CON LAW Attack Outline

CON LAW OUTLINE – Mascott Fall 2022
HISTORY AND OVERVIEW

I. Separation of Powers and Federalism: The Constitution grants the power from the
structure, text, and assignment of the Constitution. Gets this from the vesting powers.
a. Horizontal Separation of Powers: Legislative à Policymaking; Executive à
Enforcement of the policy; Judicial à Adjudicating and determining the meaning
of the policy
b. Limits to Constitutional Amendments: an amendment cannot deprive any state
of their representation without their consent (an amendment could not change
how many senators are elected to a state)
c. The constitution is more about procedural than substantive rights.
d. States retain co-sovereignty with the Federal Government
II. Interpretative Methods of Constitutional Law:
a. Originalism: meaning of the provision at the time it was passed; original public
meaning (tends to be more objective and absolute)
b. Living Constitutionalism: holds to the idea that the Constitution is flexible and
the meaning of the words is meant to change over time to fit the more modern
standards
c. Intentionalism: looking to the intentions of those who enacted the law
d. Purpose: looking to the purpose of the law; allows the interpreter to import the
goals of the act
e. Text, History, and Tradition: like originalism but more willing to look at the
practices of the time alongside the raw text
f. Stare Decisis: relies on following the precedent set in previous cases
III. Tiers of Scrutiny when Analyzing Constitutional Violations (When the state interest is
more compelling as to allow for a Constitutional right to be violated)
a. Rational Basis: the law must have a legit purpose or government interest (for
smaller rights)
b. Intermediate Scrutiny: a balance somewhere between rational basis and strict
scrutiny
c. Strict Scrutiny: The law must advance a strong and compelling government
interest that is narrowly tailored (for big rights like the First Amendment)
IV. Interpretive Cases
a. DC v. Heller (2A grants the right of self-defense in the home)
i. Both Scalia (majority) and Stevens (dissent) use history and text to
justify their position. They also both relied on the precedent that Miller
set (stare decisis) à Scalia had to distinguish Heller from this case to
not overturn Miller.
b. Bruen Gun Case (2A grants the right to carry a weapon outside the home)
i. Relies on history, text, and tradition to say that the New York “may
issue” law was unconstitutional.
ii. Thomas rejects the tiers of scrutiny test and says that the law should be
analyzed through a historical framework: you can do the most with the
right unless there is a history or tradition at the time of passage of
regulation in an area of the 2A
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JUDICIAL REVIEW
I. The Judicial Branch
a. Article III grants the Judicial Branch the power but Congress must establish the
lower courts (make courts and determine their jurisdiction); SCOTUS is
established by the Constitution.
II. Judicial Review:
a. Judicial Review: the power and duty of the court to enforce unconstitutional
legislation or unconstitutional executive actions.
i. Established with Marbury v. Madison: SCOTUS has the power of
judicial review inherent to Art. III of federal laws and can strike down
laws that are not Constitutional; the power of judicial review of federal
legislation is implicit in the Constitution;
1. Art. III, § 2, cl. 2 limits the kinds of cases SCOTUS may exercise
appellant versus original jurisdiction on; every right has a remedy.
b. Judicial Supremacy
i. Martin v. Hunter’s Lessee: Under Art. III, SCOTUS can find state
laws/rulings unconstitutional, state matters can be heard at SCOTUS on
appellate jurisdiction, for the sake of uniformity. The Supreme Court’s
appellate power extends to all CASES. It is the case, not the court that
gives SCOTUS power. Appellate jxn comes from the state courts too.
State courts can also federal claims.
ii. Cooper v. Aaron: SCOTUS interpretations of the Constitution bind all,
not just the immediate parties to a suit; SCOTUS can strike down BOTH
federal laws and state decisions; SCOTUS cases decisions.
III. Obstacles to Judicial Review: Issues the Supreme Court Cannot Adjudicate
a. Jurisdiction: (1) Appellate or (2) Original
i. Original: federal courts can hear cases that (a) arise out of federal
questions OR (b) are between parties from different states.
1. Congress cannot alter the original jxn of the Supreme Court.
Congress can alter the appellate jxn of the Supreme Court (Art III
Exceptions Power)
ii. Appellate: notice that Art III does not establish lower courts, except to
the extent that Congress establishes them.
1. Jxn can be further limited by Congress. Congress does not (and has
not) have to give the full Constitutional jxn power to federal courts
b. Political Questions: This is something for another branch of government to
decide.
i. Cannot bring it under the Guaranty Clause because this is something for
Congress to decide.
ii. Baker v. Carr Factors Making a case Not Justiciable
1. A commitment of the issue to a branch of government other
than the judiciary → SCOTUS cannot tell another branch
what to do.
2. Lack of judicially discoverable or manageable standards for
resolving the issue → there must be a law on point.
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3. Impossibility of the judiciary to resolve the issue without first

making a policy determination.
4. A judicial decision of that matter as a lack of respect for other
branches of government (embarrassment from the judicial
determination would ensue)
5. A political decision has already been made.
6. The potential for multiple pronouncements by various branches on
one question.
Justiciable Question Non-Justiciable Political Question

• Challenges to A challenge to • When the Constitution clearly grants
malapportionment of state legislatures one branch adjudication powers
brought under the Equal Protection (impeachment) then it is a political
Clause is not a political question and question and the courts cannot
is thus justiciable. Even if there is a adjudicate. (Nixon v. US) (1993) (the
challenge to a political system, there first two factors are the most
can still be adjudication. (Baker v. important)
Carr) (1962)
• When there is a demonstrable
Constitutional text on point for an
intra-branch issue, the Courts can
adjudicate as there is a rule to guide
the courts. (Powell v. McCormack)
(1969) (The qualifications of House
membership is set out in the
Constitution and Congress cannot
make a new one). When there are
standards listed in the Constitution
(like the qualifications for House
membership) then those are judicially
manageable standards for the Court to
apply, making it NOT a political
question.
IV. Cases and Controversies (Art. III § 2)

a. The minimum threshold question for Art. III courts to hear cases. Courts cannot
issue advisory opinions; there must be an actual dispute. No case or controversy
until a harm has occurred.
1. Muskrat v. US (1911): Court does not have jurisdiction to issue an
advisory opinion on the constitutional validity of an act of Congress if
there is no case or controversy between adverse parties.
b. Ripe: claim be sufficiently ready for adjudication to be heard by a court; a claim
is only ripe if there is a present dispute that is not speculative in nature.
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c. Mootness: legal proceeding no longer affects the resolution of a legal issue due to
loss of controversy or because the issue has become an “academic” exercise.
i. Exception: If it is likely to occur again, the court will hear it even if it is
moot.
d. Case: Someone in the case has suffered a cognizable harm
e. Controversy: there must a concrete dispute between the two parties with
adversarial positions, an interest at stake, and the claim at stake has a personal
impact on the parties.
V. Standing
a. Exam Approach
i. Claimant: I have standing because I have a traceable and actual injury
in fact from the actions of the government.
ii. Government: there is no standing because the harm is too attenuated to
be traced back to government action.
b. A legal doctrine limiting the right to sue to those parties who can show some
injury to their legal rights, a specific grievance or impact that can be remedied by
judicial action, or a statutory basis for bringing a suit. The suing party must have
suffered a harm.
1. Elements for Harm
1. Injury in fact: invasion of a legally protected interest that is
1. Concrete and particularized (induvial to a person)
2. Actual or imminent; not conjecture or hypothetical
2. Causation (the link tracing the legal violation and the harm must be
direct)
3. There must be a high likelihood the injury will be redressed by a
favorable court decision
c. Allen v. Wright à data point for a too attenuated causation: Black parents
have no standing to complain that the government is violating the law, must allege
that they have personally suffered a distinct injury and the chain of causation
linking that injury to the actions of a defendant must not be attenuated
(diminished opportunity to go to a school is not traceable back to the IRS
allowing for certain tax statutes). The injury must be distinct and palpable. The
tax-exempt status must be the thing that is causing white kids to not attend
schools. The remedy being sought does not have a clear connection to the damage
being claimed.
d. Lujan v. Defenders of Wildlife: There must be more than “generally a chance”
but a concrete, personalized injury to have standing. There is no redressability
because the agencies’ are not suit to the case, so the most the court can do is tell
the agency to advise the agencies.
i. Standing Test:
1. the plaintiff has suffered an injury in fact
a. must be more than an injury, but the person claiming must
have actually suffered the injury
2. that the injury is fairly traceable to the challenged conduct
3. that the injury is redressable by a favorable decision (must be
likely not speculative)
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VI. Congress can limit federal court jxn by statute and therefore limit the power of
judicial review.
a. Art. III Sec. 2 Cl. 2: Congress can limit appellate jxn (can impact original jxn of
lower courts which in turn can affect what will be heard at SCOTUS)
i. Original Jxn: SCOTUS can hear the case first. SCOTUS has the
discretionary power to choose what cases to hear.
ii. Appellate Jxn: a lower court must hear a case before it can be heard by
SCOTUS
b. Ex Parte McCardle: SCOTUS no longer has jxn over petitions for habeas corpus
because Congress passed an act to limit the jxn. Congress can regulate certain
subject matters that are subject to jurisdiction; but cannot decide cases.
FEDERALISM
VII. Overview
a. The Federal Government has limited enumerated powers through both substantive
and procedural means → Art. I § 8 states “herein granted” then continue to
enumerate subject matters, this is one of the few substantive limits.
b. Limits on Congresses Power
i. States have plenary power of health and safety regulation of their
citizens
ii. Congress can’t just make laws, but they must find a substantive
constitutional hook
iii. Procedural Constraints in Art. I § 7
iv. Constitutional structure guarantees some implied powers for states
c. Art. IV § 2: Supremacy Clause:
i. The Constitution and Federal law are the supreme law of the land
ii. The states still retain some current jxn with Congress (contracts/torts)
but when federal and state law is differing but on point, the Federal Law
preempts state law
d. Necessary and Proper: applies not only to Congress but to all of the other
branches.
e. McCulloch v. Maryland (holding that the Second National Bank was
constitutional under the Necessary (government must have means to execute its
power; convenient, useful, or essential to another; any means calculated to
produce the end) and Proper (the right is essential to the beneficial exercise of
power, but not indispensably necessary to existence) Clause à implied powers).
When operating within the enumerated powers, the federal government has
plenary powers. The N&P clause allows Congress to carry out its powers, making
the creation of the bank okay. The bank was N&P to those ends.
i. To use the N&P Clause the end must be:
1. Legitimate
2. Within the scope of the Constitution
3. Appropriate means that are plainly adapted to the end
4. Within the letter and spirit of the constitution
ii. This allows Congress to take any legislative action that is rationally
related to the carrying out of an objective that falls within the
enumerated power.
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VIII. Preemption
a. Art. 6 is the Supreme law of the land. Then go into why there is preemption.
b. Field Preemption
i. State: Look at what the purpose of the federal and state acts are
ii. Congress: the exceptions are a part of the purpose, so the state cannot
regulate in the exceptions
c. Exam Approach:
i. State Argument:
1. Congress does not have the power to enact this legislation in the
first place. No Constitutional hook.
2. The Court does not have power to hear this claim.
3. There is no preemption of this issue.
a. Find areas where the state law and the federal law differ.
ii. Federal Government Argument:
1. Congress has preempted this area through legislation or the
Constitution.
2. Congress has the constitutional power to enact this legislation.
d. Express Preemption: Congress explicitly displaces state law à will define the
scope of preemption in the act and it will take precedent
e. Implied Preemption: Art. 6 Cl. 2 (Supremacy Clause)
i. Conflict Preemption: (1) impossible to imply with both the federal and
state law, including violation of the broad purposes of the law; (2) state
law stands as an obstacle to the accomplishment/objectives of Cong.
ii. Field Preemption: Congress chooses to regulate a subject exclusively
by federal law (if you are State wanting to uphold state law, they would
argue that the law falls outside of the field). There may not be one single
regulation on point, but a scheme of statutes shows that there are field
preemptions.
1. There is so much regulation, this is evidence that Congress
intended to regulate the whole field.
f. Preemption v. Dormant Commerce Clause
i. Preemption: there are express laws on the books
ii. Dormant Commerce Clause: Court infers that the Commerce Clause
grants the federal power even if they not acted à preemption in areas of
inactivity
g. Article I § 10: Grants Congress certain powers not granted to states
i. Clause 1: States cannot make treaties, alliances, confederation, foreign
affairs relations, coin money, states cannot seize foreign/enemy ships
ii. Clause 2: States cannot impose duties on imports/exports unless what is
absolutely necessary; Congressional consent
iii. Clause 3: based on war powers of states (they can engage in war with
Congressional consent)
h. Silkwood v. McGee Corp. (field preemption): while federal law has preempted
nuclear safety, this does not preempt state-law punitive damages for nuclear
safety related accidents; Pacific Gas shows Congress intended to regulate the
entire nuclear safety field and the awarding of state punitive damages does not
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conflict with that objective. No conflict preemption because the purpose is

different nor is there a conflict of trying to follow both state and national law.
There is field preemption in nuclear safety, but there is no preemption of
damages.
i. Counter-Argument: Punitive damages are used as an incentive that is
used as a whole takeover of a field
IX. Dormant Commerce Clause: Even where Congress has no regulations, the States still
cannot regulate that area (it has already been preempted)
a. Go through all the tests:
i. Uniform national standards test
ii. Discriminates against ISC
iii. Burden on interstate commerce
b. Exam Approach:
i. Could Congress have the power to regulate a certain area under the
Commerce Clause?
1. If there regulation or action on the books, go into Commerce
Clause and do a preemption analysis.
2. If no Congressional action, go to dormant commerce clause.
a. Does Congress have power under the Commerce Clause to
regulate the area that the state wants to regulate?
ii. If Congress does not act in a certain area, are states still barred from
regulating that area?
1. If states may not act, look to the Nec. & Proper Clause or P&I or
Supremacy Cl.
2. If states may act then there is no DCC analysis.
iii. Limits on State Action
1. States may not engage in discrimination against interstate
commerce unless necessary to further a legit state interest
a. Legitimate state interests:
i. legit local interests: health, safety, & conserving
natural resources
ii. not: protecting local businesses from competition
2. Is a uniform national standard necessary?
3. Does state impose a burden on interstate commerce that is
excessive in relation to legit local interests?
a. If effects are incidental, the state action will be upheld if a
legit purpose exists. Matter of degree:
i. weigh extent of burden with the nature of the local
interest involved (& whether it could be promoted
with a lesser impact on interstate activities)
1. Would a less intrusive means accomplish the
same end?
ii. does state claim a specific/tailored interest?
4. Congress can remove state limitations by legislation.
c. Art. I § 8 outlines the Enumerated Powers of Congress
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i. The courts have interpreted these enumerated powers to have implied

powers under them through the dormant commerce clause (ex. To enact
post offices and post roads would give them the underlying powers to
build post offices and roads) → the question is how far does this power
go?
d. Why does Congress not have EXCLUSIVE power over IC?
i. Art. I § 10 lays out what states cannot do; regulation of interstate
commerce is not on this list
ii. Congress does not HAVE to regulate commerce so the states could be
free to do so
iii. Congress has tough procedural hurdles to overcome
iv. Intrusion on the federal structure
Expansion of the DCC Restriction of the DCC
• Gibbons v. Ogden (1824): Congress • Cooley v. Board of Wardens (1851):
has the power to regulate interstate When there is no national standard,
commerce (between two states), Congress retains the power to set one
including navigable waters, even if if needed, as navigation is an inherent
there is no law on the books. Channels part of commerce; however, the
and navigation is a part of commerce. regulation of pilots and ports do not
The Commerce Power has areas where impact the entirety of the shipping
only the federal government can industry. The regulation of ports is of
govern, there is no concurrent. such purely local character and not of
• Wabash v. Illinois (1886): Even if national concern, making the state
Congress has not acted in setting a regulation acceptable. Local economic
national standard railroad rate, impact. Uniform National Standards
individual states cannot enact one, as Test: the regulation on intrastate
this type of regulation is of such commerce necessarily imposes the
general and national character that can same regulation on interstate
only be done by Cong., barring state commerce, than congress retains the
action. Nation-wide economic impact. power to regulate it.
• Dean Milk v. City of Madison (1951): • South Carolina v. Barnwell Bros
The local regulation practically (1938): requiring trucks to follow
excluded out of state milk distribution, certain guidelines when travelling on
affecting interstate commerce. The SC highways was acceptable those are
regulation can still be discriminatory roads built and maintained by the
to out of state, even if it is also state. No need for a national uniform
discriminating in state distributors standard. The state interest is more
because there was less intrusive means compelling than the burden on ISC.
to achieve local safety.
• Hughes v. Oklahoma (1979): When
less discriminatory means are
available to ensure state goal the
regulation is too burdensome on
interstate commerce. The OK
regulation was facially discrim. as it
followed state lines (expressly worse
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treatment for out-of-state people). It is

not just protectionism that is barred bc
discrimination.
• Southern Pacific v. State of Arizona
(1945): State interest was not specific
nor tailored; the burden on ISC was
too great to outweigh the state safety
measure. Arizona’s goal of safety was
not a high enough burden to overcome
the burden imposed on ISC.
• Camps Newfound/Owatonna, Inc. v.
Town of Harrison (1997): Clear
discrimination of camp that dealt
mainly with out of state residents
making the property tax exempt status
invalid. The camp was engaged in
commerce and dealt mainly with out
of state campers. Violates the
Discriminatory Test
• Prudential Insurance v. Benjamin
(1946): Congress can remove state
imitations by legislation and has the
power to regulate insurance.
Commerce Clause is a grant of
plenary and supreme authority.
e. Uniform National Standards Test: the regulation on intrastate commerce

necessarily imposes the same regulation on interstate commerce, than congress
retains the power to regulate it.
i. Cooley v. Board of Wardens (1851)
ii. Wabash v. Illinois (1886)
f. Discrimination Against Interstate Commerce Test: either on its face or in
purpose and effect, the statute is discriminatory unless there is a legitimate state
interest.
i. Dean Milk v. City of Madison (1951)
1. Protecting the health and safety is a legitimate state interest,, but
protecting local business from competition is not
ii. Hughes v. Oklahoma (1979)
g. The burden on Interstate Commerce Test: the burden on ISC is excessive in
relation to the local interest
i. South Carolina v. Barnwell Bros (1938)
ii. Southern Pacific v. State of Arizona (1945)
h. State of Commerce Clause after Cooley and Wabash: states are not completely
barred from regulating interstate commerce except when the commerce affects the
national economy à adopted the “National Uniform Standards” test to judge
commerce clause violations
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i. Uniform National Standards Test: the regulation on intrastate

commerce necessarily imposes the same regulation on interstate
commerce, than congress retains the power to regulate it.
i. Dean Milk v. City of Madison Balancing Test Created by the Court:
Discrimination against interstate commerce Test (the law does not hold if it is
discriminatory on ISC, unless there is a legitimate state interest à apply strict
scrutiny; do less burdensome test)
i. Area involving the regulation of commerce
ii. The party must show that the regulation is discriminatory or burdensome
iii. If discrimination is not overt then:
1. Is there a good reason for the discrimination? (is a legitimate state
interest being furthered by the discriminatory regulation)
iv. Are there less restrictive means available to further the state interest?
j. The burden on Interstate Commerce Test: excessive in relation to the
legitimate local interest (state protectionism is never enough)
k. Camps Newfound/Owatonna, Inc. v. Town of Harrison (summer camp)
i. Ways in which this holding expanded the Commerce Clause:
1. Campers are considered articles of commerce
2. This is a non-profit, not a normal business
3. This was also a property tax, not considered to be an article of
commerce
4. The tax is internal to the state that the residents have to pay yearly
X. Privileges and Immunities (Art. 4 § 2 Cl. 1) à limit on state power
a. Exam Approach:
i. Is there discrimination?
1. Here is why it is discriminating against out-of-state citizens.
ii. Is discrimination over a fundamental right? à P&I only applies to
fundamental rights; fundamental to the coherence to the union.
a. Is it more like a hunting liscense, or participating in a
business.
2. If there is no discrimination, no violation.
iii. Does the state have substantial reason/interest for discrimination? à
apply the strict scrutiny analysis.
b. Substantive: Art. IV. § 2, Cl. 1
i. limits state’s ability to treat citizens of other states differently from own
citizens (this is inapplicable to corporations)
ii. limits discrimination only with respect to rights that are fundamental to
promotion of interstate harmony
iii. may allow discrimination if the state has a substantial reason for the
discrimination
iv. citizen refers to US citizens (not aliens or corps)
c. Baldwin v. Fish and Game Commission of Montana (1978): A state may favor
its own residents for hunting and fishing licenses because these requirements are
not necessary to promote a substantial state interest and do not impair a
fundamental right (hunting and fishing is not needed for survival). The access to
elk is not needed to the maintenance and sustenance to the wellbeing of the union.
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i. Distinguish from Minnow Case: the burden that the Montana statute
places is much lower because obtaining a hunting license is not a
fundamental right. In OK Minnow case, there is NO minnow
transportation, whereas in Montana out of state residents just have to pay
a little more.
d. Supreme Court of New Hampshire v. Piper (1985): The practice of law is
important to the international economy and work is not merely recreational (like
hunting) but it important for one’s livelihood, making it more of a fundamental
right violating the P&I Clause. There is a less restrictive means available. P&I
applies to business à if a state allows a business they must allow to out of state
residents. Certain federal claims that in state lawyers will not take, so there must
be out of state lawyers.
e. Strict Scrutiny:
i. There is a substantial reason for the difference in treatment
ii. The discrimination against non-resident bears a substantial reason to the
state interest.
1. Is there less restrictive means?
CONGRESSIONAL POWER
I. Commerce Clause (Art. I § 8): “to regulate commerce with foreign nations, and among
the several states, and with the Indian tribes.”
a. Exam Approach:
i. Does Congress have power under the Commerce Clause to regulate?
ii. 4 Areas of acceptable Congressional Regulation
1. Channels: Cong. can regulate the use of channels of interstate
commerce (e.g., highways, waterways, air traffic, even where
activity is intrastate) (Gibbons)
2. Instrumentalities: can reg. instrumentalities of interstate
commerce even if threat comes from intrastate activities
a. Ex: Lopez (people, machines, and other “things” used in
carrying out commerce)
3. Articles moving in interstate commerce: can reg. articles moving
in interstate commerce. Ex: Champion v. Ames (lottery tickets)
4. Anything substantially affecting commerce: broadest category
of regulation; any activity having a substantial effect on commerce.
a. Is activity economic/commercial?
i. Does it affect ISC in the aggregate? à Wickard and
the aggregate/cumulative effects theory
ii. Does the class of acts substantially effect the
economy in the aggregate? à Raich
1. If yes, then Congress may regulate the class
of acts.
iii. Examples:
1. Darby (employment practices): yes
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2. J&L Steel (labor regulations; min wage,

hrs): yes
3. Lopez (guns in school): no
4. Morrison (violence against women): no
5. Raich (weed growing): yes
a. Cong. can regulate noneconomic
local activity if that reg is a
necessary + proper part of a more
general reg of interstate commerce
b. Is there a jurisdictional hook?
i. where statute requires jxn hook b/w the particular
activity in question & commerce, more likely w/in
Com. power
1. Lopez & Morrison: SC displeased with lack
of hook, but doesn’t say it would change
outcome if statute had one
2. if hook is general (activity must have sub.
effect on interstate commerce),
congressional findings will be more useful
c. Are there congressional findings?
i. Might be useful in a close case
ii. Helpful but not necessary à do not want to impune
motives of law makers
1. Ex: Morrison (lots of findings, but statute
still didn’t survive); McClung (no findings
but statute survives)
d. Is conduct traditionally state regulated?
i. if traditionally domain of the states, less likely
Cong. is acting w/in Com. power
ii. E.g., education, family law, general criminal law,
agriculture (Wickard), manufacturing (but see J&L
Steel – if activity is N+P to protect commerce, can
regulate)
iii. Can outweigh state’s traditional regulation showing
that nat’l solution is necessary
5. To defend state law:
a. Say no complete preemption
b. Congress still has to show activity engages in interstate
commerce (even if local)
i. Argue that activity has not yet become interstate
ii. Is there an explicit interstate commerce hook?
b. Issue Spotting List
i. How broad is the market that is attempting to be regulated? à the more
board the more opportunities for touches on interstate commerce
ii. Is this intrastate or interstate commerce?
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iii. If this is interstate commerce, is there a substantial effect on interstate

commerce? à Congress can regulate if there is a substantial impact.
iv. Does the statute include a jurisdictional hook for interstate commerce?
(Lopez and Morrison)
v. Is there commerce or is there an abstention from commerce? (creating ≠
regulating) (NFIB v. Sibelius)
c. Substance of Commerce Clause:
i. Article I, § 8, cl. 3: “The Congress shall have the Power to regulate
commerce with foreign nations, and among the several States, and with
Indian Tribes.”
ii. “Substantial economic effect” allows congress to regulate in areas of
intrastate activity and in both activity and inactivity.
iii. Darby: affectation doctrine
iv. Wickard: aggregation doctrine
Expansion of Commerce Clause Narrow of Commerce Clause

• Gibbons v. Ogden: Commerce is • U.S. v. E.C. Knight: Congress lacks
every form of activity involving or power to control manufacturing.
affecting 2 or more states. Art. I §9 Congress may not regulate
includes navigation in commerce. manufacturing that only incidentally
• Shreveport Rate Case (1914): and indirectly affects ISC. Suggests
Flexible Effects Test: Congress has that if manufacturing were to affect
authority over IS carriers as ISC, Congress could regulate it. (Early
instruments of ISC because those Case)
operations have close and • Hammer v. Dagenhart (overruled):
substantial relation to IS traffic. Congress does not have power to
Intrastate commerce may be regulated standardize age children can be
if it is necessary to interstate employed because this exert power of
operations. purely local matters.
• Champion v. Ames: Congress has • Carter v. Carter Coal (1936):
plenary power to regulate commerce, Congress cannot regulate production
including lottery tickets, even if it is of coal as that is a purely local activity
on the basis of morality because the and labor relations are local. Even
tickets went across state lines. though production is a prep step for
• NLRB v. Jones: Congress may commerce, this would allow Congress
regulate labor relations under its to regulate everything if that was the
Commerce Clause power because line.
labor relations have such a close and • U.S. v. Lopez: Congress could not
substantial relationship to interstate pass the act because there was no jxn
commerce that their control is limit that connected the act to ISC and
essential to protect that commerce guns at school did not substantially
from burdens and obstructions. affect ISC. Congress does not have
• U.S. v. Darby: Congress has authority general police powers and cannot use
over prohibition of interstate shipment the “cost of crime” reasoning. There is
of goods produced under forbidden no direct effect on economic activity.
labor practices. Cong. may choose the
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means reasonably adapted to the This was an area of traditional state

attainment of the permitted end regulation.
(even if it involves intrastate activity). • U.S. v. Morrison: Congress does not
The total affect is great enough to have power to regulate as this does not
affect commerce. affect economic activity. There is no
• Wickard v. Filburn (1942): jxn hook relating violence against
Aggregate/Cumulative effects women to ISC. Cong. may not
principle: the local activity of regulate noneconomic, violent
growing personal wheat, taken in the criminal conduct based solely on
aggregate, would have a substantial conduct’s aggregate effect on
economic effect on all ISC. interstate commerce
• Heart of Atlanta Motel v. U.S.: • National Federation of Individual
Congress may enact regulations that Business v. Sebelius: Congress could
prevent racially discriminatory not enact an individual mandate
policies in hotel accommodations requiring people to purchase
because of the severe negative effects healthcare because you cannot compel
of those policies on interstate individuals to participate in
commerce because people are less commerce. Congress cannot regulate
likely to cross state lines. Used the CC inactivity.
to pass the CRA to stop private racial
discrimination.
• Katzenbach v. McClung: CRA
applies to any restaurant whose
“substantial portion” of food moved in
interstate commerce and the restaurant
here had 46% of food product
MOVED in ISC. Looked at
discriminatory practices in the
aggregate (Wickard) and used a
rational basis test.
• Gonzales v. Raich: Congress can
prohibit the purely local growth and
use of weed because it is apart of a
“class of activities” that has a
substantial affect on ISC (similar to
Wickard). There is a substantial effect
on the supply and demand in the
market, even though the weed never
actually entered into the channels of
commerce. This only works under the
affectation doctrine, would not work
under Gibbons.
f. Early Cases
i. Gibbons v. Ogden: Navigation falls under commerce
ii. E.C. Knight: manufacturing is not commerce
iii. Shreveport Rate Case* (1914): power to regulate RR rates within a state
14
iv. Champion v. Ames*: power to regulate interstate commerce of a

particular good; can prohibit the subjects of traffic which is commerce;
the power to regulate commerce is plenary
v. Hammer v. Dagenhart (overruled)
vi. Carter v. Carter Coal (1936): cannot regulate manufacturing that is
purely local under CC à Direct Effects Test
g. Binding Cases
i. Affectionate Doctrine
1. NLRB v. Jones (1937): the affectation doctrine à if there is such
a close and substantial relation to commerce, Congress can
regulate it (Congress could regulate the labor practices of unions)
2. U.S. v. Darby: There is a jurisdictional hook only regulating ISC
making the direct on interstate commerce more direct. Introduces
the aggregate principle in the effect. The subject sold in interstate
commerce is only scrutinized under a rational basis (does not have
to show in fact that there is an effect on a rational basis).
ii. Cumulative Effects Doctrine
1. Wickard v. Filburn: Cumulative effects doctrine à everything
taking in the aggregate would have an effect on ISC
2. Heart of Atlanta Motel v. U.S.: Congress can regulate the local
instances thereof
3. Katzenbach v. McClung: by allowing black patrons to eat inside,
they would buy more meat (which comes from a local buyer that
purchases out of state) which would lead to an impact on ISC
iii. New Cases: Limit on Affectation Doctrine
1. U.S. v. Lopez: power under the CC has to have some outer limits;
using rational basis test found that there was no effect on ISC; no
jurisdictional hook
a. Use and channels of ISC (Gibbons)
b. Regulate Instrumentalities of ISC (person or things) even if
the thing is from intrastate acts (Lopez and Ames)
c. Affectation Doctrine (always been an economic activity)
2. U.S. v. Morrison: affectation doctrine must be hooked to economic
activity; activity regulated and the effect must both the
economically motivated
3. National Federation of Individual Business v. Sebelius: Congress
cannot force people to enter into the stream of commerce; you can
regulate commerce once people enter
iv. New Case
1. Gonzales v. Raich: the CC and the N&P gives Congress the power
to regulate the sale of homegrown use of weed; you don’t have to
use the cumulative effects doctrine when there is an entire national
regulation that Congress is trying to control
h. Heart of Atlanta Motel v. U.S. (race discrimination and CC) (expansion of CC)
i. Additional Support: 13A (grants Congress additional authority in § 2)
and 14A (courts cannot deny due process of law enforced by § 5)
15
1. The necessary and proper clause attaches to 13A §2 and 14A §5.
2. Congress has the explicit power to enact regulation to prohibit
slavery.
3. 14A is directed towards the states; there must be state action for
the 14A to be triggered. In Heart of Atlanta, Congress used the CC
instead of the 14A because the CC has more hooks to regulate
interstate commerce.
ii. Distinguish from Darby: The commerce here in question is different
from the labor practices in Darby. The purpose of Darby was to regulate
morals rather than a good.
i. Commerce Clause Doctrinal Development
i. Traditional Rule: Congress can regulate interstate commerce and its
channels and instrumentalities
ii. The 1930s: Expansion of the Affectation Doctrine à if there is an
intrastate economic activity that substantially effects interstate
commerce allows for Congressional regulation (Darby)
1. Wickard v. Filburn: the cumulative effects doctrine paired with the
affectation doctrine à looking at the intrastate economic activity
in the aggregate would yield a substantial effect of the interstate
commerce
j. Commerce Clause Regulations that are not acceptable:
i. Lopez & Morrison: there was no tenable effect on interstate commerce;
there was no jurisdictional requirement in the statute
1. Correction: Congress revised the statute to include a jurisdictional
limit which made it okay under the affectation and cumulative
effects doctrine; for Morrison Congress must be able to show that
the violence against women was indeed hindering interstate
commerce
XI. Necessary and Proper Clause (there is a very fuzzy line between the Commerce Clause
and the Necessary and Proper Clause) à allows Congress carry out enumerated powers
"lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common
defense and general welfare of the United States.
a. Traditional/ Limited View: Congress must use a textual hook in Art. I § 8 to

enact something under the Necessary and Proper Clause; “and” implies that the
laws must be BOTH “necessary” and “proper” in order to be enacted → that is a
high bar
i. If the power is delegated to another branch, then Congress cannot take
that power
ii. The length and text of Art. I show that the powers were to be
enumerated
b. Non-textualist/Expansive View: The Necessary and Proper Clause allows for
Congress to have greater power outside of Art. I § 8
c. Limits on the Necessary and Proper Clause:
i. The end must be legitimate
16
ii. Within the scope of the Constitution

iii. Means must be appropriate and plainly adapted to that end, which are
not prohibited by the Constitution
iv. Consistent with the letter and spirit of the Constitution
v. Congress must have a hook with an enumerated power to use the
Necessary and Proper clause
vi. May only be used on enumerated powers (Sebelius)
vii. Must be reasonably adapted to its ends (McCulloch) à this equips
Congress with the power to carry into effect other enumerated powers
d. Not a General Welfare clause:
i. There would be no need for the rest of the Constitution if this was an
enumerated power
ii. The terms and text of the rest of the Constitution and Art. I are
narrowing
iii. 10th Amendment (Less persuasive): grants the remaining non-
enumerated power to the states and the people
e. Relationship between the Necessary and Proper Clause and the Commerce
Clause
i. The Necessary and Proper Clause is used as a gap filler between the
Commerce Clause the ability to apply sanctions or penalties for
regulatory purposes
XII. Congressional Taxing Power (Art. I § 8, Cl. 1)
a. Penalty or Tax?
Penalty Tax
• The “tax” is so outrageous that • Must actually raise revenue
people will not partake in the • No scienter requirement (Child
behavior as to avoid it. Labor Tax Case)
• There is a high degree of • Collected by the IRS (Child Labor
deterrence/incentive to not partake Tax Case)
in an activity (NFIB v. Sebelius) • There is a positive end
• Clearly is punishing wrongful
behavior
• The more narrowly tailored the tax,
the more likely it is a penalty
• The more outrageous the tax is, the
high likelihood it is a penalty
(Child Tax Labor Case à would
take 10% of all net profits)
b. Issue Spotting List for Taxing Power

i. Does the tax raise revenue or is it a penalty? à if it is a penalty than the
tax is no longer under the taxing power because they are backdoor
regulating; if it raises revenue, it is constitutional.
ii. How to determine if it is a penalty?
1. It is not reasonably raising revenue
17
2. Is the tax so egregiously high that it disincentives the behavior so

no one does it?
3. Is there a scienter requirement?
4. Who collects the taxes?
5. A tax has a positive end, a penalty punishes unlawful behavior.
6. Does it appear more regulatory in nature, that they want the “tax”
so high so people don’t partake in that activity.
7. Last resort: What were the motives of Congress?
8. How narrowly tailored is the tax? à the more narrowly tailored
the tax is, the more likely it is a penalty.
c. Power to Tax: Congress has the power to impose and collect taxes and the
Necessary and Proper Clause would allow Congress to determine how to collect
those taxes.
i. The tax must have the specific ends of paying off debts and providing
for the common defense and general welfare of the United States à
must be a revenue raising tax, not a penalty
ii. “Uniform throughout the states” à this only applies or duty, imposts
and excises NOT TAXES
1. Duty and Imposts: a tax on imports must be the same (no federal
favoritism)
2. Excise: tax on manufactured goods
iii. 16A grants Congress the power to tax income
iv. There is no subject-matter jurisdictional limit on the power to tax
v. This is a very vast power as it can preempt state laws
d. Limitations on the Power to Tax
i. § 7: Procedural Limitations on the power: revenue bills must be raised in
the House à why is this?
1. There are more representatives, they are elected every two years so
there is more accountability, larger body. Taking people’s money
is a big deal.
ii. § 9: Direct Taxes must be laid proportional to the census; no duties on
interstate commerce
iii. § 9 Cl. 4: Capitation (head tax)
1. This keeps the federal government from burdening one satte over
another, ensures that all states are treated the same regardless of
population,
iv. § 9 Cl. 6: states cannot be favored
e. Differentiations between the Commerce Clause, Taxing Power, and
Necessary and Proper
i. CC: limited because regulation can only attach to commerce that relates
to interstate
ii. Taxing power: no interstate commerce limit; less restricted in how it can
be applied.
iii. Necessary and Proper: constrained to the “foregoing powers” indicating
that it can only be applied to the enumerated powers
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iv. TEST TIP: ANALYZE THE ISSUE THROUGH BOTH TAXING

POWER AND COMMERCE CLAUSE
f. Differing Views on the Taxing Power from the Framers
i. Hamilton: not limited to the enumerated powers
ii. Madison: power is constrained to the enumerated powers
g. Child Labor Tax Case (Bailey v. Drexel Furniture Co.) (distinguished between a
tax and a penalty): The tax was invalid because it was a penalty because there was
a scienter requirement and the Secretary of Labor, not the IRS, collected the taxes.
This was an imposition of 10% of revenue, making the burden too high. Congress
cannot regulate taxation power by using it to impose penalties
h. U.S. v. Kahringer (can wagers be taxed): A revenue-producing tax is not invalid
because the purpose of the tax is regulatory. Would require self-incrimination to
report oneself. Tax is aimed at regulation; a penalty is used for eradication.
i. NFIB v. Sebelius (ACA shared responsibility provision): This was a valid tax not
a penalty because the provision was not egregious, raised revenue, no scienter
requirement, and was collected by the IRS. Disregarded the fact that Congress
called the “tax” a penalty. Does affect individual conduct but the tax is regulatory.
Not a direct tax. Does not compel or punish individuals. THE CORE IS
WHETHER THERE IS REVENUE OR NOT.
i. Then must determine if this is a direct tax? à No it is not a lump some
on every person, a property tax, or income. It is just an activity or a lack
of activity.
1. Any direct tax (capitation/head tax, property tax, income tax) is
going to be constitutional because it will be too hard to
apportioned according to the census.
XIII. The Spending Power (Art. I § 8 Cl. 1)
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the
Debts and provide for the common Defense and general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform throughout the United States; . . .
a. Exam Approach:
i. When Congress puts limits on conditional spending:
1. Is it in pursuit of the general welfare?
2. Is the Congress statement of condition for the federal funds to the
states unambiguous/clear?
3. Is the condition on spending related to federal inters tina particular
project/national program?
4. Does the conditional spending requirement violate an independent
constitutional requirement?
5. Is the conditional requirement coercive?
a. Does it withhold so much money if the condition is not
followed that it is coercive?
b. Is this a limitation or a grant of power?
i. Sec. 8 already allows Congress to spend money under the N&P
19
ii. Is the spending power its own grant of power or a limit on the other
enumerated powers?
c. Textual Interpretation of the Spending Power:
i. “To pay debts and provide for the common defense and general welfare
of the US.”
ii. The comma, over the use of a semi-colon, would indicate that this is
NOT an enumerated power; while it is not an enumerated power, the
other enumerated powers limit the general welfare clause.
iii. No interstate nexus for the spending power
1. Spending power is more expansive than the CC, but the limit is
that the spending power must be exercised for the general welfare.
iv. Cong. can achieve otherwise disallowed objective (one that lies beyond
enumerated powers) by conditioning spending power to achieve result
indirectly
v. basic/most direct way to exercise spending power: Cong. grants money
for X
d. Relation to the Necessary and Proper Clause

i. The spending power is located in a place in the Constitution where broad
powers are located. The N&P Clause might already give Congress
spending power.
e. U.S. v. Butler (1936) (crop control scheme): 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. However, the court
found that the confinements of the power are in the clause itself (Hamiltonian
view). General Welfare Clause allows Congress to spend money on anything that
in its discretion will promote the general welfare. Congress cannot coerce
individuals through economic pressure as the power of choice is illusory.
Congress can spend money to incentivize individuals if it has power under the
enumerated Sec. 8 powers.
i. Madisonian View: the spending power is limited by the enumerated
powers. It is merely a reference to the other enumerated powers in the
subsequent clauses.
ii. Hamiltonian View: The clause confers a power separate and distinct
from the latter enumerated clauses. The only meaningful limit is that the
spending power must only be used for the welfare of the public. THIS
IS THE WAY THE COURT VIEWS IT!
f. South Dakota v. Dole (SD lowered drinking age to 18): The condition on the
spending was valid because the state can choose to not take federal funding and
Congress wanted to nationalize a standard drinking age.
i. Dole Factors for the Spending Power
1. Power must be derived from the general welfare (will defer to the
determination of Congress on this)
2. The condition must be unambiguous
3. The regulation must be related to the federal interests in particular
national projects or programs.
20
4. Other Constitutional provisions may provide an individual bar to

the Conditional grant of federal funds (relates to the Butler
coercion test)
5. BONUS PRONG: The spending power must not violate other
constitutional powers or be coercive. States must be free to chose
to accept the condition as they are sovereigns.
g. NFIB v. Sebelius (Would require states to increase Medicaid coverage): Congress
cannot condition that the state complies or loses all of its Medicaid funding, this is
coercive (valid under all the Dole factors except coercion). This would mean that
a state would lose a large portion of its funding.
i. Differentiate from Dole: there was much less on the line in Dole with
only 5% of the Highway budget being affected; this would affect 20% of
the entire budget.
XIV. WAR POWERS (Art. 1 § 8): Congress has the power to declare war and raise and
support armies
a. Power Includes
i. Economic regulation in wartimes and post-war
ii. Military courts and tribunals
iii. Treaty power
1. 2/3rds of the Senate must ratify
2. Applicable under the Supremacy Clause
3. Limits on this power: the treaty must be constitutional
b. Exam Approach:
i. Can Congress use the war-treaty powers to go beyond domestic powers
granted in the Constitution?
ii. Is there an active war going?
1. If no, is there still effects from a recent war that would allow the
war powers to still apply?
c. Differentiate from Executive war powers in Art. 2 § 1, Cl. 1, § 2 Cl. 2-3, § 3:
The unilateral power of the president means that he can act faster, more
efficiently, and in secretly. The power of Congress to declare war does not limit
the executive power.
d. Woods v. Cloyd W. Miller Co. (1948) (rent regulations in WWII): Under the N&P
the war power of Congress activated by armed conflict may extend beyond the
cessation of hostilities to permit Congress to address the negative effects of war.
Does not provide a clear limit on when war powers/effects end.
e. Missouri v. Holland (treaty dealing with migratory birds and states’ rights): A
treaty is valid if it is made under the authority of the United States and is thus the
supreme law of the land. No 10A interference because of the Supremacy Clause,
N&P Clause, and express Congressional power to make treaties; birds were also
transitory in states, not state property.
XV. State Immunity from Federal Regulation
a. Congress may exercise some power to regulate the states
i. Congress may regulate states in the same way it regulates private actors
(through generally applicable laws à Garcia)
ii. Congress cannot compel a state to enact legislation
21
iii. Congress cannot compel state officials to implement or administer

federal laws
b. National League of Cities v. Usery (overturned by Garcia) (1985) (minimum
wage for private and public employees): The FLSA as applied to state employers
is unconstitutional as a violation of the 10A because the law is not generally
applicable. Congress does not have the power to regulate state employees in
traditional state functions, but they can set a national minimum wage for private
workers.
c. Garcia v. San Antonio Metro Transit Authority (overturned League of Cities)
(public workers wanted back pay): Congress has the constitutional authority to
regulate the wages and hours of state employees under the Commerce Clause
because Cong. can impose on the states substantive requirements similar to those
that it imposes on private actors. There is no substantive limit that Congress must
apply when the law is generally applicable, only limitation on federal power is
procedural. If congress can do it under § 8, they can do it to the states. Laws of
general applicability apply to the states.
d. New York v. U.S. (nuclear waste disposal program): Congress cannot require
states to legislate in a specific area. Congress cannot exercise authority over
states, just individuals. When fed compels (“commandeers”) states, accountability
on both state and fed officials is diminished. The take-title provision is
unconstitutional because it takes away the states right to choose. Generally
applicable laws are applied to states, but Congress cannot demand a state to enact
a federal regulation. Congress can encourage states to act through the spending
power or regulate in areas allowed under the CC.
i. Is it more powerful to regulate the state or individuals?
1. When the federal government makes states do something, the
people will hold the state officials responsible for federal action.
2. Counter: states act of protectors of individuals and rights, so the
state is to push back against the federal government.
e. Printz v. United States (Anti-Commandeering Principle) (enforcement of the
Brady Handgun Act): Congress cannot compel state officials to carry out a federal
requirement. Congress cannot commandeer state functions under 10A. The
federal government cannot compel a state to do an act they were not already
doing.
i. Differentiate from Garcia: there is more regulatory obligation in this
case and imposes an unfair financial burden on the state by requiring the
CLEOs to enforce federal regulation. CLEOs must also take
particularized action (do something they would not otherwise do), unlike
the issue of minimum wage.
XVI. State Sovereign immunity as a Limit on Federal Power (11A)
a. Exam Approach:
i. Who is the plaintiff? à must be a private plaintiff
ii. The state (or agent of the state) must be the defendant
iii. Relief sought must be damages or retroactive relief
iv. Did the state waive its right to immunity?
v. Is there a CC or 14A § 5 authority?
22
1. No sovereign immunity when 14A applies?

b. 11A Analysis: bars citizens of another state or citizens of a foreign state from
suing states. There is nothing in the 11A about a citizen of the state suing their
own state.
i. 11A (1795) was a response to Chisholm v. Georgia (1793) (SCOTUS
allows a SC citizen to sue GA) à court relied on Art. III § 2
ii. This protects states from lawsuits absent their consent
c. Art. III § 2 Grants Federal Jurisdiction too:
i. State v. state
ii. State v. citizen of another state (11A bars this)
iii. State v. its own citizen (the issue in Alden)
1. 11A in relation to state v. its own citizen:
a. 11A gives state sovereignty back
b. Counter: 11A affirms state sovereignty (they never lost it)
d. Sovereign Immunity bars suit only in the absence of consent:
i. consented to suits brought by other states & fed govt
ii. subject matter exemption: 14th Am. § 5 suits (abrogates state sov. im.)
iii. can sue lesser entities
iv. can sue officers for certain actions
v. consent by taking financial incentive from fed & then accepts
requirement of relief for violation (Dole)
e. Alden v. Maine (Maine prison worker sued Maine): State’s immunity from suit is
not derived from the 11A but from the background constitutional assumptions and
structural implications (Congress can authorize private suits for damages against
the state pursuant to the 14A enforcement). States cannot be sued by their own
citizens.
f. TEST: Who is the entity bring the suit?
i. Look at who is on both sides.
ii. What court is it in (state or federal)?
iii. What power is Congress using/ what claim is being brought?
iv. Has the state consented to suit?
XVII. Executive Privilege

a. Certain government officials are immune from certain suits.
b. Arises under the nature of enumerated power and Art. II § 1, vesting clause
directing the president to be the commander and chief and to take care that the
laws are reasonably executed.
c. U.S. v. Nixon (1974) (legislative wanted some of Nixon’s documents): 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.
i. for absolute privilege:
1. must be claim of need to protect military, diplomatic, or sensitive
national security secrets for confidentiality of Pres.
communications
ii. for general interest in confidentiality:
23
1. must weigh general privilege of confidentiality against the inroads

of such a privilege on the fair administration of crim justice
iii. Factors Relevant to Examining Executive Privilege:
1. Is it general claim or does the issue deal with national security?
2. Criminal or civil trial?
3. What is the public interest?
d. Where does executive privilege come from?
i. No textualist claims to this in the Constitution. The Court relied on
precedent to cover the president from private suits for monetary damage
under absolute immunity.
ii. Looked to history.
iii. Impeachment: this implies that there is one way to prosecute the
president for wrongdoing, implying that there is not opportunity to sue
the president in a civil capacity.
iv. Speech and Debate Clause: the clause only extends immunity to
Congress not the president (there is no equivalent in Art. II).
1. The president does not get it because that shows that the Framers
knew how to write immunity.
2. Counter: the branches are co-equal so they all get it.
v. Modern view: implied power from Art. II so that he is not bogged down
with lawsuits so he can exercise power and faithfully execute the laws.
This assumes the president will work in good faith.
e. Qualified Immunity: there was a violation of the law, but the official acted in
good faith so they are covered. Acts like a presumption that must be overcome.
f. Absolute Immunity: there cannot be any investigation because there can be no
suit against this person. (federal judges and prosecutors and extends to the
president)
i. The actions of the president are sensitive and far-reaching, requiring that
there be absolute immunity.
ii. Informational claims (Nixon v. US) will look different from suits for
monetary damages.
iii. Scope: only applies to official acts; the president can be sued in his
personal capacity (Clinton v. Jones)
g. Nixon v. GSA: a former president has some protection from executive privilege
after they leave office.
h. Nixon v. Fitzgerald (suit against Nixon in his public capacity): The President of
the United States is entitled to absolute immunity from suits for damages based on
actions taken in his official capacity.
i. scope of absolute privilege:
1. must be related closely to the immunity’s justifying purposes
2. includes all acts within the “outer perimeter” of his official
responsibility
i. Trump v. Mazarus (the private bank would hand over Trump’s financial records
to Congress): Congress cannot use their information-obtaining power to secure a
president’s financial records for the purposes of embarrassment.
j. each House has power to “secure needed info” in order to legislate
24
i. Congressional power to obtain info is broad and indispensable

ii. cong’l subpoena is valid only if it is “related to, and in furtherance of, a
legit task of Cong.”
1. must have valid legislative purpose & concern a subject on which
legislation could be had
2. can’t issue subpoena for purpose of law enforcement
3. Four-Factor Balancing Test:
a. Is the asserted legislative purpose warrants the involving
the President and his papers, or is the information is
available elsewhere.
b. Is the subpoena is no broader than reasonably necessary in
scope so as to still serve Congress’s legislative purpose.
c. Courts should evaluate the evidence Congress has offered
to “establish that a subpoena advances a valid legislative
purpose”—the more “detailed and substantial,” the better.
d. Courts should assess what burdens a subpoena imposes on
the President.
PRESIDENTIAL AUTHORITY
XVIII. Limits of Domestic Authority

a. Exam Approach
i. Threshold Question: is there federal power to enact this law?
1. Is there a relevant grant of executive power in the Constitution?
ii. Has Congress passed a statute delegating power to the executive?
iii. Is the Executive carrying out the law or making the law?
iv. Is there a pardon of clemency granted?
1. YES - a nonjusticiable political question
v. Is the President appointing an officer? Is the officer high-ranking?
1. YES - President nominates with the advice and consent of the
Senate
2. NO - Who has Congress granted the appointment power to?
vi. Is the President removing an officer? What is the nature of the job?
vii. The higher the executive functions, the more Presidential power is.
b. Federal Executive Power according to Art. II
i. Art 2, § 2, cl. 2, the President can appoint principal officers
(ambassadors, judges, cabinet members) with the advice and consent of
the Senate + Congress can vest the power to appoint inferior officers to
the President, courts of law, or department heads Commander in Chief
ii. Art. 2 § 3 → “The President shall take care that the laws are faithfully
executed”
1. Congress cannot delegate powers that are uniquely assigned to it or
all of its lawmaking authority. So long as Congress sets forth some
intelligible principle to guide the executive branch in carrying out
the delegating authority, then uphold it.
25
iii. Offer state of the union address

iv. Get advice from subordinate officers
v. Can convene Congress in extraordinary measures
vi. § 2: Make treaties with advice and consent of the senate; appoint
ambassadors, councils, and ministers (President has the power to
determine which sovereigns are legit)
vii. Commission all of the officers of the US
1. Congress must make the office and the President must fill it
viii. Art 2, § 2, cl. 1 Pardon Power (not shared with Congress making it an
indefeasible power à Congress cannot place any regulation on this)
1. They cannot pardon impeachments.
2. Could be a textual limit to that they may only pardon federal
crimes, but not state crimes.
3. Must issue pardons to faithfully executing the laws.
ix. Art. I § 8: Congressional international powers allow Congress to
regulate commerce with foreign nations à there has been a large
statutory grant of power to the President through the creation of the
Department of commerce.
c. Modern Presidential power is very broad and the Congress has been granting
more statutory power to the president à the fight is normally over whether the
statute grants the president power.
d. Co-equal branches of power: each branch is separate and equal and carry separate
powers; however, there are more enumerated limitations on Congress than the
executive branch.
e. Differences between the Art. I and Art. II vesting clause?
i. Art. I says “herein granted” textually limiting the power to the list within
Art. I; there is no limiting principle on the Art. II vesting clause.
f. Youngstown . Sawyer (1952) (president authorized the take over of steel
mills): Unconstitutional use of presidential powers.
i. Jackson Concurrence: 3 zones of power
1. 1) the Max presidential power: president is acting pursuant to an
express or implied authorization of Congressional authorization à
using both Presidential and Congressional power
2. Twilight Zone: president acts in absence of either congressional
grant/denial of authority; he is only relying on his own individual
powers or him and congress may have concurrent authority.
3. Lowest Ebb: Congress has restricted an area of expressed
executive authority and must show that the executive power cannot
be regulated (this is where Youngstown Falls à no § grant of
power)
XIX. Foreign Affairs/National Security
1. Was there some Congressional authorization?
a. YES - To what extent? Is there some kind of constitutional violation?
b. NO - Unless the president has independent constitutional authority, President
may not act.
i. Are constitutional liberties still upheld?
26
2. Is the Executive acting as a representative of the US in foreign relations?

3. Has the President entered into an agreement with a foreign country or government
with the advice and consent of the Senate after a two-thirds vote? Is the law self-
executing domestically or has Congress enacted enabling legislation?
4. Has the President entered into an agreement with a foreign country or government
with the implied authorization of Congress?
a. Substantive
i. Constitution divides authority for foreign affairs/war between the executive and
the legislature
ii. Executive Powers in War
1. War Powers Resolution
a. when Pres. can act: declaration of war, specific statutory authorization,
or a national emergency
b. must consult with Cong. when initiating forces, etc.
ii. Quirin: Pres. has affirmative power to detain (inherent commander-in-chief
powers)
iii. Foreign Relations
1. Power to recognize foreign states
iv. Treaty Power
v. Supreme Law
1. self-executing/non-self-executing
2. conflict with congressional acts
3. conflict with Const.
vi. Can abrogate a treaty by passing subsequent legislation (Supremacy Clause à
later in time is the law)
vii. Executive Agreements à power to settle claim of a US citizen
b. Dames and More v. Regan (1981) (president settled Iranian settlements): US Executive
has sovereign authority to settle claims of its national citizens against foreign countries.
Allowed through tradition. President has vested executive power. (YT zone 2)
i. Differentiate from Youngstown: This is dealing with foreign affairs, not
national private property.
c. U.S. v. Curtiss-Wright (1936) (no arms sales to countries in war): This falls in Zone 1
and is acting according to statute. An otherwise unconstitutional delegation of legislative
power to the executive may nevertheless be sustained on the ground that its exclusive
goal is to provide relief in a foreign conflict. The president is the sole organ of the
federal government in international relations. (YT zone 1)
d. Whitney v. Robertson (1888) (supremacy of a federal statute or a treaty): When a self-
executing treaty and a federal statute relate to the same subject matter but are
inconsistent, the one that was entered later in date will prevail as the supreme law of the
land. Under the Supremacy Clause allows federal legislation to be law, there cannot be a
prioritization of certain laws over treaties.
e. Goldwater v. Carter (presidential treaty power with China and Taiwan):
i. Powell Concurrence: Not an issue ripe for judicial review because Congress
had no taken action, so there was no conflict.
27
ii. Rehnquist Concurrence: Cannot adjudicate because this is a political question

because it is a shared question between the executive and legislature à they
need to work it out.
iii. Blackmun Dissent: there cannot be a resolution until oral arguments and there
should be a plenary decision.
iv. Brennan Dissent: It is justiciable because there is no text over abrogating
treaties; the Constitution grants the executive power to make the treaties
therefore he should be change treaties.
v. Distinguish from Youngstown: private litigants brought suit in Youngstown
à it was not an intra-branch dispute.
XX. President’s Powers in Wartime
a. President’s Wartime power are granted in the vesting clause; however, the
judiciary is hesitant to grant a broad amorphous power to the president.
b. Art. I § 8, Cl. 11, 12, 13, 14: Power to declare war, raise and support armies,
make rules for the regulation of captures of land and water; BUT the President is
the commander and chief
c. Reconciling Art. I and Art. II War Powers:
i. Commander in chief has power to direct the actions BUT what is the
limiting principle
ii. The appropriations power of Congress can guide war and incentivize the
executive branch to do what they want.
d. Hamdi v. Rumsfeld (detaining US citizen after 9/11): capture & detention of
lawful combatants (“enemy combatants”) is fundamental incident of war
according to universal agreement & practice; detention may last no longer than
active hostilities. Due process guarantees that United States citizens held in the
United States as enemy combatants must be given a meaningful opportunity to
contest the factual basis for that detention before a neutral decision-maker.
SEPARATION OF POWERS
II. Character of Legislative Power
a. Exam Approach:
i. Is action legislative (in character and impact)?
ii. Does Congress follow the correct procedures?
iii. What power was used to enact the statute?
iv. Can the law be traced to an enumerated power? N and P clause? 14A?
v. Are there any external federalism or induvial liberty limits?
e. Procedural Power of the Legislature (Art. I § 7)
i. Provides the floor for procedural guarantees
ii. requires a public record of the yes/no’s for accountability purposes
iii. President must sign the bill for it to become law (serves as a check on
power and the president has a unique set of political reasons for
passing/stopping the passage of the bill)
1. The president cannot absolve himself from inaction à the bill will
either not take effect if he refused to sign it, or will take effect if he
signed it or waits ten business days without action
f. Formalist v. functionalist view of legislative power?
28
i. Formalist: Constitution creates a set form for the law-making process.

1. Does the form follow the text/rules in the Const.?
ii. Functionalist: considers whether an act is an actual, functional threat to
the separation of powers
1. Look to the purpose and threat to the separation of powers
g. How to apply Art. I § 7?
i. Is this legislative power? à only legislative action has to go through § 7
process.
1. Look to Constitutional meaning at the time of the founding and
debates to derive an originalist meaning
2. States practice and how they apply legislative power
3. Text of the Constitution à look to enumerated powers to derive
what the legislative branch is allowed to do
4. What were the purposes of the constraints imposed with the
enumerated powers (issue with this: there must be an overwearing
consensus on what the purpose is)
5. Legal dictionary for textualist analysis
h. Powers each House/Member can do outside of an objective meaning of
legislative power:
i. Impeachment Power
1. House § 2 cl. 5: bring forth impeachment
2. Senate: § 3 Cl. 6: hear impeachment trials
ii. § 7 Origination Power: Bills raising revenue must originate in the House
iii. § 2 Cl. 5: Judge election returns and qualifications
1. Discipline own members
2. Create own rules of proceedings (ex. filibuster in the Senate)
iv. § 2 Cl. 3: Choose officers (certain offices are specified by the
Constitution)
v. § 2 Cl. 2: Senate has Consent power over appointments and treaties
vi. § 2 Cl. 3: Congress may set how the consensus is taken (they must do
this by law)
vii. Art. III. § 3 Cl. 2: set punishment for treason
viii. Art. III § 1: Ordain and establish courts
ix. Art. I § 7: Compel members to appear
x. Art. 4: states how senators are elected
xi. § 7: Keeping journal of proceedings
xii. Power to meet and power to adjourn
xiii. Art. I § 10: consent to states doing things they could not normally do
(Congress could consent to a state going to war)
xiv. Art. 5: Propose Constitutional amendments
1. Sets out the procedure for Congress to do this à may propose
amendments for set out a convention
i. INS v. Chadha (1983) (deportation of citizen) (limit on Congressional power to
constitutional process): Legislation providing Congress with a one-house veto
over an action of the executive branch is unconstitutional because it does not meet
the constitutional requirements of presentment (all legislation must be presented
29
to the President) and bicameralism (all lawmaking must be shared by both Houses
and the president). The action taken is legislative in character and effect, making
it unconstitutional because the one-house veto does not follow Art. I §7
procedure.
j. Clinton v. City of NY (1998): The line-item veto is unconstitutional because there
is no provision in the United States Constitution that authorizes the President to
enact, amend, or repeal statutes, making it an express prohibition because the
process is already laid out. The president was relying on his own policy decisions,
rather than those discussed by Congress.
i. distinction from Field v. Clark:
1. there – suspension power was contingent upon condition that did
not exist when act was passed
a. here – cancellation power is based on same conditions that
Cong. evaluated when it passed statute
XXI. Character of Executive Authority
a. Exam Approach:
i. Is the officer exercising executive authority?
ii. Is the officer a principal or an inferior officer?
1. Principal: President can remove (Myers)
2. Inferior: Congress can limit the removal power (Morrison;
Humphrey’s) unless the standard for removal unduly interferes
with the executive branch
b. Inherent Powers of the Executive: Power to carry out the law and domestic
statues; direct diplomatic relations and national security.
i. Congress cannot assign executive powers to legislative officials
c. Congressionally Assigned Powers
i. Humphrey’s Executor: legislator assigned power to the executive that
was outside of the executive power that à power to fire certain
executive officials was held unconstitutional (the Court has functionally
overruled this as they do not rely on this)
ii. Morison: court suggested that even if you seem to be doing something
executive, but those actions are not substantive than it is not really
executive
d. Modern SCOTUS View: the executive power is vested in the president
e. who can fire/remove?
i. art II, § 1, cl. 1 – vesting cl. in Pres.
ii. Nec. & Prop. & art II, § 2, cl. 2 – Cong.
iii. remove people the same way they are appointed (power to remove is
incident to power to appoint)
f. Myers v. US (PMG fired by president): Pres. has exclusive power of removing
exec. officer whom he has appointed with advice & consent of the Senate.
Brightline rule.
g. Humphrey’s Executor. U.S. (president fired FTC commissioner): The president's
power to remove an executive branch official is not applicable to officials with
legislative or judicial functions. Due to the quasi-legislature and judicial function
30
of the FTC, the commissioner could only be fired for good cause because the
duties are performed with the executive. Brightline rule.
h. Bowsher v. Syner (CG was appointed by president but worked with legislatures):
Congress cannot reserve to itself the power to remove an officer exercising
executive authority.
i. Morrison v. Olsen (IC in DOJ for special investigations): A law vesting the
judiciary with the power to appoint an inferior executive officer (an independent
counsel) and prohibiting the Attorney General from removing the officer without
good cause does not violate separation-of-powers principles. Congress limit on
removal is okay. Brightline Rule.
i. officer is inferior (not principal) officer
1. (if he was principal, would need to be appointed by Senate
consent)
2. he is subject to removal by higher exec branch official
3. empowered by act to perform limited duties
4. office limited in jxn
5. office is limited in tenure
6. (consider supervision)
XXII. State Effort to Regulate House and Senate
a. General Rule: instrumentalities of fed govt are immune from state taxes &
regulations
b. Supremacy Cl. – fed immunity from state regulation
Qualification for Congressional Office (Art. I § 3 Cl. 2-3): The representative must be of
the district they represent to make them more accountable to the population they represent;
state lines do not change, but the districts do, and it is historical practice.
House Senate
• 25 years of age • 35 years of age
• 7 years as a US citizen • 9 years a US citizen
• Inhabitant of the state where elected • Must be inhabitant of the state where
elected
c. Procedural Restriction on Elections

i. Art. I § 4 Cl. 1: time, place, and manner of holding elections for
Congress shall be proscribed by state legislatures, but Congress retains
the power to amend these regulations
ii. Art. I § 5: each House shall be the judge of the elections, returns, and
qualifications of its own members (political questions doctrine is raised
here)
1. Powell v. McCormack: refused to seat someone who committed a
crime; not a political question because Congress cannot impose
additional limits.
iii. Art. I § 6: no dual holding of office: the compatibility clause means that
you cannot be in Congress and an executive officer or in a judicial
31
position. You cannot leave a seat to be in a civil position if the office

was created or pay was raised while in Congress.
d. U.S. Term Limits v. Thornton (ARK put term limits on Congressional House
Reps.): The requirements for membership in the United States Congress are
established by the Qualifications Clause of the United States Constitution and
may not be amended by individual states.
LEGISLATIVE POWER VS. SELECTED INDIVIDUAL RIGHTS
XXIII. Bill of Attainder (Art. I § 9 Cl. 3):

art. I, § 9, cl. 3: “No Bill of Attainder or ex post facto Law shall be passed.”
also art. I, § 10, cl. 1 (states)
a. Congress cannot pass a bill by Congress that legislation that imposes
impermissible legislative punishment. This is a violation of separation of powers
by intruding on both the Executive and Judiciary branches. This is also an
impermissible strain on individual liberty.
b. Issue Spotting:
i. Does the Act specify a name?
ii. What is the punishment?
iii. What is the line between punishment and regulation?
c. U.S. v. Brown (1965) (communists in labor unions): This is a BoA violation
because the Act is a legislative device that targets a group of people and declares
them guilty of a crime.
d. Nixon v. Administrator of General Services (Congress passed act to regulate the
taking of documents from office): No BoA issue, even though the act was specifc,
because there was no intent to inflict punishment.
1. Three-Factor Balancing Test:
a. Historical understanding of punishment
b. Type of severity of the imposed burden
c. Legislative record an intent to punish but cannot dive too
deep into the minds of the lawmakers à this is more of a
last-step resort
XXIV. Protection of Economic Liberty à Contract Clause (Art. I § 10)
a. “No STATE shall pass any law impairing the obligation of contracts.” (nothing
about the federal government)
b. Exam Approach:
i. does statute pose substantial impairment to obligation under K?
ii. does statute serve an important and legit public interest?
iii. is statute necessary to serve public interest?
iv. is K impairment reasonable under the circumstances?
c. Contract Clause does not apply to the federal government
d. States may still regulate financial interests but they cannot impair the current
contracts unless there is a valid government interest. They may regulate future
contracts.
e. Permissible Laws that Impair Contracts à Can retroactively change contracts
in a severe economic emergency if the regulation is…
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i. Nothing that substantially impairs

ii. Must have legitimate ends
iii. Oriented toward a certain individual or generally applied
iv. The terms reasonable
f. Home Building v. Blaisdell (1934) (altered mortgages during Great Depression):
Expansion of understanding of Contract Clause; allowed for alterations to
previous contracts during times of emergency. In times of economic emergency or
other exigent circumstances, states may impose increased limitations on the
freedom to contract if those limitations help address the emergency. It was limited
and not burdensome.
g. Allied Structural Steel Co. v. Spannaus (change in how companies pay stipends):
State act superimposes pension obligations on employers is invalid because it is
severe, permanent, and requires immediate change.
XXV. The Taking of Private Property
Physical Taking Regulatory Taking
• Can be a minor occupation (like the • Does not require physical occupation
TV cables) of the land
• The government must physically enter • Expands the takings clause to include
into the space, even if it is the airspace property that is taken through laws
above the land that significantly that destroy the economic value of the
devalues the land. property
• A physical taking can include a • Limiting Factor: the law must take
disruption so great that the enjoyment ALL the value of the land (this is
(both personal and economic) are so supposed to mimic a physical taking)
devastated. à a regulation prohibiting the
building of beachfront property is a
taking; but restricting the selling of
eagle feathers is not complete
destruction
a. Issue Spotter List

i. First determine if there was a taking?
1. If there is only economic disruption or changed expectation, there
is NO taking (this in conjunction with physical occupancy or
complete economic destruction, else may be a taking)
ii. If no, then the analysis is done because there was no taking.
iii. If yes, then must determine if it is used for public use. Was the taking for
the general welfare of the public use?
1. If yes, was there just compensation?
2. If no, and is for private use, this is an improper taking.
b. 5A Takings Clause: the state shall not take property for public use without just
compensation.
i. Basic elements for if a taking/regulation is appropriate:
1. Is it taking?
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a. physical taking – govt takes property whenever a physical

intrusion is a permanent physical occupation, no matter
how small the amount of space occupied
b. regulatory taking – govt can impair a property owner’s
interests by regulating the property & thus reducing its
value
i. only entire value taken or nearly all of normal uses
constitutes a taking
2. Is it for public use?
3. Has there been just compensation?
c. Power for this is derived from Art. I § 8 Necessary and Proper Clause
d. Textually is doesn’t limit taking to public use:
i. No imitation on taking for private use
ii. The 3A, Bill of Attainder, 4A, Due Process: nor be deprive of life,
liberty, or property without due process of law à strongest showing
taking clause cannot be used for private use
e. What is a physical taking?
i. United States v. Causby (low government planes over chicken farm):
This was a physical taking because the direct and immediate interference
with the enjoyment and use of private land that renders it uninhabitable.
The planes impaired the use of the land and the farmer was singled out.
ii. Yee v. City of Escondido (trailer park rent control): Rent controls do not
constitute a physical taking. No submission to a physical occupation by
the government or someone else. Owner still retained control over
renting to new tenants. The right to exclude was not being taken away.
iii. Loretto v. Teleprompter Manhattan (required apartment owners to run
government cable wires on buildings): A physical intrusion reaches the
extreme form of physical occupation regardless of how small the space
occupied is. There does not have to be a physical occupation by the
government, but it has to be the government imposing an additional
burden on the owner.
f. Regulatory Taking: no government physical occupation or benefit; but there is
so much regulation that it might decrease value and enjoyment of the land does
lead to a taking. There must be COMPLETE economic destruction in order to
qualify as a taking.
i. Penn Central Trans v. City of NY (regulation stating what could be
done with a historical building): Landmark preservation law is not a
taking, just a regulation on how to use the building. There was still
economic value. no taking even if govt prohibits a beneficial use that
individual parcel had previously been devoted to & cause substantial
individualized harm.
1. restriction might be a taking if: not reasonably necessary to the
effectuation of a substantial public purpose if it has an unduly
harsh impact upon the owner’s use of the property
ii. Andrus v. Allard (could not sell eagle feathers): A prohibition on the
sale of lawfully acquired property is not a taking for 5A purposes. This
34
is not a taking because the reduction in the types of uses, even the most
profitable, is not a taking because it could be used for other things. There
is not enough here to justify a taking, therefore no compensation is
necessary.
iii. Lucas v. South Carolina Coastal Council (beach house property): This
was a taking and compensation was required because the reg denies all
economically beneficial or productive use of land.
a. Physical Occupation: no matter how severe or the
purpose, there must be compensation if there is an intrusion
on the land
b. Regulation: denies the economically beneficially or
productivity of the land.
g. Is it public use?
i. Kelo v. City of New London (Pfizer took private homes for research
facility): Expanded definition of public use to include economic
development. Looked at “public purpose” more than public use includes
creation of a “better balanced, more attractive community” or
eliminating an oligopoly of land held by one party. consider entire plan –
promoting economic development is a traditional & long-accepted
function of govt (serves public purpose).
XXVI. State Action Doctrine à 14th Amendment
a. Generally, the Constitution’s power addresses the government's conduct but not
private parties.
b. Congress was granted additional powers through the 13A and 14A
i. 14A § 5: passes legislation to enforce the provision of the article
ii. 14A § 1: a clear prohibition against state and not necessarily the federal
government.
c. state action is 14th Am. protection that applies to govt, not private, action
d. public function exception – private parties are state actors when they engage in
activities “traditionally exclusively reserved to the state”
e. judicial enforcement exception – private action can become public action when
a court acts to uphold the private action
f. joint participation exception – private parties are state actors in certain
circumstances when they are acting with the state or state officers
i. deprivation must be caused by exercise of right/privilege created by the
state or by rule imposed by the state (something state is responsible for)
ii. party charged with deprivation must be state actor
g. The Civil Rights Cases (1883) (the private business cannot be regulated for race
discrimination under the 14A): Under the Equal Protection Clause of the
Fourteenth Amendment, Congress may only prohibit discrimination by state
actors, not private individuals. 14A prohibits state action that impairs P&I. Invests
Congress with the power to enforce the prohibition.
i. Compare to CC and Heart of Atlanta Cases: The CC was not
developed enough in 1883 to fall under that.; it has steadily expanded
since. Interstate commerce was not that broad then.
35
ii. The 13A is broader than the 14A because there is no references to states.
13A is a self-executing law à there did not need to be Congressional
action to stop slavery. However, the content of 13A limits the scope of
its power.
1. 13A § 2 is included to give Congress incidental powers to punish
the effects of slavery and set penalties. This always Congress the
power to enforce.
2. 14A includes the due process clause making the issue more
expansive.
h. The Public Function Exception to State Actor Doctrine
i. Private parties conduct can be regulated under the Constitution when
they engage in activities “traditionally exclusively reserved to the State.”
ii. Marsh v. Alabama (1946) (company town limited freedom of religious
speech): The First and Fourteenth Amendments’ protections of speech
and religion still apply to individuals when operating in a privately-
owned town if the town is open to the public and used for public
purposes. Must look just like a state actor to be one.
iii. Hudgens v. National Labor Relations Board (1976) (shopping mall
limited picketers): A private shopping mall may constitutionally exclude
picketing on its premises even if that picketing relates to the actual
activities of its tenant stores. Not a state function.
i. Judicial Enforcement Exception
i. Private action becomes public action when a court acts to upholds the
private action. Because courts are public actors, judicial decisions are a
form of state action. Although private action alone does not violate the
Constitution, court’s enforcement of the private conduct may constitute
state action.
ii. Shelly v. Kraemer (1948) (race discriminatory covenant): State court
enforcement of a racially restrictive covenant constitutes state action that
violates the Equal Protection Clause of the Fourteenth Amendment
making the issue a public function exception to apply the 14A on private
actors. There was a reversal of the lawful transfer of real property.
j. The Joint Participation/Entanglement Exception
i. Private parties will be deemed to be state actors when they are acting
WITH the state or state officers. à How entangled is the private actor
with the government?
ii. 2 Step Test to determine if a Private Party can be held liable:
1. The deprivation is caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the state or
by a person for whom the state is responsible
2. The party charged with the deprivation may fairly be said to be a
state actor.
iii. Burton v. Wilmington Parking Authority (state-owned parking garage
with a private coffee shop): The public character of the building the
coffee shop was located in made it entangled with a state actor. land &
building were publicly owned, building dedicated to “public uses,” costs
36
defrayed by donations from city, property was part of state’s plan,

upkeep and maintenance paid with public funds, tax-free exempt govt
agency (economic interdependency). The 14A applies.
1. New Test: You are a state actor even if you are a private entity
when there is a mutually beneficial relationship; economic and
financial synergy; there is benefit from the government.
iv. Edmonson v. Leesville Concrete Co., Inc. (private litigant used
preemptory strike for race discrimination): Preemptory strike in a jury
selection is inherently state action, even if done by a private litigant.
1. whether action is govt in nature:
a. the extent to which the actor relies on govt assistance &
benefits
b. whether actor is performing traditional govt function
c. whether injury caused is aggravated in unique way by the
incidents of governmental authority
v. NCAA v. Tarkanian (UNLV men’s bball coach): NCAA is not
entangled with state actor. NCAA and the UNLV had conflicting
thoughts and interest here, so there was no joint participation. This is
known as a mirror image case: UNLV is carrying out the NCAA
process. There was not enough control of the state actor from the private
entity. Not enough total control from the NCAA like in Marsh v.
Alabama to fall under public function exception.
RECONSTRUCTION AMENDMENTS
XXVII. Bill of Rights (ratified in 1791)

a. These individual rights were not included in the original constitution because it
was believed that the powers listed in the constitution were the only powers of the
federal government; it was unnecessary to explicitly state the rights. By
enumerating certain rights, would imply that the government had all of the other
rights.
b. Barren v. Baltimore: bill of rights is only against the federal government, not
states or private actors.
c. Due Process Clause:
i. In the 5A: applies to the federal government alone
ii. In the 14A: in section one there are three separate protections and rights:
privileges and immunities, due process, and equal protection clauses.
XXVIII. The 14th Amendment
a. The 13-15A were all passed in a response to the Civil War. These really did a
massive reconfiguration of the balance of power between the federal and state
governments.
b. Goals: Limit state power to stop slavery and other major economic issues
c. Privileges and Immunities
i. This applies to the states (clear at the outset) then it gets tricky.
ii. Art. 4 touches on P + I
1. § 2 touches on state citizens’ right to P + I
37
2. This arises in connection with the dormant commerce clause (the

OK minnow case and the Montana hunting one)
a. Even in its dormancy, the CC does not allow states to
disrupt the flow of commerce including the P + I
iii. Slaughterhouse Cases (LA slaughterhouse act limited who could own
slaughterhouses and where they could be located): Would not extend
13A to states because it only deals with slavery; narrows 14A and
limited federal enforcement power. Limits P&I greatly. P&I not used
due to this case.
a. Procedural Protections: the government can take
freedoms from you so long as you get a process
b. Substance Right: the government cannot take a right from
you because it is a fundamental right
2. Understanding the P + I after this case: it is super narrow, there
is very little federal P + I, so very few litigants bring claims. The P
+ I does not hold a lot of substantive content. (unless you are
Thomas)
3. Does this opinion purport to say that no new fundamental right can
be granted under the P + I?
a. The broad language suggests that the P + I cannot be read
that broad, but the court also says that they do not have to
decide one governing test and provide no limits for what
the P + I clause covers.
4. UNDERSTAND THE ART. 4 P + I FROM THE 14A P + I
a. The Art. 4 P + I is broader and protects against
discrimination from another state by state basis.
b. 14A P+I Clause deals more with individual liberties.
d. Incorporation through 14A Due Process Clause à the key clause in granting
substantive freedoms (this has substantive content)
i. “No person shall be deprived of life, liberty, or property without due
process of the law”
ii. This shows that there can be instances where states can deprive people
of these things if they get due process of the law.
iii. selective incorporation – whether a right is necessary to fundamental
fairness to be protected by due process
iv. reverse incorporation – 14th Am. rights apply to state + fed govt under
5th Am.
v. Process Includes: There must be notice and hearing. You must know
about it in advance and have a chance to counter it.
vi. What is substantive due process?
1. There are some life, liberty, and property rights so fundamental
that no process could ever take them away.
2. Look to the sum total of the Bill of Rights to find that there are
certain rights that needs to be protected.
3. This is a very shifting test based upon the understanding of the
nine justices.
38
vii. McDonald v. Chicago: incorporates the 2A against the states through

due process. To incorfporate, the right must be fundamental to our
ordered scheme of liberty and deeply rooted in the nation’s history and
tradition.
e. Equal Protection Clause
i. “Nor deny to any person within its jurisdiction the equal protection of
the laws.”
ii. Is there a substance to this right? à a little bit of a substance to it,
because the court has applied that this applied to the federal government
through the 5A DP clause (equal protection of the laws against the
federal government) and 14A DP against the states
iii. applies beyond inherent rights
1. applies to “any person”
2. (P&I limited to citizens)
iv. can’t favor one group above the other (regardless of substantive right at
issue)
v. usually applies when you’re concerned with a protected class
39
ISSUE SPOTTERS
1. BE METHODICAL! Respond to arguments in an organized way!
2. Judicial Review
a. Does the court have the power to hear the case?
b. Has Congress limited the appellate jurisdiction of the court to hear a case?
3. Standing
a. Is there a case or controversy? à must be an adversarial relationship
b. How many plaintiffs are there?
i. If more than 1 plaintiff must address standing elements for ALL parties
c. Is the case ripe?
d. Is the case moot?
4. Preemption
a. Is there a federal law on the books?
i. If yes, look to see if there is field preemption or conflict preemption
(analyze both elements of conflict preemption)?
ii. If no, go to Dormant Commerce Clause? à is a state already preempted
from regulating in this area of commerce based on inherent powers.
1. DCC à is it discriminatory, facially or in practice? Is the
regulation to protectionist of the local interest?
5. Dormant Commerce Clause
a. Uniform National Standards Test
b. Discriminatory against Interstate Commerce
c. Burden on Interstate Commerce
6. Privileges and Immunities (Art. 4)
a. Is the statute discriminatory?
b. Is a fundamental right implicated?
c. Does the issue at hand discriminate against states or a license?
d. Is a party a corporation? à if yes, then they have no P and I.
7. Commerce Clause
a. Always start with Commerce Clause Power when a question asks what powers
could Congress pass an act under!!
b. Is this an economic activity? If not, is there a jurisdictional hook?
c. Does the local activity affect ISC? Would this affect ISC in the aggregate?
d. Is this a class that Congress is trying to regulate?
e. Then apply the intergovernmental immunity test for the states OR that there is a
non-economic impact OR no jxn hook that would render the power under the CC
unconstitutional.
f. If there is a statute given, some federal regulation on the books, go to commerce
clause section.
8. Necessary and Proper Clause
a. Can Congress use the plenary power under the CC and the N and P to pass the
legislation?
b. Are the ends legit?
c. Are they within the scope of the constitution?
d. For the general welfare?
9. Powers outside of the commerce clause that allows Congress to regulate state action:
40
a. Taxing Power à Kahringer, Sebelius

i. Who collects the tax?
ii. Is it raising revenue?
iii. Is there a scienter requirement?
b. Direct Spending (General Welfare Clause) à Butler
i. For the general welfare?
c. Spending Power à Dole factors, Sebelius
i. Is the condition clear?
ii. Is it coercive?
iii. Is the condition related to the federal interest?
d. War powers? à Woods
i. Is this from the effects of war?
e. Treaty Power à Missouri v. Holland
i. Is congress using powers outside of enumerated powers?
10. State Sovereign Immunity
a. Is Congress trying to regulate a state area that they are allowed to regulate under
enumerated powers?
b. Is the law of general applicability?
c. If there is a statute on the books the state will ALWAYS argue that Congress
could not pass the act because of intergovernmental immunity. à NY v. US
(Congress cannot force a state to enact federal regulation) and Printz v. US
(Congress cannot use state actors to enforce government regs)
11. Executive Privilege
a. Is there an enumerated grant of power?
b. Is there a statutory grant of power?
12. President’s Power in War time
a. Is there a statutory grant of power that gives the president more war time power?
13. Executive Power
a. Can the president fire the person?
i. Is it a principal officer?
ii. Is this an inferior officer?
14. Bill of Attainder
a. Does the Act specify a name?
b. What is the punishment?
c. What is the line between punishment and regulation?
15. Contract Clause
a. Is this a time of emergency?
b. Is this altering a current contract?
16. Taking Clause
a. Is this a physical intrusion? à physical taking
b. Is all of the economic benefit destroyed from the regulation? à regulatory taking
c. If there was a taking, was it for public use?
d. If yes to the first two, has there ben just compensation?
17. State Action Doctrine
a. Was this a state actor?
b. Was the private actor acting like a state actor? à public function exception
41
c. Did the court enforce a private action that violated the 14A? à judicial
enforcement exception
d. Is the private actor working in concert with the public government? à joint
participation exception
18. Enumerated Powers Art. I § 8)
a. Cl. 1: General Welfare
i. Taxation
ii. Spending Power
b. Cl. 3: Commerce
c. Cl. 9: Power to establish courts
d. Cl. 11: Wars Powers
e. Cl. 12: Raise and maintain armies
f. Cl. 13: provide and maintain a navy
g. Cl. 14: make Rules for the Government and Regulation of the land and naval
Forces
h. Cl. 18: Necessary and Proper Clause
42

CON LAW Attack Outline

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CON LAW OUTLINE – Mascott Fall 2022

HISTORY AND OVERVIEW

3. Impossibility of the judiciary to resolve the issue without first

Justiciable Question Non-Justiciable Political Question

IV. Cases and Controversies (Art. III § 2)

conflict with that objective. No conflict preemption because the purpose is

i. The courts have interpreted these enumerated powers to have implied

treatment for out-of-state people). It is

e. Uniform National Standards Test: the regulation on intrastate commerce

i. Uniform National Standards Test: the regulation on intrastate

2. J&L Steel (labor regulations; min wage,

iii. If this is interstate commerce, is there a substantial effect on interstate

Expansion of Commerce Clause Narrow of Commerce Clause

means reasonably adapted to the This was an area of traditional state

iv. Champion v. Ames*: power to regulate interstate commerce of a

a. Traditional/ Limited View: Congress must use a textual hook in Art. I § 8 to

ii. Within the scope of the Constitution

b. Issue Spotting List for Taxing Power

2. Is the tax so egregiously high that it disincentives the behavior so

iv. TEST TIP: ANALYZE THE ISSUE THROUGH BOTH TAXING

XIII. The Spending Power (Art. I § 8 Cl. 1)

d. Relation to the Necessary and Proper Clause

4. Other Constitutional provisions may provide an individual bar to

iii. Congress cannot compel state officials to implement or administer

1. No sovereign immunity when 14A applies?

XVII. Executive Privilege

1. must weigh general privilege of confidentiality against the inroads

i. Congressional power to obtain info is broad and indispensable

XVIII. Limits of Domestic Authority

iii. Offer state of the union address

2. Is the Executive acting as a representative of the US in foreign relations?

ii. Rehnquist Concurrence: Cannot adjudicate because this is a political question

i. Formalist: Constitution creates a set form for the law-making process.

c. Procedural Restriction on Elections

position. You cannot leave a seat to be in a civil position if the office

LEGISLATIVE POWER VS. SELECTED INDIVIDUAL RIGHTS

XXIII. Bill of Attainder (Art. I § 9 Cl. 3):

i. Nothing that substantially impairs

a. Issue Spotter List

a. physical taking – govt takes property whenever a physical

defrayed by donations from city, property was part of state’s plan,

XXVII. Bill of Rights (ratified in 1791)

2. This arises in connection with the dormant commerce clause (the

vii. McDonald v. Chicago: incorporates the 2A against the states through

a. Taxing Power à Kahringer, Sebelius

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