Con Law Exam Checklist

Justiciability (Article 3, Section 2)

In Marbury v. Madison, Justice Marshall noted that there were some cases that were beyond the Court’s
power to adjudicate. From this idea came two avoidance doctrines: political questions and standing.
Standing
 There is a {strong/weak} argument that the P’s {have/lack} standing in such suit. First, the
purpose of the standing doctrine is allowing a court a way to avoid conflict w/ another branch of
gov’t.
o Identify the actions that the other branches have taken/possibly considered taking and
would these things conflict w/ Congressional or Executive action.
o Is there a more appropriate method to remedy the P’s ills.
 Requirements of Standing
o Under constitutional requirements, the P’s have to prove (1) an injury in fact, (2) that the
alleged conduct caused the injury, and (3) there is a remedy the Court can provide that
remedies the ills.
 Are the P’s theoretically capable of satisfying the constitutional standards?
o In addition to the constitutional standards are the prudential standards. In order for a P to
recover, they must show (1) that the injury occurred to them, and that they are not
bringing suit on behalf of a third party, (2) that their grievance is not a generalized
grievance, and (3) they are part of the class that is meant to be protected.
 Are the grievances best left to the other branches of gov’t because they are political questions?
(Katzenbach v. Morgan)
o Has Congress or the Executive branch addressed or considered this issue? If they have,
allowing a remedy through the court system would contradict the policy or decision of
these other branches. It would basically be like the court pushing their values onto the
Constitution rather than interpreting it (Lochner v. NY, Holmes – dissent)
 For the courts to act in such a case insults the other branches as the court is saying
that they did not do enough.
 Is there a firm textual commitment of the issue to another branch in the Constitution? (Baker v.
Carr)
o An argument can be made that such issues are just plainly nonjusticiable b/c there are no
manageable standards the court can use.
Mootness
Ripeness

 Judicial Review:
o Marbury established applications for review of actions of government, including Executive,
officials.
o There are 2 readings of what Marshall was saying:
1) That it is a call for judicial restraint: try to avoid constitutional issues wherever
necessary and only act if forced to do so, OR
2) That it is a call for judicial activism; that it’s the Court’s job to make sure everyone
toes the line w/ respect to Constitutionality.

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Justiciability
 The Court may only hear cases and controversies, as per Art. III, sec. 2 of the Constitution.
o The Court may only hear claims by parties that have standing, a claim that is ripe and not moot,
and not a political question.

Standing
 IN order to bring a claim in federal court, a party must have standing.
 Allen v. Wright and Lujan v. Defender of Wildlife are definitive: standing requires 3 Constitutional elements:
1) That P show an injury in fact
2) That the injury is traceable to the D, AND
3) That the claim is redressable.
 Prudential requirements include no 3rd party claims, no generalized grievances or citizen suits, and that P
be w/in the zone of the law meant to protect him/her.

 {Injury in Fact}
o Who is injured and how?
 {Traceable to the D}
o How does the D’s act affect the P?
 {Redressability}
o
o Lujan – the Court could simply deny the Court’s injunction and this threat of noncompliance
would not redress the P’s injury
 {Prudential Requirements}
o Allowing anyone to bring a case begins to take on the appearance of a third-party claim.
o Prohibition against generalized grievances and citizen suits creates more barriers.
 An average citizen could not bring a claim b/c it’s too general, or if the person is in an
ambiguous group of injured parties.
 Claiming party would need to show that specific, enumerated citizens were hurt directly
by the D’s actions.
 The Constitution purports to guarantee a functional gov’t
o Surely the Constitution did NOT intend that parties may sue to change procedures adopted by
tradition w/in the Senate to achieve a substantive end on any given political whim.

Political Question
 There are 6 elements that comprise non-justiciable political questions, as set forth in Baker v. Carr.
1) A strong textual commitment to another branch.
a. A strong textual commitment to another branch will likely deter the court from
hearing a case, similar to the impeachment proceedings in Nixon v. US, when the
Court declined to intervene since the Senate had expressly been granted that power.
b. Deference should be given to the other branch of gov’t, UNLESS—as the dissent
noted in Nixon—the other branch of gov’t engages in obvious and impermissible
violations of individual rights.
2) Lack of judicially manageable standards
a. If the Senate oversteps its bounds into the executive realm of appointment and
removal power of federal judges, there are some standards that could be applied, e.g.,
Morrison v. Olsen, Bowsher v. Synar, and Myers v. U.S.
3) Embarrassment by conflict among the branches
a. Would the other gov’t branch even comply w/ the Court’s judgment?
4) Need for political policy OR
5) Adherence to a policy for making a non-justiciable policy decision.
a. Is the motive for the other branch’s act “political?”
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 6) Lack of respect for another branch
a. Is the court meddling into another branch’s business?
o In Nixon v. US, the Court declined to address the issue of impeachment because that is one of
the few checks upon the judiciary.
 The appointment power is another check, and it is likely that Nixon would provide a
strong precedent that the court should not meddle in how their members are appointed.
 Court doesn’t want to risk political/moral capital and destroy their credibility and
authority among the other branches.

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Commerce Clause (Article I, Section 8)
 Has been a great, if not the greatest source of power for the Congress over the last 60 years.
 Ct. has created 3 basic tests/rationales for allowing the Congress to regulate something in interstate
commerce.
1) Commerce Theory;
2) Instrumentality Theory; and
3) “Affects” Theory
 Beginning w/ NLRB v. Jones & Laughlin, the Court has expanded the notion of these theories so that
Congress was given almost complete deference in the area of the commerce clause power.
o The Rehnquist Court, while still giving deference to purely commercial cases, began to return to
the idea of federalism when the acts were no necessarily commercial in nature, thus placing some
limits under the Constitution (first seen in Marshall’s opinion in Gibbons v. Odgens) and that it
was the Court’s duty to enforce these limitations and the Court would do so
 Lopez was the first case since 1938 to invalidate an act of the C.C. powers and {was it similar to the
facts of the case here?}
o Lopez had a list of several factors that indicated whether or not was constitutional under the C.C.
 Moreover, the Court in Morrison, a case following Lopez that showed that Lopez was not a “flash in the
pan”, narrowed these down to four main factors.
o These factors include: whether the Act (1) Involves a commercial activity; (2) contains a jdx’l
element; (3) is supported by factual findings by Congress; and (4) is too attenuated as to actually
support the theory.
 {Is this act going to be ruled constitutional?}
 {Is this act connected substantially w/ a commercial activity?}
 {Was there a jdx’l element? Does the object of the act have to move across state lines, etc.?}
o Congress has to at least tie the interstate movement to a commercially motivated reason, such as
Hearts of Atlanta, where the Congress tied it to interstate commerce and had tied it to a
commercial activity
o Lopez suggested to include that the object has to be intended to move into interstate commerce
or as state, have purchased a substantial amount of the components or parts from interstate
commerce (Katzenbach v. Morgan)
 {Were there factual findings?}
o Both Lopez and Morrison have indicated that the Congress needs to have factual findings to
support its need for the Act. Where factual findings used to be thought of as determinative,
Morrison changed this somewhat, and even if the Congress has factual findings to support the
Act, the Court in Morrison held they were not sufficient. For factual findings to be upheld, they
would need to have been relied on before (or at least be reliable), as well as being convincing.
o {Are there any fact findings in this situation?} Congress will need some factual findings to have
this law upheld.
 {Is there a theory as to why Congress is making this Act? Is the connection between the Act’s purpose
and its affect too attenuated}

 {Other arguments for C.C. being allowed OR denied}

o Aggregation principle (Wickard and Perez or Gonzalez)
 The court may find that one {action or object} of one person not intending to transfer it in
interstate commerce does not have much of an effect, but in the aggregate it would.
 If everyone in the world did this, it would have a {___________} effect
 The counter to this would be, as seen in Perez, that this is not going out of state, thus the
individual effect on interstate commerce is zero—and multiplying anything by zero still
equals zero.
 Again the {existence OR lack} of factual findings is important
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o {Are there any other “strikes” against this act?}
 Underlying the decisions in Lopez and Morrison were the facts the state had already
regulated this activity and that the Court did not want to see more federal criminal
statutes being made w/o adding more federal judges to the bench.
o {Conclusion = factual findings, jdx’l element, commercial activity, etc.} is the law constitutional
under the C.C?

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(Taxing Power – see Sebelius)
 Whether a measure qualifies as a tax for purposes of Article I, Section 8
o The label is NOT dispositive
o Functional approach
1) Does the measure operate as a tax (does it raise some revenue)? (Sebelius)
a. If it does, it is presumptively a tax, even if the amount raised is minimal.
i. The “some revenue” test creates a very low threshold that is easily crossed
if any measurable amount of revenue is generated by the law at issue.
b. If it does NOT raise some revenue, then the measure is NOT a tax and is valid
ONLY IF authorized by some other granted authority
i. If a purported tax raises no revenue whatsoever, it will fail the “some
revenue” test and as a consequence CANNOT be classified as a tax
2) Even if the measure raises some revenue, does it function in a fashion that is more
properly characterized as prohibitory or penal?
a. In other words, is what purports to be a tax actually a disguised regulation? If so,
the measure CANNOT be validated as an exercise of the power to tax, BUT
MUST be validated, if at all, by reference to some other granted power, typically
the commerce power.
b. Ex: If the effect of a measure is to eliminate a class of transactions completely,
quite obviously no revenue would be generated. As a consequence, the measure is
not a tax but rather a prohibitory regulation. Its constitutionality must, as a
consequence, be assessed under the standards of the commerce power.
c. Is the Law Penal or Prohibitory?
i. Even if a purported tax raises some revenue (which is usually if not
universally the case), the measure still may be more properly characterized
as penal or prohibitory and therefore not a true tax. If so, the General
Welfare Clause CANNOT be used to validate the measure.

o In applying the Tax Clause, the current Court has reaffirmed its reluctance “to closely examine the
regulatory motive or effect of revenue-raising measures.
 Congress imposed a financial “penalty” on those who failed to acquire health insurance.
After ruling that this seemingly regulatory measure could NOT be upheld under the
Commerce power, the Court then found that the “financial penalty . . . may reasonably be
characterized as a tax.” The Court went on to find that because the “tax” was neither penal
nor prohibitory, it was a proper exercise of Congress’ taxing power.
o Congress’ ability to use its taxing power to influence conduct is not without limits.
 If under its functional approach, the Court were to find a tax to be penal or prohibitory, the
most likely result would be that the regulatory tax would be upheld as an exercise of the
commerce power.
 Requirements of a Tax
o Uniformity – Taxes must be geographically uniform throughout the U.S. in the sense that the tax
must operate “with the same force and effect in every place where the subject of it is found.”
 UNLESS there is something to warrant the differential treatment
o Direct Taxes & Proportionality
 A capitation (or head tax) is a tax paid by every person w/o regard to property,
profession, OR any other circumstance
 A direct tax is a tax imposed on the ownership of real or personal property.
 Proportionality requirement – the state-by-state revenue generated by either a
capitation or direct tax MUST be apportioned among the states according to the
population of each state.

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Spending Power
 For purposes of the spending power, an expenditure is an outlay of money by the federal
government
o Such money may be provided to private individuals and entities, or to state and/or local
governments.
o If the spending is directed toward the common defense or the general welfare, then it falls
w/in the authority granted by the power to tax and spend.
 Regulatory Spending
o If the Court concludes that a spending measure is actually a disguised regulation, the
measure will NOT pass muster as an exercise of the spending power.
 Look to see if the program was truly voluntary  is the party going to be placed
at a competitive disadvantage or cause financial ruin  then it could be
considered coercive in nature and leave the parties w/ “no real power of choice”
o Even if “coercive” or regulator spending were found, the spending power would likely be
validated as an exercise of the commerce power.
 BUT, even if a coercive spending measure can be upheld under the Commerce
Clause, it may still run afoul of some other constitutional limitation on the
exercise of federal power, such as the principle of state sovereignty embodied in
the 10th Amendment.

Commerce Clause

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Executive Privilege
 Quick Issues: Whether there is a privilege? Whether it is considered absolute in this situation?
Relevant Cases:
 United States v. Nixon – establishes that the president does have the implied power of executive
privilege (the right to candor and confidentiality in his correspondences w/ cabinet officials)
o This privilege is NOT absolute – it will be balanced w/ the judiciary’s need to be able to get
evidence for their proceedings.
 But presumed that there is a privilege, so burden of proof on the person seeking the
information to overcome the presumption.
 BUT when it is a (1) federal criminal subpoena, (2) dealing w/ domestic affairs, and (3)
non “top-secret” issues, the presumptive privilege is overcome.
 The Court can review actions of top officials (Marbury); can tell the President he is
exceeding his power (Youngstown); and tell him he cannot do what he is saying he can
do (Nixon).
 BUT in issues of foreign matters & affairs, Dames & Moore v. Regan acts as
guiding precedent.
o Argument that the executive privilege is not limited to the president, BUT ALSO extends to
other executive officials, b/c those correspondences are a two-way street, and if the content of
those correspondences could be attained simply by subpoenaing the president’s aides rather than
the president himself then the privacy of those correspondences would be undermined.
 We want the president to give to, and receive from, his cabinet members frank and
earnest advice & counsel.
 Counter-argument: that since it’s an implied power, it should not extend to everyone that
the President corresponds w/ b/c that would make the whole cabinet immune from
investigations.
o United States v. Nixon only applies to judicial proceedings and that while executive privilege is
NOT absolute for criminal prosecutions given the strong interest the judiciary has in evidence.
 When it’s not a criminal proceeding, there isn’t as strong of an interest that would justify
limits on executive privilege.
 Commissions of Congress could argue they act in a quasi-judicial role and they arguably
have just as much of an interest in obtaining evidence
o Formalistic Argument:
 In a majority of the cases involving branches of the gov’t (minus Morrison v. Olsen)
indicates that there is nothing in the Constitution that says an Executive member must
answer to Congress (or its Commission), and thus does not answer to anyone BUT the
Executive Thus, legitimate, since it is an intra-branch affair, that an executive member
is out of reach of Congress and would be able to claim executive privilege.
o Argument: in cases involving national security or foreign affairs, the president (and his cabinet)
should be given more deference.
 Dames & Moore v. Regan – (not about executive privilege), limits on the executive
power and deference given to president in foreign hostage situation, w/o being second-
guessed by the other branches of gov’t.
 Bowsher v. Synar (Removal Power) – the legislature cannot interfere w/ the core
functions of the executive, and by retaining the removal power for themselves, they were
essentially interfering w/ the president’s ability to execute.
o Youngstown v. Sawyer – Even in “emergency” situations, the President does NOT have
unbridled discretion in the application of his implied powers. Rather, the actions he takes must
be proportionate to the threat.
 So there are situations when the other branches of government will not simply defer to
the executive, even in matters of foreign affairs and national security.

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 Sometimes the other branches of gov’t will have in interest in making sure the nation’s
interests are not jeopardized by the rash actions of the Executive.
 This wouldn’t violate the separation of powers, but simply reinforces the system
of checks and balances that the Constitution has established to prevent one branch
from becoming too powerful.

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Enemy Combatants/Detainees
 Quick issues:
Relevant Cases:
 Marbury v. Madison: where a legal right has been violated, the injured party has a right to a remedy.
This was used as a justification for judicial review; that the Supreme Court may be the right body to
address the violation when it involves important constitutional issues, and thus the actions of high
executive officials are subject to review.
o Can review when the issues involves a justiciable legal right, and thus not a matter or question of
political discretion.
 Argument for Detainees
o Detainees do have a legal right to a judicial hearing (habeas corpus) as they are detained w/in the
United States’ realm. A denial of a hearing would be an injury to their legal right, and a remedy
to that injury would be to allow a hearing.
 Argument for Government
o Marbury doesn’t apply here b/c no legal right has been violated.
 The habeas corpus statute isn’t applicable where the person isn’t being held by the United
States. Thus, since the detainees don’t have a legal right to the hearing, then their rights
haven’t been violated, and so there is no case (or no merits to support that case).
 Argument that this wasn’t a “war” at all – no war declared by Congress.
 It’s up to the Court to determine how a habeas corpus statute is carried out, and they do
know how to determine those standards since they deal w/ them frequently.
 Guantanamo Bay, since it is a perpetual lease of the U.S., it should be considered part of
the U.S. jdx  Supreme Court has jdx over the officer in charge of the facility.
o There are certain types of cases, as suggested in Marbury, that the Court simply can’t hear:
 Political questions (Baker v. Carr): The factors seen in political question cases (which
usually involve a separation of powers issue) include something that the Constitution
grants to a different branch of the government; something which the Court doesn’t have
standards to resolve; a matter of policy; need for adherence to another branch’s
determination; would disrespect another branch to rule against; and need to prevent
multifarious pronouncements on the same issue from different branches.
 This is an issue of war, one of the traditional areas where the Court does not interfere w/
the decisions of the Executive, as this is a military matter under control of the executive
(as commander-in-chief), which is constitutionally granted to the President.

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Separation of Powers
 Marbury v. Madison – It is w/in the duty of the Court to declare what the law is.
o From there, there are a myriad of interpretations and sources of law that could be used to define
the Constitution.
 Issues Raised in Separations of Powers
1) Jurisdictional Problem – In Ex Parte McCardle – the Congress has the ability to remove and
give jdx to the courts and can remove substantive remedies as well. Further, in US v. Klein,
the Court stated that Congress can remove jdx, BUT CANNOT determine substantive
outcomes. In other words, Congress CANNOT take actions that are otherwise
unconstitutional.
a. Congress CANNOT remove all of the Court’s jdx and predetermine the substantive
outcome. This is an impermissible violation of the separation of powers. Like J.
Douglas’ concurrence in INS v. Chadha, the legislature is acting like the judiciary and
passing upon judgment.
2) Law could be unconstitutional if it is defining what the Courts may or may not do.
a. It is NOT the role of the legislature to say what the law is, nor interpret it.
b. The role of the legislature is to make law AND it is impressible for them to tell the
courts how to interpret and weigh laws
3) Congress CANNOT tell the Court what the standard of review is for the Courts to take. (City
of Boerne v. Flores)
a. When Congress wanted to change the standard in Flores to a strict scrutiny standard,
the Court said it was in violation of separation of powers b/c the Court had already
decided what standard it was to take.
b. Congress CANNOT tell the Court what it can and cannot consider when reviewing a
case. (e.g., cannot say that the Court must not consider or apply foreign law)  This
is Congress trying to tell the Courts how to do their job, violating the separations of
powers principles
4) However, Congress arguably can determine the scope of the law.
a. B/c Congress makes law, they technically could have the power to prohibit certain
laws from taking precedence.
b. Congress could argue that since it makes the law, Courts should interpret that law.
Since Congress did not make foreign law, it is arguably w/in their right to make laws
stating that foreign laws shall have no precedence in foreign laws.
c. BUT
 Federal Statute directing State courts how to interpret the Constitution.
o States can argue that the 10th Amendment prohibits Congress from commandeering the states
o In NY v. US, O’Connor wrote that Congress CANNOT commandeer of compel the states to pass
certain laws.
o Furthermore, in Printz v. US, the Court said that Congress could not compel or commandeer
executive state officials to execute a federal mandate
o However, State judges are different, and had to follow federal laws in Printz.
 Courts are different for a variety of reasons.
 First, there is a Constitutional component – if Congress had not created the lower
federal courts, it would be up to the states to uphold federal law.
o There is a need for the uniformity of laws, and thus, state courts ruling had
to adhere to the principles laid down by the SCOTUS (Martin v. Hunter’s
Lessee)
 Second, the Supremacy clause states that federal law is supreme. If state law were
to conflict w/ federal law, then the state’s law would have to yield.

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 o States could still challenge the law’s constitutionality.
 Legislative Veto and Separation of Powers issues
o INS v. Chadha – a legislative veto was invalid b/c it acted in a legislative function and
determined the rights and duties of several people.
 Thus, whenever specific rights are being altered, the Court said that instead of a
legislative veto, the law must go through Bicameralism and Presentment to the
President before it can become effective law.
o However, it is within the Court’s province to declare what the law is and to make a final
judgment.
 Although it is questionable, the Court has stated that the Court is the final authority on
Constitutional matters (See Marbury v. Madison). It has been said the Court is not final
b/c they’re infallible, but they’re infallible b/c they’re final.
o In order for Congress to overrule a decision made by the Court, they CANNOT redefine the
judgment (violates City of Boerne v. Flores) BUT must pass a constitutional amendment to solve
the matter.
 This is really the only way to overrule the Court’s decision. If this was not the case, then
the Congress would be acting like the Supreme Court and the Supreme Court would then
be, in effect, like an appellate court.
 Any decisions made by the Court would be subject to review and overturned by
Congress b/c they would have the final say.
 This is an impermissible violation of the separation of powers.

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I. Jusiticiable Case or Controversy
A. Standing (injury, causation, and redressibility)
a. Associational Standing. Must show: (1) members would have standing to sue on their own; (2) interests are
germane to the organization’s purpose; (3) no need for member participation
b. Taxpayer Standing: (generally establishment clause) Must show: (1) enacted under Congress’s taxing and spending
power; (2) exceeds some specific limitation on power
B. Ripeness (fitness of the issue, question of hardship if review is denied)
C. Mootness (actual controversy must exist at all stages of lit., except: wrong capable of repetition but evading review,
voluntary cessation)
D. Decline Jurisdiction?
a. Political Question
b. Abstention: unclear state law; pending state prosecution
c. Eleventh Amendment: bars suits against states in federal court. Exceptions, (1) waiver, (2) abrogation under § 5,
14th Am, (3) suits for injunctive relief against state officers.
d. AISG: 2 grounds; 1 state 1 federal; reversal on federal ground will not change the result

II. What Kind of Constitutional Issue

A. Separation of Powers – Branches of Government
a. Judicial (justiciability requirements + final judgment rule)
b. Executive (foreign and domestic powers and limitations, especially executive privilege)
c. Legislative (sources of power and limitation)
B. Federal Legislative Powers
a. Sources of power
i. Commerce Clause: Congress may regulate the channels and instrumentalities of interstate commerce.
And, may regulate economic activity that has a substantial effect on interstate commerce.
ii. Taxing & Spending: Congress may tax and spend for the general welfair
iii. Taking Property
b. Necessary and Proper Clause: Congress may use any means not prohibited by the constitution to carry out its
authority.
c. 10th Am: All powers not granted to the US, nor prohibited to the states, are reserved to the states. So, Congress
cannot compel state regulatory or legislative action. But, Congress can induce state gov. action by putting strings on
grants, so long as related to spending program.
C. Federal Executive Power
a. War: President has no power to declare war, but may act militarily in actual hostilities against the US w/out a
congressional declaration of war under his broad power as Commander-in-Chief to use American troops in foreign
affairs. Congress may limit by military appropriations.
b. Foreign Relations: President has paramount power to represent the US in foreign relations.
i. Treaties: President has power to enter treaties w/ the consent of 2/3 of the senate
ii. Executive Agreement: President has power to sign an executive agreement with the head of a foreign
country. No Senate consent required.
c. Domestic affairs: appointment and removal power
D. State Interference w/ Federal System
a. Preemption: Under the supremacy clause, a federal law is the supreme law of the land, and thus may preempt or
supersede state law. (express or implied
b. Dormant Commerce Clause: principal that state and local laws are unconstitutional if they place an undue burden
on interstate commerce.
i. Discrimination against out-of-staters → presumed undue burden on interstate commerce, unless it is
necessary to achieve an important government purpose
1. Exceptions: (1) congressional approval, (2) market participant.
ii. Absent discrimination → if the gov is burdening interstate commerce → balance the benefit to the state
against ht e burden on interstate commerce.
c. Privileges & Immunities Clauses, art. IV: no state may deny to citizens on another state the privileges and
immunities of its own citizens. Violated where state regulation discriminates against individuals with regard to
important economic activities or civil liberties unless it is necessary to achieve an important government interest.
III. Individual Rights
A. State Action – the Constitution only applies if there is action by a state or local gov officer or private individual whose
behavior meets the requirements for state action. E.g. individual or entity perform exclusive public function or has
significant state involvement in their activities.
B. Speech (1st Am)
a. Prior Restraint: (1) gravity of harm justifies restraint; and (2) necessary to prevent harm

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 b.Vagueness & Overbreadth: A law is unconstitutionally vague if a reasonable person cannot tell what speech is
prohibited and what is allowed. A law is unconstitutionally overbroad if it regulates substantially more speech than
the constitution allows to be regulated.
c. Symbolic speech is protected (e.g. flag burning, cross burning (unless a threat), expenditures)
d. Unprotected speech
i. Incitement of illegal activity if substantial likelihood of imminent illegal activity
ii. Obscenity if (1) appeals to prurient interest, (2) patently offensive under the law, (3) taken as a whole, lacks
serious redeeming, artistic, literary, political or scientific value.
iii. Commercial speech that inherently risks deception or ads for illegal activity
e. Places Available for Speech
i. Public Forums (e.g. sidewalks parks): regulations must be content and viewpoint neutral; may regulate the
time, place and manner of speech to serve important interest. Must leave open adequate alternative places
for communication.
ii. Limited Public Forums (non-public forums gov. opens to speech): same as above
iii. Non-Public Forums (military bases, airports, schools): gov may regulate so long the regulation is
reasonable and viewpoint neutral
f. Freedom of Association: laws that prohibit or punish membership in a group must meet strict scrutiny. Must prove
that the person (1) actively affiliated, (2) knowing of its illegal activities, (3) with the specific intent to further those
activities.
C. Takings (5th Am)
a. Taking must be for public use
b. Taking requiring just compensation v. a regulation under police power not requiring just compensation
c. Just compensation? Usually fair market value.
D. Religion
a. Establishment Clause – the test: (1) law must have a secular purpose, (2) neither advances nor inhibits religion, (3)
no excessive entanglement w/ religion.
b. Free exercise clause: can’t be used to challenge a neutral law of general applicability
E. Retroactive Legislation
a. Impairment of Contract: no state shall impair the obligation of contracts.
i. Interference w/ private Ks → intermediate scrutiny; gov Ks → strict scrutiny.
b. Retroactive civil liability need only meet rational basis review
F. Equal Protection (14th Am) (applies to the fed gov through the due process clause of the 5th Am)
a. Levels of Scrutiny
i. Strict – compelling state interest and means necessary to achieve state interest
ii. Intermediate – important state interest and means substantially related
iii. Rational basis – legitimate state interest and means rationally related
b. Fundamental rights: 1st Am, travel, voting → strict scrutiny
c. Classification (on its face, or if facially neutral → discriminatory impact and intent)
i. Suspect – race and alienage → strict scrutiny
ii. Quasi suspect – gender and illegitimacy → intermediate scrutiny
iii. Other classes – wealth, age, disability, sexual orientation → rational basis
G. Procedural Due Process (14th Am)
a. Has the government deprived a person of life, liberty (a significant freedom secured by the Constitution or statute),
or property (an entitlement to a continued receipt of a benefit).
b. What process is due? Balance: (1) importance of interest to the individual, (2) ability of additional procedures to
increase the accuracy of the fact finding; and (3) gov. interest
H. Substantive due process (14th Am) – does the gov have an adequate reason to take away a persons life, liberty or property
→ generally must meet strict scrutiny.
a. Economic liberties → rational basis test
b. Taking → public purpose + just compensation
c. Abortion → can’t place an undue burden on the ability to obtain an abortion
Constitutional Law – Opening Paragraphs

(1) Standing

Article III provides that the federal courts only have jurisdiction where there is an actual case and controversy. Thus, in order to
properly assert her claims in federal court, a plaintiff must have standing. There is standing where the plaintiff alleges (1) an actual or
imminent injury, (2) which was caused by the defendant’s conduct, and (3) which is redressible by the court.

An association may sue on behalf of its members if (1) the members would have standing to sue on their own, (2) the interests of the
litigation are germane to the organization’s purpose, and (3) the members would not need to participate in the suit.

14
A taxpayer has standing if (1) the law he seeks to challenge was enacted under Congress’s taxing and spending power, and (2) he
alleges that Congress has exceeded some specific limitation on that power.

(2) Ripeness

For proper federal jurisdiction, the claim must be ripe for review. A claim is ripe where the plaintiff would suffer harm if review were
denied.

(3) Mootness

For proper federal jurisdiction, there must be an actual controversy at every stage of the litigation. Thus if events after the filing of the
lawsuit end the plaintiff’s injury, the claim should be dismissed as moot. However, there is an exception to the mootness doctrine
where the wrong is capable of repetition yet evading review, or where the defendant has voluntarily ceased the conduct which caused
the plaintiff’s harm.

(4) SSI

The 11th Amendment prohibits private individuals from bringing suits in federal courts against state government. However, a state
may waive its sovereign immunity. Also, the 11th Amendment does not bar suits against state officers for injunctive relief. Moreover,
Congress may abrogate SSI under sec. 5 of the 14th Amendment when it is acting to remedy / prevent an already recognized
constitutional violation, and when the law is proportional and congruent to the constitutional violation.

(5) Dormant Commerce Clause

The Commerce Clause gives Congress plenary power to regulate interstate commerce. However, where Congress is silent on an issue,
the states are free to regulate local transactions affecting interstate commerce. But, state regulations which unduly burden interstate
commerce are unconstitutional.

Where a state regulation discriminates against out-of-staters, there is a presumption that the regulation unduly burdens interstate
commerce. Thus, the state must show that the regulation is necessary to serve an important government interest, and that there are no
less restrictive means available. However, there is an exception when Congress has approved the regulation or where the state is
acting as a market-participant.

Where the state regulation is non-discriminatory, the Court will balance the state’s interest in maintaining the regulation against the
burden on interstate commerce.

(6) Privileges and Immunities Clause

The Privileges and Immunities Clause of the 4th Amendment prohibit a state from denying non-citizens the privileges and immunities
afforded to its own citizens. Thus a state or local law which discriminates against out-of-staters with regards to civil liberties or an
individual’s ability to earn a living will be struck down as unconstitutional unless the state demonstrates that the law is necessary to
serve an important government purpose. But, the P&I clause does not apply to corporations or aliens.

(7) State Action

The 14th Amendment only applies where there is action by the state or local government, or by an individual who is performing a
function which is traditionally performed exclusively by the state.

(8) Equal Protection

The Equal Protection Clause of the 14th Amendment prohibits state governments from denying any person within its jurisdiction the
equal protection of the laws. While the 14th Amendment applies exclusively to state governments, grossly unreasonably
discrimination by the federal government is prohibited by the Due Process Clause of the 5th Amendment. Under either provision, the
analysis is the same.

To successfully assert an equal protection claim, the plaintiff must first show that she is a member of a class of persons who is being
treated differently from others. The discrimination may appear on the face of the law, or where the law is facially neutral, the plaintiff
must show that there is both a discriminatory intent for the law and a discriminatory impact for the law.

Where there is a classification, the level of scrutiny to be applied depends on classification at issue or the right being limited.
15
Classifications based on race, national origin, or alienage generally must meet strict scrutiny – necessary to achieve a compelling
government purpose. So must regulations which implicate a fundament right – travel, voting or Free Speech.

Classifications based on gender or illegitimacy must meet intermediate scrutiny – substantially related to an important government
purpose.

Where the law does not affect a suspect class nor implicate a fundamental right, the law need only meet rational basis review. That is
the challenger must demonstrate that the law is not rationally related to a legitimate government interest. E.g. Age, disability, wealth
and other classifications.

(9) Procedural Due Process

The Due Process Clause of the 14th Amendment requires that a state provide its citizens fair process and procedures before the
government may deprive one of life, liberty or property interest. Procedural due-process invokes a two-step inquiry.

First, there must be a deprivation of life, liberty, or property. There is a liberty deprivation when the state takes away a significant
freedom secured by the Constitution or statute. There is a property deprivation when the state takes away an entitlement to the
continued receipt of a benefit. Note also that the deprivation must be intentional or at least reckless. A deprivation that results from
negligence is an insufficient bases for a procedural DP violation.

If there is a deprivation, the next step is to consider what process is due. Here, the court will balance (1) the importance of the interest
to the individual, (2) the ability of additional procedures to increase the accuracy of the fact-finding process, and (3) the government’s
interest in fiscal and administrative efficiency.

The final step is to consider whether the government has provided the appropriate process.

(10) Substantive Due Process

Where the law limits the ability of all persons to engage in an activity, substantive due process may apply. The Due Process Clause of
the 5th Amendment applies to the federal government, which the due process clause of the 14th Amendment applies to the states. The
inquiry is whether the government has an adequate reason to take away a persons life, liberty or property interest.

Here, the analysis depends on the right being impaired. Where the law limits a fundamental right, such as the right to vote, travel,
privacy or freedom of speech, strict scrutiny applies. In all other cases, the rational basis test applies.

16
Free Speech

A law which seeks to regulate speech is presumptively unconstitutional. To justify content-based regulation of speech, the
government must show that the ordinance is necessary to serve a compelling state interests and it is narrowly drawn to achieve that
end. [Discuss whether the regulation is content-based]

Content-neutral regulations on speech are subject to intermediate scrutiny, and will be upheld if the government can show that (1) they
advance an importance interest unrelated to the suppression of speech, and (2) they do not burden substantially more speech than
necessary to further those interests.

a. Time, Place and Manner Restrictions

To be valid, government regulation on speech in public forums must be (1) content neutral, (2) narrowly tailored to serve a significant
government interest, and (3) leave open alternative channels of communication.

Regulations on speech in designated public forums – places where the government could close speech, but chooses to open – must
meet the same standard as applies to public forums.

Regulations on speech in private forums must (1) be viewpoint neutral and (2) reasonably related to a legitimate government interest.

b. Prior Restraints

Prior restraints on speech must meet strict scrutiny. The restraint must be necessary to serve a compelling government interest.

c. Vagueness & Overbreadth

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. A law is
unconstitutionally overbroad if it regulates substantially more speech than the constitution allows.

d. Symbolic Speech

The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if
the impact on communication is no greater than necessary to achieve the government’s purpose.

e. Commercial Speech

Commercial speech which inherently risks deception is not protected by the First Amendment, so the government may regulate such
speech as it pleases. Regulations on commercial speech which is not inherently deceptive must meet intermediate scrutiny.

f. Obscenity

Obscene speech is not protected by the First Amendment. Speech is obscene if (1) it appeals to the prurient interest, (2) the material is
patently offensive under the law prohibiting obscenity, and (3) taken as a whole, the material must lack serious redeeming artistic,
literary, political or scientific value.

(11) Freedom of Association

Laws that prohibit or punish group membership must meet strict scrutiny. To punish group membership, the government must prove
that the person (1) actively affiliated with the group, (2) knowing of its illegal activities, (3) with the specific intent of furthering those
illegal activities.

(12) The Free Exercise Clause

The Free Exercise Clause prohibits the state from imposing restrictions on someone on the basis of the person’s religious beliefs. The
state may impose a restriction if it necessary to achieve a compelling state interest. However, the Free Exercise Clause cannot be used
to challenge a neutral law of general applicability
(13) The Establishment Clause

The Establishment Clause prohibits laws respecting the establishment of religion. If government regulation or activity gives
preference to one religious sect over another, it is invalid unless it is narrowly tailored to serve a compelling state interest.

17
If a government regulation or action contains no sect preference, it is valid under the Establishment Clause if (1) it has a secular
purpose, (2) it neither advances nor inhibits religion, and (3) it does produce excessive governmental entanglement with religion.

(14) Taking

The government may take property, though the power of eminent domain, but only if (1) it does so for the public use, and (2) it
provides just compensation to the owner. Physical takings must meet this test, as must use restrictions which deprive the owner of all
economic value.

(15) Contracts

The Contracts Clause prohibits state or local interference with existing contracts. Interference with government contracts must meet
strict scrutiny. Interference with private contracts must meet intermediate scrutiny.

(16) State Taxation

Where state taxation laws conflict with federal laws, the state laws are preempted by the Supremacy Clause. Discriminatory taxes are
invalid under the Commerce Clause. Where a state tax law is not preempted and is not discriminatory, it will be upheld if (1) there is
a substantial nexus between the activity and the state, and (2) state tax on interstate businesses must be fairly apportioned.

(17) Access to Courts

A state must waive court filing fees imposed on indigents when the imposition of a fee would deny a fundament right to the indigent.
The inability to pay a fee cannot be the sole basis upon which a person is deprived of a fundamental constitutional right. (Raises equal
protection issue – discrimination based on wealth; but note, access to courts is not a fundamental right).

18
JUDICIAL REVIEW
Marshall - pg. 13 - Marshall's primary arguments (Thesis) in favor of Judicial Review
 8 Steps in Judicial Review Process - Judiciary's power to invalidate an act of Congress
1. People, through the Constitution, have established fundamental principles.
2. Created a gov't of defined and limited powers (unlike any other gov't they were familiar w/)
3. Written Constitution (compare to Britain non-written Constitution)
4. *Law (most novel or important point) = Constitution is law, in a lot of systems it's not but is only
aspirational.
i. Marshall challenged here - was considered by many to be a "natural law", but not something
you could argue in court
1. But Movement at the time to recognize the Constitution as a legal document that
Marshall picked up
5. Supreme - over state law and we assume it's supreme over everything else as well
6. In cases before SCOTUS, the Ct. must apply all relevant law, including the Constitution
7. If a law is in conflict, Court resolves any conflicts between laws in cases.
8. When conflict is between ordinary law and Constitution, the Constitution, as supreme (see # 4& 5)
law governs
9. *If the Court could not apply the Constitution (if it was beyond the realm of judicial interpretation),
otherwise no limit on legislative power.
i. Marshall challenged here -

 So many arguments in Martin v. Hunter's Lessee - several textual arguments, original understanding,
uniformity (Structural argument - to sort out and stablize to avoid conflict), arguments of precedent (done
it before), and precedent of practice (every other state that we've exercised appellate jdx over has not
objected to it)
 ****(Most powerful argument by Story) Assuming that VA s. ct is as capable, there is still good reason
for the SCOTUS to have appellate jdx. --> Uniformity, stability, consistency, and Harmony - the kind of
questions of interpretation of federal law or treaties are difficult, so no matter how fair-minded judges
can be, there would likely be different interpretations across states, and that would be chaotic b/c people
wouldn't be sure to plan what the law meant (couldn't plan interstate transactions b/c they wouldn't know
the law in the state where a claim would be adjudicated)
 Need for an umpire at the top of the pyramid - not b/c they're smarter - but b/c there is someone
that needs to settle, b/c people need to know what national/federal law means, and it needs to be
the same across the board.


19
IMPLIED POWERS
o Maryland's argument - When we go down the list of enumerated powers in Article I, you don't see
the power to create a corporation, let alone a bank.
 Marshall's rebuttal - (pg. 140 - pg. 141) Justifies it first by saying that in the Constitution the
Framers gave the big powers, but that also they meant them to be able to carry them out, so
Congress has Implied powers, otherwise the whole enterprise would collapse , and then
second textually (through Necessary and Proper Clause)
 Framers of the Constitution left the word "explicit" or "express" out
 Nature of the Constitution - the Constitution was intended to be enduring and lasting (it
takes a lot of work to institute), so it has to be broad.
 We must never forget it is a Constitution we are expounding - very/most
important sentence
 If Congress is to have the power and authority to carry out the great powers it
has been given, it will have to deal w/ unforeseen circumstances in the future,
so you don't want to tie them down to tightly, because this could mean that
Congress couldn't deal with this unforeseen things.
 Making the case for Implied powers - Bloom calls it "flexibility in the means to carry out
the great powers."

Necessary & Proper

i. So how does all of this about N&P clause apply to the facts of the case
 How do you get from general meaning of N&P Clause to the facts of this case?
 S. Ct needs to lay down doctrine and provide guidance for lower courts and parties
to apply to their cases or to know whether to challenge if something is N&P - want
to know how the S. Ct. will analyze the case.
 (pg. 144 - 3rd paragraph) Marshall Doctrine - Doctrinal standard - still used
today for N&P Clause analysis - The test for a law that is means to an end; are
the means reasonably related to the ends– sort of a rational basis test
1. Let the end be legitimate
2. Within the scope of the constitution
3. All means appropriate
4. Plainly adapted to that end
5. Not prohibited
6. But consistent with the spirit and letter of the constitution
 ARGUE that "necessary" doesn't mean "absolutely necessary"; it means consistent w/
the spirit of the Constitution.
 Counter-argument: NOT a strict interpretation
 Counter- Deferential standard giving Congress the benefit of the doubt.

 Key Foundational issue (not a huge argument in this case, but Marshall raises it) - where did the US come
from? Or how did the US come into being?
o Maryland's argument - Contract/Compact Theory - Constitution, and hence the US, originated in a
contract btw 13 sovereign states, where they gave up some sovereignty "to form a more perfect
union" but they held onto some of it.
o Marshalls' view - Popular Sovereignty theory - framers in Philly drafted it, sent it to the Congress,
who sent it to the States, where through popular conventions, it was ratified
 The ultimate authors of the Constitution were the people

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TAXING POWER
If the legislature taxes the people too heavily, at some point, the people will vote through the political
process. That only works if the people who are bearing the burden of the tax are represented in the taxing body.
Since Maryland is exporting the tax burden to people outside of Maryland, there is no political check (Very
famous argument in Con. Law)
Political safeguards against federalism
When there is no Legislative/Political safeguard, that's where the Court needs to step in to prevent
confiscatory taxation

o Importance of McCulloch v. Maryland

 Considered Marshall's greatest opinion
 Not well received at the time; Bank of the US was extremely unpopular b/c of its credit
policies and was very large, elitist, and aristocratic
 Decision against the State went against the popular sentiment at the time and was
attacked heavily in the press.
 Foundation for broad federal power – empowers Congress to do a lot without worry of judicial
review
 Deferential review of that broad federal power
 When Congress exercises these powers under the N&P Clau
 Established the theory of Popular Sovereignty over the Compact Theory
4. Leading example of constitutional origin and interpretation
5. Introduced the notion of constitutional safeguards of federalism
1. Major standby in federal law
2. Federal instrumentalities are immune from state taxation
6. It set a standard for judicial craftsmanship
7. Lays out basis for analysis of N&P Clause (Textual Argument)

21
Lochner Doctrine becomes the symbol of the Substantive Due Process
 (1905 - Lochner era - Strong view against Congressional intervention)

2 Ways the Court has used Substantive Due Process:

a. Safeguard economic liberties and to protect freedom of K as a fundamental right – Lochner
b. Protect rights of privacy and personal autonomy –Roe v. Wade

 Court lays it out in fairly clear detail and nature of its analysis
 *More significantly, Holmes and Harlan's Dissents - caught everyone's attention

o As a general rule, states have the authority to look out for the health/safety/morals/and general
welfare of their citizens and can pass laws regarding these areas.
 Why can't state say that b/c they were concerned w/ the health of their bakers, they could pass
that law?
o Rational Basis approach - did you have a legitimate state interest (protecting the health of state
citizens) and is the means of protecting that interest (restricting the hours of bakers), a legitimate and
rational basis of achieving that goal?
 Where would this argument end? Lawyers, doctors? It could go on and on - health justification
WON'T do
o Court says there is NO reasonable basis
 Health --Says that's a legitimate state end, but the means are not appropriate
 Labor - not a right that state has to restrict labor relations b/c it interferes w/ an individual's
liberty to contract w/o the state coming in and policing

 Harlan Dissent
o This seems to be a somewhat contested issue (studies for and against the health of bakers), so the
legislature could rationally conclude there is a health issue, so Ct. doesn't revolve empirical dispute -
State legislature could rationally decide what the best way to go about protecting/effectuating their
conclusion
 SCOTUS' job is NOT to second-guess legislatures, it's to find that they had a reasonable basis
for it.

22
COMMERCE CLAUSE

3 Faces of the Commerce Clause (Gibbons v. Odgen)

1. What can Congress do under Commerce Clause -Affirmative Commerce clause - to what extent does
the Commerce Clause give Congress the affirmative power to pass legislation
 Includes a JDX statement why it believes the law is justified under the C.C. to explain to the Ct.
why Congress believes it is authorized to do what has done - sometimes mentions all 3 of these
reasons.
 Commerce Clause is the most utilized/litigated question
1. shouldn't look to Congress' motivation for making the regulation - Congress has
plenary power over the interstate commerce, so they can prohibit the shipment;
don't have to inquire why; don't have inquire about the product or why they don't
like it; don't second-guess the Congress' motive, and just see if they are operating in
the realm of their authority - if it's interstate, Congress can regulate.
2. Says it's not the Ct's job to control modes of interstate commerce and doesn't need to
consider their motives, and can control what they prohibit. (U.S. v. Darby)
3.
2. Dormant C.C. - suppose Congress doesn't pass a piece of legislation about a certain item.
 Does the State have the right to regulate in the absence of federal legislation, or does this
regulation conflict w/ the basic policies of the C.C. itself?
3. (goes well beyond the C.C. ) Preemption question - suppose Congress has in fact passed a law in an
area regulating interstate commerce and a state has also a law, can they coexist or are they in
conflict?
1. If they are in conflict, under Supremacy Clause, the state law is preempted and the federal law
prevails

Theories by which Congress can Reach Interstate Commerce

1) Significant Theory for Congressional regulation under C.C - "substantially affects" theory -
commercial activity that has a substantial effect on states outside fall under regulation***** - gives
Congress a lot of authority to regulate things that look completely internal
2) stream/current of commerce" - have to look at the entire commercial transaction
3) Instrumentalities Theory
a. Means by which goods moved in interstate commerce

NLRB v. Jones & Laughlin

1. As a practical matter, case resulted in the rejection of the distinction of direct v. indirect
effects, as well as, any attempt to partition the stream of commerce restrictively.
i. Of course there can be a close and substantial relationship to Commerce b/c there is a
chance of labor disputes that can affect commerce.
2. Case marks the era of broad interpretation of the Commerce Clause.

U.S. v. Darby
 What does the Ct. think of the 10th Amendment?
o Unaffected by the 10th Amendment - all is retained but that which is surrendered.
o The federal gov't can reach as far as the Court will allow it, and if there's anything that's left over
after the federal regulation , that's what is left over after the states
 Wipes out 10th Amendment of judicial shield of federal activity.

23
Wickerd v. Filburn
 Farmer: What do I have to do w/ interstate commerce - I grow wheat on my farm to be consumed entirely
on my land
o Ct's response:
 Aggregation Principle: even if a particular regulated individual/business is too small to
have a substantial effect on commerce, if you can combine that person w/ lots of other
people who are doing the same thing, and that aggregation will have a substantial affect
on interstate commerce, then the gov't can regulate that individual as a part of that
aggregated class.
 Gov't says why we are regulating the wheat market is b/c it's a very volatile market - instability
if not controlled or limited the amount of wheat in the market.
o Formulaic approach to the Commerce Clause is dead - doesn't matter if it's "direct" v. "indirect"; we
don't care if it's production, …, etc.
 The economic effect is the whole ballgame - if it can show that there is an effect on
interstate commerce, the regulation can fly.
 Message of the Court from Jones & Laughlin
o We'll be extremely deferential to the regulation of economic matters under the Commerce Clause
o Wickerd majority - Comes full circle to Gibbons v. Odgen and says this isn't revolutionary --
Marshall was right about expansive powers of Commerce Clause

Perez
 Congress passed laws saying loan sharking has negative impact on interstate commerce. Perez convicted
of loan sharking and sent to jail.
 Justification - if Congress has the right to regulate a class under the C.C. (if they can rationally conclude)
that the overwhelming # of a members of a class affect interstate commerce, that loan sharks do affect
interstate commerce, they NEED NOT EXCLUDE those that do not.
o Different than Wickerd aggregation principle.
o No proof that Perez had any effect on interstate commerce.

Court in Heart of Atlanta - as long as Congress had a rational basis for concluding that discrimination by any
hotel necessarily affects interstate commerce, then it is valid.
o If an anti-discrimination case is brought forward, the gov't doesn't have to prove that the hotel was
serving interstate commerce, just has to show it's a hotel - Congress can make that kind of
conclusion.
o When Congress wanted to reach "private discrimination," it relied on Commerce Clause - had
some showing of connection to interstate commerce.

Katzenback v. McCline
o When it extended the anti-discrimination to restaurants, it didn't make the same ruling like it did for
hotels that restaurants all affect interstate commerce.
o This legislation will apply to all those restaurants that either 1) buy a substantial amount of their product
in interstate commerce or 2) serve a majority of interstate commerce.
 Gov't has to prove one of those two things to bring an anti-discrimination claim.

Lopez
 There is a line that Congress CANNOT cross - and it goes too far w/o adequate justification
 Made it a crime to go into the school district w/ a gun b/c it would substantially affect interstate commerce
(but done so w/o any finding, AND no jdx'l hook)
o Unlike civil rights case, where there were volumes of legislative history

24
 o Before you can enforce the law, didn't have to show that the gun moved in interstate commerce or
that there was a substantial effect on interstate commerce, it was enough that he brought the gun into
the school district.
 States were already regulating this quite a bit (many cases already brought under state law)

 What is the purpose of this?

o Under any analytical framework or Constitutional amendment, ask what the Congress (or State) was
up to?
o How does it justify this as a matter of interstate commerce? How does the State tie this prohibition to
the Commerce Clause

o Why are Gov’ts rejected by the Court?

 There is no limiting principle when you pile interest on inference (chain of causation)
 Crucial factor - quoting from Gibbons v. Odgens (founding case for Affirmative
Commerce Clause - expansive view of Congressional power under Commerce Clause)
BUT it was NOT all expansive. The very fact that there is enumeration presupposes there
is something NOT enumerated.
 Framers did NOT say that Congress has the right to regulate everything, they
did NOT say that Congress has the right to regulate commerce. THEY CAN
ONLY regulate interstate commerce (so some things are not interstate
commerce)
 If you cannot explain what it fails to cover, then, by definition, it has to be an
inadequate theory, because there is no limiting principle.
 Has to be something that Congress can't be reached.
 Could Congress pass a national bed-time act?
 No jurisdictional hooks/limits - the statute doesn't require any proof that it's a crime to bring a
gun into the school district if the gun has moved in interstate commerce or that the gun would
have an effect on commerce
 Contains no jurisdictional element providing for case-by-case determination of a
commerce clause connection
 Congress reformed it to say two things: that it's illegal to bring a gun into a school zone if
it substantially affects commerce (hard to prove) or prove that the gun has moved through
interstate commerce (easier to show/almost always the case)
 Non-commercial/Non-economic factor - when something is not economic, we're going to take
a closer look, maybe the statute is invalid
 Wickerd (raising a commercial product and part of commercial market) and Perez (loan
shark)
 Congress didn't make any fact findings (was a floor amendment) -- as this legislation was
being passed, it was thrown in. NOT required, but in a borderline case, where limits of C.C. is
one more factor we take account of.
 Basically a local business issue (but Congress still passes a lot of local laws - criminal laws, or
gun laws, or education laws) but it raises some questions when you put it together with all
these other factors
 Kennedy Concurrence - no great need for national legislation in this area - seems like
states could readily deal w/ this on their own, and most states already have this
 Rehnquist - this is a criminal statute - sending someone to jail, so construe federal legislation
carefully -- Rule of Lenity (Cf. Lopez) -

 U.S. v. Morrison

25
 o Limiting Principle was a big factor - Inference on Inference argument w/ 3 or 4 steps before you get
to interstate commerce (see Morrison)
o Relied primarily on the Cost-of-crime Theory (relied upon in Lopez), BUT Congress took the hint
and made extensive fact-findings to show that it had substantial effects on interstate commerce.
 BUT that doesn't matter b/c the fact-findings are based on a theory that we have already
rejected (cost-of-crimes theory/impact on interstate insurance - invalidated b/c there is NO
limiting principle)
 Ct. can't bolster the theory w/ factfinding b/c the theory itself is invalid.
o Morrison tried to turn it into a doctrinal test
 Lays out the 4 factors:
1. No Limiting Principle
2. No JDX'l hook
3. Non-commercial/Non-Economic
4. Fact Findings

Gonzalez v. Raich - Stevens

 Precedent argument - Analogizes this to Wickard and that this controls (edges of C.C. jurisprudence,
but is good law)- all you have to do is substitute weed for marijuana (grown in state for in-home
consumption) - fungible commodity w/ a large-scale market and no reason to believe that some weed
will be diverted into the interstate commerce; affects supply and has huge market value, etc.)
 Congress has passed a comprehensive regulatory statute that is supposed to regulate all aspects of this
controlled substance in the interstate market. Congress could presume that to do so it has to control the
entire market
o If it leaves any exceptions, including intrastate exceptions, this could undermine the legitimate
attempt to regulate the interstate market. To protect this right of interstate regulation, it can
regulate the intrastate market as an adjunct.
 O'Connor dissents - doesn't this give Congress the incentive to pass these large scale
programs to reach all sorts of things it couldn't reach, instead of passing narrower laws
and obliterate the limits of the Commerce Clause? (Taking Congress in the wrong
direction)
o Majority largely seems to say that Congress can defend regulation of intrastate activity, if
permitting that intrastate activity, undermines its ability to regulate interstate activity, so it is
regulating intrastate activity that substantially affects interstate commerce if it were to continue
unregulated.
 Scalia (concurrence)
o Says you can reach it under "necessary and proper" - Congress can reach it as a means of
assuring the statute as it is directed at interstate commerce is NOT undermined. (wouldn't be a
C.C. issue)

Sebelius
 Issue: No limiting principle - if they can't explain to the Ct. what the limiting principle is, they're going to
lose (see Lopez).
 This case is distinguishable b/c Health Care is unique in 4 respects:
1. It affects everyone and all of us need it (all of us will get sick and die and utilize the system)
2. It's unpredictable and you don't know when you need it
3. It's really expensive (don't always know if you can pay for it)
4. Serious cost-shifting problem - because as the system has evolved, a lot of people who don't
purchase insurance shifts the cost to other people in the insurance market or other taxpayers.
Court doesn't buy it

26
  Textualist argument: Court does rely on the fact that there has to be a preexisting activity. Regulation
assumes that there has to be something there to regulate. Doesn't give Congress the power to create
commerce.
 P's push that the Commerce Clause presumes preexisting activity; C.C. does NOT allow Congress to
create commercial activity which it can then regulate
 As a matter of precedent and doctrine, Court had seemingly assumed there has to be an "activity";
instead of creating an activity to regulate or regulating "inactivity"
 Original understanding - goes out of his way to distinguish from Gonzalez -- one thing to use
Necessary and Proper Clause to reach something that you couldn't reach under C.C. (regulating MJ
was something you could clearly reach under C.C.) BUT something entirely different to use Necessary
and Proper Clause to bootstrap yourself into regulating something that you didn't have the right to
regulate in the first place (gov't creates the problem that it turns around and tries to solve) - not a use of
N&P or C.C. Clause
 As the dissenters put it, as a practical matter, Congress has created a statute that regulates you b/c you
exist - anyone who breathes is regulated to either purchase insurance or pay a penalty regardless of
whether they think they need it or they think they want it.

Gov'ts argument: Nothing wrong w/ anticipating future impact on commerce - will be cost-shifting in the future
that will have an adverse impact (like Wickard - if the cost of wheat rises, then he may enter the market to sell
his wheat and this could destabilize the market, assuming many people do the same thing)
 Ct.'s rebuttal: Wickard and Raich- easily distinguishable - future impact that was derived from
actual commercial activity today - Wickard had entered a market, he was involved in the production
of a commercial product (growing and consuming wheat and not just a bystander). This case would
be Wickard if gov't had required people to buy wheat to prop up the market, never said that.
 Wickard was the farthest extension of the C.C. that we have recognized and Perez was a close
second, and both are distinguishable - both were involved in economic activity, not just minding
their own business (regulating people on a non-affirmative activity), this case takes it a step
further.

27
Garcia v. San Antonio Metropolitan Transit Authority
 Overrules National League of Cities - says it's unworkable
 Blackmun's opinion (sounds like Brennan's dissent in National League of Cities)
o Does Blackmun believe state sovereignty is unworthy of constitutional protection
 As a matter of constitutional structure, there is a core of state sovereignty worthy of
protection - how is it to be protected and preserved?
 Argument that the political process will uphold state's sovereignty (Political safeguards of
Federalism - McCulloch v. Maryland)
 Political process would be sufficient to protect it

 New York v. U.S.

o Like , problem of disposing low-level radioactive waste does affect interstate commerce, Congress
has the right to regulate, and on its face, appears to be a problem that no state can solve on its own.
o What clearly can Congress do to solve this problem?
1. Regulate waste under the Supremacy Clause, if states can't solve the problem on their own (set
up regulation, etc.)
 W/in the scope of the C.C. - they could pass a law to regulate it, and any state law would
be preempted
 Commerce Clause + Supremacy Clause method
2. Congress could use the Spending Power (conditional spending to build the radioactive waste
dumps) IF you do it the way we want you to do it
 As long as it's a voluntary choice, it would easily be constitutional
 Conditional spending (2nd behind the Spending Power for method of regulation) - to put
strings on the money
3. Authorize discrimination in Interstate Commerce
 States, as a general rule, would not be allowed to discriminate against out-of-state waste
providers (would violate Dormant Commerce Clause) - Congress can actually permit
discriminatory state legislation (would be unconstitutional absent Congressional action)
a. Would institute additional taxes on other states that wanted to use the state's
disposal facilities
o How does Justice O’Connor view the 10th Amendment and the limitations on Congressional power
attributable to state sovereignty? Confirms there are limits.
 The 10th Amendment does not independently create limits on Congressional powers but rather
confirms that there are limits inherent in the federal constitutional structure.

28
Printz (replay of National League of Cities)
 Commandeering executive officials (sheriffs) rather than legislature
o Makes the difference for Souter - when Congress commandeers a legislative body, that's too deep;
when it commandeers on ministerial people (like Sheriffs) that's not too much - still in minority
 Scalia writes majority view
o Structural rather than a textual
 Original understanding - found through custom and practice
 No instances in the framing era of Congress placing burden on state executive officials,
but did place burdens on state courts
 Commandeering principle - applies only to state executive and legislative positions
 BUT state does have constitutional authority to commandeer state judicial branch as well
 Supremacy Clause - speaks to state judges - prefer federal law or state law when
there's a conflict
 Full Faith & Credit Clause (Article 4) - state courts must give legal effect to final
judgments from other states; implies obligations on the state courts
 Provision in Article 1 - Congress need not create lower federal courts if it chooses
not to (if it chose not to, all federal cases in lower courts would be applied in state
courts)
 Constitutional structure -
 One of the reasons we know that what Congress is doing violates Constitutional structure
is to look at an important change between the AoF and Constitutional law
 AoF - Congress could only act on the states, couldn't act on the individuals - proved
difficult
 Constitution replaced AoF - gave Congress the power to act on individuals, rather
than on the states.
 Court's own precedent

o Unitary executive argument - should there be a unitary or plural leader in the executive branch?
 Only have one president, but 9 justices, and 500 + legislatures
 Does this invest too much power in a single individual? Should there be a plural
executive?
 Argument in favor: Needs to be accountability & responsibility at the top of the pyramid

29
SPENDING CLAUSE

United States v. Butler (1930 - before Court changed its direction)

o Landmark case
1937 - Lochner Court reverses course and strips away 10th Amendment limitation that Congress can't regulate in things
that are so local (NLRB v. Jones-Laughlin)
o Butler collapses b/c of this
 Congress can spend for the general welfare - conditions billions of dollars of its spending
o Is there some limitation on how far Congress can go on its spending?
 See South Dakota v. Dole

o What, if any, scope does the Spending Clause have?

o Ct. resolved this conflict of the proper interpretation of Spending Clause (Hamilton v. Madison)
--> Endorsed Hamilton's Broader view about the General welfare, BUT despite this, the Ct.
still strikes down the legislation
 Madison says scope of general welfare for which Congress can spend is defined
by the other enumerated powers (can legislate and spend for those enumerated
powers)
 Madison criticizes Hamilton’s argument b/c general welfare is TOO BROAD and
gives congress a police power. Why give them enumerated powers (coin money,
etc.) if they can do anything for general welfare? Cuts deeply into idea of limited
and enumerated powers. (NARROWER)
 Hamilton: NO, relevant clause is for general welfare and they are not overlapping. There
can be things that help general welfare but not justified by another Article I power.
 General welfare is the defining concept. By its term, Congress can spend for
the general welfare and is NOT limited by the enumerated powers
(BROADER)
 Stone's Dissent:
 Doesn't think it's coercive - says farmers have their own choice to take the money, Congress isn't
forcing them to do anything.
 If Congress were to appropriate money for a purpose, they can make sure that's
what you do with the money (nothing wrong w/ Congress conditioning its spending,
and enforcing that contractually is neither here nor there)

South Dakota v. Dole

o Has to be for the general welfare, but will bend over backwards to give C
o Conditions imposed have to be clearly stated for the recipients of the money to know what they're agreeing to
o (Most significant) Has to be some relationship btw the nature of the conditions and the nature of the
spending program, and the conditions can't be otherwise prohibited somewhere else in the Constitution
(e.g., violating 1st Amendment)
o Money being dispersed for highway funds - take away 5% if you don't have certain drinking age.
o BUT general approach here is deferential - won't see many cases where Ct. strikes down Congressional
spending.

Sebelius
 Why does Court say it goes too far?
 #1 - the degree of the cost/penalty is extreme
 Why is it coercive in addition to this?

30
DORMANT COMMERCE CLAUSE

Gibbons v. Odgens
 Dormant Commerce Clause - suppose that Congress has not regulated an area that involves interstate
commerce, to what extent does state have the power to step into the area where Congress has been silent
o Marshall qualified this by saying this by saying that if the State was regulating for non-
commercial/police power purposes, that would be OK
 State has the right to pass inspection laws to make sure that things coming into the state
were not dangerous or unhealthy.
 (How Marshall decided Gibbons v. Odgens) Federal Preemption - where Congress has passed a law, and State
has passed a law, the Court's job is to see if those statutes can coexist, or if the state law is preempted?
o Supremacy Clause is not just a C.C. issue - would apply to any federal/state conflict.

Wilson v. Blackburn
o But established from Wilson onwards - there was a Dormant Commerce Clause - there is a point
beyond which the state CANNOT go; at some point, the state regulation will clash w/ C.C. regulation.
 Gave rise to Dormant Commerce Clause jurisprudence
 Issue keeps arising w/ some consistency
 State regulates in absence of Congressional legislation and court has to sort it out.

Cooley v. Board of Wardens

o Why does the Cooley court uphold the statute, even though it regulates commercial
activity/interstate commerce?
 (Primary test up until 1930) Cooley approach: Balances the local v. national interests
 Is there a local interest that needs to be adaptive; or does there need to be some national
uniformity
 One harbor is different than another, so would require local pilots

Modern Dormant Commerce Clause Jdx

Philadelphia v. New Jersey (193)
 SCOTUS takes the position that we are a national market; wanted to avoid tariffs against other
states, and favoritism to state insiders (HP Hood)
 Protectionism is the mortal sin under DCC analysis - State cannot protect its own
businesses to the detriment against out-of-staters, and can't hoard its minerals,
natural resources etc.
o Issues under DCC
1. If discriminatory (purpose or effect) against out-of-staters or IC, Court strictly reviews
this
 If a state discriminates against interstate commerce or out-of-state businesses, that
is probably a violation of DCC, but perhaps it could be upheld, BUT if it is doing so
for a protectionist reason (aid its own businesses or hoard its own resources) that is
a per se violation
2. If neutral regulation (doesn't disadvantage out-of-staters) the Ct. will approach this as a
balancing test (burden v. benefit)

Southern Pacific v. Arizona

 On one hand you have a huge burden on interstate commerce, and a minimal safety benefit
 Court adopts a benefit/balancing approach

Dean Milk

31
  Geographically excluded people b/c no out-of-stater
 Overwhelming # of in-state pasturizers were included as well, so they were discriminated too
 Discriminate 100% of out-of-states, and 95% of in-staters; what's the Court's response?
 Footnote 12: Immaterial - that's irrelevant
 Dean Milk states a significant principle of DDC
 There does NOT have to be complete discrimination against just out-of-staters, just
b/c some in-staters are discriminated against too, doesn't save it
 Why does the Ct. say this is discriminatory, even if they are exercising a police power (safety
purpose)
 Strict Standard of Review - Introduction of concept of least discriminatory (or less
burdensome) alternatives
 Grueling test for states to justify their legislation under DCC (not always, but
sometimes)
 Criticized b/c arguably there may be other alternative, but it's not obvious that
it will serve the states' purpose as effectively or efficiently

 Distinguishing btw discriminatory and protectionism

 Protectionist - state doesn't have the right to protect its own at the expense of others -
invalid per se
 Don't want to do this unless it's relatively clear
 Discriminatory - look at who it applies to and whether there are less restrictive
alternatives
 Maine v. Taylor - only way to protect state was to ban out-of state minnows, and there
was no less restrictive alternative, BUT state had very valid purpose (to protect its own
waters), and although the statute was discriminatory on its face, it still passed muster w/
the SCOTUS
 Even though during the legislative hearings, benefit of economic protectionism -->
would be invalid per se, BUT the overwhelming reason for the statute was
environmental
Exxon Corp. v. Governor of Maryland (Stevens)
 Importance is characterization on how the case will be decided
 Disagreement is what's going on in this case, and how the case should be characterized

West Lynn Creamery v. Healy

 Either of these things by themselves would have been fine
 When a non-discriminatory tax is coupled w/ a subsidy - has a different effect -->
ends up looking like a tariff, alters the nature of it.

32
MARKET PARTICIPANT DOCTRINE
 Hughes v. Alexander case - offered to pay bounty for junk cars from MD, limited to in-state cars; court
upheld it on Market-Participant
 Reeves v. State (S.D.) - state cement plant would only take out-of-state orders until all in state orders were
filled
 State is acting like a participant in the marketplace rather than as a regulator
o If you're going to act like a business, we're going to give you the advantages the businesses enjoy -
can select its own customers (can't discriminate on race, etc.) b/c it's taking a risk on its investment,
etc.
o BUT a state CAN raise money like a business could (through bond market), BUT can also subsidize
its business through taxation
 SCOTUS puts limitation on Market-Participation case (South Central)
o AK took it a step too far - controlling what happened after the transaction
 Was pure protectionism - CAN'T do that under the Market-Participation doctrine - acting like a
market participant in the sale of timber, AND then trying to regulate the process they are not
involved in - were trying to steer it to all their in-state producers (and thus, acting like a
regulator)
 Downstream regulation is NOT permissible

Privileges AND Immunities Clause of Article 4

 Different from Privileges OR Immunities Clause of 14th Amendment
 P&A Clause - tries to smooth relationships btw states and the
o If you are a citizen of State A and you venture into State B (not for purposes of permanent stay) you
are entitled to ALL of the P&I that State B grants to its own citizens
 Doesn't create any new P&I - only provides that
 Equal protection clause for interstate travel
 5 differences btw P&I Clause and DCC (Lots of overlap b/c both are d involving discriminating against
out-of-staters
1. P&I applies ONLY to citizens; DCC is not limited (includes citizens, corporations)
2. NOT every P&I that a state gives its own citizens, BUT only those that are fundamental to interstate
travel, etc.
 Most of these cases involve restrictions on employment - clearly employment IS fundamental
 Baldwin case - MT case for Elk hunting (out-of-staters pay 20x) - not a fundamental P&I
3. Market Participation doctrine does NOT apply to P&I - not about commerce, but about protecting
fundamental constitutional rights.
4. Not nearly as absolute as it sounds; P& I means that if you are an out-of-stater and you venture into
another state, you get all the P&I that the state grants its own citizens, UNLESS the state has a good
reason not to
 E.g., voting - can't vote when you go to another state
5. DCC - unique in that it is the only area of constitutional law that Congress can overrule SCOTUS on
a constitutional issue
 Congress can say whether something is constitutional or not; whether something violates the
DCC or not; why is the DCC different?
 Leading theory is that it perceives the C.C. as essentially the business of Congress to
define - Constitution commits the decisions of Commerce Clause to Congress, but
Congress doesn't have the time to police all of these things
 No such exception for Congressional override for P&I Clause
 

33
Preemption
 NOT simply a Commerce Clause issue - it applies across the board - a law passed by Congress preempts
an inconsistent state law.
o Given that Congress regulates most frequently under the Commerce Clause, that's where most
preemption issues occur
 There are largely 3 different kinds of preemption
1. Explicit preemption - Congress directly says that state law is preempted - if Congress says this, then
State law is preempted (easiest type of cases)
2. Conflict preemption (most common) -Congress hasn't said anything about what the state does, it just
passes a law that regulates, and the state has passed
3. Field preemption -- even where Congress has not said so, Ct. looks at it and says that the degree of
legislation in the area is so pervasive, Ct. can say that Congress has preempted the field
1. Even if the state law is not even inconsistent w/ the federal law - Congress is basically the only
one that
 
 How does Court decide
o Depends on the intent/purpose of Congress
 If implied, Congress didn't say anything explicitly. SCOTUS has to infer the purpose from the
text/structure of the law
o Legal fiction - did Congress intend to preempt a particular kind of state law?
 One reason that Congress never said anything is because it never thought about the state law to
preempt
 What would Congress have intended, if, in fact, they had thought about it?
 Ct. will figure out what Congress was trying to accomplish - did they mean to create a
uniform standard?
 Did Congress merely mean to create a minimum standard? Then state law that raises the
standard above that, then it's ok; if below, state law is preempted.
 To what extent are they reasonably in conflict?
 Is there room for these two laws to coexist? Did Congress want them to coexist?

34
Separation of Powers - Executory Powers (War Powers, Treaties, Etc.)
 
Youngstown
 EVALUATE EACH OF THE JUSTICES' OPINIONS in Youngstown Steel
o Black's opinion - formalistic approach (pretty straightforward) - Is it executive? No, is it
legislative ? If so, then it's the business of Congress and the President's action is unconstitutional
o Douglas' opinion - does the Gov't ever have the right to seize property under the Constitution? Yes,
under Takings Clause - but has to give just compensation
 But since Congress is the one who pays the bills, then Congress should be the one who should
authorize the taking
o Frankfurter's concurrence (very long) - the text doesn't necessarily resolve these issues
(Frankfurter and Jackson think that the text or original understanding doesn't help much here) -
where do you look to find out how the Congress has gone too far?
 Frankfurter points out that Separation of Powers is different than the C.C. in that the great
majority of disputes in this area do NOT end up in court - they just get worked out in the
political process to come up w/ some understanding/compromise
 Practice/Customs/traditions that have developed to resolve these Separations of Powers issues -
BUT has to meet his strict standard
 NOT any old practice is worthy of consideration
 Frankfurter's STANDARD - you can't really understand what the powers of the President
are just by reading the text of Article II - have to look at the history of how Congress and
the President have interacted; if the President has acted in a certain way for a long time
and Congress has not acted, it is deemed to have acquiesced, and the President's conduct
may be deemed constitutional
 Why does this not meet his test?
 Congress didn't acquiesce
 Frankfurter goes through 200-case appendix and distinguishes all these cases that
are similar; only 4 or 5 instances that are nearly analogous, that's not enough and
doesn't create a "gloss on the Constitution"
 Separation of Powers analysis is somewhat different b/c it doesn’t arise in litigation
o Jackson's opinion - (most significant)
 analyzes the gov'ts actions in more detail
 Analyzes inherent authority in more depth than anyone else
 Synommous w/ Frankfurter's concurrence
 Text doesn't help,
 Original understanding doesn't help
 Precedent is very narrow and infrequent
 Framework to analyze when there's a conflict btw Congress and President
 Not happy w/ Black's simplistic approach
 How should a judge think about this issue?
 Interdependence btw express and implied powers AND between the branches
 Uses a Continuum/Categorical approach
1. When the President acts according to an express power of the Constitution
(combining executive and legislative)- APEX
2. President acts in absence of a grant of authority (Constitution and Congress is
silent) - Twilight Zone - does the President have the authority to do this w/o
any help from Congress? (not as strong as category #1, but still Prez has a
good shot)
3. President takes measures incompatible w/ the express or implied will of
Congress, but President wants to act unilaterally - obviously the weakest
35
 situation - can the president act in the teeth of Congressional authority?
{Name}
 Maybe if under the Commander-in-Chief function - for how the war
should be fought
 Makes the president's position the weakest
 Youngstown was a category 3 case - Congress said he couldn't do it or had to do a different
way
 Jackson opinion/triparte analysis significant b/c it has carried how Separation of Powers
is analyzed in future cases
o Clark's opinion
o Chief Justice Benson (dissent) - argued that there was a serious emergency and that Presidents have
traditionally been given the power and authority to handle those emergencies as they arose, and there
have been similar situations in the past

Curtis Wright
 Different vision of presidential power than Youngstown
 This is the case used when President gets in argument about foreign affairs with congress.
 Two cases in conflict - Youngstown is more prominent, and more current; in conflict btw the
two, Youngstown ought to control, but in foreign affairs battle, President wins so Curtis Wright
owns.
 Delegation Doctrine
o One of the ways in which the Ct. invalidated some of the New Deal legislation was striking
down overly broad legislation that Congress was delegating legislative authority to the
President
o Says the President was acting on his own

 Justice Sutherland's opinion

o Where does the President get the power to deal with foreign affairs? Where does the U.S. get the
power to deal w/ foreign relations
o Can't find anything in the Constitution that gives Congress or the President any general powers to
deal w/ other nations
o Sutherland - it's just there - each nation has inherent power to deal w/ other nations.
 
1. Functional/structural argument: Why does the President have the foreign affairs power?
o Btw president & congress under Constitution, who can best handle day by day foreign affairs?
 The court gives several reasons that President: confidential communications, state department,
ambassadors, etc bringing him information, on top of what’s going on in the world…eyes and
ears of nation.
 Likewise, he has the advantage of decisiveness. Congress is made up on lots of people,
committees…hard to get things done, avoid embarrassment.
 
2. Original/Structural argument: Where did President’s powers with foreign affairs come from?

3. Traditional/Frankfurter gloss argument: over entire history, Congress has acquiesced president as
spokesperson of foreign affairs.
  Court doesn't treat this as a war power at issue (since U.S. wasn't at war here), but as a foreign policy
issue
o Question 1: to the extent that the U.S. has foreign affairs powers, where do they come from?
 The foreign affairs authority is NOT like anything else in the Constitution - where we operate
on this assumption that federal powers are enumerated and delegated
36
  The foreign affairs power was already there (States didn't provide it, because it already existed)
--> it was an aspect of sovereignty that transferred when the U.S. started.
 Foreign affairs power shifted from the Crown to the colonies, collectively
o Question 2: and where do they reside? Who has the authority to be the primary actor in regards to
foreign affairs?
 President does have some explicit textual (foreign treaties, appoint ambassadors
 BUT more of a functional, institutional argument --> given the nature of foreign affairs, the
head of state is in a better situation to deal w/ it than the multi-headed Congress/legislative
body
 President does negotiate w/ foreign nations, and it's a lot easier for him to do it
 
Curtiss-Wright and Youngstown have a different mood to them
 Both remain good law
 Curtiss-Wright suggests that in the area of foreign affairs, the President in the leader and really has the
primary authority
o President and supporters rely on this case
 Youngstown - if President doesn't have clear constitutional authority to do something, then he can't do
much w/o Congressional approval or support.
o President's critics of his power (triparte Analysis of Jackson)
 When you have a dispute btw President and Congress about the exercise of Foreign Affairs, both cases
will be cited

Dames & Moore v. Reagan (Rehnquist)

 Political dispute that found its way into litigation
 Rehnquist treats the Jackson Triparte Analysis as the main method for analyzing foreign affairs cases
o Attachments - Category 1 situations
o Suspension of Claims - court has to concede that there is no statute on point that governs it, but there
are other statutes that are related to similar situations, and the Ct. says that Congress intended the
President to step in for these similar situations
 At the least, it was a Category #2 situation
 Some would argue it was a Category #3 situation b/c it said you could only do certain things
 BUT Court treats it as a Category #1 - Court didn't really have a choice
o Court couldn't invalidate this, so it had to bend for this result
 ONLY other alternative was to say that it was a foreign affairs type of political question and is
left to the other branches of gov't - would have come out the same way (and wouldn't have had
to bend the law a bit to come to the same result)

War Powers Resolution

37
 Presidents have frequently ignored the War Powers Resolution by acting quickly or arguing that the
circumstances are not under the War Powers Resolution
o Congress can't do much, unless the President is weak
o Comes down to a political struggle btw the 2 branches - if they tried to litigate, they couldn't
establish 1) Standing, 2) Ripeness, and 3) Political questions
 The power the Congress does have is the Funding Power - so stop any further funding for it (easier
said than done - can do it, but politically difficult)

38
TREATIES
 
Treaties - can be negotiated by the President and ratified by a 2/3 Senate vote
 What is the impact of a treaty domestically?
 Certainly it is binding between the countries
 Is it a self-executing treaty? Yes it does - applies as any other law passed by Congress
 If non-self-executing treaty? Congress would have to pass some other law/statute to make it
apply to states
 How to tell if it's self-executing - the treaty has to say so (otherwise presume it isn't)
 Treaties are treated like laws, under the Supremacy Clause, for conflicts w/ State laws
 Even a non-self-executing treaty in conflict w/ state law would preempt the state law
 The last in time passed treaty (that is inconsistent w/ other past laws) would prevail
 A treaty has to be concerned w/ subject matter of negotiations w/ a foreign power
 Holmes (in Holland case) the implementation of a treaty has to involve a matter of national significance
 If insignificant, maybe Congress doesn't have the power to implement.
 
Executive Agreements (prevalent w/ Roosevelt in WWII)
 President can agree w/ other nations on subject matters (that otherwise might be in treaties)
 Medellin - President doesn't have the right to implement a non-self-executing treaty where Congress didn't
implement the treaty and then force it upon the states.

Missouri v. Holland (Holmes, 1920)

 Treaty precluding the states from regulating differently
 Does Congress have power, pursuant to its ability to implement a treaty, to regulate an area, that it
otherwise clearly would NOT have the power to regulate?
o President and the Congress ought to have the power to do this, even though they wouldn't have the
power to do this otherwise
o President and Congress can do an end-run around these restrictions IF they can get another
country to enter into a treaty
 Once Court recognizes broad expanse of Commerce Clause - don't have very many cases like this.

39
U.S. v. Nixon
Finality?
Whether this case at this point is appealable at all?
Can't appeal the denial of the assertion of privilege UNLESS the person who asserted privilege
refused to comply and would be held on contempt, and then can appeal that.
S. Ct. - would be inappropriate for a D. Ct. to hold the President in contempt - public would
draw the conclusion that the President has misbehaved
Justiciability
Simply an intra-branch dispute (President = Head of executive branch, and DOJ = Prosecutorial arm
of Executive)
Dispute btw President and one of his subordinates- that's not a case and controversy -
BUT Independent Prosecutor - by executive order - has been given some insulation and buffer
zone btw President and this executive subordinate.
Amenability
Folds this into privilege - St. Clair argued that as head as Executive Branch of gov't, you can't sue
the President. The Separation of Powers precludes that
Can you serve process on President to begin with? Can President be subjected to the judicial process
Marbury v. Madison (not Marbury v. Jefferson)
Ignored by deciding this case, but implicitly deciding that the President is amenable to the legal
process.
 
Who decides who decides?
President has decided he has a privilege that's absolute, that he's decided to assert in this case.

S. Ct rejects the argument that President's invocation of immunity

Marbury v. Madison - it's the duty of the Judicial branch to say what the law is -
Court could consider:
1. Is there a privilege?
a. Sounds like a legal, judicial question --> General constitutional matter that
Court could decide
1. Marshall arguably recognizes the Political Question doctrine in Marbury -
there are certain constitutional issues that other branches other than the
Judiciary has the right to decide, and the S. Ct. won't 2nd guess
2. What is the privilege's scope?
3. Does it apply here?
o Does the Court have to decide all questions of Constitutional law?
 There are some questions of Constitutional law where the Court will accept the other
branches' interpretation of it.
 Has to decide whether it's a political question, or whether the Constitution
appropriately delegated that power to that branch
o What kind of privilege is it? (Why is the President's asserting privilege in this case?)
 Confidential communications privilege - it's important the President get info from the
people he works with AND give them frank advice to them to make decisions
 President's argument: Needs to give candid, frank advice; if it always got out, it
would be guarded and cautious. (see Lawyer-client privilege

U.S. v. Nixon
 Court does find there is a QUALIFED privilege (NOT absolute)

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  Why does the Ct. say there are interests here that says it shouldn't be absolute?
 Have Constitutional interest in confidentiality (on the side of the President)
 On the other side of the balance, have the interest of the criminal trial --> trying to
obtain evidence to prosecute the crime (constitutional interest, ground in DP and
Rule of Law)
 Why should it be qualified privilege?
 Why is attorney-client privilege (that protects the same kind of interest) absolute,
but this is not?
 Should be qualified - This hardly ever happens, so what's the harm? Will
happen so infrequently that the President's confidants will NOT factor this in
--> won't have a chilling effect
 Counter-argument: Should be absolute b/c it won't be much of a loss on the
process since it rarely happens.
 This is a criminal case, so Court won't be as deferential.
 If it wasn't criminal, the Court would be far more deferential
 Limits on Privilege
 NOT talking here about Military or National Security
 NOT talking here about a subpoena in a civil case
 NOT talking here about Congressional investigatory subpoena - rejected previously by
Court
 NOT a request for information in an impeachment hearing
 Limiting it to criminal cases --> need for evidence; would have an in camera hearing, and
the D. Ct. judge should show deference to the President.
 
o Not a strong opinion on the basis of its legal reasoning b/c the Ct. understood it HAD TO reach
unanimity
 Wanted to make sure the President would comply
 Wanted to speak w/ a unified voice to make sure it wasn't challenged.
 To reach unanimity b/c each justice throws in something so it makes it foggy.
o If Ct. was defied by President there would be another article of impeachment
 

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INS v. Chadha
o S. Ct. : this is a legislative veto; Ct. strikes it down.
 Doesn't comply w/ the requirements of Bicameralism & Presentment
 Has to do this b/c it's Legislative: Constitution is explicit about the prerequisites before
legislative acts.
 How do you tell if it's legislative:
 Legislative: Generalized --> if it alters the rights & duties of people
 Adjudicative: Rules for specific people (Powell)
 Administrative: agency is authorized to make rules that have the effect of law (doesn't go
through bicameralism & presentment)
 Different b/c the (1) agency acts pursuant to a legislative delegation that went
through Bicameralism & Presentment, and (2) is subject to judicial review.
 Functional justification:
 ***Ct. understands that under its principle that IF an act is legislative (alter duties & rights of
individuals) has to go through Bicameralism & Presentment
 But Admin Agency rules go into effect w/o this; BUT there was Bicameralism & Presentment in
the enabling act that allowed the agency to pass those rules
 Same procedure though as Legislative veto - so that argument collapses
 The Congress can delegate legislative-like authority to administrative agencies outside of
the Legislature, BUT CANNOT delegate legislative authority to itself.
o Theme of Separation of Powers (see Youngstown)
 There are basically 2 different ways that either the Court or individual justices analyze S.O.P.
issues:
1. Formalistic approach: looking at the Constitution and drawing some rather clear line rules
(Black's opinion in Youngstown)
2. Functional (Modern) approach: Why did the President or Legislature engage in the
approach - was it justified in the overall scheme of things taking all things into account.

Bowsher v. Synar
o Were the procedures utilized unconstitutional? Yes
 The person that has the ultimate authority is the Comptroller General -> engaging in executive
action and is removable by Congress ONLY for cause
 Constitution doesn't allow for the removal of an Executive official and that invalidates
S.O.P. so the Court invalidates that.
o Argument: that Comptroller general is part of Congress
 Stevens says this is more legislative in nature --> Executive Officer laying down & making
decisions that alter the rights & duties of individuals (which would violate Constitution b/c this
wasn't going through Bicameralism & Presentment which reinforces Chadha)
o Majority = Formalistic
 Tends to lean toward invalidation of legislation
o Dissent = Functionalistic (focus on the real problem that Congress has)
 Since it considers all things, and whether there is a real harm here, tends to uphold legislation

 Clinton v. New York

o Congress sees a problem and tries to come up w/ a solution
 Attempt by Congress to give the President the power of line-item vetoes (state governors have
this power & it helps states balance their budgets)

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 o Court says: you're allowing a president the power to enact a law different from the one that the
Congress has passed (by cutting out some things)
o Scalia & Stevens think this shouldn't be a Constitutional problem b/c:
 Congress can clearly authorize Presidential discretion to spend or not to spend (see Curtiss-
Wright); can delegate some discretionary authority to the Executive
 
 
 Administrative State
o Administrative Branches = Headless 4th Branch of Gov't (over 100 independent regulatory agencies)
 Not explicitly recognized in the Constitution
o Interstate Commerce Commission (1800's) = first admin agency (in Shreveport case)
o Why did Congress set these independent regulatory agencies?
 Society (economic/financial) have gotten much more complicated over time & Congress
doesn't have time/resources to regulate these areas
 Congress doesn't have the expertise
3. Politics - decisions that are made in the course of regulation will have large financial
consequences; if it was left up to Congress, Congress would be lobbied hard to get it to decide
one way or another
 Decisions should be made based on empirical data, rather than mere politics or lobbying
 Provides insulation for Congress from purely political pressure
 Provides a buffer zone for itself when unpopular decisions
o Nature of the Administrative State
 Administrative Branch = Mixture of the 3 branches (legislate - pass rules that have binding
effect; Execute - put them into effect and prosecute those who violate; Adjudicate - those in
violation of the rules

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