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ConLaw1 Outline 2
ConLaw1 Outline 2
KELLEY
Constitutional Law I Outline
Professor: Amy Kelley
Text: Introduction to American Constitutional Structure (2011 Supp.) by Funk
1. JUDICIAL BRANCH
a. Judicial Power
i. “It is emphatically the province and duty of the judicial department to
say what the law is” (Marbury)
● The power of the government is limited by the Constitution
● Constitution is the Supreme law of the land
● Judges interpret the Constitution
b. Federal Supremacy
i. General: The U.S. Constitution vests the whole judicial power of the U.S. in
SCOTUS…This power is expressly extended to all cases arising under the laws
of the U.S.
ii. “Ultimate interpreter of federal law is US Supreme Court” (Martin v. Hunter)
iii. “The Supreme Court’s interpretation of the Constitution is the supreme law of
the land” (Cooper v. Aaron)
iv. The Judicial power of the US, shall be vested in one supreme court, and in such
inferior Courts as the Congress may from time to time ordain and establish –
Art. III, § 1
v. In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be a Party, the supreme Court shall have original jx.
In all other cases before mentioned, the supreme Court shall have appellate jx,
with exceptions Congress can make – Art. III, § 2, cl. 2
vi. Constitution, laws made pursuant to Constitution, and Treaties shall be supreme
law of land – Art VI, cl. 2
c. Judicial Review of Government Officials
i. Not Allowed Official Capacity
● Large overarching national policy decisions
● Not interfering with individual rights
● None of the Judiciary’s business
ii. Allowed Individual Capacity
● The judiciary will interfere
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● Hauled into court not because of who you are but because of the nature
of your conduct.
d. Separation of Powers
i. Legislative
● Congress can take away the Supreme Court’s appellate jurisdiction as
long as the Judicial Power has somewhere to vest. (Ex Parte
McCardle) (US v. Klein)
a. As long as it does not violate other parts of the Constitution,
like excluding people of color from bringing claims (due
process) (Ex Parte McCardle)
b. Either eliminate lower courts, or take away supreme court
jurisdiction, but Congress can’t do both.
● Congress cannot create rules that essentially decide the case for the
Supreme Court (US v. Klein) (Presidential Pardon, Confederate
Property case)
● Lower federal courts do not exist unless Congress creates them
● Congress cannot completely strip the federal courts of jurisdiction
ii. Executive
● See Political Question Doctrine
2. JUSTICIABILITY
a. General: whether the Constitution has placed the decision in question in a place other
than the judiciary
b. Theories
i. Judicial Only Hears Cases and Controversies / Not Make Political Decisions
● Art. III, § 2, cl. 1
ii. Separation of powers
● Preserving the authority of the various branches of government from the
other branches of government
a. Horizontal separation of power
i. Federal Court vs Other Federal Branch
b. Vertical separation of powers
i. Federal vs. State
c. ADEQUATE & INDEPENDENT DOCTRINE
i. General: where the decision of the state court is deemed to rest upon a
nonfederal ground which independently and adequately supports the state
court judgment, the Supreme Court will not exercise jurisdiction to review.
ii. Adequate: whether the decision violates the Constitution, must be procedurally
and substantively constitutional
● Procedural: state court process must be procedurally constitutional
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a. E.g. jury issues, peremptory challenges
● Substantive: the state law must be federally constitutional and not
preempted
a. Minimum NOT Maximum: federal constitutional rights
are the “floor” but not the “ceiling.”
iii. Independent
● THE SUPREME COURT REQUIRES AN EXPRESS
STATEMENT THAT THE CASE IS INDEPENDENTLY
BASED ON STATE LAW (Michigan v Long)
● Purpose: maintain clarity in precedent, avoid accidentally giving advisory
opinions
● NO Advisory Opinions, only “cases and controversies”
d. POLITICAL QUESTION DOCTRINE Justiciability of Issues
i. Deciding that a case is a political question IS an issue of Constitutional
interpretation
ii. Rule: Federal courts will not review the merits of the case if it is found
to be a political question
iii. Elements: Not all of these need to be present, but at least one or a few should
be (Baker v. Carr)
Constitutional Elements:
● “A textually demonstrable constitutional commitment of the issue
to a coordinate political department”
a. Does the Constitution place the issue under a specific branch’s
authority
b. Whether the text is textually committed; and,
c. To what extent the text is textually committed
● “Lack of judicially discoverable and manageable standards for
resolving it”
a. There is no law to interpret, no statute
b. If they went ahead with the case, they would be making law
● “The impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion”
a. Do not want judicial branch making INITIAL policy decision
b. Best Practice: make sure a law exists that shows legislative
determination
c. Initial is the key word here
d. Similar to #2
e. Constitutionally based – separation of power
Prudential Elements:
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● “the impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches
of government”
a. The Court should not show a lack of respect due to the
coordinate branches
b. This has never shown up in a case without the first three
accompanying it.
● “an unusual need for unquestioning adherence to a political
decision already made; OR”
a. Mostly prudential (good sense judgment)
b. The deed is done, the die is cast
c. The courts do not take cases that deal with Congress’s power
to declare war and the fact that the president is the commander
in chief
d. To avoid possible backlash
i. There might be rebellions or riots
ii. There might be an international melt down
iii. The other branches just might not listen or obey the
court
● “The potentiality of embarrassment from multifarious [differing
interpretations] pronouncements by various departments on one
question”
a. Prudential requirement
b. Foreign relations
i. All questions touching foreign relations are political
questions
c. Dates of duration of hostilities
i. Does not review, when, whether or where a war has
ended
d. Validity of enactments
i. The status of Indian Tribes
e. Republican form of government – Luther v. Borden
f. It is up to Congress to decide what government is the
established one of a state.
iv. Baker v. Carr
● TN voter complained that he and other poor people were systematically
discriminated against b/c of the districting w/in the state for
representatives
v. Powell v. McCormack House Appointment
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● Liberal Congressman from NY grossly misused campaign donations to
fund his extravagant lifestyle
● The Constitution leaves the House without authority to exclude any
person, duly elected by his constituents, who meets all the requirements
for membership expressly prescribed in the Constitution
● NOT Political Question: the Constitution has not textually committed the
power to the House
● Constitutional custom and usage is not precedent but may be looked at
vi. Nixon v. US Impeachments
● Impeached judge challenged the Senate impeachment hearing
● “Sole” power of the Senate to try impeachments of judges
● If the courts review it and second guess it, then the Senate does not
have sole power.
e. CONSTITUTIONAL STANDING Justiciability of Parties
i. Generally
● Proper parties
● A judge may bring improper standing claim Sua Sponte
ii. Lujan v. Defenders of Wildlife
● “Irreducible” Constitutional Standing Requirements
● “alleged such a personal state in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illuminations of
difficult constitutional questions”
iii. Three elements (Lujan)
● Injury in Fact: the plaintiff must have suffered injury in fact of an
invasion of legally cognizable protected interests which is:
a. Concrete (NOT abstract),
b. Particularized (NOT generalized grievance)
i. Must be p’s injury, personal, specific, not an injury that
happened somewhere to someone else
c. Actual or imminent damage (NOT conjectural, hypothetical,
speculative)
i. In Lujan p did not have plans or tickets to go back to
see the animals so their damages were not imminent
● Causation: there must be a causal connection between the injury and
the conduct complained of
a. The injury has to be fairly traceable to the challenged action of
the D, and not the result of the independent action of some third
party not before the court
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b. in Lujan, the funding for the project was so small that it appears
that there wasn’t not a strong causal connection
● Redressability
a. If you should prevail, is there a substantial likelihood that the
court will be able to remedy your problems
i. In Lujan, because the funding by the US government
was a small part of the project, it is not likely that the
project would be stopped if funding was taken back
b. Not about the merits or the likelihood that you are going to win.
c. If court has no power to enforce, there is no redressability
(otherwise, it would be advisory opinion)
d. Past exposure to illegal conduct does not itself show a present
case or controversy regarding injunctive relief if unaccompanied
by any continuing present adverse effects
iv. Associational or Organizational Standing
● Can establish standing in own right
● For example if Congress passed a bill that denied tax exempt status to
nonprofit organizations
a. Then a nonprofit organization would have a claim
● Otherwise the association or organization
a. Must show that one or more members of your
organization have standing
b. Must show that the purpose of the organization have
subject matter
c. The member of the group does not need to be a named
party.
v. Case examples:
● Clapper: no standing, case with gov’t spying
● Hollingsworth: prop 8 issue where defense was argued by proponents
of the initiative who did not have standing, must have been defended by
CA.
● Windsor: (DOMA) Old woman married to her partner. If they are
married, then they get the tax breaks, and if they are not married, then
there estate tax liability will be way higher. She has standing for the
potential injury. The justice dept is not defending the laws.
f. PRUDENTIAL STANDING LIMITATION
i. Generally
● A person cannot raise the rights of another
a. No third party (third party rule)
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● Have to be within the “zone of interest”
a. Have to be part of the public that the statute or regulation was
intended to benefit when the law was passed.
● Congress may, by statute, override prudential standing
ii. Ripeness: Bringing the case too soon
● Generally
a. The court should not take cases too soon because
i. The facts may not have played out
ii. Courts don’t want to interfere with other departments
● Abbott Laboratories v. Gardner
a. There is going to be an injury, be we don’t know what it looks
like or when its going to happen.
b. found to be ripe because the drug company needed an answer
now to avoid spending tons of money on repackaging
c. “Its basic rationale is to prevent the courts, through …
premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect
the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete
way…. The problem is best seen in a twofold aspect, requiring
us to evaluate both the fitness of the issues for judicial decision
and the hardship to the parties of withholding court
consideration.”
● EXCEPTION
a. Fitness for JUDICIAL decision
i. Past policy making
ii. Agency has brought expertise to bear
iii. The only thing to be decided is a question of law
b. Hardship to the Parties by withholding court consideration.
i. Costs that are immediate
iii. Mootness (flipside of ripeness)
● Bringing the case too late
a. Although there may have been a valid case or controversy when
the suit was brought, subsequent events have eliminated the
complained of effects.
● Exceptions (some people say this is a prudential doctrine bc of these
exceptions)
a. The voluntary cessation of the allegedly unlawful conduct will
not necessarily moot a case
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b. The case is “capable of repetition yet evading review”
i. The burden is on the D to show by a preponderance of
the evidence that the allegedly unlawful activity will not
recur.
ii. E.g., abortion
th
3. THE 11 AMENDMENT STATE SOVEREIGN IMMUNITY
a. Limits the jurisdiction of FEDERAL courts over suits against the STATES or “arms of
the state.” It is not relevant to suits against States in STATE courts.
i. But general principles of sovereign immunity are relevant to suits against States
in state court.
ii. The Eleventh Amendment protection does NOT cover suits against LOCAL
governments (cities, towns, etc.)
b. Who CAN sue the states in federal court?
i. The United States.
ii. “Sister” States.
c. Who CANNOT sue the states in federal court due to the Eleventh Amendment?
i. Citizens of other states (express).
ii. Citizens of their own states (by court interpretation – “background principle” of
sovereign immunity) (Hans v Louisiana)
iii. Citizens of foreign states (express).
iv. Foreign nations (by court interpretation – sovereign immunity again).
v. Tribes and tribal members (ditto).
vi. Local governments are not considered states under this Amendment
d. Stripping Doctrine: no sovereign immunity for State officials & local governments (can
be sued in federal court) IF
i. Only nonmonetary remedy is sought. (e.g., injunction)
ii. Suit is for violation of FEDERAL law.
e. States may be sued in federal court IF they consent/waive their immunity
f. States may be sued in federal court IF Congress has the POWER to
“abrogate/override” the Eleventh Amendment/Sovereign Immunity AND Congress
intends to exercise that power. (Congruence & Proportionality)
g. The states have sovereign immunity against their own citizens – Hans v. Louisiana (the
reason that it is not spelled out in the Amendment is because it is a given, everyone
knows states have sovereign immunity)
4. FEDERAL LEGISLATIVE BRANCH
a. Generally
i. McCulloch v. Maryland
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● Facts: McCullouch is a cashier president of the federal bank in
Maryland who will not comply with the Maryland law taxing Federal
Banks.
● Arguments:
a. Nullification
i. States Argue: powers of the government are delegated
by the states, which are sovereign
ii. Court Replies: the people were acting to ratify the
constitution, not the states themselves (We The People)
1. “The government of the Union, a
government of the people. In form, and in
substance, it emanates from them. Its
powers are granted by them, and are to be
exercised directly on them, and for their
benefit.”
b. Congress Lacked Authority
i. States argue:
1. Fed government has no innate authority, just
what it gets from the constitution
2. all details must be expressly given to them
ii. Court Replies:
1. Its the nature of constitutions (written in broad
strokes)
a. "we must never forget, it is a
constitution we are expounding"
(opposed to a statute)
2. It’s logically necessary: "General Reasoning"
a. correlation b/t length of the constitution
and it being amended (it would be
unwieldy)
c. States can still tax under the Necessary & Proper Clause
d. “Let the end be legitimate, let it be within the scope of the
Constitution [ultimately tied to an enumerated power],
and all means which are appropriate, which are plainly
adapted to that end [necessary], which are not prohibited
[proper], but consist with the letter and spirit of the
constitution, are constitutional”
e. The power to tax involves the power to destroy
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i. “the states have no power, by taxation or
otherwise, to retard, impede, burden, or in any
manner control, the operations of the constitutional
laws enacted by congress”
b. Necessary and Proper Clause
i. Article I, § 8, Clause 18
ii. Necessary
● “To employ the means necessary to an end, is generally understood as
employing any means calculated to produce the end, and not as being
confined to those single means, without which the end would be entirely
unattainable.”
● Means:
a. Appropriate
b. Convenient,
c. Useful,
d. Plainly adapted
e. Essential to another
f. Conducive to
g. Requisite
h. Needful
● But Not: absolutely necessary
iii. Proper: not prohibited elsewhere in the constitution
iv. Analysis
● Is there a Legitimate End (Expressly Enumerated Power/Written in the
constitution)?
a. No, then the act is unconstitutional.
b. If yes, is the end beyond the expressly stated power (Implied
Power)?
i. No, the act is constitutional.
ii. Yes, the Means must be both
1. Necessary: Plainly adapted, appropriate to,
convenient, useful AND
2. Proper: Not prohibited by the constitution
5. THE COMMERCE CLAUSE
a. Art. I, § 8, cl. 3: Congress shall have power to regulate Commerce with (1) foreign
Nations, and (2) among the several States, and (3) with the Indian Tribes.
b. Commerce is
i. Buying goods
ii. Selling goods
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iii. Exchange
iv. Trader/barter
v. Transportation
vi. [communication]
vii. Oldest Rule: If it affects or concerns more states that one
c. Production is antecedent to commerce (1880s1936 Congress cannot regulate)
i. Indirectly tied to interstate commerce
ii. Indirect effect on states can make something invalid
iii. Production includes:
● Mining
● Farming
● Hunting
● Fishing
● Manufacturing
a. Stream of Commerce: congress may regulate the product within
the stream of commerce [but cannot regulate production or
sales] (Schechter sick chicken case, came from out of state,
sold from docks in NY)
iv. Congress may
● Regulate: provide “how to engage”
● Promote
● Prohibit (added early 1900s)
● Even if the prohibition destroys commerce – Champion v. Ames (lottery
case)
d. Gibbons v. Ogden (Steam boats in NY and federal licenses)
i. It is commerce among the states if it affects or concerns more states than one
ii. Only those things within the state that do not affect other states are excluded.
iii. State law struck down
iv. Congress uses the Commerce Clause to pass more laws than anything else.
e. Hammer v. Dagenhart (child labor case) later overturned – regulation of goods made
by children is really regulation of labor which is not covered by commerce clause
i. Majority viewed this case from the stance of the 10th amendment, couldn’t
regulate because the indirect effect was not interstate commerce.
ii. Dissent We’ve already said the regulation of commerce among the states is
ok, prohibition and transportation of goods is ok, and when Congress can use
their authority is ok.
iii. Congress can decide when to use this power of prohibition because it is merely
a “degree of necessity,” which is a legislative power.
f. MODERN COMMERCE CLAUSE
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i. NLRB v. Jones & Laughlin Steel If labor disruption in one place would affect
the entire chain of commerce then it affects the stream of commerce and
Congress can regulate it.
● CJ Roberts switched his vote “switch in time to save nine”
● Vertically integrated operation single company controls all stages of
production
ii. US v. Darby (Overturns Dagenhart) Manufacturing is not commerce, but the
shipment of those goods is, and the prohibition of that shipment is a regulation of
commerce
● RULE: Congress can regulate other stuff that is not itself interstate
commerce if it substantially affects interstate commerce
● If the end is legitimate it is up to congress to decide the means
iii. Wickard v. Filburn (local wheat farmer case)
● RULE: Congress may regulate any (whatever nature, even if local)
activities that, in the aggregate (cumulatively), have a substantial
economic effect on I.C., regardless if effects on I.C. are direct or
indirect.
● The Court’s most broad interpretation of Congress’ power to regulate
interstate commerce.
● The stabilization of wheat is the literal regulation of I.C. The indirect
effect is regulation of local activity which is ok because it is a necessary
means to create a legitimate end and there is nothing that makes it
improper. (The court doesn’t spell it out this way, but this is the
analysis)
● Aggregation Doctrine: even though a small amount may be involved in
an individual case, if it is aggregated with the cases like it, there would
be a substantial effect on interstate commerce and that is sufficient.
● “But even if appellee’s activity be local and though it may not be
regarded as commerce, it may still, whatever its nature, be reached by
Congress if it exerts a substantial economic effect on interstate
commerce.”
iv. Heart of Atlanta Motel v. US (segregated motels)
● Motive of the statute irrelevant
a. Race discrimination in housing affects interstate travel of people
b. Motive of solving race discrimination justified by regulation
travel
● Local effects can meet the Substantial Effects Test
a. “if it is interstate commerce that feels the pinch, it does not
matter how local the operation which applies the squeeze.”
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● Rational Basis
a. “that the means chosen by it must be reasonably adapted to the
end permitted by the Constitution”
v. Katzenbach v. McClung (segregated restaurants)
● Racial discrimination in restaurant service in the aggregate affects
interstate commerce
● “But where we find that the legislators, in light of the facts and testimony
before them, have a rational basis for finding a chosen regulatory
scheme necessary to the protection of commerce.”
a. rational basis test does not have to be compelling, but simply a
logical or rational finding. Deferring to congress rationality. you
might need to fix this
vi. Lopez (gun free school zone act)
● Three broad categories Congress may regulate under Commerce
Clause
a. The use of channels of interstate commerce
i. Roads, railroads, waterways, airspace, possibly the
internet
b. Regulate and protect the
i. Instrumentalities of interstate commerce OR
1. Truck lines, airlines, trains, boats
ii. Persons or things in interstate commerce
1. Even though they may have come from only
intrastate activities
c. Regulate those activities having a substantial relation to interstate
commerce, those activities that substantially affect interstate
commerce
i. Indirect effects, Wickard, local operations
● Congress can uphold a portion of the law that is not interstate
commerce if it is an essential part of a larger regulation of economic
activity and the regulatory scheme would be undercut by removing that
portion
● RULE: Under the Commerce Clause, Congress may regulate by
using one of the following:
a. Substantial Effects Doctrine: economic activity that has a
substantial effect on/impact on/relationship to interstate
commerce
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b. Essential Parts Doctrine: Non Economic activity that is
an essential part of a larger regulation of economic
activity
c. Express Jurisdictional Statement: specific provision
within a statute that limits the application of the federal
law to interstate commerce.
i. Allows Congress to regulate any activity to some
extent
ii. E.g., “A person shall not carry a gun acquired in
interstate commerce within a school zone.”
d. If no interstate commerce is found in the statute then the
court may look at congressional findings to find a
connection to interstate commerce.
i. “not going to pile inference upon inference”
ii. “the connection between the activities you
regulate and the substantial effect cannot be too
attenuated”
vii. Morrison
● VAWA Statute
a. Domestic violence is not an economic activity
b. Domestic violence is not related to channels or instrumentalities
of commerce.
c. No jurisdictional statement
● Congress produced findings showing 3.3 billion dollar economic effect
a. Disregarded Congress’s use of the “BUT FOR” effects on the
economy
b. The relationship is too TENUOUS/ATTENUATED
viii. Gonzalez v. Raich (Medical Marijuana Case from the West Coast)
● Regulation of illegal markets is still covered by commerce clause
● Return to Wickard: the growing of marijuana (like wheat) at home for
personal consumption is economic activity
● Cannot regulate interstate marijuana without regulating home grown
marijuana. (Can’t do one without the other).
● RULE: Economic activity that, in the aggregate, do have a substantial
effect on interstate commerce OR even if noneconomic activity,
regulation is an essential part of Controlled Substance Act (or at least
Rational Basis)
● The dissent in Lopez and Morrison become the majority.
● Scalia, Concurring: Necessary & Proper Analysis
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a. Necessary: The prohibition of these goods in I.C. is the
legitimate end but goes beyond express power.
i. Appropriate Means: the permeability of medical
marijuana requires restriction
ii. Proper: there is no law saying that it is not proper.
b. They can therefore do other things that are N&P.
g. COMMERCE TEST HOW TO
i. Is there a legitimate end?
● If No, unconstitutional
● If Yes, does the act of Congress go beyond their express power?
a. If No, constitutional
b. If Yes, does the act have an express jurisdictional statement?
i. If Yes, constitutional
ii. If No, is it regulating economic activity?
1. If Yes, use Substantial Effects Doctrine
2. If No, use Essential Part Doctrine
a. If Essential Parts Doctrine doesn’t
work, look at Congressional Findings
ii. Terms
● Legitimate End: Expressly enumerated power in the Constitution
● Express Jurisdictional Statement: Specific provision within a statute that
limits the application of the federal law to interstate commerce.
a. Allows Congress to regulate any activity to some extent
b. E.g., “A person shall not carry a gun acquired in interstate
commerce within a school zone.”
● Economic Activity: $$
● Substantial Effects Doctrine: Economic activity that, in the aggregate,
has a substantial effect on/impact on/relationship to interstate commerce
a. Economic Activity
b. Substantial
i. Aggregate
c. Effect on/ Impact on/ Relationship to
i. Rational Basis: Congress has the authority to determine
the degree of necessity for an act so long as it is
rationally based
1. “if it is interstate commerce that feels the pinch,
it does not matter how local the operation
which applies the squeeze.”
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2. The relationship cannot be too tenuous
(Morrison)
d. Interstate Commerce
● Essential Part Doctrine: Non Economic activity that is an essential part
of a larger regulation of economic activity
th
6. THE 10 AMENDMENT
a. General: 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.
b. How To: Does Congress have the Constitutional authority to pass the law? (such as
N&P/Commerce Clause)
i. No, unconstitutional.
ii. Yes, Does the law regulate private behavior or only state behavior (is it
“valid”)?
● Private, States must comply with the law.
● State, Is the law Commandeering state’s ability to pass or enforce
laws?
a. No, Not a 10th Amendment issue.
b. Yes, Law is unconstitutional
c. Unless it only uses monetary incentives.
c. Laws of General Applicability
i. Valid: Federal Laws commanding state behavior along with similar private
behavior.
ii. Applies to everyone (people, states)
● Minimum wage laws
● Civil rights laws
● Various environmental statutes
iii. States are treated like everyone else and must comply
iv. Since 1940 → 10th Amendment has no effect on “valid” federal laws that
“displace/preempt” state regulation of private behavior
d. Commandeering Laws (intent)
i. If the Federal Law is:
● Of general applicability, then the Federal intent that the law applies to
the states must be clear
● Directed toward States only, and has no private counterpart then:
a. Pass Laws: cannot force states to pass certain laws
b. Enforce the Law “Execute”: cannot order state officials to
enforce federal law
th
e. One way to look at 10 Amendment
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i. If a power is delegated to Congress in the Constitution, the 10th amendment
expressly disclaims any reservation of that power to the states
● Ask: does the government have this authority under the constitution
ii. If a power is attributed to a state sovereignty reserved by the 10th amendment,
it is necessarily a power the Constitution has not conferred on Congress
● Ask: Do the States have the authority?
iii. Congress can’t pass laws that take over the job assignment powers of the state
– Printz v. US (state background check law)
f. Cases
i. National League of Cities (1976) (overruled)
● Four conditions for state activity to be immune
● The federal statute at issue must regulate states as states
● The statute must address matters that are indisputably attributes of state
sovereignty
● State compliance with the federal obligation must directly impair [the
state’s] ability to structure integral operation in areas of traditional
government functions
● The relation of the State and federal interests must not be such that the
nature of the federal interest, justifies state submission.
ii. New York v. U.S. (1992)
● 63 majority
● Low Level Radioactive Waste Act
a. Monetary Incentives
b. Access Incentives
c. The take title provision
i. Waste generated becomes owned by the states
UNLESS
ii. States establish radioactive waste dumping ground
● You can look at these two questions either way: (Printz doesn’t agree)
a. Whether an Act of Congress is authorized by one of the powers
delegated to Congress in Article I of the Constitution
b. Determine whether an Act of Congress invades the province of
state sovereignty reserved by the tenth amendment.
iii. Printz v. U.S. (state background check law)
● 54 Souter switched vote
● The AntiCommandeering Rule comes from
a. History
b. Structure of Constitution
c. Prior cases (jurisprudence)
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● Federal Government may not Commandeer state legislative and
executive branches (officers) because:
a. Inherent, residual, inviolable STATE SOVEREIGNTY
b. States never gave that portion of sovereignty to the federal
gov’t
● “The 10th amendment likewise restrains the power of Congress, but this
limit is not derived from the text of the 10th amendment”
7. CONGRESSIONAL AUTHORITY AND THE CIVIL WAR AMENDMENTS
a. Civil War Amendments
i. XIII No slavery
● Applies to Everyone (Private, State, Local, & Federal)
ii. XIV Deprivation, Due Process, Equal Protection
● Applies to States & Local Governments (state version of 5th
Amendment)
iii. XV Right to Vote
● Applies to Local, State, & Federal
b. “The Congress shall have power to enforce this article by appropriate legislation” is
used, with slight variations, in Amendments XIII, XIV, XV, XVIII, XIX, XXIII, XXIV,
and XXVI.
c. Congressional Powers and State Sovereign Immunity
i. When a state invokes sovereign immunity, the only way to overrule it is when
Congress abrogates the state sovereign immunity
ii. There must be a piece of legislation w/in a statute that gives this authority
iii. Instances where SCOTUS upheld Congress ability to abrogate
a. The FMLA case – Nevada v. Hibbs
b. The ADA case
● BOTH of these cases were brought to force the state to enforce the
federal legislation
iv. Why were these two cases allowed? Congruence and Proportionality Test
d. Enforcement
i. Enforce: Congress’ Ability to Provide Mechanisms to Force Compliance
● Prevent/deter constitutional violation AND/OR
● Remedy constitutional violations
● Does NOT mean:
a. Contradicting judicial interpretation of the constitution but may
include prediction
ii. Enforcement Test
● Deter/Prevent/Remedy constitutional violation (defined by congruence
and proportionality)
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a. Congruence
i. Adequate congressional identification of a “relevant”
Constitutional injury, evil, or problem
a. Relevant: Correct type of case, e.g.
discrimination for E.P, P&I, Sub
Economic Due Process
2. Pattern of STATES violating “relevant”
Constitutional Provision (legislative findings)
a. Pattern: widespread (pervasive)
(geographical) & persistent (timing,
ongoing problem)
b. Proportionality
i. Good Fit or “Fix” to the “Problem.” Can’t be overkill
or overeaction
iii. HOW TO Enforcement:
● Is the Federal Law based on an Amendment with an Enforcement
Clause?
a. No, use another analysis.
b. Yes, Does it meet the Congruence and Proportionality test?
i. No, the enforcement of the law is not constitutional.
ii. Yes, Is the Congressional intent clear that state
sovereign immunity is abrogated?
1. No, 11th Amendment may be valid state
defense
2. Yes, No sovereign immunity defense by states
for this law.
e. Civil Rights Cases
i. Aimed at state action, not private action
ii. Jones v. Alfred H. Mayer Co.
● Congress has the power under 13th amendment (abolition of slavery)
rationally to determine what the badges and incidents of slavery are
● Refusing to sell a person a home because they are black is a badge of
slavery
● Anything that is a badge of slavery can fall under the 13th amendment
● To what extent (how and when) can Congress use it authority under the
14th amendment?
iii. City of Boerne v. Flores
● Enforcing the law never means declaring the substance (meaning) in
defiance of the Supreme Court
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● Restoring religious freedom act case about a church building, Congress
passed the act as an attempt to overrule the Supreme Court in the
Peyote case
● Congress does not enforce a constitutional right by changing what that
right is. Congress has been given the power to enforce, not the power
to determine what constitutes a constitutional violation
a. 11th amendment – State immunity
b. 14th amendment – equal protection
iv. Board of Trustees of U of Alabama v. Garret
● Congress may abrogate the States’ 11th Amendment immunity when it
both unequivocally intends to do so and “acts pursuant to a valid grant
of constitutional authority”
● State failed to comply with provisions of ADA
a. The intent is clear
b. Congress has the authority
● States are not required under the 14th amendment to make special
accommodations for the disabled, so long as their actions toward such
individuals are rational (rational basis test)
● In order to get past the States 11th Amendment immunity, Congress has
to rely on § 5 of the 14th Amendment
● § 5 legislation reaching beyond the scope of § 1’s actual guarantees
must exhibit congruence and proportionality between the injury to be
prevented or the remedied and the means adopted to that end.
v. Nevada Department of HR v. Hibbs
● Congress enforcing the 14th amendment
● FMLA gender based discrimination case, have to have time to raise a
newborn
● Tennessee v. Lane: Due process is the right to be heard, access to the
courthouse is a due process problem, so congress has the authority and
it clearly expressed it
● Which means remedy &/or prevent (in state action) – Not declaring or
interpreting
vi. Rule: Congruence and Proportionality test
● If the statute really is congruent and proportional, it is really a remedy
and preventive, if really a remedy and preventive, congress is really
enforcing it.
a. Record of a Constitutional evil, problem or injury
● Record of state violations of the constitution
a. There must be a widespread and persistent pattern
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f. Case Synthesis Chart:
g.
i. Fair Labor Standards Act
● Due Process, protection of property was the argument, but it lost.
Discrimination isn’t required for Due Process, only for Equal Protection
a. Substance Ok under Article I substance,
b. Enforcement No
ii. Boerne Religious Freedom RA
● Substance – No, Congress lacked authority
● Enforcement No
iii. Garret Americans with Disabilities Act Title 1 employment
● Substance Ok, You can’t discriminate in employment against
disabled based on Art. I interstate commerce is part of the basis, but
also on the 14th amendment.
● Enforcement Absolutely not enforceable
iv. Tennessee v. Lane – ADA Title II,– government entities keep buildings open
and accessible to disabled.
● Substance based on the 14th amendment, due process (procedural
process right to be heard).
● Enforcement is also ok under 14th amendment, based on the
opportunity to be heard (based on the private cause of action).
v. Hibbs FMLA
● Substance Gender Discrimination in employment (equal protection)
Substantively on Article I.
● Enforcement Ok under enforcement based on the 14th amendment
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h. Whatever Congress does has to be measured in other words, a good fit. Not an
overreaction
8. TAXING & SPENDING CLAUSE
a. The Congress shall have the power to lay and collect taxes, duties, imposts, and
excises, to pay the debts and provide for the common defense and general welfare of
the United States
b. Elements (South Dakota v. Dole)
i. Pursuit of General Welfare
● The exercise of spending power must be in pursuit of the general
welfare. Courts should defer to the judgment of Congress.
ii. Unambiguous
● If Congress requires a condition to the States’ receipt of federal funds,
it must do so unambiguously, enabling the States to exercise their choice
knowingly, cognizant of the consequences of their participation.
iii. Related Federal Interest
● Condition must relate to the restrictions imposed on federal grants;
might be illegitimate if they are unrelated to the federal interest in
particular national projects or programs.
iv. No Independent Bar
● Other Constitutional provisions may provide an independent bar to the
conditional grant of federal funds. (e.g., law incentivizing discrimination)
v. Not Coercive (Health Care Opinion)
● In some circumstances the financial inducement offered by Congress
might be so coercive as to pass the point at which pressure turns into
compulsion
c. Healthcare Case
i. Individual Mandate (every person must purchase health care) (5 yes /4 no)
● Is healthcare commerce? No
● Is it within the taxing power? Yes
● Is it severable? Didn’t Answer
ii. Mandatory Medicaid Expansion (7 no / 2 yes)
● The mandatory medicaid expansion was seen as “coercive” and thus
unconstitutional.
● Economic Dragooning: (False Choice) 20% of state budget would be
lost and there is no real option because the states already rely on the
funds
iii. Optional Medicaid Expansion (5 yes / 4 no)
● the optional medicaid was not found to be “coercive.”
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●
9. FEDERAL CRIMINAL LAWS (US v. Comstock)
a. Rule: Congress can create criminal law if it is attached somehow to an enumerated
power of Congress
i. If Congress can create criminal law → can create prisons → manage and
administer the prison system → can regulate release (majority)
ii. Tangible Links: whether there is a connection to an enumerated power depends
on the strength of the links in the chain not the length or number of links.
(Kennedy, concurring)
b. The Constitution grants congress the authority to enact the law as necessary and proper
for carrying into execution the powers vested by the constitution of the US
c. In this case, congress has power to do things for commerce, welfare, and civil rights that
would give them the means of creating criminal laws and prisons.
10. THE TREATY POWER
a. Assuming the U.S. enters into a valid treaty, what can Congress do?
i. Congress can pass statutes to implement the treaty AND
ii. Force the States to comply
b. A treaty cannot be valid if it infringes the Constitution, there are limits. – Missouri v.
Holland (Bird hunting treaty between US and Britain (Canada))
11. THE PROPERTY CLAUSE (Kleppe v. NM Burros)
a. Congress has Proprietary and Legislative power over federal property, which is
complete/plenary
i. Akin to the State’s police power
ii. The power of congress over federal lands is without limitations
● Sleeping Giant, but Congress hasn’t exercised authority that often.
b. Determinations under the property clause are entrusted primarily to the judgment of
Congress
12. PREEMPTION OF STATE LAW BY FEDERAL LAW
a. Generally
i. Preliminary Question: only constitutionally valid federal laws may preempt; must
determine that the law is constitutional before addressing preemption
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ii. If the federal law is found to be preemptive, it is the floor, the ceiling, the whole
darn room.
b. Express Preemption
i. The federal law expressly states an intent to displace state law, on the face of
the federal law.
ii. Very rare but it happens. (e.g. cigarette labels)
c. Implied Preemption
i. Field Preemption
● Congress has occupied an entire field of law. (e.g., patent law?)
● No room for any state law in that field.
● “Pervasive Scheme of Federal Regulation”
a. Federal intent was to cover the entire field (be pervasive)
b. Not every “gap” in the regulation must be “plugged”
c. E.g. Nuclear power safety
● “Dominant Federal Interest”
a. There is no need for any federal law directly on point
b. Simply an area where the federal government rules. (treaty
making, national defense, etc.)
ii. Conflict Preemption
● Only the parts of the state law that conflict with federal law are
preempted
● Severability: Is the whole law gutted if parts of a state law are
preempted by conflict?
a. Question of whether the state intended the law to survive if the
conflicting section is removed
b. May remand or certify to the state
● “Physical Impossibility”
a. If it is impossible to comply with both state and federal law,
federal law remains and preempts state law. (e.g. Kleppe
burros)
● “Purposes and Objectives”
a. State law would, overall, obstruct/frustrate the purposes of the
federal law.
b. No pointforpoint head on collision, but the overall federal
purpose is clear, which purpose would be frustrated by state
law, state law goes.
c. Happens fairly often (E.g. Arizona state crime to be an illegal
alien in Arizona under federal law was a frustration of federal
law)
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d. THE “MODERN” DCC (DORMANT/NEGATIVE COMMERCE CLAUSE)
i. Generally
● Applies to only State and Local government
● A doctrine used by judges to strike down state or local laws because they
interfere with interstate commerce.
ii. Justifications
● Economic Theory
a. “Economic protectionism, isolationism, balkanization,” is bad.
b. Interference with business increases costs and interstate commerce
● Political Theory
a. The people who are being harmed (outofstate citizens) by the
instate/local law cannot participate in state elections.
iii. Cases
● Philadelphia v. NJ (NJ had statute that didn’t allow solid waste from other
states into NJ)
a. Facially Discriminatory
b. Import Bans: are always discriminatory, but not always unconstitutional
c. Rule: Protectionism is when a state (or locality) enacts a law to benefit
or protect a state or local business or economic interest at the expense
of outofstate business or interest.
● Dean Milk Co. v. Madison (City of Madison made it so milk sold in that city
had to be pasteurized within 5 miles of the city)
a. Facially Discriminatory
b. Rule: even though some of the burden is felt within Wisconsin, ALL of
the benefit was within Wisconsin
● Hunt v. Washington State Advertising Company (North Carolina passed law
that removed labels from apples)
a. Not discriminatory on face but has discriminatory effect
b. Rule: the effect of the statute is to remove the economic value of the
good reputation and quality
● West Lynn Creamery, Inc. v. Healy (MA passes a tax on all milk sellers to MA
companies, then the tax is used to subsidized MA dairy farmers)
a. Discrimination in purpose is discriminatory
b. The combination of the two is clearly discriminatory
c. States can subsidize instate activities or groups, but it has to be from
general revenues (e.g., income tax)
● Minnesota v. Clover Leaf Creamery Co (All milk had to be sold in paper
cartons instead of plastic bottles.
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a. Even handed statute burdens in state companies and out of state
companies alike, doesn’t matter that it burdens specific types of milk
manufacturers.
b. Supreme Court ruled ok within Commerce Clause but ignored the trial
court’s finding of it being locally discriminatory
c. Quotes Pike v. Bruce Church “where the statute regulates
evenhandedly to effectuate a legitimate local public interest, and its
effects on interstate commerce are only incidental, it will be upheld
unless the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits… If a legitimate local purpose is
found, then the question becomes one of degree. And the extent of the
burden that will be tolerated will of course depend on the nature of the
local interest involved, and on whether it could be promoted as well
with a lesser impact on interstate activities.”
● Bibb v. Navajo Freight Lines (An Illinois statute that requires contoured mud
flaps on all semitrucks, where 45 states allow straight mud flaps and one
requires straight mud flaps)
a. Evenhanded, but there is a massive showing of burden on interstate
commerce. Law fails.
● MA v Taylor: Maine statute prohibits the import of live baitfish because of a
parasite they carry. This parasite is not currently found in local fish. The only
known way to keep them out it to not allow live baitfish. The state doesn’t have
to come up with new technology or alternative means bc there were no
reasonable alternatives available.
iv. ANALYSIS OF DCC LAW
● Plaintiff shows whether the law is Discriminatory or Even Handed (Burden on
Plaintiff)
a. Types of Discrimination
i. On the Face (Dean Milk, Phil v. N.J.)
ii. In Effect (Hunt v WA Apples)
iii. In Purpose (West Lynn Creamery)
1. Even if the law is not discriminatory, it will still be struck
down if the legislature intended it to be.
b. Instate (local) v. out of state (local)
i. If the instate parties in an economic sense are being treated
better (benefited, not burdened or burdened less) than the out
of state parties (not benefited, or not benefited as much, or
burdened more) then the law is discriminatory
● Discriminatory Law
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a. (Burden Shifts) State/local government must overcome presumption of
unconstitutionality (Burden on State) (virtually per se invalid)
1. Government must show the end (or goal) of the law is a
“legitimate” government interest (not so hard to
establish)
a. Legitimate means police power
i. Public health, safety, or welfare
ii. Not economic protectionism
b. Risk must be real but magnitude need not be
known (Maine v Taylor)
2. And there are no alternative “means”
a. No lessdiscriminatory or nondiscriminatory
means (tough to establish)
b. There almost always is an alternative means
c. Must be reasonably available
(MA v. Taylor)
● Even Handed Law (evenly burdensome for everyone)
a. Burden of proof on the challenger for entire case
b. Becomes a balancing test between burdens on interstate commerce vs
the benefits of the proponent (an end/means test)
i. Burdens must be clearly excessive to the benefits
ii. Make a list of burdens on interstate commerce
iii. Make a list or quantify “local benefits”
1. Nature of the local interest
a. At least a government interest
b. Its degree of importance
i. E.g., 200 ingrown toenails vs 5,000
lives annually
2. Alternative Means: could it be promoted with less
burden on interstate commerce?
3. Effects on interstate commerce are only incidental
a. This means the state cannot project its
legislative will on other states
● DCC TEST
a. Is the state incidentally or directly interfering with interstate commerce?
i. NO. There is no DCC issue.
ii. INCIDENTAL. Is the law discriminatory against people
outside the state?
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1. YES. (Discriminatory) Can the State show a
“legitimate” (public health, public safety, general
welfare) government interest?
a. NO. The law is unconstitutional.
b. YES. Are there any reasonably available less or
nondiscriminatory alternatives?
i. NO. The law is constitutional.
ii. YES. The law is unconstitutional.
2. NO. (EvenHanded) Balancing Test Does the law’s
burden on interstate commerce clearly and excessively
outweigh the local benefits?
a. YES. The law is unconstitutional
b. NO. The law is constitutional.
iii. DIRECT. The state exertion of extraterritorial power is invalid.
1. E.g., A NY state statute says “Once a company has set
its price for sale of widget in NY, then they cannot sell it
for less in any other state.”
v. DCC EXCEPTIONS
● SUBSIDIES
a. Direct subsidies as long as the funds are drawn from the state/local
general revenue. E.g. Sales Tax, Property Tax, Income Tax
● THE MARKET PARTICIPANT DOCTRINE
a. Rule: if the state is acting like a private party, they are allowed to
operate freely in free market without violating the DCC (Reeves)
i. May not act as a market regulator (Wunnicke)
ii. Factors showing regulation
1. restraint on foreign commerce
2. natural resources involved
3. downstream restriction
b. Cases
i. Reeves, Inc. v. Stake cement plant in SD owned by SD, that
acts like every other cement plant. It can choose to discriminate
if it wants.
ii. SouthCentral Timber Development v. Wunnicke Alaska
sells timber but only if it is processed by Alaskan mills before
export
vi. STATE/GOVERNMENT INTEREST – HOW DO WE KNOW
● Realize that there are different tests for “Ends” and “Means,” and gov’t
interest can show up in either tests.
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● There are several different gov’t interest tests
● Depending on what type of issue it is (DCC, equal protection, contracts
clause, substantive economic due process, P&I, etc..), the gov’t will
take different approaches to find out if it is a legitimate interest.
● The court cannot get away from looking at the “government
interest/purpose”
● Government interest = legislative purpose
a. Always look at the overall institution’s purpose, not individual
legislator’s purposes
● Approaches for determining gov’t interests:
a. Order of magnitude of interests least to most: Legitimate
(permissible); significant; substantial/important; compelling (strict
scrutinynext semester)
● Levels of Government
a. All Admissible: the Court considers all admissible and relevant
trial evidence, apply burden of proof, make the decision
i. This approach tells you who has the better attorneys
ii. Neutral approach
b. Deference: the Court “defers” to legislative discretion
i. If there is some, more than a “scintilla,” of evidence in
the record, then it’s “legitimate”
ii. This approach misses the mark most of the time
iii. Progovernment approach, allows for expost fact,
adhoc rationalization
c. Relevant to Enactment: the Court considers only the trial
evidence relevant to original passage/enactment of the law
i. This approach looks for the actual purpose of the law
ii. Neutral approach
vii. Kassel Case (how a judge determines how to establish government interest)
● Plurality opinion (4 votes)
a. Judge [or jury] will rule based on the weight of all the trial
evidence
● Concurring in the judgment opinion (2 votes)
a. Dig around the legislative history to try to ascertain the actual
purpose of the law at the time it was passed
● Dissent opinion (3 votes)
a. When a state law under legitimate government interest
i. Analyze the evidence only to detect pretext
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ii. If the is any (more than a scintilla) you must find in favor
of the state
e. PRIVILEGES AND IMMUNITIES
i. Article 4, Sec. 2, Cl. 1 “Citizens of each state shall be entitled to all Privileges
and Immunities of Citizens in the several States”
ii. Amend XIV, Sec 1: “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States…”
iii. Similarities with the dormant commerce clause
● Really old
● Limits State and Local government, not the Federal government
● Both triggered by state/local discrimination against outofstate citizens
● The State may raise an eleventh amendment defense (Sovereign
Immunity)
iv. Differences with the dormant commerce clause
● P&I:
a. Covers many noneconomic areas such as:
i. Provisions of essential government services
ii. Access to courts
iii. Freedom of speech and religion
iv. primary and secondary education may be a PI
1. Higher Education Is NOT a PI
b. Only covers the very essential economic activity of “pursuit of
common calling” or “seeking a livelihood”
c. Cannot claim P&I against own state
d. No market participant doctrine
e. Congress does not have ability to authorize anything that
violates P&I clause
http://www.youtube.com/watch?v=4_aN6AzBH9M
v. Difference between Article 4 and 14th amendment:
● If there is new/recent instate residents who are subject to
discrimination by the state because they are new, those new residents
may be able to sue under the 14th amendment version, not Article 4
vi. Test
● Is there an infringement of a Privilege or Immunity by a state or local
government against a citizen of a different state?
● If so, the law is unconstitutional UNLESS the State justifies it by
showing that there is:
i. A substantial reason for treating out of staters differently
(substantial is more than legitimate), AND
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ii. The discrimination bears a substantial relationship (close
connection) to the state’s reason.
f. SUBSTANTIVE (V. PROCEDURAL) “ECONOMIC” DUE PROCESS
i. 14th Amendment & 5th Article: cannot deprive a person of life, liberty, or
property without the due process of law
ii. Application
● Any law that restricts a person’s substantive right to economic due
process
a. Examples: freedom to contract, to compete
● Applies to laws passed by government including:
a. Local
b. State
c. Federal
iii. Modern Substantive Economic Due Process Test (1938US v. Carolene
Products)
● The Law is presumed to be valid
● True Rational Basis Test
a. Lowest level of scrutiny
b. (Ends) Any possible, hypothetical, conceivable legitimate
government interest, AND
c. (Means) If the means have any relationship to the interest , then
the law is good
iv. Strict Scrutiny
● Footnote 4: Court gives examples of cases where they will use more
exacting scrutiny [strict scrutiny] (voting cases, freedom of speech,
freedom of the press, race discrimination).
v. Cases
● Lochner (baker)(1905) liberty to contract recognized, “necessary and
appropriate”
● US v Carolene Products (fat in milk) (1938) decreased standard that
government must meet to rational basis
● Lee Optical (prescription for glasses) (1955) upheld Carolene
a. ANY conceivable/hypothetical/possible/speculative Legitimate
Gov Interest
g. THE CONTRACTS CLAUSE
i. Art. I Section 10: “No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of
Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;
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pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any Title of Nobility.”
ii. Applies to:
● state
● local governments
iii. Preliminary Requirements
● Plaintiff must have a valid existing contract
● The contract must be substantially impaired
iv. Burden of Proof
● Initial Burden is on the the plaintiff
● Shifts to the State to establish that the impairment is justified.
v. Test for justified impairment – Ends/Means test
● (Ends) There must be a significant and legitimate public purpose
a. Significant: higher than legitimate but less than important,
substantial, and compelling
b. Public: society at large must have something at stake.
● (Means) Really rationally related to the significant and legitimate public
purpose by showing:
a. It is a reasonable impairment
b. Really reasonable relationship
● If the government meets this test, the Contracts Clause is not violated.
vi. If the state attempts to impair its own contracts:
● Test:
a. (End) There must be an important (higher than significant) and
legitimate public purpose AND
b. (Means) No alternative means: The state must use other means
of addressing this purpose if they are reasonably available.
vii. The courts are unlikely to find a violation of the K Clause when a state or local
government changes the law in an area where a type of business or industry is
heavily regulated.
h. EXECUTIVE BRANCH
i. Executive Order
● Very little weight
ii. Federal Agencies
● Regulations
a. QuasiLegislation: the regulations elaborate on the statute
● Administrative Appeal
a. QuasiJudicial: administrative law judges make rulings that may
be appealed to higher courts
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● US v. CurtissWright Export
a. We have authority in foreign affairs with full sovereignty because
we are a nation, not because of the Constitution
b. “The broad statement that the federal government can exercise
no powers except those specifically enumerated in the
Constitution, and such implied powers and necessary and
proper to carry into effect the enumerated power, is
categorically true only in respect to our own internal affairs.”
i. EXECUTIVE DOMESTIC POWER (Steel Seizure Jackson Concurrence)
i. Highest Maximum Power
● Express OR Implied Congressional Consent/Approval
● Combination of Article I (congress) AND Article II (executive)
authority
● But...Even when congress and executive agree they may not act beyond
their constitutional authority
ii. Middle Zone of Twilight
● Congressional Silence
● Only Article II (executive)
● Depends on the factual conditions
● Acquiesce Doctrine (Frankfurter’s Dissent)
a. When Congress is silent while the President acts
b. THEN it becomes implied congressional consent moving it to
Highest level of power
iii. Lowest Ebb of Power
● Express OR Implied Congressional Denial/Disapproval
● Article II (executive) MINUS Article I (congress) authority
● But...The executive may still have the power under Article II
a. If the courts disable congress
iv. Famous Quotes
● But no doctrine that the Court could promulgate would seem to me
more sinister and alarming than that a President whose conduct of
foreign affairs is so largely…pg 386
● There are indications that the Constitution did not contemplate that the
title CommanderinChief of the Army and Navy will constitute him also
CommanderinChief of the country, its industries and its inhabitants.
13. EXECUTIVE INTERNATIONAL POWER
a. General: domestic authority test now applied to international authority
b. Treaties (Medellin v. Texas)
i. Self Implementing
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● Congress may add laws but no Act of Congress is required to become
domestic law
ii. Non Self Implementing
● Need an Act of Congress to become domestic law
c. EXECUTIVE PRIVILEGE & IMMUNITY
i. Executive Privilege
● Source of Executive Privilege
a. There is no express executive immunity in the Constitution
b. The nature of having an executive creates executive immunity
and raises
c. Constitutional underpinnings
● Analysis
a. Is the President’s claim of privilege subject to judicial review
(nonjusticiable political question)?
b. Does the President have any privileges against disclosure of
executive communications made while in office?
i. Types of privileges asserted in United States v. Nixon:
1. Absolute any communication the President
has with his advisors while in office is absolutely
immune from disclosure
a. Need for Candid advice
b. Separation of powersjudicial subpoena
ineffective as directed to the Executive
Branch
2. Qualified the “presumptive privilege” for
Presidential communications outweighs the need
to respond to a thirdparty subpoena in a
criminal case
3. Military, Diplomatic, or National Security
secrets there might be a viable claim for
absolute privilege
ii. Considerations for executive privilege
1. Criminal not civil subpoena
2. Judicial, not congressional subpoena
3. No claim of state secrets, national security, or
military secrets
iii. Court denies claim for absolute privilege
c. Balancing test;
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i. First: Look at the reason for the privilege (apply to
subject matter & who’s communicating)
1. E.g. Need to ensure separation of Powers,
and need for the President to receive candid
advice from advisors
ii. Second: Look at why not to recognize privilege (apply
to subject matter & who’s communicating)
1. E.g. Need for justice in Criminal proceedings
Under Article III
iii. Third: Forum of disclosure
1. In chambers, to a judge, (in camera review)
ii. Executive Immunity
● President is absolutely immune from civil damages claims based on
official actions taken while in office. (Nixon v Fitzgerald)
a. Distraction by suits of the President
b. President is an easy target high visibility, effect on many
people
c. Cites the possibility that President will be dissuaded from taking
some official action because of the possibility of such suits
d. Checks on the President impeachment, press, Congress,
legacy
● Dissent in Fitzgerald asks for qualified immunity for behaviors on a case
by case basis
● A sitting President is not immune, for the duration of his tenure in office,
from suits for civil damages based on conduct occurring before he took
office. (Clinton v Jones)
iii. Covers those acts while the president is office that are official acts of the
president
● Courts construe official acts to the outer limits of the duties of the
position of president
● The immunity lasts forever
iv. Does not cover acts before being president, after. Or acts during presidency if
they are not official acts
● Though if called into court for one of these the courts will be very
accommodating to the president’s busy schedule
d. WAR POWER
i. Congress Declares War. (Expressly in the Constitution)
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ii. President acts without prior official declaration of war, but Congress has
preauthorized or ratified after the fact. (The latter is an alternative holding in the
Prize Cases; if Congress can ratify, it can authorize!)
iii. President responds to invasion or insurrection. (This is the more famous part of
the Prize Cases; btw the Court said that not only did the President have the
authority to do this, he had the DUTY to do this.)
● Protection of U.S. Citizens (life) wherever they may be.
● Protection of U.S. property wherever it may be. (Typically thought to
be okay sometimes, but may depend on the magnitude of the problem.)
● Protection of “vital national security interests.” (Probably might be
consensus on this IF there were agreement on what was “vital”; but
disagreement on that, plus the fact that usually Presidents do not
disclose what the interest is, causes there to be some hot debate, here.
There are suspicions that Presidents tend to think that just about
everything is covered under the umbrella of “national security”; a handy
way to expand their authority.)
● BTW, Presidents USE not only 1, but also 2 and 3 frequently
iv. Commitment of military forces pursuant to a “Collective Security Agreement”
(e.g., NATO). (Think about it – in these instances the Senate has APPROVED
the agreement, so, in a way, the President isn’t acting unilaterally at all when the
President acts pursuant to the agreement.)
v. Some, if not most or all, recent Presidents have claimed that as Commander in
Chief and in light of CurtisWright they can just do what they want as far as
military affairs, period. (Some of them rather notably did not think so BEFORE
they became president!) Aside from their advisors (whether in the administration
or after the fact; when you count them up over the years there are a bunch of
folks in this group), most experts do NOT think such an absolutist position is
valid. (No “Imperial” Presidency…)
vi. The above does not address thorny issues such as detentions and military
tribunals, a whole related but different sticky wicket. The only issue covered
above is, as stated, “use of force/ commitment of the military in a hostile
engagement”. Nor does this address the “War Power Resolution” which
Congress passed decades ago and NO President has acknowledged as valid.
vii. From Clukey’s
● WAR AND FOREIGN EMERGENCIES
a. How we know we are at war – Prize cases
i. Declaration of war by Congress
ii. Response to invasion or insurrection OR
iii. Congressional ratification
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b. Other ways to get into war without the above
i. Response to:
1. Attacks or injuries to US citizens abroad
2. Damage to US property abroad
3. Threat to vital US security interests
4. Pursuant to collective security agreement
(NATO/UN)
e. THE (NON) DELEGATION DOCTRINE
i. When congress delegates power to the President, it can provide him more
discretion regarding foreign affairs than would be the case in domestic affairs
ii. If the statute is so vague that the federal agency doesn’t know what to do, that
is a violation of the delegation doctrine…
iii. Intelligible principle
● If it establishes a rule going on, the statute has to make clear which
agency enforces it and interprets it.
● Agency should fill in the details, not have to decide what they are
supposed to do.
f. THE SOCALLED “LEGISLATIVE VETO” (return)
i. “Single WellConsidered and Finely Wrought Process”
ii. Bicameral
● Both houses must approve laws
iii. Presentment
● Art I, § 7, Cl. 2 of the Constitution outlines federal legislative procedure
by which bills originating in Congress become federal law.
● The President has the power to veto laws, not Congress (pass a law
fools)
iv. The Framers’ decision that the legislative power of the Federal government be
exercise in accord with a single, finely wrought and exhaustively considered
procedure.
g. THE LINE ITEM VETO
i. The only way you can veto laws is how the Constitution spells it out
● EXECUTIVE PRIVILEGE
Hierarchy of questions on exam:
1. Marbury v. Madison
2. McCulloch v. Maryland
3. Steel Seizures
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a. Youngstown Sheet & Tube Co. v. Sawyer (1952)
For the IRAC essay question, it will be about congressional authority. Everything that is in Roman
Numeral III is what this will be tested on. N&P, Commerce Clause, 10th amendment...so on…
Essay question should take the longest, but most of the points come from the short essay stuff.
Exam Answer approach:
1. Step 1: What level of government is trying to pass or enforce the law?
a. City or local government
b. State
c. Legislative branch (Congress)
d. Executive branch
e. Judicial branch
f. Sub Step: What part of the constitution gives them that power? (or are they usurping
the power from someone else?)
2. Step 2: Who are they trying to pass the law against? (another branch, a state or
individual)
a. Sub Step: does the plaintiff have standing? or is it moot?
3. Step 3: What’s the real reason they are trying to pass or enforce the law?
Another Approach to constitutionality of a statute:
1. is it a state action?
2. Article III case or controversy requirements?
a. standing
b. ripe, not moot,
c. not political question
3. is there 11th amendment immunity?
4. Does the state have power to act?
a. (generally from 10th amend; health, safety, general welfare)
5. Are there any preemption issues?
a. (even if only a state statute, does it cover area where the federal government regulates
the area)
6. Does the state place an undue burden on interstate commerce?
RULE STATEMENTS
Necessary & Proper Clause: Congress may pass laws that go beyond the enumerated powers of Art
I, Section 5 as long as the act is necessary (appropriate to, not absolutely necessary) and proper (not
otherwise prohibited by the Constitution).
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Commerce Clause: Congress may regulate any economic activity that has a substantial effect on
interstate commerce.
Taxing & Spending: Congress may promote the general welfare through an unambiguous incentive
that is not independently barred by the constitution, does not impose unrelated conditions, and does not
coerce compliance.
Adequate & Independant Doctrine: where the decision of the state court is deemed to rest upon a
nonfederal ground which independently and adequately supports the state court judgment, the Supreme
Court will not exercise jurisdiction to review.
STANDING
Injury in fact
An invasion of a legally protected interest which is concrete and particularized, and actual or imminent
Causation
There must be a connection between the injury and the conduct complained of, the injury must be fairly
traceable to the conduct of the defendant and not to independent action of some third party not before
the court
Redressability
It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable
outcome.
POLITICAL QUESTION
A textual demonstrable constitutional commitment to an issue to a coordinate political department
Or the lack of judicially discoverable and manageable standards for resolving it
Or the impossibility of making a decision without an initial policy determination of a kind clearly for
nonjudicial discretion
Or the impossibility of a court’s undertaking independent resolution without expressing lack of respect
due coordinate branches of government
Or the unusual need for unquestioning adherence to a political decision already made
Or the potentiality of embarrassment from multifarious pronouncements by various department on one
question.
10th AMENDMENT GENERAL APPLICABILITY IMMUNITY
The statute at issue must regulate the states as states
The statute must address matters that are indisputably attributes of state sovereignty
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State compliance with federal obligations must directly impair the states ability to structure integral
operations in areas of tradition government functions
The relation of state and federal interest must not be such that the federal interest justifies state
submission.
14th AMENDMENT ENFORCEABILITY POWER
Power to enforce means the power to prevent/deter or remedy State Constitutional violations
To decide if something is preventative or deterring must apply the congruence and proportionality test
Congruence means there is an adequate congressional record of a constitution injury, evil, or problem
Injury, evil or problem means that the States are violating the Constitution
Adequate record means there is a widespread and consistent pattern of constitutional evil
Widespread means it is not just one state, but across the states
Consistent means it is still going on.
DISCRIMINATORY LAW
Government must show the end of the law is a legitimate government interest
And there are no alternative means
EVENHANDED LAW
Burden of proof on challenger
Balancing test
List or quantify benefits
Nature of local interest
At least a government interest and the degree of its importance
Whether it could be promoted as well with less burdens on interstate commerce
And the effect on interstate commerce are only incidental
PRIVILEGES AND IMMUNITIES
If there is an infringement of a privilege or immunity
The law is unconstitutional unless the State justifies it by showing there is:
A substantial reason for treating out of staters differently, and
The discrimination bears a substantial relationship to the state’s reason
CONTRACT CLAUSE JUSTIFIED IMPAIRMENT
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State must establish impairment of K was justified
Ends/Means test
There must be a significant and legitimate public purpose
The means chosen must be reasonably related to the significant and legitimate public purpose in 2 senses
The degree of fit must be more than a rational relationship
The impairment of the K, itself, must be reasonable – not too harsh given the circumstance
CONTRACT CLAUSE JUSTIFIED IMPAIRMENT OF STATE K
The law must further an important and legitimate public purpose
The statute must use other means of addressing this purpose if they are reasonably available
MODERN SUBSTANTIVE DUE PROCESS TEST
True rational basis test
Any possible, hypothetical, conceivable legitimate government interest, and
If the law you pass has any relationship of the means to the law to that interest, then
The law is good
Rational basis with bite
Rationally related to any real legitimate government interest.
AUTHORITY OF EXECUTIVE BRANCH ANALYSIS
When the President acts pursuant to an express or implied authorization of Congress, his authority is at
its maximum, for it includes all that he posses in his own right (Art II) plus all that Congress can delegate
(Art I).
When the President acts in absence of either congressional grant or denial of authority (congressional
silence), he can only rely on his own independent powers.
When the President takes measures incompatible with the expressed or implied will of Congress, his
powers are at its lowest ebb, for then he can rely only upon his own constitutional powers (Art II) minus
any constitutional powers of Congress (Art I) over the matter.
DETERMINING WHAT WHO IS AN OFFICER
Multifactor balancing test
Is the officer removable by higherranking official that is lower than the president?
Limited duties
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Limited Jx
REMOVAL TEST
Court judgment on a casebycase basis
If the person is essential to the president doing his job, then he is terminable at the will of the president
If the person is not essential to the president doing is job, then he is protectable by congress with a for
cause termination protection.
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