make recess appointments

o A recess appointment is not limited to the sessions between the senate/congress's

being sworn in. Question is whether the senate is still "conducting business" during the
pro-forma session.

 Pro-forma session means they're kinda there doing stuff

o Recess appointments clause (Art. II §2 Cl. 3) - Gives president the power "to fill up all
Vacancies that may happen during the recess of the senate by granting commissions
that shall expire by the end of their next session"

 Question 1: Does this include only inter-session recess (ie break between formal
sessions of Congress) or does this also include Intra-session recess (ie summer
recess?

 Answer: it includes both

 If the recess is so short that it does not require the consent of the
House, it is too short to trigger president's power under the Recess
Clause

 EG appointments have ever made in between a 10 day recess

 Q 2: Does "vacancies that may happen" mean just vacancies that occur during the
recess or vacancies that happen before the recess that continue during the
recess?

 Answer: It includes both. President can make appointments during recess of

the senate (when the senate is away/adjourned)

 "All vacancies" includes vacancies that occurred while the Senate was
in session and continue to the recess

 Logic is if the appointment is that important, senate won't

recess

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  Q3: Does this include pro forma recesses? (ie recesses that occur in short spurts
like congress only taking 3 days off?)

 Answer: A 3 day recess is too short to bring a recess within the scope of the
clause. The intra-session recess must be for a significant period of time in
order for the president to exercise his power of appointment

 The Senate is in session when it says it is, provided it retains the

capacity to transact Senate business

 Art I §5 Cl. 2 gives the senate the power to determine its own
rules of proceedings. As long as retains power to conduct
business the president cannot use his power of appointment

Separation of Powers and Foreign Policy

 What the Constitution says about foreign policy is limited, but:

o Art. I §8 grants Congress the power to regulate commerce with foreign nations, "To
declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water; To raise and support Armies " and "To define and punish
Piracies and Felonies committed on the high Seas, and Offences against the Law of
Nations"

o Art II says "The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called into the actual
Service of the United States" and also provides "that the president "shall have Power,
by and with the Advice and Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur"

 Supreme Court has often said that foreign policy questions are non-justiceable because they
are political questions (matters that the executive and legislature resolve without judicial
review)

 Scope of this section:

o Whether foreign policy and domestic affairs are different under the constitution?

o What are the constitutional limits on agreements with foreign nations?

o How is decision making authority over war power allocated?

Are Foreign Policy and Domestic Affairs Different Under the Constitution?

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  United States v. Curtiss-Wright Export Corp. - An otherwise unconstitutional delegation of
legislative power to the executive may nevertheless be sustained on the ground that its
exclusive goal is to provide relief in a foreign conflict.

o Issue: the constitutionality of delegation of power to the president in the area of foreign
policy

o Presidential powers in foreign relations deemed a broad power in this case

 BUT, Congress may be able President's power with respect to foreign relations

o Stands for proposition that president has great power with respect to foreign relations

Treaties and Executive Agreements

 Art II says "The President shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur"

o Big Issue: Executive Agreements vs Treaties

 A Treaty is an agreement between the US, negotiated by the president, and

ratified by the Senate.

 Executive agreement is an agreement between the US and a foreign nation

that is effective once signed by the president and the head of some other govt.

 Basically, if the document is labeled "Treaty" it needs senate ratification,

but if it's labeled "executive agreement" no need for ratification

 Executive agreements ARE constitutional

 States MUST comply with executive agreements, thus they prevail

over state law and policy as it is a Law of The Land under Article VI of
the Constitution

 Dames & Moore v. Regan, Secretary of the Treasury - The President has authority to
settle claims through executive orders where the settlement of claims is necessary for the
resolution of a major policy dispute between the United States and another country and
where Congress acquiesces to the President’s action.

War Time Powers

 Congress has the power to declare war and to raise and support an army and navy Under
Article I. President is the Commander in Chief Under Article II

38
  Little Exists with regard to questioning presidential power to use troops without congressional
approval or as to what Congress may do to suspend American involvement in war.

o Cases would probably be unjusticeable as political questions or lack of standing

 See War Powers Resolution (or not)

Recognition Power (new)

 Case below considered constitutionality of a federal law that allowed "Jerusalem, Israel" to be
the printed place of birth on passports for kids whose parents were American citizens, but kid
was born in Israel

o First time that a federal law limiting president's foreign affairs power declared
unconstitutional

 President has power to recognize foreign nations (not mentioned in Constitution)

 Zivotofsky v. Kerry - The President has an exclusive power of recognition, and, therefore,
Congress may not require the State Department to indicate in passports that Jerusalem is part
of Israel.

o Reception Clause - The President "shall receive ambassadors and other foreign
ministers." Art II §3

 In this case, GWB did not recognize any country (Israel) having sovereignty over
Jerusalem

 President has the SOLE power to recognize nations, so Congress telling him what's
what in this regard was unconstitutional

o Stands for proposition that President has the power, not congress, to determine what
country is put on birth certificate/passport

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Presidential Power and the War on Terror

 Considerations: When may the executive detain US enemy combatants and when, if all, are
military tribunals constitutional?

 Rasul v. Bush - US detainees have right to have habeas corpus petition heard in federal court

 Padilla v. Rumsfeld - Court held an American citizen held as an enemy combatant in the US could
not present habeas corpus in NY Court, but had to be refiled where he lived, in South Carolina

 Hamdi (below) issue was whether a citizen apprehended in foreign country could be indefinitely
detained as an enemy combatant without any form of due process

o Court rules he could be detained, but required a due process hearing

 Citizen held as enemy combatant in US must have due process

 Hamdi v. Rumsfeld - Due process guarantees that United States citizens held in the United
States as enemy combatants must be given a meaningful opportunity t o contest the factual basis
for that detention before a neutral decision-maker.

o Congress authorized president to "use all necessary and appropriate force against those
nations, organizations or persons he determines planned, authorized committed, or aided
the terrorist attacks" or "harbored such persons or organizations"

o President has executive authority to detain enemy combatants

 Enemy combatant = forces hostile to U.S. & the force must be engage din armed combat
against U.S.

 Under the AUMF (authorization for use of Military Force) can also detain American
Citizens associated with 9/11 attacks, but indefinite detention is NOT authorized due
to the "necessary and appropriate" language

o Every person detained in US is entitled to the availability of a writ of habeas corpus

o Matthews test: in order to detain must weigh the private interest affected by the official
action against the governments interest including the burden the govt would face in
providing a greater process

o When govt proves the person is an enemy combatant, the burden shifts to the person
to prove he falls outside the scope

 Initial detention on battlefield is ok, but continued detention requires due process

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  Boumediene v. Bush - Courts must provide detainees held as unlawful alien enemy combatants a
writ of habeas corpus to challenge their detention, or, if a writ of habeas corpus is not available,
provide an adequate substitute process to detainees that includes the same procedural
protections and opportunities that would be provided in a writ of habeas corpus.

o The Suspension Clause of the United States Constitution specifically included the English
common law procedure in Article One, Section 9,clause 2, which demands that "The
privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion or invasion the public safety may require it."

 three factors are relevant in determining the scope of the Suspension Clause with
respect to detainees:

(1) the citizenship and status of the detainee and the adequacy of the process that
determines the status;

(2) the nature of the sites where apprehension and then detention took place; and

 US has a great deal of control over Guantanamo despite it being in Cuba and
has for 100 years

(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

o CSRT hearings are limited and fall short of the procedures and adversarial mechanisms that
eliminate the need for habeas review. Even if the procedures are structurally sound, habeas
is needed under the Suspension Clause

o Where a person is detained pursuant to executive order, habeas review is necessary

regardless of citizenship

o ONLY entitled to SEEK writ of habeas corpus, not entitled to the writ itself

o Executive is permitted to detain the detainee for a reasonable period of time to determine
his status before a court entertains the detainees habeas petition

Military Tribunals

 Questions:

o Does Executive or Congress have power under the constitution to create Military Tribunals?

o Can Congress suspend Bill of Rights provisions in trying noncitizens accused of terrorism or
supporting terrorism?

o More broadly, how should the Constitution be interpreted in war time?

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 Ex parte Quirin - The United States Congress and President, through the Articles of War and
Executive Orders, may constitutionally place unlawful combatants on trial before a military
commission for offenses against the law of war.

o Congress has power to:

 provide for a common defense. Art 1 §8 Cl. 1

 Raise an army and navy. Art 1 §8 Cl. 12, 13

 To make rules for the govt and regulation of the land and naval forces Art 1 §8 Cl. 12, 14

 To declare war, grant letter of Marque and Reprisal and make rules concerning captures
on land and water. Art 1 §8 Cl. 11

 To define and punish piracies and felonies committed on high seas, and offenses against
the Law of Nations Art 1 §8 Cl. 10

 To make all laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this constitution in the govt. of the
US or in any Department officer thereof. Art 1 §8 Cl. 18

o President has the power to:

 Take care that the laws be faithfully executed Art 2 §3

 Be commander in chief of the army and navy. Art 2 §2 Cl. 1

 Appoint and commission officers of the US Art. H §3 Cl. 1

o In the Articles of War, congress provided rules for the army and navy, providing trial and
punishment for armed forces who violate

o Art of War also provide that military tribunals have jurisdiction to try offenders or offenses
against the law of war in appropriate cases

o Given this history the Fifth and Sixth Amendments do not restrict authority under the
constitution to try offenses against the law of war by military commission

 No jury trials for those charged by military commission

 Hamdan v. Rumsefeld - Court ruled that military tribunals pursuant to an executive order are
invalid, as they violate the Uniform Code of Military Justice and Geneva Accords, but congress
responded by enacting the Military Commission Act of 2006. SCOTUS invalidated restrictions on
habeas corpus that were included in this act in Boumediene

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Checks on Prosecuting the President; Impeachment

 Richard Nixon v. A. Ernest Fitzgerald - The President of the United States is entitled to absolute
immunity from suits for damages based on actions taken in his official capacity.

o PRESIDENT HAS ABSOLUTE IMMUNITY FROM CIVIL SUITS

 President stands in a unique position. As POTUS he must take care to ensure the laws of
the land are faithfully executed; conduct foreign affairs; etc

 The executive needs unrestricted power in order to do his job, otherwise lawsuits would
affect efficient government functioning

 Impeachment is still an option if POTUS takes advantage of his immunity

 POTUS is under a lot of scrutiny and still has congress keeping him in check. These
deterrents are sufficient to ensure he doesn't go "above the law"

 Clinton v. Jones - The United States Constitution does not grant the President of the United
States immunity while in office from suit for actions allegedly occurring prior to his assuming the
presidential office.

o PRESIDENT NOT IMMUNE FOR ACTS TAKING PLACE BEFORE HE BECOMES PRESIDENT

o Absolute immunity is inapplicable to acts of unofficial conduct

o Fitzgerald court - "the sphere of protected action must be related closely to the immunity's
justifying purposes"

o Immunity does not extend outside POTUS' official capacity

o Separations of Power argument by Clinton is shit because SOP is concerned with allocation
of power amongst the 3 branches

 SOP does not bar court having jurisdiction over POTUS; courts must have power to
determine the legality of unofficial conduct

Impeachment

 Art II §4 - "President and Vice President and all civil Officers of US shall be removed from
office by impeachment for, and on conviction of, treason, bribery, or other high crimes and
misdemeanors"

 Art I §2 - "House of Reps has sole power to impeach."

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  Art I §3 - Senate has the sole power to try impeachments and "no person shall be convicted
without concurrence of 2/3 of the members present"

Limits on Regulatory and Taxing Power

 Chapter focuses on national limits on state powers

 State/Local law may be invalidated when:

o Congress has acted; If congress acts the question is whether federal law preempts state
law. Under art VI "the constitution and the laws of the united states . . . Shall be the
supreme law of the land."

 If there is a conflict between state/local law and federal law, the state/locla law is
preempted

o Judiciary decides that federal law does not preempt state law

 State/local laws can be challenged under either the dormant Commerce Clause and Privileges and
Immunities Clause.

o Dormant Commerce Clause - Principle that state/local laws are unconstitutional if they
place an undue burden on interstate commerce

o Privileges and Immunities Clause Art IV §2 - "Citizens of each state shall be entitled to all
privileges and immunities of citizens in the several states"

 SCOTUS has interpreted this clause as limiting the ability of states to discriminate
against out-of-staters with regard to constitutional rights or important economic
activities.

 Most challenges have come from state/local laws regarding an out-of-staters

ability to earn a livelihood

Preemption of State and Local Laws

 Article VI Supremacy Clause - The Constitution and laws/treaties made pursuant to it are the
supreme law of the land. Federal law controls when it conflicts with a state law

o When state law is contrary to federal law, state law must yield -Ogden

o Two major situations where preemption occurs:

 Federal law expressly preempts state law

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  Clear congressional intent to preempt state law

 Implied preemption test:

 Conflict between federal and state law where compliance with state and
federal law is impossible

 State law impedes achievement of a federal objective; or

3. Federal legislation is so pervasive, congress left no room for state law to

supplement it

 Basically the question of whether state law is preempted by an act of congress depends on
congress's intent when enacting the federal statute

Express Preemption

 Express Preemption = Preemption is stated in the statute

o EG ERISA states that it supersedes all conflicting state law relating to employee benefit
plans

 Lorillard Tobacco Co. v. Reilly

(1) State cigarette advertising regulations are preempted by the Federal Cigarette Labeling and
Advertising Act, regardless of whether the state regulations are related to content or location.

(2) Under the First Amendment, a state may not constitutionally prohibit advertising, unless doing
so withstands the four-part analysis outlined in Central Hudson Gas & Electric Corp. v. Public
Service Commn. of New York, 447 U.S. 557 (1980).

Implied Preemption

 Conflicts Preemption

o If federal and state laws are mutually exclusive, so that a person cannot comply with
both, the state law is deemed preempted

 Florida lime v. Dept of Ag

o Case where CA prohibits sale of avocados containing less than 8% oil.

o Federal marketing orders contain no requirement of oil content, so federal law preempts
through implication (otherwise congress would have spoken to the issue of oil content)

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Preemption because State Law Impedes the Achievement of a Federal Objective

 If state and federal laws are not mutually exclusive, preemption will be found if the local law
impedes or interferes with a federal legislative goal

o Court must determine the federal objective and must decide the point at which state
regulation unduly interferes with achieving the goal

 Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commn. - A
federal law may preempt a state or local law, even if the laws are not mutually exclusive, if the
state law is deemed to impede the achievement of a federal objective.

Preemption because federal law Occupies the Field

 Preemption will be found if there's clear congressional intent to have federal law occupy the field

o EG alien registration; can't be registered by the state is completely dominated by the feds

 Holding was states cannot complement or contradict federal immigration law in Hines.
This includes when the state does not expressly say it preempts

 SCOTUS relied on Hines to say that SB1070 was preempted by federal law
(below)

 Arizona v. United States - A state law that addresses immigration and alien registration is
preempted where Congress has completely occupied the entire field.

o In this case, the feds occupied the field of alien registration.

o State contends that they are enforcing federal law, but imposing their own penalties for
federal offenses would conflict with the framework congress intended

 Comptroller of the Treasury of Maryland v. Wynne - The Court held that, to be permissible
under the dormant Commerce Clause, a tax scheme must satisfy the “internal consistency test,”
which asks whether the tax scheme in question would disadvantage interstate commerce if it
were applied identically in every state. If so, then the tax is unconstitutional. Because Maryland’s
tax scheme fails the internal consistency test, it is therefore unconstitutional under the dormant
Commerce Clause.

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  Dormant Commerce Clause - Principle that state and local laws are unconstitutional if they
place an unreasonable burden on interstate commerce

o CONGRESS has the power to regulate commerce under Art. I §8

o Congress can invalidate a state law if it places an undue burden on commerce

 Functions of the dormant commerce clause

o Authorization for congressional action
o Limiting state and local regulation

 Exceptions to Dormant Commerce Clause is if:

o congress approves the state or local action; or

o The "market participant exception; a state or local government may favor its own citizens in
receiving benefits from the state or local government in dealing with government-owned
businesses

Why a Dormant Commerce Clause?

 H.P. Hood & Sons, Inc. v. Du Mond, Commissioner of Agriculture & Markets of New York -
Under its dormant Commerce Clause powers, the judiciary, in the absence of congressional
action, may invalidate state and local laws that place an undue burden on interstate commerce.

o A state may not promote its own economic advantages by curtailment or burdening of
interstate commerce

 Neither power to tax not police power may be used by the state of destination with the
aim and effect of establishing an economic barrier against competition with the
products of another state or the labor of its residents

o Can regulate things to promote health and safety of the state and protect it from fraud

o System is in place to give farmers and craftsmen free access to every market in the nation
and to protect consumers from exploitation by their state.

 Arguments justifying a dormant Commerce Clause:

o Framers intended to prevent states from interfering with commerce

o Economic justification; economy is better off without state laws impeding interstate
commerce

o Political justification; states and citizens should not be harmed by laws in other states where
they lack representation

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  Dormant commerce clause borne out of: (1) Congress's exclusive power to regulate commerce;
(2) Congress's silence on the issue is enough to justify that it preempts state legislation

 Arguments against DCC:

o Constitution could have included a provision prohibiting states from interfering with
interstate commerce

o Congress can act to invalidate laws that unduly burden interstate commerce

o Argument is essentially that deciding these issues shouldn't be for unelected judiciary
(SCOTUS)

 Argument is both separation of powers (reviewing state laws should be done by

Congress only) and federalism (minimizing instances where state and local laws are
invalidated)

Dormant Commerce Clause Before 1938

 Aaron B. Cooley v. The Board of Wardens of the Port of Philadelphia - In the absence of
definitive congressional regulation, federal rules apply to business that requires uniformity of
treatment among several states, and business characterized by local peculiarities is governed by
legislative decisions passed by the states.

o Test no longer used

Contemporary Test for the Dormant Commerce Clause

 Modern test is based on balancing the benefits of a law against the burdens it imposes on
interstate commerce (see 2 cases below)

 South Carolina State Highway Dept. v. Barnwell Bros., Inc. - When Congress has not acted, if a
state regulation does not discriminate against interstate commerce and the state legislature has a
rational basis for adopting the regulation based on safety or economic interests, the Court must
defer to the judgment of the state legislature in holding the regulation constitutional.

 Southern Pacific Co. v. Arizona Ex Rel. Sullivan, Attorney General - In the absence of
congressional legislation, when a state law purports to place equal burdens on interstate and
intrastate commerce, but the practical effect of the state’s regulation places a greater burden on
interstate economic interests, the judiciary may balance the relative burden on the interests and
strike down the state law.

o When the regulation concerns state matters and slightly interferes with commerce as a
consequence, such regulation is generally within the state's authority

o Train limit law in AZ is unduly burdensome on commerce (length between changing cars
results in more operating costs)

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 o The danger of accidents and personal injury by longer trains not offset by the increase in the
number of accidents resulting from larger trains when train lengths are reduced

o Court must weigh state interests against the needs of interstate commerce

Determining Whether a Law is Discriminatory

 The balancing test varies depending on whether the state or local law discriminates against
out-of-staters or treats both in and out-of-staters alike.

o If court feels it discriminates against out-of-staters, there's presumption it is against the

law and will be upheld only if it is necessary to achieve an important purposes

o If court feels it's nondiscriminatory then the presumption is in favor of upholding the
state law and will only be invalidated if the burdens on interstate commerce outweigh its
benefits.

Facially Discriminatory Laws

 Facially discriminatory laws - Law clearly favors in-staters over out-of-staters

o EG in 2005 law struck down where state allowed in-state wineries to sell wine through the
mail, but not out-of-staters

 Most cases on facially discriminatory laws involve environmental issues (see case below dealing
with solid waste disposal)

 Philadelphia v. New Jersey - The crucial inquiry is whether a protectionist measure can be viewed
as a law directed to legitimate local concerns, with effects upon interstate commerce that are
only incidental

o NJ law saying you cannot import solid waste for disposal without State approval is facially
discriminatory and is unconstitutional under the dormant commerce clause

o In this case, the commerce clause will protect new jersey in the future if they need to send
waste to Philly just as it protects Philly in allowing them to send waste to NJ. Law in this case
was not absolutely necessary to achieve the purpose

o States cannot isolate themselves

 Other laws have dealt with protecting natural resources for use by their own residents. See below

 Hughes v. Oklahoma - States may not enact facially discriminatory laws to conserve their
natural resources unless those laws are determined, under strict scrutiny, to further a legitimate
local purpose and there are no nondiscriminatory options available for reaching that purpose.

o OK law said you couldn't ship minnows out of state

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 o When discrimination against commerce is demonstrate, the burden falls on the State to
justify the benefits of the statute and the unavailability of non-discriminatory alternatives to
preserve the local interest at stake

o Here there are equally effective nondiscriminatory conservation matters as far as

conserving the minnow population of OK goes. E.G., state could have licensed only certain
minnow dealers or had a regulation controlling how many minnows are sent out of state

 Court has held that reciprocity requirements - a state allowing out-of-staters access to markets
and resources only if that state grants similar benefits - as facially discriminatory

Facially Neutral Laws

 SCOTUS has held that facially neutral laws can be discriminatory if they either have the
purpose or effect of discriminating against out-of-staters

 Exxon Corp. v. Governor of Maryland - Under the Commerce Clause, a state may enact
legislation that creates hardships for some interstate companies operating in the state, provided
the statute does not discriminate against or unduly burden interstate commerce.

o Interstate commerce is not subjected to an impermissible burden simply because an

otherwise valid regulation causes some business to shift from one interstate supplier to
another

o The dormant commerce clause protects interstate market from prohibited burdensome
regulations, not particular interstate firms

 Facially neutral laws can be found to be discriminatory if they were enacted to protect in-
staters at the expense of out-of-staters

 West Lynn Creamery v. Healy - A tax on out-of-state milk that goes solely to dairy farmers but
does not benefit the state as a whole is discriminatory. A state may not benefit in-state economic
interests by burdening out-of-state competitors

o Nondiscriminatory measures like an evenhanded tax are generally upheld even if they have
an adverse impact on out-of-state because major in-state interests are adversely affected
(thus it’s a powerful safeguard against legislative abuse)

o BUT a nondiscriminatory tax coupled with a subsidy to one of the groups hurt by the tax
doesn't prevent legislative abuse because it is eliminated by the subsidy

 State of Minnesota v. Clover Leaf Creamery Co. - A state law that has the practical effect of
discriminating against interstate commerce will not be struck down unless the burden it places on
interstate commerce is clearly excessive in relation to the putative local benefits it confers.

o Court finds no discriminatory purpose

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 o Because most dairies package milk in different containers, the inconvenience of having to
conform to different packaging requirements in MN and surrounding states is slight

o Additionally, not burdensome in light of the state's interest (conserving energy and other
resources)

 Summaries

o If a state law purporting to promote environmental purposes is in reality "simple economic

protectionism," we have applied a "virtually per se rule of invalidity."
o Even if a statute regulates "evenhandedly," and imposes only "incidental" burdens on
interstate commerce, the courts must nevertheless strike it down if "the burden imposed
on such commerce is clearly excessive in relation to the putative local benefits."
o Moreover, the extent of the burden that will be tolerated will of course depend on the
nature of the local interest involved, and on whether it could be promoted as well with a
lesser impact on interstate activities.

Analysis if a law is Deemed Discriminatory

 If Court finds the law is discriminatory and burdens interstate commerce, burden is on State to
show legitimate local interests. Case below shows how a state's discriminatory law can survive

 Maine v. Taylor & United States - States may prohibit the importation of out-of-state goods
moving within the flow of commerce as long as the prohibition serves a legitimate local purpose,
and there are no available less discriminatory means to accomplish that same purpose.

o Statute in this case banned shipment of minnows to Maine from out of state

o The state's regulation must be essential to the protection of local health interests/safety

o Court must distinguish whether the state statute burdens commerce incidentally or
affirmatively

 If it affirmatively discriminates, the state must show that the statute serves a
legitimate state purpose and the purpose could not be served by other
nondiscriminatory means

o In this case, evidence showed out of state minnows contain parasites and that the minnows,
if introduced into lakes, would compete with native minnows for food and could eradicate
the local species. Additionally, it physical inspection of so many minnows in huge shipments
would be impossible and parasite detection would destroy the fish

Analysis if the law is deemed Nondiscriminatory

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  If the court finds that the law is nondiscriminatory (meaning it applies to both in and out of
staters), the State must only show that the state benefits outweigh the burdens on interstate
commerce

 Pike v. Bruce Church, Inc. - A state law that furthers a legitimate local public interest and only
incidentally affects interstate commerce will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits.

 The power of the State to regulate highways is broad and pervasive; thus Courts give a lot of
deference if the state's objective is to promote interest in highway safety despite the law being
burdensome on interstate commerce

o Safety measures carry a strong presumption of validity

 Consolidated Freightways Corp. of Delaware v. Raymond Kassel - The Commerce Clause is

violated when a state statute imposes a burden upon a trucking company without any
countervailing significant safety interest.

o Court in this case found that Iowa's ban on 65 ft trailers on their highways was unduly
burdensome cause evidence showed that both are equally safe.

o Despite 65 ft trailers being more subjectable to jackknifing, they were less susceptible to
wind and create less splash and spray.

o In this case the burdens on commerce (using only 55ft trailers; not going through Iowa with
65 fts; or changing trailers between states) were excessive compared to the safety pros and
cons

 Courts have consistently found that regulating conduct of out-of-state businesses are
unconstitutional

o EG controlling conduct in other states such as regulating the sale of stock that occur outside
the state (shit should be left up to congress)

Summary

 State laws that discriminate against out-of-staters are almost always unconstitutional

o Law only allowed if it can be proven that the law is necessary and no other less-
restrictive means are available to achieve a nonprotectionist purpose

 If a law does not discriminate against out-of-staters, the court balances the burdens on
interstate commerce vs the benefits to the state

 Inquiry is fact-intensive

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Exceptions to Dormant Commerce Clause (when states can regulate commerce)

 Congress can approve a state law that affects interstate commerce

 Market Participant Exception - State may favor its own citizens in receiving benefits from
govt programs or in dealing with govt-owned businesses

Congressional Approval

 SCOTUS has held that the Constitution empowers Congress to regulate commerce among
states and state and therefore the laws burdening commerce are permissible, even when
they violate the dormant commerce clause, if they have been approved by Congress

o If SCOTUS deems a state law violates the dormant commerce clause, congress can
enact a provision approving the action, thereby overruling Supreme Court

o Congress can approve discriminatory state taxes as well

 Western & Southern Life Insurance Co. v. State Board of Equalization of California - Congress
may authorize state laws that would otherwise violate the dormant Commerce Clause.

o If Congress ordains that states may freely regulate an aspect of interstate commerce,
any action taken by a state within the scope of that authorization is rendered
invulnerable to Commerce Clause Challenges

 BUT even if the laws are permitted to violate the Commerce Clause, the laws can still be
challenged on the Equal Protection Clause and Privileges and Immunities Clause

Market Participant Exception

 Market Participant Exception - State may favor its own citizens in receiving benefits from
govt programs or in dealing with govt-owned businesses

o In other words, if the state is literally a participant in the market, such as a state-owned
business, and not a regulator, the dormant commerce clause does NOT apply

o EG State law that requires minimal documentation for scrapping cars by in-state scrap
processor, but more documentation for out-of-staters

 Reeves, Inc. v. Stake - Under the market participant exception to the Commerce Clause, when
a state government acts as a market participant rather than a market regulator, it may favor
its own citizens in commercial dealings.

o Law in SD said that during shortage they could limit sale of cement they produce to their
residents only

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 o As a market participant, the state can decide whom they deal with exclusively

 EG, saying construction projects funded by city must have a crew of at least half boston
residents held constitutional

 The market-participant doctrine allows a state to impose burdens on commerce in the

area in which it participates, but it cannot impose a substantial regulatory effect outside of
that market

o EG Alaska sold wood inside of it borders, but it could not impose a condition that the
wood be cut in Alaska prior to being shipped (plaintiff in that case sold wood raw and
had no need for it to be cut)

Privileges and Immunities Clause

 Privileges and Immunities Clause (Art. IV §2) - "Citizens of each State shall be entitled to all
privileges and Immunities of Citizens in the several states"

o Has been interpreted by SCOTUS as limited ability of state to discriminate against out-
of-staters with regard to fundamental rights or important economic activities.

 Prevents states from discriminating against citizens of other states in favor of its
own unless substantially related to achieving a substantial state interest

 Citizen = U.S. citizens (does not apply to aliens or corporations)

Differences between Privileges and Immunities Clause and Dormant Commerce Clause

 P&I can be used only if there's discrimination against out-of-states. The DCC Can challenge
local laws that burden interstate commerce regardless if they discriminate against out-of-
staters (but DCC will much more likely lead to a discriminatory law being found invalid)

 Corporations and aliens can sue under DCC but not under P&I Clause

3. No market participant exception or "act of congress" exception under the P&I clause

Analysis under P&I Clause

Basic Questions:
1. Has the State discriminated against out-of-staters?
2. If there is discrimination, is there sufficient justification for the discrimination?

What are Privileges and Immunities?

 P&I Clause protects interests that are fundamental;

o Protection by govt

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 o Enjoyment of life and liberty
o Right to acquire and possess property
 BUT all subject to restraints that the govt by justly prescribe for the general good
of the whole

 Court only applies P&I in 2 instances:

1. When a state is discriminating against out-of-staters with regard to constitutional

rights (civil liberties); and

2. When a state is discriminating against out-of-staters with regard to important

economic activities

 No other arguments permitted under P&I unless it violates either of these 2

 EG State law limiting ability of out-of-staters to obtain an abortion rendered

unconstitutional under P&I clause; but law discriminating against out of state
hunters was ok

 Majority of P&I cases deal with out-of-staters ability to earn a livelihood

 EG SC law saying in-staters had to pay $25 to fish for shrimp but out of
staters pay $2,500 unconstitutional under P&I

 SC had to demonstrate that non-citizens are the source of the evil at

which the statute was aimed

What Justifications are Sufficient to Permit Discrimination?

 THERE MUST BE :
(1) SUBSTANTIAL REASON FOR DIFFERENTIAL TREATMENT; AND

(2) THE DISCRIMINATION AGAINST NONRESIDENTS MUST BEAR A SUBSTANTIAL

RELATIONSHIP TO THE STATES OBJECTIVE

 Supreme Court of New Hampshire v. Kathryn A. Piper - States may discriminate against rights
of out-of-state residents as long as there is a substantial reason for the difference in
treatment, and the discrimination practiced against nonresidents bears a substantial
relationship to the state’s objective.

o If state can pursue its interest through less restrictive means, the discriminatory law will
likely not be upheld

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 McBurney v. Young - The Virginia FOIA neither deprived petitioners of a protected privilege or
immunity nor regulated commerce in any meaningful sense

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