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ConLaw Notes
ConLaw Notes
15
This section contains eight essays, Chapters 15–22, centered on the theme that the United States could
not long survive if the country continued to be governed under the Articles of Confederation, and
emphasizing the point that the crisis was imminent and necessitated immediate action against
"impending anarchy."
The point next in order, wrote the author, is the "insufficiency of the present confederation to the
preservation of the Union," an insufficiency that had led the country to the "last stage of humiliation,"
being both weak at home and flouted abroad.
The chief vice of the Confederation lay "in the principle of LEGISLATION for STATES or GOVERNMENTS,
in their CORPORATE or COLLECTIVE CAPACITIES as contradistinguished from the INDIVIDUALS of whom
they consist." The consequence was that the resolutions of Congress were not laws, but mere
recommendations to the states, which accepted or rejected them as they chose. "The authority of the
union," under a "general DISCEETIONARY SUPERINTENDENCE," should be extended "to the persons of
the citizens, — the only proper objects of government."
Government implies the power to make laws; laws, if they are to mean anything at all, have to be
attended with a "sanction" — that is, a penalty or punishment for disobedience. Under the
Confederation, the central government did not have the authority or the power to impose penalties on
recalcitrant states, which left it a mere shadow of government, scarcely deserving the name. With what
result?
"The measures of the Union have not been executed; and the delinquencies of the States have step by
step matured themselves to an extreme; which has at length arrested all the wheels of the national
government, and brought them to an awful stand . . . 'till the frail and tottering edifice seems ready to
fall upon our heads and to crush us beneath its ruins."
Analysis
Hamilton here again stressed that the "insufficiency" of the American Confederation arose from the fact
that there was no general "superintendence," and such superintendence should be extended beyond
the confederated state governments to the people themselves in their persons as citizens, "the only
proper objects of government."
Under the Articles of Confederation, the central government had no power to make laws and impose
"sanctions" for disobedience. The central government made recommendations which the states
followed or not, as they pleased. The result was a shambles, with the "frail and tottering" governmental
structure ready to collapse on everybody's head.
The situation was not nearly as desperate as Hamilton painted it for the purpose of advancing his own
arguments. But it was generally agreed that some constitutional changes (not necessarily those
advocated inThe Federalist) might well improve things.
FERDERALIST NO. 39
In Chapter 39, the first question Madison offers here is whether the new national government would be
"strictly republican" in form. No other form would be compatible "with the genius of the people of
America; with the fundamental principles of the revolution."
Madison defined a republic as a government deriving all its powers from the great body of the people
and administered by persons holding office during the people's pleasure for a limited period, or during
good behavior. The government under the proposed constitution answered that description. The House
of Representatives was to be elected immediately by the people; the Senate and the president,
indirectly by the people. Even the judges along with all other important national officers were to be the
choice, "though a remote choice," of the people themselves.
Many objected that the new government would not be federal in form, based on the sovereignty of the
states, but rather a national government based on a "consolidation" of the states. Madison analyzed this
objection at length, arguing that the new government would be at once a federal and national
government — federal in most respects, but necessarily national in others.
FEDERALIST NO. 51
In Chapter 51, the only way of assuring the separation of legislative, executive, and judicial powers was
to contrive such an inner structure of government that the departments might, "by their mutual
relations, be the means of keeping each other in their proper places."
Each department should have a will of its own, and its members should have no "agency" in appointing
members of the others. Those administering each department should have the constitutional means and
"personal motives to resist encroachments of the others."
Publius continued:
Ambition must be made to counteract ambition . . . It may be a reflection on human nature, that such
devices should be necessary to controul the abuses of government. But what is government itself but
the greatest of all reflections on human nature? If men were angels, no government would be
necessary. . . . In framing a government . . . to be administered by men over men, the great difficulty lies
in this: You must first enable the government to controul the governed; and, in the next place, oblige it
to controul itself.
The proposed Constitution did just that — by so dividing and arranging the several offices that "each
may be a check on the other; that the private interest of every individual, may be a sentinel over the
public rights."
Analysis
This section is largely an elaboration on arguments made more briefly before. The only new matter
introduced in this section consisted of the objections to occasional appeals to the people on
constitutional questions, as advocated by Jefferson (Chapter 49), and the equal objections to periodical
appeals (Chapter 50).
DAY 2 - Federal Judicial Power
Marbury v. Madison - Issue: whether SCOTUS can review constitutionality of federal laws
RULES
1. Created the authority for judicial review of executive actions
o Draws distinction between areas where there are individual rights (and therefore, govt.
duties), and those where the executive has discretion (which are dealt with by the political
process only)
2. Established that Art. III is the ceiling for OG jurisdiction. Congress can't expand it
o Art. III authorizes the maximum jurisdiction of the federal courts. As a result, Congress can't
authorize jx beyond what Article III specifies and federal courts can't gain jx by consent
3. Establishes authority for judicial review of executive and legislative acts
o Did so by saying that the Judiciary Act of 1789 authorizing the court to exercise mandamus
on OG jx was unconstitutional
Marbury Rule of Law - The Supreme Court of the United States has the authority to review laws
and legislative acts to determine whether they comply with the United States Constitution.
Federalist No. 78
Federalist No. 78 describes the process of judicial review, in which the federal courts review statutes to
determine whether they are consistent with the Constitution and its statutes. Federalist No. 78 indicates
that under the Constitution, the legislature is not the judge of the constitutionality of its own actions.
Rather, it is the responsibility of the federal courts to protect the people by restraining the legislature
from acting inconsistently with the Constitution:
"If it be said that the legislative body are themselves the constitutional judges of their own
powers, and that the construction they put upon them is conclusive upon the other departments,
it may be answered, that this cannot be the natural presumption, where it is not to be collected
from any particular provisions in the Constitution. It is not otherwise to be supposed, that the
Constitution could intend to enable the representatives of the people to substitute their will to
that of their constituents. It is far more rational to suppose, that the courts were designed to be
an intermediate body between the people and the legislature, in order, among other things, to
keep the latter within the limits assigned to their authority."
According to Federalist No. 78, the federal courts have a duty to interpret and apply the Constitution,
and to disregard any statute that is inconsistent with the Constitution:
"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is,
in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to
ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative
body. If there should happen to be an irreconcilable variance between the two, that which has the
superior obligation and validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the people to the intention of
their agents. . . ."
[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people,
declared in the Constitution, the judges ought to be governed by the latter rather than the former. They
ought to regulate their decisions by the fundamental laws, rather than by those which are not
fundamental. . . .
[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals
to adhere to the latter and disregard the former.
Federalist No. 78 therefore indicates that the federal judiciary has the power to determine whether
statutes are constitutional, and to find them invalid if in conflict with the Constitution. This principle of
judicial review was affirmed by the Supreme Court in the case of Marbury v. Madison (1803).
Limits on the Federal Judicial Power; Interpretive Limits
Limits on federal judicial power - interpretive limits, congressional limits, and justiciability limits
o Interpretive limits- question of how the Constitution should be interpreted
o Congressional limits - ability of congress to restrict federal court Jx
o Justiciability Limits - Judicially created doctrines that limit the types of matters that federal
courts can decide
2nd amendment: "A well-regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed."
o 2008, SCOTUS invalidated law violating 2nd amendment and held that the Second
Amendment protects the right to have guns apart from militia service.
District of Columbia v. Heller - Subject to certain safety limitations, the Second Amendment to
the United States Constitution creates an individual right to keep and bear arms apart from any
military purpose.
AZ Legislature v. AZ Independent Redistricting Commission - The Elections Clause and 2 U.S.C. §
2a(c) permit Arizona’s use of an independent commission to adopt congressional districts.
Supplemental Readings
o Hollingsworth v. Perry - The Supreme Court held that federal courts only have the
authority to decide cases in which there is an "actual controversy," which means that the
complaining party must have suffered a "concrete and particularized injury" that can be redressed
through court action.
o United States v. Windsor
(1) A reviewing court has jurisdiction to hear an appeal even if the appellant is not seeking
redress from an adverse judgment, provided the party retains a sufficient stake in the case to
satisfy Article III of the Constitution.
RIPENESS AND MOOTNESS
PRUDENTIAL STANDING
Prudential Standing requires (1) the prohibition of third-party standing and (2) the
prohibition of generalized grievances
BUT, congress can overrule the prudential standing requirement because they derive
not from the Constitution but from the Court's view of prudent judicial administration
Prohibition of Third Party Standing
Even when P alleges injury sufficient to meet the "case or controversy" requirement, the
Court has held that the plaintiff generally must assert his own legal rights and interest and
cannot rest his claim to relief on the legal rights or interest of a third party"
Exceptions: One exception is where the plaintiff meets other standing requirements. If
he falls within the exception, he can assert such a claim (see below)
Singleton v. Wulff - A plaintiff has standing to bring a lawsuit on behalf of a third
party’s right when that right is inextricably bound up with the activity the litigant wishes to
pursue, and when it is unlikely that the third party can or will sue on his or her own behalf.
The enjoyment of the right must inextricably bound up with the activity the litigant
wishes to pursue the
The third party must have the ability to assert his own right
o Said differently, the court will focus on two factors: (1) the closeness of the
relationship between the plaintiff and the injured party; and (2) the likelihood that the
third party can sue on its own behalf
Prohibition of Generalized Grievances
o Prohibition on general grievances prevents people from suing if their injury is as a citizen
or taxpayer concerned with having the govt follow the law
o United States v. Richardson - For a taxpayer to show sufficient personal, direct injury
to justify his or her standing to challenge a government action, he must (1) challenge an
enactment under the Taxing and Spending Clause of the Constitution (Art. I, Sec. 8) and (2)
must claim that the challenged enactment exceeds specific constitutional limits imposed on
the taxing and spending power
o Grievance is general if "the impact on [plaintiff] is plainly undifferentiated and "common
to all members of the public"
o EXCEPTION (to rule that taxpayers do not have standing): When they challenge
government expenditures as violating the Establishment Clause of the First
Amendment, the provision that prohibits congress from making any law respecting the
establishment of religion
o Flast v. Cohen - Federal taxpayers may have standing to challenge expenditures of
Congress if they show that the challenged expenditure (1) forms part of a federal spending
program and is not just incidental to the program, and (2) that the constitutional provision
under which the taxpayer claims a violation exists constitutes a “specific limitation” on
Congress’s Article I, Section 8 taxing and spending powers.
o Party seeking jx must establish a link between the status and the type of legislative
enactment attacked
o Thus, taxpayers can only challenge the unconstitutionality of an exercise of power
of congress under the taxing and spending clause of Art. I §8
o The taxpayer must establish a nexus between that status and the nature of the
constitutional infringement alleged
Under this requirement taxpayer must show that the enactment exceeds specific
constitutional limitations imposed on the exercise of congressional taxing and
spending power and not simply that the enactment is generally beyond the
powers delegated to congress under Art. I §8
Flast only applies to government EXPENDITURES (not grants of land). Also, taxpayers
can't challenge monies paid out of general executive revenue. Doesn't apply to tax
credits given either
Basically, no standing if the executive branch causes the injury
RIPENESS
The justiciability doctrine also requires that the case be ripe
If the injury is speculative and not likely to occur, then the case is not ripe
To demonstrate ripeness: (1) P must show that review is not premature; and (2) that
harm has occurred or is imminent
Ripeness/standing questions may overlap
Ripeness is different because it presents the question of when may a party seek pre-
enforcement review of a statute or regulation?
Poe v. Ullman - For a lawsuit to be ripe for adjudication, the injury threatened must
be relatively immediate and certain to occur without court intervention.
Fact that state did not yet prosecute deprived the court of immediacy to adjudicate
Abbot Laboratories v. Gardner - In determining whether a case or controversy is ripe for
adjudication, a court must evaluate (1) the fitness of the issues for judicial decision (is it a
legal question?) and (2) the hardship to the parties of withholding court consideration
Notes on decisions since Abbot
Hypothetical threats are not enough (these would be advisory opinions)
It is irrelevant that there will be a time delay before the disputed provisions come
into effect
Susan B. Anthony List v. Driehaus - "Credible threat of future enforcement" may also
make a case ripe for review
MOOTNESS
If anything occurs to a lawsuit while it's pending to end the plaintiff's injury, then the
case is to be dismissed as moot
Mootness is derived from Article III's prohibition against federal courts issuing advisory
opinions
EXCEPTIONS TO MOOTNESS DOCTRINE
EXCEPTION #1: Wrongs capable of repetition but evading review
If the injury is likely to recur in the future and it is possible that it could happen to the
plaintiff again and it is of such short duration that it will likely evade review, then the
exception applies
Defunis v. Odegaard - Pursuant to the limitations of Article III of the Constitution, an
issue is moot, and not capable of federal court review, if its resolution would no longer affect
the rights of the litigants at the time they are before the court.
EXCEPTION #2: Voluntary Cessation
A case is not to be dismissed as moot if the defendant voluntarily ceases the allegedly
improper conduct but is free to return to it at any time. ONLY if there is no reasonable
chance that the defendant could resume the offending behavior is a case deemed moot
on the voluntary cessation exception
POLITICAL QUESTION DOCTRINE
Political Doctrine - Refers to allegations of constitutional violations that federal
courts will not adjudicate, and the SC deems to be inappropriate for judicial review
Even though there's a constitutional question, court will dismiss because the Court
believes that some Constitutional provisions are best left to the political branches to
enforce and interpret
Doctrine is typically defended on separation of powers grounds; Constitution is seen as
assigning certain provisions to other branches of govt.
EG, some foreign policy issues best left to other political branches because they
have more resources and greater expertise
The Issues of Malapportionment and Partisan Gerrymandering
Malapportionment is the creation of electoral districts with divergent ratios of voters to
representatives. (unequal representation)
For example, if one single-member district has 10,000 voters and another has 100,000
voters, voters in the former district have ten times the influence, per person, over the
governing body.
Partisan (or political) gerrymandering is the drawing of electoral district lines in a
manner that discriminates against a political party.
Partisan gerrymandering challenges to redistricting plans, like racial bias challenges,
allege violation of the Equal Protection Clause.
Cases under guaranty clause = nonjusticiable
Baker v. Carr - A challenge to malapportionment of state legislatures brought under
the Equal Protection Clause is not a political question and is thus justiciable.
The factors to be considered by the court in determining whether a case presents a
political question are:
Is there a textually demonstrable constitutional commitment of the issue to a
coordinate political department (i.e. foreign affairs or executive war powers)?
Is there a lack of judicially discoverable and manageable standards for resolving
the issue?
1. The impossibility of deciding the issue without an initial policy determination of a
kind clearly for nonjudicial discretion.
1. The impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government.
1. Is there an unusual need for unquestioning adherence to a political decision
already made?
1. Would attempting to resolve the matter create the possibility of embarrassment
from multifarious pronouncements by various departments on one question?
o Guaranty Clause claims are nonjusticiable because they touch on matters of state
governmental organization
o Nonjusticiability resting on Guaranty Clause has no bearing when claims are brought
under the Equal Protection Clause
o Vieth v. Jubelirer - The issue of political gerrymandering represents a nonjusticiable
political question incapable of adjudication by the courts.
o Plurality opinion. Gerymandering questions may or may not be a political question
o Holding in Davis v. Brandemer affirmed because of plurality opinion, just don’t know
what the standard is governing gerymandering claims under Equal Protection Clause
o Political question doctrine is usually applied in 3 scenarios: (1) challenges to restrictions
on congressional membership; (2) challenges to President's conduct of foreign policy; and (3)
challenges to the impeachment process
The Political Question Doctrine Applied: Congressional Self-Governance
o Powell v. McCormack - A challenge to restrictions on congressional membership set
by the United States House of Representatives is justiciable and not a political question.
The Political Question Doctrine Applied: Foreign Policy
o Nixon v. United States - The constitutionality of Senate impeachment proceedings is
a non-justiciable political question incapable of judicial adjudication.
Commerce Power
Gibbons v. Ogden - If a state and Congress both pass conflicting laws regulating
interstate commerce, the federal law governs pursuant to Congress’s constitutional grant of
power to regulate interstate commerce
Commerce is intercourse between nations and parts of nations in all its branches, and is
regulated by prescribing rules for carrying on that intercourse.
"Commerce" comprehends the regulation of navigation as well as every species of
commercial intercourse between the U.S. and foreign nations
"Among the states" is properly restricted to that commerce which concerns more States
than one. Congress can exercise power to regulate activity when it has a substantial
effect on interstate commerce.
"Power to Regulate" - Means power to prescribe rules governing commerce.
What is Commerce?
Three Doctrines Describing Scope of Congress's Powers
Commerce is narrowly defined as one stage of business, separate and distinct from
earlier phases such as mining, manufacturing and production (which are typically
regulated by the State)
EG, U.S. v. E.C. Knight SCOTUS held that Sherman Act can't be applied to stop
monopoly of sugar refinery because they were involved only in manufacturing the
sugar. Thus it was only production of sugar, not commerce
What Does "Among the Several States" mean?
There MUST be a direct effect on interstate commerce
EG in Shreveport Court upheld the ability of Interstate Commerce Commission to
set intrastate railroad rates because of the direct impact on interstate commerce.
(in this case, railroad was ordered to charge same rates for shipping to
Shreveport, TX regardless of whether the package came from TX or LA)
Contrast: Schechter Poultry sick chicken case, federal law unconstitutional based
on insufficient effect on interstate commerce.
As part of New Deal registration, The National Industrial Recovery Act
authorized the president to approve codes on fair competition to prevent
sellers from requiring buyers to buy all of their chickens including the sick
ones.
Although the Chickens came from all over the nation, the Court said
the code was unconstitutional because it concerned operation of
business within NYC.
"The federal govt has authority to regulate where there are direct effects
on commerce, "but where the effect of intrastate transactions upon
interstate commerce is merely indirect, such transactions remain within the
domain of state power."
Enforcing the distinction between direct and indirect effects on
commerce "must be recognized as essential to the maintenance of
our constitutional system."
Delineating between direct and indirect effects is tough. But the key
point is that Court has interpreted "among the states" as requiring a direct
effect on interstate commerce.
Does State Sovereignty Limit Congressional Power?
Even if an activity is commerce and among the states, Congress cannot regulate it if it
was to intrude into the zone of activity reserved to the states
Tenth Amendment controls regulation of mining, manufacturing, and production.
EG, Daggenart Court declares unconstitutional a law prohibiting shipment
of materials to factories that employ children because the effect was on
PRODUCTION (case was overruled)
The Lotter Case - Court held that power to regulate interstate commerce
includes ability to prohibit items from being in interstate commerce.
Thus, the narrow definition of comemrce,restrictive interpretation of among the states,
and use of state sovereignty as a constraint on congressional power all advance dual
federalism.
Key Decisions Changing the Commerce Clause Doctrine
NLRB, Darby, and Filburn incredibly important - since these decisions not 1 federal law
declared unconstitutional as exceeding Congress's commercial power.
NLRB v. Laughlin - Congress may regulate labor relations under its Commerce Clause
power because labor relations have such a close and substantial relationship to interstate
commerce that their control is essential to protect that commerce from burdens and
obstructions.
"Affecting Commerce" means in commerce, or burdening or obstructing commerce or
the free flow of commerce, or having led or tending to lead to a labor dispute
burdening or obstructing commerce or the free flow of commerce.
The act being challenged as unconstitutional purports to only reach what may be
deemed to burden or obstruct that commerce and, thus qualified, it must be construed
as contemplating the exercise of control within constitutional bounds
"The Fundamental Principle is that the power to regulate commerce is the power to
enact "all appropriate legislation" for its "protection or advancement"; to adopt
measure "to promote its growth and safety"; to "foster, protect, control, and restrain"
If there's a substantial relation to interstate commerce, Commerce cannot be
denied its Commerce power right
U.S. v. Darby - Congress may regulate the labor standards involved in the
manufacture of goods for interstate commerce and may exclude from interstate commerce
any goods produced under substandard labor conditions.
Congress enacted Fair Labor Standards Act, which is now in dispute. Act prevents
shipment of certain products produced in the U.S. (like wood) in interstate commerce
to states that do not conform to standards regarding labor conditions and hours.
While manufacture is not commerce, the shipping of these manufactured goods is, thus
falling within the ambits of the Commerce clause.
Congress is free to exclude from the commerce articles whose use in the states for
which that are destined may be conceived as injurious to public health, morals or
welfare, even though the state has not sought to regulate their use.
In this case, prohibition of shipment interstate of goods produced under the forbidden
standard of labor conditions is within the constitutional authority of Congress.
Congress MUSt have a legitimate end that they can reach by regulating, the regulation
must be within constitutional bounds, and the means chosen must be adapted to the
attainment of that end.
Wickard v. Filburn - Congress may regulate local activity if that activity exerts a
substantial economic effect on interstate commerce.
Whether the subject of the regulation involves "production," "marketing," or
"consumption" of a good, is not material to deciding whether or not Commercial Clause
can be used to regulate it
In this case wheat was being grown for personal use. Congress wanted to regulate
its use since overconsumption may have an effect on the market and leads to
shortages
The power to regulate commerce includes the power to regulate prices at which
commodities in that commerce are dealt in and practices affecting such prices.
Here, home-grown wheat fucks with prices of wheat in commerce. Thus
cCongress can regulate under Commerce Clause
Commerce includes all stages of business; no longer is a distinction drawn between
commerce and other stages of business such as mining, manufacture and production
Tenth Amendment is simply a reminder that for Congress to legislate it must
point to an express or implied power. It can no longer be seen as reserving a zone
of activities exclusively for state control (at least in commerce clause analysis)
What Does "Commerce Among the States" Mean?
In The Civil Rights Cases Supreme Court held that Congress could only regulate govt.
conduct and not private behavior under the 14th Amendment. But then, Heart of ATL came
along (below)
Heart of Atlanta Motel Inc. v. United States - Congress may enact regulations that
prevent racially discriminatory policies in hotel accommodations because of the negative
effects of those policies on interstate commerce.
o Case considers constitutionality of Civil Rights Act. D argues that it is
unconstitutional under the commerce clause to require him to rent rooms to blacks.
Court noted the burdens that discrimination based on race and color place on
interstate activity; nation has become more mobile, blacks have been
discriminated against while traveling; and lodging discrimination has a
quantitative effect on interstate travel by blacks
The same interest in protecting commerce has led to Congress enacting
numerous other laws regarding racial discrimination because eof the disruptive
effect it has on commercial intercourse
"Even assuming that the motels operation were only local, the Power of Congress to
promote interstate commerce also includes power to regulate local incidents thereof,
including local activities in both the States of origin AND destination, which might have
a substantial and harmful effect upon that commerce. "
Katzenbach v. McClung - Congress may regulate the discriminatory policies of
restaurants through Title II of the Civil Rights Act if those policies have a substantial effect on
interstate commerce
Considers application of commerce clause to a restaurant that only serves take-out to
blacks, but gets a substantial portion of their food out of state
The activities beyond Congress's reach are those which are completely within a
particular state, which do not affect other states, and with which it is not necessary to
interfere. -Ogden
Here burden of refusing service to blacks has imposed burdens on interstate flow
of food and the movement of products generally. They serve out of state patrons
and get most of the food they sell form out-of-state vendors
Notes
Regulatory Laws - Hodel v. Indiana - "A court may invalidate legislation enacted
under the Commerce Clause ONLY IF it is clear that there is no rational basis for a
congressional finding that the regulated activity affects interstate commerce, or that there is
no reasonable connection between the regulatory means selected and the asserted ends."
The activities beyond Congress's reach are those which are completely within a
particular state, which do not affect other states, and with which it is not necessary to
interfere.
Criminal Laws - Perez v. U.S. - Consumer Credit Protection Act upheld as constitutional
under Commerce Clause. In regulating interstate commerce, Congress may regulate those
activities which obstruct the flow of interstate commerce, such as the destruction of aircrafts;
activities that impact interstate commerce, such as loan sharking; and the utilization of
“channels” of commerce, such as with stolen goods
Tenth Amendment Application
Garcia v. San Antonio Metropolitan Authority - Congress’s application of the Fair
Labor Standards Act to the employment actions of a state municipal transit authority is a
constitutional exercise of its Commerce Clause power.
United States v. Lopez - Congress may not, pursuant to its Commerce Clause powers,
pass a law that prohibits the possession of a gun near a school.
Congress has broad lawmaking authority under the Commerce Clause, this power
does not extend so far as to authorize the regulation of the carrying of handguns,
particularly when doing so has no clear effect on the economy overall.
An act of Congress is constitutional (in this case) I the activity to be regulated has a
substantial effect on commerce.
Here, carrying of handguns (not the buying or selling) in a school zone in no way
affects commerce, either substantially or otherwise
United States v. Morrison
(1) Congress does not have the authority under the Commerce Clause to regulate violence
against women because it is not an economic activity.
The activity being regulated (violence against women) cannot stand under Lopez
because both cases involve NON-ECONOMIC activity
The United States argues violence against women affects the travelling, engaging of
business, and employment in interstate commerce of women as a group. This argument
is rejected as Congress cannot regulate non-economic, violent criminal conduct based
solely on that conduct’s aggregate effect on interstate commerce.
Gonzales v. Raich - Congress may regulate the use and production of home-grown
marijuana as this activity, taken in the aggregate, could rationally be seen as having a
substantial economic effect on interstate commerce.
Just as the addition of homegrown wheat to the overall market frustrated Congress’s
attempts to regulate the entire market in Wickard, Raich’s addition of homegrown
marijuana to the national scheme, when taken in the aggregate with others similarly
situated, has a significant effect on Congress’s ability to eliminate the national illegal
marijuana market.
Therefore, the CSA is a valid exercise of Congress’s Commerce Clause power because
Congress acted rationally in determining growing marijuana was an economic activity
with a substantial effect on interstate commerce
Congress's Power to Initiate Suits Against State Govts. - 11th Amendment Sovereign Immunity
11th Amendment - "The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State"
Also bars suits against a state by its own citizens
View #1 - Sovereign immunity creates a restriction on federal court SMJ for all suits
against state govts
Under this view states cant be sued no matter how egregious violations of federal
rights are. BUT there are three ways around this logic
State officers may be sued in federal court, even when state govts can't be
sued;
States may waive 11th Amendment immunity and consent to be sued in federal
court; or
1. Congress, pursuant to Amendment 14 §5, may authorize suits against state
govts in state courts
o View #2 - 11th Amendment treats it as restricting only diversity jx of the federal courts
o The Basic Rule: Congress May Authorize Suits Against State Govts Pursuant ONLY to
§5 of the 14th Amendment
o Seminole Tribe of FL v. FL - Congress may not abrogate states’ sovereign immunity
protected by the Eleventh Amendment unless through an exercise of power derived from §5 of
the Fourteenth Amendment.
o Kimmel v. Florida Board of Regents - Sovereign immunity cannot be abrogated via §5 of
14th Amendment with respect to enforcing the Age Discrimination in Employment Act
o Congress MAY abrogate State immunity when: (1) Congress has unmistakably
indicated it's intent to abrogate State immunity through the statute; and (2) Congress must
act pursuant to a valid exercise of power
o Enforcing 14th Amendment §5 or prohibiting conduct protected under the Amendment
is the only means of abrogating State sovereignty. Amendment 14 §5 is an affirmative
grant of power to Congress.
o Congress only has the power to enforce the 14th Amendment and to deter violation
of rights guaranteed under the amendment (no deprivation of life, liberty, or property
without due process)
o Additionally, must show "congruence and proportionality between the injury to be
prevented or remedied and the means adapted to that end"
o Congruence - Must analyze the evil sought to be deterred by the legislation;
o The legislation must be in response to some Constitutional violation
o EG, State violates federal patent law. Sovereign immunity still stands
because federal patent law not targeted at state violators
o Proportionality - If State has their own means of remedying the situation,
proportionality might not be found
o EG State Constitution has provisions for bringing suit against State govt
for patent infringement
Congress’s Greater Authority to Legislate Concerning Types of Discrimination and Rights that Receive
Heightened Scrutiny; Congress’s Power to Authorize Suits Against State Governments in State Courts
o SCOTUS uses heightened scrutiny standard for some types of discrimination and for
fundamental rights
o EG discrimination based on race = strict scrutiny standard; Some types are analyzed
under intermediate scrutiny standard (must be substantially related to achieving a
substantial govt. purpose
o Cases below show Congress has more authority to act when dealing with conduct that
triggers heightened scrutiny standard
o NV Dept. of Human Resources v. Hibbs - Congress implemented a valid abrogation of
Eleventh Amendment state sovereign immunity when it established a private cause of action
under the Family and Medical Leave Act of 1993.
o When strict scrutiny analysis is employed a law can withstand analysis if it serves
"important government objectives" and "the discriminatory means employed are
substantially related to the achievement of those objectives"
o Tennessee v. Lane - Title II of the Americans with Disabilities Act, as applied to
circumstances affecting the right to access the judicial system, represents a valid exercise of
Congress’ § 5 authority to enforce the guarantees of the Fourteenth Amendment.
o U.S. v. Georgia - There must be a Constitutional violation alleged by plaintiff in order for
a State to be sued
Congress's Power to Authorize Suits Against State Govts. In State Courts
o Alden v. Maine - Congress may not authorize suits against state governments in state
courts, even on federal claims, without the state governments’ consent.
o States also can't be sued in federal agency proceedings without their consent (Federal
Maritime Commission v. South Carolina State Port Authority
Inherent Presidential Power; Authority of Congress to Increase Executive Power
If the president has explicit constitutional authority for particular conduct, then the
issues are solely whether the president is acting within the scope of the granted power and
whether he is violating another constitutional provision
Conversely, if some statute was enacted giving him power to act, the question is
whether that law is constitutional
Next case addresses when president may act without express constitutional authority.
Art II - "The executive Power shall be vested with the president of the united states
of America . . . He shall take Care that the Laws be faithfully executed . . . Shall be commander in
Chief of the Army and Navy of the United States."
Does not say "herein granted" so question is whether president has powers not
mentioned in the constitution
Youngstown Sheet & Tube Co. v. Sawyer - The President of the United States may not
engage in lawmaking activity absent an express authorization from Congress or the text of the
Constitution.
Issue: Whether president acting within power when he issued an order directing the
secretary of commerce to take possession of and operate most of the nation's steel mills.
Problem is: Art. I states "All legislative powers are vested in a Congress of the United
States"
Argument is that this is a law that only Congress has the power to make
The president has no such authority under the constitution to take possession of
property to keep labor disputes from stopping production.
President's power is to see that laws are faithfully executed, Constitution limits his
functions to the lawmaking process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad
Congress had authority to act in this case, not the President
Scope of Inherent Power: The Issue of Executive Privilege
Executive Privilege - The ability of the president to keep secret conversations with or
memoranda to or from advisors; not expressly stated in constitution
U.S. v. Nixon - Separation of Powers does NOT sustain absolute, unqualified Presidential
privilege under all circumstances absent a need to protect military, diplomatic or national security
secrets
It is the province of the Supreme Court to say what the law is. Marbury v. Madison
The generalized interest in confidentiality cannot prevail over fundamental demands of
due process of law in the fair administration of criminal justice
BUT the need for information for use in civil cases, does not share the urgency or
significance of a criminal request (Cheney v. U.S.)
Constitutional Problems of the Administrative State (Non-Delegation Doctrine; Legislative Veto)
Case below deals with when Congress grants president a power not conferred under the
Constitution
Clinton v. City of New York - There is no provision in the United States Constitution
that authorizes the President to enact, amend, or repeal statutes.
The president "shall from time to time give to the Congress Information on the State
of the Union and recommend to their consideration such measures as he shall judge
necessary and expedient" Art. II §3
Meaning he can initiate and influence legislative proposals
After a bill passes at both houses of Congress, but "before it becomes a Law" it must
be presented to the President. If he approves it "he shall sign it, but if not he shall return it,
with his Objections to that house in which it shall have originated, who shall enter the
Objections at large on their journal and proceed to reconsider it." Art. I §7 Cl. 2
(Presentment Clause)
His rejection (veto) is subject to being overridden by 2/3 vote
Difference between the statute in this case and the Constitutional provision is that the
Pres can veto a specific line item, whereas constitution tells him to reject the whole
bill and the constitutional return takes place before the bill become slaw as opposed
to the statute here
Dissent: President wasn't amending or repealing law, he was following one (that
granated him the power to veto shit he doesn't like in bill)
The Constitutional Problems of the Administrative State
Administrative agencies have been given broad powers
Power to legislate - Meaning they can promulgate rules
Executive Power - power to enforce rules
Judicial Powers - Power to employ administrative law judges who hear cases brought by
agency officials against those who break their rules
The Nondelegation Doctrine and Its Demise
Nondelegation Doctrine - The principle in administrative law that congress cannot
delegate its legislative powers to agencies. Rather, when it instructs agencies to regulate, it must
give them an "intelligible principle” on which to base their regulations.
Panama Refining Co. v. Ryan - Congress may not delegate legislative power to the
executive branch without providing clear standards for how the executive must exercise that
power.
"All legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives." Article I, § 1.
And the Congress is empowered "To make all Laws which shall be necessary and
proper for carrying into Execution" its general powers. Article I, § 8
The Congress manifestly is not permitted to abdicate or to transfer to others the
essential legislative functions with which it is thus vested.
This law has not been followed, but it also hasn't been overruled
Whitman v. American Trucking - When Congress confers decision-making
authority upon agencies Congress must "lay down by legislative act an intelligible
principle to which the person or body authorized to act is directed to conform"
Agencies are allowed to create sufficient, but not necessary guidelines
When Congress grants a degree of policy judgment to an administrative agency,
the court rarely second-guesses the authority conferred
Court has never required a statute to provide a "determinate criterion" saying
how much of the regulated harm is too much
Legislative Veto and Its Demise
Since the nondelegation doctrine is demised, question is how the power of the
administrative agency is checked and controlled
Legislative veto was created as a check on administrative agencies
A typical form of legislative veto authorized congress to overturn an agency
decision by resolution of one house of Congress. Another took the form of
overturning agency rules by resolution of both houses of Congress or even by action
of a Congressional committee.
Legislative veto declared unconstitutional in the case below
Immigration and Naturalization Service v. Jagdish Rai Chadha - Legislation providing
Congress with a veto over an action of the executive branch does not meet the constitutional
requirements of presentment and bicameralism.
Every Bill which shall have passed the House of Representatives and the Senate,
shall, before it becomes a Law, be presented to the President of the United States . . .
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of Adjournment) shall be
presented to the President of the United States; and before the Same shall take Effect, shall
be approved by him, or being disapproved by him, shall be repassed by two thirds of the
Senate and House of Representatives, according to the Rules and Limitations prescribed in
the Case of a Bill."
Art. I §7
Meaning, legislation should not be enacted unless it has been fully considered
by our nation's elected officials
In this case, the administrative agency passed a resolution without
submitting it to the Senate or the president
Congress must abide by its delegation of authority until that delegation is legislatively
altered or revoked
Case clearly establishes that if Congress wants to overturn an executive action there
must be bicameralism, passage by both houses of Congress, and presentment, giving the
bull to the President for signature or veto. Anything less is a legislative veto and legislative
vetoes are unconstitutional