CONSTITUTIONAL LAW OUTLINE

I.

CONSTITUTIONS TEXT, HISTORICAL CONTEXT, AND INTERPRETIVE METHODOLIGIES

A. Methods of Analysis: The Court has adopted several diverse methods of interpreting the
Constitution. However, courts decide cases on the narrowest grounds possible.
1) Text: The Textual Method looks to the words in the Constitution as playing a central role in
the interpretive analysis, looking directly at the textual provision.
2) Original Intent: The Original Intent Method shares the same goals as the Textual Method
and seeks to learn the Framers original intent by looking to the debates and the Federalist
Papers preceding the adoption of the Constitution.
i)

Claims to discipline Judicial review

ii) District of Columbia v. Heller: The District of Columbia has a ban on handguns,
and in addition prohibits them from being in the home unless they are disabled.
Respondent Heller brings an action claiming that this complete ban violates the 2nd
Amendment right to keep and bear arms. He applied for a license under the act, but
was denied despite being a policeman. Licenses available for 1 yr periods
a. Heller follows this "we are guided by the principle that "[t]he
Constitution was written to be understood by the voters; its words and
phrases were used in their normal and ordinary as distinguished from
technical meaning" Doesn't allow for change of the times. We are fixed
into the social norms of when it was created
b. The Right Is Not Unlimited - not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose
i.
Limits are dangerous and unusual weapons & prohibitions on
possession by felons, mentally ill, or carrying in sensitive places
c. Varieties
i.
"original intent" discern the intent of the authors (Stevens
dissent) -- Relies on the original drafts from Madison who wrote
the Bill of Rights
ii.
"original public meaning" discern the understanding of the
public (Court)
1. Discerned by looking at dictionaries and literature during
the time
iii) Non-Originalism: the meaning of the Constitution may change over time, evolving
as social conditions and values change
a. "Living Constitution"
b. "Translation" translating the social intents into ones for the current
society
c. Says that originalism is doomed to failure
3) Constitutional Structure: The Constitutional Structure Method seeks to decide cases based
on: a) the Constitutions maintenance of separation of powers or b) the Constitutions
federalism framework. The Court will decide if a particular result is implicit in the structure
of the Constitution.
4) History and Tradition: The History and Tradition Method looks at the historical backdrop
around which a particular Constitutional provision was adopted. As far as tradition, the Court
may grant protection based upon traditional societal needs.
5) Political Theory: The Political Theory Method may seek analysis based on principles of our
democratic system.

6) Social Policy: (Fairness/Justice): The Social Policy Method seeks to construe the
Constitution in a light that creates sound social policy.
7) Precedent and Doctrine: The Doctrine Method focuses on the pattern and practice that has
worked and is largely Stare Decisis or the Rule of Precedent. The Court may wish to adhere
to a previous decision. As Brandeis said, Stare decisis is usually the wise policy, because in
most matters it is more important that the applicable rule of law be settled than be settled
right. The court may also choose to revoke precedent. In ignoring precedent, the Court is
freer in Constitutional Law than other areas of law.
B. Historical Foundation: The Constitution came about after dissolution of the Articles of
Confederation. The Constitution is designed to simultaneously: a) strengthen government and b)
weaken government.
1) Problems in 1787: The Articles of Confederation, ratified in 1781, plagued the young country
with several problems.
i)

State Protectionism: In the Articles, there was no supremacy clause, no power

to tax and no power to regulate commerce. Problems arose because states
mucked around with commerce instead of leaving it to the national
government

ii) Extreme Populism: There was a lack of protective property rights, and other
problems such as states creating their own currency, which triggered inflation
(which was good for debtors but bad for creditors).
iii) Uncertainty: There was a general feeling that the federal government was
incompetent, unable to govern and that there was a need for structure. Regional
differences mired the country in squabbling as autonomously-acting states
undermined and undercut the federal government.

2) Goals of the Constitutional Convention: The Framers brought two distinct notions to the
Convention.
i)

Limited, Enumerated Powers: Rather than living under the idea that the
government held all the power regardless, the Constitution a) weakened government
in that it encompassed the idea that the people were actually giving power to the
government. The limited, enumerated powers b) strengthened government in that
they were considerably broader than the power held under the Articles of
Confederation.

ii) Separation of Powers: Convention further established notion of separation of

powers: one central government comprised of separate executive, legislative and
judicial branches.
3) Federalists vs. Anti-Federalists: Two camps emerged with regards to the document.
i)

Federalists: Pro-Constitution: The Federalists were comprised of men like James

Madison and Alexander Hamilton who believed in the benefits the Constitution
entailed.

ii) Anti-Federalists: Anti-Constitution: The Anti-Federalists were led by men like

Thomas Jefferson who believed in decentralized and smaller government; more

pure democracy manifested by participation and not by just voting; a Constitution

that could change often by successive generations; a more agrarian populace and
debt relief. (Jefferson, for example, was a tremendous debtor.)
II. JUDICIAL REVIEW
Judicial Review is the power to review legislation/executive acts/regulations and declare such laws
unconstitutional. (Given by Marbury)
A. Theory of Judicial Review: Judicial Review was born with Marbury v. Madison. [Marbury v.
Madison (1803): Marbury had been given a job as Justice of the Peace by outgoing President John
Adams. Incoming President Thomas Jeffersons Secretary of State, James Madison, refused to deliver
the commission. Under the Judiciary Act of 1789, Marbury filed suit in the Supreme Court for a writ
of mandamus directing Madison to deliver his commission. Held, Justice John Marshall reasoned: 1)
Marbury did have a right to his commission; 2) Marbury did have a judicial remedy in that the Court
can order the President to deliver the commission (but could not review political decisions); 3) the Act
giving the Supreme Court jurisdiction to decide such matters is unconstitutional. Marshall, did not get
the job.]
1) When an Act of Congress is Unconstitutional: The Court, as it did in Marbury, can rule
that a statute is unconstitutional when it violates the Constitution. [Marbury: Held, Judiciary
Act violates Constitution because it grants powers to the Court not vested by the Constitution
the 1789 Act authorizes an original action, but the Constitution does not]
2) The Constitution Prevails: When a statute comes up against the Constitution, the
Constitution, as supreme law, prevails.
3) The Judiciary Reviews: It is emphatically the province and duty of the judicial department
to say what the law is. [Marbury.]
4) Review is Supreme and Exclusive Law of the Land: What the Supreme Court decides is
enforceable; (though it may be difficult to enforce if the President or Congress are at odds.)
Essentially, the Supreme Court is 1) the authoritative voice on the Constitution; 2) the
Exclusive Interpreter; 3) It can invalidate actions; 4) Compliance with Decisions can be
consensual. [Cooper v. Aaron (1958): Arkansas refused to enforce Brown v. Board of
Education decision, claiming the law did not apply to the state. Held, Supreme Court is the
ultimate interpreter of the Constitution, law does apply to the state and is binding.]
5) Notes:
i)

Case establishes that the federal courts may review

1. Acts of Congress
2. (Some) acts of the executive
ii) Congress lacks the right to expand the courts original jurisdiction under Art III, 2
1. "with such exceptions and regulations as Congress shall make" In all other
Cases before mentioned, the supreme Court shall have appellate
jurisdiction, both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
2. The terms "ambassadors or public ministers" only pertains to foreign
dignitaries
iii) Consequences
1. Supreme Ct has a powerful check on Congress and Executive
2. Ct can override preferences of majority citizens
B. Limits on Judicial Power: The Court is limited to only justiciable cases or controversies. Art III 2

1) (Who?): A Party with Standing: Only a party with Standing to Sue may bring an action
over an issue to be decided by the Court. Additionally, the case must (usually) be appealed to
the Court (unless the Court has original jurisdiction). Certain factors can show standing.
[Lujan v . Defenders of Wildlife (1992): Wildlife organization sued Interior Department for
not following Endangered Species Act, curtailing their ability to observe wild animals in their
native habitat. Held, The plaintiffs do not have standing to sue because they fail black letter
law requirements: a) No injury in fact; b) No causation; c) No redressability.]
i)

Injury in Fact: The plaintiff must suffer concrete harm, not vague, uncertain
harm. Such harm can be physical, economic or deprivation of a particular right.
[Lujan] An association can sue for non-monetary loss if any of its members can,
as well.
1. Injury in fact does not include procedural irregularity, but harm. [Lujan,
Concurrence.]
2. Two types of injury
i) Personal
i. If they could show that their school really isn't integrated
ii. Any person in the black race could sue if this was the
case!
ii) Stigmatic
i. Though a stigma may be true, you have to show that it
affected you! The psychic effect is not an adequate injury,
but if it leads to another injury (if they applied and were
denied)
3. The Dimensions of injury: "Speculative" and "Imminent" Injury
i) Speculative
i. Los Angeles v. Lyons: choked by police and knocked
unconscious, brings suit to injunct the use of chokeholds
by the police. Had standing for the damages, but not for
choking b/c unlikely he would be chocked again
1. RULE: YOU NEED STANDING FOR EACH
CLAIM! (but no one would have standing here)
ii) Imminence
i. Lujan: denies standing because the members had only
some-day intentions to visit the affected areas. The
asserted injury lacks imminence.
1. No Real Definition Given for Immenence
4. Associated Standing Rule members of a corporation harmed
significantly enough to affect the organization [See Hunt v. Washington
Apple Advertisers]
i) An organization has standing if:
i. One or more of a groups members meet Art. III standing
requirements (injury, traceability, redressability)
ii. Relief requested is germane to the organizations purpose
iii. Neither the claim asserted nor the relief requested requires
participation of individual members
1. For example, you cant seek damages for injury
to a members property
2. Court can't regulate where the remedy would go
(goes to corp, but can't make it go to the
members)

ii) Causal Connection: The But For Test: would harm against plaintiff continue?
there must be a causal connection between the injury and the conduct complained of
1. Linda R.S. v. Richard D.: Mother alleged that a certain individual was the
father of her illegitimate child, that he refused to pay support, and that the

2.

3.

district attorney refused to enforce art. 602 against him because illegitimate
children were outside of the statute's scope
i) HELD: mother made an insufficient showing of a direct
connection between the vindication in her interest in her child and
the enforcement of state criminal law no standing
i. If found guilty, he would go to jail and not pay anyway
Warth v. Seldin: Petitioners, various organizations and individuals, brought
an action against respondent town, and against members of respondent
town's planning and zoning boards. Petitioners claimed that respondents'
zoning ordinances effectively excluded persons of low and moderate
income from living in the town
i) HELD: the facts alleged failed to support an actionable causal
relationship between respondents' zoning practices and petitioners'
asserted injury
ii) petitioners were unable to demonstrate that unless relief from the
allegedly illegal actions was forthcoming, their immediate and
personal interests would be harmed
i. unlike cases where housing was intended for certain
income levels (public housing)
Duke Power Co. v. Carolina Environmental Study Group Inc: Appellant
power company sought review of a judgment from the United States
District Court for the Western District of North Carolina, which determined
that appellees, environmental organizations and individuals who resided
within close proximity to a planned nuclear power facility, had standing to
bring a claim for declaratory relief, and that the Price-Anderson Act,42
U.S.C.S. 2210 et seq., was unconstitutional
i) HELD: But for the act, the plant wouldn't be built!
i. They had proof! Deposition had their statements saying
that they built because of the legislation

iii) Redressability: Even if the plaintiff sought relief they wanted, would they get the
state of the world they want? it must be likely that this injury will be redressed
by a favorable decision.
iv)

Constitutional vs. Prudential Standing: Prudential standing means the court is

choosing to allow at its own discretion. MUST SATISFY ALL!
1.

Prudential (Discretionary) Standing Limitations

i) Bar on raising "third-party" rights
i. Exceptions [Singleton v. Wulff: refusal to extend
Medacaid benefits to non-medical abortions. Physicians
bring the claim that it violates the rights of women to get
abortions court finds for exception & Art III standing
(injury = no surgeries; traceability = no payment;
redressability = changes if the law is changed)]
1. Special Relationships - Enjoyment of the right is
"inextricably bound up" with the activity of the
litigant [Doctor to Patient here Doctor
asserting his rights as well] AND
2. Obstacles - The ability of the third party to assert
their rights [Womens desire for privacy w/
abortion and imminent mootness of claims - if
she delivers the baby, no standing]
ii. Cases
1. Barrows v. Jackson: White owner allowed to
raise rights of black tenants in defending breach

of contract claim for breaking racially restrictive

covenant on home
a. Relationship The plaintiffs desire to
lease these people his land is bound by
their ability to do so
b. Obstacles They aren't parties to the
contract so no standing!
2. Craig v. Boren: Females could drink beer at the
age of 18 but the men couldn't until they were
21. Bartender brings suit
a. Relationship ability to sell beer
b. Obstacles Court does not really
address this
3. Gilmore v. Utah: Mother sued the state on her
son's behalf. He was to be executed. He didn't
want her to.
a. Mom has no Art III Standing!
b. RULE: You must have Art III standing
to assert claims of third parties
ii) Bar against generalized grievances an injury undistinguished
amongst a group of people [United States v. Richardson: Plaintiff
sued Congress. He alleged that public reporting under the CIA Act
of 1949 violates Article I, s 9, cl. 7 of the Constitution the
statement and account clause; court finds no standing]
i. Really based on one's status when their suing
Richardson claims status as a tax-payer, if claims are
suing for rights of citizenship or tax-payesr, then probably
GGs b/c identical injury (not knowing) amongst all tax
payers/citizens
1. Frothingham v. Mellon (comparitively minute
affect on taxpayer insufficient to support
standing) brought claim that gov. spending
money in the way that is unconstitutional
court says no standing
a. Why deny the taxpayer? everyone
could sue! Should be handled through
political methods!
2. Exception Challenges that Congress acted
beyond the scope of constitutional limits
a. Spending programs Flast v. Cohen:
plaintiff's invoking status of taxpayers
challenge federal expenditures allegedly
in support of religious schools forced to
support religious organizations with
which they may have disagreements
b. Transfer of property no taxpayer
standing to challenge transfers to
religious organizations (under the
property clause) [See Valley Forge
ChristianCollege]
c. General Appropriations to Executive
no standing to challenge funding (no
congressional direction on spending
from Executive gen appropriations)
d. Tax Credits no standing to challenge
tax credits for contributions to orgs that

fund religious schools (a tax credit, not

a spending problem)
ii. Cases
1.

2.

3.

iii. Notes
1.

2.

3.

Ex Parte Levitt: interest of petitioner as a citizen

and member of the Supreme Court bar was
insufficient to show direct injury from allegedly
unconstitutional appointment of Hugo Black to
the Supreme Court
Schlesinger v. Reservists Committee to Stop the
War: plaintiff challenges service in the armed
forces of several members of Congress (seeks to
prohibit). Says that violates Incompatibility
Clause interest is held by all citizens, no real
injury.
a. Argument that no one would have
standing is not sufficient grant for
standing
FEC v. Akins: Congress passes a law giving
them a right to the information and another that
says any citizen can bring a suit to challenge
anything unlawful under the federal election law
a. RULE: Congress can grant standing in
statutes for otherwise generalized
grievances (bypassing prudential reqs)
b. Distinguished from Lujan not some
day intentions, information is tangible!
c. Distinguished from Richardson:
Richardson does not have prudential
standing! No unique right or need for
the information + Congress already
granted the right in the statute
What constitutes a generalized grievance?
a. A law that no one could practice
religion in the US? A right that is
personal to you! So there is standing. In
Richardson, it is not a right that is
personal to him (affects everyone the
sameway). He does not make this claim
b. A law to flood the state of New York?
Standing. Everyone is not affected the
same

2.
Constitutional (Art III Non-Discretionary) Standing Limitations
i) Party raising claim must allege and prove the party has suffered a
(What do they have to prove for standing)
i. Personal Injury that is
1. Fairly traceable to the 's conduct
2. The injury must be likely to be redress by
favorable decision
Example: A city ordinance prohibits the display of murals on the exterior
of buildings in an historic district unless approved by the local historic
preservation officer. Artie painted a mural and sold it to a Bibi, who owns a
nightclub in the historic district. The historic preservation officer concluded
that the mural could not be displayed on the exterior of the nightclub. Artie

sues the city, alleging that the ordinance violates his First Amendment
rights and those of Bibi
i) Standing? Injury in fact no cognizable interest, once he sold the
mural, the right to display was conveyed to the purchaser so NO
STANDING! [See Burke v. City of Charleston]
ii) Court does not addrerss whether he can raise Bibis 1 st Amend.
rights
v) Allen v. Wright: Parents of black public school children brought suit against the
Internal Revenue Service (IRS), alleging that insufficient denial of tax-exempt
status to racially discriminatory private schools interferes with their childrens ability
to receive an education in public schools.
1. ISSUE: Does the harm alleged by the respondents fulfill the constitutional
requirement of standing?
2. RULE: Article III standing requires that a plaintiff allege a harm directly
traceable to specific action on the part of the defendant.
3. HELD: Ps lack standing
i) The injury is "beyond any doubt, not only judicially cognizable
but, one of the most serious injuries recognized in our legal
system"
ii) The court says the alleged injury is not "fairly traceable" to the
IRS's enforcement policies. The link is too attenuated
iii) If could show personal injury, then maybe
4. Challenge is not the law, but the execution/enforcement of the law/guideline
i) Challenge would run afoul the structural principle that "ART II
assigns the President and not to the courts a duty to take care that
the laws be faithfully executed" [Marbury]
ii) RULE: Presidential actions are justiciable only when they are
non-discretionary (by law) and not discretionary
5. Simon v EKWRO: organizations challenged an IRS Ruling which permitted
some hospitals to deny admission to non-emergency indigent patients
without jeopardizing their tax-exempt status. Claim rule encouraged nontreatment. (suggests suits btwn tax payers and IRS can have some 3 rd party
challenges)
i) HELD: Ps failed to establish that the denial of treatment was
fairly traceable to the revised revenue ruling
i. Purely speculative whether denials are attached to the rule
or hospital decisions made w/o tax implications (no causal
connection)
ii) Distinguished: "The [Allen] complaint suggests no substantial
likelihood that victory in this suit would result in respondents'
receiving the hospital treatment they desire"
i. respondents claim no injury dependent on taxpayers'
actions: "[t]hey claim indifference as to the course private
schools would take."
vi) Massachusets v. EPA: In order to protect the States interest in the land on the coast,
the State of Massachusetts petitions the EPA to regulate gas emissions from cars.
There is much research to show such emissions add to green house gases that effect
or cause global warming which in turn affects the water on the coast. The EPA
denied the request. Now the State of Massachusetts is suing the EPA for not
enforcing the Clean Air Act.
1. Distinguished from Allen v. Wright State versus individual; Congress
has provided a procedural right to persons in the position of Mass.
2. Congress says that anyone can challenge and therefore gives the right for
the state to do so has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy where none existed
before within Art III bounds

3.
vii) Notes
1.

2.
3.

Held: There are incremental changes, doesn't have to fix it all at once!
("likely to redress") diffivulty = its a global problem
From Allen and Massachusetts, obstacles to ones ability to obtain services
in a non-discriminatory manner and damages to property are injuries that
are seen as such by the courts they are cognizable injuries that will
support standing
Likewise, loss of economic opportunities or pocketbook losses are readily
accepted as injuries by the courts
Less tangible hurts
i) Deprivation of the experience of viewing an endangered species in
its native habitat [See Lujan v. Defenders of Wildlife]
ii) Deprivation of access to information
i. It is a cognizable injury - absent congressional action to
create the right to seek the information, it's doubtful that
the court would treat this as a cognizable injury [See
Akins v. FEC AIPAC failed to register expenditures to
and on the behalf of federal candidates b/c they believed
they fell within an exception to the statute]
iii) Being subject to a racially gerrymandered system of representation
i. Cognizable? Yes if you live in the jurisdiction. Seems odd
because they are affected by the gerrymander [See U.S. v.
Hays State's congressional redistricting plan was
challenged by the voters, only those personally affected
had standing, but they couldnt live there b/c of
gerrymander]

2) (What?): Only Legal Questions are Reviewable: The Court can only review legal
questions, not political acts that are within Presidential or Congressional discretion.
Political does not mean political issues, but issues that are to be decided with finality by one
of the other branches [Roots in Marbury].
i)

Political Question Doctrine: The factors to be considered by the court in

determining whether a case presents a political question are (may have one or more
of the following):
1. Is there a textually demonstrable constitutional commitment of the issue to a
coordinate political department (i.e. foreign affairs or executive war
powers)? [See Nixon v. US] OR
2. Is there a lack of judicially discoverable and manageable standards for
resolving the issue? [See Powell v. McCormack] OR
3. The impossibility of deciding the issue without an initial policy
determination of a kind clearly for nonjudicial discretion. OR
4. The impossibility of a courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government. OR
5. Is there an unusual need for unquestioning adherence to a political decision
already made? OR
6. Would attempting to resolve the matter create the possibility of
embarrassment from multifarious pronouncements by various departments
on one question?
ii) The dominant factors
1. the appropriateness of attributing finality to the action of the political
departments [See Nixon v. US] and
2. No satisfactory criteria for judicial decision [See Powell v. McCormack]
iii) Equal Protection as Legal Question: Equal Protection of voters is a legal question.
[Baker v. Carr (1962): Voters in Tennessee challenged the state legislatures failure
to re-apportion the Tennessee General Assembly in sixty years; they claimed the

legislatures failure violated the equal protection clause by debasement of their

votes. Held, the voters claim was not a nonjusticiable political question. Equal
Protection Clause of 14th Amendment (well developed and familiar judicial
standards), superseded State gov. involves politics but isnt a political question]
iv) House Deciding Qualifications as Legal Question: The Houses setting of
qualifications for its members is a legal question. [Powell v. McCormack (1969):
House member passed all Constitutional qualifications for office but was denied seat
by House because of alleged embezzlement and perjury. Constitution allows
expellment by majority vote for House members. Held, Allowing House to
determine for itself the qualifications of its members was not a political question, but
a constitutional question and was thus justiciable.]
v) Foreign Affairs as Political Question: Foreign Affairs if a political question.
[Goldwater v. Carter (1979): Senator Goldwater challenged President Carters
treaty with Taiwan; Plurality, The Presidents actions on foreign affairs is a political
question, the country must have a single voice on foreign affairs.]
vi) Impeachment as Political Question: Impeachment is not a legal question. [Nixon
v. United States (1993): Federal judge in Mississippi impeached for high crimes and
misdemeanors, tried by Senate committee, convicted by entire Senate, challenged
that he was not tried by the full Senate; Held, Nixons argument would place final
reviewing authority with respect to impeachments in the hands of the same body that
the impeachment process is meant to regulate. Political if: a) there is a textually
demonstrable commitment to other branches; b) lack of judicially discoverable
statutes. Constitution imposes sole power of impeachment to the senate]
3) (When?): Ripeness and Mootness: The partys claim must also pass a test of ripeness and
mootness whether claim has been brought at right time and whether legal redress can be
given.
i)

Ripeness: Ripeness requires that the plaintiff show that there is an adversarial
situation that actually exists. This can be shown through the fact harm that has
happened. Generally addresses the timing of review. Is litigation premature? (is the
threatened injury speculative? Ripeness (unlike standing) usually associated with a
challenge to a law (or administrative rule) before any enforcement action
commenced)
1. Basic question: Is it unfair to require a person to wait until enforcement
action is taken against them before the offending law may be challenged?
i) The Imminence of the Law
2. Two part inquiry (Both elements reqd)
i) Are the issues to be litigated "fit" for judicial resolution? AND
i. If the answer to the question is a question of law (purely
legal issue) then it is "fit"!
ii) Would denying review impose hardship on the party seeking
review?
i. Should be immediate obligation or court might find an
absence thereof
3. Cases
i) Poe v. Ullman: State Statute prohibits the use of contraceptive
devices and the giving of medical advice in the use of such
devices. 3 Ps including the doctor bring suit. The law has never
been enforced! Contraband is regularly exchanged over the counter
i. RULE: A penal statute is not ripe for constitutional
challenge unless it is enforced by the state enacting the
statute (State obviously wasnt worried about it)

10

ii) Abbot Laboratories v. Gardner: FDA creates rule to have

manufacturers of drugs put the generic name of the drug on the
labels! They want you to know that the generic is equivalent!
i. Two Part Inquiry
1. Fit Question is: Whether the statute was
properly construed by the commisioner to
require the established name of the drug to be
used every time the proprietary name is
employed? That question will not vary with the
facts
2. Hardship
a. The assumption has to be that the FDA
is adamant about enforcing this now
which makes the case imminent!
b. "direct effect on the day-to-day business
of all prescription drug companies"
i. Will tarnish the reputation of
the company
ii. Either they must comply there
will be enormous costs through
recalls and such and if not,
they risk persecution
ii) Mootness: Mootness requires that the plaintiff show that there is an interest
throughout the litigation in need of resolve. Generally, like ripeness, involves timing
of litigation
1. Basic question, which may arise at any time in the litigation, is there a
continuing dispute among the parties?
i) Linked to prohibition on advisory opinions
2. Examples
i) Criminal defendant or civil plaintiff dies before judgment (even on
appeal)
ii) Parties settle
iii) Challenged law is repealed
3. Exceptions
i) Wrongs capable of repetition yet evading review (short-term
injuries that can recur and evade judicial review)
i. Moore v. Ogilvie: Prerequisites to getting a nominee on
the ballot for elections. At time of review, the election
was over. Was inevitable that they will have to face it
again in the next election
ii. Roe v. Wade: Pregnant women challenges Texas law
prohibiting abortion. At the time of review, she was no
longer pregnant
ii) Voluntary cessation of allegedly unlawful conduct
i. Ex: A company discharging more waste than allowed by
law, case is brought, but they change their process. They
could do it again! Could be found moot if permits were
surrendered or some other hurdle comes where they can
no longer physically do this
iii) Class action law suits
i. United States Parole Commission v. Geraghty: P,
Geraghty, a federal inmate, brought suit against the D.
Plaintiff had twice been denied parole from a federal
prison. Besides his own suit he also sought certification of
the suit as a class action on behalf of all federal prisoners
who are or will become eligible for parole.

11

1.

RULE: A class action may survive, even if the

named Plaintiffs case becomes moot before
certification of the class. The absence of the
named plaintiff does not destroy the format of
the dispute as appropriate for judicial
determination

4) (Where?): Geographic and Hierarchical dimensions influence judicial review.

5) No Advisory Opinions: The Court cannot issue opinions which advise or that consider just
a hypothetical situation.
i)

Two types
1. Actions in which there is no actual dispute beetween parties for the Court to
resolve
i) Opinion of the Justices: Gov asking questions on how to act where
the conflict arose between France and England
2. The relief requested by a party will not have final and binding effect on the
litigants
i) Judicial decisions subject to approval or revision by executive
officials
ii) Hayburn's Case 2 U.S.: Revolutionary War veterans to file pension
claims were permitted by congress.
ii) Plaut v. Spendthrift Farm: Supreme Court changes law (shortens statute of
limitations) that federal courts were using. Congresss amendment requires cases to
resume prosecution after judgment has been rendered
1. Legislation purports to "revive" lawsuits previously dismissed by federal
courts by changing applicable stature of limitations retroactively
2. If our opinions are not the final opinions on the matter, then they serve as
an advisory opinion, and we prohibit those
iii) Declaratory Judgement ~= Advisory Opinions!
1. Declaratory Judgement A binding judgment from a court defining the
legal relationship between parties and their rights in the matter before the
court with no enforcement.
2. Distinguishing factor An actual legal issue!
iv) Notes
1. Two types of Consitutional Challenges
i) "As Applied" - party seeks an exclusion from the operation of a
law on grounds that, as applied to the party, the law is
unconstitutional. The law may still pass in other applications
ii) "Facial" - Party claims that the law is unconstitutional in all
applications
i. Differs in scope of the judgement, "As applied" means
that it stays in effect, Facial challenge is not
6) Notes
i)

"Constitutional and Prudential Justiciability Doctrines

1. Constitutional doctrines
2. Common law based = prudential
ii) Congress can override prudential doctrines, but cannot override constitutional limits
C. Political control of the supreme Court's Jurisdiction
1) Appointment: Art II, 2, cl. 2
2) Impeachment: Art II, 4, Art I, 2, cl.5; Art I, 3, Cl.6-7
3) Constitutional Amendment: Art. V

12

4) Congressional Control over the Supreme Court's Jurisdiction: Art III , cl. 3:
i) "with such exceptions, and under such Regulations as the Congress shall make"
ii) Art I, 8 cl. 9, Art. III, congress given power to structure the judicial system!
iii) Exceptions Clause - Congress can reduce Supreme Courts jurisdiction (if it was
granted by the constitution in the first place) within their constitutional limits
1. Ex Parte McCardle: After writing a series of articles that were highly
critical of Reconstruction, federal officials arrested McCardle under the Act
of 1867. McCardle contended the Act was unconstitutional in providing
military trials for civilians and claimed his prosecution violated provisions
of the Bill of Rights (Act of 1789), including the First, Fifth, and Sixth
Amendments of the United States Constitution (Constitution). Before the
Supreme Court ruled on the merits, Congress passed a law repealing
Supreme Court appellate review of writs of habeas corpus. Sought Writ of
Habeas corpus
i) Had been repeated efforts by various interests for the Supreme
Court to review the constitutionality of the Reconstruction Act.
McCardle files under one statute that allows his to seek habeas
corpus, and Congress knows what's going on and repeals the Act
that allows him to sue. Congress trying to keep the court from
assessing the Constitutionality of the Reconstruction Act.
ii) After the Supreme Court had already began oral arguments,
Congress adopted a rider to an inconsequential tax bill that would
make the Supreme Court not have jurisdiction over the McCardle
case.
iii) Congress was afraid the Supreme Court ruling would be
obstruction or invalidation of Reconstruction.
2. General Issue - "Jurisdiction Stripping"
i) Congress does not have the authority to strip the authority to hear
certain kinds of cases
ii) Congress would effectively prevent the Supreme Court from
protecting constitutional rights! Unresolved politically
iii) Could limit the substance of the law (restricting the precedence
"The Constitution Restoration Act of 2005") or put a punitive
component in
3. Klein v. United States: During Reconstruction Congress enacted a law
permitting persons whose property was seized during the civil war to
recover their property or compensate them if given a presidential pardon.
The challenged legislation makes pardons inadmissible as evidence that the
claimant had not aided the enemy
i) Pardon is proof that claimant aided enemy (attempt to overrule
Paddleford) Gov. Wins
ii) Court Holds the law is not an exercise of Congress's "exceptions"
power
i. Violates separation of powers by telling the S Ct how to
decide a particular set of cases
1. Impairs the effect of a pardon and thus infringing
the constitutional power of the Executive
ii. IF it simply denied the right of appeal in a particular class
of cases then it would be an "exception"
4. Robertson v. Seattle Audubon Society: Congress passes legislation that
references two pending cases challenging decisions of the Bureau. Congress
said so long as BLM manages the lands in accordance with two new statute
provisions.
i) Court says Congress is not directing the outcome of cases pending
before the court, but instead, was simply changing the law

13

ii) DISTINGUISHED FROM KLEIN because the change of the law

falls within the authority of Congress (vs. saying what a pardon
means and ruling cases) in Art IV 3
iv) Congressional Control of Lower Federal Court Jurisdiction Art III 1 power to
ordain and establish inferior courts
1. The greater power to create something includes the lesser power to restrict
what that creation may do (Sheldon v Still)
III. NATIONAL POWERS IN THE AMERICAN FEDERAL SYSTEM: FEDERALISM
A. Review of State Court Rulings by the Federal Courts:
1) Federal Jurisdiction: If a federal question emerges in state court, and goes through the state
supreme court, the Supreme Court has authority to review. [Martin v. Hunters Lessee
(1816): Plaintiff Martin wanted land back, had been taken by Virginia and given to Hunter
according to a Virginia statute which allowed for seizure of land held by British loyalists;
statute was in conflict with Federal Treaty ending American Revolution, Virginia Supreme
Court ruled for Hunters Lessee, Supreme Court reversed. Held, The decision of the states
highest court could be reviewed by the Supreme Court because a) 25 of the Judiciary Act
granting Supreme Court power to review was constitutional; b) case concerned a federal
question: whether the statute violated the Federal Treaty.] [Cohens v. Virginia: State
prosecuting two men for selling District of Columbia lottery tickets in Virginia after
congressional act permitted, Virginia is a party, Virginia claims that Supreme Court only has
original jurisdiction, not appellate because the state is a party. Held, Supreme Court rules for
Virginia against the men, however it also asserts jurisdiction, The judicial [power] extends to
all cases arising under the constitution or a law of the United States, whoever may be the
parties. distinguishing factor - Cohens involves a case in which the state is a party
much more direct action into state sovereignty]
i)

Inhibits State Abuse: Leaving Federal Questions up to the Supreme Court inhibits
abuse. [Martin: Held, State attachments, state jealousies, and state interests, might
sometimes obstruct or controlthe regular administration of justice.]
a. Cohen
i. Establishes a federal forum for vindication of constitutional rights
and federal interests when state courts might be less hospitable.
(State court hearing a case where the state is a party)
ii. Solidifies the Courts role in constitutional interpretation

ii) Allows Uniformity: Leaving federal questions up to the Supreme Court brings
uniformity. [Martin: Held, If there were no revising authority to control these
jarring and discordant judgments, and harmonize them into uniformity, the laws, the
treaties and the constitution of the United States would be different in different
states.]
a.

Political Principles
i. State courts are more prone to political influence (elected vs. life
terms)
ii. State courts may be biased and favor state over federal interests

iii) Notes on Martin v. Hunter's Lessee

a. State courts are subject to the jurisdiction of the Supreme Court under Art
III, 2 "The Judicial Power shall extend to all Cases, in Law and Equity,
arising under the constitution, the law of the United States"
b. Structural principles (arguments for state sovereignty)
i. Supreme Court review of state court judgments is a serious
infringement of State sovereignty

14

ii. The Constitution permits the national government to act upon the
people, not the States
iii. State courts are not inferior to federal courts; they are institutions
of separate sovereigns over which the federal courts have no
authority (Strong states rights argument by Virginia)
B. Federal Government Power under the Necessary and Proper Clause:
1) The Necessary and Proper Clause: The Necessary and Proper Clause (Art. I, 8, cl.
18), Congress shall have Power To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, is not a specific power but a power
enabling Congress to select the best route to achieve Congressional goals.
i)

Express Powers: Express powers are the powers specifically enumerated in the
Constitution, such as building roads and post offices.

ii) Implied Powers: Implied powers are not enumerated but given to Congress, such as
delivering the mail.
iii) Constitutional provisions
a. Art I, 1 all HEREIN granted legislative power is given to Congress
i.
Art I 8 power for taxes, borrow money, regulate commerce
ii.
Art I 8 can make necessary and proper laws under Const
iii.
Art VI cl 2 laws shall be the supreme laws of the land
iv.
Amendment X power not delegated by Const. is left to the
states
iv) The rule [See McCulloch v. Maryland]:
a. Let the end be legitimate, let it be within the scope of the constitution
is the object of the legislation consistent with the powers conferred
(attempting to regulate commerce)?
b. "all means which are appropriate which are plainly adapted to that end but
consist with the letter and spirit of the constitution are constitutional" is
the legislation conducive to a constitutional objective?
c. "which are not prohibited" is the legislation of the type found in textual
limitations on congressional power - Art I 9, Bill of Rights?
2) Definitive Necessary and Proper Means: Different meanings of Necessary and Proper
appear throughout the Constitution, the Necessary and Proper clause has been interpreted to
mean a legitimate ends to achieve a Congressional power. [McCulloch v. Maryland (1819):
Congress chartered the Bank of the United States, a national bank designed to regulate the
money supply, generally a pre-cursor to the Federal Reserve, Maryland excessively taxed the
Bank, the Bank refused to pay. Held, Marylands tax on the bank was unconstitutional,
Congress has very broad powers to select the means to implement its powers (taxing,
spending, borrowing, national defense), Congress has power under the Constitution to
incorporate a bank pursuant to the Necessary and Proper clause; Court says that the collective
people (all states) voted on how this should be carried out when they made the constitution
the supreme law of the land. No taxation without representation]
Necessary and Proper Pretext Warning: Though Congress may implement its
powers through Necessary and Proper means, it cannot enact a law under the
pretext of exercising one of its powers if Congress does not indeed have that
enumerated power.
ii) Deference: Court owes deference to Congressional judgements about what is
necessary (risk of treading on legislative ground)
a. Cautions that should congress pass laws for the accomplishment of objects
not entrusted to the government, then they have to call it unconstitutional
i)

15

C. The Affirmative Powers of the Federal Government:

1) The Commerce Clause: The Commerce Clause (Art. I, 8, cl. 3), Congress shall have
Power to regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes. The Courts interpretation of commerce can be divided into three phases.
i)

The 1824-1936 Commerce Clause: Prior to 1937, commerce was considered to

mean an interstate activity. [Gibbons v. Ogden (1824): Gibbons held a federal
license to operate a steamboat between New York and New Jersey, Ogden had a
license from New York, Ogden wanted Gibbons to stop. Held, The US grant of
license to Gibbons was a legitimate exercise of the commerce clause because it
concerned navigation, Congress can act in such a way, thus preempting the NY
grant.]
a.

Items in Interstate Commerce: An item in interstate commerce,

essentially moving across states lines, is commerce. ["Morals"
Legislation - Champion v. Ames (1903): Held, Congress can regulate the
interstate mailing of lottery tickets. The court isn't concerned with
protecting commerce, but more so the harm to public morals. Congress
acting on a subject that states dont have the power to (interstate
commerce).] [Hammer v. Dagenhart (The Child Labor Case) (1918):
Held, Interstate shipping of textiles produced by child labor could not be
regulated because the items were textiles and not a finished product;
manufacturing is not commerce; Ct now invokes 10 th Amend, reserving
this power for the states.]

b.

Activities Directly Connected to Interstate Commerce: Activities with a

direct connection could be regulated. [United States v. E.C. Knight Co.
(1895): Held, Congress can regulate one persons buying of 98% of nations
manufacturing capacity for sugar because manufacturing of sugar only
incidentally and indirectly affected interstate commerce. Manufacturing
Commerce]

c.

Instrumentalities of Interstate Commerce: An instrumentality of

interstate commerce could be affected. [The Shreveport Rate Case:
Houston East & West Texas RY v. United States (1914): Held, Congress
can regulate imposition of intrastate rail rates (inside Texas) because it is an
instrumentality of interstate commerce (between Texas and Louisiana) - the
rates for intrastate shipment have a "close and substantial" relationship to
interstate shipments]

d.

Stream of Commerce Doctrine: Federal government has the authority to

regulate commerce from its point of origin to its point of termination
[Stafford v. Wallace (1921): court upholds the packers and stockyards act
of 1921, which authorizes the Secretary of Commerce to regulate
stockyards. The stockyards are in the "current" of interstate commerce. This
would stop states from having any power over intrastate power too much
federal power]

e.

Supreme Court Thwarts New Deal (Narrows Definition): When

intrastate commerce has a substantial economic effect on interstate
commerce, Congress may not regulate the activity pursuant to the
Commerce Clause back to E.C. Knight [Sick Chicken Case Schechter Poultry Corp. V. U.S. (1935): Congress imposed minimum
wages and prices upon the poultry industry. Schechter, a poultry wholesaler

16

sold only to NYC retailers, and bought from NYC market, but nearly all
poultry came from out of state. Held Local activities that are at the end of
the stream of commerce (chickens raised v handled) do not have a direct
effect upon interstate commerce. Carter v. Carter Coal Co. (1936): Statute
imposed maximum hours and minimum wages for coal miners. Nearly all
the coal produced would be sold in interstate commerce. Held the Act seeks
to control certain activities that are not commerce; the Act also affects
intrastate commerce to a large degree. Congress may not regulate activity
that does not have a direct, logical, and linear link to interstate commerce.]
ii) The 1937-1995 The Commerce Power, the Tenth Amendment, and
Constitutional Change: Post 1937, Court expanded commerce.
a.

Close and Substantial Relations Test: [NLRB v. Jones & Laughlin Steel
Co.: the National Labor Relations Board charged the Jones & Laughlin
Steel Co. with discriminating against employees who were union members
under the National Labors and Relations Act of1935 Held law was
necessary to prevent impediments to interstate commerce (though indirectly
strikes and riots effect commerce)]

b.

Channels and Instrumentalities of Interstate Commerce: Congress can,

essentially, regulate the channels of commerce and the way those items are
produced will not question their motives (not affected by 10 th Amend.)
and may choose reasonably adapted means to an end (Necessary and Proper
Clause) [United States v. Darby (1941): Georgia lumber manufacturer
challenging prohibiting shipment of lumber, he violated wage and
employment law. Held, a) Congress can regulate interstate shipment for
any reason whatsoever; b) Congress can regulate intrastate goods based
upon the labor conditions by which goods were produced effectively
overturning Hammer.]

c.

Activities with a Substantial Effect on Interstate Commerce: Congress

can regulate activities with a substantial effect on interstate commerce.
[Wickard v. Filburn (1942): Held, Congress can regulate personal growth
of wheat because it had a substantial, albeit trivial, effect on interstate
commerce.] CRIME [Perez v. United States (1971): Held, Congress can
regulate loan-sharking activities, they involve credit and are often part of
organized crime, which is interstate, also.] CIVIL RIGHTS [Heart of
Atlanta Motel v. United States (1964): Held, Congress can regulate
hotels refusal to serve African Americans through Title II of the Civil
Rights Act, thus African Americans would travel less, interstate commerce
affected.] [Katzenbach v. McClung (1964): The restaurant was not close
to a highway, served mostly locals, and did not advertise out of state.
However, 46% of its food was purchased from a supplier who bought the
food outside of the state. Takeout only service for blacks, but employs 2/3
blacks Held, Congress can regulate restaurants discrimination against
African Americans through Title II, enough food (46%) was purchased
from out of state, thus interstate commerce] LAND USE CONTROLS
[Hodel v. Indiana (1981): Regulating strip mining and reclamation of
mined land Held A court may invalidate legislation created under the
Commerce Clause in only two situations. First, when there is no basis for
Congress to rationally find the activity affects interstate Commerce. Second,
if there is no reasonable relationship between the regulatory means and the
ends.]

17

a.

b.

"Aggregation Principle" - instead of asking whether a particular

entity's activity has a substantial effect on interstate commerce,
consider the aggregate effect of "many others similarly situated"
on such commerce [See Wickard v. Filburn]
i. The court says that "the stimulation of commerce is a use
of the regulatory function quite as definitely as
prohibitions or restrictions thereon"
ii. The ACA case is distinguished because of "what" is being
regulated
"Rational Basis" Test: so long as Congress has "rational basis for
finding that racial discrimination in restaurants had a direct and
adverse effect on the free flow of interstate commerce" the Court's
investigation is at an end" [See Katzenbach v. McClung; Hodel v.
Indiana]

c.
iii) The Modern Commerce Clause: Since 1995, a restricted view of commerce.
limited by the 10th Amendment [See Tenth Amendment Cases]
a.

Under the commerce clause, commerce may regulate [Lopez v United

States]:
a. Channels of Interstate Commerce: [Darby, Heart of Atlanta
Motel] remove obstacles to interstate commerce
i. Lopez did not show that guns moved in commerce
ii. See Pierce Co v. Guillen
b.

c.

Instrumentalities of Interstate Commerce: "regulate and protect

instrumentalities of interstate commerce or persons or things in
interstate commerce" [Shreveport Rate Cases: Southern R Co.
Ollie's BBQ, food moving]
i. Lopez didn't apply here (not related to or move in
interstate commerce)
ii. Pierce Co v. Guillen: Shields from discovery traffic safety
reports in any litigation. Studies might identify problems
with infrastructure state is aware, didn't fix it,
negligence. Encourages the production of the reports and
doesn't want the states to stop doing them for fear of
being held liable
1. HELD: As the legislation was aimed at
improving safety in the channels of commerce
and increasing protection for the
instrumentalities of interstate commerce, it
properly fell within Congress' Commerce Clause
power
Activities with a Substantial Effect on Interstate Commserce
(with Test): "activities that substantially affect interstate
commerce" (Jones & Laughlin) Example: Man Act, can't bring
women across states to have sex with them
i. Different from Perez by the word "substantial"
ii. Lopez Rational Basis Theory! a means to an end
(necessary and proper clause and commerce relation)
1. Gov argues that increase in crime limits
commerce, so the act
2. Regulated activity has nothing to do with
commerce or economic activity

18

a.

3.

4.
b.

Not an essential element of a larger

system of economic regulation
No "jurisdictional element" that affects interstate
commerce jurisdiction of congressional
power
Link is too actuated in no sense economic

Substantial Effects Test: Congress must make findings to demonstrate the

activitys substantial effect on IC. [United States v. Lopez (1995):
Congress passed the Gun Free School Zones Act, prohibiting guns in school
zones. Held, Gun control is not economic activity. In order to push the
limits of the Commerce Clause, the commercial activity must be a)
economic in nature or the regulation of the activity must be an essential
part of a larger economic activity; b) if the phrase economic is expanded
to cover non-commercial activity, it will be viewed with a fatal
disposition. Dissent, Congress had a rational basis for deciding that the
activity affected IC.] [United States v. Morrison (2000): Congress passed
the Violence Against Women Act, allowing a new civil cause of action
against a person who commits a crime of violence motivated by gender.
Held, Gender-motivated crimes are not economic activity so no
substantial effect! Dissent, Congress provides findings, not anti-federalism
because states want this regulation.]
a. TEST: The Commerce Clause will support federal regulation of
commercial or economic activity which has a substantial effect on
interstate commerce or which in the aggregate has a substantial
effect on interstate commerce, but the effects of noneconomic
activity can not be aggregated this way in order to fall under
Commerce Clause power. Relevant Questions:
i. The nature of regulated activity: Is the regulated activity
economic or not?
1. If the court concludes the regulated activity is
not economic, the government has a steep hill to
climb. If its not an economic activity, theres no
basis for aggregating it.
ii. Connections between the regulated act and interstate
commerce: is there a substantial effect?
1. The arguments become harder to make as
connections between the factors and the case at
hand get too broad, tenuous, speculative.
iii. Jurisdictional element: Does the text of the law draw a
line btwn the activity and commerce?
1. When Congress regulates a non-economic,
noncommercial local activity, the Court will be
likely to uphold the regulation if the statute
contains a jurisdictional element (factor two) that
requires a connection to interstate commerce be
shown in each individual case where the statute
is applied
iv. The presence or absence of congressional findings
1. Not determinative (they were present in
Morrison, but absent in Lopez), but such
findings may help to demonstrate that the local
activity being regulated has a substantial
economic effect on interstate commerce.
b. RULE: No aggregation for non-economic activities [See United
States v Morrison]

19

c.

d.

i. Congressional findings: Congress isnt required to make

findings, but court will examine them.
c. Notes
i. How is VAWA different from the Civil Rights Act
considered in McClung and Heart of Atlanta Motel
1. Congress is sweeping in too broad a range of
activities to sweep under the commerce clause
2. Civil Rights cases had to prove that they catered
to interstate commerce with their food
ii. Morrison Distinguished from Lopez
1. Not sure that the states could handle this problem
a. Who's arguing for the legislation? (Was
the state lobbyists probably went to
state first and they couldn't get it done,
here it is lobbyist for women's rights)
iii. Common between Morris and Lopez
1. Both regulate non-economic activity
2. Nether statute includes a "jurisdictional element"
a. Distinguishes from the Civil Rights
cases
3. Neither is part of a "larger regulation of
interastate commerce" - distinguishes Wilber
4. U.S. v. Dorsey Challenged the amended
version of the Gun Free School Zones Act,
which provides: "it shall be unlawful for any
individual knowingly to possess a firearm that
has moved in or that otherwise affects interstate
or foreign commerce at a place that the
individual knows, or has reasonable cause to
believe, is a school zone"
Gonzales v. Raich: Challenges the Controlled Substances Act, which
prohibits the manufacture, distribution, or possession of marijuana
a. HELD: Application of the Act to plaintiffs may be sustained as a
necessary and proper means of regulating interstate commerce in
controlled substances, like marijuana [Wickard Wheat and Perez]
b. RULE: Applies the "rational basis standard" (revived)
i. Distinguished: Court here is not regulating the "class"
Congress has discretion to define classes (courts give
deference)
c. Distinguishing Lopez and Morrison
i. The overall activity the court is regulating is traffic (sale
of drugs) - "quintessentially economic"
1. We didn't know that the act intended to regulate
commerce on the face of the statute, but here we
can
ii. The prohibition on possession, production and
distribution of marijuana is part of a larger regulatory
program, the Controlled Substances act
d. RULE: regulation includes the power to prohibit commerce of a
particular commodity
i. ACA places a new restriction on Congress
1. RULE: Power to regulate does not include
power to create (forcing people to buy health
insurance)
Hypo: Challenge to an application of the Endangered Species Act Makes
it a crime to "take" any species listed as "endangered" by the DOI. The term

20

"take" has been defined to include "significant habitat modification that

injures or kills an endangered species" Protect a fly found only in an 8
square mile area, has no known economic value. Hospital tried to build,
DOI seeks to enjoin. It argues that the ESA cannot constitutionally be
applied to its activity because that would exceed Congress's power under
the Commerce Clause
a. Analysis
i. Lopez to check the channels of interstate commerce
1. Channels? No
2. Instrumentalities or Persons or Things?
ii. "Substantially Affect"? Probably here
1. Jurisdictional element?
a. Is there effort by congress requiring
govt to prove interstate commerce to
show they intended it by the statute
2. "economic or non-economic activity"
a. Aggregation has substantial effect on
interstate commerce (it's economic)
b. Wickards aggregation principle
i. Trick have to go to the
larger class of endangered
species!
ii. Not clear what the answer is
c. What's the appropriate "class" to
analyze? Flies, or endangered species
i. Endangered species is easy
ii. Fly is harder (creative
argument if there's a tourist
following)
b. Ex. Instead it's a person who rides ATV in the critical area. Is
prosecution constitutional? No.
i. Court said class was endangered species as a whole and is
economic activity and sustained under the "substantial
effects test"
ii. The gun case is no longer a "substantially effects" case
regulating things in interstate commerce
iv) Commerce Clause Flow Chart: Ways Congress can direct state behavior:
Does the Law Regulate

Go to 10th Amendment Cases

the State Itself?
Yes
No

Does the Regulated Activity

Law is Constitutional
or Product Directly Affect IC?
Yes
No

Is there a Substantial/Indirect

Law is Unconstitutional
Effect on IC (Individual
No
Aggregation)
Yes

Is the Activity
Economic in Nature? [Lopez; Morrison]
No

Law Probably Unconstitutional

21

2) The Taxing Power: The Power to Tax (Art. I, 8, cl. 1), Congress shall have Power to Lay
and collect Taxes, Duties, Impost and Excises is independent of other powers. Taxes
create revenue, can dissuade certain activity (tobacco). Gov spending can encourage people to
engage in activities. Court adopts the view that its for the general welfare unrestricted by
the enumerated powers
i)

Duties, imposts, and excises must be uniform throughout the US and Capitation
and Direct Taxes must be apportioned according to the census, Art I 9, cl 4.
Income taxes not to be apportioned
a. Voters will vote the rascals out if taxing power is abused Functional
limit on the taxing power

ii) Taxation as Revenue-Raiser and Regulation: Taxation is incentive-izing tool,

altering peoples behavior. The Tax Power must be used to either raise revenue or
for regulation pursuant to one of Congress other powers. [United States v. Butler:
As part of the 1933 Agricultural Adjustment Act, Congress implemented a
processing tax on agricultural commodities, from which funds would be redistributed
to farmers who promised to reduce their acreage Held Court found the Act
unconstitutional 2 reasons: it attempted to regulate and control agricultural
production, an arena reserved to the states. those activities were "but means to an
unconstitutional end, violating the 10th Amendment; Coercive to farmers
regulatory program disguised as a tax] [United States v. Kahriger (1953): Held,
Tax imposed on bookies and wage-makers with a separate requirement to provide
registration (to help prosecution) was constitutional because the means were related
to IRS collection of a valid tax.]
iii) Taxation Cannot be a Penalty: The tax power cannot be used to penalize. [NFIB
v. Sebelius: ACA case. Was the penalty a tax? Held Court found the penalt was a
tax under the taxing and spending clause imposed by the IRS, levied on
individuals through income taxes, collected by the treasury, and produces revenue;
Mandate leaves consumers with a rational choice between fine or payment; Taxing
inactivity is a legitimate power of Congress doesnt make it limitless b/c courts
block putitive taxes; doesnt fall within known categories of a direct tax imposed
equally on all individuals and therefore neednt be struck down due to lack of
apportionment among the states] [Bailey v. Drexel Furniture (1922): Child Labor
Tax imposing excise tax 10% on annual net profits on every employer of child labor.
Held, Tax unconstitutional because a) regulation of ages not related to revenue; b)
Mens rea was required; there 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.]
3) The Spending Power: The Power to Spend (Art. I, 8, cl. 1) is an additional power which
has not been scaled back as the Commerce Clause has been. unconstrained by the
enumerated powers
i)

Spending with Supporting Regulation: Congress can regulate and impose penalties
using the spending power. [Sabri v. United States (2004): Petitioner was charged
for offering bribes to a city councilman. Petitioner moved to dismiss was
unconstitutional on its face for failure to require proof of a connection between the
federal funds and the alleged bribe Held the Spending Clause authorizes Congress to
spend money for the general welfare, and that the Necessary and Proper Clause
authorizes it to take any reasonable steps to prevent such money from being
misspent; it was within Congress's power to prohibit all bribes to all federally-funded
organizations]

22

ii) Conditional Spending: Congress can use conditions on money to regulate states.
[South Dakota v. Dole (1987): Congress withheld 5% of federal highway funds
from South Dakota because state allowed 19 year olds to buy 3.2% beer. Held,
Congress can withhold in order to make SD enforce 21 drinking age if within Limits
to Conditional Spending: 1) is in pursuit of the general welfare, by which it is up
to Congress to decide; 2) is unambiguous so the state can exercise a choice; 3) is
related to the national interest, (drinking age goes up, drunk driving goes down); 4)
cannot conflict with other constitutional rights (14th Amend Equal Protection); 5)
cannot be coercive upon the state (Anti-Commandeering principle). Dissent: The
condition of 21 drinking age is not necessarily related to safer highways, for instance
juveniles who dont drive are penalized; conditional spending is fine as long as
Congress tells how money should be spent.]
a. Notes
a. Application of South Dakota v. Dole
i. Program advances the "general welfare"
ii. The conditions are unambiguous
iii. The conditions are "reasonably calculated to address [a]
particular impediment to a purpose for which the funds
are expended" - the highway conditions
1. Kind of a necessary and proper clause
iv. Not independently unconstitutional, and not "coercive"
1. Congress may "indirectly" achieve through the
spending power objectives it could not otherwise
"directly achieve
2. Not coercive because funds are a relatively small
percentage of highway funding. Claim of
coercion is "more rhetoric than fact"
a. If you don't meet these requirements,
you lose funding for this and this
4) Notes
i) National Federation of Independent Business v. Sebelius: Affordable Care Act Case
a. Public Policy: Cost shifting problem people unable to afford healthcare
or young and healthy so don't buy insurance They go to Emergency
room and docs under obligation not to turn them away Nation incurs
costs Shifts the burden to those who are insured instead of the nation
(higher rates)
b. Jurisdiction
a. Anti-Injunction Act prohibits congress from collecting taxes
until it's time to collect the taxes. Congress can determine what
falls under the act
i. Court interprets labeling the shared responsibility
payment as a penalty as intentions to exclude if from
the act
c. Issue: The Individual Mandate And The Commerce Clause
a. Commerce Clause Can regulate anything that substantially
affects interstate congress (if its necessary and proper)
i. Power to regulate does not include creating commerce (CJ
Roberts) "Slippery slope" the Brocolli Argument,
mandate everyone to eat brocolli
ii. There's a political limit the people won't stand for
some things!
b. Case is not litigated on the theory that it might violate individual
rights
c. HELD: The individual mandate, by contrast vests congress with
the extraordinary ability to create the necessary predicate to the

23

exercise of an enumerated power therefore, it's not necessary

and proper
d. Issue: Withdrawal Of Federal Funding for Medicare And Spending Power
a. Spending Power General Welfare
b. Congress can condition the receipt of funds
i. Views Medicare 1 & Medicare 2 (Expansion) as different
programs if you want Medicare 1 funds, you need to
support Medicare 2 Coercion b/c they got it before
ii. Gun to the Head Medicare is 10% of State Funds
c. HELD: Violates the 10th Amendment Congress can't coerce
states into accepting enacting or implementing federal policy
the anti-commandeering principle
5) U.S. v. Comstock: Convicted sex offenders moved to dismiss petitions requesting their
indefinite civil commitment under the Adam Walsh Child Protection and Safety Act.
i) Might be a variety of enumerated powers
ii) the Court pointed to five considerations that compelled its holding. (1) the Necessary
and Proper Clause grants broad authority. (2) The Court recognized that Congress
has long delivered mental health care to federal prisoners. (3) Congress had good
reason to pass the statute as it has the power to protect nearby communities from the
danger prisoners may pose. (4) The Tenth Amendment does not reserve a zone of
authority to the states in this context. (5) The Court recognized that the statute was
narrow in scope and did not confer on Congress a general police power, which is
reserved to the states.

D. State Defenses to the Federal Government: The Tenth and Eleventh Amendments:
1) The Tenth Amendment: The Tenth Amendment provides, The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people. Thus powers not given to the federal government are
maintained by the states.
i)

Congressional Regulation of States: The Tenth Amendment limits Congressional

infringements on state autonomy. [National League of Cities v. Usery (1976):
Congress amended the Fair Labor Standards Act according to the Commerce Clause
to include all employees of states and local governments as subject to minimum
wage and maximum hour provisions. Held, FLSA Amendment unconstitutional,
states should be able to act as sovereign governments; Congress may not regulate
the labor market of state employees - Congress has gone too far.] [Hodel v. Virginia
Surface Mining & Reclamation Assn. (1977): Case concerns federal regulation of
land uses (strip mining), area reserved to the states Held federal government could
impose minimum standards on the states and concluded that displacement of state
programs was a valid exercise of federal authority under the Commerce Clause,
notwithstanding the tenth amendment Limits National League of Cities. Tenth
Amendment regulations] [Garcia v. San Antonio Metro Transit Authority (1985):
Municipal transit authority was subject to minimum wage and overtime restrictions
of the FLSA. Held, Deciding which are traditional government functions is
unworkable (what is traditional government function?); instead, political checks
will do the work, state sovereignty will not be destroyed, FLSA does apply to states.
scope of state autonomy comes from the political process, not the judiciary National
League of Cities overruled. Distinguishing Garcia leaving things to the political
process to decide what is for state and what is not to regulate]

ii) Congress Cannot:

24

a.

Commandeer State Legislatures: Congress cannot make a state

legislative process enforce a federal regulation. [New York v. United
States (1992): Low-Level Radioactive Waste Policy Amendments Act of
1985 required states, inter alia, to take title to their radioactive waste after a
certain time. Held, Court struck down provision because it forced states to
regulate pursuant to Congressional direction; Congress cannot
commandeer state legislatures, transparency and accountability are
important so federal, state legislatures do not blame each other; Congress
can use other political processes.]
a. Notes
i. Can states conspire to handle the waste themselves?
1. Constitutional Problem "no state shall enter to
any treaty alliance or federation without the
authorization of Congress." (Compact Clause)
Art I 10 fear of states ganging up
ii. Commerce Clause? Waste moves and effects commerce
1. NO! Fed gov compelling the states to do
something states legislature to create a
program and appropriate money to assume title
Commandeering!
iii. Distinguishing Garcia leaving things to the political
process to decide what is for state and what is not to
regulate
1. It's not being treated like a state but as an
employer generally applicable laws
2. "Accountability Gap" would blame state reps
for the legislation that they're being held
accountable for by the fed gov's compulsion
voting confusion
iv. Can congress use the commerce clause to permit siting of
disposal sites? Yes this however is much less intrusive
1. It's all about the accountability problem
v. Basic principle congress cannot make states adopt
federal policy not regulating generally but as an
authority
vi. KEY ISSUE: Are the states given a choice? See Sebalius

b.

Commandeer State Officials: Congress cannot make a state executive

enforce a federal regulation. [Printz v. United States (1997): The Brady
Handgun Violence Prevention Act commanded the Chief Law Enforcement
Officer of each county or city to conduct background checks on prospective
gun purchasers. Held, Congress cannot impress such officers into service;
CLEOs are subject to unconstitutional commandeering; The law presents
the same sort of accountability issues in New York; a) Text: little in text; b)
Original Intent: State sovereignty, Such power by Congress is presumably
absent; c) History Precedent: No precedent; d) History Practice: Look to
1st Congress to determine; e) Structure/Policy: Sovereignty, Congress would
receive credit, not the states, unfunded, accountability would be with
whom?it should be with the President as executive. Violates Art II
Dissent: a) Text: Oaths Clause, look to the People, e) Structure/Policy:
the states are represented, locality would be enhanced rather than making
the federal government bigger.]

iii) Congress Can:

25

a.

Bless State Agreements: According to the Interstate Compact Clause,

agreements between states require the blessing of Congress, No State shall,
without the Consent of Congress, enter into any Agreement or Compact
with another state. (Art. II, 10, cl. 3).

b.

Limit to Commandeering - Prohibit Sale of Drivers Personal

Information: Congress can. [Reno v. Condon (2000) The DPPA
establishes penalties for disclosure or resale of personal information
contained in state motor vehicle records. These penalties apply to
individuals and state agencies. Held, Act constitutional because law
regulates the universe of entities that participate as suppliers to the
market; constitutional through the Commerce Clause; Court very
protective of privacy.]
a.

b.

c.

Upholds the statute. It doesn't violate the anti-commandeering

principle for three reasons
i. It does not require the states in their sovereign capacity to
regulate their own citizens. T regulates states as the
owners of databases (as an employee per say)
ii. It is generally applicable and thus falls within the rule of
Garcia
1. Also regulates those who bought the information
iii. It does not require affirmative action on the part of the
States; rather it requires that States to refrain from doing
certain things.
Example: Clean Air Act
i. EPA air quality standards. States required to implement.
If states don't they have the authority to implement a
Federal Implementation Plan
ii. Violate the 10th Amend.?
1. Have to regulate in a way that implements
federal standards or we will step in and do it! So
no it's a meaningful choice!
Sebalius is a commendeering case. Commendeering the states!

E. Limitations on State Regulatory and Taxing Powers:

1) Preemption by Federal Law: Federal authority preempts state authority due to the
Supremacy Clause (Art. VI, cl. 2). Federal laws preemption is subject to a descending
method of analysis. Sometimes federal law is floor and states can grant more rights, (the state
may have a minimum wage of $7.00, versus a national $6.25). Sometimes, however, federal
law is ceiling. national power is supreme [McCulloch]
i)

Express Preemption: the text of a federal statute expressly precludes or limits state
regulation of particular activities Congress decides if States have power
A.
ii) Conflict Preemption: where it is impossible to comply with both federal and state
authority, either in law or in regulations, thus frustrating the federal purpose; OR
where state law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress [Gade v. National Solid Waste Management
Association: Illinois and Congress both had legislation that regulated safety and
health for people working with hazardous waste material Held conflict preemption
because although the goal of both laws were the same, the states law stood in the
way of the full implementation of the federal law] [Crosby v. National Foreign
Trade Council (2000): Massachusetts enacted a law that forbid state agencies from
buying goods or service from companies doing business with Burma. Congress

26

enacted a statute that imposed mandatory and conditional sanctions on Burma. Held,
the Massachusetts statute was struck down because it presented an obstacle to the
accomplishment of Congresss full objectives under the federal Act, whereby 1) the
President had control, not Massachusetts; 2) there were limited sanctions; 3) there
was gradualism in the sanctions. Note, Court decided on narrowest ground possible.]
[Florida Lime & Avocado Growers, Inc.: Federal regulation had one standard for
certifying ripe avocados, California had a stricter one (prohibits less than 8% oil
content) Held, compliance with both regulations was not impossible, there is
neither such actual conflict between the two schemes of regulation that both cannot
stand in the same area, nor evidence of a congressional design to preempt the field.]
[Geier v. American Honda Motor Co. (2000): Motorist was injured after collision
in which car did not have an airbag (passive restraint) which made manufacturer
negligent under DC tort law. Held, 1) federal law (National Traffic and Motor
Vehicle Safety Act) does not preempt common law tort actions; 2) the Act does not
limit ordinary preemption principles; 3) NTMVSA preempts the DC safety standard
because the standard conflicts with Department of Transportation standard requiring
that some, but not all, 1987 automobiles have airbags, DOT studied extensively and
had 7 reasons, etc. Dissent, Court should be careful about making incursion onto
state grounds; clear statement should be made.]
B.
iii) Field Preemption: Displacement of state law is inferred from the scheme of federal
regulation "so pervasive as to make reasonable the inference that Congress left no
room for the States to supplement it. [Pacific Gas & Electric co. v. State Energy
Commission (1983): PGE challenged a California regulation that forbid the
construction of nuclear plants until a state agency determined that there was a
demonstrated method for the disposal of the nuclear waste as preempted by the
Atomic Energy Act. Held, Congress had not sought to regulate the economic aspects
of nuclear power through the AEA, just the safety aspects, thus California regulation
was not preempted. Not an obstacle to preventing Congressional intentions]
[Lorillard Tobacco Co. v. Reilly: Federal law governs tobacco sales through
FCLAA. Massachusetts has ordinances prohibiting in part the outdoor advertising of
tobacco near school playgrounds. Argued MA law violates 1 st Amend. Rights Held
FCLAA's pre-emption provision did not permit a distinction between concern about
minors and cigarette advertising and the more general concern about smoking and
health in cigarette advertising Field Preemption same as pacific gas?
Presumption of preumption] [Arizona v. United States: Arizona immigration law
(1) makes failure to comply with federal registration requirements a state
misdemeanor; (2) criminalizes unauthorized alien attempt to find or engage in work
in the state; (3) authorize police to arrest w/out warrant a person when probable
cause that a crime that would make the perpetrator removable from the U.S. has been
committed; (4) authorize police to stop, detain and arrest to verify immigration status
Held: (1) Court affirms Hines v. Davidowitz Congress has preempted all state law
pertaining to registration of aliens. It has occupied the field leaving no room for
state law. Registration misdemeanor is unconstitutional. It doesnt matter that state
law doesnt conflict with federal law. But note Courts concern about possible
conflict. (2) The work misdemeanor is also unconstitutional. Federal law
deliberately declined to criminalize such conduct. Thus, the Arizona law stands as
an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress.]

iv) Notes
a.

When Congress Enacts Legislation:

a. Does the federal law "preempt" - I.e. foreclose or "trump" - state
legislation that addresses the same subject matter?
b. Preemption is based on Art VI's Supremacy Clause

27

b.

When Congress has not legislated

a. State law may be invalid as entering a field reserved exclusively to
the national gov e.g. power to "declare war"; power to "exercise
exclusive jurisdiction" over D.C.
b. One prominent area - State law may be challenged as an
unconstitutional regulation of interstate commerce under the
"dormant commerce clause"
c. State law may be challenged as violating the "privileges and
immunities" secured to all citizens by Art IV 2

2) The Dormant Commerce Clause: Because of the Commerce Clause, the states are barred
from regulating interstate commerce even in the absence of federal legislation concerning the
area of interstate commerce or preemption. States, however, are given power in health and
safety.
i)

Restrictions on States Power over National Economy: According to restrictions in Art. I,

10, No state shall; restrictions in Art. I, 1 & 2, Full Faith and Credit; restrictions
in Art. VI, the Supremacy Clause; and related restrictions, states are limited in their power
over the national economy.

a.

H.P. Hood & Sons v. Du Mond: NY denies Mass. milk distributors

application to operate additional milk distribution facilities in NY
a. HELD: NY action unconstitutional under the commerce clause
A state may not use its powers to protect the health and safety of
its people as a basis for suppressing competition

ii) Rationale for Restrictions on States: Stopping states from behaving badly.
a. Historical: State protectionism should be restrained.
b. Economic Theory: Most agree (conservatives and liberals) that federal
markets are better; country should essentially be Federal Free Trade
Zone.
c. Political Theory: Accountability should be sought, Court should prevent
states from imposing burdens on out-of-staters just because out-of-staters do
not vote. Preemption by silence
iii) The Early Approach: Exclusive congressional power -- a strict version of dual
federalism : [See Gibbons v. Ogden] THE EARLY CASES [South Carolina v.
Barnwell Brothers: S.C. law prohibited the use of trucks over a certain width and
weight on the states highways. Held Court sustains the law against a dormant
commerce clause attack. Court reluctant to weigh competing interests. States
should regulate the size and weight of trucks more of a legislative than judicial
function] [Southern Pacific v. Arizona: Arizona law limits the size of trains within
the State. Held The Court invalidates the law on grounds that its local benefits were
at most slight and dubious and the burden on interstate commerce obvious and
extensive. Worker safety due to railcar slack. If states are allowed to do this, will
place incredible burdens between states (think different lengths, etc)]
iv) The Balancing Approach (After 1938): Court uses a balancing approach with
two levels of scrutiny: one for discriminatory state laws and another for neutral
ones:
a. Discrimination presumptively unconstitutional: valid only if the state can
demonstrate that discrimination is necessary to achieve a legitimate
objective and there are no other practicable, less discriminatory means to
achieve that objective.
a. State has the Burdon of Proof
b. A proxy to protectionism
b. Evenhanded regulation presumptively constitutional: A state may regulate
evenhandedly in ways that incidentally burden interstate commerce. A

28

person challenging such a law must demonstrate that the burdens on

interstate commerce outweigh the local benefits.
v) Law Discriminates Against IC: Discrimination against out-of state commerce will
subject a state law to invalidation. The Court has developed a three part test to
determine when discrimination invalidates a state law, regardless of the states
purpose:
a.

On Its Face: the state law explicitly classifies things e.g., companies,
goods, services --- on the basis of whether they are in-state or out-state
and regulates them differently, typically in ways that advantage the instate class. [Philadelphia v. New Jersey (1978): New Jersey law made
outright prohibition on importation of out-of-state waste. Held, New Jersey
law was a facially discriminatory despite health, safety and environmental
reasons. N.J. law discriminates against out-of-state waste for no reason
other than the wastes geographic origin. Protectionist means of an
otherwise legitimate state objective unconstitutional under the commerce
clause in-staters benefit from less demand of waste & land cheaper
rates] [C&A Carbone v. Clarkstown: City ordinance (discriminates
against others in state) is a waste "flow control" law requiring all nonrecyclable waste within the town be deposited at a single, designated waste
transfer facility owned privately Held Though it treats all waste alike The
immediate effect is local, but its economic effects is interstate in reach
deprives outsiders to city market (unlike Philadelphia). Immaterial that instate residents are also discriminated cant do when financing through
open market] [Dean Milk Co v. Madison: City ordinance forces all milk
sold in Madison must be process within five miles of the city Held Erected
an economic barrier protecting a major local industry against competition
from without the state - plain discrimination; Rule Establishes that local
government actions (cities, counties, etc.) as well as state actions (like
Philadelphia) are subject to dormant commerce clause Local Procession
almost always unconstitutional] [Chemical Waste Mgmt. v. Hunt (1992):
Alabama law had fee on the disposal of hazardous waste generated outside
of state, no fee on disposal of waste generated in Alabama. Held,
Differential fee was facially discriminatory.] [Oregon Waste Systems v.
Dept. of Environmental Quality (1994): Oregon law charged $2.25 per
ton on out-of-state waste disposal, $0.85 per ton on in-state waste disposal
to make up for difference paid by in-state taxes. Held, Difference in fees
was not equivalent, law thus invalid.]
a.

Acceptable if No Less Discriminatory Means: If no less

discriminatory means of achieving the end are possible,
discrimination may be valid. [Maine v. Taylor (1986): State law
forbid importation of out-of-state baitfish to prevent entry of nonnative parasite. Held, State law valid because less discriminatory
means not possible to achieve legitimate ends.]

b.

Scope of Carbone: If the state tries to monopolize, it's OK, but if

it's a local place, then not [United Haulers Assn v. OneidaHerkimer Solid Waste Mgmt Auth: City ordinance
(discriminates against others in state) is a waste "flow control" law
requiring all non-recyclable waste within the town be deposited at
a single, designated waste transfer facility owned by the STATE
(publically) Held Ordinance upheld it does not make sense to
regard laws favoring local government and laws favoring private
industry with equal skepticism The Dormant Commerce Clause

29

is not a roving license for federal courts to decide what activities

are appropriate for state and local government to undertake, and
what activities must be the province of private market
competition]
In Its Effect Facially Neutral: no explicit distinction between in-state
and out-state things as with facial discrimination, but the impact of the state
law is different (and more onerous) on out-state things than on in-state
things. [Hunt v. Washington State Apple Advertising Commission
(1977): North Carolina forbid apples sold in state from displaying any
grading system but USDAs, thus depriving Washington Apple vendors of
using their superior grading system. Held, law discriminated (protectionist)
in its effect raises cost of doing business in NC, but not so for in-state
growers & deprives Washington of advantage by their system and effects
their marketing strategy] [Exxon v. Governor of Maryland: MD law
prohibits producers who are refiners of petroleum products from operating
retail service stations in the state. There are no producers or refiners in MD
Held does not discriminate against interstate goods nor does it favor local
producers and refiners (neutral facially) not all out of staters are barred;
interstate marketers of petroleum products who do not produce or regine
arent subject to the ban]
a. RULE: Discriminatory if could be achieved by less discriminatory
means!
b. Creative Discrimination: State laws that impose discriminatory
taxes against out of state goods and services are "virtually per se
invalid" under Philadelphia; State subsidies to in-state businesses
and not to out of state businesses do not violate the commerce
clause (think in-state tuition) [West Lynn Creamery v. Healy:
MA imposes a sales tax on milk sold in the state. The revenues
from the tax then subsidize in-state milk producers. MA argues
since both parts are constitutional the whole is constitutional
Held the program operates like a discriminatory tax on imported
milk and is a clear form of protectionism (1+1=3) (purpose and
effect is protectionist (though purpose without effect is not
unconstitutional)) mollifies those who would be opposed (instate farmers) with subsidies]
1. HYPO: If MA eliminated the tax and simply subsidized
its dairy farmers? YES! That's OK.
2. HYPO: what if MA placed the proceeds of the tax in a
general revenue account and then annually appropriated
money from general revenues to pay subsidies to dairy
farmers?
a. Difference between dedicated fund for subsidies
and general revenues (not subject to personal
commitments) would have to go to annual
appropriations each year to get their subsidies
not so motivated to support the tax
b. In principle, no different from a general subsidy
iii) Law Burdens IC: The Pike Test: A state laws burden on interstate commerce will
subject it to invalidation. [Pike v. Bruce Church, Inc. (1970): Arizona statute
required Arizona-grown cantaloupe be packed in Arizona, an identified as being
from Arizona, thus enhancing Arizona cantaloupe reputation. Held, Despite Arizona
objectives in enhancing cantaloupe prestige, burdens on IC outweighed benefits.]
b.

a.

The Test: To be valid, the statute: 1) must be an even-handed regulation

(does not discriminate all alike) to achieve legitimate objective but places

30

incidental burdens on interstate commerce (presumed constitutional); 2)

promote a legitimate local public interest; and 3) its effects on IC must be
only incidental and the burden on IC cannot outweigh local commerce
Challenger must demonstrate that the burden on interstate commerce is
clearly excessive in light of the putative local benefits [Pike v. Bruce: A
guy converts a portion of the desert into farmland and produces wonderful
cantaloupes. Ships them by his packaging plant in CA. Met w/ problem
under AZ law state requires packaging in AZ and identifying them as AZ
cantaloupe Held Unconstitutional Evenhanded (doesnt discriminate
against producers, but does against cantaloupes); Legitimate state interest;
BUT poses unnecessary burden on those in AZ (tough case)] [Bibb v.
Navajoe: IL imposes a requirement for curved mud flaps. A couple of states
require straight mudflaps Held Law applied evenhandedly (which flaps
should give way? One still stands!) but substantially burdens interstate
truckers (changing flaps) if looked at independently, different result]
[Southern Pacific v. Arizona (1945): Arizona law required shorter train
lengths, thus railroads had to break up on either side of state before
entering. Held, statute invalid because it led to higher burdens and dubious
benefits.] [Kassel v. Consolidated Freightways (1981): Iowa prohibited
doubles trucks on Iowa Highways (important b/c they link the east and
west) Held, Safety benefits of prohibition were illusory, burdens incurred
on other states that trucks then drove through outweighed benefits. Same as
Bibb departure from the norm]
iv) State Discrimination is permissible if
a. It can survive "strict scrutiny" ie demonstrate that the discrimination
furthers a legitimate state objective and there are no less discriminatory
means of achieving that objective [Maine v. Taylor]
b. Authorized to do so by congress [Western & Southern Life Ins. Co. v. State
Bd. Of Equalization]
v) Market Participant Exception: When state is a market participant it can favor its
own citizens and businesses, the Dormant Commerce Clause does not apply.
[Reeves, Inc. v. Stake: South Dakota sold cement, restricted sale to just citizens of
South Dakota. Held, South Dakota market participant, can discriminate think
in-state tuition]
a.

No Downstream Restrictions: As a market participant, a state cannot

impose restrictions in area in which it is not a market-participant. [SouthCentral Timber Development Inc. v. Wunnicke (1984): Alaska
regulation required that timber sold to purchasers was required to be
processed in the state. Held, State cannot implement downstream
regulations because the state is a market participant in the timber-selling
market only, not the timber processing market.]

b.

Participant Through Contracts: A state can be a market participant

through contracts. [White v. Massachusetts Council of Construction
Employers (1983): Held, Boston could require that 50% of construction
workers be Bostonians, was market participant through construction
contracts.]

c.

The Privileges and Immunities Clause A constraint on the Market

Participant Doctrine: Only citizens (excludes corporations)fundamental
interests are protected under Art IV provides "The citizens of each state
shall be entitled to the privileges and immunities of Citizens in the several
states" (In Camden, court holds out of state residents interest in employment

31

on public works projects are "fundamental") Seen less of now since test is
more strenuous than the Dormant clause
i.

ii.

iii.

iv.

Exception a state may burden even fundamental interests (and

thus discriminate against out of state residents) "if there is a
substantial reason for the difference in treatment. The court says it
must be concerned with whether such reasons do exist and whether
the discrimination bears a close relation to them"
1. Compare this with the "strict scrutiny" applied to
discrimination under the dormant commerce clause
2. RULE: Will apply when the state is acting as a market
participant! market participant, EXCEPT when in
violation of the privileges and immunities clause
Toomer v. Witsell: Differential license fees for shrimp fishing
based on state citizenship held unconstitutional (WOULD
VIOLATE DORMANT CLAUSE NOW)
1. P&I clause "outlaws classifications based on the fact of
non-citizenship unless there is something to indicate that
non-citizens constitute a peculiar source of evil at which
the statute is aimed" (no indication out of staters caused
the lack of schrimp)
2. (would violate the dormant commerce clause now, but
done under old S. Ct. Belief that state own what's in it's
boundaries)
United Bldg & Constr. Trades Council v. Camden: P&I applies to
local laws and municipal resideny classifications
1. Two Part Inquiry
a. Does the action burden a privilege or
immunity?
b. Is there a substantial reason for the
discrimination and is the discrimination
carefully tailored to alleviate the eveil?
Baldwin v. Fish & Game Comm: Differential licensing fees for
hunting sustained
1. Only privileges and immunities "bearing on the vitality of
the Nation as a single entity" are protected (hunting is
a hobby)
2. Privilege to hunt is not a protected basic or fundamental
right

IV. NATIONAL POWERS IN THE AMERICAN FEDERAL SYSTEM: SEPARATION OF POWERS

A. Presidential Encroachment on Congressional Authority: Article II grants executive power.
1) Presidential Power in Wartime: During wartime, the president may test his power.
[Youngstown Sheet and Tube v. Sawyer (1952): During the Korean War, President Truman
ordered the Secretary of Commerce to seize the countrys steel mills in the face of an
impending steelworkers strike. Truman claimed seizure was necessary to avert shortage of
steel and prevent repercussions on War. Held, The President can only derive power from a
statute, thus Congressional legislation or the Constitution itself. President lacks constitutional
authority to take this action; Concurrence (Frankfurter), Congress 1) had considered allowing
the President to seize, it was not granted, however, legislative intent cannot be inferred from
inaction; 2) previous executive assertions of power do not add up to the power Truman seeks.
Concurrence (Jackson), The President has three forms of power: 1) Constitutional power
authorized by Congress; 2) Zone of Twilight power when there is no action by Congress

32

Executive relies exclusively on his powers may have concurrent authority with Congress
or distribution is uncertain; 3) Power is at its Lowest Ebb when Congress expressed or
implied says dont do but president acts Congressionally anyway May be sustained
"only by disabling the Congress from acting upon the subject ]
i)

Conclusions from Youngstown

a. The commander-in-cheif power does not extend to taking of private
property
b. The executive power and the duty to faithfully execute laws "refutes the
idea that the President is to be a lawmaker"
c. Past presidential practices are not determinative of constitutional limits

ii) Limiting Presidential Authorization: The War Powers Resolutions of 1973: The
Act authorizes the president to use armed forces only when there is: 1) a declaration
of war; 2) specific statutory authorization; 3) a national emergency created by attack
upon the United States, its territories or possessions, or its armed forces.
a. Requires President to consult with Congress before deployment in every
possible instance and regularly consult until troops withdrawn
b. President must report within 48 hours
c. Must withdraw within 60 days unless Congress approves, gives an
extension, or is unable to meet.
d. Resolution based on the necessary and proper clause
e. Hamdi v. Rumsfeld: Hamdi, an American citizen. Detained him as an
enemy combatant. Thought he was a member of the Taliban. Claims
detention violates the Non-Detention Act and is otherwise unconstitutional.
Files habious corpus to get release. Non-Detention Act specifically
denies President power to detain someone. Needs to be an act of Congress
Unconstitutional? hasn't been given due-process (procedural protection)
to do his rights
i.
HELD: AUMF authorized Presidents actions.
1. Category 3 if statutory intepretation issue went the other
way
2. No constitutional barrier to holding of a citizen as an
enemy combatant
3. Really kicks in when he is continuously detained with no
crime alleged
ii.
Having determined that Hamdi's initial detention was
constitutional, the court then considers whether his continued
detention violates his right of due process 5th Amend
1. Holds that citizen-detainee must receive adequate notice
and a "fair opportunity" to challenge status determination
before a "neutral decision maker"
2. Rejects the gov's view that the role of the courts should be
severely limited in such cases
f. Boumedience v. Bush: Aliens classified as enemy combatants in custody at
Guantanamo Bay request the court to determine whether they have the right
to file a writ for habeas corpus, which is a constitutional privilege not
revoked except if the Suspension Clause is in effect
i.
Holds that the Detainee Treatment Act unconstitutionally
suspended habeas corpus
ii.
Notes that neither the Combatant Status Review Tribunal (CSRT)
procedures nor judicial review of determinations of the CSRT
provide an adequate substitute for habeas corpus relief. Why not?
1. Their review is restricted to questions of law and
procedure, not to questions of fact.
2. Not an adequate substitute for habeas corpus

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iii) Authorized Presidential Action: The court can infer legislative [Dames & Moore
v. Regan (1981): President Reagan issued an executive order that suspended claims
pending against Iran to release US hostages. Held, President was authorized to act
accordingly by Congress, vaguely however. (Category 1 of Youngstown gov as a
whole lacks the authority to do this) ]
iv) Presidential Authority in Foreign Affairs: May Congress Restrict Presidential
Authority in Foreign Affairs? Most cases this is dismissed as political Zone of
Twilight [U.S. v. Curtiss-Wright Export: Congress passes law authorizes
President to prohibits sales of arms to foreign nations in this region President
orders Curtiss-Wright violates (THIS IS BAD LAW!) Held Delegation,
smellagation, doesn't need this b/c he could have done it on some other grounds ]
B. Presidential Privileges and Immunities:
1) Executive Privileges: Privileges deal with the protection of certain information; privileges
cabin off certain areas from judicial or legislative proceedings; privileges arise from
relationships or status. Broadly, privilege concerns anything under Art. II, narrowly
privileges may just pertain to the military, etc. [United States v. Nixon (1974): President
Nixon had secret tapes of conversations pertaining to Watergate, Court ordered the tapes
turned over, Nixon claimed he had absolute executive privilege to withhold the information.
Held, Nixon did not have executive privilege to the information; in deciding whether a
president has privilege, the court will balance the need for confidentiality with the need for
information.] [GAO v. Cheney: GAO wants names or people who met over Energy Task
Force, Cheney claims executive privilege of the names. Suit different than in Nixon because
Congress want information, not court. President needs a damn good reason not to disclose.
There really is no hard and fast rule. Esp. In criminal proceeding! ]

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