JUDICIAL POWERS

ART III: The judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish. The Judges,
both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished
during their Continuance in Office.

JUDICIAL REVIEW
Marbury v Madison: The SC has the authority to review laws and legislative acts to determine
whether they comply with the Constitution.
● Thus, the SC has final say in interpreting the law and the Constitution; but not for state
law. Everybody must follow the SC’s interpretation, even government actors.
● Congress cannot add to the original jurisdiction of the court.

APPELLATE REVIEW
Hunter’s Lessee: The SC has the authority to exercise appellate review of all cases arising under
the Constitution, the laws of the US, and treaties, including state court decisions
● State courts are subject to and bound by SC appellate review
● The judicial power of the US shall be vested in one supreme court→ uniformity.

⇒ The court has the power of judicial review, which it can exercise in cases arising in state
and federal court for cases involving the constitutionality of state and federal laws.

JUDICIAL SUPREMACY
Cooper v. Aaron; The SC’s interpretation of the Constitution is final and binding on both federal
and governmental actors, even if they were not parties to the case.
● Supremacy Clause of Article VI + Oaths Clause

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LIMITS ON JUDICIAL POWERS
JUSTICIABILITY: The Court only has power to decide a case or controversy within the meaning
of Article III.

POLITICAL QUESTION: The underlying nature of the presented claim is something only
politics can resolve, and thus should be left to the leg and exec branches. Rare.
PQ if:
1. There is a textually demonstrable commitment of the issue to the President or
Congress
2. There is a lack of judicially discoverable or manageable standards for resolving the
question.
3. The resolution of the q calls for policy decisions inappropriate for judicial resolve
4. The resolution of the q will express a lack of respect for other branches of the gov’t
5. There is an unusual need for unquestioning adherence to a PQ already made
6. There is the potential for embarrassment from inconsistent resolutions of the issue by the
court and one or more of the political branches

STANDING
1. Injury in Fact: P has suffered the invasion of a legally protected interest that is concrete
and particularized, or actual and imminent.
a. Not generalized, not a hypothetical injury (Lujan)
2. Causation: The injury can be fairly traced to the Defendant.
3. Redressability: It is likely that the court can give resolve to the issue, make P whole

CASE AND CONTROVERSY (NO ADVISORY OPINIONS)

Art III, §2: The Judicial Power shall extend to certain enumerated categories of cases or
controversies”
Muskrat: There must be an actual dispute between adverse parties.

JURISDICTION SUBJECT TO CONGRESS

Art II, §2 Exceptions Clause: The SC jx shall be appellate… subject to all other exceptions of
Congress”
● Congress has the power to change or remove the SC’s appellate jurisdiction, even if the
litigation in the SC is underway → “Stripping Jurisdiction”

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CONGRESS’S POWERS
Art I: All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.

Enumerated Powers, Art I §8

● Lay and collect taxes, duties, imposts and excises
● To pay the debts of the common defence and general welfare
● Borrow money on credit of the US
● Regulate commerce with foreign nations
● Coin money/ regulatre money
● Post offices, post roads
● Promote science and arts
● Constitute tribunals inferior to the SC
● Declare War
● Raise and Support Armies
● Provide and Maintain a Navy
● Make rules for regulation of the land and naval forces
● N&P
10th Amendment: congress only has those powers that were delegated to it by the Constitution,
the rest are left to be reserved to the state. (but this conflicts with N&P)

NECESSARY AND PROPER CLAUSE

Art I, §8, [18]: To make all laws which shall be necessary and proper for carrying into execution
the foregoing powers…”
● Necessary: According to the dictates of reason, The fed gov may select the means which
are “needful, requisite, essential, or conductive to” effectuating the powers. NOT strictly
essential.
● Proper: Congress can adopt measures that are not prohibited by the Con, not outside the
realm of their authority
McCulloch: The Con may be read broadly, to to include incidental or implied powers.
Congress’s power is plenary, expanded by the N&P Clause and limited by the Con.
● Federal laws are supreme over state laws. A state cannot inhibit a federally created
institution.
Comstock: The N&P Clause can be invoked to implement another law that is rationally related
to the execution of an enumerated power.
● Rationally related is broad and deferential.

COMMERCE POWER

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Art I,§8: Congress shall have the power to regulate Commerce with foreign nations, and among
the several States, and with Indian Tribes…”
→ Primarily interstate commerce, but sometimes intrastate. Includes production, distribution, or
consumption for which there is an established interstate market.

3 Channels of Commerce:
1. Channels: highways, waterways, ports, air traffic
2. Instrumentalities: people, vehicles, machines
3. Those activities that substantially affect interstate commerce (including local activities,
non-economic activities.)
a. If non-economic, strictly apply the substantial effects test
i. Economic activity: activities that arise out of our are connected with a
commercial transaction.
b. Substantial Effect:
i. Look at in the aggregate,
ii. apply a rational basis
iii. Look for Congressional Findings (court gives deference to them)
c. Make sure it is not regulating inactivity

To get at local/intrastate commerce…

→ Wickard + NLRB+Darby: Commerce power regulates intrastate commerce where there is
a close and intimate relationship between the activity and interstate commerce and/or where the
activity, when looked in the aggregate, has a substantial effect on interstate commerce.
Congress’s rationale is looked at on a “rational basis” and is deferential.

Congress CANNOT regulate commercial inactivity/compel people to enter the market

→ slippery slope, we don’t want Congress mandating people to buy vegetables.

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TAXING POWERS
Art I, §8: “The Congress shall have the power to lay and collect taxes”
⇒ the tax cannot solely be for regulation, it must raise revenue.
As long as it raises revenue, it will not be invalidated simply because it does have regulatory
effects. (Khariger)
● Used to get at regulations of things the Commerce Power/other powers of Congress
cannot reach
● Use in connection with N&P

NLRB:
A tax is a penalty (and unconstitutional) if:
1. It imposes an exceedingly heavy burden regardless of the extent of the infraction
2. Has a scienter requirement (i.e. “knowingly violates’)
3. Is enforced or collected by an organization other than the IRS/ Revenue collecting agency

SPENDING POWERS
Art I, §8: “Congress is to pay debts and provide for the common defense and general welfare of
the US”
● The gov’t implements changes by providing monetary incentives for making programs or
implementing certain laws.
Butler: Power to tax and spend is proper so long as it serves the general welfare.

Conditional Spending
The court may attach conditions to receipt of funds so long as the conditions are not coercive.
Dole Factors. Constitutional if…
1. The exercise of the spending power is for the general welfare (deferential)
2. The imposed condition is unambiguous
3. The condition must be related to the federal interest in the particular program/project
a. Loose requirement of germaneness in Dole
4. The condition must not violate any other Con provision
5. The condition must not be effectively coercive
a. Sebelius: Funding was 80% of state Medicaid/20% of State budget → coercive
because it leaves the state with no genuine choice.
b. Dole 5% of state budget was ok

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STATE IMMUNITY
⇒ Congress may not exercise its Article 1 powers to regulate states when the states are acting in
their traditional government functions (i.e. Power to establish and enforce laws protecting the
welfare, safety, and health of the public [fire, police])

Garcia: Congress’s Commerce Power is plenary and not limited by the 10th Amendment. The
Constitution imposes limits on Congress’s ability to regulate states and states, and the limits will
be enforced through politics, not through courts (ex. Congress needs ¾ votes of State Rep to pass
a law that will impinge on state rights)

ANTI-COMMANDEERING: Congress cannot directly compel a state to administer a federal

regulatory program.
● A state can consent to the program; if they do consent, they have to enforce it per fed law.

1. Congress cannot compel legislative action

a. Cannot commandeer states into adopting federal policy or laws that affect the
state’s own leg process
b. Cannot order states to take title to waste, enact a reg program, pass a law.
2. Congress cannot directly commandeer state officials
a. Congress cannot compel state officials, including local law enforcement, to enact
or administer fed programs

NY+Printz→ States are to choose when to legislate and when to execute laws, so long as they
comply with the laws of the federal government. If they choose to enact a federal program, then
they have to do it according to federal regulations

O’Connor: Congress can persuade a State to adopt a fed leg scheme by:
1. A condition on a state’s receipt of funds through the spending powers
2. A tax to implement the program
3. “Regulate or be preempted”

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LIMITS ON STATE POWER

FEDERAL PREEMPTION OF STATE LAW

Art IV, §2 Supremacy Clause: Federal law is “supreme” over state law.

Express Preemption: Congress expressly displaces state regulation of a particular subject.

Implied Preemption: Congress implies it doesn’t want the states to act in the area
● Conflict Preemption: When state and federal law contradict/collide
○ Impossibility: Compliance with both regulations is impossible
○ Obstacle: State law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress (i.e. McCulloch)
● Field Preemption: When congress chooses to regulate a subject exclusively by federal
law. No state law may apply to the subject, even if the state law does not directly conflict.

Presume against implied preemption.

DORMANT COMMERCE CLAUSE

⇒ States are prohibited from unduly burdening or discriminating against interstate commerce

3 Categories of DCC Cases

1. Laws that are discriminatory on their face. (Hughes minnow case)
■ Per se unconstitutional. Strict Scrutiny is applied.
■ Will be invalidated unless:
● It was for a legitimate local purpose, AND
● There are no other non-discriminatory ways to effectuate the purpose (Maine lobster
case)
2. Laws that are neutral on their face, but pervasively discriminatory in their effect (Dean's Milk)
3. Excessive Burden (Pike Rule) (Southern Pacific Alaskan timber case, Barnwell Bros)
■ Balancing Test: Court weighs the burden on out of state industries against the legitimate public
interest of the state in having the law.
■ Will be struck down where the impact is discriminatory and there is evidence that the purpose
was discriminatory
● Illegitimate purpose: Protecting local business from competition
● Legitimate purposes: Health and Safety, and Preserving the state’s environment and
natural resources
➢ The interest of the state in having the discriminatory law must only be able to be met through the law (exhausted all
other options/no other options).

Market Participant Exception: “A state may discriminate against interstate commerce when
buying or selling goods or services in the market, as opposed to regulating the market
PRIVILEGES AND IMMUNITIES CLAUSE
Art IV, §2: “The citizens of each state shall be entitled to all privileges and immunities of
citizens of the several states”

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⇒ Prevents a state from discriminating against other states pertaining to fundamental
rights of important economic activity (i.e. right to make a living)

Road map
1. The state must discriminate against out of staters with regard to privileges and
immunities that it grants to its own citizens
a. If no → no P&I issue
b. If yes → continue
2. There is no substantial justification* for the discrimination
a. If no→ violates P&I! Unconstitutional.
b. If yes→ possible ok, continue…
3. Was there a less restrictive means by which the state could achieve the objective?
a. If no→ constitutional!
b. If yes→ violates P&I! Unconstitutional.

Substantial Justification:
1. There is a substantial reason for the difference in treatment, AND
2. The discrimination against non-residents bears a substantial relationship to the state’s
objective

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EXECUTIVE POWER
Article II: “The Executive Power shall be vested in a President of the United States…”

Enumerated Powers, Art II §2

● Commander in Chief of the army
● Require principal officers to provide written opinions
● Grant reprieves, pardons
● Make treaties, with the advice and consent of the senate
● Nominate ambassadors, public ministers, consuls, federal judges, with advice and consent
of senate
● Periodically advise congress and recommend measures
● Make recess appointments
● Receive ambassadors
● Take care that the law be faithfully executed
● Commission all the officers of the united states

DOMESTIC AFFAIRS
Youngstown: President’s power must stem from an act of congress, a statute, or from the
constitution itself. But…

JACKSON CONCURRENCE: FORMALIST APPROACH

● 3 Sources of Presidential Power:
1. Where Congress has expressly or impliedly granted power to the executive, the
President may rely on his own powers and those of Congress. Maximum power.1
2. Where Congress is silent (no grant or denial of authority), the President may rely
on his own authority, but there is a zone of twilight in which he and Congress
may have concurrent authority or in which the distribution is uncertain. Any
actual test of power here is likely to depend on the imperatives of events and
contemporary imponderables rather than abstract theories of law. 2
○ Pres reliant on Art 2 powers.
3. Where the President acts contrary to the will of Congress, his power is at its
lowest ebb. Congressional disapproval.
○ Under this prong, president can only get his way if Art 2 limits Congress
power on tha matter → rare

FOREIGN AFFAIRS

1 The President’s powers are the greatest. Acts with the greatest authority that Congress has granted to him along with powers granted under the
Constitution. Youngstown → no congressional authorization
2 Zone of Twilight: The Pres is reliant on those powers that Art II gave him. This is the most difficult category for courts because it requires an
assessment of independent constitutional authority of the President.
Youngstown → Congressional disapproval, not silence. The issue of a domestic industry shutting down and effecting the national defense has
been legislated by congress multiple times… disapprovingly

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→ The president has broad discretion in foreign affairs regarding foreign policy and
national security. But, it still falls within the scope of Youngstown.
● When dealing with matters of the relations b/t states and other countries, the presumption
runs in favor of the president having power

Dames & Moore: The President may use an executive order to suspend private claims in foreign
countries, and then force them into tribunals.
● Here, congressional silence was used to infer authorization. In Youngstown, it was used
to infer disapproval. The difference was the imperative of the cases circumstances.

CONGRESSIONAL POWER IN FOREIGN AFFAIRS

Art 1: Congress has the authority to regulate commerce with foreign nations
Art 2: The President shall have power to make treaties by and with the advice and consent of the
senate (⅔ of the senate)

Goldwater: The court will treat the unilateral action of the president to rescind a treaty without
senate involvement as a political question. However, this essentially just lets the President act
unilaterally.

Not the job of the courts to save us from politics

RECOGNITION POWER
→ recognition is the formal acknowledgement that an entity possesses the qualifications
for state-hold, or that a regime is the effective government of a state.

Zivotofsky: President has sole exclusive power of recognition. Congress may not command the
President to contradict an earlier determination or attempt to not recognize a state.
(aggrandizement)

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WAR POWERS
→ President is the Commander in Chief, Congress has the power to declare war, raise and
support armies, provide and maintain a navy, make rules for regulation of the land and naval
force

Non-Detention Act: ‘No citizen shall be imprisoned or otherwise detained by the US except
pursuant to an Act of Congress”

AUMF: President is authorized to “use all Necessary and Proper forces against nations,
organizations, or persons associated with 9/11” [the act of congress^ US uses today..]

Hamdi: If federal legislation grants the President authority to use military force, but does not
specify the details, the President has only the powers granted by the Constitution, by other
statutes, and by laws of war.
● Exercising these powers, the president may detain enemy combatants if they are accorded
certain requirements imposed by DPC.

Due Process Requirements:

1. Receive notice of the factual basis for his classification, and
2. Have a fair opportunity to rebut the government’s factual assertions before a neutral
decision maker.

The President does not have the authority to indefinitely detain citizens who qualify as enemy
combatants.
● They may be detained for the duration of the hostilities, so long as they recieve DP.
● If the enemy combatant is no longer a threat (genuinely gives up the fight) they must be
released.

EXECUTIVE PRIVILEGE
⇒ Absent a claimed need to protect military, diplomatic, or sensitive national security secrets,
the supreme court could order the president to turn over the requested documents.

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THE LEGISLATIVE PROCESS
⇒ Congress passes specific laws, and the Executive Branch carries out/enforces them. Recently,
Congress has been passing broad laws and affording the Executive branch discretion in
executing them. (to adopt to technological changes, practicality)

NONDELEGATION DOCTRINE
→Congress may not delegate to agencies the power of discretion in enforcing rules,
regulations, laws, etc, unless there is an intelligible principle the agency is to adhere to.
● Prevents the exec branch from effectively making legislation.
● This doctrine is not normally upheld anymore.

LEGISLATIVE VETOES
⇒ Congress would like to maintain control over the legislative duties they delegate to the Exec
Branch (otherwise they have too much policy discretion)

Congressional Methods of Oversight

a. Calling executive branch officials to testify before congressional committees (threaten
with loss of funds)
b. Passing legislation that overrules the decisions of the agency
c. Legislative Vetoes (2 House Veto, Committee Veto)

Chadha: A one-house veto over an action of the executive branch is unconstitutional because it
does not meet the constitutional requirements of presentment and bicameralism.

Clinton: The Line-Item Veto is an unconstitutional statutory increase in presidential power. This
is because it essentially allows the president to enact, amend, or repeat statutes [which is not
authorized by the Constitution]
● The repealing process is a constitutional procedure which includes bicameralism and
presentment (i.e. must pass both houses, then the president can either pass or veto. His
veto can than be overrode by ⅔ majority of both houses or the bill can be amended and
go through the process again. Has to go through this process).

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