Bloom Bible

Con Law 1L Spring / Bloom
I. CREATION OF THE CONSTITUTION

1) Historical Background
a. The Articles of Confederation

i. The Constitution was not the first “constitution;” the Articles of Confederation were.
ii. The AoC were created in 1777, ratified in 1781.
iii. Problems with the AoC included:
1. “A lame excuse” for organizing a government,
2. Doesn’t resemble the typical notion of a constitution,
3. States were not ready for a centralized government,
4. No Executive or Judicial Branch; only a unicameral Congress,
5. Government retained no power to tax; thus, no source of revenue to fund the
government,
6. No means of effectively dealing w/ foreign affairs w/o an Executive branch, and
7. No power to police disputes between states; each state was treated as a foreign
country.
b. The Constitutional Convention from a high level

i. There were two attempts at a constitutional convention before what we know as the
Constitutional Convention.
1. The first attempt occurred in 1785 at George Washington’s home in Mount
Vernon, Virginia. This convention was gathered to focus on the dispute over the
Potomac River: did Maryland or Virginia have ownership rights to the fish within?
Following this convention, the thinkers in attendance determined that there were
problems far greater than fish ownership that needed addressing.
2. The second attempt at a constitutional convention occurred in 1786 in Annapolis,
Maryland. However, only five states sent delegates and, because there was no
authority, it was comprised solely of a debate.
3. The third convention was what we know as the Constitutional Convention.
ii. The CC occurred from June to September of 1787.
iii. The CC was held in Philadelphia, Pennsylvania.
iv. All states were entitled to send as many delegates as they pleased, however each state
would only have one vote.
1. All states sent delegates, EXCEPT for Rhode Island.
v. One purpose of the CC was to remedy problems with the AoC (see above).
1. However, the delegates soon realized that the AoC was so flawed that an
amendment was not a viable solution; the AoC needed to be scraped and replaced.
a. They justified this decision with the rationales that they were draftsman
only; the states would have to enact the proposed Constitution
vi. Another purpose was to address immediate problems in the country, including:
1. Tremendous war debt and an inability to pay it off,
2. Problems of inflation and recession resulting from the war,
3. Hostility between states, including the imposition of trade barriers and debtor relief
laws against each other,
4. Threats from France, Spain, and Britain who all had interests in North America,
threatening the new nation, and
5. Lack of funds to support a national government.
vii. Washington was elected to be chairman of the CC.
viii. James Madison took detailed notes, considered to be the best source of what happened at
the CC. However, these notes captured only around 25% of the CC because Madison was
an active participant.
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1. Madison’s notes are highly revered because they were not changed ex post facto.
In fact, Madison’s notes were placed under seal until his death because of his
determination to not influence the interpretation of the text of the Constitution.
ix. James Madison is considered to be the “father” of the Constitution.
x. Committees of the CC
1. Committee on Detail: Intended to flush out the drafted proposals of the
Constitution (sort of like an editor). However, the Committee on detail took some
liberties and added in a few, never discussed items.
2. Committee on Style: Intended to put the Constitution into a coherent and
understandable style—without making any substantive changes. However, the
committee changed a few words that are arguably substantive.
3. Committee on Postponed Items: Intended to address items that the CC lacked time
to discuss.
xi. Main contributions of the CC
1. Scrapped the AoC for a new constitution
2. Ratification (see below)
xii. THE CONSTITUION WAS SIGNED ON SEPTEMBER 17, 1787.
1. George Mason, Elbridge Gerry, and Edmund Randolph did not sign it.
c. The Virginia Plan via the Constitutional Convention

i. Madison—along with the Virginia delegation—proposed the Virginia Plan.
ii. The VP advocated for:
1. A strong central government, consisting of three branches.
2. A bicameral legislature w/ all elected positions based on state population,
3. The legislature would have the power to invalidate state laws,
4. The executive branch to be appointed by the legislature, and
5. The executive and judicial branches would combine to form the Council of
Revision which could invalidate both state and federal laws.
d. The New Jersey Plan via the Constitutional Convention

i. Small states responded to the Virginia Plan with a plan of their own: the New Jersey Plan.
ii. The NJP resembled the AoC, more so than the VP.
iii. The NJP advocated for:
1. A more restrained government than the one proposed in the VP,
2. A unicameral legislature w/ each state having equal representation in the form of
one vote,
3. The executive branch was appointed by the legislature and could be removed at
will by the legislature, and
4. The Supreme Court had limited JDX.
e. Divisive Issues Between Delegates at the Constitutional Convention

i. Legislative Representation
1. Essentially, large states versus small states.
a. The larger states were committed to representation based on population.
b. The smaller states were committed to equal representation, regardless of
size.
2. The Great Compromise
a. The Great Compromise resolved the representation division by creating a
bicameral legislature consisting of
i. The House of Representatives: Elected based on population
ii. The Senate: Equal representation
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1. Under the AoC, senators from the same state had to vote
as a collective unit. Under the Constitution, each senator
had an individual vote.
b. The 3/5 Clause: Slavery created a representation issue. How should slaves
be accounted for in the population?
i. The South argued that slaves = countable for population.
ii. The North argued that slaves = property, thus ≠ people.
iii. Compromise = 1 slave counted as 3/5 of a non-slave.
ii. Slavery
1. The South wanted to protect slavery via the Constitution.
a. The South was so adamant on their position that they held the Convention
hostage by refusing to sign the Constitution if it went directly against
slavery.
2. The North wanted to undermine slavery via the Constitution.
3. The result was three indirect provisions/mentions of slavery in the Constitution:
a. Article I § 9: Slave trade could not be abolished before 1808,
b. Article IV § 2: The Fugitive Slave Act—requiring a slave escaped from
one state to be returned by the government of the other state, and
c. Article I § 3: The 3/5 Clause (see above).
iii. The Executive
1. There was much debate as to what the office of the executive should look like:
should there be a chief executive? Should the executive be a committee? Was the
executive a hereditary position? Was an executive elected for life or terms? Etc.
2. The main concern was to avoid monarchy that the states had just escaped via war.
f. Ratification of the Constitution

i. Ratification, this time around, was changed by the CC delegates.
1. A unanimous vote (required by the AoC) among the states was highly impossible
because Rhode Island was not in attendance.
2. Instead, only 9 of 13 states needed to ratify to enact the Constitution.
3. Madison’s rationale behind such a change was that it removed the power to ratify
from the delegates and gave it to the states; they could easily reject it.
ii. The Constitution was sent to Congress to forward to the states for ratification.
iii. There was much debate amongst the states about ratifying.
1. The Federalists were those who favored the Constitution, wanting a relatively
centralized government.
2. The Anti-federalists were opposed to the Constitution on various grounds,
including:
a. The Constitution created too powerful of a government,
b. A large republic would fail to function effectively in preserving liberty,
c. There was no Bill of Rights.
iv. New Hampshire was the ninth state to ratify.
v. However, even with nine states, both Virginia and New York had yet to ratify; these were
recognized as critical states, without whom, the Constitution would fail.
1. New York ratified, following the NY convention and the Federalist Papers (see
below).
2. Virginia ratified following the great debates between the Federalists—represented
by Madison—and the Anti-federalists—represented by Patrick Henry.
vi. Eventually, all 13 states ratified the Constitution by 1790.
vii. THE CONSTITUION WAS SIGNED ON SEPTEMBER 17, 1787.
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g. The Federalist Papers

i. The Federalist Papers were a collection of short essays published to persuade votes in favor
of the new Constitution.
ii. They were written as a response to Anti-federalist arguments.
iii. The Federalist Papers specifically targeted New Yorkers to influence their votes.
iv. The Federalist Papers were written by Madison, John Jay, and Alexander Hamilton.
1. They used the pseudonym: Publius.
v. In total there were around 83 essays.
vi. The Federalist Papers could easily be propaganda, despite the quality information they
included on the Constitution.
vii. The most popular essays were the Federalist #10 and Federalist #51.
1. Federalist #10
a. Addresses the question of how to reconcile citizens with interests contrary
to the rights of others.
b. Madison agreed that factions were inevitable due to the nature of
i. Factions = group of citizens who are united by some common
passion or interest adverse to the rights of other citizens or to
interest of the community.
c. However, Madison also argued that a representative republic form of
government is more effective against factions than a direct democracy.
i. Destroying liberty to eliminate factions would be worse than
disease.
ii. Representation serves as a filter to engage in deliberations and
evaluate the people’s want.
2. Federalist #51
a. Addresses means by which appropriate checks and balances can be created
in government and also advocates a separation of powers within the
national government.
i. Separation of powers = checks and balances
ii. Ambition must be made to counteract ambition.
h. The Bill of Rights

i. During his run for Congress, Madison argued that, if elected, he would push for a Bill of
Rights.
1. Thus, Madison is called the father of the BoR.
2. Madison favored the BoR as a means of quieting the Anti-federalists’ opposition to
the Constitution.
ii. Originally, 17 amendments were proposed.
iii. Following an open debate in the House of Representatives and a closed debate in the
Senate, Congress approved 12 of the amendments.
1. The amendment to decrease the size of legislative districts was not ratified.
2. The amendment to prevent Congress from raising its salary during an existing
congressional session was not ratified.
a. Eventually ratified—200 years later—as the 27th Amendment.
iv. THUS, the first 10 Amendments are the BoR.
v. One major discussion involving the BoR was placement: should they be inserted
throughout the Constitution or included at the end? Obviously, the end won out.
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II. JUDICIAL REVIEW
In the United States, judicial review is the ability of a court to examine and decide if a statute, treaty or
administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately
the Constitution. While the Constitution does not explicitly define a power of judicial review, the authority for
judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.
 SCOTUS may review only state court decisions based on federal law. Even if there is a federal question in
a state court case, SCOTUS may not review the case if the same result would be reached had the state court
answered the federal question different.
 The Theory of Judicial Review is an implied—not a substantive— power.
1) Marbury v. Madison: SCOTUS / Marshall, 1803
a. Historical Context
i. President Washington surprised everyone by announcing he would not run for reelection
for a third term.
ii. Thus, during the 1796 election, John Adams ran against Thomas Jefferson.
1. Adams won.
2. AND Jefferson became his vice president.
a. A peculiarity of the Constitution, at the time, was that the candidate with
the most electoral votes was elected president. And the candidate with the
second most votes was elected vice president. This happened regardless if
the candidates were running against each other.
b. Eventually, Jefferson quit following hostile treatment.
iii. During the 1800 election, Adams again ran against Jefferson.
1. Jefferson won.
a. This was the first time in political history where the presidential party
switched after the election (from Republican to Democratic-Republican).
b. Also, Jefferson’s vice-presidential candidate, Aaron Burr, received equal
elector votes as Jefferson. So, A TIE.
i. Under the Constitution, a tie was to be broken by the HoR. After
36 ballots, the HoR elected Jefferson.
iv. In its waning days, the Adams presidency:
1. Passed the Circuit Courts Act which created 16 circuit court judges and abolished
circuit riding.
a. Adams appointed 16 Federalists to these judgeships.
2. Created 40 justices for the peace for DC.
a. Adams hurried to fill these justiceships with Federalists.
b. However, Adams struggled to fill sign and seal the commissions of all the
justices.
c. Adams ask John Marshall- who was serving as both Adams Secretary of
State and newly appointed Chief Justice—to help seal the commissions.
d. Before leaving office, Adams was unable to deliver four of the
commissions, including one for Marbury as Justice of Peace.
v. When Jefferson came into office, his D-R Congress was greatly offended by Adams last
acts, so they repealed the Circuit Courts Act and abolished the roles of the tenured, Article
III judges completely.
b. Procedural History
i. Marbury sued, arguing entitlement to his undelivered commission. He demanded he be
given his justiceship in DC.
1. Marbury was specifically seeking a writ of mandamus.
2. Marbury sued Madison because Madison failed to deliver his commission.
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ii. Marbury brought suit directly to SCOTUS.
1. This is unusual, as most other cases are brought to a trial court.
a. Today, very few cases are decided in the original JDX of SCOTUS. The
most common case is a border dispute.
2. A reason that SCOTUS is not a good initial venue is because of the significant
amount of factual finding required for a case; appellate courts of any level are not
equipped for this.
3. To prove his case, Marbury had to show, as a factual matter that:
a. A commission in his name had been signed and sealed, and
b. The commission had not been delivered.
i. The best person to testify to these points was, of course, Marshall
who couldn’t because he was sitting on SCOTUS. They eventually
find a clerk who can testify.
iii. The government—specifically, Secretary of State James Madison—was not represented in
this case; it did not show up to argue its position.
iv. The case was brought in 1801. However, the argument and decision did not occur until
1803 because Congress canceled SCOTUS’s 1802 term to avoid the reinstitution of the
Circuit Court Act.
c. Issues: High Overview

i. Marshall ordered the issues of the cases as follows:
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of this country afford
him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from the court?
a. Is mandamus the correct remedy that should be applied?
b. Is it within the power of the court to bring mandamus?
ii. Marshall has been criticized as to his choice of ordering the issues because a court’s first
duty is to determine if it has JDX. However, Marshall only addresses the issue of JDX
AFTER discussing significant substantive issues (such as the ability to subject a cabinet
member to the process of the court).
1. Jefferson was particularly critical.
d. Issue 1: Has the applicant a right to the commission he demands?

i. As Justice of Peace, Marbury would serve a term of years, and would not have a life
appointment under the Article I Court; a term of years is a legal right that can be hold for a
period of time.
ii. According to the facts, the commission was signed by President Adams and sealed by
Secretary of State Marshall.
1. Marbury argued the right vested when the commission was signed and sealed.
iii. At the time, there were two competing analogies at CL, similar to the commission:
1. Patents: A patent is valid once is signed and sealed, regardless of delivery.
2. Deed in Property: A deed in property is never legally binding without delivery.
iv. Marshall went with the patent analogy; Marshall did not cite any authority to support his
conclusion.
1. Marshall’s critics argued that the commission must also be delivered; delivery
crucial to the vesting of a legal right.
2. Had Marshall gone with the Deed in Property, he would have
v. Holding: Marbury does have a right to his commission as Justice of the Peace because he
was lawfully appointed to that position by the President’s act of signing his commission,
further enforced by his confirmation in the Senate.
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e. Issue 2: If he has a right, and that right has been violated, do the laws of his country afford him a
remedy?
i. Blackstone—the leading authority on the CL of both England and the US—states that
“where there is a legal right, there is also a legal remedy by suit or action at law whenever
that right is invaded.”
ii. The exception to this is that the court has no role in second guessing political or
discretionary decisions by the President or his cabinet members.
1. Political Question Doctrine: Ultimately, the question is if it is a political action or
a legal duty. The court only has authority to hear and decide a legal question, not a
political question
iii. Marshall argues that this case involves a clear legal duty: a ministerial process of sealing
documents. Further, he argues that a ministerial remedy against a high government official
does not deeply intrude into the executive’s operation of his own department.
1. Marshall implicitly assumes that he can serve his process on the Secretary of State
who is then bound to comply.
iv. Holding: Marbury was appointed by a legal act of the President. He was given legal title to
the office of Justice of the Peace for the duration of his appointment. Thus, Madison’s
refusal to finalize Marbury’s appointment interferes with Marbury’s legal title. Marbury is
entitled to a remedy under federal law.
f. Issue 3a: Is mandamus the correct remedy that should be applied?

i. Mandamus = a judicial writ issued as a command to an inferior court or ordering a person
to perform a public or statutory duty
1. Bloom’s definition = “power of court to carry out a particular legal duty”
ii. Mandamus is an extraordinary equitable duty, usually given when there is no legal remedy
(monetary damages).
iii. In general, courts do not grant mandamus against public officials.
1. When you have a case of someone who has been wrongfully dismissed from a
government position, rather than giving the position back, the usual remedy is
damages.
a. Marshall addresses this, but such a remedy would require valuing the
position.
iv. Marbury argues for mandamus, requesting that a government official perform his specific
duty of awarding his commission.
v. Holding: A write of mandamus is an appropriate remedy, HOWEVER…
g. Issue 3b: Is it within the power of the court to bring mandamus?

i. Marshall’s interpretation of the Judiciary Act
1. § 13 of the Judiciary Act of 1789: The Supreme Court shall also have appellate
JDX from the circuit courts and courts of the several states, in the cases herein
provided for; and shall have power to issue… writs of mandamus, in cases
warranted by the principles and usages of law, to any courts appointed, or persons
holding office, under the authority of the United States.
2. § 13 defines original JDX in a limited way, say that the JDX is not self-executing
and needs to be granted by an act of Congress.
3. There are three possible ways to read § 13:
a. § 13 gives SCOTUS original JDX over writs of mandamus against public
officials.
i. Marbury argues under this reading.
ii. Marshall chooses to apply this reading.
b. § 13 gives appellate courts JDX over writs of mandamus.
c. The writ of mandamus has nothing to do with the granting of JDX to a
court. If the court has JDX over some other basis, then it can grant a writ
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of mandamus with that JDX. Seeking a writ of mandamus does not, in
itself, create JDX.
i. Bloom calls this “the most accurate reading.”
ii. After this case, Congress amended § 13 to say just this.
4. Marshall chooses to interpret § 13 to give original JDX over a writ of mandamus.
5. This interpretation puts him in direct collision with Article III of the Constitution.
ii. Marshall’s interpretation of Art III
1. Art III, § 2 of the Constitution: In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a state shall be a party, the Supreme
Court shall have original JDX. In all other cases before mentioned, the Supreme
Court shall have appellate JDX, both as to law and to fact, with such exceptions…
2. There are three plausible readings of Art III:
a. There is a firm line between what is original JDX and what is appellate
JDX.
b. Certain exceptions allow JDX to change from appellate to original.
c. Art III is a temporary starting place; in other words, Congress created a
basic division of JDX, but presumed readjustments through the Exceptions
and Regulations Clause.
3. Marshall chooses to interpret Art III to as giving a firm line between JDXs.
4. Also, Marshall conveniently leaves out the Exceptions and Regulations Clause.
a. This is a clause that grants Congress the power to make exceptions to the
constitutionally defined appellate JDX of the SCOTUS.
iii. The Conflict between the Judiciary Act and Art III
1. The conflict between the Judiciary Act and Art III is an issue because a federal
judge should normally choose a reading that aligns with the Constitution because:
a. Such a reading defers to the legislature and assumes that Congress
understood the Constitution and did not mean to pass an unconstitutional
statute,
i. The Judiciary Act was written and passed by the very first
Congress, which was composed of 20+ individuals who had been
delegates at the CC. Indeed, the primary draftsmen of the Act—
Oliver Ellsworth and William Paterson—were both members of
the first Congress. Presumably, if there was a Congress aware of
the meaning of the Constitution, it was the first one.
1. It is rare, especially today, for any court to strike down an
act of the first Congress for this reason; first Congress is
given extreme deference.
a. Ironically, Paterson concurs with Marshall’s
opinion.
b. Constitutional errors are more difficult to correct (via amendments), and
c. There is a well-recognized canon of construction: if there are two plausible
readings of a statute, one constitutional, one non-constitutional, then the
court should virtually always adopt the reading that saves the statute.
iv. Holding: The Act is unconstitutional because it seeks to expand the Supreme Court’s
original JDX and therefore JDX over Marbury’s claim cannot be exercised.
h. Another Issue: Should Marshall have recused himself?

i. The court does not address this issue at all but they certainly should have.
ii. Marshall was a significant participant in the underlying events leading up to the case (he
sealed the commissions himself).
iii. A modern justice would certainly have been forced to recuse himself.
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i. Marshall’s Judicial Review Thesis
i. Firstly, Marshall’s argument is based off of Hamilton’s arguments in favor of judicial
review that was included in the Federalist Papers. He forgot to give cred.
ii. Marshall sets forth his judicial review thesis, comprised of multiple arguments by which he
establishes that the court has a right to invalidate a statute of Congress.
iii. Note, the Constitution does not explicitly recognize or prohibit judicial review.
iv. Steps to Take When Conflict Arises Between a Law and the Constitution
1. It is the people’s right to set the fundamental principles inherent in their
governmental structure.
a. The Constitution is made to last because it is established by a major
exercise of popular authority.
2. The Constitution is one of limited powers that are enumerated.
a. Its point was to prevent real abuse of power.
3. The Constitution is written.
a. Written format provides something tangible to abide by.
b. Fun fact, the English constitution was not in writing.
4. The Constitution is intended to be the law.
5. More so, the Constitution is intended to be the supreme law.
6. The courts decide cases based on applicable law.
7. In case of conflict, the supreme law governs/takes precedence.
8. Otherwise, there are no limits on power.
v. This argument is a structural one.
1. Marshall looks at the basic structure of the document and the purposes of the
framers to resolve conflict between an act of Congress and the Constitution,
specifically to determine the ability of a court to invalidate legislation.
2. The framers intended the Constitution to (1) limit the government, (2) keep checks
on power, and (3) give the court the power to resolve conflict.
vi. This argument does not rely on:
1. Original understanding because he wasn’t a member of the CC; or
2. Precedence because there is none.
j. Marshall’s (basically useless) Textual Arguments for Judicial Review

i. Art III gives the federal courts JDX over all suits arising under the Constitution: the
judicial Power shall extend to all cases, in Law and Equity, arising under the
Constitution…
ii. Judge’s Oath: Every judge takes an oath to support the Constitution and would be in
violation of that oath if they upheld unconstitutional laws.
iii. Supremacy Clause: STATE judges must apply the Constitution as the supreme Law of the
Land. If state judges can decide federal laws are unconstitutional, certainly SCOTUS has
the same power.
k. Rule: The Supreme Court of the United States, via Article IV § 2, ¶ 2 of the Constitution, has the
authority to review laws and legislative acts to determine whether they comply with the United
States Constitution.
l. Major Accomplishments Recap:

i. Established in dicta that high cabinet officials are subject to judicial review.
1. For example, if the secretary of state breaches a legal duty, a federal district court
can order him to perform; and
ii. Established that SCOTUS has the power to strike down laws of Congress as being
unconstitutional.
1. Marbury established the role of the judiciary.
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m. Stuart v. Laird
i. At the time, Stuart v. Laird was arguably a more important case as it discussed whether
Congress had the right to terminate Art III judges with life tenure by abolishing their
courts.
1. Perhaps a more important issue than that of Marbury’s minor post as Justice of
Peace.
ii. Here, the court upholds the repeal of the Circuit Court Act, though it never addresses if
Congress had the right to abolish judgeships. Instead, it focuses on circuit riding. The court
held that, because judges had been riding circuit for 13 years previously, it is what it is.
n. Impact of the Case: The next time a court strikes an act of Congress via judicial review is not until
1857 (54 years later) in Dred Scott v. Sanford.
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2) Judicial Restraint vs. Judicial Activism via Marbury

a. Judicial Restraint (argument for only the occasional deciding of cases)
i. Encourages judges to limit the exercise of their own power.
ii. Asserts that judges should hesitate to strike down laws unless they are obviously
unconstitutional.
b. Judicial Activism (argument for a check on the legislature)
i. The Constitution was intended to impose very real checks on the other branches of
government, especially the legislature.
ii. Emphasizes a limit on power via enforcement of the Constitution.
c. Ironically, both of these arguments find strong footing in Marbury.
3) Martin v. Hunter’s Lessee: SCOTUS / Story, 1808
a. Background
i. Joseph Story, who wrote the opinions for both cases, was the youngest justice ever
appointed to SCOTUS. He was a former Harvard professor and solid Federalist.
1. Marshall recused himself from this case because had interest in the disputed land.
b. Procedural History via Hunter v. Fairfax’s Devise

i. Both Hunter and Martin asserted a claim to some Virginian land. Hunter purportedly
received the land via a grant from the commonwealth’s seizure and Martin directly via its
original owner, Fairfax, who was a British lord.
ii. The Virginia Supreme Court held that, under Virginia law, Martin couldn’t inherit Virginia
realty.
iii. This holding was reversed by SCOTUS because of the 1783 Peace Treaty (Treaty of Paris)
and Jay’s Treaty of 1794.
iv. However, the Virginia Supreme Court again enters judgement for Hunter, choosing to
ignore SCOTUS ruling.
v. This is re-appealed to SCOTUS, thus becoming… Martin v. Hunter’s Lessee.
c. Issue: Does SCOTUS have appellate JDX over Constitutional decisions made by state courts?
d. Story’s First Textual Argument

i. Art III gives SCOTUS JDX to “all cases” under federal law. Naturally, some cases will be
brought in state courts. Thus, it could not be “all cases,” if state courts were off limits.
1. It is the nature of the case, not the lower court, that determines JDX.
2. If SCOTUS was prohibited from exercising JDX over federal essays in state
courts, then Article III could not be honored.
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e. Story’s Second Textual Argument

i. Virginia raises a hardcore state sovereignty argument, claiming that the US and Virginia
are separate sovereignties. While Virginia is a member of the states and must apply federal
law that is superior to state law, SCOTUS has no more power to correct errors made in
Virginia courts than those made in foreign courts based on US federal law.
ii. Story contends that Virginia misunderstood the framers’ intent, which was for the states to
be a united sovereign.
1. Article I of the Constitution provides both obligations and prohibitions (coin
money, pass an ex post facto law, etc.). Consequently, states cannot be compared
individual countries.
2. In the process of agreeing to and ratifying the Constitution, Virginia gave up a
portion of its sovereignty.
iii. Further, too little, too late. At this point, SCOTUS has already held that it has the right to
reverse state legislatures in Fletcher v. Peck. If SCOTUS can provide judicial review on
the legislature, why not the court system as well?
iv. To this, Virginia counter argues that, if SCOTUS has the right to supervise state courts’
interpretations of federal law, and on occasion, reverse decisions, then SCOTUS has
monumental power prone to abuse.
v. But Story quickly shuts this down by saying that any power can be abused; bad argument.
f. Story’s Third Textual Argument

i. Virginia argues that SCOTUS is insulting the role of judges when it reviews their
decisions; deference should be given to the state courts.
ii. Story responds with flattery, noting that the judges are the finest to be found.
iii. Story shifts the blame to the framers… It is the framers, via the Constitution, who imply
the possibility of state judges being biased in favor of state interests.
1. Assuming all competent judges, there will still be judicial differences and there
must be someone at the top of the pyramid to resolve them.
2. Vesting this authority in SCOTUS ensures impartiality and uniformity.
g. Holding: SCOTUS properly exercised appellate review of the Virginia courts’ decision
h. Rule: Under Article III of the US Constitution, SCOTUS has authority to exercise appellate review
of state court decisions using federal law.
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4) Major Rulings on Judicial Review that make a name for SCOTUS

a. Marbury v. Madison, 1803: Held SCOTUS had the power to declare a law unconstitutional.
b. Martin v. Hunter’s Lessee, 1808: Held SCOTUS had power to review state supreme court
decisions in civil law matters when the defendant claims that their Constitutional rights have been
violated.
c. Fletcher v. Peck, 1810: Held SCOTUS had power to invalid an act of state legislature that is
unconstitutional.
d. Cohen v. Virginia, 1821: Held SCOTUS had power to review state supreme court decisions in
criminal law matters when the defendant claims that their Constitutional rights have been violated.
i. Marshall sat on this case and wrote a lengthy opinion, despite it being almost the same
issue as Martin. Apparently, Marshall wanted a say on the matter, since he didn’t get one in
Martin.
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5) The Adequate and Independent State Grounds Doctrine
a. This doctrine states that when a litigant petitions SCOTUS to review the judgment of a state court
which rests upon both federal and non-federal (state) law, the SCOTUS does not have JDX over
the case if the state ground is (1) “adequate” to support the judgment, and (2) “independent” of
federal law.
6) Checks on the Supreme Court

a. One of Marshall’s main points in Marbury was stressing SCOTUS’s role in policing both the legislative and
executive branches. But who checks SCOTUS?
b. Constitutional Checks
i. Impeachment
1. The House of Representatives has the sole Power of Impeachment; the Senate has the sole
power to try all impeachments.
a. Removal from office occurs if two-thirds of the senators voting concur with the
House’s articles of impeachment.
2. The first judicial impeachment was of John Pickering, a district court judge, for
drunkenness and unlawful rulings.
3. The next attempt was of Justice Samuel Chase for political biases. This impeachment failed
because it did not gain the percentage requirement in the Senate.
a. This failed impeachment set the standard that it is inappropriate to impeach a
judge simply because you vigorously disagree with his political viewpoints.
b. Had Chase been impeached, Marshall would have been next.
4. Now, impeachment generally occurs for abuse of power or the commitment of a crime (e.g.
bribery or tax evasion).
ii. Appointment
1. The president nominates, and the Senate confirms.
2. This method works, only if it employed over a lengthy period; it is not a quick resolution.
3. Appointment is for a life-time.
4. Presidents cannot control how their appointments justices will vote. Many presidents have
been disappointed by their appointees.
a. Presidents study appellate court records to determine a justice’s track record for
decisions.
iii. Amendment
1. There are two methods by which amendments can be made:
a. A two-thirds vote of each house of Congress or;
b. A Constitutional Convention called by Congress.
2. Both methods must be ratified by three-fourths of the state legislatures or state ratification
conventions.
3. Only four amendments (out of the 33 adopted/27 ratified) were intended to overrule
SCOTUS.
iv. Congress Can Control the JDX
1. Congress is not required to vest all of the Article III JDX in the federal courts; further,
Article III is not self-executing.
a. Federal courts are courts of limited JDX; limited by Congress.
2. Congress’s limit on JDX is an ineffective check because:
a. Congress needs the courts to enforce the laws it passes; and
b. Under the Supremacy Clause, state courts are required to apply federal law as
construed by SCOTUS.
v. Case and Controversy
1. SCOTUS is limited to deciding cases that are rightfully brought before it.
a. However, this is a limited check because it is not hard to go around this power by
squeezing a controversial issue into a case to specifically get it before SCOTUS.
b. During the Constitutional Convention, there was a proposal to authorize a Council
of Revision that would be authorized to invalidate any state or federal law before
it went into effect. Madison raised this proposal three times and it was soundly
rejected on all three occasions.
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vi. Limited Enforcement Power
1. As argued by Hamilton in Federalist #58, the Court is “the least dangerous” branch of the
federal government. It cannot appropriate money (like the legislative branch) or order out
the army, FBI, or federal marshals (like the executive branch) to enforce its judgements;
SCOTUS can merely make decisions.
2. HOWEVER, SCOTUS holds Moral Capital.
a. Generally speaking, the people respect SCOTUS, based on the assumption that the
justices are acting in good faith to determine the meaning of the Constitution and
other law. As long as this continues, SCOTUS has a one-up with public support.
b. The legislative and executive branches defy SCOTUS at their own peril.
c. Non-Constitutional Checks
i. Dynamics of the Decision-Making Process
1. Any SCOTUS decision requires a majority vote.
ii. The Legal Process
1. Based on precedent, SCOTUS cannot simply impose its own will. The court purports to
decide things based on the law.
iii. Criticism
1. SCOTUS is privy to both professional and public criticism.
a. Legal critics concur that SCOTUS is never too far behind popular sentiment; the
justices are aware of and influenced by society, to some degree.
iv. Self-Restraint
1. The justices have a conception of their proper role and limit themselves, in good faith.
7) Constitutional Interpretation
a. SCOTUS relies on various accepted methods in interpreting the Constitution.
b. Originalism
i. Original Intent: An attempt to discover the authorial intent behind any constitutional provision.
ii. Original Understanding: An attempt to determine what the text meant at the time it was adopted.
1. The Constitution should be interpreted consistent with the notions of what the ratifies
believed they were ratifying.
2. Original understanding is determined based on debates, news articles, and dictionaries from
the time.
c. Structure
i. An attempt to deduce what the Constitution means based on the structure of the document, and the
structure of the government that the document creates.
d. Tradition/Practice
i. A pattern of behavior, though not conclusive, carries a certain amount of weight.
1. If a government has consistently done one thing, it is evidence of correctness.
e. Precedent
i. SCOTUS relies on its precedent.
f. Doctrine
i. SCOTUS develops various legal tests and doctrines to provide guidance to courts and public
officials who abide by its decisions.
g. Consequences
i. SCOTUS often analyzes two potential approaches, paying special attention to the consequences of
each approach.
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III. FEDERALISM
1) McCulloch v. Maryland: SCOTUS / Marshall, 1819
a. Historical Context
i. Before there was a contested Second Bank of the US, there was a First Bank of the US.
1. Washington signed the bill for the First Bank of the US into law.
a. In doing so, Washington took the advice of Hamilton and rejected the
advice of Jefferson (Jefferson argued Congress lacked the constitutional
power to create a bank).
2. The First Bank was in existence for 20 years before the Sunset Provision took
effect, expiring the Bank. At that particular time, Congress was not fond of the
Bank and refused to renew its charter. However, following the War of 1812, the
country was in serious recession. This influenced a change of mind in Congress
who then determined it would be beneficial to have a bank to oversee such
financial matters. THUS, the Second Bank was proposed.
a. The Second Bank is the bank at issue here.
ii. The Second Bank was chartered in 1816.
iii. The name of the Bank is misleading. The bank is authorized and chartered by the US, BUT
it Is largely owned be private investors. It is a corporation created but NOT owned by the
government.
iv. The Bank became unpopular after tightening up during the recession. As a result, many
states imposed punitive taxes on the Bank to drive it out of state.
1. This was not the case for Maryland; Maryland did not impose punitive taxes.
i. When the Bank refused to pay the legislative tax imposed on it by Maryland, Maryland
brought suit against James McCulloch, the head of the Baltimore branch.
ii. The lower court ruled in favor of the Bank.
iii. The court of appeals upheld Maryland’s argument that the Bank was unconstitutional.
iv. An appeal was taken very quick to SCOTUS.
v. FUN FACT: Marshall released his opinion only three days after the nine straight days of
oral argument, suggesting that the opinion was written before oral argument ended.
c. Issue 1: Does Congress have the power to create a bank?

i. Ironically, this issue wasn’t significantly disputed, despite the attention Marshall paid to it.
ii. Original Understanding Argument
1. Marshall suggested that this was not a new issue because this very debate ensued
in the creation of the First Bank.
2. The framers of the Constitution thought through the constitutional issues on the
matter, which Marshall concludes is a big deal.
a. In fact, the Second Bank was signed into law by Madison (US President, at
the time) even though Madison had originally opposed the First Bank.
Madison said he signed the bill because his constitutional concerns had
been addressed in the redraft of the charter for the Second Bank.
iii. Popular Sovereignty Theory Argument
1. Marshall first addresses what is arguably the most important question in
constitutional law: Where did the Constitution come from?
2. Marshall answers this question using the Popular Sovereignty Theory
a. The Constitution was created by the people; not the states.
i. The Constitution was ultimately ratified by popular conventions
(made up of people); the state legislatures did not independently
ratify the Constitution.
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1. Marshall slightly distorts the reality of the ratification with
this view. The Constitution was ratified via popular
conventions; however, nine STATES were required to
ratify the Constitution. The states had a larger role in
ratification than Marshall acknowledged.
3. Maryland countered this with an argument under the Compact Theory.
a. Under the compact theory, the states are independent sovereigns that
entered a compact wherein they gave up a limited amount of sovereignty.
Nevertheless, the Constitution originated from the state compact.
4. The difference between these two theories is ultimately what led to the Civil War.
a. The southern states argued under the Compact Theory claiming a state
could secede when the federal government violated Constitutional terms
the state had agreed on.
b. The northern states, under Lincoln, relied on the Popular Sovereignty
Theory: the power to dissolve the Constitution is in the hands of those who
created it… the people. If the people do not dissolve the Union, then there
is no Constitutional right to secede.
iv. Nature of the Constitution
1. The nature of the Constitution is endurance; if Congress has no wiggle room due to
a tight interpretation of the Constitution, then the government wouldn’t work.
a. It took great effort to create the Constitution.
b. Things change; circumstances change.
2. The Constitution was more of an “outline:” it contained only the most important
objectives because it was to be ratified by the people, and so needed to be kept
short and simple.
3. “We must never forget that this is a Constitution we are expounding.”
a. The Constitution should be read in a way that gives Congress the authority
to do what the framers meant for it to do.
i. One could counter this by arguing this is the most important
document in American history and Congress should not be able to
take liberties with it.
b. When a court quotes this famous statement, prepare for it to throw original
understanding and precedent structure out the window.
v. Enumerated Powers Argument
1. Marshall argues that the federal government is a government of enumerated
powers, meaning Congress must point to a power allocated in the Constitution
before it can pass specific legislation.
a. Generally, it would point to Art I.
2. Explicit inclusion of the word “bank” is not necessary.
a. Congress is given enumerated powers to: tax and collect taxes, borrow
money, regulate commerce, declare war, and raise and support armies.
i. In order to effectuate these enumerated powers, Congress needs
the means to carry them out. The framers, in their brevity, left
Congress the discretion to do so.
ii. Doctrine of Implied Powers: Implied powers are powers
Congress exercises that the Constitution does not explicitly define,
but are necessary and proper to execute the powers
vi. The Necessary and Proper Clause
1. This is Marshall’s main textual argument for Issue 1.
2. The Congress shall have Power ... To make all Laws which shall be necessary and
proper for carrying into Execution and… Powers vested by this Constitution in the
Government of the United States… Article I § 8
3. Inter-textual Argument: “Necessary”
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a. Maryland argues that “necessary” means essential/the one best way to
accomplish a goal.
b. Marshall argues that “necessary” has multiple meanings.
i. In this case, it should be interpreted broadly, such as “convenient.”
ii. Elsewhere in the Constitution where “necessary” is used, it is used
in the phrase “absolutely necessary.” If “necessary” meant
“essential,” then this would be redundant.
1. Every word is assumed to be given a meaning; we should
not assume the draftsmen used redundant words.
4. Architectural Argument: This clause is included in a power-granting section of
the Constitution, not a power-restricting section.
5. Contextual Argument: “Proper”
a. Marshall argues that “proper” = choice of means.
i. Thus, if “necessary” = “essential,” it would contradict “proper.”
And two words should not be read to contradict. So, “necessary” =
convenient.”
ii. An argument against this is that this contradicts the Anti-
Redundancy Canon.
b. A better reading of proper = legally proper.
i. Congress can choose appropriate means that are legal.
6. Tradition Argument: Previously, Congress has legislated in, arguably, non-essential
ways; it has traditionally acted on the assumption is has discretion.
a. E.g. the Post Office
7. Structural Argument: Even without the NPC, the Constitution alone would
suffice to give Congress the means to carry out.
8. Consequential Argument: If Congress was, in fact, limited to working with only
the essential means, then the abilities of Congress would be greatly hampered.
vii. Holding: Congress has the constitutional power to charter the Bank of the United States.
d. Issue 2: Is it constitutional for a state to tax a federally-created bank?

i. This issue is what the case was really about.
ii. Based on Senator Daniel Webster’s arguments in support of the Second Bank, Marshall
argued four points as to why it was unconstitutional for Maryland to tax the Bank.
1. Congress’s power to create assumes a power to preserve.
2. The power to tax is the power to destroy.
3. The power to preserve and the power to destroy are inconsistent.
4. The Supremacy Clause deals with this inconsistency by prevailing federal law.
a. The inconsistency between the federal law creating the bank and the state
taxation law is resolved by the Supremacy Clause: the federal law prevails.
i. Congress cannot allow a state to engage in activity that might very
well destroy a federal instrumentality.
iii. Maryland makes a “confidence argument”: Maryland says, “trust us.” It would only
impose a fair tax, preventing an unfair advantage of the federal bank over state banks.
1. Marshall rejects this argument by raising a Political Safeguards of Federalism
argument.
a. If Congress imposes an abusive tax on the people of the US, the people
have the power to respond politically (by voting Congress out of office).
i. This political process can be trusted.
b. HOWEVER, if the state imposes an abuse tax on a federal instrumentality,
the federal government does not have the power to respond politically
because it is not represented in the state legislature.
i. The state legislature would essentially export the tax on all citizens
nation-wide because most tax patrons are represented outside of
Maryland.
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ii. This political process cannot be trusted.
iv. Marshall never addresses whether Maryland’s tax was a fair or unfair tax. Most
constitutional historians argue that it was generally fair.
v. Marshall STRIKES down state taxation against the Bank by granting federal
instrumentalities immunity.
1. This argument is a little too broad (he took it a little too far).
2. Besides immunity, the Bank could be protected from abusive state taxation by:
a. Congress’s powers. Congress could have protected the bank via statute
that granted the bank immunity or set a maximum taxation percentage.
b. Judicial review. The court could decide taxation on a case-by-case basis.
3. However, Marshall does preserve the right of a state to tax a federal
instrumentality in situations where the state imposes a general and neutral, non-
discriminatory tax that was born solely by the people of the state.
a. E.g. A tax on all real property, assuming the Bank owed a property in
Maryland on which it built a branch.
vi. Holding: Maryland may not tax the Bank as a federal institution because federal laws are
supreme to state laws.
e. Maryland’s Other Arguments that Marshall Ignores

i. The bank was a private organization;
ii. The Bank could not set up a branch in a state without that states consent, and Maryland had
never consented;
iii. The imposed tax was a fair tax, not punitive.
f. The Test for Judicial Review

i. The question arises, how will the judiciary police Congress’s power to use the means
necessary and determine Congress’s actions are consistent with the Constitution.
ii. Test for Constitutionality as laid down by Marshall
1. “Let the end be legitimate,
2. Let it be within the scope of the constitution,
3. And all means which are appropriate,
4. Which are plainly adapted to that end,
5. Which are not prohibited,
6. But consistent with the letter and spirit of the Constitution…”
iii. If the law passes this six-part test, it is constitutional.
iv. Marshall, nevertheless, largely fails to apply this test to the Bank situation.
g. Rule: 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.
h. Importance of McCulloch
i. Provided a relatively broad conception of federal power;
ii. Provided judicial deference to the exercise of federal power;
iii. Recognized the political safeguards of the Federalism theory;
iv. Established the Popular Sovereignty theory over the Compact theory;
v. Because a leading example of important methods of constitutional interpretation; and
vi. Set forth a model of very strong constitutional arguments.
i. Jefferson’s Response: The House that Jack Built

i. Based on Marshall’s opinion, Congress has the power to create a mining company.
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1. Congress needs to raise a navy, a navy requires ships, ships require iron, iron
requires mining.
ii. Ironically, Jefferson use the NPC to defend his authorization of the Louisiana Purchase. At
the time, he did not have the power to purchase property from another sovereign. To get
this power, he had Congress draft a provision permitting purchase of the property from
Napoleon. However, when Napoleon began to get cold feet, Jefferson acted before the
provision had been granted. He defended his actions by the NPC.
j. The Aftermath
i. This opinion was extremely unpopular; it was perceived as the court overstepping its
bounds through imposition of its will on the states.
ii. In particular, the largest opponent of Marshall’s opinion was Spencer Roane, chief judge
over the Virginia Court of Appeals. Roane wrote a number of essays attacking virtually
every point of the McCulloch holdings.
1. Roane’s response disturbed Marshall, so he wrote a series of pseudonymous
essays, under the name “A Friend of the Constitution,” arguing against criticisms.
a. This is the only instance a SCOTUS justice has gone into the public sphere
and pseudonymously attempted to defend a criticism of their opinion.
iii. Several states in the West (Ohio, Kentucky, and Illinois) were upset by McCulloch. In
response, they imposed punitive taxes on the Bank.
1. Ohio imposed a tax of $50k per branch in state; totaling $100k for two branches. It
then passed a Crow Bar law, authorizing the Attorney General to seize the funds
from the Bank. In response, the federal district court entered an order for officials
to retake the funds.
a. This case scenario became Osbourne v. Bank of the United States.
iv. Andrew Jackson was a severe opponent of the Bank. As President, to finish the Bank, he
ordered his Secretary of Treasury to withdraw all the funds from the Bank. The SoT
refused to do so under legislation that required all US funds be deposited in the Bank. So,
Jackson fired him. His second SoT also refused. Finally, his third SoT, Robert Tainey
removes the funds. As a result, the Bank collapsed. This was, essentially, its end.
1. Furthermore, Jackson vetoed a bill for the Third Bank.
v. Now, there is no Bank of the United States.
IV. COMMERCE POWER

§ 8, Clause 3, of Article I of the Constitution: [The Congress shall have Power] To regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes…
1) Gibbons v. Ogden: SCOTUS / Marshall, 1824
a. Background
i. The New York legislature granted Robert Fulton (with the backing of Robert Livingston) a
monopoly on steamboats on the Hudson River.
ii. This valuable monopoly was heavily contested in NY courts; further, Connecticut and New
Jersey, who had parts of the Hudson in their state boundaries, established their own
monopolies in retaliation.
iii. After a falling out between Fulton and Thomas Gibbons, Gibbons purposefully sought and
received a federal license—pursuant to Congress’s Coasting Act—to also operate
steamboats on the Hudson.
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i. Aaron Ogden (licensed under Fulton) filed suit to enjoin Gibbons from operating.
ii. SCOTUS perceived this case as a big deal; requiring the resolution of a 20-year economic
issue.
iii. This case gave Marshall the opportunity to be the first give a judicial interpretation on the
Commerce Clause.
c. Issue: May a state regulate interstate commerce within its borders when Congress also chooses to
regulate interstate commerce in the same area?
d. Interpretations of the Three Key Words and their Natural Meanings

i. “Commerce”
1. Ogden argued that “commerce” was limited to commercial exchange excluding
navigation.
2. Marshall concluded that “commerce” = commercial intercourse.
a. A general term should not be restricted to one of its significations.
b. More importantly, vesting Congress with the power to control navigation
was one of the primary purposes for the Constitution itself.
i. The Constitutional Convention was held following disputes over
navigation rights on the Potomac River.
c. In this case, “commerce” should be interpreted broadly.
ii. “Among”
1. Ogden argues that “among” should be narrowly construed to the commerce that is
literally crossing a state line (only at the border or as a border is crossed).
2. Marshall concluded that among” = intermingled with (not just at the border).
a. “Concerns more states than one…”
i. If a commercial transaction has an impact on more than one state,
then Congress has power therein.
ii. If a commercial transaction is entirely within a single state border,
the Congress has no reach.
1. “The enumeration presupposes something not
enumerated…”
a. The framers did not give Congress power to
regulate ALL activity. Rather, they give Congress
power “among the several states…” By including
this phrase, it is assumed that there must be some
congressional power not among the states.
iii. “Regulate”
1. This term is plenary/absolute and can be exercised fully.
iv. Marshall’s interpretations of these phrases have passed the test of time; decisions made on
the Commerce Clause today incorporate these definitions.
e. The Three Faces of the Commerce Clause

i. The Affirmative Commerce Clause
1. State sovereignty rights are protected when Congress enacts interstate commerce
legislation because state interests are directly represented in the national political
processes by the composition of Congress.
2. The check against abuse of the Commerce Clause is the political process not the
judicial process.
3. Marshall makes this argument to justify the constitutionality of the Coasting Act.
ii. The Dormant Commerce Clause
1. If a statute passed by Congress is silent on a point of interstate or international
commerce, states are free to pass legislation ONLY for police power purposes that
pertain to (1) inspection or (2) quarantine.
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2. Although Marshall could have used the Dormant Commerce Clause to find the NY
monopoly unconstitutional, Marshall doesn’t.
iii. Preemption / The Supremacy Clause
1. Marshall finds the NY monopoly in direct conflict with the Coasting Act; and thus
invalidates it under the Supremacy Clause.
iv. Today, the Dormant Commerce Clause and Supremacy Clause are often argued in tandem.
f. Holding: The state injunction against Gibbons is invalid under the Supremacy Clause because it
conflicts with a federal statute.
g. Rule: 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.
h. Aftermath
i. This was a very popular decision; the people were thrilled to see a powerful monopoly
stricken down.
1. As a result, steamboat traffic in NY flourished (quickly went from 6 to 43 boats).
ii. Gibbons is credited with having an extremely positive effect on westward expansion (for
example, it allowed for the building of railroads without state regulatory barriers).
iii. Wilson v. Black-bird Creek
1. A boat operator sued the state for damages, arguing that they had no authority to
place a dam on the river because the river was the federal government’s domain.
2. Marshall held that the state had a legitimate police reason for the dam.
3. This holding solidified the fact that states had regulatory power over commerce,
specifically interstate commerce, so long as the laws are (1) not repugnant with a
federal stature, and (2) for a legitimate police power reason.
iv. SCOTUS thinks in terms of Dual Sovereignty: Governmental power is divided into two
exclusive types: (1) federal and (2) state.
********************************************************************************************
2) Development of the Affirmative Commerce Clause: Post-Gibbons Cases
a. It took over 60 years post-Gibbons for Congress to utilize Marshall’s interpretation of the
Affirmative Commerce Clause and the power it gave Congress to regulate.
b. Legislatures finally stepped in to regulate social and economic problems when the country began to
see increased industrialization, immigration, and urbanization.
c. United States v. E.C. Knight Co.: SCOTUS / Fuller, 1895

i. SCOTUS held that a monopoly controlling 96% of the sugar refining industry in the
United States was local in nature (the refining happened completely within individual
states, though the sugar was shipped nation-wide) and therefore did not affect interstate
commerce under the Sherman Act.
ii. Refining = manufacturing ≠ commerce.
d. In cases that followed E.C. Knight, SCOTUS recognized several exceptions to the limitations
placed on Congress’ power to regulated production-type activity.
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e. Exception 1: The Substantial Affects Doctrine
Houston, East & West Texas Railway v. United States: SCOTUS / Hughes, 1914
“Shreveport Rate Case”
i. Substantial Affects Doctrine: When a state engages in regulatory activity that deliberately
has a negative effect on interstate commerce, the federal government has a right to
intervene.
1. SCOTUS held that the deliberately low intrastate shipment rates that Texas set
were meant to undercut the interstate rate (between Texas and Louisiana) set by
the federal government, diverting shipments between state, thus giving Congress
the right to intervene.
a. The commerce power necessarily included the right to regulate “all maters
having such a close and substantial relation to interstate traffic that
control is essential or appropriate to the security of that traffic…”
ii. The Instrumentality Doctrine (see below): An instrumentality that moves interstate
commerce is rightfully regulated by Congress.
1. SCOTUS held that the railroads are a means by which goods are moved between
states. Thus, Congress has power to regulate them.
f. Exception 2: The Stream of Commerce Doctrine

Swift & Co. v. United States: SCOTUS / Holmes, 1905
i. The Stream of Commerce Theory: Congress has the right to regulate activity within a
particular state, if that state is part of an existing flow of interstate commerce.
1. This theory is applied when focused on a middle portion of the stream of
commerce.
a. This theory was not applied in E.C. Knight because the stream of interstate
commerce had yet to start.
ii. SCOTUS held that Congress could regulate Illinois’ meat packing process when the cows
were shipped from out of state and the meat is sold country-wide (even though the packing
occurs solely in Illinois).
g. Exception 3: Prohibitory Theory

Champion v. Ames: SCOTUS / Harlan, 1903
i. The Prohibitory Theory: Congress has plenary power to determine what is shipped via
interstate commerce and can prevent the shipment of goods that are inherently harmful.
1. SCOTUS held that Congress had the power to ban the interstate shipment (lottery
tickets could still be shipped intrastate) of lottery tickets because they were
inherently harmful.
2. This technique had the policy backing of police power.
ii. The Prohibitory Theory failed in Hammer v. Dagenhart: SCOTUS / Day, 1918.
1. Referencing Champion, SCOTUS held that Congress could not ban the interstate
shipments of products that are not inherently dangerous—furniture, in this case—
despite Congress’s good intentions to end child labor.
a. If a ban were permitted in this situation, all manufacturing intended for
interstate shipment would be brought under federal control, encroaching
unconstitutionally on the authority of the states.
2. Holmes Dissent: Champion never mentioned anything about the harmful nature of
the goods; rather, Congress has the right to prohibit anything from entering
interstate commerce.
h. Exception 4: The Instrumentality Doctrine

The Daniel Ball: SCOTUS / Field, 1871
i. The Instrumentality Doctrine: An instrumentality that moves interstate commerce is
rightfully regulated by Congress.
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1. SCOTUS held that boats on the Michigan river are a means by which goods are
moved between states. Thus, Congress has power to regulate them.
ii. See also Houston, East & West Texas Railway v. United States (above).
3) Lochner v. New York: SCOTUS / Peckham, 1905 (“The Lochner Era”)
a. Historical Background
i. Based on the post-Gibbons cases, seems SCOTUS is concerned with federalism: the
government should regulate economic matters, but it must be the right level of government
(federal or state). Because of these cases, state legislatures began to aggressively regulate
economic activity. Ironically, SCOTUS frequently intervened and stopped the state from
doing so based on right to contract under the Fourteenth Amendment. The “lone star” case
of such an ironic reaction is Lochner.
ii. In NYC, at the time, bakeries were built in the basements of tenement houses. These
bakeries were unsanitary, lacked ventilation, and did not have adequate waste disposal.
iii. Because of the poor bakery conditions, bakers faced health issues; particularly TB.
iv. In response, NY passed the Bakershop Act that included multiple regulations on tenement
housing, and their bakeries.
1. The law prohibited workers from working more than 60 hours a week.
v. This law was challenged in the Lochner case.
i. Joseph Lochner, a NYC bakery owner, was charged with violating a NY statute that
prohibited employers from requiring bakers to work more than 60 hours a week.
ii. Lochner challenged the statute on constitutional grounds, claiming it interfered with his
constitutional right to contract.
c. Issue: May a state regulate the working hours of certain classes of workers without violating the
Due Process Clause of the Fourteenth Amendment?
d. Substantive Due Process

i. Substantive due process is a principle allowing courts to protect certain fundamental rights
from government interference, even if procedural protections are present or the rights are
not specifically mentioned elsewhere in the US Constitution.
1. The right to contract is an aspect of liberty and property rights protected in Art I §
10 of the Constitution and the Due Process Clause of the Fourteenth Amendment.
2. The notion of SDP was first recognized in Scott v. Sanford: SCOTUS / Taney,
1857, where SCOTUS held that African American slaves were not US citizens and
so not entitled to the rights of the Constitution.
3. In Munn v. Illinois: SCOTUS / Waite, 1877, SCOTUS recognized the SDP as a
respectable theory.
ii. Thus, the government can only interfere on such rights when there is a valid police
purpose.
1. Valid police purposes = health, safety, morals, general public welfare
iii. SCOTUS believed that the Bakershop Act infringed on an individual’s right to contract.
e. NY Justification 1: The Bakershop Act was passed for the valid police purpose of protecting the
health of bakers.
i. SCOTUS rejected the argument that the act was for health purposes because it does not see
how health is protected by limiting work week hours.
1. Baking is not a particularly hazardous trade. There is no more risk to a baker’s
health than any other occupation.
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2. The end is justified, but the means are not.
ii. Harlan’s Dissent: There are studies that show both that limited hours would or would not
improve the health of bakers. When there is an empirical split such as this, it is the job of
the legislature to make the determination. If there is some evidence supporting the
legislative conclusion (no arbitrary decisions), then the court has no power to second guess.
f. NY Justification 2: The Bakershop Act was passed to regulate the labor market.
i. NY argues that regulation of the labor market would:
1. Create more jobs (because bakeries would have to hire more bakers); and
2. Correct the disparity of bargaining power between the bakery and its bakers.
ii. SCOTUS rejected this argument, reasoning that regulating labor is not a police power.
1. The end itself is beyond the authority of Congress.
2. To allow this would conflict with the liberty of contract.
iii. Holmes’s Dissent: SCOTUS is wrong to exclude labor regulation from a state’s police
powers.
1. The Constitution does not enact an economic theory; so, the states should be able
to adopt any economic theory it wants. In this holding, SCOTUS is imposing is
own individualistic laissez faire (let things take their own course) theory.
2. Law, by its very nature, intrudes upon liberty (tells us things we cannot do, and
things we must do). There is no particular fundamental liberty, including the right
of contract, that overrides police power.
iv. SCOTUS Historical Justifications for Rejecting This Argument
1. The Anti-Class Theory: Class-based legislature is illegitimate under the
Constitution (a single trade should not be given differential treatment).
2. The Free Labor Principle: Under the Constitution, every person has a right to
utilize their own labor as they see fit (came from the abolitionist movement).
g. Holding: The baking profession does not present any of the concerns justifying the states’
regulation of hours. The regulation in question was not a health law, but instead an arbitrary
interference into the individual right to contract. The law is thus invalid.
h. Rule: A state may not regulate the working hours between employers and employees as this
violates their Fourteenth Amendment right to contract freely under the Due Process Clause.
i. Regulation required the business in question effect public interest.
i. Aftermath
i. The Lochner Doctrine (see Rule above) was applied with great force in the 1920s and used
by SCOTUS to invalidate close to 200 state laws.
ii. The One-Two Punch of the Lochner Doctrine
1. If the federal government attempted to regulate economic affairs, there was a
significant chance that the federal legislation would be invalidated for intrusion
into state domain.
2. If the state governments attempted to regulate economic affairs, there was a
significant chance that the state legislation would be struck down for intrusion on
the liberty of contract.
iii. The One-Two Punch created a bunch of legislation that was essentially beyond the control
of either federal or state government.
1. This became incredibly frustrating to all governments during the Depression
leading to the Court Packing Plan (see below).
********************************************************************************************
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3) New Deal Legislation
a. Roosevelt proposed several “New Deal” programs to combat the effect of Congress’ Commerce
Clause and help the country recover from the depression; the Court invalidated many of these
under the Lochner Doctrine, holding that an economic depression is not a reason to violate the
Constitution.
b. Carter v. Carter Coal Co.: SCOTUS / Sutherland, 1936

i. SCOTUS invalidated a congressional act that regulated labor conditions, wages, and hours
of the coal industry, because the impact on interstate commerce was too indirect.
1. Congress argued that the impact of a strike in the coal industry would have a
massive effect on the national economy; while SCOTUS agreed this may be true,
the economic impact is too removed from commerce.
2. Coal production is purely local in nature, regardless of the fact that the coal would
eventually be sold in interstate commerce.
c. A.L.A. Schechter Poultry Corp. v. United States: SCOTUS / Hughes, 1935

i. SCOTUS invalidated a congressional act that regulated the wholesale price of chicken,
because, although the stream of commerce with the chicken came to rest in New York,
ending the interstate journey. Further, the wholesale price of a small number of chicken
would have no direct effect on interstate commerce.
1. This case is distinguished from Swift because the chicken was not shipped out of
state following slaughter.
4) The Court-Packing Plan

a. Theodore Roosevelt was re-elected in 1936.
i. At the time, the House and the Senate were Democratic majorities.
ii. Also, the Court was still busy striking down all his new-deal legislation.
b. At the time, there had been some conflicting applications of the Lochner Doctrine.
i. Nebbia v. New York: SCOTUS / Hughes, 1934
1. This was the light at the end of the tunnel for Substantive Due Process.
2. SCOTUS rejected a substantive due process challenge, holding that the state could
impose a law regulating a minimum price on the retail sale of milk.
a. This destroyed the noting that regulation required a business interfere with
public interest.
ii. Morehead v. New York: SCOTUS / Hughes, 1936: SCOTUS again applied the Lochner
theory to strike down a minimum wage clause for women.
c. Thus, Roosevelt was very frustrated with his inability to enact powerful economic legislation to
deal with the Depression.
d. His solution? The Court-Packing Plan!
i. Roosevelt reasoned that, because the judges were “elderly,” they were failing to keep up
with their dockets  so, appoint one new justice for every justice over 70.
ii. His real goal (which he later admitted in a speech) was to pack the court with justices who
would approve his new deal legislations.
e. This plan was heavily opposed by the press, the public, and Roosevelt’s democratic supporters in
the House and Senate.
f. BIG TAKEAWAY: It is unconstitutional (a violation of separation of powers) for a president to
attempt to pack the Court.
g. Also, this case cemented the number of justices at 9.
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5) The Death of the Lochner Doctrine
a. Nebbia v. New York: SCOTUS / Hughes, 1934 (see above).
b. West Coast Hotel v. Parrish: SCOTUS / Hughes, 1937

i. SCOTUS upheld a state law establishing a minimum wage for women, despite the fact that
it had invalidated such a law nine months earlier in Morehead (see above).
1. There is no preferred right of contract.
ii. THIS WAS THE NAIL IN THE LOCHNER DOCTRINE COFFIN.
6) The Modern Trend: Post-Lochner Era Cases
a. In 1937, the court pivoted from invalidating economic regulation (both federal and state) left and
right to a more deferential approach to economic regulation. If Congress is able to make any
rational economic argument in favor of their legislation, SCOTUS would uphold it. (In fact, from
1937 through 1945, SCOTUS did not strike down any exercise of the commerce power.)
b. NLRB v. Jones & Laughlin Steel: SCOTUS / Hughes, 1937

The Substantial Affects Doctrine
i. The National Labor and Relations Act (NLRA) which, among other things, protect the
right of employees to unionize. When J&L fired 10 employees who attempted to unionize,
the NLRB sanctioned J&L and J&L sued claiming the act was unconstitutional.
ii. The government went through great lengths to emphasize the nature of J&L’s business and
its integration in the stream of commerce (like Swift, unlike Carter Coal).
1. And, under Swift, this would have been an easy case for SCOTUS, however…
iii. SCOTUS holds that Congress has the power to regulate labor relations (and sustains the
constitutionality of the NLRA) under the substantial affects doctrine.
1. This is an economically realistic view, as opposed to a formalistic approach.
a. A relatively minor labor strike could have devastating national effects.
2. This rejects the mode of analysis in Carter Coal.
iv. The principles of this case had ripple effects on both large and small industries.
v. Plus, the NLRA is still the primary labor relations law that governs today.
c. US v. Darby: SCOTUS / Stone, 1941

The Commerce Prohibiting Technique
i. The Fair Labor Standards Act (FLSA) was challenged by Darby, a lumber company, after
it was found in non-compliance due to use of child labor.
ii. Issue: Congress set the standard, and then banned shipments that failed to meet a
standard. It set various labor standards (including a ban on child labor) that applied to the
states when such labor was having a substantial effect on the interstate commerce.
1. Theory 1: Given that Congress has the plenary power to ban any shipment of
interstate commerce, so Congress should be able to effectuate the prohibition on
shipment by prohibiting manufacturing.
a. This theory was thrown out because this would give Congress complete
public power.
2. Theory 2: The Commerce-Prohibiting Technique
a. Congress has the authority to ban unfair competitors from utilizing the
channels of interstate commerce.
i. E.g. Child labor leads to unfair competition by giving states with
no child labor laws an unfair advantage.
b. Under this theory, SCOTUS overruled Hammer (which held that holding
that Congress may regulate only articles of commerce that are harmful in
and of themselves, not the conditions under which they are produced).
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c. SCOTUS rejects the argument that such a technique allows Congress to
intrude into the reserved powers of the states under the Tenth Amendment.
It reasoned that only that which is left to the states is that which Congress
does not have a constitutional right to regulate.
d. Wickard v. Filburn: SCOTUS / Jackson, 1942

The Cumulative Effect / Aggregation Principle
i. The Agricultural Adjustment Act, which limited the amount of wheat a farmer could grow
for the purposes of home consumption, was challenged by Fillburn, a small farmer, after he
was penalized for producing excess wheat.
ii. SCOTUS upheld the act claiming in the aggregate unregulated wheat production for home
consumption would cause extreme volatility in the wheat market.
1. If the price of wheat rose, farmers would be tempted to sell wheat grown for home
consumption and radically increase supply, eventually decreasing price.
2. If the price of wheat dropped, the farmers would hoard their wheat decreasing
demand, and even decreasing price.
iii. Fillburn argued that he has a little farm on which he grows a little wheat and couldn’t
possibly have a significant effect on interstate commerce.
1. SCOTUS rejected this argument with the cumulative effect principle: Congress
may regulate not only acts which, taken alone, would have a substantial economic
effect on interstate commerce, but also an entire class of acts, if the class has a
substantial economic effect.
a. Fillburn acting alone wouldn’t have a substantial effect, but all similarly
situated farmers acting similarly would.
e. Recap: Ways Congress can regulate interstate commerce…

i. Substantial Affects Doctrine: Regulate activity that substantially effects interstate
commerce (see NLRB).
ii. Stream of Commerce Theory: Regulate activity that is in interstate commerce.
iii. Instrumentalities Theory: Regulate the instrumentalities of interstate commerce.
7) Civil Rights Laws (and the Commerce Power)
a. During Reconstruction, Congress was very active in passing extensive civil rights laws.
i. Civil Rights Act of 1875
1. Under this Act, Congress attempted to extend protection against racial
discrimination in several discreet areas of private business (methods of
transportation, hotels, restaurants, and theaters), under the Fourteenth Amendment.
2. SCOTUS struck down this Act in 1883 as unconstitutional, because the Fourteenth
Amendment only applied to state actions, and Congress was unrightfully extending
it to private actions.
3. So, for the next 100 years, there is no federal protection against private
discrimination.
ii. Civil Rights Act of 1964
1. Under this Act, Congress attempted to extend protection against racial
discrimination in private business under the Commerce Clause and the substantial
effects theory.
a. Congress realized that they could not bring this under the Fourteenth
Amendment because the cases that struck down the 1875 Act were still
good law.
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b. Heart of Atlanta Motel, Inc. v. United States: SCOTUS / Clark, 1964
Per Se Finding
i. Congress has concluded that hotels, which catered to interstate travelers, affected interstate
commerce per se/as a matter of law (in other words, a plaintiff only had to show that the
defendant was a hotel, NOT that it effected interstate commerce).
ii. This per se rule was challenged by the Heart of Atlanta Motel which refused to rent rooms
to blacks.
iii. SCOTUS held that the Civil Rights Act of 1964 under the Commerce Clause could
constitutionally reach the motel because Congress had the legitimate rational that racial
discrimination in hotels discouraged interstate travel by black citizens.
c. Katzenbach v. McClung: SCOTUS / Clark, 1964

Intermediate Test
i. Congress has concluded that restaurants affect interstate commerce per se/as a matter of
law, when:
1. Food Test: The restaurant bought a certain amount of food product in interstate
commerce; or
2. Customer Test: The restaurant served a significant amount of interstate travelers.
ii. This per se rule was challenged by Ollie’s BBQ who had segregated dining.
iii. SCOTUS held that Congress could constitutionally reach the restaurant under the Food
Test (46% of their meat came from interstate commerce).
d. RECAP: Additional ways that Congress can regulate interstate commerce…

i. JDXal Hook: Requires a case-by-case adjudication of a Commerce Clause connection to
determine if the activity in question does in fact substantially effect or is part of interstate
commerce (see Lopez).
ii. Per Se Finding: A finding that an activity effects interstate commerce as a matter of law
(see Heart of Atlanta).
iii. Intermediate Test: An in-between test (see Katzenbach).
8) Criminal Laws (and the Commerce Power)
a. United States v. Perez: SCOTUS / Douglas, 1971

i. This case illustrated SCOTUS’s willingness to uphold federal criminal laws adopted under
the commerce power
ii. The Consumer Credit Protection Act made loansharking a federal crime.
iii. Perez, a solo loan shark, was convicted under this law but argued the law didn’t apply to
him because his business was completely intrastate; he had no connection whatsoever with
interstate commerce.
iv. SCOTUS upheld the act, acknowledging that, although Perez had no impact on interstate
commerce, loansharks, as a class, do.
1. When a class has an adverse effect on interstate commerce, Congress can regulate
the class, including those few who do not directly impact interstate commerce.
2. This is not application of Wickard’s cumulative effect principle because Perez did
not have an impact on the interstate commerce, whereas Fillburn did.
b. United States v. Lopez: SCOTUS / Rehnquist, 1995

CONGRESS HAS GONE TOO FAR.
i. Historical Background
1. For 58 years, since NLRB, SCOTUS had not invalidated an act of Congress under
the Commerce Clause. (So people were SHOOK by this holding.)
2. The Gun Free School Zone Act of 1990 made it a federal crime for an individual to
possess a firearm in an area that was reasonably believed to be a school zone.
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a. Most states actually already had had similar laws for decades.
3. Lopez was arrested and convicted under this Act, so he challenged it.
ii. Issue: May Congress, pursuant to its Commerce Clause powers, pass a law that prohibits
the possession of a gun near a school?
iii. The Government’s Arguments under the Substantial Affects Doctrine
1. Guns in schools are connected to the cost of crime (crime  costs  paid by
insurance  insurance rates would go up nationally).
2. Violent crime deters interstate travel to said violent place.
3. Guns in schools deter education (guns in school  less productive learning
because of violence/fear of violence  less productive society members).
iv. The Lopez/Morrison Test (SCOTUS’s counter to the Government’s arguments)
1. If you look to the Constitution, the Federalist Papers, and Marshall’s opinion in
Gibbons, it is very clear that, although Congress has a broad power under the
Commerce Clause, it does not have total police power. At the start of his opinion,
Justice Rehnquist states that the Court will start with “first principles” which are
a. “The enumeration presupposes something not enumerated…”
2. So, here are the four factors used to determine when Congress went too far:
a. No Limiting Principle: Some strong rational and connection to interstate
commerce, otherwise Congress would have total police power.
i. Here, the cost of crime and inhibition of education arguments are
inference upon inference and too far removed.
ii. Congress might as well pass a national bedtime law.
b. Non-Economic/Non-Commercial Activity: Regulation must have some
connection to an economic theory.
i. Here, Congress is regulating possession, not a transaction
connected to the economy.
c. No Factual Findings: Congress is not required to make factual findings in
support of legislative authority, but factual findings certainly help.
i. Here, there were no factual findings establishing a connection.
d. No JDXal Hook: Require a case analysis of whether the activity in
question does in fact substantially effect or is part of interstate commerce.
i. Here, Congress did not show that Lopez’s activity substantially
effected interstate commerce OR that his particular gun moved in
the stream of commerce… so no hook.
1. Instead, there was a per se finding.
v. Other Factors to Determine Congress has Gone Too Far
1. Criminal Statute: There is a significant, deterrence penalty under the statute.
2. State Domain: Education and street crime are topics regulated by the state;
SCOTUS is suspicious of congressional interference on state domain.
vi. Holding/Rule: Congress may not, pursuant to its Commerce Clause powers, pass a law
that prohibits the possession of a gun near a school.
vii. Concurrence: Kennedy, joined by O’Connor and Thomas
1. Kennedy stresses federalism and the protection of the state’s prerogatives. The Act
upsets the balance of power between the federal and state governments.
2. Also, there is a lack of necessity for a federal gun law because most states already
have their own.
viii. Concurrence: Thomas
1. The Substantial Affects Doctrine is problematic and should be abandoned because
it makes the Commerce Clause “surplusage.”
2. Congress is not meant to regulate commercial activity to the full extent suggested
by the majority’s holding; under original understanding, “commerce” = “trade.”
ix. Dissents: Stevens, Souter, Breyer, and Ginsburg
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1. The majority has abandoned 60 years of precedent where Congress was only
required to have a legitimate rational.
x. The Aftermath: Congress amended the statute to provide that bringing a gun into a school
district with knowledge that it had traveled in interstate commerce was a federal crime
(Congress switched out the substantial affects theory with the stream of commerce theory).
xi. Ultimately, there are meaningful constitutional boundaries and it is SCOTUS’s
responsibility to enforce them.
c. United States v. Morrison: SCOTUS / Kennedy, 2000

Congress goes too far again…
i. The Violence Against Women Act of 1994 made sexual assault a federal tort.
ii. SCOTUS held that federal tort provision was unconstitutional via application of the four-
factor Lopez test.
iii. Distinguished from Lopez: In Lopez, there were no factual findings to show that bringing a
gun into a school had any effect on interstate commerce. Here, Congress had substantial
findings showing how violence against women had a substantial effect on interstate
commerce. However, the factual findings were not enough because Congress had relied on
the cost of crime theory in creating the Act, and the cost of crime theory had already been
deemed unconstitutional due to lack of limiting power.
iv. Morrison’s Takeaways…
1. Defined the doctrinal test original state in Lopez;
2. Established that fact findings alone are insufficient; and
3. Reinforced that Lopez was not a unique case, and SCOTUS is serious about
limiting Congress’s reach to noneconomic activity.
d. Gonzales v. Raich: SCOTUS / Stevens, 2005

i. Historical Background: Congress passed the Federal Controlled Substances Act that
made marijuana, recreational or medicinal, a controlled substance and criminalized its
possession. California passed a law that permitting growth of medical MJ for personal use.
ii. Procedural History
1. Two individuals were sued for use of medical MJ under the Act.
2. California argued that these two people were completely separate from interstate
commerce, so the act could not reach their conduct without interstate connection.
3. The Ninth Circuit court found for the individuals.
iii. Issue: May Congress regulate the use and production of homegrown marijuana?
iv. SCOTUS’s Reasoning Why the Act Reaches the Two Individuals
1. Perez: Where there is a class of commercial activity regulated by Congress,
Congress does not have a duty to provide exclusions or exemptions for those rare
instances that are not interstate. (California can’t create its own exemptions.)
2. Wickard: Congress can regulate on the aggregation (supply and demand) theory.
MJ, like wheat, is a commercial product within a market. If it’s price rose to a
certain point, people who grew medical MJ might be tempted to enter the market.
3. Comprehensive Regulation: When Congress regulates an interstate economic
activity or enterprise under a comprehensive regulatory scheme, it may also
regulate the aspects of that activity that are intrastate in character.
4. NPC (via Scalia’s Concurrence)
a. Scalia argues that Congress is not regulating interstate commerce here,
because the activity is completely localized. So, the substantial affects
theory fails.
b. BUT, Congress can reach the medical MJ under the NPC. In order to
safeguard a comprehensive regulatory scheme, Congress can sweep in
incidental, local commercial activity under the NPC.
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v. Holding/Rule: 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.
vi. Aftermath: The Act is still in effect, but several states have nevertheless legalized MJ use.
At any point, the government could stop the sales if it’s willing to give it the time.
e. National Federation of Independent Business v. Sebelius: SCOTUS / Roberts, 2012

i. Historical Background
1. Obama Care extended the reach of health care via two provisions:
a. Guaranteed Issue: Everyone has right to purchase insurance; and
b. Community Rating: Everyone is entitled to health insurance based on
general prices of the health care community (not based on pre-existing
conditions).
2. These provisions encouraged healthy people to wait to get sick before purchasing
insurance.
3. To undermine the incentive to wait, Congress imposes a mandate, requiring that
every person who is required to buy government-based health insurance, or pay a
penalty tax.
ii. Issue: Does Congress have the constitutional authority to pass the individual mandate (and
require people to buy health insurance they were not inclined to buy)?
iii. Sebelius’s Broccoli Argument
1. Congress is attempting to force people to do something. Could it also force people
to buy and eat broccoli? Where is the limiting principle?
iv. Government Argument 1: Distinguishes Healthcare
1. Everyone will need it sooner or later;
2. It is unpredictable as to when people will need it;
3. Healthcare is very expensive; and
4. There is a serious cost-shifting problem with healthcare when people wait to
purchase until they are sick.
v. Government Argument 2: Healthcare as an Interstate Business
1. A huge amount of interstate business is devoted to healthcare, which everyone
concedes is a part of interstate commerce.
2. SCOTUS determines that there is no interstate connection in this situation because
it involves forcing someone to buy something they don’t want.
vi. Distinguished from Wickard
1. The wheat market was already a part of interstate commerce.
2. Here, there is no commerce already in existence. Congress is attempting to create a
commerce so that it can regulate it.
a. Congress itself created the incentive to wait, so Congress cannot use the
Commerce Clause to defeat this problem in an unconstitutional way.
vii. Rule/Holding: Congress does not have the power to force people to buy something under
the Commerce Clause.
1. Court split: 5/4
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V. TENTH AMEND. AND FEDERALISM AS LIMIT ON CONGRESS POWER
Does legislation fall within the scope of powers granted to Congress in the Constitution?
1) The major accomplishment of the Rehnquist Court was the establishment of the judicial role played in
defining the boundaries of federalism, through both the Commerce Clause (see above) and the Tenth
Amendment (about to discuss).
2) National League of Cities v. Usery: SCOTUS / Rehnquist, 1976

i. Congress passed a law that extended the FLSA requirements to state government
employees, requiring overtime payment for any state employee who worked overtime.
ii. Alabama State Troopers were sometimes forced to work overtime (e.g. during a natural
disaster) but the state couldn’t afford to pay such overtime, so instead gave release time.
The troopers argued that overtime payments would force to cut funding to other programs.
iii. Court held that the Tenth Amendment barred Congress from making federal minimum
wage and overtime rules applicable to state and municipal employees.
b. Issue: May Congress regulate state employers via the FLSA under its Commerce Clause power?
c. Rule/Holding: The FLSA as applied to state employee violates the Tenth Amendment.
d. The Majority’s Reasoning (as defined in Hodell)
i. The test to determine if Congress had intruded on state sovereignty by interfering with
traditional state functions when:
1. The law regulates the states as individual states;
2. The law addresses matters that are indisputable attributes of state sovereignty;
3. The states’ compliance with the law would directly impair their ability to structure
integral operations in areas of traditional state government functions.
ii. Blackman (in his concurrence that was essential to the majority) added a fourth factor:
1. There must be a balancing test determination between national and state interests.
iii. Although the overtime affected interstate commerce, SCOTUS held that the Tenth
Amendment barred Congress from forcing state governments to pay overtime and displace
state decision-making while forcing restructuring.
3) Garcia v. San Antonio Metropolitan Transit Authority: SCOTUS / Blackmun, 1985

BYE BYE USERY
a. Historical Background: Following Usery, numerous challenges (over 300 lower court and 4
SCOTUS cases) were made to federal regulations on state activity and SCOTUS was over it.
b. Holding: 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.
c. Reasoning for Overruling Usery
i. Unworkability: The Usery test proved unworkable because it failed to define the traditional
areas of state sovereignty to which the immunity applied.
ii. Political Safeguards: The primary protection of state sovereignty is the structure of the
Constitution and its political process, and not the judiciary.
d. The Powell and O’Connor Dissents
i. Constitutional structure is key but also alone insufficient to protect for state sovereignty.
1. Just because Congressmen are individuals, does not mean they are looking out for
individual rights. Prior to the Seventeenth Amendment, senators were elected by
state legislatures to represent the states as states. Now, direct election of senators
reduces the loyalty senators have to state governments, and senators often view
their role as employed by the federal government, not their state.
ii. So, there remains a need for judicial protection.
e. Rehnquist’s Dissent: We lost Usery, but we’ll be back.
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4) New York v. United States: SCOTUS / O’Connor, 1992
The Comeback Case
i. Congress enacted the Low-Level Radioactive Waste Policy Amendments Act to encourage
states to adopt programs to dispose of their own waste by creating three incentives:
1. A monetary incentive to encourage states to open waste sites (constitutional);
2. An access incentive to allow states without sites to be denied access to other states’
sites (constitutional); and
3. A take-title provision which required a state, upon request of a waste-generator
within its borders, to take title to the waste and pay damages to the generator for
any harm caused by the state’s failure to take title (PROBLEM).
b. Procedural Background: New York, who couldn’t get their ish together and settle on an in-state
disposal site, sued claiming the Act was unconstitutional under the Tenth Amendment.
c. Issue: May Congress compel states to enact or administer a federal regulatory program?
d. Role of the Tenth Amendment
i. The Tenth Amendment does not independently create limits on Congressional powers, but
is rather a reminder that there are limits to Congress’s power inherent in the federal
constitutional structure.
ii. Via Darby, that states get the leftover power.
e. The Take-Title Provision
i. The Take-Title Provision creates two unconstitutional choices:
1. Take title to the waste, or
2. Adopt Congress’s legislation.
ii. Anti-Commandeering Principle
1. Congress cannot commandeer states to carry out federal regulation because it blurs
the lines of accountability. Congress cannot force blame on state legislatures,
which would happen if Congress requires the states to enforce a federal program
that unpopular or ineffective because the public will focus on the fact that state
officials were responsible for executing the program.
2. It is essential for state sovereignty that states set their own legislative agendas.
iii. The Government’s Counter Argument to the Anti-Commandeering Principle
1. Use the Usery Balancing Test: the disposal of such waste is a huge national
problem, and Usery’s balancing test should be applied.
2. SCOTUS reject this argument by saying there is no room for balancing here. The
anti-commandeering principle is a per se, black letter rule.
a. Also, the Constitution protects us against our own best intentions including
the desire to consolidate power to solve pressing problems.
f. Legitimate Ways Congress Can Solve This Problem
i. The Spending Power (aka bribery): Congress can make funding available to the states with
conditions attached.
ii. The Supremacy Clause: Congress can give the states the choice of regulating themselves or
submitting to federal preemption.
iii. Authorize a Discriminatory Tax: A state cannot in and of itself pass a discriminatory tax on
interstate commerce, but Congress can provide authorization to do so.
g. Holding: Congress may not compel states to enact or administer a federal regulatory program.
h. White’s Dissent
i. NY consented to this compact; this is an example of cooperative federalism.
ii. O’Conner rejects this by saying this is not about the states… this is about the individual
people. NY cannot waive the federalism protection for its citizens.
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5) Printz v. United States: SCOTUS / Scalia, 1992
The Brady Bill
a. Background: The Brady Handgun Violence Prevention Act requires state and local law
enforcement officers (CLEOs) to perform background checks on gun purchasers as an interim
measure. Two CLEOs sued arguing anti-commandeering principles made the act unconstitutional.
b. Issue: May Congress compel state officials to participate in administering federal programs?
c. SCOTUS’s Reasoning (drawn from constitutional structure, like in New York)
i. Accountability: As a matter of federalism, there has to be someone obviously accountable.
ii. Separation of Powers: At the Constitutional Convention, the Framers purposefully decided
on a unitary executive (as opposed to an executive committee) to avoid the blame game.
1. If you allow Congress to delegate federal executive authority to state officials
(CLEOs, here), it undermines the ability of the president to carry out the law.
iii. Necessary and Proper Clause: The N&PC cannot allow Congress to do something that the
Constitution would not allow them to do; a law in derogation of basic postulates of
constitutional structure can’t be a proper means of effectuating an enumerated power.
d. Holding/Rule: Congress may not compel state officials to participate in the administration of
federal programs.
e. Why the Fed Gov can Commandeer State Courts, unlike State Legislatures or Executives…
i. Article VI / Supremacy Clause: State courts, unlike the legislative or executive branches,
are required to apply and give deference to federal law; it speaks specifically to state
judges.
ii. The Full Faith and Credit Clause: State courts are under obligation to give full faith and
credit to judgments from other states.
iii. Article III: The Constitution created a Supreme Court, but left it up to Congress to create
lower level courts.
SANCTUARY CITIES!!!
VI. THE SPENDING POWER

1) Conditional spending is one of Congress’s most potent weapons to get the states to do its bidding.
2) United States v. Butler: SCOTUS / Roberts, 1936

The First Interpretation of the Spending Clause
a. Background: Congress passed the Agriculture Adjustment Act to set limits on the production of certain
crops and tax farmers that exceed those limits (meant to combat oversupply during the depression). It
imposed a tax on processors of farm products, and paid the proceed to farmers who reduced their crops.
b. Issue: Is the tax imposed on farmers by the Agricultural Adjustment Act a constitutional exercise of
Congress’s taxing and spending power?
c. Government Argument 1: Congress ahs the right to regulate anything in support of the general welfare and
spending money to support agricultural prices did just that.
i. SCOTUS’s Reasoning: SCOTUS rejects this on the grounds that it would give Congress unbridled
police power: if Congress can regulate anything under the umbrella of “general welfare,” then the
Constitutions enumeration of powers are irrelevant.
d. Government Argument 2: General welfare is all inclusive.
i. The Madisonian View: “General welfare” merely gives Congress the ability to tax and spend to
carry out its other enumerated powers.
ii. The Hamiltonian View: “General welfare” gives Congress a wholly separate enumerated power to
tax and spend as long as it is in furtherance of the general welfare.
iii. After adopting the Hamiltonian view, general welfare seems like a term that has some independent
significance, but then J. Roberts tries to turn around and change this adopted view. Argues that
this case at present is not spending for the general welfare.
iv. SCOTUS’s Reasoning: SCOTUS goes with the Hamiltonian view.
1. However, this power is limited by the Tenth Amendment state sovereignty concerns.
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2. And the AAA violates state sovereignty by seeking to invade states’ rights to regulate and
control their own agricultural production.
a. Just as you cannot regulate state activity, you cannot spend for state activity if the
purpose of spending is to effect state behavior.
b. By contractually requiring farmer agrees to limit production, it becomes coercive.
e. Holding: Since Congress has no power to regulate and control agricultural production, it follows that
Congress may not indirectly accomplish that end through its taxing and spending powers.
f. Rule: 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.
g. Stone’s Dissent: This tax isn’t coercive because farmers aren’t required to take the money. The tax is an
incentive, not coercion. If Congress gives people money, they ought to be able to tell them how to use it.
h. Aftermath: The dual federalism approach was rejected the next year. Congress was able to directly regulate
spending for agricultural reasons related to general welfare by removing the Tenth Amendment barrier.
i. The Commerce Clause is the single most important regulatory power, but spending power is a close second.
3) South Dakota v. Dole: SCOTUS / Rehnquist, 1987

Limits on the Spending Clause
a. Conditional Spending: When the federal government gives states conditional money.
b. Background: A law was passed allowing the Secretary of Transportation to withhold federal highway funds
from states who allowed people under the age of 21 to purchase alcohol. Congress reasoned a strong
relationship between drunk driving and highway safety.
c. Issue: May Congress withhold federal funds to states that do not comply with federally imposed conditions?
d. The Dole Test (to determine appropriate use of conditional spending):
i. Must be pursuant to the general welfare;
ii. The conditions must be unambiguous (so states know what they’re voluntarily agreeing to);
iii. A reasonable relationship must exist between what the money is to spent on and the conditions that
are attached.
1. This is the most significant criteria in Dole test-most litigated.
2. The Courts are generally deferential to Congress in this regard.
iv. Congress can’t use the Spending Clause to violate constitutional provisions.
VII. THE TAXING POWER

1) National Federation of Independent Business v. Sebelius: SCOTUS / Roberts, 2012
a. Background
i. Prior to the ACA, Medicaid covered a relatively limited number of people. The ACA expanded this
coverage to all adults under 65 who were under a certain poverty level. Also, the quality of the
policy provided was expanded to include significant benefits.
1. On Commerce Clause issue, Court split 5/4; on Spending Clause issue, Court split 7/2.
ii. Under the ACA, the states would eventually be required to cover 10% of the expansion costs. If the
states refused to cover these costs, they would lose ALL Medicaid funding.
1. The states argue that the expansion provision would be catastrophic, eating up substantial
portions of state budgets.
b. Issue: Does Congress have the constitutional authority to pass the Medicaid expansion provision?
c. Government Argument 1: The Spending Power
i. Congress claims they expansion provision fits snuggly under the theory of conditional spending,
which is a crucial element of the Spending Clause.
ii. Expansion is a voluntary choice, but the funds are conditioned on this choice.
iii. Congress was so certain states would concede that they had no Plan B.
iv. SCOTUS’s Reasoning
1. The threat to the states with taking away a large portion of their budget leaves them with a
huge new issue and crosses the line of coercion; the states have no voluntary choice.
2. The condition is placed on the all Medicaid funding, rather than just the expansion. This is
a violation of the Dole Test’s “reasonable relationship” criteria.
v. Ultimately, four justices (“the Ginsberg Four”) voted in favor of this argument (4 Spending vote + 1
Tax vote = majority).
1. Ginsberg says that this holding against the Commerce Clause is mere dicta b/c Roberts.
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a. Roberts argued that the holding against the Commerce Clause was not dicta
because Congress’s main defense was the Commerce Clause.
d. Government Argument 2: The Taxing Power
i. In oral argument, the government dedicated only one footnote to justification via the taxing power.
ii. Baby Issue: Is this a tax or a penalty.
1. Tax = Raises revenue to support the government.
2. Penalty = Punishment for violation of law.
iii. Robert’s Reasoning
1. For purposes of the Anti-Injunction Act, it is a penalty.
a. If the AIA applied, the case would have to be dismissed as premature because the
AIA requires a tax be paid FIRST and challenged SECOND.
2. For purposes of constitutionality, it is a tax.
iv. Dissenter’s Argument: It can’t be both.
1. Tax
a. The fee is collected by the IRS.
b. The fee is paid via income tax forms.
c. The fee is calculated based on income.
2. Penalty
a. Congress referred to this as a “penalty” 18 times, and zero times as a tax.
i. In an earlier version of the act, Congress referred to it as a “tax” before
changing it to penalty (canon of construction = deliberate changes).
b. In a CNN interview with Obama, Obama denied this was a tax.
c. If this were a tax, it would be included in the revenue portion of the bill.
d. If you don’t buy insurance, you are penalized.
v. Roberts is the only justice who voted in favor of the taxing power argument but (4 Spending + 1 Tax
vote = majority).
e. Rule/Holding: The individual mandate contained in ACA is a valid use of Congress’s power to tax.
f. Ultimately…
i. Commerce Clause: 5/4 ACA is valid under the Commerce Clause
ii. The Spending Power: 7/2 ACA is not valid under the Spending Power
iii. The Taxing Power: 5/4 ACA is valid under the Taxing Power
VIII. LIMITING SCOPE OF STATE POWER OVER INTERSTATE COMMERCE

A. DORMANT COMMERCE CLAUSE
1) Up until now, we have addressed cases under the affirmative commerce clause where Congress has acted based on
the Commerce Clause and Congress has reviewed those actions.
2) The dormant commerce clause assumes a situation where Congress hasn’t acted at all. Instead, the states have
passed regulation that SCOTUS must review.
3) The three main DCC cases are as follows:

a. Gibbons v. Ogden: SCOTUS / Marshall, 1824: Assumed that if Congress failed to regulate an area
of interstate commerce, then the state has full ability to regulate.
b. Wilson v. Blackbird Creek: SCOTUS / Marshall, 1829: Held that state dam on navigable water
can be regulated by the state under the police power.
c. Cooley v. Board of Wardens: SCOTUS / Curtis, 1852: See below.
4) Cooley v. Board of Wardens: SCOTUS / Curtis, 1852

a. Background: Pennsylvania passed a law requiring all ships entering or leaving the Port of
Philadelphia to use a local Pennsylvania captain, or to pay a fine amounting to half the fee for a
local pilot that went to support retired Pennsylvania pilots.
b. Issue: Whether Pennsylvania’s law is a constitutional regulation of pilotage in general based on the
Commerce Clause.
c. The Cooley Test: What is being regulated? If it requires national uniformity, then the state cannot
regulate. If it is local in nature, then the state should regulate.
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d. Holding: The regulation of local ports is of a purely local character (all harbors are different).
e. Rule: 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.
5) Ways to analyze Dormant Commerce Clause issues by effect on interstate commerce:

a. Burden on Commerce: When a state imposes a burden on interstate commerce, it is generally
unconstitutional (determined by a balancing test).
b. Discrimination: There is strict scrutiny against discrimination; if state law discrimination against out-of-
staters, the law will only be upheld if this is a critical state interest involved.
i. Elements of Strict Scrutiny:
1. Compelling state interest;
2. Narrowly tailored (close relationship between the means and the ends); and
3. No other non-discriminatory alternatives.
c. Protectionism: Per se unconstitutional; this is discrimination against out-of-staters for an illegitimate
purpose (such as reducing competition).
6) Southern Pacific Co. v. Arizona: SCOTUS / Stone, 1945

Burden v. Benefit Analysis
a. Background
i. Arizona passed the Arizona Train Limit Law, which made it unlawful for any person or corporation
to operate a train longer than a certain length. The state collected a fee from any violators.
ii. Southern Pacific Co. had to shorten the length of its trains any time it passed through Arizona,
resulting in higher costs and lower efficiency.
b. Issue: Whether the Arizona law restricting the length of trains passing through its borders was an
unconstitutional limitation on interstate commerce.
c. Arizona’s Argument: This regulation falls under the police power because it is a safety statute (the longer
the train, the more potential for slack action). Also, this requirement treats intrastate commerce the same.
d. Holding
i. Balancing test = state’s minimal interest in safety benefits v. large burden on interstate commerce.
ii. The practical effect of the Arizona law is that trains passing through Arizona to other states are
required to either disassemble their cars into multiple trains, or bypass the state altogether.
e. Rule: In the absence of congressional legislation, when the practical effect of the state’s regulation places a
greater burden on interstate commerce, the judiciary may balance the burdens and strike down the state law.
7) Kassel v. Consolidated Freightways Corp.: SCOTUS / Powell, 1981

a. Background: Iowa prohibited the use of most trucks longer than 55’ within the state’s borders, justifying the
law as a necessity for highway safety (decrease accidents).
i. This effected both in and out-of-state truckers, but Iowa truckers commonly used the shorter trucks.
b. SCOTUS’s Analysis: BURDEN ON COMMERCE
i. THE BALANCE:
1. The burden on the trucking companies will be severe.
a. This law forced Consolidated, who preferred to use 60’ trucks, to use other trailer
options, detach its trailers at the Iowa border, or divert its trucks around the state.
2. The police power safety benefits are minimal.
a. Although the longer trucks might cause a type of accident that the shorter trucks
do not, more short trucks on the road will statistically create more accidents.
c. Brennan’s Concurrence: PROTECTIONISM
i. Iowa is trying to export accidents. It is protecting its own citizens against accidents, sending those
accidents elsewhere.
1. The protectionism is in terms of citizens, not market. Iowa is trying to protect its own
citizens at the expense of the citizens in other states.
d. Rehnquist Dissent
i. It is not the courts job to balance the competing factors and determine whether the safety risks posed
by the longer trucks were great enough to justify a law banning their use on Iowa’s highways.
ii. Also, focusing on the smaller incremental safety benefits between a 55’ and 60’ truck are
inconsequential. (But if you look at the difference between a 55’ and 105’ truck, you would
probably see a significant difference.)
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e. Rule: Under the DCC, a state law that heavily burdens interstate commerce while only marginally furthering
a state health and safety purpose is unconstitutional.
f. Protectionism Takeaway: Courts are hesitant to find protectionism, when burden on commerce or
discrimination can instead be found. Protectionism imputes bad motives on the states (shames them for not
knowing better). The other analysis options find good intentions, with faulty delivery.
8) Dean Milk Co. v. City of Madison, Wisconsin: SCOTUS / Clark, 1951

a. Background: The City of Madison passed a law making it unlawful to sell milk unless it was pasteurized by
a plant within a 5-mile radius of the city.
i. This 5-mile radius made it easier to inspect the facilities and insure milk quality.
b. SCOTUS’s Analysis: DISCRIMINATION
i. This rule discriminates against both out-of-state processors, but also in-state processors.
ii. Just because it discriminates against some in-state does not mean it is not discriminatory. As long
as it discriminates against all out-of-staters, it is a discrimination case.
iii. This cannot be a Burden on Commerce case because the political process doesn’t provide sufficient
relief to out-of-staters. They have no say in Iowa’s political process = discrimination.
iv. So. why does this fail strict scrutiny?
1. DISCRIMINATORY ALTERNATIVES ANALYSIS: There was a better, non-
discriminatory way to carry out the state interest.
a. E.g. Inspect the processing plants wherever they may be (in-state or out-of-state),
and then bill the processors for any expense incurred for the inspection.
b. The problem with this is that alternatives are often less efficient.
c. Also, sometimes alternatives are unconstitutional themselves.
c. Rule: A state statute that discriminates against interstate commerce will be held invalid if there are other
less-discriminatory means by which the state legislature can accomplish its objective.
9) City of Philadelphia v. New Jersey: SCOTUS / Stewart, 1978

a. Background: NJ is a small state, bordered by the two larger states of Pennsylvania and New York. These
larger states like to dump their waste in NJ. Because NJ was running out of landfill space, it passed a law
prohibiting the importing of waste that originated from other states.
i. NJ said the purpose of this law was to protect the environment.
b. FYI, courts consider waste a commodity that moves in interstate commerce.
c. SCOTUS’s Analysis: DISCRIMINATION
i. Although the environment is a legitimate state concern, this does not make the statute immune from
the DCC. Environmental protection ≠ get out of jail free card.
ii. States do not have the right to hoard their own natural resources (hoarding = protectionism). And
landfills are a natural resource.
1. So, NJ can’t protect its own landfills at the expense of other states.
iii. Also, there are also other non-discriminatory means to the waste issue.
1. E.g. Some form of waste rationing.
10) Maine v. Taylor: SCOTUS / Blackmun, 1986

Illustrates the difference between discrimination and protectionism.
a. Background: Maine passed a law preventing the import of out-of-state minnows to protect the environment
of Maine waters after concluding that out-of-state minnows brought diseases into Maine waters and
interfered with the ecosystem.
i. In the process of passing the law, a member of the legislature said this would also be a good way to
protect the state minnow industry
b. Taylor’s Argument: This law is protectionism because of the legislature’s comment.
c. SCOTUS’s Reasoning
i. There is a compelling state interest (protection of the ecosystem); and
ii. There are no other alternatives.
iii. AKA the comment by the sole legislature doesn’t matter because of the legit interest.
d. This is a rare discrimination case where the state overcomes the heavy burden of strict scrutiny.
e. Rule: States may prohibit the importation of out-of-state goods as long as the prohibition serves a legitimate
local purpose, and there are no available less discriminatory means to accomplish that same purpose.
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11) Hunt v. Washington State Apple Advertising: SCOTUS / Burger, 1977
a. Background: NC passed a law that banned apple sellers from posting state grades, instead requiring they
post USDA grades on their cartons. Washington had developed an incredibly superior grading system.
b. SCOTUS’s Reasoning
i. BURDEN ON COMMERCE
1. The burden is carried by both in-state and out-of-state apple sellers.
2. The benefit of providing consistent information to consumers is slight.
3. The burden on sellers to adapt to the USDA grading is heavy (costly!).
ii. DISCRIMINATION
1. WA applies a different standard to out-of-state shippers than in-state shippers; it eliminates
the advantage WA has established because requiring the USDA standards would strip WA
of its competitive advantage.
2. Leveling the playing field ultimately benefits local sellers.
iii. PROTECTIONISM? N/A
1. SCOTUS wants to avoid protectionism at all costs. Because there was both a burden on
commerce and discrimination analysis, SCOTUS foregoes the protectionist analysis.
12) West Lynn Creamery Inc. v. Healy: SCOTUS / Stevens, 1994

a. Background: Massachusetts imposed a tax on all milk sold to MA retailers by dealers. The tax was then
used to subsidize MA dairy farmers, to help them compete in the national milk market.
b. Healy’s Argument: Both of the two pieces of this legislative plan are independently constitutional.
i. A non-discriminatory tax is constitutional.
1. MA taxed both in-state and out-of-state dealers.
ii. A subsidy for local industry is constitutional.
c. SCOTUS’s Reasoning: When you combine these two constitutional pieces, they become a tariff, which is
unconstitutional.
d. Scalia’s Concurrence
i. Standards for evaluating the constitutionality of state regulations…
1. Pure Discrimination
2. Non-discriminatory Tax with Discriminatory In-State Exemptions
3. Non-discriminatory Tax with Revenue Eventually Passed to Local Industry
a. THIS CASE.
b. Scalia says this is really no different from 2.
4. Subsidy to Local Industry from General Revenue
a. This standard is arguably completely constitutional.
13) Market Participant Doctrine

a. States may discriminate when they act as participants in the market (exempt from the scrutiny of
the DCC), but not when they act as regulators.
b. Reasoning: When states participate in the market, they take the same risks as private businesses,
and should be free to exercise similar discretion as to parties they do business with.
c. BUT, unlike private businesses, when a state participates in the market, it has the additional
advantage of subsidization by taxation that private business do not have.
d. Originated in Hughes v. Alexandria Scrap Corp.: SCOTUS / Powell, 1976.
i. Maryland was a market-participant in the disposal of junk automobile (buying cars in
exchange for bounty, with more stringent requirements for out-of-state processors).
e. But see South Central Timber Development, Inc. v. Wunnicke: SCOTUS / White, 1984.
i. SCT finds that there are limits to the Market Participant Doctrine.
ii. Alaska announced a sell of timber, conditional on the buyer partially processing the timber
in-state. Alaska charged a significantly lower price for the timber with the processing
requirement than it otherwise would have.
iii. Although Alaska was a market-participant in timber selling, it went too far by extending
the MPD downstream with the condition.
1. Timber processing ≠ timber sales.
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14) SCOTUS permits congress to overrule a DCC decision.
a. If SCOTUS says a state law is unduly burdensome or discriminates against interstate commerce,
Congress can come along and say otherwise.
b. In such a case, SCOTUS will allow Congress to reverse its decision.
c. The rationale behind this is the Congress is the king of the DCC. Congress could, if it so chose,
regulate the totality of the DCC. But Congress does not have the time to do this, so it leaves the
regulation up to the courts.
B. PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV

 The citizens of each state are entitled to all privilege and immunities of those of several states.
 The P&IC is an interstate, non-discrim equality principle: states may not discriminate against non-residents.
 The P&IC is most often seen in employment situations.
 The P&IC applies only to fundamental rights (e.g. not to elevated elk-hunting costs).
 There is a lot of overlap between the P&IC and the DCC. The theories are often asserted together.
 A non-citizen can only be denied the rights of citizens for a legitimate reason to do so (e.g. voting).
 The P&IC is limited to citizens and does not extend to corporations.
15) DIFFERENCES B/W THE DCC AND THE P&IC

a. Corporations may bring DCC challenges but not P&IC challenges (P&IC is limited to citizens).
b. The Market Participant Doctrine applies under the DCC but not the P&IC.
c. The standard of review for DCC is more like strict scrutiny; the standard of review for P&IC is an
intermediate standard of review/balancing test.
d. Congress can consent to a DCC violation but not a P&I violation.
C. PREEMPTION
16) Any federal law takes precedence over state law.
a. We saw this in Gibbons v. Ogden.
17) Preemption is not an exclusive Commerce clause issue, as it applies in any area of federal power. But
preemption is applied frequently under the DCC.
18) Ways Congress Can Preempt State Law
a. Explicit Preemption
i. Congress can simply say that a federal statute is intended to preempt all related state
legislation. If the state law falls within that area of legislation, it is preempted.
b. Conflict Preemption
i. The most common preemption case.
ii. If the obligations under state legislation are inconsistent with obligations under federal
regulation, then state statute is preempted.
1. Compliance with both state and federal law is impossible
iii. If Congress only sets a minimum standard, a higher state standard is not in conflict.
iv. Frequently, courts have to analyze conflicts based on congressional intent: when Congress
passed this particular federal statute, did they intend to preempt state statutes?
1. The problem with this is that, more often than not, Congress never even consider
the questioned state statute.
2. So, the courts must determine what Congress would have thought, had they
thought about it.
c. Implied Field Preemption
i. This type of preemption rarely occurs.
ii. When Congress’s regulations are so pervasive in a particular field, there is no room for
states to supplement it, even if state regulation is not in conflict with it (e.g. national
security).
iii. This differs from Explicit Preemption because it requires an educement that Congress
intended to take over the entire field without explicitly saying as much.
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IX. SEPARATION OF POWERS
Art I = LEGISLATIVE POWER
Art II = EXECUTIVE POWER
Art III = JUDICIAL POWER
1) Two constitutional limitations on abuse of powers:

a. Federalism = a horizontal division of power between federal and state governments
b. Separation of powers = a vertical division of power at the federal level, dividing the government between
executive, legislation, and judiciary
2) Youngstown Sheet & Tube Co. v. Sawyer: SCOTUS / Black, 1952
a. Background: Fearful of the effect a steel shortage during the Korean War would have on national
defense and facing non-action by Congress, President Truman executively ordered the nation’s
mills seized so that they would resume production, despite the threat of strike.
i. Youngstown, a mill operator, sued on the ground that Truman didn’t have the authority to
force the mills to remain open.
ii. The district court issued an injunction on the seizure.
1. In arguing in the district court, the AG made the “legal blunder of the century” in
saying that the president’s authority is unlimited. This pissed off the citizens,
making the seizure of the mills publicly unpopular.
iii. Because of the national emergency, SCOTUS granted cert before the DC Circuit could
hear the appeal.
iv. SCOTUS issued their opinion in a matter of three weeks.
c. Issue: May the President, under his executive powers, issue a lawmaking order directing the
Secretary of Commerce to take possession of and operate most of the nation’s steel mills?
d. The Government’s Arguments for Grounds of Authority to Seize

i. The Vesting Power (a textual argument)
1. This is arguably the weakest theory argued.
2. The vesting clause vests executive authority in the president, giving the president
the right to seize the steel mills.
3. SCOTUS’s Reasoning: The vesting clause to simply divides up the various
powers between the branches. If it is the president’s power, then it is not the
court’s or Congress’s. But the clause doesn’t tell us what the executive power is.
ii. Commander in Chief (a textual argument)
1. This is the strongest textual argument argued.
2. As CIC, the president ought to be able to size the steel mills to support the war.
3. SCOTUS’s Reasoning: The military power is a shared power.
a. The Framers were fearful of abuse of power so both the president and
congress have joint and interlocking control of the military.
b. The president is CIC over the military, but not over the country. The
president cannot use the military power domestically.
iii. Faithfully Executing the Law (a textual argument)
1. A primary duty of the president is to take care that the laws are faithfully executed.
2. SCOTUS’s Reasoning: This argument does nothing because there is no existing
law allowing the seizure of steel mills. Instead, the president is creating a new law,
which he does not have the right to do.
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iv. Inherent/Emergency Power (a non-textual argument)
1. The president is charged with protecting the nation and has inherent emergency
power to do so. Even though there may be no textual support of a particular action,
the very nature of his institution gives him the power to act in an emergency.
2. SCOTUS’s Reasoning: The Framers had to have anticipated emergency situations
but chose not to include emergency powers. So there are none.
a. Emergency powers are dangerous. Emergency powers beget emergencies.
b. It simply would be easier if Congress would give the president the power
to take this specific action.
i. In the modern world, Congress can quickly reassemble in
emergency situations to do so.
e. Jackson’s Concurrence
i. This opinion overshadows the majority.
ii. There are three situations in which a president’s power may be challenged:
The “tri-part framework…”
1. Separation of powers: When the president acts with congressional approval, he has
maximum authority, but does the federal government have this power?
2. Twilight zone: When Congress is silent on an issue, does the president have the
power to act without congressional authorization based on custom or text?
3. Measure incompatible with the will of Congress: When the president acts
incompatibly with Congress, is this a power that Congress can interfere with?
a. We are working with category three here but there was never a law passed
to keep the president from seizing the steel mills.
b. Senate discussed such a power for the Taft-Hartley Act discussions but
rejected it in the debate. So, SCOTUS considers it rejected.
f. Frankfurter’s Concurrence: There are a few circumstances in which the president could act
without legislative support that Congress is comfortable with. (This, however, is not such a case.)
i. “Gloss on the constitution”
1. If presidents, (1) over a long period of time have taken (2) a certain type of action
and (3) Congress has known about and acquiesced to it, the power to take that
action becomes as if it was built into the Constitution itself.
2. Tradition, history, and practice ought to be given enormous weight.
ii. As a general rule, separation of powers issues get worked out in the political process and
are rarely adjudicated.
g. Vinson’s Dissent: There are over 100+ unchallenged examples of when a president has acted. So,
what’s the big deal here?
i. Frankfurter’s Reasoning: Virtually none of these instances are comparable to this case.
1. The only three Frankfurter can’t distinguish are three instances with FDR before
WWII, but Frankfurter says that these are still not enough to create a gloss on the
Constitution.
h. Holding: Because Congress expressly rejected the use of seizure to solve labor disputes as
unconstitutional in drafting the Taft-Hartley Act and there is no express authority in the
Constitution that justifies the President’s actions, Truman is powerless.
i. Rule: The president may not engage in lawmaking activity absent an express authorization from
Congress or the text of the Constitution.
********************************************************************************************
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A. POWER OVER FOREIGN AFFAIRS
3) United States v. Curtiss-Wright Export Corp: SCOTUS / Sutherland, 1936

a. Note, this case ultimately conflicts with Youngstown but both cases are still good law because Curtiss-
Wright was decided under the Foreign Affairs umbrella.
i. Under the Youngstown tri-part analysis, this would fall under Category 1.
1. However, SCOTUS analyzes this as a Category 2 case because they are concerned with
any overbroad delegation by Congress to the executive branch.
b. Background
i. Congress passed a resolution authorizing the President to stop the sale of arms to countries involved
in the Chaco border dispute. That same day, President Roosevelt issued an executive order
prohibiting munitions sales to warring countries involved in the Chaco border dispute.
ii. Curtiss-Wright was indicted for allegedly conspiring to sell 15 machine guns to Bolivia.
c. SCOTUS’s Theories for Upholding the Presidential Action without Congressional Authority:
i. All Foreign Affairs Powers are NOT Enumerated
1. Normally, the Constitution is viewed as limiting power. The branches of the government
only have the powers enumerated in the Constitution.
2. This is NOT the case with foreign affairs.
a. The reason for enumeration is to divide up the powers between the federal and
state governments. But, the states will never individually have foreign affair
powers.
b. Presidential sovereignty in foreign affairs power came from the English Crown. It
does not come from the Constitution, and so constitutional limitations cannot
apply.
i. A potential problem with this is that the president is essentially unbound
in the foreign affairs arena (no checks or balances).
ii. One Voice (structural argument)
1. There must be one voice who speaks for the nation
2. Foreign nations need to know who is speaking for the nation.
3. Also, the president has the apparatus to obtain confidential information and sure knowledge
(ambassadors, CIA, etc.)
4) The Two Foreign Affairs Opinions

a. If you want to make a broad claim for presidential authority, you rely on Curtiss-Wright
b. If you want to limit the president’s powers through Congress, you rely on Youngstown.
5) Zivotofsky v. Kerry: SCOTUS / Kennedy, 2015

a. This case illustrates that not all is lost if the president finds himself in a Category 3 situation.
b. President Truman had recognized Jerusalem as a separate entity for Israel. But Congress recognized
Jerusalem, Israel as a location for birth records on passports.
c. Although the president was acting in an incompatible way with Congress, SCOTUS held he had the authority
to do so because the President must have the power to recognize governments.
6) Dames & Moore v. Regan: SCOTUS / Rehnquist, 1981

a. Background: President Carter entered into a deal with Iran: American hostages returned, in exchange for the
suspension of American claims on Iranian assets (all existing claims against Iran would be referred to a
special claims tribunal, meaning those owed money would receive 25 cents to the dollar).
b. SCOTUS considered this a Category 1 case because the president acted pursuant to the IEEPA, although it
was more realistically a Category 2 case because it did not explicitly allow suspension of claims.
c. SCOTUS’s Reasoning: Although not specifically stated in statute, Congress has given the president
authority to dismiss claims in the past, implicitly approving of the president’s action in this case.
d. Holding: The president has authority to settle such claims where Congress acquiesces.
e. As a practical matter, SCOTUS did not have a choice. The US could not renege on this deal.
f. SCOTUS should have considered this a political question that it did not have the authority to second guess
the president or Congress in foreign affairs.
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7) The Prize Cases: SCOTUS / Grier, 1863
i. The Constitution divides the war power between two branches:
1. The Executive Branch: The president is the Commander-in-Chief; and is empowered to
make treaties.
2. The Legislative Branch: Congress can declare war; and raise and support armies and
navies.
b. Factual Background:
i. The Doctrine of Prize states that, in the context of war, a nation can seize ships from other nations
that are supplying the enemy and auction of the proceeds of that seizure as prizes of war.
ii. Following the commencement of the Civil War, Lincoln imposed a blockade on Southern ports and
seized various ships attempting to supply those ports.
iii. Owners of those ships brought an action, claiming that Lincoln could not act under the Doctrine of
Prize because there was no ongoing war.
c. SCOTUS’s Reasoning: War is not a legal matter, it is a factual matter. By the facts, the US was involved in
a civil war.
d. Dissent (Nelson): Civil war can only exist by congressional act, Unless Congress says so, there is no war.
i. In line with this dissent, the War Powers Act was created to check the president’s power to commit
the US to an armed conflict without the consent of Congress.
1. All presidents since this act have ignored it, finding it “unconstitutional.”
THE TREATY POWER

8) Treaties 101
a. Under the Constitution, the president can negotiate a treaty with a foreign nation.
b. A treaty becomes law if ratified by 2/3 of the Senate. The House has no role in ratification.
c. A ratified treaty, pursuant to the Supremacy Clause, is a law of the US.
d. Types of Treaties
i. The non self-executing treaty; and
1. Is legally effective between the parties to the treaty.
2. Would not have any domestic effect in the US.
a. If Congress wants to bind US citizens under the treaty, then Congress has to pass
legislation implementing the treaty.
ii. Self-executing treaty.
1. Binds both international powers and US citizens to the treaty.
e. If a law and a treaty are in conflict, the most recent of the two controls.
9) Missouri v. Holland: SCOTUS / Holmes, 1920

a. Background
i. Congress originally passed a law protecting migratory birds from being hunted in airspace above the
states. SCOTUS struck down this law, holding that birds in the airspace above states were
exclusively under state power and beyond the power of Congress.
ii. So, in a sneaky-sneak move, the president negotiates a treaty with Canada to protect these birds and
Congress passed an implementation act extending the treaty to the US.
b. Issue: Whether a treaty which infringes the rights reserved to the states under the Tenth Amendment may be
considered valid, when an Act of Congress performing the same function would be invalid.
c. Holding: The migratory bird treaty and subsequent Migratory Bird Treaty Act are valid exercises of US
government power.
i. This holding suggests that Congress can get around federalism limitations.
d. Aftermath: This case became insignificant once the courts started rejecting the concept of dual sovereignty.
Instead, Congress could rely on the Commerce Clause instead of treaties.
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10) Bond v. United States: SCOTUS / Roberts, 2014
a. Background
i. The Chemical Weapons Implementation Act prohibits the possession or use of any chemical that
can cause death or temporary or permanent harm to another if not intended for a peaceful purpose; it
was implemented under a multilateral treaty.
ii. A woman poisoned her next-door neighbor who had affair with her husband with chemicals banned
by the Act.
b. Issue: Will a federal statute be interpreted to reach state crimes without clear congressional intent to do so?
i. Clear proof of congressional intent to intrude upon powers traditionally reserved for the states is
necessary before a statute will be interpreted in such a way.
ii. The treaty clearly did not contemplate the type of house hold chemicals used in this situation (meant
to cover terrorism and warfare) and so cannot apply in this situation.
d. Scalia’s Dissent: The implementing act defines chemical weapons to as to cover the conduct here.
11) Executive Agreements

a. An international agreement, usually regarding routine administrative matters not warranting a formal treaty,
made by the executive branch of the US government without ratification by the Senate.
b. The extent to which executive agreements hold power has yet to be determined.
i. They have less power than a treaty, but still some binding effect.
B. PRESIDENTIAL PRIVILEGE
12) United States v. Nixon: SCOTUS / Burger, 1974
a. Procedural Background
i. President Nixon was named as a co-conspirator in various charges relating to what we now know as
the Watergate Scandal.
ii. The United States District Court for the District of Columbia subpoenaed various tapes and
documents relating to specific meetings in which Nixon was a participant.
1. Nixon fired the special prosecutor, Archibald Cox, in the Saturday Night Massacre.
2. Public outrage forced Nixon to appoint a new special prosecutor, Leon Jaworski.
iii. Nixon filed a formal claim of privilege and a motion to quash the subpoenas.
iv. The District Court denied the motion.
v. The United States Supreme Court granted certiorari.
vi. While all this court hoopla is going on, the House adopted a resolution appointing a committee to
consider articles of impeachment against Nixon.
b. Unanimous Opinion: Because of the gravity of the questions and the fact that the Nixon administration had
indicated that it might not obey anything less than a definitive ruling, the justices were convinced that it was
essential they produce a unanimous opinion.
c. Preliminary Issues Addressed

i. JDX: There was a right to appeal from the District Court’s order, despite the fact that the president
had not explicitly refused to obey nor had be been held in contempt (normally, the assertion of
privilege is not an appealable order). This is because it was considered inappropriate to hold the
president in contempt as that would be wildly misunderstood by the public.
ii. Justiciability: Despite the fact that the special prosecutor was a member of the executive branch, the
parties were sufficiently adverse to create a viable case and controversy.
1. This is NOT an inter-branch dispute because the executive order that Nixon passed in
appointing Jaworski protected him against dismissal.
iii. Amenability: The question as to whether the judiciary has the right to serve a subpoena on the
president remained an open question before SCOTUS. It was implicitly decided as “yes” in a lower
court dispute, but was never directly addressed.
1. The only other time when a president had been served a subpoena was during the trial of
Aaron Burr for treason, when President Jefferson was served.
2. SCOTUS relied on this implicit decision in this case when deciding Clinton v. Jones.
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d. Central Issue: Whether there was a constitutionally based privilege with respect to confidential
communications of the president and his close advisors.
i. The Privilege Questions

1. Who decides whether the executive privilege exists?
2. If the privilege exists, what is its scope?
3. How does the privilege apply to the facts of this case?
ii. Nixon’s Arguments (made by James St. Clair):

1. The president decides/interprete whether there was a privilege and the president maintained
there was such a constitutional privilege;
2. The scope of the privilege is absolute, and
3. The privilege applied with full force to the facts of this case.
iii. SCOTUS’s Reasoning

1. SCOTUS determines if the privilege exists.
a. In Marbury, SCOTUS held that “it is emphatically the province and duty of the
judicial department to say what the law is.” So, SCOTUS must decide if there is
presidential confidential communications type-privilege.
i. A counter to this, raised by Gerald Gunter, a constitutionals scholar, was
that a holding that the president had the power to determine privilege
would also be consistent with Marbury.
2. This privilege is qualified (NOT absolute).
a. Confidential Communications Privilege: SCOTUS recognized a legitimate need
(privilege) for the protection of the confidential communications between the
president and his advisors.
b. BUT SCOTUS had to balance confidentiality of the presidential communications
in the oval office v. the ability to do justice in criminal prosecutions.
i. Because this case is unlikely to reoccur, the cost to presidential
communications is slight.
1. A counter-argument is that, if it is a slight cost, then the justice
system would not be shorted by such a privilege.
c. Note, conversations regarding the military, diplomatic, or sensitive national
security secrets do warrant an absolute privilege, however.
i. \A previous case involving executive privilege dealt with an experimental
air force aircraft. The prototype of the aircraft was protected under the
absolute national security privilege.
d. Attorney/Client Privilege: An Analogy
i. A/C exists for the purposes of unfiltered communication between an
attorney and their client. Though same to the privilege disputed here, A/C
is absolute. A prosecutor cannot subpoena an attorney for A/C info.
e. Holding: The denial of the motion to quash the subpoena is affirmed, and in camera hearings were ordered to
review the relevance of the evidence in question.
i. The holding in this case was extremely limited.
f. Rule: A presidential claim of privilege asserting only a generalized interest in confidentiality is not sufficient
to overcome the judicial interest in producing all relevant evidence in a criminal case.
g. Aftermath: Nixon resigns after turning over the “smoking gun” tape where Nixon told the CIA to order the
FBI to cease its investigation.
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C. LEGISLATIVE AUTHORITY
13) The Administrative State
a. Although there are three branches indicated in the Constitution, the Administrative State is the arguable
fourth branch of the government.
b. The AS is centrally concerned with the organization of government policies and programs, as well as the
behavior of officials responsible as such.
c. Powers of the AS (embodies the function of all three federal branches)
i. Adjudicate cases (judicial function)
ii. Pass regulations and rules (legislative function)
iii. Enforce the rules (executory function).
d. Purposes of the AS
i. The Need for Expert Judgment: The modern economy has become increasingly complex (e.g.
energy law, security law), and Congress does not have the time nor expertise to be making such
regulatory policies. So Congress delegates to the AS experts.
ii. Allows Matters to Be Decided Separate from Political Clout: The amount of money involved areas
of the economy put huge pressures on Congress. Because these policies demand decision on
evidence based rational—and not political power—delegation to the AS isolates the decisions from
said political pressure.
1. Isolation from political pressure is assured via…
a. Staggered, five-year appointments of board commissioners.
i. Five years = not all can be appointed during one presidential term.
b. Commissioner removal by the president can only be for-cause.
2. This ultimately gives Congress the power to say, “it’s not my issue.”
e. Types of Legislative Vetos (Congress’s attempt to reserve power)
i. Individual Rights Cases (e.g. Chadha)
ii. Structural Cases (e.g war powers)
iii. Administrative Cases (e.g. agency-created rules)
14) INS v. Chadha: SCOTUS / Burger, 1983
i. Prior to the 1950s, an individual who wanted to avoid deportation had to get Congress to pass a law
suspending their deportation.
ii. Because the process was very burdensome on Congress, it passed a section of the Immigration and
Nationality Act authorizing adjudication of these cases by the AG/immigration judges, reserving a
one-house veto right to reverse any of the AG’s orders.
b. Factual Background:
i. At Chadha’s deportation hearing, the immigration judge suspended his deportation.
ii. The AG submitted its recommendation to Congress.
iii. The House reverse the suspension.
c. SCOTUS Reasoning for Invalidating this Veto

i. An action that is legislative in nature requires:
1. Bicameralism: For Congress to legislate, both the House and Senate must pass the bill;
and
2. Presentment: For Congress to legislate, the bill must be presented to the president.
ii. Bicameralism and presentment are important because they ensure that federal power is in check, as
shaped by the differing perspective of each branch.
1. House: Elected every two years, so more politically responsive/close to the people.
2. Senate: Staggered six-year terms, so maintain a long-term view.
3. President: Baller nation-wide constituency.
iii. So how do you determine if an action is legislative in nature?
1. Legislative = Alters the legal duties or rights of an individual
a. This definition is arguably over-broad because it over extends from legislation to
adjudication, where courts can alter individual duties and rights
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d. Holding: The House’s reversal on Chadha’s suspension of deportation is unconstitutional because it was not
submitted to the Senate or the President. A one-house veto is unconstitutional.
i. But wait, isn’t the delegation of deportation review legislative in nature, even without the one-house
veto rule?
1. Technically, but see our footnote. 😉
a. The rules of administrative agencies are ultimately authorities delegated by
Congress via bicameralism and presentment.
e. TAKEAWAY: If Congress wants to engage in activity that alters the duties and rights of an individual
person, it must do so via bicameralism and presentment.
f. Powell’s Concurrence
i. The Act is unconstitutional, not because of the one-house veto, but because it allows Congress to
adjudicate.
1. Legislation = general rules, broad in nature and application
a. If legislature imposes a disability on an individual person, it is a bill of attainder.
i. Bill of Attainder: An act of a legislature declaring a person or group of
persons guilty of some crime and punishing them, often without a trial.
2. Adjudication = rules specifically applied to individuals
g. White’s Dissent
i. Legislative vetoes serve a true purpose.
ii. With one holding, SCOTUS has effectively invalidated more laws than all laws previously
invalidated combined.
h. Youngstown Reference / Gloss on the Constitution

i. A congressional practice, here the legislative veto, engaged in for over 60 years with the awareness
of presidents arguably glosses the legislative veto onto the Constitution as accepted practice.
1. This theory doesn’t work here because multiple presidents object to the legislative veto.
******************************************************************************************************
15) Clinton v. City of New York: SCOTUS / Rehnquist, 1998

a. Background
i. The states adopted line item vetoes, allowing state governors to eliminate budget lime items
authorized by state legislatures to control state spending.
ii. The Line Item Veto Act gave the President this same power to cancel three types of provisions
signed into law:
1. Any dollar amount of discretionary budget authority;
2. Any item of new direct spending; or
3. Any limited tax benefit.
iii. When President Clinton tried to utilize the Act, it was challenged as unconstitutional.
b. SCOTUS’s Reasoning
i. The Constitution requires that legislation originate in Congress and only be presented to the
President upon passage in both the House and the Senate.
1. From there, the President can only do two things:
a. “Return” the bill to be re-voted on in Congress; or
b. Sign it.
ii. The President’s cancellation power under the Act differs significantly from his power to “return” a
bill under the Constitution and authorizes the President to effect the repeal of laws.
1. This is a violation of both presentment and bicameralism.
c. Holding: The Act is unconstitutional
d. Scalia’s and Breyer’s Dissent
i. Based on past precedent, Congress’s creation of the act is clearly constitutional.
1. SCOTUS has consistently allowed Congress to give the president enforcement discretion,
sometimes in the spending context.
2. As long as Congress provides the president with objective criteria to guide the exercise of
enforcement discretion, then we good.
ii. It should not matter that the president’s discretion is exercised in a single bill or separate bills.
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16) Two Different Approaches to Separation of Power Issues

a. Formalism: Excessive adherence to prescribed form
i. How has this traditionally worked in the real world?
ii. Often leads to the invalidation of laws.
iii. E.g. Chadha and Clinton
iv. Also, Justice Scalia.
b. Functionalism: Belief in or stress on the practical application of a thing
i. How does this effect what is actually going on in this moment?
ii. Increases the chance that laws will be upheld.
iii. Also, Justice White.
c. The problem with these two approaches is that there is no criteria as to which applies when and where.
17) Bowsher v. Synar: SCOTUS / Burger, 1986

a. Background
i. Congress became well-aware of the intense pressure on it to engage in spending in a political
environment, so…
ii. Congress passed the Gramm-Rudman-Hollings Act, authorizing the Comptroller General to
recommend mandatory budget cuts that would then be executed by the president. However,
Congress retained ultimate removal power over the comptroller.
iii. The Act was challenged as unconstitutional under separation powers because it gave certain
executive functions to the comptroller, when Congress still retained removal power over this
official.
b. Holding: The Act is unconstitutional.
i. The Act gives the comptroller the authority to determine budget cuts, which is a purely executive
function. By placing this responsibility in an official that is subject to removal only by itself,
Congress has unconstitutionally retained control over executive functions.
ii. The president is the only one with removal power over individuals exercising executive power.
c. Steven’s Concurrence
i. He could not agree with the court that the comptroller was exercising executive power, BUT
ii. Clearly the great majority of the comptroller’s responsibilities are in the Congress, so he should not
be given executive authority.
18) Morrison v. Olson: SCOTUS / Rehnquist, 1988

a. Background
i. Post-Watergate, the Ethics in Government Act permitted a court called the Special Division to
appoint an independent counsel to investigate and prosecute certain high-ranking government
officials for violations of federal criminal laws upon request by the AG.
ii. The Act gave the AG sole removal power of the counsel for cause.
b. Issue: Does a law vesting the judiciary with the power to appoint an inferior executive officer (an
independent counsel) and prohibiting removal without cause violate separation of powers principles?
i. AKA can Congress insulate a prosecutor from dismissal by the president with a for-cause standard?
c. SCOTUS’s Reasoning: Functionalism
i. If the president could fire the independent counsel at will, then there is no protection against the
problems seen in Watergate.
ii. This Act ensures that investigations of crimes of high-ranking officials are independent and fair,
with no political bias in favor of the executive.
iii. THIS ACT DOESN’T CUT THAT DEEP INTO EXECUTIVE AUTHORITY.
1. Applies to a limited type of crimes, a limited number of defendants, etc.
d. Holding: The Act is constitutional.
e. Scalia’s Dissent: Formalism
i. The president has to have complete control over the executive. Period. End of Story.
ii. The Act divests the president of substantial control over the prosecutorial functions of the
independent counsel and upsets the balance of power among the branches of government.
f. Aftermath
i. It was under this Act that Ken Starr was appointed to investigate Clinton.
ii. The Act remains good law, though it was not renewed following its sunset clause.
iii. What about Robert Mueller? President Trump could fire him any time without cause.
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19) Mistretta v. United States: SCOTUS / Blackmun, 1989
a. Background: Congress enacted the Sentencing Reform Act to combat serious disparities in sentencing for
criminal punishment. The Act established a commission as an independent body of the judicial branch to set,
review, and revise the sentencing guidelines. Three members of the commission were federal judges.
b. Issue 1: Is it inappropriate for judges to be exercising quasi-legislative authority in setting the guidelines?
i. SCOTUS’s Reasoning: Functionalism
1. The Constitution doesn’t explicitly say that judges cannot be assigned to non-judicial roles.
2. Normally, judges are restricted to judicial conduct.
a. EXCEPTION: Judges have been allowed to engage in rule-making pertinent to the
judicial process.
i. E.g. Writing the FRCP, the Rules of Evidence, etc.
3. It makes sense for the experts to be involved in something not far removed from the
judicial process.
4. The judges will simply be doing what they normal do—sentencing—just on a more
global/collective level.
5. This case falls under the exception.
c. Issue 2: Will appointment to the commission interfere with the normal role of the judges?
i. SCOTUS’s Reasoning: Functionalism
1. There is a long history of judges in non-judicial roles.
a. Marshall served as both Chief Justice and Secretary of State under two presidents.
b. The commission, comprised of SCOTUS justices, to resolve the electoral dispute
in 1876.
c. Chief Justice Earl Warren being appointed to the commission to investigate
Kennedy’s assassination.
2. There is no per se rule against judges in non-judicial roles.
3. Here, as long as Congress is not asking the judges to write and apply the guidelines at the
same time, there is no separation of powers violation.
4. Also, this doesn’t interfere with judicial integrity because judges are unlikely to decide a
case favorable to the president simply because they were appointed to this commission.
d. Holding: Judges make sentencing decisions every day; creating the Commission did not “aggrandize” the
judicial branch. The Act is constitutional.
e. Scalia’s Dissent: Formalism
i. Asking judges to serve take on quasi-legislative roles is a violation of separation of powers.
ii. This creates an accountability problem, where Congress can delegate controversial issues to
commissions.
D. JUDICIAL POWER
20) EXCEPTIONS & REGULATIONS CLAUSE
a. FIRST, Congress holds the power to create (and define the JDX of) federal courts inferior to SCOTUS.
b. SECOND, Congress has the power to make exceptions to and regulations of the appellate JDX of SCOTUS.
21) There are only two cases that address application of the Exceptions & Regulations Clause: McCardle and Klein. So,
there is virtually almost no law with respect to this clause.
22) Ex Parte McCardle: SCOTUS / Chase, 1869

STATUTE IS VALID UNDER E&R CLAUSE
a. Background
i. After the Civil War, Congress passed the Reconstruction Act laying out the process for readmitting
Southern states into the Union.
ii. McCardle was imprisoned under the Act for obstructing reconstruction with his newspaper articles.
iii. A habeaus corpus provision of the Act permitted SCOTUS appellate review, and McCardle used
this to appeal directly to the SCOTUS.
iv. Following oral argument, but prior to a decision, Congress repealed the habeas corpus provision (the
remedy that had given McCardle the right to bring his case through appellate review to SCOTUS).
1. Congress feared SCOTUS would strike down the Act.
a. McCardle had a very strong argument for the unconstitutionality of the act, that
had SCOTUS heard the merits…
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b. Issue: May Congress withdraw JDX from SCOTUS after JDX has been given?
i. Normally, the E&R clause is used to convey some JDX, but not all.
1. That which Congress fails to convey is by definition excepted.
a. E.g. Diversity JDX  excepted anyone with less than $75k claim
b. E.g. Federal Question JDX  no appellate JDX over federal questions
c. E.g. Bill of Rights  no appellate JDX over criminal appeals
ii. BUT this was still a proper use of the E&R clause.
1. The E&R clause gives Congress the right to give and take JDX.
a. And, if SCOTUS is without JDX, then there is no power to decide the case.
iii. McCardle may have other means to repeal his conviction; this is assumed because it would be
unconstitutional to take away the only remedy.
d. Holding: Congress exercised its constitutional right to limit SCOTUS JDX. Thus, SCOTUS had no JDX to
consider McCardle’s petition for a writ of habeas corpus.
23) United States v. Klein: SCOTUS / Chase, 1872

STATUTE IS INVALID UNDER E&R CLAUSE
a. Background
i. During the Civil War, a great deal of real property was seized by the Northern Army in the South.
ii. Post-war, the Congress adopted a statute providing that the property could be retuned f it was
proven that the property owner was not an insurgent.
iii. SCOTUS then held that a presidential pardon was sufficient proof that a property owner was not an
insurgent.
iv. Congress subsequently passed a statute that prohibited the use of a presidential pardon as proof of
entitlement to property rights. Instead, a pardon was evidence of insurgency. This required federal
courts to dismiss any claim brought by a pardoned plaintiff because of lack of jurisdiction.
b. Issue: May Congress constitutionally pass legislation that specifically directs or impairs the actions of the
judicial or executive branches of government?
c. SCOTUS’s Reasoning: Congress has overstepped the bounds of the E&R clause, violation the principle of
separation of power.
i. Violation #1: Congressional intrusion on judicial authority.
1. Congress cannot tell the courts how to decide a case.
2. This is especially so when a case has previously been decided in-opposite to Congress.
ii. Violation #2: Congressional intrusion on executive authority.
1. The president’s pardoning power is broadly interpreted. For Congress to say the pardoning
power means a particular thing (here, power means “insurgent”) creates a huge
interreference with such power.
d. Holding: NOPE.
X. JUSTICIABILITY
What cases can be brought in federal court?
1) The four doctrines of justiciability are:

a. Standing (Who);
b. Ripeness (When);
c. Mootness (When); and
d. Political Question (What).
A. STANDING
2) Standing has constitutional roots in Art III’s “cases in controversy” language.
a. Historically, all you need was a legal cause of action. But since the mid-40s…
b. Standing Requirements: From Art III
At the very minimum, these criteria have to be met before π can file a case in federal court.
i. Injury in fact to π;
ii. Causation attributable to ∆; and
iii. Redressability.
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c. Additional Standing Requirement: The Prudential Element
i. Sometimes standing is denied because a court doesn’t not want to decide a case for policy reasons.
ii. Aspects of the Prudential Element
1. Zone of interest;
a. Is π the type of person the statute was intended to protect?
i. If yes  Standing
ii. If no  No standing
2. Generalized grievance; and
a. Is π’s claim different than any other member of the public?
i. If yes  Standing
ii. If no-  No standing
b. To the extent that the whole public is injured, then the issue should be resolved by
the political process, not the courts.
c. Schlesigner v. Reservists Committee to Stop the War: SCOTUS / Burger, 1974
i. A citizen sued congressmen who were members of the army reserve
(which is part of the executive branch) under the Incompatibility Clause
which says that a member of Congress may not hold a position in the
executive branch. The citizen’s claim for standing was that they had a
right for adherence to the Constitution. The court found this to be a
generalized grievance because all citizens could claim a similar injury.
d. See Lujan v. Defenders of Wildlife below.
3. Third-Party Standing.
a. Is π’s claim brought for the right of a third party?
i. If yes  Generally, no standing
ii. If no  Standing
b. EXCEPTION:
i. A claim can be brought on behalf of a third party if:
1. There is a relationship between the claimant and the third party;
2. There is good reason why the third party cannot assert their own
right; and
3. The right is threated by the failure of the third party to litigate.
ii. E.g. Griswold v. Connecticut: SCOTUS / Douglas, 1965
1. Connecticut passed a law banning the use of contraceptives by
married people. A contraception clinic at Yale was then indicted
for dispensing such to a married couple. Yale attempted to assert
the privacy rights for that couple and SCOTUS allowed it.
3) Lujan v. Defenders of Wildlife: SCOTUS / Scalia, 1992

a. Background
i. The Endangered Species Act required federal agencies to receive approval prior to doing something
that might jeopardize endangered species. Originally, this act applied globally but congressional
regulation limited it to the US only.
ii. Animal rights activists brought a case claiming that funding for a dam in Egypt could harm the
endangered crocodiles that lived in the Nile. They claimed that the new limited regulation was
wrong.
b. The Defenders of Wildlife’s Argument 1: There is an injury here because of potential interference with a
right to study, see, or work with endangered animals.
i. SCOTUS’s Reasoning
1. There is no clear immediate particularized injury. The fact that someone at some point in
the future may want to go back to see the animals is hardly enough.
a. Presumably, all the Defenders needed to do was buy a plane ticket.
c. The Defenders of Wildlife’s Argument 2: A procedural injury has been suffered.
i. SCOTUS’s Reasoning: This is a suit over a generally available complaint about the government,
not to enforce a procedural requirement that protects a separate, concrete interest. The procedure
here is not aimed at the Defenders.
d. Kennedy’s Concurrence: Congress can’t give universal standing, but it can create an injury. For example,
here they could create a “zookeeper exception,” saying that those who work with wild animals are injured in
this situation (this differentiates a class of people from the public at large).
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4) Massachusetts v. EPA: SCOTUS / Stevens, 2007
a. Background: After the EPA declined several private petitions to issue regulations governing greenhouse gas
emissions from new automobiles, a group of states brought suit against the EPA seeking declaratory relief on
the issue of whether the EPA had the statutory authority to regulate greenhouse gas emissions under the
Clean Air Act; and if so, whether its stated reasons for refusing to do so were consistent with the Act.
b. Issue: Do the states have standing?
i. SCOTUS’s Reasoning: YES
1. Through a lenient application of a quasi-sovereign right to protect its own citizens, state
that are suing on behalf of their citizens can have standing if they meet the criteria.
a. Injury in fact: Property interest being infringed on by rising sea levels.
b. Causation: If EPA fails to act, there will be an increase in global warming, and
thus further rising in sea levels.
i. This is a stretch on the immediacy requirement.
c. Redressability: The EPA ought to act because regulation may help a little.
i. This exposes a major standing issue: contingencies that the court cannot
control, including reliance on third-party action. See below.
ii. Allen v. Wright: SCOTUS / O’Connor, 1984
1. Parents argued that failure of the IRS to deny tax-exempt status
to racially-segregated private schools injured children because
the tax-exempt status encouraged segregation.
2. SCOTUS was hesitant to find redressability because the court
cannot guarantee how the school would act. The school may
decrease academic services and (thus leading to desegregation)
or it could also raise tuition or seek endowment funds (which
enables segregation). It was simply unclear how SCOTUS could
help achieve the particular desegregation result desired.
c. Holding: The EPA does have the authority under the statute to regulate greenhouse gases.
d. Roberts’ Dissent: A third-party action should make it more difficult to get standing, not easier. Here, we
have a perfect example of a generalized grievance (because everyone is injured).
5) STANDING CRITIQUES
a. Standing may be based off contingencies that courts cannot control.
b. Standing claims can be construed broadly or narrowly as a means of a court surreptitiously deciding the cases
on the merits.
i. This ability to construe also make it confusing… where’s the guidance?
c. Standing has gotten so complicated that it frustrated litigation, with litigants spending time and money just to
establish standing in the first place.
6) STANDING JUSTIFICATIONS
a. Standing ensures that only “cases in controversy” are litigated.
b. Standing vindicates separation of powers by allowing courts to hear only cases possessing sufficient concrete
adversity to make them susceptible of judicial resolution (aka avoid legislation from the bench).
7) Flast v. Cohen: SCOTUS / Warren, 1968

a. Generally, federal taxpayers do not have standing to challenge acts of Congress solely on the basis of their
taxpayer status.
b. EXCEPTION created here: Cases brought by taxpayers alleging a violation by Congress of the Free
Exercise or Establishment Clauses have standing.
c. Aftermath: It has been largely determined that Flast was wrongly decided because too many standing
exceptions were then being made.
52
B. RIPENESS (brought too soon)
8) Seeks to separate matters that are premature for review, because the injury is speculative and never may
occur, from those cases that are appropriate for federal court action.
9) Non-Ripe Example = Double-Contingency: Where a person is considering violating a statute they think
is unconstitutional, and the government is thinking they could potential prosecute them… NOT RIPE.
10) EXCEPTIONS
a. Declaratory Judgement Act: Allows you to seek an advanced declaration that a law is unconstitutional.
b. Facial Challenges: A constitutional challenge to a law that claims that the law cannot be interpreted or
enforced in a way that is constitutional; but this does require a showing of injury in fact.
C. MOOTNESS (brought too late)

11) The requisite personal interest that must exist at the time of commencement of the litigation (standing)
must continue through its existence (mootness).
a. If events subsequent to filing resolve the dispute, the case is moot.
12) DeFunis v. Odegaard: SCOTUS / 1974

a. DeFunis challenged the admission process of the University of Washington Law School as a
violation of the Equal Protection Clause. He was awarded an injunction in state court, requiring his
admission to the University. The Washington Supreme Court reversed, but the judgment was
stayed pending DeFunis’ appeal to SCOTUS. At the time the matter was argued before SCOTUS,
DeFunis was in his final term of law school, and the University agreed that DeFunis’ registration
for his final term would not be canceled regardless of the SCOTUS’s decision. So, the case was
moot because it wouldn’t change anything.
13) EXCEPTIONS
a. If the case is capable of repetition but abating review; and
i. See Roe v. Wade: SCOTUS / Blackmun, 1973
1. A pregnant single woman sued Texas claiming a statute was an unconstitutional
restriction on her right to obtain an abortion. The federal district court issued
declaratory, though not injunctive, relief stating that the Texas statute was void for
its infringement on Roe’s Ninth and Fourteenth Amendment rights. Roe appealed
the denial of injunctive relief to SCOTUS. By the time the matter was argued
before SCOTUS, Roe had had her baby.
2. Given how long it can take to get a case before SCOTUS, it is likely that a
pregnant would never be able to challenge an abortion law without running smack
into mootness. So, there is an exception when there is a possibility of repetition
within the same person (here, Roe could get pregnant again).
b. If the case would result in collateral consequences.
i. For example, a challenge to a conviction, post-service of sentence. There are collateral
consequences that flow from criminal convictions and those should be able to be
challenged, even after serving a full sentence.
53
D. POLITICAL QUESTION
14) An issue not proper for adjudication by a court because it should be resolved by the political branches of
government.
15) Reapportionment
a. Colegrove v. Green: SCOTUS / Frankfurter, 1946

i. The first reapportionment challenge before SCOTUS.
ii. The reapportionment challenge was brought under the Guaranty Clause: “The United
States shall guarantee to every State in this Union a Republican Form of Government.”
iii. The plurality held that it did not know how to apply the Guaranty Clause due to lack of
sufficient judicially manageable standards.
b. Baker v. Carr: SCOTUS / Brennan, 1962

i. Another reapportionment challenge brought, this time, under the Equal Protection Clause.
ii. The Six Principles for Evaluating if Political Question
1. Textual commitment to another branch;
2. Lack of judicially manageable standards;
3. Policy decision requiring non-judicial discretion;
4. Lack of respect for coordinate branches;
5. A need for adherence to decisions already made; and
6. Potential embarrassment from multifarious pronouncements from various branches
of government.
a. The last four principles relate to political questions arising out of foreign
affairs or war time decisions where the president and/or Congress have
taken decisive action that would be inappropriate for SCOTUS to reverse.
iii. Reflection on Luther v. Borden: SCOTUS / Taney, 1849
1. Rhode Island once had two constitutions and two governors and the president had
committed to recognizing one of the governors.
2. ULTIMATELY, held that Guaranty Clause cases are non-justiciable because of the
lack of judicially manageable standards.
3. Luther does NOT apply here because this case was brought under the EPC. So, this
is no longer a political question analysis because courts can handle an EPC claim.
iv. Frankfurter’s Dissent
1. There is still no judicially manageable standard for apportionment issues, even
under the EPC. This is a political question.
c. Reynolds v. Sims: SCOTUS / Warren, 1964

i. The Equal Protection Clause requires the seats in a bicameral state legislature to be
apportioned on a population basis that equally weights one vote for every one person
residing in a state legislative district.
54
16) Powell v. McCormack: SCOTUS / Warren, 1969
a. Background
i. Adam Powell was elected to serve in the House of Representatives. However, pursuant to a
House Resolution, Powell was prevented from taking his seat due to an investigation that
showed he had authorized inappropriate salary payments to his wife.
ii. Powell claimed that he could only be excluded if he failed to meet standing requirements.
b. Court’s Reasoning: Textual commitment to another branch
i. Because the House excluded Powell for reasons not invoking its specifically enumerated
rights to do so (age, citizenship, and residence), the Court can properly adjudicate the
constitutionality of the House’s actions.
c. Holding: A challenge to restrictions on congressional membership set by the House is justiciable
and not a political question.
17) Nixon v. United States: SCOTUS / Rehnquist, 1993

a. Background
i. Judge Nixon was convicted for lying to a grand jury. Despite being jailed, he was still
receiving his judicial salary because he had not bee removed from office.
ii. Congress concluded that it would be too time consuming for the entire Senate to hold the
impeachment case trial. Instead, the Senate created a committee to make hear the evidence
and oral arguments and then prepare a report for presentation to the full Senate who would
have a final vote.
iii. Following the committee’s presentation, the Senate voted to impeach Nixon.
b. Holding: The constitutionality of Senate impeachment proceedings is a non-justiciable political
question incapable of judicial adjudication because the Constitution gives the Senate sole power to
try all impeachments.
18) Three Different Takes on the Political Question Doctrine

a. Is there a right? If there is no Constitutional right asserted so that a district court would have
jurisdiction, then there is a political question.
b. Extreme deference. SCOTUS will only adjudicate in the most extreme cases.
c. Pure political question. SCOTUS simply cannot get involved.
GERRYMANDERING!!!
55

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Con Law 1L Spring / Bloom

I. CREATION OF THE CONSTITUTION

a. The Articles of Confederation

b. The Constitutional Convention from a high level

c. The Virginia Plan via the Constitutional Convention

d. The New Jersey Plan via the Constitutional Convention

e. Divisive Issues Between Delegates at the Constitutional Convention

f. Ratification of the Constitution

g. The Federalist Papers

h. The Bill of Rights

1) Marbury v. Madison: SCOTUS / Marshall, 1803

c. Issues: High Overview

d. Issue 1: Has the applicant a right to the commission he demands?

f. Issue 3a: Is mandamus the correct remedy that should be applied?

g. Issue 3b: Is it within the power of the court to bring mandamus?

h. Another Issue: Should Marshall have recused himself?

j. Marshall’s (basically useless) Textual Arguments for Judicial Review

l. Major Accomplishments Recap:

2) Judicial Restraint vs. Judicial Activism via Marbury

3) Martin v. Hunter’s Lessee: SCOTUS / Story, 1808

b. Procedural History via Hunter v. Fairfax’s Devise

d. Story’s First Textual Argument

e. Story’s Second Textual Argument

f. Story’s Third Textual Argument

4) Major Rulings on Judicial Review that make a name for SCOTUS

6) Checks on the Supreme Court

c. Issue 1: Does Congress have the power to create a bank?

d. Issue 2: Is it constitutional for a state to tax a federally-created bank?

e. Maryland’s Other Arguments that Marshall Ignores

f. The Test for Judicial Review

i. Jefferson’s Response: The House that Jack Built

IV. COMMERCE POWER

1) Gibbons v. Ogden: SCOTUS / Marshall, 1824

d. Interpretations of the Three Key Words and their Natural Meanings

e. The Three Faces of the Commerce Clause

c. United States v. E.C. Knight Co.: SCOTUS / Fuller, 1895

f. Exception 2: The Stream of Commerce Doctrine

g. Exception 3: Prohibitory Theory

h. Exception 4: The Instrumentality Doctrine

3) Lochner v. New York: SCOTUS / Peckham, 1905 (“The Lochner Era”)

d. Substantive Due Process

b. Carter v. Carter Coal Co.: SCOTUS / Sutherland, 1936

c. A.L.A. Schechter Poultry Corp. v. United States: SCOTUS / Hughes, 1935

4) The Court-Packing Plan

a. Nebbia v. New York: SCOTUS / Hughes, 1934 (see above).

b. West Coast Hotel v. Parrish: SCOTUS / Hughes, 1937

6) The Modern Trend: Post-Lochner Era Cases

b. NLRB v. Jones & Laughlin Steel: SCOTUS / Hughes, 1937

c. US v. Darby: SCOTUS / Stone, 1941

d. Wickard v. Filburn: SCOTUS / Jackson, 1942

e. Recap: Ways Congress can regulate interstate commerce…

7) Civil Rights Laws (and the Commerce Power)

c. Katzenbach v. McClung: SCOTUS / Clark, 1964

d. RECAP: Additional ways that Congress can regulate interstate commerce…

8) Criminal Laws (and the Commerce Power)

a. United States v. Perez: SCOTUS / Douglas, 1971

b. United States v. Lopez: SCOTUS / Rehnquist, 1995

c. United States v. Morrison: SCOTUS / Kennedy, 2000

d. Gonzales v. Raich: SCOTUS / Stevens, 2005

e. National Federation of Independent Business v. Sebelius: SCOTUS / Roberts, 2012

2) National League of Cities v. Usery: SCOTUS / Rehnquist, 1976

3) Garcia v. San Antonio Metropolitan Transit Authority: SCOTUS / Blackmun, 1985

VI. THE SPENDING POWER