I.

Constitutional Interpretation and Judicial Review a. Interpretation i. Text ii. History/ intent of framers 1. Laws passed by the 1st congress given a lot of weight as most of them were Framers iii. practice iv. Precedent v. structure vi. Principles vii. Consequence 1. Judicial minimalism- interpreting the constitution as narrow as possible as to not have too much of an effect on the future 2. McCulloch v. Maryland b. Judicial Review i. Marbury v. Madison 1. For every legal wrong, there is a legal remedy 2. SC must interpret the constitution in order to rule on validity of a law against Constitution

II. Federalism a. Nature and Scope of National Power i. States exist as independent agencies ii. Supremacy clause- federal laws supreme to state laws iii. Government of limited and enumerated powers 1. Can only act within constitutionally granted powers iv. 10th amendment- Enumerated powers 1. All powers not granted to Feds given to State and People b. Commerce Power (Article 1 8) i. History and Resolution 1

1. Congress strongest regulatory power a. Broadest source of authority pull the purse strings 2. Interstate commerce a. During industrial revolution, court favored Laissezfaire ii. Current doctrine: Retrenchment? 1. Gibbons v. Ogden a. Commerce= intercourse between the states i. All phases of business- commercial intercourse in all its branches 2. NLRB v. Jones Laughlin Steel Corp. a. Regulation of labor disputes b. close substantial relation to interstates commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions 3. United States v. Darby a. Fair labor standards act and minimum wage b. Court does not have to consider Congress motives commerce does not have to be ultimate goal c. Congress job is to determine what economic outcomes should be promoted or eradicatedregulator of nations economy 4. Carter v. Carter Coal a. Challenges regulations on mining hrs and wages b. Outside of commerce power- cant regulate manufacturing conditions c. Direct vs indirect effect i. Is there something between production and interstate market? 1. If so direct 2

ii. When is affect big enough for congress to regulate it? 5. Wickard v. Filburn a. Farmer growing wheat for own use and Agricultural adjustment act b. Congress can regulate if affects interstate commerce (substantial economic effect) even If local and not commercial activity c. Rational basisi. Did congress have a rational basis for thinking activity will have an effect on interstate commerce 6. United States v Lopez a. Gun free school zone act i. Act does not require interstate commerce ii. Congress could have added jurisdictional element 1. All guns that have traveled in interstate commerce b. Congress can use commerce clause to i. Use of channels of interstate commerce ii. Instrumentalities of interstate commerce 1. Person and things of interstate commerce iii. Activity substantially affects IC- as long as activity is economic 1. Economic a. Nature of activity b. Principles of federalism 2. Incidental econ regulationcomprehensive plan 3. Aggregation 4. Rational basis (moral judgment fine as long as within powers) 3

5. Jurisdictional element 6. Findings (legislative record) c. Rules i. Activity must be commercial or economic ii. Nature of activity doesnt matter, as long as substantial effect on interstate commerce iii. Certain powers by nature belong to state (crime, education) 7. United States v. Morrison a. Violence against women act b. Court viewed area as traditionally state i. Exceeds congress powers iii. Other limits on the Commerce power (10th and 11th amendment) 1. 10th amendment a. Gonzalez v. Raich i. Controlled substance act, challenged on Cali med marijuana law ii. Congress needs to regulate it in order to maintain their power 1. Some weed may end up on the black market, so logical for congress to regulate iii. Economic activity included consumption b. National League of Cities v. Usery i. Fair labor standards act ii. Violates 10th amendment in directing local govt employees c. New York v. United States i. Waste disposal regulations ii. State protectionism d. Printz v. United States 4

i. Brady Act, commandeering state executives ii. State is not an intermediate enforcer of fed regulations e. Reno v. Condon i. State being regulated as end participant in market, not as sovereign 2. 11th amendment a. Congress can abrogate state powers according to 5 of the 14th amendment b. Penn v. Union Gas i. Court can abrogate under commerce clause (unclear why) ii. Money damages against states for commerce power c. Seminole Tribe i. Overruled Penn ii. 14th amendment designed to alter balance of power, but Art.1 8 was meant to withhold from fed govt power to take over state sovereign immunity d. Alden v. Maine i. extended state sovereign immunity bar against states in state court proceedings ii. based on background principles of constitution regarding state sovereignty iii. federal agency not barred by sovereign immunity 1. fed enforcement rare and difficult e. as a practical matter, highly unlikely individuals can get money damages from state for violating FLSA c. Spending Power i. United States v. Butler 1. Congress set quotas and paid farmers for staying within them 5

ii. Congress spending is limited- must be for general welfare 1. Not as Madison contended in only their 8 powers 2. Listed as a separate independent power (structure!) iii. Congress cannot impose condition for money if not based on enumerated power 1. Could have regulated separately under enumerated powers iv. South Carolina v. Dole 1. SC wants to lower drinking ages, but Congress wont give them highway funding v. Test 1. Does it promote the general welfare? a. Courts defer to Congress judgment on what general welfare is promoted i. Limitations of competence and power of judicial branch 2. Condition must be clear and unambiguous 3. Germaneness- condition must be germane to spending 4. Independent constitutional bar a. Federalism does come into play d. Application of Federal laws to states i. Apply exclusively to states 1. May not commandeer legislature 2. May not commandeer executive 3. May commandeer judiciary 4. May stop short of command a. Voluntary/ spending incentives i. Conditions on spending b. Regulatory choice c. Condon (state as object) ii. Generally applicable 6

1. May be applied to states 2. LTD remedy/ state sovereign immunity a. Voluntary waiver b. Fed agency suit c. Injunctive relief d. Federal abrogation (5 et al) i. May regulate bankruptcy ii. Not under commerce clause III. Separation of Powers a. Background i. Federalist papers- propaganda for constitution 1. 47 challenges the idea that govt should be 3 distinct separate branches a. Madison discusses checks and balances and their use in preventing tyranny 2. 48- power is difficult to handle, even when a constitution dictates rules a. Government is representative republic rather than democracy i. Legislature most dangerous branch ii. Judiciary powers are limited and definite iii. Executive powers are all checked by legislative authorization 3. 51- what can be trusted to prevent tyranny a. Checks and balances b. Ambition will check ambition- each branch will try to up their power, by default no branch can get too powerful b. Presidents authority over Foreign Affairs and the Military i. Torture Statute 1. Avoidance cannon- SC wont answer constitutional question if another interpretation is available 7

2. Statutes dont apply to president unless explicitly says so ii. Ex parte Milligan 1. Citizen arrested for aiding rebels. Lincoln suspended writ of habeas corpus. Tried and convicted in military court 2. Suspension of writ of habeas corpus illegal 3. Citizens cannot be tried in military court for actions in non rebel states iii. Ex Parte Quinn 1. German citizens arrested for attempted sabotage. Tried in military tribunal a. Held in secret o prevent embarrassment over arrest iv. Hamdi v. Rumsfeld 1. US born Saudi citizen arrest in Afghanistan 2. Detainee GITMO case 3. Matthews test- weigh private interest vs. government interest v. Wiretapping Memos c. President v. Congress in the Domestic Arena i. Youngstown Steel &Tube Co. v. Sawyer [the steel seizure case] 1. During Korean war, and threat of strike Truman seized steel mills and ordered them open by executive order 2. Presidents powers a. Vesting clausei. broad; all power conceivable (none listed so it must mean all)

ii. Narrow- powers that are listed b. Take care clause i. Duty vs. power ii. Duty- must enforce laws, even if doesnt like laws iii. Power- take action within law to enforce laws 8

c. Commander in chief clause d. 2 statutes 3. Actions a. President + Congress b. President c. President- Congress ii. Daimes &Moore 1. More of a sliding scale 2. Context matters tremendously a. Certain settings where there is a necessity of Presidents actions outside of Congress approval iii. Removal Power 1. Heads of independent agencies outside of Presidents removal power a. Expected to act on expertise, not political pressures 2. Removal power not mentioned in constitution, only appointment power 3. Buckley v. Valeo? a. Congress creates federal election committee b. Delegation- as long as delegation along with intelligible principle c. Officers of USA subject to Article 2 2 clause 2 i. Officer- any appointee who exercises significant authority pursuant to the laws of the USA 1. Significant authority- power to alter legal rights and duties outside of legislative spheres 4. Myers v. United States a. Myers removed from office by President, claims needed senate approval for removal b. Congressional act says postmasters can only be removed by Prez and Senate 9

c. Prez can remove- purely an executive officer, no senate needed 5. Humphries Executor a. FDR fires Humphries for not agreeing with him b. Outside of scope of limits i. Removal only for good cause c. Independent agency- FTC not purely executive position, quasi judicial and quasi legislative as well 6. Morrison v. Olson a. Ethics in government act (Watergate) b. Appointment of independent counsel. c. Inferior officer- limited powers and duration, limited tenure d. Is limitation on removal power such that it prevents president from exercising constitutional role? iv. In general 1. If there is an express law, must be followed 2. Congress cannot aggrandize its powers 3. Congress cannot give power to someone it controls by removement 4. General separation of powers a. Congress has prevented another branch from fulfilling constitutional role i. If on functional analysis, court finds can still fulfill constitutional role, will be allowed 1. Court differential to congress (Morrison v. Olson) a. Purpose in adopting rule b. How important limit is to achieve goal c. Is remaining power sufficient 5. Non delegation power 10

a. Delegation must be with intelligible principle to guide exercise of power b. In struggle for power between Congress and President, independent agencies tend to side with Congress, as Congress controls money 6. Clinton v. New York (p.310) a. Determining which category is most important 7. United States v. Nixon (p.330) a. Congress has express privilege of immunity (speech and debate clause) b. President has implied immunity i. As necessary for President to carry out functions c. Courts says privilege not absolute for all communications i. Presidential immunity in all suits regarding decisions in his official capacity 8. Clinton v. Jones a. Pres being sued for discrimination while Governor b. No immunity of stay until after office i. No possible damages stemming from official action 1. Suit has nothing to do with office of the president IV. Judicial Power a. Advisory opinions and Standing i. The court does not issue advisory opinions, an issue must actually have happened for the court to rule on it ii. Standing 1. Constitutional factors that must be present a. Injury in fact (crucial question- but court takes wide range of what injury is). Aesthetic enjoyment may even count as injury. Harm to a cognizable interest i. Concrete and particularized 11

ii. Imminent or actual b. Causation (fairly traceable) c. Redressability i. Likely to remedy (rather than speculative) 2. Prudential factors congress can tell court to ignore a. No 3rd party standing i. Close relationship involving injury between injured party and party bring suit ii. No generalized grievances iii. Zone of interest b. Mootness and Ripeness i. Mootness 1. Cases must represent an actual, ongoing dispute between the named parties 2. Exception- if the underlying dispute is capable of repetition, yet evading review. Requires that: a. The challenged action be too short in duration to be fully litigated before its cessation or expiration, and b. There was a reasonable expectation that the same complaining party would be subjected to the same action again i. Voluntary cessation 1. Measured against a stringent standard a. Only moot if defendant bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur ii. Ripeness 1. Cases must have a direct adverse effect on the individual making the challenge 2. Factors 12

a. What would be the hardship to the parties of withholding judicial consideration? b. How fit are the issues for judicial determination? i. Self executing provisions 1. If a laws mere existence adversely effects private rights and obligations, if it requires those subject to do or not to do specified acts and subjects them to specified legal consequences for non compliance, such statutes may be ripe for challenge before they are applied to any individual. c. Political Questions i. Baker v Carr 1. 6 strands of political question doctrine a. A textually demonstrable constitutional commitment of an issue to a coordinate political department b. A lack of judicially discoverable and manageable standards for resolving it c. The impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion d. A courts inability to resolve an issue without expressing disrespect for a coordinate branch e. And unusual need to defer to a prior political decision f. A situation where government must speak in one voice V. Federal Limits on State Authority a. Dormant commerce clause i. 2 types of claims 1. State law discriminates against out of state commerce 2. Law puts such burdens on interstate commerce, it is inconsistent with goals of interstate commerce ii. Discriminatory- virtually per se invalid 13

1. Face a. Is there a legitimate state interest? b. Is there a non- discriminatory alternative to achieving interest? 2. Purpose or effect a. Pike balancing test i. Local benefits ii. Costs to interstate commerce iii. Valid unless costs to interstate commerce clearly outweigh benefits 1. Judges disagree over who should be making decisions about balancing equities, judges or legislatures iii. Market Participant exception 1. Rule a. Cannot have a substantial regulatory effect outside of the market in which you are a participant i. If so, act deemed regulatory b. Must define market in which state is a participant to answer question!!!! 2. Privileges and immunities clause of Article IV a. Applies to municipal ordinances the same as state laws b. Test i. Does the law burden a fundamental interest? 1. Is burden based on state residency? (Camden case p.226) ii. Substantial interest iii. Close relationship between citizenship distinction and achieving substantial interest b. Preemption i. A valid congressional law trumps any state law 14

ii. 3 categories 1. When there is a conflict between the federal and state legislation a. Conflict preemption i. State law violates federal objectives or requires action inconsistent with federal laws 2. When congress has preempted the entire field of regulation a. Field preemption i. Federal regulation or interests are so pervasive to leave no room for a state regulatory role ii. In areas traditionally regulated by States, presumption is that the powers of the state were not to be preempted by the federal act unless that was the clear and manifest purpose of Congress (Rice v. Santa Fe Elevator Corp) 3. When the federal and state laws are compatible

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