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Con Law Studocu
Con Law Studocu
Con Law Studocu
lOMoARcPSD|7789630
*This outline is VERY case heavy and covers almost all the cases in the first 3 chapters of the book, including squib
cases.
1. Judicial Power
a. Judicial Review
b. Interpretive Limits
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c. Congressional Limits
d. Justiciability Limits
2. Executive Power
a. Foreign Affairs
b. Domestic Affairs
c. War Powers
d. Impeachment/Getting Sued
3. Congressional Power
a. Commerce Power
b. Suits Against States
c. 14th Amendment
d. Civil Rights Amendments
4. Preemption
5. Dormant Commerce Clause
→The Source of Federal Judicial Power: Article III, Section 1 provides that “the judicial power of the United
States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time
ordain and establish.”
→The Scope of Federal Judicial Power: Article III, Section 2 limits the jx of the federal courts to:
Cases, in law and equity, arising under the U.S. Constitution, federal law, and treaties,
Cases affecting ambassadors, public ministers, and consuls,
Cases of admiralty and maritime jdx,
Controversies in which the United States is a party;
Controversies between two or more states,
Cases between a state and a citizen of another state, and
Cases between citizens of different states (diversity of citizenship).
→ ORIGINAL JURISDICTION: The Supreme Court’s power to be the initial court to hear certain types of cases. Under
Article III of the Constitution, the Supreme Court has original jurisdiction of all cases affecting ambassadors, other public
ministers and consuls, and cases in which a state is a party. [“...in all cases affecting ambassadors, other public ministers
and consuls and those in which a state shall be a party.”]
→ APPELLATE JURISDICTION: The Supreme Court’s power to review decisions of other courts. Article III of the
Constitution gives the Supreme Court appellate jurisdiction of, among other cases, all cases arising under the Constitution,
laws, and treaties of the United States.
Exceptions and Regulations Clause
o Congress cannot enlarge or restrict the Supreme Court’s original jurisdiction (Marbury v. Madison).
o Congress can expand or limit the Supreme Court’s appellate jurisdiction by passing relevant
legislation. Congress can also create and regulate the jurisdiction of the lower federal courts,
subject to the power and limitations set forth in Articles I and III. (Example: Judiciary Act of 1789)
FEDERALISM: Federalism is the vertical allocation of power between the federal government and the states. The
Constitution is structured so that each branch of government has defined powers that may not be encroached on by other
branches, with a set of checks built in to keep any one branch from usurping too much authority, or ‘aggrandize itself at
the expense of the other branches.’ (See The Federalist No. 49).
COUNTER-MAJORITARIAN RULE (perceived problem with judicial review of legislative (or popularly created laws)):
Marbury was a massively important contribution to jurisprudence, but it also raises an important question about the
antidemocratic nature of a court of unelected judges invalidating the act of a democratically elected legislature. This is
referred to as the counter-majoritarian difficulty. The judiciary is meant to function as an independent check on the
democratic arms of government. Article II gives the president the authority to appoint federal judges, with the advice and
consent of the senate. Those judges, at all levels of the federal court system, are given lifetime appointments with removal
only for bad behavior. Judges are meant to be immune to the impulses of the majority.
LAST-IN-TIME RULE: The last in time rule makes clear that where two statutes or a treaty and a statute conflict, the one
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last enacted will prevail.
→ ARTICLE III
Section 1: creates Supreme Court
Section 2: defines judicial power
o Cases “arising under” federal law
o Admiralty
o Controversies b/w states
o Diversity jurisdiction
o Foreign state or citizens
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(3) Yes, the Supreme Court can issue this remedy. Some matters—such as whether to veto a bill or whom
to appoint for an office—are entirely within the president's discretion and cannot be judicially reviewed.
But where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a
remedy, including a writ of mandamus.
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o BUT: grant of original jurisdiction by §13 of the Judiciary Act of 1789 was
unconstitutional.
In resolving the question, Marshall effectively defined judicial review: “It is
emphatically the province and duty of the judicial department to say what the law is.
Those who apply the rule to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must decide on the
operation of each.” Further, “A law repugnant to the Constitution is void.”
* Remember that Article III grants og jx in “Cases affecting Ambassadors, other Public Ministers and Consuls, and those
in which a State shall be a party.”
* The canon of constitutional avoidance says that when a statute may be reasonably interpreted in more than one
way, courts should choose the construction that avoids raising a constitutional question.
→ Supreme Court can review state decisions; established by 2 early 19 th century cases
Rule: Under Article III of the United States Constitution, the United States Supreme Court has authority to exercise
appellate review of state court decisions (Martin v. Hunter’s Lessee [land dispute case] and Cohens v. Virginia
[holding criminal defendants can seek Supreme Court review on claims that their convictions are
unconstitutional]). Note: This is an example of appellate jurisdiction that cannot be limited by Congress.
State Jurisdiction
To avoid federal review:
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o Must “clearly and expressly” state
o Wholly based on state law
Supreme Court can only hear case after
o Ruling by highest state court, or
o Party has exhausted all state remedies
May hear federal cases for comity (The legal principle that political entities (such as states, nations, or courts
from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts. The
underlying notion is that different jurisdictions will reciprocate each other’s judgments out of deference,
mutuality, and respect.)
Judiciary Act of 1789, §25
o Three criteria for Supreme Court jurisdiction over state court judgment on appeal:
The validity of a federal statute or state action must be drawn into question, or the construction
of a federal law is at issue such that the state court’s construction has drawn a federal privilege or
right into question;
The federal law or state action must be drawn into question on grounds that it is repugnant to the
constitution, treaties and laws of the United States.
The decision of the state court must be against the validity of the federal law or in favor of the
validity of the state action, or its construction of a federal law must be against a privilege or right
under the federal law.
o Notes about §25
No general federal question jurisdiction granted to lower federal courts until 1875.
Even some federal issues excluded from Supreme Court review when the state “over-vindicated”
the claim.
Review at the instance of either side of federal issues was not clearly available until 1914.
A state may challenge the constitutionality of a federal statute by filing a lawsuit in court seeking
to declare the federal law unconstitutional. Such a lawsuit is decided by the courts, with the
Supreme Court having final jurisdiction. (Nullification)
Technically, any court can issue a ruling that a law is unconstitutional. That ruling would
serve as binding precedent within the jurisdiction of that court. However, the only court
that has the ultimate, binding say on the matter is the U.S. Supreme Court for national
constitutional matters, or the individual State Supreme Courts for state constitutional
matters.
→ Interpretive Limits: How should the Constitution be interpreted? Static – Originalism; Dynamic – Non-
Originalism
Originalism: judges deciding constitutional issues should confine themselves to enforcing norms that are stated or
clearly implicit in the written Constitution. [Narrow judicial power]
Non-Originalism: the view that courts should go beyond that set of references and enforce norms that cannot be
discovered within the four corners of the document, since the Constitution should evolve [Broad judicial
power]
Judiciary Act of 1789, §25: Three criteria for Supreme Court jurisdiction over state court judgment on appeal:
o The validity of a federal statute or state action must be drawn into question, or the construction of a federal law
is at issue such that the state court’s construction has drawn a federal privilege or right into question;
o The federal law or state action must be drawn into question on grounds that it is repugnant to the constitution,
treaties and laws of the United States.
o The decision of the state court must be against the validity of the federal law or in favor of the validity of
the state action, or its construction of a federal law must be against a privilege or right under the federal law.
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District of Columbia v. Heller (2008) [Page 13]
o TOPIC: Limitations on JR. Interpretative limits: clauses in a Const. Amend. must be read together
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o FACTS: District of Columbia (D) ordinances essentially prohibited the possession of handguns. In
addition, no person could carry a handgun without a license, but the Chief of Police was authorized to
issue licenses for one-year periods. Guns kept in a person’s home were required to be stored in a way that
made them inoperable. Heller (P) was a District of Columbia special police officer. He was authorized to
carry a handgun while on duty at the Federal Judicial Center. Heller (P) applied to register a handgun to
keep at home, but the District (D) refused. Heller (P) then filed suit in the district court seeking to enjoin
the District (D) from enforcing its gun laws on Second Amendment grounds.
o RULE: Words and phrases in the Constitution are to be interpreted according to their normal and ordinary
meanings as understood when the provision in question was adopted.
o ANALYSIS: Justice Scalia, writing for the majority, relies on a historical interpretation to determine the
original intent of the Second Amendment. Justice Stevens would rely more heavily on precedent. Justice
Breyer would emphasize deference to the judgment of the legislature.
So which approach should you take? Operative and prefatory clauses read together or separately?
Context? Intent of the framers? The history of the time? Words having different meanings over
time?
Prefatory clause – announces a purpose; operative clause – the function, the rule having effect
→ Congressional Limits: The ability for Congress to restrict federal court jurisdiction
Issue: May Congress strip the jurisdiction of the court?
Rule: In cases that don’t affect ambassadors, other public ministers and consuls, and those where a state is a party, the
court’s appellate jurisdiction is limited to the exceptions and regulations that Congress makes.
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directing a specific judicial decision without amending or repealing the statutes that are underlying the litigation.
The Act both required the Bureau of Land Management to offer specified land for sale and also imposed
restrictions on harvesting from other land. Additionally, the Act expressly noted two pending cases and
said that “Congress hereby determines and directs that management of areas according to subsections (b)(3)
and (b)(5) of this section on [the specified lands] is adequate consideration for the purpose of meeting the
statutory requirements that are the basis for [the two lawsuits].”
o RULE: Congressional limit on JR is valid if Congress is not directing the outcome of pending litigation,
but instead changing the law in question.
o ANALYSIS: The Supreme Court held that §318 did not violate Article III because it made changes to the law by
replacing the legal standards of the five challenged statutes. It did not make any findings of law or fact, or compel
any results in the pending cases. The explicit reference to the cases only served to identify the statutes underlying
those cases.
The Ninth Circuit held that this provision was unconstitutional under Klein because Congress was directing
the outcome of the pending litigation.
The Supreme Court disagreed, concluding that Congress had changed the law itself and did not direct
findings or results under the old law. The Court read Klein as applying in a situation where Congress directs
the judiciary as to decision-making under an existing law and not applying when Congress adopts a new law.
By placing the Act into the latter category, the Court found Klein distinguishable and rejected the
constitutional challenge.
*These cases establish no clear principles as to what the phrase “exceptions and regulations” means or when separation of
powers prevents Congress from changing the law in response to a Supreme Court decision interpreting a statute.
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Ultimately, the arguments about Congress’s ability to check the federal judiciary, like so many areas of ConLaw, turn on
disputes about the meaning of the Constitution’s language, the intent of the framers, and competing policy considerations.
→ Justiciability Limits: Judicially created limits on the matters that can be heard in federal courts.
1) Prohibition of advisory opinions; 2) Standing; 3) Ripeness; 4) Mootness; 5) Political Q Doctrine
JUSTICIABILITY: The quality or state of being appropriate or suitable for review by a court.
Doctrines founded in concern about the proper—and properly limited—role of the courts in a democratic society.
Warth v. Seldin.
Article III of the Constitution limits federal jurisdiction to “cases” and “controversies.” The justiciability doctrines
define the separation of powers with respect to the judicial branch, stating fundamental limits on the power of an
unelected, unrepresentative federal judiciary.
“Constitutional” requirements meaning that Congress by statute cannot override them.
“Prudential” requirements meaning that they are based on prudent judicial administration and can be overridden
by Congress since they are not constitutional requirements.
These doctrines raise basic policy q’s about the role of the federal judiciary in a democratic society.
Chief Justice Warren explained, the “words [cases and controversies] define the role assigned to the judiciary in
a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other
branches of government.”
MOOTNESS DOCTRINE: Prohibits courts from deciding issues that are only abstract and do not involve a real dispute,
or which have already been resolved.
POLITICAL QUESTION DOCTRINE: Requires courts to refrain from deciding issues which are more properly resolved
by the other branches of government.
RIPENESS DOCTRINE: Requires courts to decide only issues which involve a real dispute and an actual injury, and not
merely potential or speculative harm.
STANDING: The status of being qualified to assert legal rights in court because one has a sufficient stake in the outcome
of the controversy.
Case or Controversy
o Case must not be an advisory opinion
o Case must have standing
o Case must meet moot and ripe standard
In addition to the justiciability doctrines, the Supreme Court has said that it would follow certain “principles
of avoidance” to ensure that it will reach constitutional questions only when necessary. Ashwander v.
Tennessee Valley Authority, Justice Brandeis wrote:
1. The Court will not determine the constitutionality of legislation in non-adversarial proceedings; this
pretty much ended any hopes for "advisory" rulings from the Court.
2. The Court will not anticipate a question of constitutional law.
3. The Court will not formulate a rule of constitutional law which is broader than needed.
4. The Court will not rule on constitutionality where there is another ground for deciding the case.
5. The Court will not determine a statute's constitutionality unless a party has been injured by it.
6. The Court will not invalidate a statute at the request of parties who have taken advantage of its benefits.
7. The Court will always consider whether any reasonable interpretation of a statute allows it to avoid
the constitutional issues.
a). Prohibition of Advisory Opinions: there must be an actual dispute between adverse litigants.
ADVISORY OPINIONS: A decision by a court that is not binding on the parties to the case or that may be ignored by
those charged with enforcing the decisions.
For a case to be justiciable and not an advisory opinion, two criteria must be met.
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o First, there must be an actual dispute between adverse litigants.
o Second, in order for a case to be justiciable and not an advisory opinion, there must be a substantial likelihood
that a federal court decision in favor of a claimant will bring about some change or have some effect.
Advisory Opinion
o Issue: The issue is whether the complaint involves an advisory opinion.
o Rule: An advisory opinion exists when there isn’t a dispute between two opposing parties, not to issue
opinions that infringe on the power of other co-equal branches of government.
o Application: Here, this [x] will [likely/unlikely] constitute an advisory opinion because the issues [is/is
not] concrete, [is/is not] hypothetical, because [x].
o Conclusion: Here, it is likely that this complaint involves/does not involve an advisory opinion.
Federal courts will not give advisory opinions to either the president or Congress concerning the
constitutionality of proposed action or legislation; there has to be a real case or controversy.
o DECLARATORY JUDGMENTS are permitted. Declaratory judgments are those that state the legal
effect of a regulation or the conduct of parties in regard to a controversy.
o State courts can issue advisory opinions.
Standing
The Supreme Court has declared that standing is the most important justiciability requirement.
Standing is the determination of whether a specific person is the proper party to bring a matter to the court for
adjudication.
“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute
or of particular issues.”
There are three constitutional standing requirements.
First [INJURY], the plaintiff must allege that he or she has suffered or imminently will suffer an injury.
Second [CAUSATION], the plaintiff must allege that the injury is fairly traceable to the defendant’s
conduct.
Third [REDRESSABILITY], the plaintiff must allege that a favorable federal court decision is likely to redress the injury.
There are two major prudential standing principles. Unlike constitutional barriers, Congress may override prudential
limits by statute.
First, a party generally may assert only his or her own rights and cannot raise the claims of third parties not before the
court.
Second, a plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers.
** ONLY ONE PLAINTIFF NEEDS TO MEET THE REQUIREMENTS FOR THERE TO BE STANDING **
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[x]’s injury is [not sufficient/not actual or imminent/not concrete and particularized] because [x]. → Do injury in
fact for each party individually
Causation and redressability (try to aggregate this and not do for each party)
Second: Under Duke Power, [“the plaintiffs” or x] will be able to show that [their/his/her] injury would not have
happened but-for the [act/gov’t action]. Here, [x]’s injury to be fairly traceable to the challenged action of the
Government because [x]. It is [likely/unlikely] that causation will be satisfied by all of the parties.
Third, Lastly, the injuries here must be redressable. Redressability request that a favorable decision will [most likely/not
likely] redress all of the plaintiffs’ harms. This is similar to [Case] because [x]. It’s [likely/unlikely] that [x]’s injury will
be sufficiently redressed.
Injury In-Fact: P must show a “distinct and palpable” injury, not abstract or hypothetical
(1) Invasion of legally protected interest (sufficient)
o There is a minimum standard, injury must be more than a general grievance, otherwise any single
person can be injured by that violation and litigate
(Incl: constitutional rights, personal injury, stigmatic injury, statutory, common
law, environmental)
Allen: just b/c gov’t fails to follow law doesn’t mean you suffered an injury
o Sufficient injuries
Constitutional right
Here, [x] is suffering a constitutional injury because [x]. Conduct that infringes on a
person’s constitutional right will likely be a sufficient injury.
Economic Injury
Here, [x] is facing an economic injury because [x]. [x]’s economic harm will be
appropriate for a finding of a sufficient injury.
Personal injury
Lyons: This injury is similar to the physical injury faced by the plaintiff in Lyons because
[x].
o Tort crime (assault, battery) against D will be sufficient for damages
Stigmatic injury
Allen: This injury is similar to the stigmatic injury of the plaintiffs in Allen because [x].
According to the Court, stigmatic injuries will always be sufficient, provided that the
party is personally suffering the injury and they are not just raising a generalized
grievance (Allen).
o (if black school children denied by schools and IRS kept granting tax exemptions
to racist schools, stigmatic injury suffered)
Statutory Injury
(1) What is the statute, (2) the right given by that statute and (3) who holds that right?
“[x]’s statutory injury is caused by [statute] which gives [him/her] a right to [what right
is given]. This will be sufficient for a statutory injury because it is narrow enough to not
be applicable to a wide group of people who have not actually experienced harm, and
thus resembles the statutory injury in Trafficante.”
o Lujan: ESA, procedural right, any person able to enforce regardless of any harm;
insufficient, too broad
o Trafficante: CRA, interracial association, white owner; sufficient, narrow enough
to meet standard
o Must meet minimum standard that it is not just a generalized grievance or filing
suit against the gov’t for not doing their job
Common law injury
Lyons: Same as personal injury w/tort crime to be sufficient
Environmental Injury
Mass v. EPA: EPA’s failure to regulate emissions contributed to global warming;
Statutory injury; Clean Air Act created a right to have procedures followed to ensure a
clean environment; The violation of this act caused harm to the environment, including
MA land; EPA argued that the statutory injury was too broad and failed to meet
minimum requirements in order to be sufficient; The Court said that does not matter, so
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long as there was a real effect on the plaintiff à As long as the plaintiff was harmed in
some way
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o Insufficient injury
Injury that derives from the government just not doing their job or failing to follow the law
(pretty much anybody could sue at that point)
(2) Concrete and Particularized
o Two distinct harms that need to be met;
Particularized: Must affect P in a personal and individual way
Concrete: Injury can’t be abstract, must be concrete enough to distinguish the interest of the
plaintiff from generalized interest every citizen has
o If a harm is concrete, but it is widely shared, may not be a general grievance and suffices for the injury
(Mass. v. EPA)
Mass: possible special circumstance b/c the party here is a state which may allow for a
greater scope for injury
Case ODFs Concrete and Particularized?
Lujan ESA reinterpreted to apply only No, it applied to anyone who worked or
within US. Ps wanted injunction to wished to view the animals. Ps not affected
return to original interpretation that in any specific way.
applied globally.
MA v. EPA MA suing EPA for not enforcing Yes, States get special treatment. Loss of
Clean Air Act → environmental land is particularized for a landowner and
harms such as losing coast land MA is landowner.
Allen v. Wright Parents of black children were suing No for stigmatic → any black person could
IRS for tax exemptions for private sue, not personally experienced. Would
schools → makes desegregation more have had to show they were denied entry to
difficult schools.
Yes for other → children in suit were
specifically being denied desegregated
education
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Lujan ESA reinterpreted to apply only w/i No, individual Ps had no definite plans to
US. Ps wanted injunction to return to return to view wildlife → no factual showing
original interpretation that applied of perceptible harm. Generalized grievance
globally. for public interest not enough to be actual
Allen v. Wright Parents of black children were suing Yes for other, segregation happening now
IRS for tax exemptions for private No for stigmatic, too general of a grievance
schools → makes desegregation more and too widespread
difficult
Lyons Lyons experienced police brutality No, can’t show he will experience police
brutality again
Clapper v. Law authorizes intel to be collected No, harm was hypothetical. No intel had
Amnesty on those associated w/ people of been collected on them
International interest which could include clients
USA of
Amnesty
Causation: Injury must have a causal connection with the challenged conduct
Challenged action was the “but-for” cause of the injury
The causation may not be so attenuated that the conduct isn’t fairly traceable to the injury (Allen)
States will have special leeway in determining causation, just like w/injury
Cases ODFs Causation?
Allen v. Wright Parents of black children were No, not enough evidence to show but for the
suing IRS for tax exemptions tax exemption the schools would be more
for private schools → makes representative of the population as a whole.
desegregation more difficult Link too tenuous
Duke Power Co. v. Act enabled building of Yes, but for the law, the nuclear reactor
Carolina nuclear power plants. Ps suing wouldn’t have been built and the people
Environmental Study claimed heightened exposure wouldn’t have been exposed.
Group Inc. to radiation.
Clapper v. Amnesty Law authorizes intel to be No, can’t show intel collected is traceable to
International USA collected on those associated law. Requires guesswork as to how the law
w/ people of interest which will be administered. Took precautions
could include clients of (claimed harm) to protect themselves →
Amnesty created own harm.
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Redressability: A favorable decision must redress the injury of the P
The party can’t contend that with a favorable decision they will have the relief they seek;
o Warth: the Ps in this case contended that adjusting zoning laws would allow companies to build
affordable housing for low/moderate-income families → Favorable decision that would allow
companies to build homes doesn’t guarantee the low/moderate-income families would thus afford them
to be able to move to town
Cases ODFs Redressability?
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Lujan ESA reinterpreted to apply No, US not sole funder and 3rd parties provided
only w/i US. Ps wanted majority of $, so even if policy changed back it
injunction to return to original wouldn’t control actions of 3rd parties. (Too
interpretation that applied many other hands in the cookie jar.)
globally.
MA v. EPA MA suing EPA for not Yes, every little bit helps. Reduction in
enforcing Clean Air Act → domestic emissions would slow the pace of
environmental harms such as global emission increases. Don’t have to stop
losing coast land harm completely just ↓ it.
Linda R.S. v. Richard Deadbeat baby daddy, mom No, even if state prosecuted people for not
D. seeking child support. Mom paying child support, she still wouldn’t be
was asking state to prosecute guaranteed the child support money. Baby
baby daddy for not paying. daddy going to jail is only guaranteed result.
Warth v. Seldin Zoning ordinances and No, even if zoning ordinance was repealed,
practices discriminated against there’s no proof any of them could afford to
low-moderate income housing. live there or that housing would be built.
Standing Requirements
City of Los Angeles v. Lyons (1983) [Page 59]
o TOPIC: Standing – injunctive relief
o FACTS: Involved a suit to enjoin as unconstitutional the use of chokeholds by the LAPD in instances where the
police were not threatened with death or serious bodily injury. Adolph Lyons, a 24-year-old black man, was
stopped by the police for having a burnt-out taillight on his car. A LAPD officer used a chokehold on Lyons to
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apply excessive force. At the time of the suit, 16 people in Los Angeles had died from the chokehold—12 of them
black men. Lyons's complaint alleged that it was the official policy of the LAPD to use the chokeholds in
situations where officers were not faced with a threat of bodily injury or death.
o ANALYSIS: Although Lyons could bring a suit seeking damages for his injuries, he did not have standing to
enjoin the police because he could not demonstrate a substantial likelihood that he, personally, would be choked
again in the future. “Lyons' standing to seek the injunction requested depended on whether he was likely to suffer
future injury from the use of the chokeholds by police officers.” The Court concluded that “absent a sufficient
likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any
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other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than
assert that certain practices of law enforcement officers are unconstitutional.”
o RULE: Lyons thus establishes that in order for a person to have standing to seek an injunction, the
individual must allege a substantial likelihood that he or she will be subjected in the future to the
allegedly illegal policy.
RULE: In the cases Linda R., Warth v. Seldin, and Simon v. Welfare Rights, the Supreme Court determined
that standing will likely not exist in cases where there are purely speculative remedies, as in, remedies that are
not guaranteed to resolve the problem.
RULE: In Duke Power Co., the Supreme Court determined that if a Plaintiff can prove that but for a specific
event happening, the Plaintiff will not have been injured or at the risk of being injured, the Plaintiff likely has
standing.
Duke Power Co. v. Carolina Environmental Study Group, Inc. [Page 67]
o TOPIC: Standing – met (But for)
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o FACTS: Forty individuals and two organizations challenged the constitutionality of the Price-Anderson Act,
which limits the liability of utility companies in the event of a nuclear reactor accident. The claim was that the
Act violated the Due Process Clause because it allowed injuries to occur without compensation. The defendant
moved to dismiss the case on the ground that the injury was purely speculative: No catastrophic nuclear accident
had occurred, no one had been denied compensation, and perhaps no one ever would suffer the injury.
o ANALYSIS: Found standing to exist because the construction of a nuclear reactor in the plaintiffs’ area subjected
them to many injuries, including exposure to radiation, thermal pollution, and fear of a major nuclear accident.
The Court concluded that the causation and redressability tests were met because but for the
Price-Anderson Act the reactor would not be built and the plaintiffs would not suffer these
harms. After finding standing, the Court held that the Price-Anderson Act was constitutional.
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Barrows v. Jackson [Page 70]
o TOPIC: Standing – met (third party)
o FACTS: Barrows, a white person who had signed a racially restrictive covenant, was sued for breach of
contract for allowing nonwhites to occupy the property. As a defense, Barrows raised the rights of blacks, who
were not parties to the lawsuit, to be free from discrimination.
o ANALYSIS: The Court allowed third-party standing, permitting the white defendant to raise the interests of
blacks to rent and own property in the community. The Court stated that “it would be difficult if not impossible
for the persons whose rights are asserted to present their grievance before any court.” Because blacks were
not parties to the covenant, they had no legal basis for participating in the breach of contract suit. (The suit
occurred before open housing laws were enacted that would have allowed African Americans to challenge the
covenants as impermissible discrimination.)
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interest in having the government follow the law and not a violation of a specific constitutional right.
o “Respondents seek to have the Judicial Branch compel the Executive Branch to act in conformity with the
Incompatibility Clause, an interest shared by all citizens.......Our system of government leaves many
crucial decisions to the political processes. The assumption that if respondents have no standing to sue,
no one would have standing, is not a reason to find standing.”
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.
Held that taxpayers lacked standing to challenge the federal government’s decision to grant property or its
power to dispose of property under Article IV, §3. The Court held that taxpayers have standing only to challenge
expenditures under Congress’s Article I, §8 spending power as violating the Establishment Clause.
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challenging this as violating the establishment clause.
HOLDING: The Court ruled, without a majority opinion, that the taxpayers lacked standing.
o The Court distinguished Flast v. Cohen as involving expenditures under a specific federal statute, whereas
the money for the White House Office of Faith-Based and Community Initiatives came from general
executive revenue.
In other words, the plurality concludes that taxpayers lack standing to challenge expenditures of funds
from general executive revenue as violating the establishment clause.
The other six Justices criticized the plurality's distinction of Flast. The executive branch, no less than Congress,
must comply with the First Amendment. All federal spending is pursuant to a federal statute; all executive branch
revenues are authorized by Congress.
Justices Scalia and Thomas concurred in the judgment and called for the overruling of Flast. Justice Scalia
lamented the “meaningless distinctions” and wrote: “Flast is wholly irreconcilable with the Article III restrictions
on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing.”
By contrast, Justice Souter, in a dissent joined by Justices Stevens, Ginsburg, and Breyer, agreed that there was no
meaningful distinction between money from general executive revenue and spending under a specific federal
statute, but they would have followed Flast and allowed taxpayer standing.
c). Ripeness - bars consideration of claims before they have fully developed
RIPENESS: The point in a dispute where the facts and adversity of the parties allow a court to render a meaningful
resolution to the conflict; many courts decline to hear issues that are not “ripe” for their resolution.
Rule: Generally, a court may not review or grant a declaratory judgment of a state law before it is enforced or when
there is no real threat the statute will ever be enforced (Poe v. Ullman).
Ripeness, like mootness, is a justiciability doctrine determining when review is appropriate. The ripeness
doctrine seeks to separate matters that are premature for review because the injury is speculative and never may
occur, from those cases that are appropriate for federal court action.
Ripeness
Issue: The issue is whether [x]’s complaint is ripe for review.
Rule: A complaint is ripe if is too early and there isn’t a concrete dispute (Mitchell). A controversy that is merely
speculated or is requesting anticipatory relief will be too ripe (Laird). It is [likely/unlikely] that this case is ripe.
Application: Here, [x] is facing a concrete dispute because [x]. However, this may not be considered sufficient for
ripeness because [x].
Cases must be ready for litigation, court can’t consider claims that haven’t yet developed as it would be too
premature.
Conclusion: It is [likely/unlikely] that [x]’s complaint will be ripe.
RULE: Where the inevitably of the enforcement of a statute is impending, a justiciable controversy is irrelevant and the
case can be considered ripe.
Regional Rail Reorganization Act Cases
o TOPIC: Ripeness – inevitability
o FACTS: Eight major railroads brought a lawsuit challenging the conveyance of their property to Conrail. The
district court found the case not justiciable on ripeness grounds because the reorganization plan had not yet been
formulated and a special court had not yet ordered the reconveyances.
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o ANALYSIS: But the Supreme Court held that the case was ripe, concluding, “Where the inevitability of
the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable
controversy that there will be a time delay before the disputed provisions will come into effect.”
d). Mootness
MOOTNESS DOCTRINE: Prohibits courts from deciding issues that are only abstract and do not involve a
real dispute, or which have already been resolved.
A plaintiff must present a live controversy at all stages of federal court litigation. If anything occurs while a
lawsuit is pending to end the plaintiff’s injury, the case is to be dismissed as moot.
For example, a case is moot if a criminal defendant dies during the appeals process or if a civil plaintiff dies
where the cause of action does not survive death. Also, if the parties settle the matter, a live controversy
obviously no longer exists. If a challenged law is repealed or expires, the case is moot.
One exception to the mootness doctrine is for “wrongs capable of repetition but evading review.” Some injuries
are of such short duration that inevitably they are over before the federal court proceedings are completed. A
case is not dismissed, even though it is moot, if there is an injury likely to recur in the future and it is possible
that it could happen to the plaintiff again, and it is of such a short duration that it likely always will evade review.
(Carolene Products, Footnote #4)
Mootness
Issue: The issue is whether [x]’s complaint is moot.
Rule: An issue is moot if it isn’t live and actual at each stage of review. The mootness doctrine requires than an actual,
ongoing controversy exist at all stages of the controversy, not just at the time of filing (DeFunnis). It is [likely/unlikely]
that [x]’s complaint is moot.
Application: In this case, [x]’s [will/will not] be deprived of a concrete stake in the outcome because there [have/have
not] been changes in the facts or in the law occurring after lawsuit begins. Here, it would not be impossible to grant [x]
was effectual relief, because [x]. This is [analogous/distinguishable] to the plaintiff in DeFunnis because [x].
o Exceptions:
Cases that are capable of repetition yet evading review (Roe v. Wade) (Moore v. Ogilvie)
Cases where D voluntarily ceases illegal or wrongful action when litigation commences,
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however, court must be assured that “there is no reasonable expectation that the wrong will
be repeated” (Laidlaw)
RULE: In sum, a case is not dismissed, although the plaintiff's claim is moot, if the injury is one likely to recur and if the
injury is of an inherently short duration that would make complete federal court review impossible. Courts have
substantial discretion in deciding what is a sufficient likelihood of future injury or a sufficiently short time span for the
injury to justify invoking this exception.
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Moore v. Ogilvie [Page 87]
o TOPIC: Mootness – capable of repetition, yet evading review
o FACTS: Illinois law required that a petition to nominate candidates for the general election for a new political
party be signed by at least 25,000 qualified voters, including 200 qualified voters from each of at least 50
counties. In 1968, the plaintiffs filed petitions for inclusion on the ballot but were denied this because they did not
meet the requirement for the number of signatures in each county (which was unconstitutional based on the idea
of one man one vote, some counties are more concentrated than others). They immediately filed suit, but, of
course, the election was over by the time the Supreme Court heard the case.
o ANALYSIS: Illinois law required that a petition to nominate candidates for the general election for a new
political party be signed by at least 25,000 qualified voters, including 200 qualified voters from each of at least
50 counties. In 1968, the plaintiffs filed petitions for inclusion on the ballot but were denied this because they did
not meet the requirement for the number of signatures in each county. They immediately filed suit, but, of course,
the election was over by the time the Supreme Court heard the case.
Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000) [Page 89]
o TOPIC: Mootness
o FACTS: The environmental group Friends of the Earth (P) brought a citizen suit under the Clean Water Act
alleging that Laidlaw Environmental Services [“Laidlaw”] (D) had violated the mercury discharge limits
established by its National Pollutant Discharge Elimination System [“NPDES”] permit. During the course of
the lawsuit (which went on for several years), Laidlaw (D) voluntarily achieved compliance with its NPDES
permit and also closed its Roebuck facility. However, Laidlaw (D) retained its NPDES permit.
o RULE: Defendant’s voluntary cessation of actions that are the subject of a Complaint does not make the
lawsuit moot unless there is no reasonable chance that the defendant can return to the actions.
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o ANALYSIS: This case is an example of the “voluntary cessation” exception to the mootness doctrine. It applies
when a defendant stops doing the activity that produced the complaint in the case. The exception states that even
though the challenged activity has ceased to exist, the court can still hear the case unless it is clear that the
defendant cannot resume the activity. The standard of proof is very high for a defendant who wants to argue that
his voluntary action has mooted the case. The defendant must show that there is “no reasonable chance” that he
could start up the challenged behavior or activity again. Thus, shutting off a valve would not be sufficient, but
creating a permanent barrier to the pipe’s ability to flow probably would. This exception is especially important to
the courts because it helps avoid the type of on-again/off-again dispute that ties up court resources without
bringing finality to the case. In this sense, the voluntary cessation exception is similar to “wrongs capable of
repetition but evading review.” Although that category generally covers situations that have a short time-span, the
practical effect is the same as with the defendant who stops long enough to make the lawsuit go away but then
repeats the same behavior.
This is quite different from standing where the burden is on the plaintiff to show that the constitutional
and prudential requirements are met. The Court, in Laidlaw, found that the defendant failed to meet its
heavy burden and refused to dismiss the case based on its voluntary changes in behavior.
Baker v. Carr Plaintiffs sued for loss of meaningful No, this dealt with a state issue, not a coordinate
vote in Tennessee government branch, embarrassing policy, and
there was a lot of precedent
Nixon (Senator) v. Senator Nixon argued impeachment Yes, Senate has sole power to try impeachments
United States by Senate committee was violation and decide policies
of Art. I standard of “trial by senate”
Powell v. McCormack House refused to seat representative No, House can’t refuse to seat a member
based on corrupt findings
Goldwater v. Carter Carter pulled a treaty with China to Yes, this was a dispute between coequal
enter a treaty with Taiwan branches and the Court did not want to be
involved with partisan climate
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o FACTS: Plaintiffs contended that the Republican-controlled Indiana legislature gerrymandered the drawing of
election districts to maximize the election of Republican representatives. While careful to preserve one person,
one vote and to avoid racial discrimination, the state legislature tried to divide the Democrats into separate
districts where possible and to combine Republican voters into districts where they would be the majority. The
result was that Democrats obtained a majority of the popular vote in the state in legislative elections but only
won a minority of the seats in the legislature. The plaintiff claimed that this was a violation of equal protection.
o RULE: The Court held that “political gerrymandering cases are properly justiciable under the Equal
Protection Clause.”
o ANALYSIS: The Supreme Court held that the claim was justiciable. The Court explained that “the standards that
we set forth here for adjudicating this political gerrymandering claim are [no] less manageable than the standards
that have been developed for racial gerrymandering claims.”
[A]s here, the mere lack of proportional representation will not be sufficient to prove
unconstitutional discrimination. Without specific supporting evidence, a court cannot presume in
such a case that those who are elected will disregard the disproportionally underrepresented
group. Rather, unconstitutional discrimination occurs only when the electoral system is arranged
in a manner that will consistently degrade a voter's or a group of voters' influence on the
political process as a whole. Justice White, for the plurality.
Treaty Power
Issue: The issue here is whether Congress may enact [statute] under their Treaty Power.
Rule: Under the treaty power, the President has the power to enter into treaties with the advice and consent of the Senate
(Art. II), and Congress will not be limited to their enumerated powers in passing legislature provided it doesn’t violate any
prohibitory provisions of the Constitution (Reid). When the treaty in question is non-self-executing, then Congress’
legislature may effectuate the treaty’s obligations under the necessary and proper clause, provided the law is reasonably
related to the end that is itself within power (McCulloch), but with wide latitude given (Kebadeaux). Here, it is [un/likely]
that this law will be constitutional under Congress’ treaty power.
Analysis:
First: Because we do not have the facts necessary to determine that this treaty was entered into in a valid manner, there
will be a cloud of uncertainty in regards to the ultimate validity of the legislature. However, in the event that this treaty
was enacted appropriately, then it’s necessary to establish whether the treaty contradicts prohibitory constitutional
provisions (Reid, Missouri). Here, the law in question seems as though it [does/does not] violate prohibitory provisions [if
it does, explain which provision and why]. Further, it [does/does not] appear that the law here is clearly appropriate and
adapted to enforcing the terms of this treaty (Kebadeaux).
Prohibitory provisions: It doesn’t violate the Constitution
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o Congress will still have the power to enact if it isn’t listed under their enumerated powers
The only areas really off limits are when the statute is against express prohibitive clauses of
the Constitution
o Self-Executing Treaty: requires no addt’l fed legislation to become enforceable in domestic courts
o Non-Self-Executive Treaty: requires addt’l legislation to become valid in domestic court
Conclusion: Therefore, it is [un/likely] that Congress will be able to pass this law under the treaty
power. Necessary and Proper Clause
Issue: Does the Necessary and Proper Clause allow Congress to enact [statute]?
Rule: Congress may use the Necessary and Proper Clause to enact [statute] if it the statute “hooks” on to another power
that Congress is able to exercise.
Necessary:
o Is a means appropriate and adapted to a legitimate end;
o Hooks on to another valid power of Congress (not necessarily powers that are enumerated – Comstock);
Comstock: Congress may prescribe sanctions for crimes that they created,
NFIB: Must be used in conjunction with valid exercise of another power of Congress; Cong
can’t just create the necessity for a certain statute
Proper:
o Is consistent with the letter and spirit of the Constitution
Doesn’t make constitution redundant
Case Name ODF Outcome
McCulloch v. United States made a second bank, Maryland Constitutional, the means were
Maryland tried to tax it appropriate and adapted to the ends of
an enumerated power
United States v. Granted district courts the ability to order Constitutional, look to the 5 factors
Comstock civil commitment of mentally ill, sexually provided for necessary and is proper
dangerous federal prisoners past their release
dates
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Garcia: Like the Fair Labor Standards Act in Garcia that could apply to both state and private entities, this act here will
likely be constitutional for because [x].
New York: The law will be held unconstitutional if the federal government is attempting to use the state political
subdivisions and is commandeering states to enforce a federal regulatory program. The federal government can shift the
blame of a federal mistake to the states
Printz: federal law was found unconstitutional because it was commandeering state executive officials (gun background
checks). Commandeering local law enforcement officers.
Reno: law for personal date into motor vehicle department database constitutional because federal government can
regulate commercial activity that is generally applicable (Reno).
Conclusion: Therefore, Congress [did/did not] have the power to regulate state governments to [x] under the
commandeering doctrine of the Tenth Amendment.
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Case Name Case Explanation Constitutional?
National League of Fair Labor Standards Act was Unconstitutional. Federal government does not
Cities v. Usery amended to remove exemption to have the power to force states to give up traditional
employees of state institutions. government functions.
Garcia v. San US Dept of Labor asserted that the Constitutional. Overruled Usery. The “Traditional
Antonio Metro. FLSA covered the Transit authority’s Government Functions” test was unworkable.
Transit Authority operations
New York v. United Federal law required state Unconstitutional. Commandeering of state
States legislatures to enact laws or take government and legislature.
possession and liability for nuclear No accountability.
waste
Federal law required state police Unconstitutional. Pushes costs on to states. Against
Printz v. United officers to conduct background original intent of the constitution.
States checks for guns.
Reno v. Condon Federal law prohibited state DMVs Constitution. Statute is generally applicable to all
from giving out personal information institutions with such information. Not an
without consent of individuals. affirmative duty, but a negative prohibition.
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Specifically, the Court made clear that while a claim of executive privilege in order to protect national
security or diplomatic secrets or to safeguard executive communications from exposure during a civil
trial might be upheld, a generalized claim of confidentiality will not outweigh the compelling public
interest in securing evidence for a criminal trial.
o The President is absolutely immune from legal liability for conduct taken while in office related to
his presidential duties.
o But, the President's immunity is not absolute in all cases. The President may be held liable for
conduct taken before or after his presidency, even if he is in office at the time of litigation. (Clinton v.
Jones)
EXECUTIVE ORDER: An order from the President having the force and effect of law and commanding certain actions
to be taken.
Foreign Affairs
The Constitution divides the power to manage relationships with other nations between Congress and the
President, but the bulk of these rights and responsibilities are given to the President.
Article II of the Constitution gives the President the authority to appoint ambassadors and foreign ministers, with
the advice and consent of the Senate, as well as the power to receive ambassadors from other countries. Implied in
this power is the right to refuse to receive foreign ambassadors.
o This means that the President effectively has the authority to determine whether or not to recognize
a foreign government, which is critically important under international law.
The President also has the primary authority for negotiating agreements with other countries.
Although agreements between nations are called many things, for our purposes there are two types
of international agreements: treaties and executive agreements.
o Treaties are agreements with other countries that are negotiated by the President and approved by two-
thirds of the Senate, following the procedure set out in Article II, Section 2 of the Constitution.
o Executive Agreements are agreements with other countries made by the President acting alone.
Treaties and executive agreements that violate the Constitution are unenforceable
o And just like a treaty, an executive agreement will supersede an inconsistent state law. This happened in
U.S. v. Belmont.
o A treaty is on equal footing with federal law, and when a treaty comes into conflict with a federal
statute, the last one enacted will prevail.
An executive agreement will never prevail over a federal statute.
Curtiss-Wright is probably the case most often used to justify the President's broad authority when it comes to
foreign affairs.
o Justice Sutherland's opinion took the position that the national government's power to conduct foreign
affairs is inherent, rather than enumerated or delegated. Because the President is the head, or sole organ,
of the government with respect to foreign relations, Sutherland's expansive view of foreign affairs
power means that the President has sweeping authority to control the United States' relations with other
countries.
o The Supreme Court's opinion has been used since then as authority for the President to act without
congressional approval under his foreign affairs power.
The President is also named Commander in Chief of the armed forces.
War Powers
The bulk of the country's war powers are given to Congress, including the power to declare war, raise and supply
an army, make rules for the armed forces, and suppress rebellions.
The Federalist Papers took the view that making the President Commander in Chief of the Armed forces was
largely about ensuring civilian control over the military.
It is at least clear that the President has authority to act to repel a sudden attack and the right to command the
armed forces.
o What is less clear is how much Congress may limit or check the President's authority as Commander in
Chief.
The War Powers Resolution is a law designed to place some constraints on the President's exercise of war
powers; specifically, the act requires the President only send U.S. troops into action with congressional approval
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unless there is a national emergency caused by an attack on the United States. The Resolution goes on to require
that the President give Congress notice if troops are sent into battle and to limit the amount of time that troops can
remain in action, without a declaration of war, to sixty days.
o The Resolution passed only by a congressional override of a presidential veto and has been violated by
past presidents. Numerous questions have been raised about the law's constitutionality, and the debate
continues today.
War on Terror
o Following 9/11, Congress passed the Authorization for Use of Military Force Against Terrorists, (AUMF)
Gave the President sweeping authority to use all "necessary and appropriate force" against those
he determined planned, assisted, or committed the attacks.
o A plurality of the Court in Hamdi v. Rumsfeld agreed that the President may detain a U.S. citizen as an
enemy combatant for the duration of hostilities, but that a citizen is still entitled to some due process in
order to challenge his or her classification. Justice Scalia's dissent asserted that a U.S. citizen can never
be
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detained without charges unless the writ of habeas corpus has been suspended and suggested that the
government's only option in the case was to bring criminal charges against Hamdi.
o In Hamdan, the Court held that the Executive Branch did not have the authority to establish military
commissions that are contrary to the Constitution, federal law, the laws of war, and the Geneva
Conventions. In footnote 23 of the majority opinion, Justice Stephens includes an important statement
about executive power: "Whether or not the President has independent power, absent congressional
authorization, to convene military commissions, he may not disregard limitations that Congress has, in
proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring)."
o In Boumediene, the Supreme Court held that the protections of habeas corpus applied to detainees held
at Guantanamo Bay.
Domestic Authority
The Presentment Clause of Article I
o The Presentment Clause of Article I requires that every bill passed by Congress be presented to the
President for signature. If the President signs the bill, it becomes a law. The President is not obligated
to sign a bill, however. Under the terms of the Presentment Clause, the President may return the bill
with objections for reconsideration.
President can sign, veto, send back, or not sign while Congress is in session (bill automatically
takes effect).
President cannot exercise Line-Item Veto (the power of a president, governor, or other elected
executive to reject individual provisions of a bill).
The Supreme Court in Clinton concluded that the Line-Item Veto violates the
formal requirements of the Presentment Clause and the separation of powers.
Using a similarly formalistic approach, the Court in Chadha held that the legislature could not
reserve for itself a legislative veto on the grounds that it violated requirements of
bicameralism and presentment.
Pocket veto: an indirect veto of a legislative bill by the president or a governor by retaining
the bill unsigned until it is too late for it to be dealt with during the legislative session.
Appointment Power
o The Constitution gives the President the authority to appoint ambassadors and foreign ministers,
federal judges, and other government officials, with the advice and consent of the Senate.
o 3 categories of government officials: principal officers, inferior officers, and employees.
Principal actors must be nominated by the President and confirmed by the Senate; these are high-
level officials with broad discretion who report directly to the President.
Congress may grant authority to appoint inferior officers to the President, the courts, or
department heads, and there is no need for confirmation by the Senate; these are lower-ranking
officials with less discretion, like undersecretaries.
Employees and other nonofficers are not mentioned in the Constitution; fulfilling these roles is
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pretty much left up to Congress.
oHow to determine if principal officer or inferior officer?
How are they removed?
Constraints on their jx, responsibilities, tenure?
Degree of supervision?
o Courts have recognized the President's inherent power as head of the executive branch to remove
principal officers, without seeking approval from the Senate. See Myers v. United States
Congress may not usurp the President's authority to remove executive officers.
o But with respect to certain types of interbranch appointments, like the appointment of a special
prosecutor, Congress can place some constraints on the President's removal authority, provided
those restrictions don't impede the President's ability to carry out his duties. See Morrison v. Olson
(1988).
Take Care Clause
o Article II commands the President to "take care that the Laws be faithfully executed."
Broad interpretation (grant of power) vs. narrow interpretation (limit on executive authority)
o In any event, in Neagle, the Court found that the Take Care clause gave executive branch officials to act
to protect national interests, even without statutory authority.
o The Take Care clause is often given as partial justification, along with delegated authority from Congress,
for the President's authority to issue executive orders, which have the force of law.
Steel Seizures case (Youngstown Sheet)
o President Truman issued an executive order to his Secretary of Commerce instructing him to seize the
country's steel mills, because the steel workers were threatening to strike in the middle of the
(undeclared) Korean War.
o Justice Black, writing for the majority, said that President Truman had unconstitutionally exceeded the
bounds of his authority and engaged in lawmaking when he ordered the seizure. Justices Frankfurter and
Jackson placed considerable importance on the fact that Congress had considered authorizing the
President to make seizures of the type in this case but elected not to. Justice Vinson's dissent concluded
that the seizure was within the President's emergency powers and made much of the fact that President
Truman had gone to Congress before the seizure and Congress made no effort to stop him.
o BUT: J. Jackson’s concurrence! He said there were 3 categories into which executive action could fall:
First, when a President acts with Congress's express or implied approval, his authority is at its
maximum because he is exercising all of his own power as well as all that Congress can delegate.
At the other end of the spectrum, when the President is acting contrary to the express or implied
will of Congress, his power is at its lowest ebb, because he can act only on his own authority
less any power Congress can take.
Things get difficult in the middle, in Justice Jackson's "zone of twilight." When Congress has said
nothing, the President is acting solely under his own authority.
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2. When the President acts in absence of either a congressional grant or denial of authority, he can only
rely upon his own independent powers, but there is a zone of twilight in which he and Congress may
have concurrent authority, or in which its distribution is uncertain.
o Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical
matters, enable, if not invite, measures of independent presidential responsibility. In this area, any
actual test of power is likely to depend on the imperatives of events and contemporary imponderables
rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his
power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter.
o Courts can sustain exclusive Presidential control in such a case only by disabling the Congress
from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive
must be scrutinized with caution, for what is at stake is the equilibrium established by our
constitutional system.
(1) where the president acts with congressional approval, (2) where the president acts in light of
congressional silence, and (3) where the president acts in light of express or implied congressional
disapproval. Under the first category, the president’s power is at its highest and the president can act as
long as Congress uses its power properly (which means Congress cannot give the president any type of
power, for example, the ability to make laws). This area includes the president acting pursuant to a self-
executing treaty. The second category is a grey area, which requires a proper factual evaluation. The
president is walking a fine line when it is unclear whether Congress approves, or disapproves of his
actions. Under the last category (clear congressional disapproval), the president can only properly use
his independent powers granted to him in the Constitution.
Four different approaches can be identified in the opinions in Youngstown; these varying approaches also are
reflected in numerous other cases.
There is no inherent presidential power; the president may act only if there is express constitutional
or statutory authority. (Majority opinion)
The president has inherent authority unless the president interferes with the functioning of another branch
of government or usurps the powers of another branch.
The president may exercise powers not mentioned in the Constitution so long as the president does
not violate a statute or the Constitution.
The president has inherent powers that may not be restricted by Congress and may act unless the
Constitution is violated.
The president may exercise powers and in the Constitution so long as the president does not
violate a statute or the Constitution (this is the model that has been adopted by the majority of
courts.)
*Note also that this case involved the President acting in the context of a domestic dispute. In the field
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of foreign affairs, the President is much less restricted.
Executive Privilege: the privilege, claimed by the president for the executive branch of the US government, of
withholding information in the public interest.
U.S. v. Nixon (1974) [Page 332]
o TOPIC: President is not beyond the scope of the judicial process
o FACTS: [Several of President Nixon’s (P) associates were indicted on charges of conspiracy and obstruction of
justice in the Watergate investigation, though the President (P) himself was not indicted. Formal criminal
proceedings followed.] The District Court issued a subpoena duces tecum ordering the President (P) to produce
the tape recordings of his conversations in one of the criminal cases. The President (P) brought this motion to
quash the subpoena on the grounds of executive privilege and separation of powers. The District Court denied the
President’s (P) motion to quash, and the Supreme Court granted review.
o RULE: Conversations between the President and his advisors are generally privileged, but the privilege is
not absolute.
o ANALYSIS: The court made 3 major points
First, the Court held that it is the role of the Court to decide whether the president has executive privilege
and, if so, its scope.
Nixon claimed that the Constitution gave the president executive privilege and that the president alone
determined its reach. The Court rejected this contention: “The President's counsel, as we have noted,
reads the Constitution as providing an absolute privilege of confidentiality for all Presidential
communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of
Marbury v. Madison, that ‘[i]t is emphatically the province and duty of the judicial department to say
what the law is.’ ” One can question, though, whether Marbury really stands for this proposition.
Marbury obviously establishes the power of judicial review of executive actions, but as Professor Gerald
Gunther argued, “there is nothing in Marbury v. Madison that precludes a constitutional interpretation
which gives final authority to another branch.”
Second, the Court recognized the existence of executive privilege.
The Court recognized that the need for candor in communications with advisors justified executive
privilege; indeed, the Court said that a need for confidentiality was “too plain to require further
discussion.” Although Article II of the Constitution does not expressly grant this power to the president,
the Court said that “the privilege can be said to derive from the supremacy of each branch within its own
assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated
powers; the protection of the confidentiality of Presidential communications has similar constitutional
underpinnings.”
United States v. Nixon thus recognizes executive privilege as an inherent presidential power. Compare to
Youngstown.
Third, the Court held that executive privilege is not absolute, but rather must yield when there are
important countervailing interests.
The Court explained that “neither the doctrine of separation of powers, nor the need for confidentiality
of high-level communications, without more, can sustain an absolute, unqualified presidential privilege
of immunity from judicial process under all circumstances.”
More specifically, the Court said that an absolute privilege would interfere with the ability of the judiciary
to perform its constitutional function. The Court explained: “The impediment that an absolute,
unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to
do justice in criminal prosecutions would plainly conflict with the function of the courts under Article
III.”
The Court thus concluded that the need for evidence at a criminal trial outweighed executive privilege.
The Court said that allowing “the privilege to withhold evidence that is demonstrably relevant in a
criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic
function of the courts.”
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Separation of powers concerns normally arise when one branch attempts to take over another branch’s
power for itself, thus aggrandizing itself at the other’s expense. Here, however, the opposite is true; the
question is whether the legislature was inappropriately giving power to the executive.
Myers, Humphrey’s Executor, and Bowsher all use the analysis for removal of administrative officers. If it’s an executive
function, then executive should remove. If it’s a legislative function, then legislature should remove.
REMOVAL
Officer Appointment Limitations on Removal
Superior Officers President Only For cause restrictions OK when function is quasi-legislative or
(Art II)(Buckley) quasi-judicial (Humphreys). Even officials exercising executive
functions may be protected from at will removal where
restrictions do not impede president from performing
constitutionally assigned powers and duties (Morrison).
Congress cannot itself maintain control over removal of officer
exercising executive functions (Bowsher).
President may be restricted over removal of quasi-judicial officers
even in absence of legislation limited removal only for cause
(Weiner).
Congressional involvement in removal decisions particularly
suspect (Myers, Bowsher).
Inferior Officers Courts, Heads of Departments For cause restrictions usually acceptable, even for officials
or President (Art II) performing executive functions (Morrison), unless double layer of
protection excessively precludes presidential control (PCAOB).
War Powers
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Detainee Treatment Act of 2005: stripped courts of jurisdiction over Guantanamo detainees, provided
limited review in DC Circuit as to whether Combatant Status Review Tribunal decision justified.
Hamdan v. Rumsfeld (2006): DTA did not strip habeas jurisdiction in pending cases and military tribunals violate
Geneva convention and laws of war.
Military Commissions Act of 2006: responded to Hamdan by stripping all habeas in any case pending or not, and
corrected some of the due process problems of military tribunals identified in Hamdan.
Detentions
Hamdi v. Rumsfield (YEAR) [Page 00]
o TOPIC:
o FACTS: Hamdi (P) was an American citizen in Afghanistan. In 2001, the Northern Alliance detained Hamdi (P)
for allegedly cooperating with the Taliban and surrendered him to the U.S. military. Hamdi (P) was transferred to
a U.S. military brig in South Carolina, where he was indefinitely detained as an “enemy combatant” without
formal charges or proceedings. Hamdi (P) filed a petition for a writ of habeas corpus, demonstrating that he had
arrived in Afghanistan two months before the attacks on September 11, had received no military training, and
was trapped there by the Northern Alliance’s military invasion. The district court found the Government’s (D)
evidence insufficient to support Hamdi’s (P) detention. On appeal, the Fourth Circuit Court of Appeals reversed,
concluding that the evidence, if correct, supported Hamdi’s (P) detention under a valid exercise of the President’s
war powers.
o RULE: A citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of
the factual basis for his classification and a fair opportunity to rebut the government’s factual assertions before
a neutral decisionmaker.
o ANALYSIS: In 2001, Congress enacted the Authorization of Use of Military Force Resolution, enabling the
President to use “all necessary and appropriate force” against those persons he determines to have assisted in
the terrorist attacks of September 11. On its face, the Resolution authorizes Hamdi’s (P) detention. However, 18
U.S.C. § 4001(a) precludes the detention of any citizen except by an Act of Congress. But because the detention
of suspected combatants falls within the meaning of “necessary and appropriate force” under the Resolution, the
requirements of § 4001(a) are satisfied by an Act of Congress as an important incident of war. So long as
American troops are at battle in Afghanistan, Hamdi’s (P) continued detention is lawfully authorized by the
Resolution.
o The war on terror following the attacks of September 11 brought the debate between presidential war powers and
individual civil rights to a head. It has been argued that, in times of international crisis threatening the safety of
the country, the sacrifice of some individual rights for the benefit of the country as a whole is justified. The
contrary view is that the value of national security is uniquely related to the individual liberties enjoyed under the
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law. Is the country better off as a safe police state than as a more vulnerable nation that upholds individual
interests?
Suspension Clause: Writ may be suspended in times of rebellion or invasion; where right to writ is protected, Supreme
Court has held that Congress may provide adequate and effective substitute to the writ if it chooses.
Article One, Section 9, clause 2, which demands that "The privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion the public safety may require it."
Military Tribunals
Ex Parte Quirin (1942)
o FACTS: During World War II, a group of German military personnel attempted to sabotage the American
government by secretly landing German submarines on American shores. The saboteurs removed their uniforms
and carried with them a supply of explosives, fuses, and incendiary and timing devices. All had been instructed by
the German government to destroy war industries and facilities in the United States. The saboteurs were captured
and held in detention for trial by military commission, which was appointed by an Executive Order of the
President in 1942 to try them for violations of the law of war and the Articles of War. The saboteurs (defendants)
petitioned for habeas corpus in federal district court, which was denied. The saboteurs appealed to the court of
appeals but petitioned the United States Supreme Court for certiorari prior to judgment. The writ of certiorari was
granted.
o RULE: The United States Congress and President, through the Articles of War and Executive Orders, may
constitutionally place unlawful combatants on trial before a military commission for offenses against the
law of war.
o Citizens can be tried in a military tribunal, citizens don’t have to pay …. [25:00]
o Seemingly allowed treating citizens and noncitizens alike
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CONGRESSIONAL POWER
Article IV
Article IV focuses largely on the relationships between states.
The Full Faith and Credit Clause requires each state to recognize and give effect to the public acts of other states.
The Privileges and Immunities Clause of Article IV forbids states from discriminating against citizens of
other states.
o The protections of this clause are available to residents of another state that have been discriminated
against, but do not extend to corporations or aliens. In order to show a denial of privileges and
immunities, an individual must show that a right fundamental to national unity, such as the right to
practice his or her profession, has been denied. Courts have generally used the Privileges and
Immunities Clause to vindicate economic rights of out-of-state residents.
o For example, an Alaskan rule favoring state residents for employment on the oil pipeline was struck down
under the Privileges and Immunities Clause. But, a Montana provision charging out-of-state hunters
higher licensing fees was upheld. If a right is considered protected, courts will strike down acts that
discriminate against citizens of other states unless it can be shown that those citizens are a “peculiar
source of evil” and there is a substantial relationship between the law and the evil. This means there must
be no less discriminatory means of addressing the issue.
Section 3 sets out the rules for the entry of new states into the union and gives Congress authority over
public lands and U.S. territories.
Section 4 guarantees every state a “republican form of government” and protection from invasion and
domestic violence. These are obligations of the federal government to provide security and protection for
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republican principles to each of the states.
Article V
Procedures for amending the Constitution
Article VI
The Supremacy Clause unequivocally states that the Constitution, federal laws, and U.S. treaties are “the supreme
law of the land” and supersede all state and municipal laws. The Oaths Clause requires officials in all branches of
government at both the state and federal levels to make an oath or affirmation that they will uphold the
Constitution. Further, this clause guarantees that public officials will never have to take a religious test in order to
hold office.
Article VII
Ratification
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its interfering with or endangering the bank. But the Court rejected this argument, in part,
because it did not want to embark on assessing the impact of each and every tax.
Also, the Court noted that a state tax on the Bank of the United States essentially was a state tax
on those in other states. Those who were being taxed therefore were not represented in the state
imposing the tax, and the tax was thus illegitimate.
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The Spending Power: The Court declared unconstitutional provisions of the Patient Protection and Affordable
Care Act that required that states receiving federal Medicaid funds cover within their Medicaid programs
those within 133 percent of the federal poverty level.
Those defending the Court's conclusion argue that it rests on the well-established principle that Congress
has broad power to tax for the general welfare and that it may tax behavior that it wants to discourage,
such as going without health insurance. Those criticizing the Court's decision emphasize that the
individual mandate was not adopted under the taxing power and should not be upheld on that basis.
Limits on the Commerce Clause: A limit on Congress's commerce power: It may not regulate economic
inactivity.
Congress under the commerce clause may regulate economic activity that taken cumulatively has a
substantial effect on interstate commerce. They saw the individual mandate as regulating inactivity,
regulating those not engaged in commerce, and thus exceeding the scope of Congress's power.
The Necessary and Proper Clause: The necessary and proper clause must be used in conjunction with a valid
exercise of another power of Congress.
“Each of our prior cases upholding laws under that Clause involved exercises of authority derivative
of, and in service to, a granted power.… The individual mandate, by contrast, vests Congress with the
extraordinary ability to create the necessary predicate to the exercise of an enumerated power.” In other
words, since the individual mandate was not a valid exercise of Congress's commerce power, the
necessary and proper clause could not be used as the basis for enacting it.
Issue: The issue is whether [x]’s claim presents a non-justiciable political question.
Rule: The political question doctrine excludes controversies from review that derive from policy choices and
determinations that are committed for resolution to Congress or the Executive (Baker). A complaint will be a political
question if it meets any one of the six elements enumerated in Baker. These factors are (1) a textually demonstrable
constitutional commitment of the issue to coordinate political department; or (2) a lack of judicially discoverable and
manageable standards; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political
decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various
departments on one question (Baker). A tangential relationship between the merits of a case and one of these six factors is
insufficient for the Court to find a political question, although certain cases have demonstrated that first two factors to be
the most important (Powell).
Application
Federal courts won’t rule on controversy if the matter is a political question that is to be resolved by the other
branches of gov’t
o Baker’s 6 Political Question Test
1) A textually demonstrable constitutional commitment of the issue to a coordinate political dept.
Nixon: Impeachment trying left to Senate, as long as they don’t exceed scope of their
authority this is political question
Powell: Congress has constitutional ability to exclude members based on age, citizenship
and residence w/o judicial review, nothing more
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2) Lack of judicially discoverable and manageable standards for resolving issue
Guarantee of republican gov’t
War power disputes
President and Legislature have alternative methods of dispute resolution w/treaties
3) Impossibility of deciding w/initial policy determination of a kind clearly for non-judicial
discretion (unsuitable policy determination)
4) Impossibility of court’s undertaking indep. resolution w/o expressing lack of respect due co-
ordinate branches of gov’t (Lack of respect for other branches)
5) Unusual need for unquestioning adherence to political decision already made (there
has already been a political decision)
6) Potential for “embarrassment from pronouncements made by other departments on same
question
Typical issues for Political Question Doctrine to be present
o Actions totally committed to executive branch
o Some, but not all, foreign policy issues
Goldwater: no standards in Constitution governing rescission of treaties and matter was
“dispute b/w coequal branches of gov’t each of which has resources available to protect and
assert their interests” → case was a political Q
Zivotofsky: case dealt w/ examining a statute and of passport and recognition powers →
typical for court to review; not a political Q
o Questions arising under Guaranty Clause (Luther; all cases under Guaranty Clause = PQ)
o Most Questions of Impeachment (Nixon)
As long as Senate functioning w/in their scope of power → case will be political Q
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o Qs if Constitutional amendment has been ratified (Colemen)
Case Name ODF Political Question?
Baker v. Carr Plaintiffs sued for loss of meaningful No, this dealt with a state issue, not a coordinate
vote in Tennessee government branch, embarrassing policy, and
there was a lot of precedent
Nixon (Senator) v. Senator Nixon argued impeachment Yes, Senate has sole power to try impeachments
United States by Senate committee was violation and decide policies
of Art. I standard of “trial by senate”
Powell v. McCormack House refused to seat representative No, House can’t refuse to seat a member
based on corrupt findings
Goldwater v. Carter Carter pulled a treaty with China to Yes, this was a dispute between coequal
enter a treaty with Taiwan branches and the Court did not want to be
involved with partisan climate
Spending Power
Issue: The issue is whether the Spending Clause give Congress the power to enact [statute].
Rule: Congress may grant conditional spending if it is for the general welfare, the conditions are unambiguous, the
conditions related to the purposes of the overall spending program, recipients don’t have to violate constitutional rights to
receive the funds, and the spending isn’t coercive (Dole, Butler). It is [likely/unlikely] that this statute will be
constitutional under Congress’ spending power.
Application:
First: In this case, the [spending scheme] likely promotes the general welfare because [x]. Under this requirement, the
Court will typically defer to Congress over whether the program promotes the general welfare. Second, the [spending
scheme] is [un/likely] to meet the requirements of the clear statement rule because [x]. It could also be argued that this
statute is instead ambiguous because [x]. If the Court determines the statute is unclear, then the statute will instead be read
to not contain any conditions because having a clear statement isn’t a constitutional requirement. Third, these conditions
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are [un/likely] germane as they relate to [x]. The germaneness requirement isn’t as strict as what is required by the
commerce clause which may also reinforce the relationship between the conditions and the goal of the statute. Further,
this statute does not force the states to do anything illegal because [x]. Lastly, it is [un/likely] that this statute constitutes
coercion to the states because the conditions resemble a [gun to the head (NFIB)/mere mild encouragement (Dole)].
This is similar to [case] where [x]. Here, th
e government is [doing x]. In contrast, it’s possible that this scheme is more similar to [Case] because [x].
Dole (germane, purpose, coercion): where the Court upheld a statute to withhold federal highway funding if the
state drinking age was not increased because [x].
o (1) Spending program must promote the general welfare
o (2) Any condition on state’s receipt of federal funds must be unambiguous must be clear statement rule
Clear Statement Rule: not a constitutional req., if Cong. doesn’t make it clear, then statute will be
read as if condition is not there and the conditions won’t be required for the funding
o (3) The spending condition must be related to the purposes of the overall spending program
Germaneness Requirement: requirement is not as strict as it is with the Commerce Clause
o (4) The condition does not require the recipients to violate any individual rights
Condition doesn’t require the recipients to violate any constitutional provisions
o (5) The spending cannot be coercive
Court doesn’t provide a guideline for what constitutes as coercive; “mild encouragement” is
appropriate, however
Temptation: motivating states is not coercive (Dole)
Gun to the head: Dole considered the 5% to be okay, but the state’s budgets in NFIB was
a gun to the head with the amount.
Butler: The Court will invalidate a law enacted with under the spending clause if the spending scheme is coercive,
unless Congress can validate the law under another enumerated power (agricultural adjustment act invalid).
Shows coercion.
NFIB: The condition for spending must relatively mild encouragement similar to Dole; whereas in NFIB the
spending condition was a gun to the head if the states did not comply.
Steward: Distinguish Butler (1) NOT earmarked for special group; (2) States approval; (3) NOT an
irrevocable agreement; (4) Directed at lawful ends.
Conclusion: Therefore, Congress [will likely/is unlikely to be able to] enact [x] under their Spending power.
United States v. Statute to stabilize farm prices by pay farmers not to use land Unconstitutional
Butler
Steward Machine Statute requiring unemployment insurance for the states Constitutional
Co. v. Davis
NFIB Medicaid Expansion, 20% of 50-80% of the state budget (gun Unconstitutional
to the head)
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Treaty Power
Issue: The issue here is whether Congress may enact [statute] under their Treaty Power.
Rule: Under the treaty power, the President has the power to enter into treaties with the advice and consent of the Senate
(Art. II), and Congress will not be limited to their enumerated powers in passing legislature provided it doesn’t violate any
prohibitory provisions of the Constitution (Reid). When the treaty in question is non-self-executing, then Congress’
legislature may effectuate the treaty’s obligations under the necessary and proper clause, provided the law is reasonably
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related to the end that is itself within power (McCulloch), but with wide latitude given (Kebadeaux). Here, it is [un/likely]
that this law will be constitutional under Congress’ treaty power.
Analysis:
First: Because we do not have the facts necessary to determine that this treaty was entered into in a valid manner, there
will be a cloud of uncertainty in regards to the ultimate validity of the legislature. However, in the event that this treaty
was enacted appropriately, then it’s necessary to establish whether the treaty contradicts prohibitory constitutional
provisions (Reid, Missouri). Here, the law in question seems as though it [does/does not] violate prohibitory provisions [if
it does, explain which provision and why]. Further, it [does/does not] appear that the law here is clearly appropriate and
adapted to enforcing the terms of this treaty (Kebadeaux).
Prohibitory provisions: It doesn’t violate the Constitution
o Congress will still have the power to enact if it isn’t listed under their enumerated powers
The only areas really off limits are when the statute is against express prohibitive clauses of
the Constitution
o Self-Executing Treaty: requires no addt’l fed legislation to become enforceable in domestic courts
o Non-Self-Executive Treaty: requires addt’l legislation to become valid in domestic court
Conclusion: Therefore, it is [un/likely] that Congress will be able to pass this law under the treaty
power. Necessary and Proper Clause
Issue: Does the Necessary and Proper Clause allow Congress to enact [statute]?
Rule: Congress may use the Necessary and Proper Clause to enact [statute] if it the statute “hooks” on to another power
that Congress is able to exercise.
Necessary:
o Is a means appropriate and adapted to a legitimate end;
o Hooks on to another valid power of Congress (not necessarily powers that are enumerated – Comstock);
Comstock: Congress may prescribe sanctions for crimes that they created,
NFIB: Must be used in conjunction with valid exercise of another power of Congress; Cong
can’t just create the necessity for a certain statute
Proper:
o Is consistent with the letter and spirit of the Constitution
Doesn’t make constitution redundant
Case Name ODF Outcome
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McCulloch v. United States made a second bank, Maryland Constitutional, the means were
Maryland tried to tax it appropriate and adapted to the ends of
an enumerated power
United States v. Granted district courts the ability to order Constitutional, look to the 5 factors
Comstock civil commitment of mentally ill, sexually provided for necessary and is proper
dangerous federal prisoners past their release
dates
National League of Fair Labor Standards Act was Unconstitutional. Federal government does not
Cities v. Usery amended to remove exemption to have the power to force states to give up traditional
employees of state institutions. government functions.
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Garcia v. San US Dept of Labor asserted that the Constitutional. Overruled Usery. The “Traditional
Antonio Metro. FLSA covered the Transit authority’s Government Functions” test was unworkable.
Transit Authority operations
New York v. United Federal law required state Unconstitutional. Commandeering of state
States legislatures to enact laws or take government and legislature.
possession and liability for nuclear No accountability.
waste
Federal law required state police Unconstitutional. Pushes costs on to states. Against
Printz v. United officers to conduct background original intent of the constitution.
States checks for guns.
Reno v. Condon Federal law prohibited state DMVs Constitution. Statute is generally applicable to all
from giving out personal information institutions with such information. Not an
without consent of individuals. affirmative duty, but a negative prohibition.
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oThe line between a channel and an instrumentality of interstate commerce is somewhat blurry, but
instrumentalities include trains, vehicles, planes, boats, and anything else used to carry out
interstate commerce.
(3) Anything that has a substantial effect on commerce.
o The substantial effects doctrine is the biggest and most complicated of the commerce clause theories.
o In U.S. v. Lopez, the Supreme Court held that the connection between gun possession on school property
to commerce was not strong enough for a federal law barring firearms in schools to be justified by the
Commerce Clause.
o Based on that case, we have to consider a number of factors to help us decide whether an activity has
a substantial effect on interstate commerce.
First, we must ask whether the activity is commercial in nature. If the activity is commercial,
then the entire category of activities that it falls into may be considered collectively to determine
whether there is, in fact, a substantial effect on interstate commerce.
If yes, then may regulate activity category
May regulate noneconomic parts of the economic activity
Does it involve intrastate commerce?
Does it have noneconomic aspects?
May regulate if collective substantial effect
If entirely noneconomic activity, there probably needs to be a fairly obvious connection
to interstate commerce for that regulation to be considered a valid exercise of
commerce authority.
But in all such cases involving regulation of noneconomic activity, a court will
show much less deference to Congress's determination that such a substantial effect
exists.
Court will independently determine if there is a substantial effect on commerce
Does the activity being regulated fall under the police power of the state?
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May be overcome if there is a clear need for a national solution.
Congress can also regulation articles moving in commerce
Congress rarely exercised its commerce authority in the years that followed Gibbons v. Ogden, and it wasn't until
the Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890 that we see a significant uptick in
Supreme Court scrutiny of the commerce power.
Between the late nineteenth century and 1937, the Court espoused a philosophy often termed “dual federalism.”
Dual federalism was the view that the federal and state governments were separate sovereigns, that each had
separate zones of authority, and that it was the judicial role to protect the states by interpreting and enforcing
the Constitution to protect the zone of activities reserved to the states.
Dual federalism was embodied in three important doctrines that the Court developed and followed during
this period.
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o First, the Court narrowly defined the meaning of commerce so as to leave a zone of power to the states.
o Second, the Court restrictively defined among the states as allowing Congress to regulate only when there
was a substantial effect on interstate commerce.
o Finally, the Court held that the Tenth Amendment reserved a zone of activities to the states and that even
federal laws within the scope of the commerce clause were unconstitutional if they invaded that zone.
However, it should be noted at the outset that the Court was not completely consistent in applying these
principles. The Court was most likely to follow them when considering federal economic regulations; the Court
was least likely to adhere to them, and most willing to uphold federal laws, when they concerned federal morals
regulation.
a. What is “Commerce?”
The Court held that commerce was to be narrowly defined as one stage of business, separate and distinct
from earlier phases such as mining, manufacturing, and production
United States v. E.C. Knight
o HOLDING: The Sherman Antitrust Act could not be used to stop a monopoly in the sugar refining
industry because the Constitution did not allow Congress to regulate manufacturing.
o FACTS: The U.S. government attempted to use the Sherman Antitrust Act to block the American Sugar
Refining Company from acquiring four competing refineries. The acquisition would have given the
company control of over 98 percent of the sugar refining industry.
o The Court held that federal law could not be applied because the monopoly was in the production of
sugar, not in its commerce.
The Court was clear that this rigid distinction was based on a need for preserving a zone of
activities to the states.
The Court explained that although the commerce power was one of the “strongest
bond[s] of the union, . . . the preservation of the autonomy of the States [w]as required by
our dual form of government.”
This distinction between manufacturing and commerce seems arbitrary; a company would desire
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a monopoly in production because it would benefit from monopoly profits in commerce. The
Court acknowledged this but said that the relationship was too indirect to allow federal regulation
under the commerce power. The Court said that it would be “far-reaching” to allow Congress to
act “whenever interstate or international commerce may be ultimately affected.”
Carter v. Carter Coal Co.
o The Court declared unconstitutional the Bituminous Coal Conservation Act of 1935. The law contained
detailed findings as to the relationship between coal and the national economy and declared that the
production of coal directly affected interstate commerce. The law provided for local coal boards to be
established to determine prices for coal and to determine, after collective bargaining by unions and
employers, wages and hours for employees.
o “[C]ommerce is the equivalent of the phrase “intercourse for the purposes of trade.” Plainly, the
incidents leading up to and culminating in the mining of coal do not constitute such intercourse. The
employment of men, the fixing of their wages, hours of labor and working conditions, the bargaining in
respect of these things—whether carried on separately or collectively—each and all constitute intercourse
for the purposes of production, not of trade.”
The Supreme Court soon adopted another theory of congressional authority under the Commerce Clause: stream of
commerce.
In its landmark 1905 decision, the Court in Swift & Co. v. United States held that Congress had the authority to
enact legislation regarding seemingly intrastate monopolies that were part of the stream or current of commerce.
o The fact that goods had once been transported across state lines was enough to put an item
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under Congress's authority to regulate interstate commerce.
Likewise, the Supreme Court generally upheld congressional regulations on activities that had "substantial
economic effects" on interstate commerce. In the Shreveport Rate Case, the Supreme Court upheld
Congress's authority to regulate a wholly intrastate railway line because there was a close, substantial
relationship to interstate commerce.
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o The Court declared unconstitutional the Railroad Retirement Act of 1934, which provided a pension
system for railroad workers. Railroads obviously were part of the stream of interstate commerce, and the
Court had upheld other federal regulations of railroads.
In Southern Railway v. United States, the Court upheld the Federal Safety Appliance Acts, which
regulated couplers on railroad cars. In Baltimore & Ohio Railroad Co. v. Interstate Commerce
Commission, the Court upheld a federal law that set maximum hours for railroad workers.
o Here, the Court struck down the requirement for a pension for railroad workers and distinguished the
other cases as concerning the safety or efficiency of the railroads. The Court said that Congress could not
use its commerce power to require a pension program for railroad employees because the law was only to
help “the social welfare of the worker, and therefore [was] remote from any regulation of commerce.”
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“[t]he grant of power to Congress over the subject of interstate commerce was to enable it to
regulate such commerce, and not to give it authority to control the States in their exercise of
the police power over local trade and manufacture.”
The Court said that regulating the hours of labor of children was entrusted “purely [to]
state authority.”
The Court expressly rejected the argument that federal legislation was necessary to prevent unfair
competition; states that wanted to outlaw child labor would find it difficult to do so as long as
other states allowed child labor.
“if Congress can thus regulate matters entrusted to local authority by prohibition of the
movement of commodities in interstate commerce, all freedom of commerce will be at an end,
and the power of the States over local matters may be eliminated, and thus our system of
government be practically destroyed.”
The Lottery Case (Champion v. Ames)
o Upheld a federal law prohibiting the interstate shipment of lottery tickets.
o In both The Child Labor Case and The Lottery Case, the federal law prohibited the shipment of a
specified item—goods made by child labor or lottery tickets—in interstate commerce. In both, Congress
obviously was seeking to stop intrastate activities: the use of child labor and gambling in lotteries. Yet
in the former the Court declared the federal law unconstitutional, whereas in the latter the Court upheld
the federal law.
o The Court made it clear that the power to regulate interstate commerce includes the ability to
prohibit items from being in interstate commerce. It was within Congress’s Commerce Clause power
to stop lottery tickets from being a part of interstate commerce.
“If a State, when considering legislation for the suppression of lotteries within its own limits,
may properly take into view the evils that inhere in the raising of money, in that mode, why may
not Congress, invested with power to regulate commerce among the several States, provide that
such commerce shall not be polluted by the carrying of lottery tickets from one State to another?”
o The Court rejected the argument that according Congress such power would give Congress seemingly
limitless authority and would endanger the constitutional structure.
“[T]he possible abuse of a power is not an argument against its existence.”
In N.L.R.B. v. Friedman-Harry Marks Clothing Co., the Court upheld the application of the NLRA to even a relatively
small clothing manufacturer that shipped clothing in interstate commerce. The Court noted that a strike in the New York
clothing industry would have a severe effect on interstate commerce. This shows that an economic effect on interstate
commerce, even if slight, gives Congress authority under the Commerce clause to regulate the activity.
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violating the wage and hour standards of the Act. The district court quashed the indictment of Darby, and the
court of appeals affirmed. The U.S. government appealed to SCOTUS.
o RULE: Congress has the authority, under the Commerce Clause, to exclude any article from interstate commerce,
in judgment that they are injurious to the public health, morals or welfare.
o ANALYSIS: “Congress, having by the present Act adopted the policy of excluding from interstate commerce all
goods produced for the commerce which do not conform to the specified labor standards, it may choose the
means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate
activities.”
“Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional
prohibition are within the plenary power conferred on Congress by the Commerce Clause.” It is not a valid
objection to such an assertion of congressional power to regulate commerce that its exercise is attended by
the same incidents which attend the exercise of the police powers of the states.
“The power of Congress over interstate commerce is not confined to the regulation of commerce among the
states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the
power of Congress over it as to make regulation of them appropriate means to the attainment of a
legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.”
“The [Tenth] amendment states but a truism that all is retained which has not been surrendered.” In
other words, a law is constitutional so long as it is within the scope of Congress's power; the Tenth
Amendment would not be used by the judiciary as a basis for invalidating federal laws.
o The Court’s conclusion in Hammer v. Dagenhart, that only those articles that are harmful or deleterious in and of
themselves may be banned from interstate commerce, was not supported by any provision in the Constitution. It
was novel then and has not been followed since. Overruled.
Remember the Court’s ruling in Hammer v. Dagenhart, that Congress did not have the power, under the Commerce
Clause, to prohibit child labor through a general ban on the shipment of its fruits. Was Hammer truly a ruling without
support in prior and subsequent case law? In the Lottery Case the Court ruled that only those articles adjudged to be
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deleterious in and of themselves could be banned from interstate commerce. In Schechter Poultry(the Sick Chicken Case),
the Court ruled that the commerce power did not extend past the initial sale once an article entered a state. In E.C.
Knight the Court ruled that Congress could not regulate manufacturing because it is a local concern. The holding in Carter
v. Carter Coal is directly on point for Darby. The Court held therein that Congress could not set wages and working
conditions for miners, yet, after Darby, it has power to do so.
Regulatory Laws
Hodel v. Indiana [Page 180]
Upheld a federal law that regulated strip mining and required reclamation of strip-mined land.
“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.”
Under this test, it is difficult to imagine anything that Congress could not regulate under the commerce clause
so long as it was not violating another constitutional provision.
Criminal Laws
Perez v. US [Page 181]
o TOPIC:
o FACTS: Title II of the Consumer Credit Protection Act prohibited loan sharking activities such as charges of
excess interest, violence, and threats of violence to collect debts. A study found that organized crime takes
over
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$350 million a year from America’s poor through loan-sharking alone. Perez was convicted of violating the law
but argued to SCOTUS that the law could not be constitutionally applied to him because his business wholly
operated in New York and there was no proof that he had engaged in organized crime.
o RULE: Title II of the Consumer Credit Protection Act is a permissible exercise by Congress of its powers
under the Commerce Clause.
o ANALYSIS: “The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels
of interstate or foreign commerce which Congress deems are being misused . . . Second, protection of the
instrumentalities of interstate commerce . . . Third, those activities affecting commerce. It is with this last
category that we are here concerned.”
“We relate the history of the Act in detail to answer the impassioned plea of petitioner that all that is involved
in loan sharking is a traditionally local activity. It appears, instead, that loan sharking in its national setting is
one way organized interstate crime holds its guns to the heads of the poor and the rich alike and siphons funds
from numerous localities to finance its national operations.”
4). Narrowing of the Commerce Power and Revival of the Tenth Amendment as a Constraint on Congress
“Commerce Among the States”
US v. Lopez (1995) [Page 188]
o FACTS: Congress passed the Gun-Free School Zones Act of 1990 (Act or § 922), making it a federal offense
“for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone.” A “school zone” is on the grounds of or within 1,000 feet of a school. The
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Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any
way to interstate commerce. Lopez (D), a 12th-grade student, was convicted of violating the Act by carrying a
concealed .38-caliber handgun and five bullets into his high school.
o RULE: Congressional authority to regulate pursuant to the Commerce Clause extends to only those activities
that rationally implicate (1) the channels of interstate commerce; (2) the instrumentalities of interstate
commerce; or (3) activities having a substantial effect upon interstate commerce.
o ANALYSIS: The Constitution mandates a division of authority, which was adopted by the framers to ensure
protection of our fundamental liberties. A healthy balance of power between the States and the Federal
Government reduces the risk of tyranny and abuse from either front. [The Court reviewed a series of
Commerce Clause decisions from Gibbons to the 1940s.] These decisions greatly expanded the authority of
Congress. “The Act neither regulates a commercial activity nor contains a requirement that the possession be
connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress
“[t]o regulate Commerce . . . among the several States.”
o “We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of
whether the regulated activity “substantially affects” interstate commerce.”
“it is not necessary that each individual instance of the activity substantially affect commerce; it
is enough that, taken in the aggregate, the class of activities in question has such an effect.”
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers.
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Virginia Tech under the Act in federal district court. Morrison challenged the Act as an unconstitutional
exercise of Congress’s Commerce Clause powers. The district court held that Congress lacked authority to
enact the Act, but the Fourth Circuit reversed. The Fourth Circuit then reheard the case and upheld the district
court’s decision. Brzonkala and the U.S. appealed to SCOTUS.
o RULE: Congress may not, pursuant to the Commerce Clause, regulate a local activity solely on the basis that
it has substantial effects on interstate commerce when viewed in its nationwide aggregate.
o ANALYSIS: Congress may not, pursuant to the Commerce Clause, regulate a local activity solely on the
basis that it has substantial effects on interstate commerce when viewed in its nationwide aggregate.
“As we stated in Lopez, “[S]imply because Congress may conclude that a particular activity substantially
affects interstate commerce does not necessarily make it so.””
“If accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the
nationwide, aggregated impact of that crime has substantial effects on employment, production,
transit, or consumption.”
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (205)
“where an otherwise acceptable construction of a statute would raise serious constitutional problems, the
Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent
of Congress.”
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Policy: “Where Congress encourages state regulation rather than compelling it, state governments
remain responsive to the local electorate’s preferences; state officials remain accountable to the
people. By contrast, where the Federal Government compels States to regulate, the accountability
of both state and federal officials is diminished . . . it may be state officials who will bear the
brunt of public disapproval, while the federal officials who devised the regulatory program may
remain insulated from the electoral ramifications of their decision.”
A choice between two unconstitutionally coercive regulatory techniques is no choice at all.
Either way, “the Act commandeers the legislative processes of the States by directly
compelling them to enact and enforce a federal regulatory program,” Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc.”
“The Constitution does not protect the sovereignty of States for the benefit of the States or state
governments . . . or even for the benefit of the public officials governing the States . . . the
Constitution divides authority between federal and state governments for the protection
of individuals.”
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the local chief law enforcement officers (CLEOs), who are then obligated to make “reasonable efforts”
within five days to determine whether the sales listed on the forms are lawful. Jay Printz and Richard Mack
(CLEOs) (P) are chief local law enforcement officials who challenge the constitutionality of Brady’s interim
provisions.
o RULE: Congress does not have authority to compel states to enact, enforce, or administer federal
regulatory programs, and cannot circumvent this prohibition by conscripting state officials directly.
o ANALYSIS: Constitutional: “The Constitution does not leave to speculation who is to administer the laws
enacted by Congress; the President, it says, “shall take Care that the Laws be faithfully executed,” Art. II, §3
.
. . The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left
to implement the program without meaningful Presidential control . . . the power of the President would be
subject to reduction, if Congress could act as effectively without the President as with him, by simply
requiring state officers to execute its laws.”
o Jurisprudence: “as we concluded categorically in New York: “The Federal Government may not compel the
States to enact or administer a federal regulatory program.”
o Dissent: “When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative
obligations on executive and judicial officers of state and local governments as well as ordinary citizens. This
conclusion is firmly supported by the text of the Constitution, the early history of the Nation, decisions of this
Court, and a correct understanding of the basic structure of the Federal Government.”
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2. What Is the Scope of Congress’s Power?
A second major issue concerning Congress's power under the Reconstruction Amendments concerns the scope
of authority under these provisions. Is Congress limited to providing remedies for violations of constitutional
rights recognized by the Supreme Court; or may Congress use its power under these amendments to adopt an
independent interpretation of the Constitution, even overruling Supreme Court decisions?
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o ANALYSIS: The SC upheld this provision as “a proper exercise of the powers granted to Congress by §5 of the
Fourteenth Amendment” for two reasons.
1. Congress could have concluded that granting Puerto Ricans the right to vote would empower
them and help them to eliminate discrimination against them. The law was constitutional because
it was a remedy for discrimination.
2. Congress could find that the literacy test denied equal protection, even though this was
contrary to the Court's earlier holding in Lassiter. This aspect of the ruling is much more
significant because it accords Congress the authority to define the meaning of the Fourteenth
Amendment.
o The Court explained that “[b]y including §5 the draftsmen sought to grant to Congress, by a specific
provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary
and Proper Clause.”
o A concern raised by the dissent was that if Congress can use its power under §5 to interpret the
Constitution, it conceivably could use this authority to dilute or even negate constitutional rights. In a
footnote, Justice Brennan, the author of the majority opinion, responded to this concern: “Contrary to the
suggestion of the dissent, §5 does not grant Congress power to exercise discretion in the other direction
and to enact ‘statutes so as in effect to dilute equal protection and due process decisions of this Court.’
We emphasize that Congress's power under §5 is limited to adopting measures to enforce the guarantees
of the Amendment; §5 grants Congress no power to restrict, abrogate, or dilute these guarantees.”
o ANALYSIS: The Court, 5 to 4, held §4(B) unconstitutional and thereby also effectively nullified §5 because it
applies only to jurisdictions covered under §4(B). It is the first time since the nineteenth century that the Court
declared unconstitutional a federal civil rights statute.
The Constitution and laws of the United States are “the supreme Law of the Land,” but outside the strictures
of the Supremacy Clause, states retain broad autonomy in structuring their governments. This allocation of
powers is not just an end in itself, but secures to citizens the liberties that derive from the diffusion of
sovereign power. More specifically, the Framers of the Constitution intended that the States would retain the
power to regulate elections.
In addition to the sovereignty of states, there is also a fundamental principle of equal sovereignty among
the states, which is “essential to the harmonious operation of the scheme upon which the Republic was
organized.” The Voting Rights Act departs from these basic principles. It suspends all changes to state
election law—however innocuous—until they have been precleared by federal authorities. States must
beseech the Federal Government for permission to implement laws that they would otherwise have the right
to enact and execute on their own.
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o States may waive their Eleventh Amendment immunity and may consent to be sued in federal court. But
the “test for determining whether a state has waived its [Eleventh Amendment] immunity from federal-
court jurisdiction is a stringent one.” The Court has held that waivers must be explicit; there is no doctrine
of implied or constructive waiver of the Eleventh Amendment.
o The Supreme Court has held that Congress, acting pursuant to §5 of the Fourteenth Amendment, may
authorize suits against state governments. This authority is established in the cases in the next section.
Following the cases creating this authority, three Supreme Court decisions construing the scope of
Congress’s §5 power are presented. Finally, the section concludes by presenting the Supreme Court’s
recent decision in Alden v. Maine, holding that Congress cannot authorize suits against state
governments in state courts. Alden held that state governments have sovereign immunity and cannot be
sued in state courts without their consent even for violations of federal laws.
Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and US (1999) [Page 281]
o TOPIC: Congress must show a pattern of state violations of the fourteenth amendment to abrogate state
sovereignty.
o FACTS: Congress enacted legislation providing a right to sue states in federal court over patent infringement. The
legislation is challenged as beyond Congress’s Fourteenth Amendment enforcement authority.
o RULE: For Congress’s abrogation of State sovereignty pursuant to the Fourteenth Amendment to be
constitutional, it must (1) show a history or pattern of unconstitutional activity by States giving rise to a need
for remedial or preventive federal regulation, and (2) limit the scope of the remedy, making it proportionate to
the constitutional violations giving rise to the need for enforcement.
o ANALYSIS: SCOTUS held that the law was not a valid exercise of power under §5 of the
Fourteenth Amendment and thus could not be used to sue the state government.
Although patents are property and the Fourteenth protects property from being deprived by state
governments without due process, the authorization of suits was impermissible because it was
not “proportionate” or “congruent” to remedy constitutional violations. “In enacting the
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Patent Remedy Act, however, Congress identified no pattern of patent infringement by the States,
let alone a pattern of constitutional violations. Unlike the undisputed record of racial
discrimination confronting Congress in the voting rights cases, Congress came up with little
evidence of infringing conduct on the part of the States.”
The Court held that the law was not valid under §5 because “[t]he legislative record thus suggests
that the Patent Remedy Act does not respond to a history of ‘widespread and persisting
deprivation of constitutional rights' of the sort Congress has faced in enacting proper
prophylactic
§5 legislation.”
BUT: barring patent infringement suits against state governments in federal court means that a
state government can infringe patents without ever facing a lawsuit.
RATIONAL-BASIS TEST: A principle whereby a court will uphold a law as valid under the Equal Protection Clause or
Due Process Clause if it bears a reasonable relationship to the attainment of some legitimate governmental objective.
INTERMEDIATE SCRUTINY: A standard lying between the extremes of rational-basis review and strict scrutiny. Under
the standard, if a statute contains a quasi-suspect classification (such as gender or legitimacy), the classification must be
substantially related to the achievement of an important governmental objective.
STRICT SCRUTINY: To pass strict scrutiny, the legislature must have passed the law to further a "compelling
governmental interest," and must have narrowly tailored the law to achieve that interest.
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o ANALYSIS: In a 5-to-4 decision, the Court rejected this argument and held that state governments may not be
sued for violating Title I of the ADA.
The ADA was a substantial expansion of rights compared to the Constitution.
Under equal protection, discrimination based on disability only need meet a rational basis test,
being rationally related to a legitimate government purpose. The ADA prohibits much more than
would fail a rational basis test, and its requirement for reasonable accommodation of disabilities
is significantly greater than the Constitution requires. The Court then concluded that Title I of the
ADA is not “proportionate” or “congruent” to preventing and remedying constitutional violations.
Chief Justice Rehnquist added a footnote to make clear that the Court was not declaring the ADA
unconstitutional as applied to state governments, but rather only holding that state governments
could not be sued by individuals for violations. He explained that the federal government still
could sue the states to enforce the law and that suits against individual government officers for
injunctive relief were also permissible. But damages actions against state governments are
barred.
Why a DCC?
Anti-protectionism
Anti-trade war
Functioning of interstate commerce
While maintaining state autonomy where possible
Note: Does not restrict states from creating their own standards assuming they don’t discriminate, have a valid
purpose, and do not excessively burden interstate commerce.
These state standards can effectively set policy for rest of nation as manufacturers or producers seek
common denominator to maximize markets.
California Automobile Emission Standards
Limits on state power that derive from the existence of a national government and of other states
There are two possibilities when considering whether a state or local law is invalidated because of these
restrictions.
o Where Congress has acted.
If Congress has passed a law and it is a lawful exercise of congressional power, the question is
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whether the federal law preempts state or local law. Article VI provides that the “Constitution and
the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or
which shall be made under the Authority of the United States, shall be the Supreme Law of the
Land.” Because of the supremacy clause, if there is a conflict between federal law and state or
local law, the latter is deemed preempted.
o Where Congress has not acted—or at least the judiciary decides that federal law does not preempt state
or local law.
Even though there is not preemption, state and local laws can be challenged under two principles:
Dormant Commerce Clause: the principle that state and local laws are unconstitutional
if they place an undue burden on interstate commerce. SCOTUS has inferred this limit
on state regulatory power from the grant of power to Congress to regulate commerce
among the states. Even if Congress has not acted, even if its commerce power lies
dormant, state and local governments cannot place an undue burden on interstate
commerce.
Privileges and Immunities Clause of Article IV, §2: “The Citizens of each State shall
be entitled to all Privileges and Immunities of Citizens in the several States.” SCOTUS
has interpreted the clause as limiting the ability of states to discriminate against out-of-
staters with regard to constitutional rights or important economic activities. This clause
primarily has been applied by the Supreme Court when there have been challenges to
state and local laws that discriminate against out-of-staters with regard to their ability to
earn a livelihood.
Gade v. National Solid Wastes Management Association, the Court summarized the tests for preemption:
“Preemption may be either express or implied, and is compelled whether Congress' command is explicitly stated in the
statute's language or implicitly contained in its structure and purpose. Absent explicit preemptive language, we have
recognized at least two types of implied preemption: field preemption, where the scheme of federal regulation is so
pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict
preemption, where compliance with both federal and state regulations is a physical impossibility, or where state law
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
A. Express Preemption — Whenever Congress has the authority to legislate, Congress can make federal law exclusive
in a field. The clearest way for Congress to do this is to expressly preclude state or local regulation in an area. Thus, some
federal laws contain clauses that expressly preempt state and local laws.
Riegel v. Medtronic
o The Medical Devices Amendments of 1976, 21 U.S.C. §360k, preempt states from imposing
“requirements” different from federal law after the FDA approves a medical device.
o The Court held that this preempts state tort liability against manufacturers for devices approved
by the FDA. The Court reasoned that tort liability, like regulation, changes behavior and
essentially creates requirements. Justice Ginsburg was alone in dissent and stressed that there
should be a presumption against preemption. She said that if Congress wanted to preempt tort
liability, it could do so, but that this law only preempted states from imposing “requirements.”
B. Implied Preemption— 2. Preemption Because State Law Impedes the Achievement of a Federal Objective
Pacific Gas & Electric Co. v. State Energy Resources Conservation (1983) [Page 462]
o FACTS: State law, which effectively placed a moratorium on construction of new nuclear power plants
within the state, was not preempted by federal law that governed the regulation of safety aspects
concerning nuclear power plants.
o RULE: State law is preempted if it stands as an obstacle to the accomplishment of the full purposes and
objectives of Congress; however, the Court will not interfere where there is a permissible basis for the
state law.
o ANALYSIS: SCOTUS rejected both preemption arguments and upheld the state law by concluding that
Congress's intent was to ensure safety, while the state's goal was economic. Held federal law did not
preempt state tort actions against state utilities.
As to the field preemption argument, the Court said Congress intended that the federal
government have exclusive authority to regulate safety, “but that the States retain their
traditional responsibility in the field of regulating electrical utilities for determining
questions of need, reliability, cost, and other related state concerns.”
o The Court concluded that the California law was not preempted because its main purpose was
economics and not safety.
“California has maintained, and the Court of Appeals agreed, that [the law] was aimed at
economic problems, not radiation hazards.… Without a permanent means of disposal,
the nuclear waste problem could become critical, leading to unpredictably high costs to
contain the problem or, worse, shutdowns in reactors.” The Court said that because it
“accept[s] California's avowed economic purpose … the statute lies outside the occupied
field of nuclear safety regulation.”
o The utility also argued that the state law was preempted because it impeded the
federal goal of encouraging the development of nuclear reactors as a source of
electrical power.
The Court acknowledged that “[t]here is little doubt that a primary purpose of the Atomic
Energy Act was, and continues to be, the promotion of nuclear power.” Yet the Court
rejected the preemption argument by characterizing Congress's purpose as encouraging
nuclear power only to the extent that it was economically feasible. “Congress has left
sufficient authority in the States to allow the development of nuclear power to be slowed
or even stopped for economic reasons.”
o Thus, in determining whether the California law interfered with achieving the federal objective,
the Court had to make two major choices: One was in characterizing the federal objective;
the other was in characterizing the state law and its purpose.
If the Court saw a broad purpose for the Atomic Energy Act in encouraging the
development of nuclear power, then the state law, which obviously limited it, would be
preempted. The Court avoided preemption by more narrowly characterizing the
federal goal as promoting nuclear reactors only when they were economically feasible.
Additionally, if the Court characterized California's purpose as ensuring safety before
construction of nuclear power, then the law would have been preempted. The Court
avoided preemption by accepting California's claim that its goal was economics, even
though the law was written in terms of preventing construction of nuclear plants unless
the safety of disposal was ensured.
Implied preemption in the context of whether drug companies can be sued for the failure to warn patients of
potential side effects, even though the FDA approved the warning labels.
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Wyeth v. Levine
o Held that a drug company could be sued on a failure to warn theory even though its warning
label had been approved by the FDA. There is no conflict between allowing such tort liability
and federal law; drug companies always can engage in more speech to warn consumers of side
effects. The Court said that allowing liability would further, not undermine, the federal
regulatory goal of drug safety and well- informed patients and physicians.
PLIVA v. Mensing
o Held that makers of generic drugs may not be sued on a failure to warn theory. Concluded that
the Hatch- Waxman Amendments to the Food and Drug Act allow generic drugs to be sold if
they are the equivalent of nongeneric drugs and as long as they have the same warning label as
the FDA has approved for nongeneric drugs. The Court said that this precludes makers of
generic drugs from changing their labels and thus preempts state tort suits for failure to warn.
Mutual Pharmaceutical Co. v. Bartlett
o A woman took the generic form of the pain reliever sulindac. She suffered a rare, though
known side effect: two-thirds of the skin on her body burned, blistered, and decayed. She
sued under state tort law claiming a design defect.
o In a 5-4 decision, the claim was preempted. The Court said that under the Hatch-Waxman Act a
generic drug can be sold if it is chemically the same as a brand name drug and if it has the
warning label that was approved for the brand name drug. The Court explained that the generic
drug company cannot change the drug’s chemical composition and cannot change the warning
label (as held in PLIVA v. Mensing) and therefore liability is preempted.
→ Well, courts today now use a combination of two tests: rational basis review plus a balancing test. State
laws will satisfy rational basis review if they are rationally related to a legitimate state goal. In addition, courts
will weigh the state's interest against the burden imposed on interstate commerce. Courts applying this test will
first consider the legitimacy of the state's purpose.
Typically, regulations aimed at promoting the general welfare will be considered to serve a legitimate end; laws
designed to protect or promote the economic prospects of in-state residents at the expense of out-of-state
residents are much less likely to be found to have a legitimate goal. And since it's unlikely that a state would
come out and say that the purpose of a given law is to discriminate against interstate commerce in favor of state
residents, courts will look beyond what the law says on its face and try to ascertain its true intent.
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in almost any area there likely are some benefits from national uniformity and some gains
from local diversity.
Many cases applied the Cooley test throughout the nineteenth century and into the twentieth century.
Welton v. Missouri
o The Court used the Cooley approach to invalidate a law that required peddlers of out-of-state
merchandise to pay a tax and obtain a license, whereas no similar requirements existed for in-
state merchants. The Court said that “transportation and exchange of commodities is of national
importance, and admits and requires uniformity of regulation.”
Wabash, St. Louis & Pacific Ry. Co. v. Illinois
o The Court used the Cooley approach to invalidate a state law that regulated railway rates for
goods brought to or from other states. The Court emphasized that there would be enormous
burdens on interstate commerce if all states adopted such laws and thus concluded that it was an
area that required national uniformity and not local regulation.
Smith v. Alabama
o The Court upheld a state law requiring that all locomotive engineers operating in the state be
licensed by a state board of examiners
Erb v. Morasch
o The Court upheld a city’s ordinance that restricted train speed within the city.
Atchison Topeka & Santa Fe Ry. Co. v. Railroad Commn.
o The Court upheld a state law that required electric headlights of prescribed brightness on
all trains operating within the state.
South Carolina State Highway Department v. Barnwell Bros, Inc. (1938) [Page 484]
o RULE: A state law placing width and weight limitations on trucks operating on state highways does
not impose an unconstitutional burden on interstate commerce so as to violate the Commerce Clause.
o ANALYSIS: Upheld a state law that imposed length and width requirements for trucks operating in the
state. The Court emphasized the state's important interest in protecting highway safety and in preserving
its roadways.
Southern Pacific Co. v. Arizona ex rel. Sullivan, Attorney General (1983) [Page 486]
o FACTS: Declared unconstitutional a state law that limited the length of railroad trains, to 14 passenger
or 70 freight cars, operating in the state. “viewed as a safety measure, [it] affords at most slight and
dubious advantage, if any, over unregulated train lengths.”
o RULE: In deciding whether a state law—created for its safety measures—violates the Commerce
Clause, the court will balance the benefits of the law against the burdens it imposes on interstate
commerce.
o ANALYSIS: A balancing test: “Hence the matters for ultimate determination here are the nature and
extent of the burden which the state regulation of interstate trains, adopted as a safety measure, imposes
on interstate commerce, and whether the relative weights of the state and national interests involved are
such [as to make the law permissible].”
o The difference is that in Barnwell, the Court believed that the burdens on interstate commerce were
outweighed by the benefits in terms of road safety; whereas in Southern Pacific, the Court decided
that the burdens on interstate transportation were greater than the safety benefit to the state from its
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law. In other words, the central issue in dormant commerce clause cases is whether the benefits of
the state law outweigh its burdens on interstate commerce.
o Such a balancing test gives courts enormous discretion because it is attempting to weigh and
compare two completely different things: burdens on interstate commerce and the benefits to a
state or local government.
Hunt, Governor of the State of NC v. Washington State Apple Advertising Commission (1977) [Page 492]
o FACTS: A North Carolina law required that all closed containers of apples sold or shipped into the
state bear “no grade other than the applicable U.S. grade or standard.” The law was facially neutral in
that all apples sold in the state—whether produced in state or out of state—had to comply with this
rule.
o RULE: A facially neutral state law is unconstitutional and violates the Commerce Clause if it has a
discriminatory effect on interstate commerce.
o ANALYSIS: The Court found that the law should be treated as discriminatory because of its effect on
the sale of Washington apples. Washington had a system for grading apples that was different from
and more stringent than the federal standard.
“The challenged statute has the practical effect of not only burdening interstate sales of
Washington apples, but also discriminating against them . . . The first, and most
obvious, is the state's consequence of raising the costs of doing business in the North
Carolina market for Washington apple growers and dealers, while leaving those of
North Carolina counterparts unaffected.… Second, the statute has the effect of
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stripping away from the Washington apple industry the competitive and economic
advantages it has earned for itself through its expensive inspection and grading system.
… Third, by prohibiting Washington growers and dealers from marketing apples under
their State's grades, the statute has a leveling effect which insidiously operates to the
advantage of local apple producers.”
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