Con Law Outline

Origins of Powers- Federalist Papers ..................................................................................................................................................... 3

Basic Framework of Judicial Review ...................................................................................................................................................... 3
Judicial Review of State Conduct .............................................................................................................................................................. 4
Federal Supremacy ......................................................................................................................................................................................... 4
Pros and Cons of Judicial Review ............................................................................................................................................................. 4
Methods of Constitutional Interpretation ............................................................................................................................................ 5
(1) Textual .................................................................................................................................................................................................... 5
(2) Historical ............................................................................................................................................................................................... 6
(3) Structural ............................................................................................................................................................................................... 6
(4) Doctrinal ................................................................................................................................................................................................ 6
(5) Prudential .............................................................................................................................................................................................. 7
(6) Cultural ................................................................................................................................................................................................... 7
Tiers of Judicial Review ................................................................................................................................................................................ 7
(1) Minimal Scrutiny ................................................................................................................................................................................ 7
(2) Intermediate Scrutiny ...................................................................................................................................................................... 7
(3) Strict Scrutiny ...................................................................................................................................................................................... 7
Limitations on Judicial Review .................................................................................................................................................................. 7
Direct Political Limitations ................................................................................................................................................................... 7
Amendment ............................................................................................................................................................................................ 7
Appointment .......................................................................................................................................................................................... 8
Impeachment......................................................................................................................................................................................... 8
Control of Inferior Federal Courts ..................................................................................................................................................... 8
Control of Supreme Court Appellate Jurisdiction ....................................................................................................................... 9
“External” Limits ........................................................................................................................................................................................ 9
“Internal” Limits......................................................................................................................................................................................... 9
Control of All Federal Courts ................................................................................................................................................................ 9
Justiciability .....................................................................................................................................................................................................10
Advisory Opinions...................................................................................................................................................................................10
Declaratory Judgments .........................................................................................................................................................................10
Standing .............................................................................................................................................................................................................11
The Constitutional Core of Standing ...............................................................................................................................................11
Injury in Fact .............................................................................................................................................................................................11
State Standing ...........................................................................................................................................................................................12
Prudential Standing Rules ...................................................................................................................................................................12
Third-Party Standing .............................................................................................................................................................................12
Organizational Standing .......................................................................................................................................................................13
Ripeness ......................................................................................................................................................................................................13
Mootness .....................................................................................................................................................................................................13
Political Questions ........................................................................................................................................................................................13
Gerrymandering.......................................................................................................................................................................................14
Federalism ........................................................................................................................................................................................................16
Federalism checklist ..............................................................................................................................................................................17
Allocation of Governmental Powers ...............................................................................................................................................17
Who Should Decide Federalism Issues? ........................................................................................................................................17
Purpose/Value of Federalism ............................................................................................................................................................17
Interstate Commerce ...................................................................................................................................................................................18
 Federal Power ...........................................................................................................................................................................................18
What is (Interstate) Commerce? ......................................................................................................................................................19
Categorization ...........................................................................................................................................................................................19
Direct & Indirect Effects .......................................................................................................................................................................20
The Protective Principle .......................................................................................................................................................................20
Steams off Commerce ............................................................................................................................................................................20
Regulating Interstate Movement ......................................................................................................................................................20
Labor Standards & Pensions ..............................................................................................................................................................22
Aggregation ................................................................................................................................................................................................23
Civil Rights & the Commerce Power ...............................................................................................................................................24
Activities “Affecting” Interstate Commerce .................................................................................................................................25
The Standard of Review .......................................................................................................................................................................25
Post-Lopez Developments ...................................................................................................................................................................25
Interpreting Statutes and the Commerce Clause ......................................................................................................................26
Regulating the States .............................................................................................................................................................................28
Substantive Immunity .....................................................................................................................................................................28
Procedural Immunity.......................................................................................................................................................................29
Anti-Commandeering Doctrine ...................................................................................................................................................30
State Power over Interstate Commerce ..............................................................................................................................................32
Dormant Commerce Clause ................................................................................................................................................................32
State Taxation of Interstate Commerce ...................................................................................................................................32
Discrimination Against Interstate Commerce ......................................................................................................................32
Neutral Burdens on Interstate Commerce .............................................................................................................................34
Pike Balancing .....................................................................................................................................................................................34
Emerging “Public Function” Exemption ..................................................................................................................................36
Facially Neutral Regulations with Discriminatory Effects ..............................................................................................36
The Privileges & Immunities Clause ...............................................................................................................................................39
Preemption.................................................................................................................................................................................................40
Taxation Power of Congress .....................................................................................................................................................................42
Using Taxes to Regulate........................................................................................................................................................................42
Spending ............................................................................................................................................................................................................44
State Autonomy Limits to the Spending Power .........................................................................................................................44
War-Making Power of Congress .............................................................................................................................................................45
Congress's Enforcement Power Under the Reconstruction Amendments ..........................................................................46
Treaty Implementation...............................................................................................................................................................................47
Distribution of National Powers .............................................................................................................................................................48
The Reasons for Separated Powers .................................................................................................................................................48
Executive Action ......................................................................................................................................................................................49
Domestic Affairs .......................................................................................................................................................................................49
Foreign Affairs ................................................................................................................................................................................................51
War Making Power .................................................................................................................................................................................53
The War Powers Resolution ...............................................................................................................................................................54
Domestic Affairs .............................................................................................................................................................................................55
Executive Immunities ............................................................................................................................................................................55
Executive Privilege .................................................................................................................................................................................56
Legislative Action & the Administrative State ............................................................................................................................57
Nondelegation ...........................................................................................................................................................................................58
Bicameralism and Presentment ........................................................................................................................................................60
 Origins of Powers- Federalist Papers
Federalist 10
• All about controlling the factions, because factions are too easily swayed by impulse
and could gain too much power too quickly
• Cant remove the factions because that is not practically possible so you need to
control them through a federal representative government

Federalist 51:
• Checks and balances work out because of self interest
• Every agency or branch of government is fueled by ambition so by pitting ambition
against ambition one branch will not override another because they will all continue
functioning in their own self interest and the checks and balances in the constitution
make them functionally equal in regards to power

Basic Framework of Judicial Review

The process by which courts decide whether actions of government officials comply with
the Constitution.

Marbury v. Madison (1803): MARSHALL: The federal judiciary may review the
constitutionality of actions taken by the legislative & executive branches of the national
government. If those actions are found to be in violation of the Constitution, federal courts
may refuse to honor or enforce them.

“It is emphatically the province & duty of the judicial department to say what the law is.”

Textual arguments:
(1) The power of judicial review comes from Art. III’s grant to federal courts of the power
to decide cases arising under the Constitution.
(2) Some constitutional provisions are specifically addressed to the courts and cannot be
changed by legislative act  Perhaps only justifies judicial review if Congress tries to
override a constitutional provision aimed at the courts?
(3) The federal judiciary’s authority to review actions taken by the other branches is
supported by Art. IV, cl. 3, which requires that judges take an oath “to support this
Constitution…”  Members of every branch take this oath, so why is the judiciary specially
charged?
(4) The Supremacy Clause of Art. VI, cl. 2 makes the Constitution the “supreme Law of the
Land.”

Specific case: Marbury brought suit directly in the Court under § 13 of the Judiciary Act of
1789, which purported to give the Court original jurisdiction in cases in which a party
seeks a writ of mandamus against an officer of the United States.
Held: Art. III, § 2 places cases like this within the federal judiciary’s jurisdiction, but not
within the SC’s original jurisdiction, so the SC only has appellate jurisdiction and the law is
unconstitutional.
Held: The courts can order an executive officer to perform a nondiscretionary duty
imposed by law.

Judicial Review of State Conduct

Martin v. Hunter’s Lessee (1816): STORY: The Supreme Court may review state judgments
involving issues of federal law.
• Art. III was a compromise betw. those who wished to create a complete system
of lower federal courts and those who feared that the federal judiciary would
undermine existing state jud. systems.
• Since the Constitution leaves to Congress to create lower federal courts and
Congress might not do that, the Framers must have envisioned Supreme Court
appellate juris. over state courts.
• The uniformity of federal law is important:
o “State attachments, state prejudices, state jealousies, and state interests”
might cause state judges to shirk their duty under the Supremacy Clause.
o Different judges might also just see things differently, so need SC
appellate review for uniformity.

Federal Supremacy

Cooper v. Aaron (1958): The Court emphatically rejected the argument that state officials
who were not parties to a case (Brown) are free to ignore the constitutional interpretations
of the Court in that case.
The Court has two functions:
(1) saying what the law is and
(2) deciding cases (The Court has to do the first to do the second, but should only do
the first in order to do the second).

Marbury said, “[T]he federal judiciary is supreme in the exposition of the law of the
Constitution.”

Pros and Cons of Judicial Review

Popular arguments for and against judicial review:

(1) Counter-Majoritarian Role

The Court acts as a brake upon the politically accountable branches:
 Pro: Legislatures manifest the will of the majority, which may be intolerant of
politically and socially unpopular minorities.
Con: Judicial review is carried out by unelected & politically unaccountable judges
and is a repudiation of the fundamental principle of a representative democracy.

(2) Avoiding the Counter-Majoritarian Problem

Maybe judicial review is not really antidemocratic:
• Judicial review merely implements the majority will of earlier generations
regarding fundamental limits on government.
• Judicial review is really pro-democratic to the extent that it is used to eliminate
barriers to democratic participation

(3) Stability
Pragmatic argument that unless some branch has the effective last word on constitutional
interpretation, the Constitution would have no settled meaning  judicial review + judicial
supremacy.

(4) Entrenched Error

Judicial review makes it very difficult to correct mistaken interpretations of the
Constitution by the Court. Only avenues are persuading the Court to change its mind (often
requires new justices); impeachment & removal of justices; or constitutional Amendment.

(5) Erosion of Const. Responsibility by the Political Branches

Frequent reliance on judicial review saps the will of the political branches to consider
constitutional issues seriously

Methods of Constitutional Interpretation

Calder v. Bull (1798)

Noninterpretivisits: Courts are not limited to constitutional text, but may import wholly
extraconstitutional norms as a source of constitutional decision.

Interpretivitists: The only legitimate form of judicial review is interpretation of the

written text of the Constitution. Can’t just declare something to be against natural law

(1) Textual

It makes sense to start with the text, but it may be impossible for us to know
authoritatively the meaning of any text.

District of Columbia v. Heller (2008)

Text of the Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
 Constitutional Construction:
The prefatory clause “A well regulated Militia, being necessary to the security of a free
State” merely announces a purpose. It does not limit or expand the scope of the operative
clause “the right of the people to keep and bear Arms, shall not be infringed.” The
operative clause’s text and history demonstrate that it connotes an individual right to
keep and bear arms.

Dissent (Stevens): Gives rise to a judiciary that plays an active role in policy decisions, no
compelling evidence

Dissent (Breyer): Protection provided is not absolute, need to put it in a modern context

(2) Historical
(a) Originalism:
(i) Determining the original intent of the drafters; and
(ii) Establishing the original meaning of the text.
(b) “Vectors” of History: The Constitution is a living document, not “a stagnant, archaic,
hidebound document steeped in the prejudices and superstitions of a time long past.”

(3) Structural

Involves “claims that a particular principle or practical result is implicit in the structures of
government and the relationships that are created by the Constitution among citizens and
governments.”
Particularly common when the underlying issue is federalism or separation of powers

McCulloch v. Maryland (1819)

MARSHALL (for the court)

Can the federal government establish a bank (i.e., a corporation)? Yes!
• The politically elected Congress passed this law, so we owe it some deference 
establishing std of review.
• The federal government is of the people, not the states.
• The Constitution just marks the “great outlines.” There is nothing in the constitution
that excludes incidental or implied powers.

Necessary & Proper Clause.

“Let the end be legitimate, let it be within the scope of the constitution, and all means which
are appropriate, which are plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are constitutional.”

(4) Doctrinal

Asserts principles derived from precedent and sometimes judicial or academic

commentary on precedent (e.g., stare decisis).
 (5) Prudential

Boils down to advancing particular doctrines according to the practical wisdom of using the
courts in a particular way.

(6) Cultural

Rooted in widely shared cultural norms. Non-textual sources such as moral concepts of
justice, theories of human autonomy, and cultural assumptions about fairness

Tiers of Judicial Review

(1) Minimal Scrutiny

Courts begin with the presumption that statutes and other government actions are valid.
Unless there is some reason to doubt that presumption, the challenger has the burden of
proving that the law, regulation, or executive act is not rationally related to a legitimate
government function.
(2) Intermediate Scrutiny

Applies when the government action comes with some taint of presumptive invalidity but
not quite enough to invoke strict scrutiny (e.g., classification based on sex). The defender of
the government action has the burden of proving that the actual purpose of the statute of
action is important and that the statute or action is substantially related to the
accomplishment of that actual purpose. This standard is inherently subjective.

(3) Strict Scrutiny

Governmental actions that appear on their face to be within a specific prohibition of the
Constitution (e.g., classification by race) are presumptively invalid. The defender of the
government action has the burden of providing that the law or executive act is necessary to
accomplish a compelling government objective. This is an extremely difficult standard to
meet.

Limitations on Judicial Review

Direct Political Limitations

Amendment
Proposal (two basic modes in Article V):
(1) A two-thirds vote of each House of Congress; or
(2) Constitutional convention called by Congress upon the application of two-thirds of the
states (this has never happened).
Ratification (by three-fourths of either (Congress chooses)):
(1) The state legislatures (all but one time); or
(2) State ratification conventions (just 21st amend.).

Appointment
Presidents frequently try to influence the Court’s constitutional decisions by their power to
appoint justices, but problematic:
(1) Requires senatorial confirmation;
(2) Justices serve well beyond the time for resolution of an immediate issue, and
their views on issues that are not even on the constitutional horizon when they are
appointed cannot easily be known in advance;
(3) Sometimes justices change their views once they’re on the bench;
(4) Presidents make mistakes; and
(5) It takes a lot of vacancies to alter the Court’s direction dramatically.

Impeachment
Article II, § 4: “all Civil Officers of the United States shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.” It is unclear what constitutes a high crime or misdemeanor.

Article I, § 2 vests the House of Representatives with “the sole Power of Impeachment.”

Article I, § 3 gives the Senate the “sole Power to try all Impeachments” and stipulates that
conviction and removal from office occurs if two-thirds of the senators present and voting
concur in the House’s articles of impeachment.

Control of Inferior Federal Courts

Article III vests federal judicial power in one Supreme Court and “such inferior Courts as
the Congress may from time to time ordain and establish.”

The Mandatory Federal Jurisdiction Position

From STORY’s dicta in Martin v. Hunter’s Lessee:
• The Constitution says “shall” and “shall be vested” elsewhere and it is always a
self-executing mandate.
• Congress must vest the whole judicial power if it must vest any of it.
• The Constitution says that judicial power extends to certain classes of cases, but
only grants the Supreme Court original jurisdiction to hear some of those classes
of cases, so if Congress does not create inferior federal courts it has failed the
Constitutional mandate to fully vest the judicial power.

The Discretionary Position

Sheldon v. Sill (1850): Congress may curtail the jurisdiction of the inferior federal courts.

Stuart v. Laird (1803): Congress can eliminate inferior federal courts.

The Irrelevance of Motive
Congress may withdraw jurisdiction, so long as the withdrawal is not in substance a
command to decide in a prescribed way.

Control of Supreme Court Appellate Jurisdiction

The scope of federal judicial power is limited to the heads of jurisdiction described in § 2,
as modified by the Eleventh Amendment (e.g., federal question jurisdiction, diversity
jurisdiction), and the jurisdiction of the Supreme Court is divided:

(1) Original jurisdiction: limited to cases between states and those involving
diplomats; and
(2) Appellate jurisdiction: all other cases within Article III “with such Exceptions,
and under such Regulations as the Congress shall make.”

Exceptions to & Regulations of Supreme Court Appellate Jurisdiction

Ex parte McCardle (1869): Congress has the authority to withdraw appellate jurisdiction
from the Supreme Court at any time. An express grant of appellate jurisdiction in a
comprehensive statute on the subject excepts all other appellate jurisdiction implicitly.

“External” Limits

Limits that are general constitutional limits on government action—such as the due
process or equal protection guarantees. The basis for denying jurisdiction, while consistent
with Article III, offends other constitutional provisions (e.g., a statute that eliminates all
Supreme Court jurisdiction of cases in which the petitioner is a woman or is descended
from African ancestors).
“Internal” Limits

Henry Hart: The congressional “exceptions and regulations” power cannot legitimately be
used to impair the Court’s “essential” function.
Leonard Ratner: The Court’s essential function is to (1) maintain the supremacy of federal
law and (2) resolve conflicts as to federal law.
Herbert Wechsler: “the plan of the Constitution for the courts . . . was quite simply that the
Congress would decide from time to time how far the federal [courts] should be used
within the limits of the federal judicial power.”

Control of All Federal Courts

Combination of:
(1) Power to make “exceptions and regulations” to the Supreme Court’s appellate
jurisdiction; and
(2) Power to establish inferior federal courts.

Can Congress eliminate nearly all federal jurisdiction?

STORY: There must be the possibility that some Article III court can entertain a federal
claim, whether originally or on appeal.
Martin Redish: Article III’s structural guarantee of judicial independence implies nothing
about the scope of the jurisdiction of the federal courts.

Unconstitutional Rules of Decision

Congress may NOT withdraw jurisdiction from federal courts in a manner that compels
decision of a case in a prescribed way.

United States v. Klein (1872): Congress passed a statute saying that upon a particular
factual finding (presidential amnesty after the Civil War), a federal court loses its
jurisdiction and must dismiss the case immediately. This was not an exception to federal
jurisdiction, but an unconstitutional rule of decision compelling a specific decision.
Structural arguments:
(1) Infringes judicial power to decide cases within jurisdiction; and
(2) Infringes executive power by impairing the effect of a presidential pardon.

Justiciability

Article III limits the jurisdiction of federal courts to “cases” or “controversies.” It is

important to separation of powers that federal courts not answer “disembodied policy”
questions.
Advisory Opinions

Federal courts may not render advisory opinions.

Rationales:
(1) Separation of powers: Judicial decisions must be final and not subject to alteration by
the other branches.
(2) Policy Limitations: There is danger in deciding abstract questions of law because of
the lack of zealous advocacy on both sides and the possibility of overbroad decision
produced by the absence of a real-world application of the issue that narrows the conflict.

Declaratory Judgments

Actions for declaratory relief, in which courts are asked to decide or declare the legal
consequences of the litigants’ conduct, are not advisory opinions if the controversy is
sufficiently concrete to make the court’s judgment a final disposition of the matter.

Nashville C. & St. L. Ry. v. Wallace (1933): The Court concluded that is was permissible to
review a state court declaratory judgment concerning the constitutional validity of a state
tax because the judgment rendered by the state court was not advisory: the controversy
was real, not hypothetical, and presented sharply adverse positions, and the court’s
judgment was dispositive
 Standing

The standing requirement ensures that the federal courts are open only to litigants with
real grievances that courts can resolve.
• Courts may not hear a case unless the π has “standing” to bring the claim.
• A person has standing if he or she has a sufficient stake in the controversy that
he or she ought to be recognized as an appropriate party to assert the claim.

(1) Separation of powers (courts should not be resolving political issues and addressing
unparticularized grievances); and
(2) Article III “case” or “controversy” requirement.

The Constitutional Core of Standing

Article III requires π to show:

(1) Personal, actual, or imminent injury in fact;
(2) Caused by or fairly traceable to the ∆’s action complained of;
(3) Which is redressable by the courts.

Lujan v. Defenders of Wildlife (1992)

Lack of Imminent Injury: Vague hope to observe endangered species in the future that
might be threatened in the meantime is not enough.
Lack of Redressability: Agencies directly involved are not parties to the case, so judicial
action would have to go through an intermediary who may not be able to bind the parties
causing the alleged injury.
Procedural Injury: The law allows anyone to file suit against a violator of the statute, but
it must still be an Article III case. A π raising only a generally available grievance does not
state an Article III case.
Injury in Fact

Los Angeles v. Lyons (1983): A motorist who suffered physical injury from an abusive
“choke-hold” applied by police officers was held to lack standing to seek an injunction
against choke-holds because there was no proof that he would again be choked without
lawful reason.

Allen v. Wright (1984): Parents of black children attending Memphis public schools
claiming that they were injured by the racial denigration inherent in the Internal Revenue
Service’s alleged practice of failing to deny tax-exempt status to racially discriminatory
schools lacked standing because injury was only “abstract stigmatic injury.”

Susan B. Anthony List v. Driehaus (2014): The injury in fact requirement was held to be
satisfied by a pre-enforcement challenge to an Ohio law that criminalizes false statements
made in political campaigns. Because the petitioner was a regular commentator on
campaigns and Ohio repeatedly instituted proceedings against speakers who alleged their
speech was true, the threat of future prosecutions was both credible and sufficiently
imminent.
State Standing

Massachusetts v. Environmental Protection Agency (2007)

As parens patriae, Massachusetts argued that it was entitled to assert its citizens’ claims
that the EPA had failed to conform to its statutory obligations  On principles of
federalism, states are “entitled to special solicitude in our standing analysis.” Problematic
under Mellon, which says that states can sue other states as parens patriae, but cannot sue
the federal government.
As proprietor, Massachusetts argued that it was injured by threatened loss of its state-
owned land due to rising sea levels attributable to global warming an injury no different
from that suffered by private riparian landowners. So standing is present.

Prudential Standing Rules

Court imposed requirements outside of the Constitution itself.

Plaintiff’s injury must be
a) within the zone of interests protected or regulated by the statutory or constitutional
provision at issue
b) not be too generalized, that is, be particular and not be shared by all citizens

The “Zone of Interests” Requirement

Allen v. Wright (1984): A “plaintiff’s complaint [must] fall within the zone of interests
protected by the law invoked.” A plaintiff lacks standing unless the plaintiff’s injury is of a
type that the law invoked was meant to protect against.

Air Courier Conference v. APWU (1991): Postal employees lacked standing to challenge a
Postal Service decision interpreting a federal statute, which threatened postal jobs, because
there was nothing in the language, history, or structure of the statute indicating “that
Congress intended to protect [Postal Service] jobs.”

Third-Party Standing

Generally, a person must assert his or her own rights, not the someone else’s rights.
Justified by:
(1) Restraint—the desire to avoid unnecessary or premature decisions;
(2) Respect—the desire to respect the apparent decision of third parties not to
assert their own rights; and
(3) Autonomy—the belief that third parties can best represent themselves.

For third-party standing, must be:

(1) A substantial or special relationship between the claimant and the third party;
 (2) Proof of the impossibility or impracticality of the third party asserting his or her
own interest; and
(3) A risk that the rights of the third party will be diluted or lost unless the claimant
is allowed to assert the third party’s claim

Organizational Standing

When an organization asserts the interests of people who they claim to represent it must
establish that
(1) The members would have standing to sue independently;
(2) The interests asserted are germane to the association’s purpose; and
(3) Neither the claim asserted nor the relief requested requires the members’
participation in the suit.
Ripeness

To be ripe for decision, a plaintiff must (1) have already suffered harm; (2) be faced with a
“specific present objective harm”; or (3) be under a “threat of specific future harm.”

Mootness

A case is rendered moot if events occur after the case has begun that eliminate the
plaintiff’s stake in the controversy.

DeFunis v. Odegaard (1974): DeFunis brought suit claiming that he was denied admission
to the University of Washington Law School on the basis of his race. The trial court ordered
his admission. By the time the suit got to the Supreme Court, he was in his final quarter of
study, and the school agreed that he would be allowed to finish either way.

Southern Pacific Terminal Co. v. ICC (1911): Important exception to mootness principles
when an issue is capable of repetition yet evades review, requires showing that
(1) the life of the controversy is too short to be fully litigated prior to its termination; and
(2) that there is a reasonable expectation that the plaintiff will again be subjected to the
same problem. See also Roe v. Wade (1975) (abortion prohibitions).

Political Questions

The political question doctrine prevents courts from deciding issues that are not
susceptible to judicial resolution. Roots in Marbury v. Madison

Dimensions of the doctrine:

(1) Courts will not decide cases where there is “a textually demonstrable
constitutional commitment of the issue to a coordinate political department”;
(2) “A lack of judicially discoverable and manageable standards for resolving
an issue” makes the issue a nonjusticiable political question; and
 (3) A related set of prudential principles from Baker v. Carr that counsel against
judicial decision of issues where judicial intervention would create institutional
problems of great magnitude
Gerrymandering

Vieth v. Jubelirer (2004): A plurality of four justices would have overturned Bandemer and
declared the question of the validity of political gerrymanders to be a nonjusticiable
political question:
(1) The Bandemer standard is neither discernible nor manageable.
(2) The first prong of a proposed “predominant intent” and specific effect test would be
nearly impossible to prove, and the second prong would be neither discernible nor
manageable.

Baker v. Carr (1962)

Tennessee voters alleged that by means of a 1901 statute apportioning the members of the
General Assembly among the State's 95 counties, they were denied equal protection under
the Fourteenth Amendment by virtue of the debasement of their votes.

BRENNAN (for the court)

• Guaranty Clauses cases are historically nonjusticiable
• Court takes a case-by-case look at each question presented “in terms of the history
of its management by the political branches, of its susceptibility to judicial handling
in the light of its nature and posture in the specific case, and of the possible
consequences of judicial action.”
• This case was justiciable

Prominent elements:
(1) A textually demonstrable constitutional commitment of the issue to a
coordinate political branch; or
(2) A lack of judicially discoverable and manageable standards for resolving it; or
(3) The impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or
(4) The impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches; or
(5) An unusual need for unquestioning adherence to a political decision already made;
or
(6) The potentiality of embarrassment from multifarious pronouncements by various
departments on one question.

CLARK (concurring)
Representation reinforcement: “the majority of the people of Tennessee have no
‘practical opportunities for exerting their political weight at the polls’ to correct the exist
‘invidious discrimination.’”
 Nonjusticiability can bow to overwhelming prudential concerns.
FRANKFURTER w/ HARLAN (dissenting)
There are simply some categories of cases where “there exists no standard ascertainable by
settled judicial experience or process by reference to which a political decision affecting the
question at issue between the parties can be judged.”

Powell v. McCormack (1969): WARREN: The Court declined to find a nonjusticiable political
question in a challenge to the validity of the refusal by the House of Representatives to seat
Representative Adam Clayton Powell, Jr., after a House committee found corruption, saying,
“[The] Constitution leaves the House without authority to exclude any person, duly elected
by his constituents, who meets all the requirements for membership expressly prescribed
in [Art. I, § 2, cl. 2 of] the Constitution. [Art. I, § 5] is at most a ‘textually demonstrable
commitment’ to Congress to judge only the qualifications expressly set forth in the
Constitution.”
Nixon v. United States (1993)

Former Chief Judge of United States District Court for the Southern District of Mississippi
was impeached in proceeding during which Senate used committee to take testimony and
gather evidence. The former judge sought declaratory judgment that Senate's failure to give
full evidentiary hearing before entire Senate violated its constitutional duty to “try” all
impeachments.

REHNQUIST (for the court)

(1) The language and structure of Art. I, § 3, cl. 6, demonstrate a textual commitment of
impeachment to the Senate. The commonsense and dictionary meanings of the word
“sole” indicate that this authority is reposed in the Senate alone.
(2) The Framers labored over the question of where the impeachment power should lie.
Significantly, in at least two considered scenarios the power was placed with the
Federal Judiciary. Despite these proposals, the Convention ultimately decided that
the Senate would have “the sole Power to try all Impeachments.” Art. I, § 3, cl. 6.
(3) Judicial review would be inconsistent with the Framers' insistence that our system
be one of checks and balances. In our constitutional system, impeachment was
designed to be the only check on the Judicial Branch by the Legislature.

WHITE w/ BLACKMUN (concurring in the judgment)

(1) The issue in the political question doctrine is not whether the constitutional text
commits exclusive responsibility for a particular governmental function to one of
the political branches. . . . Rather, the issue is whether the Constitution has given one
of the political branches final responsibility for interpreting the scope and nature of
such a power.
(2) The majority's conclusion that “try” is incapable of meaningful judicial construction
is not without irony. One might think that if any class of concepts would fall within
the definitional abilities of the Judiciary, it would be that class having to do with
procedural justice.

SOUTER (concurring in the judgment)

(1) The political question doctrine is about separation of powers.
 (2) Learned Hand said it depends on “how importunately the occasion demands
answer.” This occasion does not demand an answer.

Vieth v Jubelirer (2004)

Court decided not to intervene in this case because no appropriate judicial solution could
be found. Justice Antonin Scalia, for a four-member plurality, wrote that the Court should
declare all claims related to political (but not racial) gerrymandering nonjusticiable,
meaning that courts could not hear them. Because no court had been able to find an
appropriate remedy to political gerrymandering claims in the 18 years since the Court
decided Davis v. Bandemer, 478 U.S. 109,

Justice Anthony Kennedy, however, wrote in his concurring opinion (which provided the
deciding fifth vote for the judgment) that the Court should rule narrowly in this case that
no appropriate judicial solution could be found, but not give up on finding one eventually.

Bush v Gore (2000)

Noting that the Equal Protection clause guarantees individuals that their ballots cannot be
devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that
the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if
the recount was fair in theory, it was unfair in practice. The record suggested that different
standards were applied from ballot to ballot, precinct to precinct, and county to county.
Because of those and other procedural difficulties, the court held, 5 to 4, that no
constitutional recount could be fashioned in the time remaining (which was short because
the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC
Section 5).

Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount
scheme was also unconstitutional because the Florida Supreme Court's decision made new
election law, which only the state legislature may do. Breyer and Souter (writing
separately) agreed with the per curiam holding that the Florida Court's recount scheme
violated the Equal Protection Clause, but they dissented with respect to the remedy,
believing that a constitutional recount could be fashioned. Time is insubstantial when
constitutional rights are at stake. Ginsburg and Stevens (writing separately) argued that for
reasons of federalism, the Florida Supreme Court's decision ought to be respected.
Moreover, the Florida decision was fundamentally right; the Constitution requires that
every vote be counted.

Federalism

National government has only those powers given to it in the Constitution.

State governments possess inherent power to act for the perceived good of the state’s
citizenry so long as those actions comply with
 (1) The state’s constitution;
(2) Valid federal statutory law; and
(3) The federal Constitution.

Federalism checklist

1. End means (McCulloch p 168)

2. Enumerated v not enumerated (Gibbons)
3. Value of law at national level (uniformity)
4. Value of law at state and local level (decentralization)
5. Leaving decision to congress (political safeguard of federalism) vs. judicial
enforcement of federalism (pg. 174-178)

Allocation of Governmental Powers

Can take several forms:

(1) Both the national and state governments can be prohibited from acting
(e.g., no government may establish a state religion);
(2) The national government may be given exclusive power over a subject
(e.g., only the federal government may enter into treaties with foreign nations or coin
money);
(3) The state governments may be given exclusive power over a subject, but it may be difficult
to identify any subjects over which the Constitution has given the states exclusive authority;
and
(4) The national and state governments may enjoy concurrent power over a subject (e.g., some
aspects of interstate commerce).  The Supremacy Clause says that federal law trumps
conflicting state law.

Who Should Decide Federalism Issues?

Two views:
(1) Like other issues of constitutional law, this should be decided by the courts and, ultimately,
the Supreme Court;
(2) Should be left to Congress, the President, and, ultimately, the voters.

THE FEDERALIST No. 46 (Madison): The authority on federalism issues resides in the people
alone. The people should be able to put their confidence where they want.

Purpose/Value of Federalism

(1) The Liberty of Individual Choice

Policy choices made at the national level apply uniformly throughout the nation. But tastes
may vary markedly from region to region. Liberty of individual choice may be frustrated by
a national rule.

(2) Experimental Laboratories

BRANDEIS: “It is one of the happy incidents of the federal system that a single courageous
State may, it is citizens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.”

(3) Thwarting Tyranny

Preserving substantial government authority in the states may frustrate the ambitions of a
well-organized minority interest bent on authoritarian dominance of the nation through
control of the federal government.

(4) Controlling Negative Externalities

Even if it is generally preferable to defer to local decisions, there are some arguments in
favor of centralized decision-making. Some decisions by states may seek to capture benefits
locally by imposing their costs externally. Issues arise when a state imposes costs that are
external to its polity, and the outsiders upon whom those costs fall have no ability to
influence the imposition of the cost.

(5) Fidelity to the Constitution’s Design

One reason to insist upon some measure of state legislative autonomy is that the
Constitution presupposes that the federal government’s powers are defined and finite and
that the residuum of government power is vested in the states.

(6) The Practical Value of Uniformity

In an economy that is enormous, globally important, and tremendously dependent upon
interrelated activities throughout the country, to say nothing of the world, there is some
practical value to establishing uniform rules. In business, if there must be regulation, it is
more efficient for it to be uniform from state-to-state.

Interstate Commerce

Federal Power
Art. I, § 8, cl. 3 confers upon Congress power to regulate three different types of commerce:
(1) Commerce with foreign Nations;
(2) Commerce among the several States; and
(3) Commerce with the Indian Tribes.

Commerce with Foreign Nations

Veazie v. Moor (1852): The scope of foreign commerce is very broad, including
“transactions which either immediately, or at some stage of their progress, must be
extraterritorial.”

Commerce with the Indian Tribes

The power to regulate commerce with Indian tribes has been substantially augmented by
judicial decisions expanding other sources of federal authority over Indians.
United States v. Kagama (1886): The federal government has an inherent and implied
power to govern Indian affairs.

Interstate Commerce
Two questions:
(1) How deferential are the courts to congressional judgments of the scope of the
interstate commerce power?
(2) What standard of review do the courts employ in reviewing congressional
action?

What is (Interstate) Commerce?

Gibbons v. Ogden (1824)
Dispute between two steamboat operators: one with the exclusive right to operate
steamboats in New York waters, the other with a federal license to operate a steamboat in
the “coasting trade.”

MARSHALL (for the court)

• The power of congress to regulate commerce is the power to prescribe the rule
by which commerce is to be governed.
• Commerce “among” the states cannot stop at the external boundary line of each
state but may be introduced into the interior, the word “among” meaning
intermingled with.
• The power to regulate commerce extends to every species of commercial
intercourse between the United States and foreign nations and among the
several states. But it does not comprehend commerce:
• That is entirely internal, which is carried on between individuals in a
state, or between different parts of the same state; and
• Which does not extend to or affect other states.
• The word “commerce” within the commerce clause is not restricted to buying
and selling or interchanging commodities but includes intercourse as well as
traffic.
Categorization

United States v. E.C. Knight Co. (1895): The Court ruled that the Sherman Act’s prohibition
of restraints on “trade or commerce among the several States” did not apply to a
manufacturing monopoly because although “the power to control the manufacture of a
given thing involves . . . the control of its disposition, . . . this is a secondary and not the
primary [effect]; and although the exercise of that power may result in bringing the
operation of commerce into play, it does not control it, and affects it only incidentally and
indirectly. Commerce succeeds to manufacture, and is not a part of it.”

Standard Oil Co. of New Jersey v. United States (1911): The Court found E.C. Knight’s
reliance on the distinction between manufacturing and commerce “unsound,” and focused
instead on the “directness” of the connection between the activity regulated by
Congress and interstate commerce.
 Direct & Indirect Effects

Along with the categorization approach, the Court focused on whether the activity
regulated, if not part of interstate commerce, “directly affected” insterstate commerce.

Carter v. Carter Coal Co. (1936): The Court struck down federal labor laws for coal miners
because “[The] effect of the labor provisions of the [Act] primarily falls upon production
and not upon commerce. [Production] is a purely local activity,” so the effect upon
interstate commerce is too indirect.

The Protective Principle

Intrastate commerce can be regulated when necessary to protect the instrumentalities of

interstate commerce.

Shreveport Rate Case (1914): Texas was charging less per mile for intrastate shipments
than for interstate shipments. The Court upheld an Interstate Commerce Commission (ICC)
order requiring the affected railroads to charge the same rate because “[Congressional]
authority, extending to these interstate carriers as instruments of interstate commerce,
necessarily embraces the right to control their operations in all matters having such a close
and substantial relation to interstate traffic that the control is essential or appropriate to
the security of that traffic, to the efficiency of the interstate service, and to the maintenance
of conditions under which interstate commerce may be conducted upon fair terms and
without molestation or hinderance.”

Southern Railway Co. v. United States (1911): The Court upheld the Federal Safety
Appliance Act as applied to railcars used exclusively for intrastate commerce, which
required all rail cars “used on any railroad engaged in interstate commerce” to be equipped
with certain safety features, because the railway employing the rail cars was “a highway of
interstate commerce.”
Steams off Commerce

Swift & Co. v. United States (1905): The Court upheld the application of the Sherman Act’s
price-fixing provisions to local meat dealers because “[w]hen cattle are sent for sale from
[one] State [to another], with only the interruption necessary to find a purchaser at the
stockyard, and when this is a typical, constantly recurring course, the current thus existing
is a current of commerce among the States, and the purchase of the cattle is a part and
incident of such commerce.”

Stafford v. Wallace (1922): The Court upheld regulations governing sales transactions in
stockyards after livestock had arrived in interstate shipments and before they left in
interstate shipments because the “stockyards are but a throat through which the current
[of interstate commerce] flows.”

Regulating Interstate Movement

Champion v. Ames (The Lottery Case) (1903)
Federal law prohibited the interstate shipment of lottery tickets.

HARLAN (for the court)

(1) Lottery tickets are articles of commerce; and
(2) The power to regulate interstate commerce includes the power to prohibit
interstate commerce.
“Congress may arbitrarily exclude from commerce among the states any article,
commodity, or thing, of whatever kind or nature, or however useful or valuable,
which it may choose, no matter with what motive, to declare shall not be carried
from one state to another.”

Hipolite Egg Co. v. United States (1911): The Court upheld seizure of a quantity of eggs
transported across state lines in violation of the Pure Food and Drugs Act of 1906, saying,
“[A]rticles which are outlaws of commerce may be seized wherever found. [This] is
certainly appropriate to the right to bar them from interstate commerce, and completes its
purpose, which is not to prevent merely the physical movement of adulterated articles, but
. . . to prevent trade in them between the Sates by denying to them the facilities of interstate
commerce.”

Hoke v. United States (1913): The Court upheld the Mann Act, which prohibited the
interstate transportation of women in interstate commerce for immoral purposes, as
applied to commercial prostitution.

Hammer v. Dagenhart (1918)

The Court voided the Child Labor Act of 1916, which banned the interstate shipment of
goods produced by child laborers.

DAY (for the court)

• The thing intended to be accomplished by this statute is the denial of the facilities of interstate
commerce to those manufacturers in the states who employ children within the prohibited
ages. The act . . . aims to standardize the ages at which children may be employed in mining
and manufacturing within the states. The goods shipped are of themselves harmless. The
mere fact that they were intended for interstate commerce transportation does not make their
production subject to federal control under the commerce power.
• There is no power vested in Congress to require the states to exercise their police power so as
to prevent possible unfair competition. Many causes may co-operate to give one state, by
reason of local laws or conditions, an economic advantage over others. The commerce clause
was not intended to give to Congress a general authority to equalize such conditions.
• In interpreting the Constitution it must never be forgotten that the nation is made up of states
to which are entrusted the powers of local government. And to them and to the people the
powers not expressly delegated to the national government are reserved.

HOLMES, MCKENNA, BRANDEIS & CLARKE (dissenting)

• The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign
commerce. Congress is given power to regulate such commerce in unqualified terms. The
power to regulate includes the power to prohibit.
 • The Act does not meddle with anything belonging to the States. They may regulate their
internal affairs and their domestic commerce as they like. But when they seek to send their
products across the State line they are no longer within their rights.

Labor Standards & Pensions

United States v. Darby (1941): The Court overturned Dagenhart and upheld the Fair Labor
Standards Act, which specified maximum hours and minimum wages for workers engaged
in producing goods for interstate commerce and prohibited the interstate shipment of
goods produced other than in conformity with the FLSA’s wage and hour provisions.

STONE (for the court)

• The motive and purpose of the present regulation are plainly to make effective the
Congressional conception of public policy that interstate commerce should not be made the
instrument of competition in the distribution of goods produced under substandard labor
conditions, which competition is injurious to the commerce and to the states from and to
which the commerce flows. The motive and purpose of a regulation of interstate commerce
are matters for the legislative judgment upon the exercise of which the Constitution places no
restriction and over which the courts are given no control.
• Congress may, by appropriate legislation, regulate intrastate activities where they have a
substantial effect on interstate commerce.
• Removing these goods from interstate commerce is a permitted end, so Congress can choose
means reasonably adapted to that end, even though they involve control of intrastate activities.
• Even without focusing on interstate shipment, Congress can regulate to address unfair
competition between the states, which impacts interstate commerce.

Railroad Retirement Board v. Alton (1935): The Court voided a federal law creating a
pension program for railroad workers as “not in purpose or effect a regulation of interstate
commerce,” but “really and essentially related solely to the social welfare of the worker,
and therefore remote from any regulation of commerce.”

A.L.A. Schechter Poultry Corp. v. United States (1935): The Court struck down a federal law
as applied to a whole sale poultry dealer fixing minimum wages and prices and maximum
hours, prohibiting some business practices, and ensuring collective bargaining because it
lacked a sufficiently direct connection to interstate commerce.

NLRB v. Jones & Laughlin Steel Corp. (1937)

The Court upheld the National Labor Relations Act, which defined the discharge of
employees for union activities as an “unfair labor practice” and prohibited unfair labor
practices “affecting [interstate] commerce.”

HUGHES (for the court)

• Whether particular action affects commerce in such a close and intimate fashion as to be subject
to federal control is left by the statute to be determined as individual cases arise.
• The fundamental principle is that the power to regulate commerce is the power to enact ‘all
appropriate legislation’ for its ‘protection or advancement’; to adopt measures ‘to promote its
 growth and insure its safety’; ‘to foster, protect, control, and restrain.’ That power is plenary and
may be exerted to protect interstate commerce ‘no matter what the source of the dangers which
threaten it.’
• Although activities may be intrastate in character when separately considered, if they have such a
close and substantial relation to interstate commerce that their control is essential or
appropriate to protect that commerce from burdens and obstructions, Congress cannot be
denied the power to exercise that control.

MCREYNOLDS, VAN DEVANTER, SUTHERLAND & BUTLER (dissenting)

The immediate effect of discharge in violation of the NLRA may be to create discontent
among all those employed and a strike may follow, which, in turn, may result in reducing
production, which ultimately may reduce the volume of goods moving in interstate
commerce. By this chain of indirect and progressively remote events we finally reach the
evil with which it is said the legislation under consideration undertakes to deal.

Aggregation
Wickard v. Filburn (1942)

The Court sustained the validity of the Agricultural Adjustment Act’s penalty provisions as
applied to Filburn, an Ohio farmer, who was fined $117 for growing excess wheat. The
Court ruled that the penalty was valid by creating the “aggregation” or “cumulative effects”
principle.

JACKSON (for the court)

• That [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough
to remove him from the scope of federal regulation where, as here, his contribution, taken
together with that of many others similarly situated, is far from trivial.
• One of the primary purposes of the Act in question was to increase the market price of wheat
and to that end to limit the volume thereof that could affect the market. It can hardly be denied
that a factor of such volume and variability as home-consumed wheat would have a
substantial influence on price and market conditions.
• This may arise because being in marketable condition such wheat overhangs the market and if
induced by rising prices tends to flow into the market and check price increases.
• But if we assume that it is never marketed, it supplies a need of the man who grew it which
would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense
competes with wheat in commerce.

Perez v. United States (1971): The Court upheld a federal law prohibiting extortionate
credit transactions, saying that even where the transactions are purely intrastate in
character, they nevertheless directly affect interstate and foreign commerce. Congress may
use its commerce power to regulate a class of activities without proof that the particular
intrastate activity has an effect on interstate commerce.
• So long as the regulated activity (considered as a class and taken as a whole) has a substantial
effect on interstate commerce, and the affected person is a member of the class that is regulated,
the regulation is a valid use of the interstate commerce power.

Maryland v. Wirtz (1968): “Neither here nor in Wickard had the Court declared that
Congress may use a relatively trivial impact on commerce as an excuse for broad general
regulation of state or private activities. The Court has said only that where a general
regulatory statute bears a substantial relation to commerce, the de minimis character of
individual instances arising under that statute is of no consequence.”

Civil Rights & the Commerce Power

Heart of Atlanta Motel v. United States (1964): The Court upheld Title II of the Civil Rights
Act, which prohibits racial discrimination by private persons in public accommodations: “In
framing Title II, Congress was also dealing with what it considered a moral problem. But
that fact does not detract from the overwhelming evidence of the disruptive effect that
racial discrimination has had on commercial intercourse. It was this burden which
empowered Congress to enact appropriate legislation, and, given this basis for the exercise
of its power, Congress was not restricted by the fact that the particular obstruction to
interstate commerce with which it was dealing was also deemed a moral and social wrong.”

United States v. Lopez (1995)

Lopez, then a 12th-grade student, carried a concealed handgun into his high school. He was
charged with violating the Gun-Free School Zones Act of 1990, which forbids “any
individual knowingly to possess a firearm at a place that [he] knows ... is a school zone.”

REHNQUIST (for the court)

• The Act exceeds Congress' Commerce Clause authority.
• The possession of a gun in a local school zone is in no sense an economic activity that
might, through repetition elsewhere, have such a substantial effect on interstate commerce. The
Act is a criminal statute that by its terms has nothing to do with “commerce” or any sort of
economic enterprise, however broadly those terms are defined. Nor is it an essential part of a
larger regulation of economic activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated.
• The Act contains no jurisdictional element that would ensure, through case-by-case inquiry, that
the firearms possession in question has the requisite nexus with interstate commerce. To uphold
the Government's contention that the Act is justified because firearms possession in a local
school zone does indeed substantially affect interstate commerce would require this Court to
pile inference upon inference in a manner that would bid fair to convert congressional
Commerce Clause authority to a general police power of the sort held only by the States.

KENNEDY w/ O’CONNOR (concurring)

The statute before us upsets the federal balance to a degree that renders it an
unconstitutional assertion of the commerce power, and our intervention is required.
Neither the actors nor their conduct has a commercial character, and neither the purposes
nor the design of the statute has an evident commercial nexus.

SOUTER (dissenting)
In reviewing congressional legislation under the Commerce Clause, we defer to
congressional judgment that its regulation addresses a subject substantially affecting
interstate commerce “if there is any rational basis for such a finding.” The practice of
deferring to rationally based legislative judgments “is a paradigm of judicial restraint.” In
judicial review under the Commerce Clause, it reflects our respect for the institutional
competence of the Congress on a subject expressly assigned to it by the Constitution and
our appreciation of the legitimacy that comes from Congress's political accountability in
dealing with matters open to a wide range of possible choices.

BREYER w/ STEVENS, SOUTER & GINSBURG (dissenting)

The specific question before us is not whether the “regulated activity sufficiently affected
interstate commerce,” but, rather, whether Congress could have had “a rational basis” for
so concluding. Reports, hearings, and other readily available literature make clear that the
problem of guns in and around schools is widespread and extremely serious. Congress
obviously could have thought that guns and learning are mutually exclusive. Congress
could therefore have found a substantial educational problem—teachers unable to teach,
students unable to learn—and concluded that guns near schools contribute substantially to
the size and scope of that problem. Having found that guns in schools significantly
undermine the quality of education in our Nation's classrooms, Congress could also have
found, given the effect of education upon interstate and foreign commerce, that gun-related
violence in and around schools is a commercial, as well as a human, problem.

Activities “Affecting” Interstate Commerce

After Lopez, for Congress to regulate it, an activity must:

(1) Involve a “channel” of interstate commerce; or
(2) Involve an “instrumentality” of interstate commerce; or
(3) Substantially affect interstate commerce.

The Standard of Review

Ordinarily the Court will defer to congressional judgment about the scope of the interstate
commerce if:
(1) Congress could have rationally determined that the regulated activity either
(a) substantially affects interstate commerce, or
(b) is actually a part of interstate commerce (a “channel” or
“instrumentality”);
(2) The congressional determination is rational; and
(3) The chosen means are reasonably adapted to the legitimate end.

Post-Lopez Developments

United States v. Morrison (2000): The Court ruled 5-4 (same voting as Lopez) that the
commerce power did not authorize Congress to enact the civil remedy provision of the
Violence Against Women Act, which created a civil cause of action against “a person who
commits a crime of violence motivated by gender.” The Court did NOT defer to clear
legislative findings that gender-motivated violence substantially affects interstate
commerce by simply asking whether Congress’s determination was rational.

REHNQUIST (for the court)

 Congress cannot regulate noneconomic, criminal conduct based solely on the
conduct's aggregate effect on interstate commerce.

SOUTER (dissenting)
Congress has the power to legislate with regard to activity that, in the aggregate,
has a substantial effect on interstate commerce. The fact of such a substantial
effect is not an issue for the courts in the first instance, but for the Congress.

Interpreting Statutes and the Commerce Clause

Remember BRANDEIS’s rules in Ashwander v. T.V.A.

“Where a statute is susceptible of two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such questions are avoided, our
duty is to adopt the latter.”

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers
(2001): The Court found an Army Corps regulation banning the filling of intrastate
mudflats, sandflats, wetlands, sloughs, prairie potholes, or wet meadows, the use,
degradation, or destruction of which could affect interstate commerce, to exceed the Corps’
statutory authority under the Clean Water Act to control filling of navigable waters, noting
that where an administrative interpretation of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid such problems
unless the construction is plainly contrary to Congress' intent.

Gonzalez v. Raich (2005)

Users and growers of marijuana for personal, medical purposes under California
Compassionate Use Act sought declaration that Controlled Substances Act (CSA) was
unconstitutional as applied to them.

STEVENS (for the court)

• Congress' power to regulate purely local activities that are part of an economic “class of
activities” that have a substantial effect on interstate commerce is firmly established.
• Wickard establishes that Congress can regulate purely intrastate activity that is not itself
“commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of
activity would undercut the regulation of the interstate market in that commodity.
• Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally
and marijuana grown elsewhere, and concerns about diversion into illicit channels, the Court has
no difficulty concluding that Congress had a rational basis for believing that failure to
regulate the intrastate manufacture and possession of marijuana would leave a gaping
hole in the CSA.
• Respondents' heavy reliance on Lopez and Morrison is misplaced:
o Respondents ask the Court to excise individual applications of a concededly valid
comprehensive statutory scheme. In contrast, in both Lopez and Morrison the parties
asserted that a particular statute or provision fell outside Congress' commerce power in
its entirety.
 o Moreover, the Court emphasized that the laws at issue in Lopez and Morrison had
nothing to do with “commerce” or any sort of economic enterprise. In contrast, the
CSA regulates economic activities: the production, distribution, and consumption of
commodities for which there is an established, and lucrative, interstate market.

SCALIA (concurring in the judgment)

In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I
controlled substances, including marijuana. The Commerce Clause unquestionably permits
this.

O’CONNOR w/ REHNQUIST & THOMAS (dissenting)

• Today's decision suggests that the federal regulation of local activity is immune to Commerce
Clause challenge because Congress chose to act with an ambitious, all-encompassing statute,
rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional
debate in this way, i.e., by packaging regulation of local activity in broader schemes, is tantamount
to removing meaningful limits on the Commerce Clause.

THOMAS (dissenting)
• Allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause
would confer on Congress a general “police power” over the Nation.

NFIB v. Sebelius (2012)

In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to
increase the number of Americans covered by health insurance and decrease the cost of
health care. One key provision is the individual mandate, which requires most Americans to
maintain “minimum essential” health insurance coverage.

ROBERTS (for the court)

• The individual mandate is not a valid exercise of Congress's power under the Commerce Clause
and the Necessary and Proper Clause.
• The Constitution grants Congress the power to “regulate Commerce.” (Art. I, § 8, cl. 3) The
power to regulate commerce presupposes the existence of commercial activity to be regulated.
This Court's cases uniformly describe the power as reaching “activity.” The individual mandate,
however, does not regulate existing commercial activity. It instead compels individuals to
become active in commerce by purchasing a product, on the ground that their failure to do so
affects interstate commerce.
• Construing the Commerce Clause to permit Congress to regulate individuals precisely because
they are doing nothing would open a new and potentially vast domain to congressional authority.
Congress already possesses expansive power to regulate what people do. Upholding the
Affordable Care Act under the Commerce Clause would give Congress the same license to
regulate what people do not do. The Framers knew the difference between doing something and
doing nothing. They gave Congress the power to regulate commerce, not to compel it.
• Nor can the individual mandate be sustained under the Necessary and Proper Clause as an
integral part of the Affordable Care Act's other reforms. Each of this Court's prior cases
upholding laws under that Clause involved exercises of authority derivative of, and in service to,
a granted power. The individual mandate, by contrast, vests Congress with the extraordinary
ability to create the necessary predicate to the exercise of an enumerated power and draw within
its regulatory scope those who would otherwise be outside of it. Even if the individual mandate
 is “necessary” to the Affordable Care Act's other reforms, such an expansion of federal power
is not a “proper” means for making those reforms effective.

SCALIA, KENNEDY, THOMAS & ALITO (dissenting?)

If this provision “regulates” anything, it is the failure to maintain minimum essential
coverage. One might argue that it regulates that failure by requiring it to be accompanied
by payment of a penalty. But that failure—that abstention from commerce—is not
“Commerce.” To be sure, purchasing insurance is “Commerce”; but one does not regulate
commerce that does not exist by compelling its existence.

Regulating the States

Substantive Immunity

National League of Cities v. Usery (1976): The Court struck down an amendment to the
FLSA extending its maximum hour and minimum wage provisions to all employees of state
governments or their political subdivisions, holding that Congress cannot use the
commerce power to impinge upon a state’s policy choices in matters that are traditionally
regarded as governmental (the “states as states”).

Hodel v. Virginia Surface Mining & Reclamation Association (1981): The Court instituted a
four-part test for substantive immunity:
(1) There must be a showing that the challenged statue regulates the “States as
States”;
(2) The federal regulation must address matters that are indisputably “attributes of
state sovereignty”;
(3) It must be apparent that the States’ compliance with the federal law would
directly impair their ability “to structure integral operations in areas of traditional
government functions;” and
(4) Apparently successful challenges fail if “the federal interest advanced [by the
challenged law] justifies state submission.”

United Transportation Union v. Long Island Railroad Co. (1982): The Court ruled that
Congress could regulate the state-owned Long Island Railroad because rail service was not
a traditional government function.

Equal Employment Opportunities Commission v. Wyoming (1983): The Court ruled that
Congress could bar states from setting mandatory retirement ages for most of their
employees because the law had little direct impact on government policy choices.

National League of Cities was overruled in 1985 (Garcia), but some pockets of substantive
immunity remain:
(1) The 11th Amend. bars states from being subjected to most damage suits in
federal court;
 (2) Congress may not impose conditions on the admission of new states that place
the newly admitted states “upon a plan of inequality with its sister States in the
Union” (Coyle v. Smith); and
(3) The federal government may not dictate the terms of state governance (other
than guaranteeing a republican form of government)

Procedural Immunity

Garcia v. San Antonio Metropolitan Transit Authority (1985)

Metropolitan transit authority brought action seeking declaratory judgment that it was
entitled to immunity from minimum-wage and overtime-pay provisions of the FLSA.

BLACKMUN (for the court)

• The attempt to draw the boundaries of state regulatory immunity in terms of “traditional
governmental functions” is not only unworkable but is also inconsistent with established
principles of federalism and, indeed, with those very federalism principles on which National
League of Cities purported to rest.
• There is nothing in the overtime and minimum-wage requirements of the FLSA, as applied to
SAMTA, that is destructive of state sovereignty or violative of any constitutional provision. The
States' continued role in the federal system is primarily guaranteed not by any externally imposed
limits on the commerce power, but by the structure of the Federal Government itself. In these
cases, the political process effectively protected that role.

POWELL w/ BURGER, REHNQUIST & O’CONNOR (dissenting)

Members of Congress are elected from the various States, but once in office they are
Members of the Federal Government. Under the majority, these officials are the sole judges
of the limits of their own power under the Commerce Clause. This result is inconsistent
with the fundamental principles of our constitutional system.

O’CONNOR w/ POWELL & REHNQUIST (dissenting)

The true “essence” of federalism is that the States as States have legitimate interests that
the National Government is bound to respect even though its laws are supreme. If
federalism so conceived and so carefully cultivated by the Framers of our Constitution is to
remain meaningful, this Court cannot abdicate its constitutional responsibility to oversee
the Federal Government's compliance with its duty to respect the legitimate interests of the
States.

South Carolina v. Baker (1988): The Court rejected South Carolina’s challenge to a federal
law subjecting interest paid on state bearer bonds to federal income tax because the law
did not result from a defective political process (i.e., one that singles out a state, leaving it
politically isolated and powerless), South Carolina was just a political loser.

Gregory v. Ashcroft (1991): The Court revived National League of Cities as a principle of
statutory construction, concluding that federalism principles create a presumption against
constitutional interference with state decisions that are “fundamental [for] a sovereign,”
Congress can use the commerce power to regulate the states in whatever manner it
pleases, so long as the regulation is
(1) a clear and unequivocal statement of congressional intent to regulate a state’s
sovereign functions; and
(2) not the product of a dramatically defective political process.

Anti-Commandeering Doctrine

New York v. United States (1992)

Congress enacted the Low–Level Radioactive Waste Policy Amendments Act of 1985,
which, among other things, imposes upon States, either alone or in “regional compacts”
with other States, the obligation to provide for the disposal of waste generated within their
borders, and contains three provisions setting forth “incentives” to States to comply with
that obligation.

O’CONNOR (for the court)

• Regulation of the interstate market in the disposal of low level radioactive waste is well within
Congress' Commerce Clause authority, and Congress could entirely pre-empt state regulation in
this area. However, Congress may not commandeer the States' legislative processes by
directly compelling them to enact and enforce a federal regulatory program.
• Short of outright coercion, Congress may urge a State to adopt a legislative program consistent
with federal interests. E.g., Congress may attach conditions on the receipt of federal funds or
offer States the choice of regulating the activity according to federal standards or having state law
pre-empted by federal regulation.
o The Act's monetary incentives are well within Congress' Commerce and Spending
Clause authority.
o The Act's access incentives constitute a conditional exercise of Congress' commerce
power.
o The Act's take title provision offers the States a “choice” between the two
unconstitutionally coercive alternatives—either accepting ownership of waste or
regulating according to Congress' instructions, so is void.
• There is no balancing test with commandeering.
• A departure from the Constitution's plan for the allocation of authority cannot be ratified by the
“consent” of state officials, since the Constitution protects state sovereignty for the benefit of
individuals, not States or their governments, and since the officials' interests may not coincide
with the Constitution's allocation.

WHITE w/ BLACKMUN & STEVENS (dissenting)

• The Act resulted from the efforts of state leaders to achieve a state-based set of remedies to the
waste problem. They sought congressional sanction of interstate compromises they had reached.
• Unlike legislation that directs action from the Federal Government to the States, the 1980 and
1985 Acts reflected hard-fought agreements among States as refereed by Congress. The
distinction is key, and the Court's failure properly to characterize this legislation ultimately affects
its analysis of its constitutionality.

Printz v. United States (1997)

Brady Handgun Violence Prevention Act provisions require the Attorney General to
establish a national system for instantly checking prospective handgun purchasers'
backgrounds and command the “chief law enforcement officer” (CLEO) of each local
jurisdiction to conduct such checks and perform related tasks on an interim basis until the
national system becomes operative. Petitioners, the CLEOs for counties in Montana and
Arizona, filed separate actions challenging the interim provisions' constitutionality.

SCALIA (for the court)

• The Brady Act's interim provision commanding CLEOs to conduct background checks is
unconstitutional.
• The Constitution's structure reveals a principle that controls these cases: the system of “dual
sovereignty.” Although the States surrendered many of their powers to the new Federal
Government, they retained a residuary and inviolable sovereignty that is reflected throughout the
Constitution's text. The Framers rejected the concept of a central government that would act
upon and through the States, and instead designed a system in which the State and Federal
Governments would exercise concurrent authority over the people. The Federal Government's
power would be augmented immeasurably and impermissibly if it were able to impress into its
service—at no cost to itself—the police officers of the 50 States.
• The Federal Executive's unity would be shattered, and the power of the President would be
subject to reduction, if Congress could simply require state officers to execute its laws.
• Where a law violates the state sovereignty principle, it is not a law “proper for carrying into
Execution” delegated powers within the Necessary and Proper Clause's meaning.
• A “balancing” analysis is inappropriate because the whole object of the law is to direct the
functioning of the state executive, and hence to compromise the structural framework of dual
sovereignty; it is the very principle of separate state sovereignty that such a law offends.

O’CONNOR (concurring)
The Court appropriately refrains from deciding whether other purely ministerial reporting
requirements imposed by Congress on state and local authorities pursuant to its Commerce
Clause powers are similarly invalid.

STEVENS w/ SOUTER, GINSBURG & BREYER (dissenting)

• When Congress exercises the powers delegated to it by the Constitution, it may impose
affirmative obligations on executive and judicial officers of state and local governments as well as
ordinary citizens.
• If Congress believes that such a statute will benefit the people of the Nation, and serve the
interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect
both its policy judgment and its appraisal of its constitutional power.

Bond v. United States (2011): The Court unanimously concluded that a litigant who has
otherwise satisfied the Article III and prudential standing requirements does not lack
standing because she asserts that the law that is the cause of her injury violates federalism
principles by invalidly infringing upon state autonomy: “Federalism secures the freedom of
the individual [as well as preserving] the integrity, dignity, and residual sovereignty of the
States.”
 State Power over Interstate Commerce

Dormant Commerce Clause

The Court has construed the commerce clause both as a grant of power to the national
government and as a limitation on the power of the states. Where Congress has acted,
conflicting state laws are preempted under the Supremacy Clause. Where Congress has not,
state laws may still be preempted by the dormant commerce clause.

Cooley v. Board of Wardens (1851): The Court held that whether a state law violates the
dormant commerce clause depends on the nature of the activity being regulated:
• If the subject is one that by its very nature requires a uniform national rule, the power to regulate
belongs exclusively to the federal government and any state regulation is barred.
• If not, the states are free to regulate the area until preempted.

There are two tracks under modern doctrine:

(1) If a state regulation openly discriminates against interstate commerce, the regulation is
presumed to be invalid. The regulation is only valid if the state can prove that it furthers a
legitimate state interest that cannot be accomplished by any less discriminatory means.
• If discriminatory purpose is unavoidably clear or the discriminatory effects of a regulation
are especially large, the Court may treat the regulation as openly discriminatory

(2) If a state regulation is nondiscriminatory and has only incidental effects on interstate
commerce, it is presume valid. The regulation is void only if the challenger can prove that the
burden imposed on interstate commerce is clearly excessive in relation to the putative
local benefits of the regulation.
• If the balancing test is applied, discriminatory purpose and effects are still relevant
• A state regulation that is intended solely to protect local industries at the expense of
outsiders serves an illegitimate purpose and will be voided
• A facially neutral state regulation that is discriminatory in purpose or effect but that serves a
legitimate objective may still impose burdens on interstate commerce that substantially
outweigh its legitimate local benefits

State Taxation of Interstate Commerce

Complete Auto Transit, Inc. v. Brady (1977)

A state tax violates the dormant commerce clause if the tax
(1) Applies to an activity that lacks a substantial nexus to the taxing state; or
(2) Is not fairly apportioned (i.e., a state may tax only its fair share of an interstate business’s
activities); or
(3) Discriminates against foreign or interstate commerce; or
(4) Is not fairly related to services supplied by the taxing state.

Discrimination Against Interstate Commerce

When state regulations openly discriminate against interstate commerce, the regulations
are strictly scrutinized.

Presumption: Invalid
Burden: On the state to prove that regulations serve a legitimate purpose that cannot be
achieved in a less discriminatory way.

Justification:
(1) The implicit commitment made by the commerce clause to an unfettered national market is most
gravely attacked by state statutes that only serve protectionism (this can never be a legitimate
government objective)
(2) National free trade will, in the long run, provide more prosperity to the nation than balkanization
of trade (the openly discriminatory statute, while not always effective to capture benefits locally
and impose costs outside the state, is sufficiently suspicious to trigger a presumption of
invalidity)
(3) Openly discriminatory state regulations of commerce are likely to be the product of a political
system that undervalues (or completely ignores) the interests of out-of-staters (the political
process cannot correct this since out-of-staters have no voice)

Philadelphia v. New Jersey (1978)

STEWART (for the court)
Since the evil of protectionism can reside in legislative means as well as legislative ends, it
is immaterial whether the legislative purpose of the statue regulation is to protect New
Jersey's environment or its economy. It may not be accomplished by discriminating against
articles of commerce coming from outside the State unless there is some reason, apart from
their origin, to treat them differently. Both on its face and in its plain effect the state
regulation violates this principle of nondiscrimination. A State may not attempt to isolate
itself from a problem common to many by erecting a barrier against the movement of
interstate trade, New Jersey sought to do by imposing on out-of-state commercial interests
the full burden of conserving New Jersey's remaining landfill space.

REHNQUIST w/ BURGER (dissenting)

Under prior cases, New Jersey may require germ-infected rags or diseased meat to be
disposed of as best as possible within the State, but at the same time prohibit the
importation of such items for disposal at the facilities that are set up within New Jersey for
disposal of such material generated within the State. The physical fact of life that New
Jersey must somehow dispose of its own noxious items does not mean that it must serve as
a depository for those of every other State.

Hughes v. Oklahoma (1979): The Court voided an Oklahoma statute prohibiting

transporting or shipping outside the State for sale natural minnows seined or procured
from waters within the State because it was a choice of the most discriminatory means
even though nondiscriminatory alternatives would seem likely to fulfill the State's
purported legitimate local purpose of conservation more effectively
Maine v. Taylor (1986): The Court upheld Maine’s absolute ban on the importation of bait
fish because of the effects that baitfish parasites and nonnative species would have on the
State's wild fish population and because less discriminatory means were unavailable.

Neutral Burdens on Interstate Commerce

State regulations that incidentally affect interstate commerce but that are not openly
discriminatory toward interstate commerce are presumed to be valid.

Presumption: Valid
Burden: On the challenger to prove that the burdens placed on interstate commerce by
the law are clearly excessive in relation to the putative local benefit.

Southern Pacific Co. v. Arizona (1945)

Facts: The Arizona Train Limit Law made it unlawful for any person or corporation to
operate within the state a railroad train of more than fourteen passenger or seventy freight
cars. The putative local benefit was a safety measure for reducing accidents and casualties.

Rule: Whether, under the circumstances, the total benefit of the law does not to outweigh
the national interest in keeping interstate commerce free from interferences.

Held: The Arizona law is unconstitutional as burdening interstate commerce because the
state interest is outweighed by the interest of the nation in an adequate, economical, and
efficient railway transportation service.

BLACK dissent: The balancing of these interests is not a matter for judicial determination,
but one that calls for legislative consideration.

DOUGLAS dissent: The courts should intervene only where the state legislation
discriminates against interstate commerce or is out of harmony with laws that Congress
has enacted.

Pike Balancing
Pike v. Bruce Church, Inc. (1970)
Facts: Arizona enacted a law requiring that Arizona-grown cantaloupes be identified as
such on their shipping cartons. Bruce Church trucked its cantaloupes to California for
packing. Compliance would have cost Bruce Church $200,000.

Rule: The extent of the burden that will be tolerated depends on

• The nature of the local interest involved, and
• Whether it could be promoted as well with a lesser burden

Held: The State's tenuous interest in having the company's cantaloupes identified as
originating in Arizona cannot constitutionally justify the requirement that the company
build and operate an unneeded $200,000 packing plant in the State.
Rationale: The Court has viewed with particular suspicion state statutes requiring
business operations to be performed in the home State that could more efficiently be
performed elsewhere.

Kassel v. Consolidated Freightways Corp. (1981)

Facts: Unlike all other States in the West and Midwest, Iowa by statute generally prohibits
the use of 65-foot double-trailer trucks within its borders, allowing the use of 55-foot
single-trailer trucks and 60-foot double-trailer trucks.

Rule: The constitutionality of state regulations that touch upon highway safety depends on
“a sensitive consideration of the weight and nature of the state regulatory concern in light
of the extent of the burden imposed on the course of interstate commerce.”

Held: Since Iowa's safety interest has not been demonstrated, and since its regulations
impair significantly the federal interest in efficient and safe interstate transportation, the
Iowa law cannot be harmonized with the Commerce Clause.

Rationale: 65-foot doubles are as safe as 55-foot singles. Iowa's restriction—resulting in

either more smaller trucks being driven through Iowa or the same number of larger trucks
being driven longer distances to bypass Iowa—requires more highway miles to be driven
to transport the same quantity of goods. Other things being equal, accidents are
proportional to distance traveled. Iowa's law tends to increase the number of accidents,
and to shift their incidence from Iowa to other States.

BRENNAN concurrence: Just as a State's attempt to avoid interstate competition in economic

goods may damage the prosperity of the Nation as a whole, so Iowa's attempt to deflect
interstate truck traffic has been found to make the Nation's highways as a whole more
hazardous. That attempt should therefore be subject to “a virtually per se rule of
invalidity.”

REHNQUIST dissent: Whenever a State enacts more stringent safety measures than its
neighbors, in an area that affects commerce, the law will have the incidental effect of
deflecting interstate commerce to the neighboring States. If a neighboring State chooses not
to protect its citizens from the danger discerned by the enacting State, that is its business,
but the enacting State should not be penalized when the vehicles it considers unsafe travel
through the neighboring State.

Bibb v. Navajo Freight Lines, Inc. (1959)

Facts: Illinois required trucks to have mud flaps contoured to the tire, while Arkansas
prohibited contoured flaps and required straight ones. Navajo Freight challenged Illinois’s
law.

Held: This is a massive burden on interstate commerce. This is one of those cases—few in
number—where local safety measures that are nondiscriminatory place an
unconstitutional burden on interstate commerce.
 Emerging “Public Function” Exemption

United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority

(2007): The Court said that laws favoring “in-state business over out-of-state competition”
deserve “rigorous scrutiny” because such laws are often protectionist, but laws “favoring
local government, by contrast, may be directed toward any number of legitimate goals
unrelated to protectionism.”

Department of Revenue of Kentucky v. Davis (2008): The Court upheld the validity of a
Kentucky income tax provision that exempts from state income tax the interest earned on
public debt issued by Kentucky and its political subdivisions, but fails to exempt interest
earned on the public debt issues by other states because the logic from United Haulers that
a government function is not susceptible to standard dormant Commerce Clause
scrutiny because it is likely motivated by legitimate objectives distinct from simple
economic protectionism applies with even greater force to laws favoring a State's
municipal bonds, since issuing debt securities to pay for public projects is a
quintessentially public function, with a venerable history.
Facially Neutral Regulations with Discriminatory Effects

The problem of a facially neutral state regulation that serves legitimate local purposes but
does so by effectively discriminating against interstate commerce has particularly vexed
the Court.

Two ways of approaching this:

(1) Treat state laws that discriminate in effect no differently from laws that discriminate on their
face, subjecting both to strict scrutiny
(2) Apply Pike balancing because such laws are facially evenhanded

The Court uses both approaches without clear signals as to when, but:
(1) When the discriminatory effect is particularly severe, strict scrutiny is triggered;
(2) When the discriminatory effect is combined with some evidence of a discriminatory purpose,
strict scrutiny is triggered;
(3) All of the cases are really balancing cases, but discriminatory effects are so burdensome to
commerce that they always “grossly outweigh” local benefits unless the benefits are only
achievable with the discriminatory effect; and
(4) The Court is incoherent in dealing with discriminatory effects.

Dean Milk Co. v. Madison (1951)

Facts: Madison passed an ordinance, making it unlawful to sell any milk in the city unless it
has been processed and bottled at an approved pasteurization plant within a radius of five
miles from the central square of Madison.

Rule: A city cannot discriminate against interstate commerce even in the exercise of its
unquestioned power to protect the health and safety of its people, if reasonable and
undiscriminatory alternatives, adequate to conserve the legitimate local interests, are
available.
Held: To permit Madison to adopt a regulation not essential for the protection of local
health interests and placing a discriminatory burden on interstate commerce would invite
a multiplication of preferential trade areas destructive of the very purpose of the
Commerce Clause. Under the circumstances, the regulation must yield to the principle that
“one state in its dealings with another may not place itself in a position of economic
isolation.”

Rationale: Reasonable and adequate alternatives were available. Madison could charge the
actual and reasonable costs of inspection to the importing producers and processors.

BLACK dissent: The fact that the ordinance, like all health regulations, imposes some burden
on trade does not mean that it “discriminates” against interstate commerce.

Hunt v. Washington State Apple Advertising Commission (1977)

Facts: In 1972, the North Carolina Board of Agriculture adopted an administrative
regulation, unique in the 50 States, which in effect required all closed containers of apples
shipped into or sold in the State to display either the applicable USDA grade or none at all.
State grades were expressly prohibited. In addition to its obvious consequence prohibiting
the display of Washington State apple grades on containers of apples shipped into North
Carolina, the regulation presented the Washington apply industry with a marketing
problem of potentially nationwide significance.

Held: North Carolina law violates the Commerce Clause by burdening and discriminating
against the interstate sale of Washington apples.

Rationale:
(1) The law raises the costs of doing business in the North Carolina market for Washington growers
and dealers while leaving unaffected their North Carolina counterparts
(2) The law strips the Washington apple industry of the competitive and economic advantages it has
earned for itself by an expensive, stringent mandatory state inspection and grading system that
exceeds federal requirements
(3) Even if the statute was not intended to be discriminatory and was enacted for the declared
purpose of protecting consumers from deception and fraud because of the multiplicity of state
grades, the statute does remarkably little to further that goal, at least with respect to Washington
apples and grades, for it permits marketing of apples in closed containers under no grades at all
and does nothing to purify the flow of information at the retail level
(4) Nondiscriminatory alternatives to the outright ban of Washington State grades are readily
available

Exxon Corp. v. Governor of Maryland (1978)

Facts: Responding to evidence that during the 1973 petroleum shortage oil producers or
refiners were favoring company-operated gasoline stations, Maryland enacted a statute
prohibiting producers or refiners from operating retail service stations within the State

Held: The divestiture provisions of the statute do not violate the Commerce Clause
Rationale:
(1) The statute creates no barrier against interstate independent dealers, nor does it prohibit the flow
of interstate goods, place added costs upon them, or distinguish between in-state and out-of-
state companies in the retail market
(2) The Commerce Clause protects the interstate market, not particular interstate firms, from
prohibitive or burdensome regulations
(3) The Commerce Clause does not, by its own force, pre-empt the field of retail gasoline marketing,
but, absent a relevant congressional declaration of policy, or a showing of a specific
discrimination against, or burdening of, interstate commerce, the States have the power to
regulate in this area

BLACKMUN dissent: Merely demonstrating a burden on some out-of-state actors does not
prove unconstitutional discrimination, but when the burden is significant, when it falls on
the most numerous and effective group of out-of-state competitors, when a similar burden
does not fall on the class of protected in-state businessmen, and when the State cannot
justify the resulting disparity by showing that its legislative interests cannot be vindicated
by more evenhanded regulation, unconstitutional discrimination exists.

Bacchus Imports, Ltd. v. Dias (1984): The Court struck down a 20% excise tax on the
wholesale sale of liquor in Hawaii that exempted a brandy distilled from the root of an
indigenous shrub and fruit wine manufactured in the State because the exemption had both
the purpose and effect of discriminating in favor of local products.

West Lynn Creamery, Inc. v. Healy (1994)

Facts: Massachusetts passed a pricing order subjecting all fluid milk sold by dealers to
Massachusetts retailers to a tax, which was coupled with a subsidy to Massachusetts dairy
farmers.

Held: The pricing order unconstitutionally discriminates against interstate commerce

Rationale:
(1) The order is clearly an unconstitutional tariff-like barrier. Although the tax applies to milk
produced inside and outside of Massachusetts, its effect on Massachusetts producers is more
than offset by the subsidy provided exclusively to Massachusetts dairy farmers, who are thereby
empowered to sell at or below the price charged by lower cost out-of-state producers.
(2) The political process cannot be relied on to prevent abuse where dairy farmers, one of the
powerful in-state interests, have been mollified by the subsidy.

SCALIA concurrence:
There are at least four possible devices that would enable a State to produce the economic
effect that Massachusetts has produced here:
(1) a discriminatory tax upon the industry, imposing a higher liability on out-of-state members than
on their in-state competitors;
(2) a tax upon the industry that is nondiscriminatory in its assessment, but that has an “exemption”
or “credit” for in-state members;
(3) a nondiscriminatory tax upon the industry, the revenues from which are placed into a segregated
fund, which fund is disbursed as “rebates” or “subsidies” to in-state members of the industry
(the situation at issue in this case); and
 (4) with or without nondiscriminatory taxation of the industry, a subsidy for the in-state members of
the industry, funded from the State's general revenues.

It is long settled that the first of these methodologies is unconstitutional under the negative
Commerce Clause. The second is no different in principle from the first, and has likewise
been held invalid. The only difference between methodology (2) and methodology (3) is
that the money is taken and returned rather than simply left with the favored in-state
taxpayer in the first place.

REHNQUIST dissent: nothing in the dormant Commerce Clause suggests that the fate of state
regulation should turn upon the particular lawful manner in which the state subsidy is
enacted or promulgated. Analysis of interest group participation in the political process
may serve many useful purposes, but serving as a basis for interpreting the dormant
Commerce Clause is not one of them.

Family Winemakers of California v. Jenkins (1st Cir. 2010): The court ruled that a
Massachusetts law expanding distribution options available to “small” wineries, but not to
similarly situated “large” wineries violated the commerce clause where all Massachusetts
wineries are “small” wineries and all “large” wineries are out-of-state wineries.

The Privileges & Immunities Clause

Art. IV, § 2 states, “The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.”
(1) Corporations are not “citizens” for purposes of the privileges and immunities clause and thus are
not protected by it.
(2) The privileges and immunities clause protects only certain rights that are “fundamental to the
promotion or interstate harmony.”
(3) There is no market participant exception to the privileges and immunities clause.
(4) Congress cannot consent to state acts that violate the privileges and immunities clause.
(5) The standard of review used in privileges and immunities cases is “intermediate” (between strict
scrutiny and Pike balancing). The state must prove
• A substantial relationship between the discriminatory practice and the problem the law
addresses; and
• A lack of workable less discriminatory alternatives.

Paul v. Virginia (1869): The object of the clause is to place the citizens of each State upon
the same footing with citizens of other States, so far as the advantages resulting from
citizenship in those States are concerned. The clause
• Relieves them from the disabilities of alienage in other States;
• Inhibits discriminating legislation against them by other States;
• Gives them the right of free ingress into other States, and egress from them;
• Insures to them in other States the same freedom possessed by the citizens of those States in the
acquisition and enjoyment of property and in the pursuit of happiness; and
• Secures to them in other States the equal protection of their laws.
Hague v. CIO (1939): The constitutional provision that the citizens of each state shall be
entitled to all privileges and immunities of citizens in the several states does not import
that a citizen of one state carries with him into another fundamental privileges and
immunities which come to him necessarily by the mere fact of citizenship in his state, but
that in any state every citizen of any other state is to have the same privileges and
immunities which the citizens of that state enjoy.
Boils down to the right to prevent a state from imposing unreasonable burdens on citizens
of other states in
(1) Seeking a job (“all the privileges of trade and commerce”);
(2) The ownership and disposition of privately held property with the state; and
(3) Access to a state’s courts.

United Building & Construction Trades Council v. City of Camden (1984)

Facts: Camden, N.J. adopted an ordinance requiring that at least 40% of the employees of
contractors and subcontractors working on city construction projects be Camden residents.

Held: The ordinance is properly subject to the strictures of the Privileges and Immunities
Clause.
(1) That the ordinance is a municipal, rather than a state, law does not place it outside the Clause's
scope. A municipality is merely a political subdivision of the State.
(2) The Clause applies not only to laws that discriminate on the basis of state citizenship, but also to
laws that discriminate on the basis of municipal residency. For purposes of analysis of most cases
under the Clause, the terms “citizen” and “resident” are essentially interchangeable.

Held: The appropriate constitutional standard requires determination of whether the

ordinance burdens one of those privileges and immunities protected by the Clause,
and, if so, whether there is a “substantial reason” for the discrimination against
citizens of other States.
(1) An out-of-state resident's interest in employment by private employers on public works projects
in another State is sufficiently fundamental to the promotion of interstate harmony and
sufficiently basic to the livelihood of the Nation as to fall within the purview of the Privileges
and Immunities Clause.
(2) It is impossible on the record as it now stands to evaluate Camden's contention that its
ordinance is carefully tailored to counteract grave economic and social ills involving
unemployment of city residents and a sharp decline in the city's population.

Preemption

May apply whenever Congress validly legislates.

(1) Express Preemption

Explicit preemption language in a federal law that defines the existence and scope of the
preemption

(2) Implied Preemption

• Field Preemption
 Occurs when federal law leaves no doubt that Congress has intended by its
legislation to occupy an entire field, such that even without a federal rule on
some particular activity within the field, state regulation of that activity is
preempted, leaving the activity unregulated by either state or federal law.
Applies:
a. When federal regulation of a field is so pervasive as to make reasonable the inference that
Congress intended to displace state regulatory authority;
b. When the federal law touches a field in which the federal interest is so dominant that the
federal system is assumed to preclude enforcement of state laws on the same subject (e.g.,
immigration and nationality); or
c. When the object sought to be obtained by the federal law and the character of obligations
imposed by it reveal a congressional intent fully to occupy the field.

• Conflict Preemption
a. When compliance with both state and federal law is literally impossible  McDermott v.
Wisconsin (1913): Wisconsin law required labeling of maple syrup that would cause syrup
sold in compliance with Wisconsin law to be misbranded under federal law.
b. When a state law “stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.”

Gade v. National Solid Wastes Management Association (1992)

Facts: OSHA promulgated regulations for the initial and routine training of workers who
handle hazardous wastes. Illinois enacted two acts requiring the licensing of workers at
certain hazardous waste facilities. Each state act had the dual purpose of protecting
workers and the general public and requires workers to meet specified training and
examination requirements.

O’CONNOR, REHNQUIST, WHITE & SCALIA

The OSH Act impliedly pre-empts any state regulation of an occupational safety or health
issue with respect to which a federal standard has been established, unless a state plan has
been submitted and approved. The Act as a whole demonstrates that Congress intended to
promote occupational safety and health while avoiding subjecting workers and employers
to duplicative regulation. Thus, it established a system of uniform federal standards, but
gave States the option of pre-empting the federal regulations entirely pursuant to an
approved state plan that displaces the federal standards.

KENNEDY
The express terms of the OSH Act define the existence and scope of the preemption.
Congress intended to pre-empt supplementary state regulation of an occupational safety
and health issue with respect to which a federal standard exists.

SOUTER, BLACKMUN, STEVENS & THOMAS

In light of our rule that federal pre-emption of state law is only to be found in a clear
congressional purpose to supplant exercises of the States' traditional police powers, the
text of the Act fails to support the Court's conclusion.
 Taxation Power of Congress

“Congress shall have Power to lay and collect Taxes, Duties, Imposts, and Excises.” Art. I, §
8.
• Independent enumerated power, so Congress can tax things that it cannot otherwise regulate.

Limits:
• Congress may not tax exports (Art. I, § 9)
• Indirect taxes—those levied on an activity rather than upon property—may not discriminate
among the state (Art. I, § 8)
• Direct taxes—levied on property—other than the income tax must be levied in such a way that
each state’s proportion of the total revenue produced by the tax is the same as each state’s
proportion of the total population of the nation (Art. I, § 2, and the Sixteenth Amendment)

Using Taxes to Regulate

United States v. Kahriger (1953): “One cannot formulate a revenue-raising plan that would
not have economic and social consequences.”
• If Congress has a separate enumerated power that would allow the regulation in question, then it
does not matter
• Issues arise when a nominal tax is really a disguised regulation where Congress would not
otherwise be able to regulate

Bailey v. Drexel Furniture Co. (Child Labor Tax Case) (1922)

Reacting to Hammer v. Dagenhart, which struck down regulation of child labor as violative
of the commerce clause, Congress enacted the Child Labor Tax Law, which imposed on
virtually every employer of a child under 14 years of age a federal excise tax of 10 percent
of the annual net profits of the employer.

TAFT (for the court)

The so-called tax is imposed to stop the employment of children within the age limits
prescribed; it is regulatory and prohibitory in nature
• The amount of the tax is not proportionate to the extent or frequency of the violation
• Employers only have to pay if they know they are employing children; scienter is associated with
penalites, not with taxes
• The employer’s factory is subject to inspection not just by the taxing officers of the Treasury, but
by the Secretary of Labor
• Allowing Congress to regulate whatever it wants by simply calling it a tax would destroy
federalism
• If Congress has independent authority to regulate, then it may do so by imposing a tax, but if it
does not, it cannot: “[T]here comes a time in the extension of the penalizing features of the so-
called tax when it loses its character as such and becomes a mere penalty, with the characteristics
of regulation and punishment.”
• A tax should not be invalidated just because another motive than taxation might have
contributed to its passage, but the provisions of the act must be naturally and reasonably adapted
 to the collection of the tax and not solely to the achievement of some other purpose plainly
within state power.

Bailey has lost a lot of strength because

(1) The scope of the regulatory powers of Congress (especially the Commerce Clause) has increased
so dramatically that there is much less likelihood that a tax will exert a regulatory effect that is
not independently within congressional power.
(2) The Court has progressively relaxed its standard of review of taxes as disguised regulations.

Veazie Bank v. Fenno (1869): Congress taxed the circulating notes of persons and state
banks, which was fine because “the objective of the . . . tax was [within] congressional
authority.”

United State v. Doremus (1919): A special tax on the manufacture, importation, and sale or
gift of opium or coca leaves or their compounds or derivatives, requiring every person
subject to the tax to register with the collector of internal revenue was upheld because the
registration requirement had a reasonable relation to the enforcement of the tax.

NFIB v. Sebelius (2012)

The Court upheld the individual mandate in the ACA as a tax.

ROBERTS (for the court)

What Congress calls a given act does not matter for constitutional purposes, but does
matter in relation to other legislation
• The Anti-Injunction Act says that one cannot challenge a “tax” until he has paid it. Then he can
sue for a refund. Congress called the assessment for failure to comply with the individual
mandate a “penalty” so the Anti-Injunction Act does not apply.
• That does not matter for constitutional purposes though, so the assessment can still be upheld as
a tax.

This is a tax, not a penalty:

(1) For most Americans the amount due will be far less than the price of insurance, so it may by a
reasonable financial decision to make the payment rather than purchase insurance.
(2) There is scienter requirement, so this is more like a tax.
(3) The payment is collected solely by the IRS through the normal means of taxation.
(4) A penalty is a “punishment for an unlawful act or omission,” but no law attaches negative legal
consequences to not buying health insurance other than the payment to the IRS.

The tax is not an unconstitutional direct tax:

• Direct taxes are head taxes and taxes on real or personal property; this tax does not fall into any
of those categories, so it is not a direct tax.
• Payment is triggered by specific circumstances, not ownership, etc.

This is not troubling:

(1) The Constitution does not guarantee that individuals may avoid taxation through inactivity
(2) Although there comes a time when a tax becomes a penalty, that is not the case here
 (3) The breadth of Congress’s power to tax is greater than its power to regulate commerce, but it is
also weaker; Congress’s authority under the taxing power is limited to requiring an individual to
pay money into the Federal Treasury, no more

SCALIA, KENNEDY, THOMAS & ALITO (jointly dissenting)

The question is whether the exaction in the ACA is imposed for violation of the law. The
provision commands individuals to have health insurance and exacts a payment if they do
not.

Powhatan Steamboat Co. v. Appomattox R. Co. (1861): “[W]here the statute inflicts a
penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act
is unlawful, because it cannot be supposed that the Legislature intended that a penalty
should be inflicted for a lawful act.”

Spending

Congress may “pay the Debts and provide for the common Defense and general Welfare of
the United States.” Art. I, § 8.

United States v. Butler (1936)

The Agricultural Adjustment Act was a New Deal attempt to limit production of farm
commodities and thereby raise prices. It taxed the first processor of commodities and used
the money generated from the tax to pay farmers on contracts requiring them to limit
production.

The Court concluded that the spending program was a disguised effort to regulate
production for two reasons:
(1) The program was not truly voluntary. A farmer who refused to accept the government’s offer
would be placed at a substantial disadvantage. Thus, the coercive nature of the program left
farmers with no real “power of choice.”
(2) This case was decided when the Court’s Commerce Clause doctrine held that production was out
of reach of federal regulation.

STONE (dissenting)
Conditional spending is inherently regulatory. Regulation ancillary to spending is valid so
long as it is reasonably related either to the general welfare of the nation or, perhaps, to the
specific spending initiative.

Butler eroded quickly.

State Autonomy Limits to the Spending Power

Steward Machine Co. v. Davis (1937): CARDOZO focused on spending that coerced the states
either to enact federally prescribed legislation outside the scope of federal power or to
surrender power “essential” to sovereignty.
Just as federal money may be used to entice private action, the federal government
sometimes uses the “carrot” of federal expenditures to lure states into participating in
federal programs.

The Court considers three factors:

(1) Whether the condition imposed on the receipt of federal funds is stated unambiguously so
that a state accepting the funds is fully aware of the consequences of that acceptance;
(2) Whether the condition imposed is related to the expenditure; and
(3) Whether the financial inducement to which the condition attaches is so strong that is passes
the point where pressure turns into compulsion, in which case the spending measure must be
upheld, if at all, as a regulation.

South Dakota v. Dole (1987): State of South Dakota brought action challenging
constitutionality of federal statute conditioning states' receipt of portion of federal highway
funds on adoption of minimum drinking age of 21.
(1) The statute is entirely unambiguous
(2) The condition imposed by Congress is directly related to one of the main purposes for which
highway funds are expended—safe interstate travel. The lack of uniformity in the States' drinking
ages has created an incentive to drink and drive because young persons commute to border
States where the drinking age is lower.
(3) The relatively small financial inducement offered by Congress here—resulting from the State's
loss of only 5% of federal funds otherwise obtainable under certain highway grant programs—is
not so coercive as to pass the point at which pressure turns into compulsion.

O’CONNOR (dissenting): A condition that a State will raise its drinking age is not reasonably
related to the expenditure of funds for highway construction. It is a regulation determining
who shall be able to drink.

NFIB v. Sebelius (2012)

The Affordable Care Act expands the scope of the Medicaid program and increases the
number of individuals the States must cover. The Act increases federal funding to cover the
States' costs in expanding Medicaid coverage. But if a State does not comply with the Act's
new coverage requirements, it may lose not only the federal funding for those
requirements, but all of its federal Medicaid funds.

The Court held that “the threatened loss of over 10 percent of a State's overall budget is
economic dragooning that leaves the States with no real option but to acquiesce in the
Medicaid expansion.”

War-Making Power of Congress

Congress may declare war; raise, support, and regulate the armed services; and tax and
spend for national defense. Art. I, § 8. Through the necessary and proper clause, Congress
has authority to enact reasonable measures to effectuate its power to provide the means
for making war.
Woods v. Cloyd W. Miller Co. (1948)
The Housing and Rent Act of 1947 limited the amount of rent that could be charged for
housing in “defense-related areas” within the U.S. The Act was passed after termination of
hostilities in WWII, but was designed to ameliorate the lingering effects of those hostilities.

DOUGLAS (for the court)

“The legislative history of the present Act makes abundantly clear that there has not yet
been eliminated the deficit in housing which in considerable measure was caused by the
heavy demobilization of veterans and by the cessation or reduction in residential
construction during the period of hostilities due to the allocation of building materials to
military projects. Since the war effort contributed heavily to that deficit, Congress has the
power even after the cessation of hostilities to act to control the forces that a short supply
of the needed article created.”

JACKSON (concurring)
“I agree with the result in this case, but the arguments that have been addressed to us lead
me to utter more explicit misgivings about war powers than the Court has done. . . . when
the war power is invoked to do things to the liberties of people, or to their property or
economy that only indirectly affect conduct of the war and do not relate to the management
of the war itself, the constitutional basis should be scrutinized with care.”

Congress's Enforcement Power Under the Reconstruction Amendments

Rule: Pursuant to Sec. 5, Congress only may:

◊ Provide remedies for rights recognized by the courts and that Congress may not
create new rights or expand the scope of rights.
◊ Any law must be narrowly tailored to solving constitutional violations
◊ It must be proportionate and congruent to preventing and remedying
constitutional violations.

Katzenbach v Morgan
Facts. Section 4(e) of the Voting Rights Act of 1965 (the Act) ensures the right to vote to all
Puerto Ricans who successfully complete the sixth grade. The Appellees, Morgan and other
registered voters in New York City (Appellees), brought this suit to challenge the
constitutionality of Section:4(e) of the Act insofar as it pro tanto prohibits the enforcement
of the election laws of New York requiring an ability to read and write English.

Issue. Whether such legislation is, as required by Section: 5 of the Fourteenth Amendment
of the Constitution, appropriate to enforce equal protection?
Whether the congressional remedies adopted in Section:4(e) of the Act constitute means
which are not prohibited by, but which are consistent with the constitution?
Held. There can be no doubt that Section:4(e) of the Act may be regarded as an enactment
to enforce equal protection. Section 4(e) of the Act may be viewed as a measure to secure
for the Puerto Rican community residing in New York, nondiscriminatory treatment by the
government, both in the imposition of voting qualifications and the administration of
governmental services. Section 4(e) of the Act can be readily seen as “plainly adapted” to
furthering these claims of equal protection.
Yes. Section 4(e) of the Act does not restrict or deny the franchise, but in effect extends the
franchise to persons who would be denied it by state law. The limitation on relief effected
in Section:4(e) of the Act does not constitute a forbidden discrimination since these factors
may have been the basis for the decision of Congress to go “no farther than it did.”

Dissent. Section 4(e) of the Act cannot be sustained except at the sacrifice of the
fundamentals in the American constitutional system: the separation between the legislative
and judicial function and the boundaries between federal and state political authority.

City of Boerne v Flores

Facts. A decision by local zoning authorities to deny a church a building permit was
challenged under the RFRA. The Act’s stated purposes are: “(1) to restore the compelling
interest test and to guarantee its application in all cases where the free exercise of religion
is substantially burdened; (2) to provide a claim or defense to persons whose religious
exercise is substantially burdened by government.” The Act forbids the government from
“substantially burdening” a person’s exercise of religion unless the government can
demonstrate that the burden “(1) is in furtherance of a compelling state interest; and (2) is
the least restrictive means of furthering that state interest.” Specifically, this case calls into
question the authority of Congress to enact the RFRA.

Issue. Whether the RFRA is a proper exercise of Congress’ Section:5 power to “enforce” by
“appropriate legislation” the constitutional guarantee that no state shall deprive any
person of “life, liberty, or property without the due process of law” nor deny any person
“equal protection of the laws?”

Held. Congress’ power under Section:5 extends only to “enforcing” the provisions of the
Fourteenth Amendment. While preventive rules are sometimes appropriate remedial
measures, there must be a congruence between the means used and the ends to be achieve.
Further, the RFRA cannot be considered remedial, preventive legislation. Rather, it appears
to attempt a substantive change in constitutional protections. Preventive measures
prohibiting certain types of laws may be appropriate when there is reason to believe that
many of the laws affected have a significant likelihood of being unconstitutional. Remedial
legislation under Section:5 should be adapted to the wrong which the Fourteenth
Amendment of the Constitution was intended to protect against. The RFRA is not so
confined.

Treaty Implementation
Art. II, § 2 gives the President the power to make treaties, provided that two-thirds of the
senators present and voting ratify the treaty.

The Supremacy Clause (Art. IV, cl. 2) says, “All Treaties made [under] the Authority of the
United States shall be the supreme Law of the Land.”

Two questions:
(1) Does Congress have the power to implement treaties without regard to any other source of
congressional power, or is Congress’s implementation power no broader than the enumerated
sources of regulatory authority granted Congress under the Constitution?
(2) If Congress is free to implement treaties without regard to some independent source of power,
may Congress ignore all constitutional limits upon its power in implementing treaties?

Missouri v. Holland (1920)

The United States entered into a treaty with Great Britain that was designed to protect the
annual migration of certain endangered bird species that traversed parts of Canada and the
United States. Congress enacted legislation implementing the treaty.

The Court assumed that in the absence of a treaty Congress would have lacked the power to
pass the legislation, but held that the treaty power, and the power to enact legislation
necessary and proper to carrying out treaties, were both delegated to the United States.

Distribution of National Powers

The Reasons for Separated Powers

Article I - Endows Congress with the national LEGISLATIVE power.

Article II - Gives all of the EXECUTIVE power to the President.
Article III - Delivers the JUDICIAL power of the United States to the Supreme Court and
such other federal courts that Congress may establish.

Rationale: To inhibit the arbitrary tyranny that comes from concentrated power.

Separation is not enough. Const. also contains “checks,” by which one branch may frustrate
the exercise of power by another branch (i.e., Presidential veto, confirmation of
Presidential appointments by Senate, impeachment of President and judges by Congress,
judicial review of legislation and executive action). Judicial review is an “implied” check,
not explicitly stated in the Constitution.

Federalist No. 47 (Madison): accumulation of all powers in the same hands is the very
definition of tyranny.
Federalist No. 51 (Madison): when men govern men, you must
(1) Enable the government to control the governed; and
(2) Oblige the government to control itself.
 Executive Action

Article II assigns duties to the President:

• Specific: appointing judges, signing/vetoing legislation, negotiating treaties, etc.
• General: commander-in-chief, “take care that the laws be faithfully executed,” etc.

Roosevelt/Taft: President has the power and duty to do anything necessary for the good
of the nation as long as his action does not violate the Constitution or a valid act of
Congress.
• Taft, as Chief Justice, endorsed this view in dicta in Myers v. United States, but the court has
never accepted it.
• Court instead focused on whether action is domestic or foreign. Unilateral domestic action is
more limited.

Domestic Affairs

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952)
Facts: Labor dispute between the steel companies and their unionized employees at the
height of the Korean War. The union gave notice of an intention to strike. The President
believed this would immediately jeopardize the national defense and that government
seizure of the steel mills was necessary. The President issued an executive order directing
the Secretary of Commerce, Sawyer, to take possession of most of the mills and keep them
running. The President notified Congress, which, at the time of the opinion, had taken no
action.

Held: The Executive Order directing the Secretary of Commerce to seize the plants of steel
companies involved in labor dispute was invalid as exceeding the constitutional power of
the President.

BLACK (for the court)

The President’s power, if any, must stem from either
(1) an act of Congress; or
(2) the Constitution.

There is no statute that expressly authorizes what the President did. Nor is there any from
which authority for the President’s action can be implied. Furthermore, in 1947, Congress
rejected a proposed amendment to the Taft-Hartley Act that would have allowed for
governmental seizure in cases of emergency due to labor disputes.

Therefore, authority must derive from the Constitution, if it exists, which it does not.
• The government argues that military commanders have broad powers in a theater of war, but the
court declines to expand these powers to include the seizure of domestic private property.
• The “Take Care” Clause refutes the idea that the President is a lawmaker. The President’s
Constitutional functions in the lawmaking process are limited to recommending laws he thinks
are wise and vetoing laws he thinks are bad.
• The President’s order reads like legislation. It has a preamble stating the reasoning beyond the
order. It directs that a presidential policy be executed in a manner prescribed by the President. It
 authorizes a government official to promulgate additional regulations consistent with the policy
proclaimed and needed to carry that policy into execution. It’s Congress’s job to make law, not
the President’s.
• The government argues that Presidents, without congressional authority, have seized private
businesses to settle labor disputes before, but the court says, even if that is true, Congress has
not lost its exclusive legislative authority under the constitution.

FRANKFURTER (concurring)
Congress implicitly said that the President cannot seize private property to resolve labor
disputes. Congress has passed laws specifically telling the President what he may do in
attempts to resolve labor disputes and consciously withheld from the President the right to
seize property.

DOUGLAS (concurring)
The President responded to a significant and legitimate emergency, but the emergency did
not vest the President with new powers. Action may have been necessary, but that does not
mean that the President, rather than Congress, had power to act.

JACKSON (concurring)
There is a typology of power when the President acts:
(1) Pursuant to an express or implied authorization of Congress: the President acts with both the
powers delegated to him by Congress and his own powers and is supported by the strongest of
presumptions and the widest latitude of judicial interpretation. The burden of persuasion rests
heavily upon any who might attack it.
(2) In the absence of either a congressional grant or denial of authority: the President can only
rely upon his own independent powers, but there is a “zone of twilight” in which he and
Congress may have concurrent authority, or in which its distribution is uncertain. Congressional
“inertia, indifference, or quiescence” may sometimes, at least as a practical matter, enable, if not
invite, measures on independent presidential responsibility.
(3) In a way that is incompatible with the expressed or implied will of Congress: he can rely
only upon his own constitutional powers minus any constitutional powers of Congress over the
matter. Courts can only sustain this kind of Presidential action by disabling Congress from acting
upon the subject.

The government concedes that this Presidential action does not fit in category (1). It also
does not fit in category (2) because Congress has legislated repeatedly in this area, so it
must be justified only by the remainder of Presidential authority after subtraction of such
powers as Congress may have over the subject. It is not.

The forefathers knew what emergencies were, that they afford a ready pretext for
usurpation, and suspected that emergency powers would tend to kindle emergencies.

CLARK (concurring in the judgment)

Where Congress has specifically laid down procedures for the President to follow in dealing
with a specific type of crisis, he must do so, but in the absence of such action by Congress,
the President has independent power to act. The seizure was invalid because Congress has
prescribed methods to be followed by the President in meeting the emergency at hand. The
President made no effort to comply with the procedures set forth in the Selective Service
Act of 1948, which expressly authorizes seizures when producers fail to supply necessary
defense material.

VINSON w/ REED & MINTON (dissenting)

There is a “large body of implementing legislation” that Congress enacted to support the
Korean War, and the President has the duty to execute that legislation. Since the faithful
execution of those laws depends upon continued production of steel and stabilized prices
for steel, the President was authorized to seize the steel mills in order to avert the
shutdown of the entire steel industry.

Presidents have, on many occasions, acted as Commander in Chief under his duty to “take
Care that the Laws be faithfully executed,” with or without explicit statutory authority in
dealing with national emergencies. Sometimes this action has been necessary to save
legislative programs until Congress can act. Congress and the Courts have repeatedly
approve of this type of action.

There is no statute prohibiting the seizure in this case. The President went to Congress and
told it about the seizure and said that he would cooperate with any legislation approving,
regulating, or rejecting the seizure.

The steel seizure was clearly temporary and subject to congressional action. It was not
arbitrary, unlimited or dictatorial.

Foreign Affairs

The President’s unilateral power of action is greatest in the field of foreign affairs. Some
aspects of this authority are rooted in the text of Article II (e.g., the President’s power to
“receive ambassadors and other Public Ministers” means that the President alone has
authority to recognize foreign governments and to terminate such diplomatic relations, but
other aspects are implicit in constitutional structure.

United States v. Curtiss-Wright Export Corp. (1936)

Facts: A Joint Resolution of Congress said, “if the President finds that the prohibition of the
sale of arms and munitions of war in the United States to those countries now engaged in
armed conflict in the Chaco may contribute to the reestablishment of peace between those
countries, and if after consultation with the governments of other American Republics and
with their cooperation, as well as that of such other governments as he may deem
necessary, he makes proclamation to that effect, it shall be unlawful to sell, except
under such limitations and exceptions as the President prescribes, any arms or munitions
of war in any place in the United States to the countries now engaged in that armed conflict,
or to any person, company, or association acting in the interest of either country, until
otherwise ordered by the President or by Congress.” This proclamation was challenged as
an invalid delegation of legislative power to the executive.
Held: The Joint Resolution is not invalid as an unlawful delegation, in view of the authority
of the President as the instrument of the federal government in the field of international
relations.
(1) The broad statement that the federal government can exercise no powers except those
specifically enumerated in the Constitution, and such implied powers as are necessary and proper
to carry into effect the enumerated powers, is categorically true only in respect of our internal
affairs.
(2) As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of
external sovereignty passed from the Crown not to the colonies severally, but to the colonies in
their collective and corporate capacity as the United States of America.
(3) In this vast external realm, with its important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a representative of the nation.

Dames & Moore v. Regan (1981)

Facts: The President issued various Executive Orders and regulations that nullified
attachments and liens on Iranian assets in the United States, directed that these assets be
transferred to Iran, and suspended claims against Iran that could have been presented to
an International Claims Tribunal.

Held: The President was authorized to nullify the attachments and order the transfer of
Iranian assets by the provision of the International Emergency Economic Powers Act
(IEEPA) that empowers the President to “compel,” “nullify,” or “prohibit” any “transfer”
with respect to, or transactions involving, any property subject to the jurisdiction of the
United States, in which any foreign country has any interest.
• Because the President's action in nullifying the attachments and ordering the transfer of assets
was taken pursuant to specific congressional authorization, it is “supported by the strongest
presumptions and the widest latitude of judicial interpretation, and the burden of persuasion
would rest heavily upon any who might attack it.” Youngstown.

Held: On the basis of the inferences to be drawn from the character of the legislation, such
as the IEEPA and the Hostage Act, which Congress has enacted in the area of the President's
authority to deal with international crises, and from the history of congressional
acquiescence in executive claims settlement, the President was authorized to suspend
claims pursuant to the Executive Order in question here.
• The United States has repeatedly exercised its sovereign authority to settle the claims of its
nationals against foreign countries.
• In addition to congressional acquiescence in the President's power to settle claims, prior cases of
this Court have also recognized that the President has some measure of power to enter into
executive agreements without obtaining the advice and consent of the Senate.
• Long continued executive practice, known to and acquiesced in by Congress, raises a
presumption that the President's action has been taken pursuant to Congress' consent. Such
practice is present here and such a presumption is also appropriate.

Medellin v Texas

Facts. Jose Medellin (D), a Mexican national was found guilty for being part of the gang
rape and murder of two teenage girls in Houston. He argued that the state had violated his
rights under the Vienna Convention in which the United States is a party. Under the Vienna
Convention, any foreign national detained for any crime has a right to contact his consulate.
Based on these, Medellin (D) argued that the Vienna Convention granted him an individual
right that state courts must respect.

Issue. Are state courts required under the U.S. Constitution to honor a treaty obligation of
the United States by enforcing a decision of the International Court of Justice?
(2) Are states courts required by the U.S. Constitution to provide review and
reconsideration of a conviction without regard to state procedural default rules as required
by a memorandum by the President?

Held. (Roberts, C.J). (1). States courts are not required under the U.S. Constitution to honor
a treaty obligation of the United States by enforcing a decision of the International Court of
Justice. What the Vienna Convention stipulate is that if a person detained by a foreign
country asks, the authorities of the detaining national must, without delay, inform the
consular post of the detainee of the detention.
(2). State courts are not required by the U.S. Constitution to provide review and
reconsideration of a conviction without regard to state procedural default rules as required
by a Memorandum by the President. The presidential memorandum was an attempt by the
Executive Branch to enforce a non-self-executing treaty without the necessary
congressional action, giving it no binding authority on state courts.

Dissent. (Breyer, J.) The relevant treaty should be found to be self-executing because the
language supports direct judicial enforcement, the optional protocol is applicable to
disputes about the meaning of a provision that is itself self-executing and judicially
enforceable, logic requires a conclusion that the provision is self-executing since it is final
and binding, the majority decision has negative practical implications, the I.C.J. judgment is
well suited to direct judicial enforcement, such a holding would not threaten constitutional
conflict with other branches and neither the President nor Congress has expressed concern
about direct judicial enforcement of the I.C.J. decision.

War Making Power

Congress has the power to “declare War.”

The President, as Commander-in-Chief, has the power to conduct war.

The Prize Cases (1863)

Facts: President Lincoln proclaimed a naval blockade of Southern ports and ordered the
seizure of any ships carrying goods to or from the Confederate States.

Held: The Court upheld the validity of the seizures pursuant to the blockade even though
Congress had never declared war.
(1) The President has no power to initiate or declare a war either against a foreign nation or a
domestic State, but he is authorized, by statute, to call out the militia and use the military and
naval forces of the United States in case of invasion by foreign nations, and to suppress
insurrection against the government of a State or of the United States.
 (2) If a war be made by invasion of a foreign nation, the President is not only authorized but bound
to resist force, by force.
(3) The President was bound to meet the Civil War in the shape it presented itself, without waiting
for Congress to baptize it with a name.

NELSON w/ TANEY, CATRON & CLIFFORD (dissenting): Congress alone can determine whether
war exists or should be declared; and until they have acted, no citizen of the State can be
punished in his person or property as an enemy.

The War Powers Resolution

50 U.S.C. §§ 1541–48
A federal law intended to check the President's power to commit the United States to an
armed conflict without the consent of Congress.
• Provides that the President can send U.S. Armed Forces into action abroad only
o By declaration of war by Congress;
o Statutory authorization; or
o In case of "a national emergency created by attack upon the United States, its territories
or possessions, or its armed forces."
• Requires the President to notify Congress within 48 hours of committing armed forces to
military action and forbids armed forces from remaining for more than 60 days, with a further
30-day withdrawal period, without an authorization of the use of military force or a declaration
of war.

The War Powers Resolution has been controversial since it was passed. In passing the
resolution, Congress specifically cited the Necessary and Proper Clause for its authority.

Because the Constitution limits the President's authority in the use of force without a
declaration of war by Congress, there is controversy as to whether the provisions of the
resolution are consistent with the Constitution. Presidents have therefore drafted reports
to Congress required of the President to state that they are "consistent with" the War
Powers Resolution rather than "pursuant to" so as to take into account the presidential
position that the resolution is unconstitutional.

Hamdi v Rumsfeld

Facts. Petitioner Hamdi was captured in Afghanistan shortly after 9/11. Hamdi is an
American citizen, and was classified as an “enemy combatant.” After a period of petitions,
motions, and counter-motions, Hamdi filed for a writ of habeas corpus. The Special Advisor
to the Under Secretary of Defense for Policy, Michael Mobbs, issued a response, outlining
the Government’s position.

Issue. “[W]hether a declaration by a Special Advisor to the Under Secretary of Defense for
Policy setting forth what the government contends were the circumstances of Hamdi’s
capture was sufficient by itself to justify his detention.”

Held. Yes. First, the Court of Appeals for the Fourth Circuit acknowledged that the
Constitution creates “war powers” that invest “the President, as Commander in Chief, with
the power to wage war which Congress has declared, and to carry into effect all laws
passed by Congress for the conducts of war…” The Court also noted that since Article III of
the Constitution does not have any sort of war powers analog, “the Supreme Court has
shown great deference to the political branches” in war matters. However, the Court noted
that this deference is “not unlimited,” and that habeas corpus is still valid. The Court found
that is must approach this case by balancing the tension of individual rights and national
security interests. Second, whether, “because he is an American citizen currently detained
on American soil by the military, Hamdi can be heard in an Article III court to rebut the
factual assertions that were submitted to support the ”˜enemy combatant’ designation.’”
The Court held that “no evidentiary hearing or factual inquiry on [its] part is necessary or
proper, because it is undisputed that Hamdi was capture in a zone of active combat.” Hamdi
finally contended that “even if his detention was at one time lawful, it is no longer so
because the relevant hostilities have reached an end.” Because troops were still on the
ground, the Court did not see reason to address the concern.

Hamdan v Rumsfeld

Facts: Hamdan, was captured by Afghan forces and imprisoned by the U.S. military in
Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal district court to
challenge his detention. Before the district court ruled on the petition, he received a
hearing from a military tribunal, which designated him an enemy combatant.

Question: May the rights protected by the Geneva Convention be enforced in federal court
through habeas corpus petitions? Was the military commission established to try Hamdan
and others for alleged war crimes in the War on Terror authorized by the Congress or the
inherent powers of the President?

Conclusion: neither an act of Congress nor the inherent powers of the Executive laid out in
the Constitution expressly authorized the sort of military commission at issue in this case.
Absent that express authorization, the commission had to comply with the ordinary laws of
the United States and the laws of war. The Geneva Convention, as a part of the ordinary
laws of war, could therefore be enforced by the Supreme Court, along with the
statutory Uniform Code of Military Justice. Hamdan's exclusion from certain parts of his
trial deemed classified by the military commission violated both of these, and the trial was
therefore illegal. Justices Scalia, Thomas, and Alito dissented. Chief Justice John Roberts,
who participated in the case while serving on the DC Circuit Court of Appeals, did not take
part in the decision.

Domestic Affairs

Executive Immunities
United States v. Nixon (1974): The Court concluded that the President was not immune
from judicial process and was required to produce certain recordings and documents in
response to a subpoena.

United States v. Fitzgerald (1982): The Court ruled that the President was absolutely
immune from civil liability for his official actions because being sued causes (1) distraction;
and (2) distortion of the President’s judgment. WHITE (dissenting) said that political
pressure and the threat of impeachment correct distortion; immunity should be decided on
a case-by-case basis and should be functional, like Congressional immunity, that only
applies if lack of immunity would actually distract the President from performance of his
duties.

Harlow v. Fitzgerald (1982): The Court declined to extend absolute immunity to the
President’s chief of staff, although the Court did rule that such senior executive officers are
entitled to the qualified immunity that attached generally to executive officials.

Pearson v. Callahan (2009): The Court ruled that judges may first determine whether the
claimed constitutional right was clearly established without determining whether the
alleged misconduct violated that right. Qualified immunity depends on the “objective legal
reasonableness of the action, assessed in light of the legal rules that were clearly
established at the time it was taken.”

Clinton v. Jones (1997)

Facts: Paula Jones sued to recover damages from the current President of the United States
alleging that while he was Governor of Arkansas, he made “abhorrent” sexual advances to
her, and that her rejection of those advances led to punishment by her supervisors in the
state job she held at the time. The President moved to postpone the suit on the grounds of
Presidential immunity.

Held: Deferral of this litigation until petitioner's Presidency ends is not constitutionally
required.
(1) The principal rationale for affording Presidents immunity from damages actions based on their
official acts (i.e., to enable them to perform their designated functions effectively without fear
that a particular decision may give rise to personal liability) provides no support for immunity for
unofficial conduct.
(2) The Judiciary may severely burden the Executive Branch by reviewing the legality of the
President's official conduct, so it must follow that the federal courts have power to determine the
legality of the President's unofficial conduct.

Executive Privilege

United States v. Nixon (1974)

Neither the doctrine of separation of powers nor the generalized need for confidentiality of
high-level communications, without more, can sustain an absolute unqualified presidential
privilege of immunity from judicial process under all circumstances. Absent a claim of need
to protect military, diplomatic, or sensitive national security secrets, the confidentiality of
presidential communications is not significantly diminished by producing material for a
criminal trial under the protected conditions of in camera inspection, and any absolute
executive privilege under Art. II of the Constitution would plainly conflict with the function
of the courts under the Constitution.

When a claim of presidential privilege as to materials subpoenaed for use in a criminal trial
is based merely on the ground of a generalized interest in confidentiality, it must yield to
the demonstrated, specific need for evidence in a pending criminal trial and the
fundamental demands of due process of law in the fair administration of justice.

Legislative Action & the Administrative State

Congress may not:

(1) Delegate its legislative powers;
(2) Legislate without conforming to the constitutional procedures of bicameral action and
presentment; or
(3) Entrust the execution of law to officials accountable only to Congress.

The Court will void congressional action if it poses a danger of:

(1) Aggrandizement: when Congress unreasonably enlarges a single branch’s powers at the expense
of the other two branches; or
(2) Encroachment: when Congress enacts law that undermines the authority and independence of
any branch of the federal government.

Morrison v. Olson (1988)

REHNQUIST (for the court)

This case does not involve an attempt by Congress to increase its own powers at the
expense of the Executive Branch. Indeed, with the exception of the power of
impeachment—which applies to all officers of the United States—Congress retained for
itself no powers of control or supervision over an independent counsel.

The Act does not impermissibly undermine the powers of the Executive Branch nor disrupt
the proper balance between the coordinate branches by preventing the Executive Branch
from accomplishing its constitutionally assigned functions.” The Act gives the Executive
Branch sufficient control over the independent counsel to ensure that the President is able
to perform his constitutionally assigned duties.

SCALIA (dissenting)
The present statute must be invalidated on fundamental separation-of-powers principles
because of the:
(1) The conduct of a criminal prosecution is the exercise of purely executive power; and
(2) The statute deprives the President of the United States of exclusive control over the exercise of
that power.

Mistretta v. United States (1989)

Facts: Congress passed the Sentencing Reform Act of 1984, which created the United States
Sentencing Commission as an independent body in the Judicial Branch with power to
promulgate binding sentencing guidelines establishing a range of determinate sentences
for all categories of federal offenses and defendants according to specific and detailed
factors. Mistretta argued that the Commission was constituted in violation of the
separation-of-powers principle, and that Congress had delegated excessive authority to the
Commission to structure the Guidelines.

Held (BLACKMUN): The Sentencing Guidelines are constitutional.

Rationale: Congress neither (1) delegated excessive legislative power to the Commission
nor (2) violated the separation-of-powers principle by placing the Commission in the
Judicial Branch, by requiring federal judges to serve on the Commission and to share their
authority with nonjudges, or by empowering the President to appoint Commission
members and to remove them for cause. The Constitution's structural protections do not
prohibit Congress from delegating to an expert body within the Judicial Branch the
intricate task of formulating sentencing guidelines consistent with such significant
statutory direction as is present here, nor from calling upon the accumulated wisdom and
experience of the Judicial Branch in creating policy on a matter uniquely within the ken of
judges.

SCALIA (dissenting)
While the products of the Sentencing Commission's labors have been given the modest
name “Guidelines,” they have the force and effect of laws, prescribing the sentences
criminal defendants are to receive. A judge who disregards them will be reversed. I dissent
from today's decision because I can find no place within our constitutional system for an
agency created by Congress to exercise no governmental power other than the making of
laws.
Nondelegation

Mistretta v. United States (1989)

The nondelegation doctrine is rooted in the principle of separation of powers that
underlies our tripartite system of Government. The Constitution provides that “[a]ll
legislative Powers herein granted shall be vested in a Congress of the United States,” and
we long have insisted that “the integrity and maintenance of the system of government
ordained by the Constitution” mandate that Congress generally cannot delegate its
legislative power to another Branch.

We also have recognized, however, that the separation-of-powers principle, and the
nondelegation doctrine in particular, do not prevent Congress from obtaining the
assistance of its coordinate Branches. In a passage now enshrined in our jurisprudence, So
long as Congress shall lay down by legislative act an intelligible principle to which the
person or body authorized to exercise the delegated authority is directed to conform, such
legislative action is not a forbidden delegation of legislative power.
Applying this “intelligible principle” test to congressional delegations, our jurisprudence
has been driven by a practical understanding that in our increasingly complex society,
replete with ever changing and more technical problems, Congress simply cannot do its job
absent an ability to delegate power under broad general directives. Accordingly, this Court
has deemed it constitutionally sufficient if Congress clearly delineates the general policy,
the public agency which is to apply it, and the boundaries of the delegated authority.

SCALIA (dissenting)
The whole theory of lawful congressional “delegation” is not that Congress is sometimes
too busy or too divided and can therefore assign its responsibility of making law to
someone else; but rather that a certain degree of discretion, and thus of lawmaking, inheres
in most executive or judicial action, and it is up to Congress, by the relative specificity or
generality of its statutory commands, to determine-up to a point-how small or how large
that degree shall be. The focus of controversy, in the long line of our cases, has been
whether the degree of generality contained in the authorization for exercise of executive or
judicial powers in a particular field is so unacceptably high as to amount to a delegation of
legislative powers.

Policy:
(1) Representative reinforcement/accountability: legislative policy choices must be made by elected
representatives, not by unelected administrators who are accountable, if at all, to the President or
some presidential appointee
(2) Predictability: if Congress makes specific policy choices, there is less likelihood that
administrative rules will change with each political administration, as each administration
interprets general legislative directions to suit its tastes
(3) Risk that administrators will exercise discretion unfairly: specific legislation gives administrators
less room to impose their sometimes peculiar policy notions

Bowsher v Synar

Facts. The Comptroller General was an office created by the Budget and Accounting Act,
appointed by the President with advice and consent of the Senate, from recommendations
made by the Speaker of the House and the President pro tempore of the Senate. He serves a
single fourteen-year term. Congress has complete control over the General’s tenure.

Issue. “Whether the Comptroller General is controlled by Congress.” “Whether the Comptroller
General ha[d] been assigned [executive] powers in the Balanced Budget and Emergency Deficit
Control Act of 1985.”

Held. Yes. The Supreme Court of the United States (the Court), zeroed in on the specific
language of the Budget and Accounting Act. Because so many of the provisions of the Act
placed the Comptroller General firmly under Congressional control, specifically removal
authority, the Court concluded that the General “may not be entrusted with executive powers.”
Yes. The Court, again paying attention to the specific provisions of the act, found that the office
was “the very essence of ‘execution’ of the law.” Under the law, “the Comptroller General must
exercise judgment concerning facts that affect the application of the Act. He must also interpret
the provisions of the Act to determine precisely what budgetary calculations are required.” The
Court concluded that “Congress in effect has retained control over the execution of the Act and
has intruded into the executive function.”

Dissent. Justice White’s dissent focused on what he saw as the Court’s “attaching dispositive
significance to what should be regarded as a triviality.” Justice Blackmun’s dissent argued that
the original statute should have been found unconstitutional. Concurrence. Justice Stevens,
joined by Justice Marshall, concurred in the judgment, focusing on Article I of the Constitution.

Bicameralism and Presentment

Art. I, §§ 1, 7 require that all legislation be bicameral—identical bills have to pass both
houses of Congress—and must be presented to the President for signature or veto.

INS v. Chadha (1983)

Facts: The Immigration and Nationality Act authorized either House of Congress, by
resolution, to invalidate the decision of the Executive Branch, pursuant to authority
delegated by Congress to the Attorney General, to allow a particular deportable alien to
remain in the country.

Held (BURGER): This congressional veto provision is unconstitutional.

(1) The Constitution says that the legislative power of the Federal Government must be exercised in
accord with a single, finely wrought and exhaustively considered procedure, which is an integral
part of the design for the separation of powers.
(2) Congress must abide by its delegation of authority to the Attorney General until that delegation
is legislatively altered or revoked.
(3) When the Framers intended to authorize either House of Congress to act alone and outside of its
prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such
action in the Constitution.

POWELL (concurring in the judgment)

The only effective constraint on Congress' power is political, but Congress is most
accountable politically when it prescribes rules of general applicability. When it decides
rights of specific persons, those rights are subject to “the tyranny of a shifting majority.”

WHITE (dissenting)
Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain
from delegating the necessary authority, leaving itself with a hopeless task of writing laws
with the requisite specificity to cover endless special circumstances across the entire policy
landscape, or in the alternative, to abdicate its law-making function to the executive branch
and independent agencies. To choose the former leaves major national problems
unresolved; to opt for the latter risks unaccountable policymaking by those not elected to
fill that role.

Clinton v. City of New York (1998)

Facts: The Line Item Veto Act gave the President the power to cancel in whole three types
of provisions that had been signed into law:
(1) any dollar amount of discretionary budget authority;
(2) any item of new direct spending; or
(3) any limited tax benefit.

Held (STEVENS): The Act violates the Presentment Clause.

(1) In both legal and practical effect, the Presidential actions at issue have amended two Acts of
Congress by repealing a portion of each. Statutory repeals must conform with Art. I, but there is
no constitutional authorization for the President to amend or repeal.
(2) The contention that the cancellation authority is no greater than the President's traditional
statutory authority to decline to spend appropriated funds or to implement specified tax
measures fails because this Act, unlike the earlier laws, gives the President the unilateral power to
change the text of duly enacted statutes.
(3) The Act's procedures are not authorized by the Constitution. If this Act were valid, it would
authorize the President to create a law whose text was not voted on by either House or
presented to the President for signature.

KENNEDY (concurring)
By increasing the power of the President beyond what the Framers envisioned, the statute
compromises the political liberty of our citizens, liberty which the separation of powers
seeks to secure.

SCALIA w/ O’CONNOR & BREYER (concurring & dissenting)

Had the Line Item Veto Act authorized the President to “decline to spend” any item of
spending, there is not the slightest doubt that authorization would have been
constitutional. What the Line Item Veto Act does instead—authorizing the President to
“cancel” an item of spending—is technically different.

BREYER w/ O’CONNOR & SCALIA (dissenting)

The Act does not violate any specific textual constitutional command, nor does it violate
any implicit separation-of-powers principle