Constitutional Law Concepts Outline

Formalist | Functionalist | Policies | Constitutional Provisions | Topics | Concept Elements

State’s Rights Proponent | Strong National Government Advocate

Federal Judicial Review

Constitutional Provisions:
● Vesting Clause: Article III, Section 1, Clause 1
● Supremacy Clause: Article VI, Clause 2
● Cases and Controversies Clause: Article 3 Section 2 Clause 1
● Exceptions and Regulations Clause: Article 3 Section 2 Clause 2
● Necessary and Proper Clause: Article I, Section 8, Clause I (??)
Theories:
● Popular Sovereignty: The Constitution was ratified not only by the people
● Supreme Court Jurisdiction: Governmental authority is granted by the people through the
constitution; Appellate jurisdiction of the Supreme Court limited by Congress
● Uniformity: You should have uniformity on the issue of federal law, state law, and treaties
● Fairness: goal is to promote justice
Cases: McCulloch v. Maryland, Marbury v. Madison, Ex Parte McCardle, Martin v. Hunter’s Lessee

Prudential Limits on Federal Judicial Review

Constitutional Provisions:
● Cases and Controversies Clause: Article III, Section 2, Clause 1
Theories: Article III, Section 2, Clause 1 is a limitation on the judicial power
● Justiciability Doctrines- interpreted limitation on court’s jurisdiction
Justiciability Doctrines:
Standing: Is this the Mootness: is there an Ripeness: is it the Political Question: is
proper party to bring ongoing controversy? right time for the the court asked to
the suit? court to hear case? issue a political
judgment?
Criteria: Criteria: Criteria Criteria:
1. Injury Ongoing controversy or Is timing correct? See Baker v. Carr
2. Casation issue Would plaintiff endure factors
3. Redressability hardship if no ruling?

Theory: Limits the Theory: don’t want to Theory: if the case is Theory: separation of
cases the court can waste court’s time or not ripe, the court will power; courts not
hear; greater stake in resources; court cannot be issuing an advisory equipped to decide
outcome if standing provide relief opinion certain issues

Cases: Cases: Cases: Cases:

Allen v. Wright Roe v. Wade Poe v. Ulman Marbury v. Madison
Lujan v. Defenders DeFunis v. Odegaard Abbott Lab v. Gardner Baker v. Carr
City of LA v. Lyons Susan B. Anthony v. Powell v. McCormack
Singleton v. Wulff Driehaus Goldwater v. Carter
U.S. v. Richardson Zivotofsky v. Clinton
Nixon v. U.S.

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Baker v. Carr Factors:
1. Textually demonstrable constitutional commitment of the issue to a coordinate branch of
the federal government
2. A lack of judicially discoverable and manageable standards for resolving the question
3. Impossible to decide without a nonjudicial policy determination
4. Impossible to resolve without expressing a lack of respect to other branches of
government
5. An unusual need to adhere to a political decision already made by another branch (DO
NOT ADDRESS THIS ONE- Olken)
6. The potential for embarrassment from varied pronouncements by different departments

Separation of Powers
Constitutional Structure:
● Structural Reasoning: the constitution separates power; you can tell by the structure
○ Article 1: Legislative Power, Article 2: Executive Power, Article 3: Judicial Power
Policies:
● To avoid tyranny
● To promote efficiency
● Create legitimacy
Approaches:
● Formalism: Strict interpretation of the Constitution and statutes (government power)
○ Policies Emphasized: Tyranny and Legitimacy
● Functionalism: Broadly interprets the Constitution; reads between the lines
○ Policies Emphasized: Efficiency and Legitimacy
Case: United States v. Nixon

Scope of Presidential Authority

Executive order: a regulation issued by the president which is grounded in legal authority
Youngstown Steel Factors:
1. When the President acts under an express or implied grant of power, he can rely on both his own
powers and Congress’s.
2. When the President acts without an express grant or denial of Congress’s powers, he acts under
the aggregate of his own independent powers.
3. When the President acts in a way that is incompatible with the express or implied will of
Congress, he may rely only on the powers expressly granted to him by the Constitution.
Functionalist Approach (President’s Argument):
● Constitutional Provisions:
○ Vesting Clause: Article II, Section 1
○ Commander-in-Chief Clause: Article II, Section2, Clause 1
○ Take Care Clause: Article II, Section 3
○ Congressional War Powers: Article I, Section 8, Clauses 11-18
● Policies:
○ Efficiency: If Congress has to do it it will take a lot longer
○ Legitimacy: president legitimized by taking action when necessary
● Theories:
○ Aggregation: Look at all of the clauses as a whole
○ Broad Interpretation of the Constitution: The sum is greater than individual parts
Formalist Approach (Congress/Private Entities):
● Constitutional Provisions:

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 ○ Vesting Clause: Article II, Section 1
○ Commander-in-Chief Clause: Article II, Section2, Clause 1
○ Take Care Clause: Article II, Section 3
○ Congressional War Powers: Article I, Section 8, Clauses 11-18
● Policies:
○ Tyranny: this would be an undue accumulation of power
○ Legitimacy: violating separation of powers, delegitimizing themselves and Congress

The Delegation Doctrine (Domestic Context)

Constitutional Provisions:
● Vesting Clause: Article I, Section 1
● Commerce Clause: Article 1, Section 8, Clause 3
● Necessary and Proper Clause: Article 1, Section 8, Clause 18
Requirements:
1. Policy: policy created by Congress
2. Standards: are there standards to use/apply?
3. Fact-Finding: are there facts that apply to the standards?
Application:
● Functionalist: applies requirements loosely; focus on legitimacy and efficiency
● Formalists: applies requirements strictly; focus on legitimacy and tyranny
Theory:
● Congress should be able to transfer it lawmaking powers to get things done
● Delegating the power allows for a more structured, secure, and safe society
● Problem of accountability- when Congress transfers its power, the public doesn’t know
Cases: Panama Refining Co. v. Ryan, Yakus v. United States, Gundy v. United States

Legislative Veto
Definition: Congress overrides decisions of others to whom they have granted power
Requirements:
● Delegation: policy, standards, and fact-finding
● Bicameralism: process by which legislation goes through both houses of Congress
● Reconciliation: Lawyers try to reconcile the bills made by HOR and Senate
● Presentment: process by which the law is presented to the President
Constitutional Provisions:
● Bicameralism Clause: Article 1, Section 7, Clause 2
● Presentment Clause: Article 1, Section 7, Clause 3
Case: Immigration and Naturalization Service v. Chadha

Appointment
Constitutional Provisions:
● Appointments Clause: Article II, Section 2, Clause 2
Factors in Determining Inferior Officer Status:
● Whether that person is subject to removal by a superior officer of the executive branch
● Whether the person’s duties are limited
● Whether this person has a limited jurisdiction (is that person limited in what they do?)
● Whether the independent counsel’s office is limited in tenure
Cases: Morrison v. Olsen

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Removal
Constitutional Provisions:
● Appointment Clause: Article II, Section 2, Clause 2
● Vesting Clause: Article 2, Section 1
● Take Care Clause: Article 1, Section 3
Presidential Argument (Functionalist Approach):
● Theory: If the President has the authority to appoint an officer, he should have the authority to
remove him (appointments clause)
○ Broadly construes the Constitutional Provisions
● Policies: Efficiency and Legitimacy
Legislative Argument (Formalist Approach):
● Theory: The constitution is silent about removal
○ It is important for officers to be insulated from political influence
● Policies: Legitimacy and Tyranny

Foreign Delegation Doctrine

Constitutional Provisions:
● Foreign Commerce Clause: Article I, Section 8, Clause 3
● Congressional Power to Approve Treaties: Article II, Section 2:
● Immigration and Naturalization Clause: Article I, Section 8, Clause 4
● Necessary and Proper Clause: Article I, Section 8, Clause 18
● Vesting Clause: Article II, Section 1
● Commander-in-Chief Clause: Article II, Section 2, Clause 1
● Take Care Clause: Article II, Section 3
● Reception Clause: Article II, Section 3
Distinction Between Foreign and Domestic:
● There is a difference between internal and external Powers
○ President has more power with foreign issues
Functionalist Perspective (Presidential Approach):
● Theory: In foreign relations, it is important to speak with one unified voice
○ The President is the Unitary Executive
○ Broadly construe clauses of the Constitution
● Policies: legitimacy and efficiency
Formalist Perspective (Congressional Approach):
● Theory: Framers of the constitution were constantly worried about checks and balances
○ Strict interpretation of the constitution
● Policies: legitimacy and tyranny
Cases: Zivotofsky v. Kerry, Curtiss-Wright, Dames & Moore v. Regan, Secretary of the Treasury

Foreign War Powers

Constitutional Provisions:
● Vesting Clause: Article II, Section 1
● Commander-in-Chief Clause: Article II, Section 2, Clause 1
● Take Care Clause: Article II, Section 3
● Article I, Section 8:
○ Clause 11: Congress can “declare war”
■ The Civil War was not a declared war; it was a defacto war
○ Clause 12: Congress has “power of the purse”
○ Clause 15: Congress has the powers relating to insurrections and invasions

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Functionalist Approach (Government Argument):
● Broadly construe statutes and the Constitution
● Aggregate all the Article II powers
● Policies: Efficiency and Legitimacy
Formalist Approach:
● Strictly interprets President’s Constitutional war powers
● Isolate Constitutional Powers and emphasis Congress’s powers
● Policies: Tyranny and Legitimacy
Cases: Hamdi v. Rumsfeld, The Prize Cases

Presidential Immunity
Position of the President (Functionalist Argument):
● The President has to be free to focus only on his duties
○ Broadly construe the Constitution and interpret in the aggregate
● Policies: Legitimacy and Efficiency
● Immunity is implied in the Constitution:
○ Vesting Clause (Article II, Section 1, Clause 1)
○ Commander in Chief Clause (Article II, Section 2, Clause 1)
○ Take Care Clause (Article II, Section 3)
● There are other means of checking the President
● UNITARY EXECUTIVE
Formalist Approach:
● Immunity: Not stated anywhere expressly in the Constitution
● Framers’ Intent: The framers did not intend for the President to have immunity
● Constitutional Analysis (Article II):
○ Vesting Clause (Article II, Section 1, Clause 1)
○ Commander in Chief Clause (Article II, Section 2, Clause 1)
○ Take Care Clause (Article II, Section 3)
● Separation of Powers Policies: Tyranny and Legitimacy
● Reject the idea of a Unitary Executive
Impeachment: Statement of charges against an official
● Role of the Government:
○ House- does the investigation; brings charges based on the investigation
○ Senate- tries the President
● Standards: This process is not a legal standard- it could be for any reason whatsoever
Cases: Richard Nixon v. A. Ernest Fitzgerald, William Clinton v. Paula Corbin Jones

Federalism
Federalism is looking at two perspectives:
1. Opponent of a strong and robust federal government (John Marshall)
2. Component of strong states’ rights
○ Proponents of a strong national government:
■ Limit the scope of the tenth amendment
■ Broaden the scope of the meaning of commerce
○ Proponents of states’ rights:
■ Limit the scope of federal governmental authority
■ Narrow the scope of the commerce clause
● Policies: FREE TRADE
● Core Policies of Federalism
○ Efficiency

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 ○ Tyranny
○ Legitimacy
○ Laboratories for Democracy
○ Political Safeguards of Federalism
● Constitutional Provisions:
○ Necessary and Proper Clause: Article I, Section 8, Clause 18
○ Commerce Clause: Article I, Section 8, Clause 3
○ Supremacy Clause: Article VI
○ Tenth Amendment: STRUCTURAL LIMITATION on Article I
● Cases: McCulloch v. Maryland

Commerce Clause
Constitutional Provisions:
● Commerce Clause: Article 1, Section 8, Clause 3
● Necessary and Proper Clause: Article 1, Section 8, Clause 18
● Tenth Amendment: Structural Limit
Tests/Analyses:
● Direct v. Indirect Test:
1. Is there an enumerated power?
2. How does the Court define commerce?
3. Does this activity directly effect commerce?
○ Cases: United States v. E.C. Knight Co., Hammer v. Dagenhart, A.L.A. Schechter
Poultry Corp. v. United States
● Close and Substantial Relationship Test:
**Makes the most use of the commerce clause and necessary and proper clause
1. How you define commerce does not matter
2. Where is the interaction (this is the question to ask)?
3. What is the connection/relationship through the stream of commerce?
○ Cases: NLRB v. Jones & Laughlin Steel Corp., United States v. Darby
● Substantial Effects Test:
1. Does it matter if it is commerce? No
2. What is the standard of review? Rational basis test
● Rational basis of standard of review- the most deferential standard
3. What is the net result? Aggregate of the seemingly isolated incidents
○ Cases: Wickard v. Filburn, Heart of Atlanta Motel v. United States, Katzenbach v.
McClung
● Substantial Affects Test:
1. Is it a commercial or economic activity within the meaning of commerce?
1. Did the statute say anything about the connection between the activity and
interstate commerce?
2. Should this be left to the states?
○ Three Principles under which Congress can assert power:
(1) Congress may regulate the use of the channels of interstate commerce
(2) Congress is empowered to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat
may come only from intrastate activities.
(3) Congress’s commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce
○ Cases: United States v. Lopez, United States v. Morrison, Gonzales v. Raich, Perez v.
United States, Garcia v. San Antonio Metropolitan Transit

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Congressional Regulation of States
National and State Government Relationship:
● State’s Rights: Narrow and strictly interpret the Commerce Clause and empower the Tenth
Amendment (as a structural limitation)
● National Government: Broaden and emphasize the Commerce Clause and narrow the Tenth
Amendment
○ Symbiotic Relationship (Reflections of each other)
Regulating a state as a state: Unconstitutional
● You can’t tell the state legislatures how to legislate
● You can’t tell the state executive officials how to regulate
○ Unless you want to go through preemption analysis
Constitutional Provisions:
● Commerce Clause: Article I, Section 8, Clause 3
● Necessary and Proper Clause: Article I, Section 8, Clause 18
● State Police Powers: Tenth Amendment
● Supremacy Clause: Article VI
State’s Rights Proponent:
● Theory: The national government cannot force or coerce a state to regulate a certain way
● Policies Tyranny, Legitimacy, Laboratories of Democracy
● Congress’s powers here: To encourage a state to regulate a certain way- by giving the state
money (taxing and spending clause)
Proponent of Strong National Government:
● Theory: national government can regulate anything that affect interstate commerce
● Policies political safeguards of federalism, legitimacy, efficiency
Cases: Printz v. United States, Murphy v. National Collegiate Athletic Association

Taxing and Spending Clause

Constitutional Provisions:
● Taxing and Spending Clause: Article I, Section 8, Clause 1
● Commerce Clause: go through the commerce clause analysis first
Conditions/Requirements (for invoking the Taxing and Spending Clause:
● The act must be in pursuit of the general welfare
● Condition placed on a state must be unambiguous so the state can exercise its choice
● Must be related to a federal interest, in particular a national project or program
● May provide an independent bar to a conditional grant of federal funds
States’ Rights Proponent:
● Congress cannot compel, or withhold funds in a way that would be essentially forcing/coercing
the state to regulate a certain way
● Policies: laboratories of Democracy, legitimacy, tyranny
● Application: narrow scope of taxing and spending clause
○ Argue: Congress is regulating the state as a state/coercing them to regulate
Proponent of Strong National Government:
● The federal government can only encourage the states to regulate in a certain way by
providing/withholding funding; or preempt the state statute
● Policies: Efficiency, Free Trade, Legitimacy, Political Safeguards of Federalism
● Application: Broaden scope of taxing and spending clause
○ Argue: Congress is not regulating the state as a state/coercing them to regulate
Cases: South Dakota v. Dole, National Federation of Independent Business v. Sebelius

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Eleventh Amendment
Constitutional Provisions:
● Eleventh Amendment: state sovereign immunity
○ Eleventh Amendment limits Article III
● Fourteenth Amendment: Equal protection clause
● There is a limitation to the eleventh amendment because of the fourteenth amendment
Defense of sovereign immunity (States’ Rights):
● States cannot be sued as states
○ Exceptions:
■ If the state consents, they waive their sovereign immunity
■ Congress can also abrogate state sovereign immunity
● Requirement: a clear unequivocal, unambiguous condition
● Theory: the sovereign cannot do any wrong
○ But a state official can do wrong (even if the state cannot do any wrong)
■ Distinction: you can sue a state official for declaratory relief or prospective
injunctive relief (not retroactive injunctive relief)
● Policy: legitimacy and tyranny
Counter Argument:
● The Eleventh Amendment was never meant to be a state sovereign immunity to limit the federal
power (by the framers)
● States surrendered their sovereignty to the federal government
● Policies: legitimacy and free trade
Cases: Hans v. Louisiana, Ex Parte Young, Edelman v. Jordan, Atascadero v. Scanlon, Seminole Tribe of
Florida v. Florida, Alden v. Maine

Federal Preemption of State Law

Constitutional Provisions:
● Supremacy Clause: Article VI
● If there is a conflict between federal and state law, the federal law controls and the state
law is invalidated because federal law is supreme
Preemption:
● Two Major Situations where Preemption Occurs:
1. Express: Where federal law expressly preempts state or local law
2. Implied: Where preemption is implied by a clear congressional intent to preempt state or
local law (two types)
Types of Implied Preemption:
● Field Preemption: Congress creates a comprehensive regulatory scheme, leaving no room for the
state to regulate
● Conflict Preemption: where the federal law and state law conflict
● Two factors:
1. Is it possible for someone to comply with the two laws at the same time?
2. Does the state law somehow impede a paramount federal objective
Two Perspectives:
● State’s rights proponents: will look at preemption very narrowly
● Proponent of a strong federal government: look at preemption broadly
Policies: legitimacy, tyranny, laboratories of democracy
Cases: Lorillard Tobacco Co. v. Reilly, Arizona v. U.S.

The Dormant Commerce Clause

Constitutional Provisions:

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 Commerce Clause: Article I, Section 8, Clause 3
Dormant Commerce Clause:
● If there is no express or implied preemption, then the next step is to proceed to the dormant
commerce clause analysis
● Analysis:
1. Characterize the Statute: determine if it is an even handed regulation or discriminatory
regulation
2. Balance what the state’s interest are against the burden on interstate commerce
3. If it is a discriminatory regulation, ask: Could the state or locality have accomplished its
objectives in a less discriminatory way?
Policies: promoting free trade, preventing economic protectionism and isolationism, preserving state
police powers
Cases: Cooley v. Board of Wardens of the Port of Philadelphia, Hood v. Dumond, Price v. Bruce Church,
Inc., Exxon Corp. v. Governor of Maryland, State of Minnesota v. Clover Leaf Creamery Co., Bibb v.
Navajo Freight Lines Inc., Consolidated Freightways Corp. of Delaware v. Raymond Kassel, Hughes v.
Oklahoma, City of Philadelphia v. New Jersey, Governor of North Carolina v. Washington State Apple
Advertising Commission, West Lynn Creamery Inc. v. Healy, Dean Milk Co. v. City of Madison, WI,
C&A Carbone, Inc. v. Town of Clarkstown, NY, Camps Newtown Owatonna Inc., v. Town of Harrison,

The State Action Doctrine

Constitutional Provisions:
● Thirteenth Amendment: historically significant
● Fourteenth Amendment:
○ Section 1: Due Process Clause
○ Section 5: Enforcement Clause
State Action Cases
● Question is: at what point do their activities become fairly attributable to the state
○ Can you hold the state liable in certain regards?
Factors the court looks at when deciding whether state action exists:
● Connection- between a private entity and the state
● Regulation- there may be a regulation on a private entity by the state
○ Tradition government function- you can have private companies that also do that
thing/activity
○ Traditional exclusive government function- this is a function that ONLY the state
government handles
Cases: Jackson v. Metropolitan Edison Co., Burton v. Wilmington Park Authority, Moose Lodge No. 107
v. Ervis

EXAM QUESTIONS
First Question on the Final Exam
● Justiciability Doctrines
○ Discuss all separation of powers policies
Second Question on the Final Exam
● Distinction between the internal powers and external powers of the government; mentioned in
Curtiss-Wright
● Relationship between the foreign delegation doctrine, inherent constitutional authority of the
President, and Congressional Acquiescence
● Which scenario from Youngstown steel is likely to apply and why?
Third Question on the Final Exam
● Make sure you argue:

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 ○ Proponent of a Strong National Government
■ Substantial Effects Test
■ Close and Substantial Relationship Test
● From the perspective of federal government- power is derived commerce
clause plus necessary and proper clause (in conjunction together)
○ States’ Rights Proponent
■ Direct v. Indirect Test
■ Substantial Affects Test
● From the other side, “without the commerce clause power you cannot
apply the necessary and proper clause- you cannot create something out
of nothing” (O’Connor’s dissent)
■ It is a government of enumerated powers
● AKA it is a government of limited powers
■ The framers created a democratic republic, not a pure democracy
● IOW: created a limited government (limited on the federal government)
● In a true federal system the federal government has limited powers and
most of the powers belong in the states
● Regulating a State as a State--
○ This is no different from forcing the state to defend its own self in its own courts for
violating a federal law (commandeering) NY v. United States and Printz
■ THIS WILL BE AN ISSUE QUESTION #3
○ Can you make the counter argument on the EXAM??
■ One side: you cannot sue a state as a state for anything
■ Other side: yea but look the action here is pursuant to federal law and that federal
law may be and is in fact supreme
● And the states yielded their supremacy
● Eleventh Amendment
**Separate it:
■ The case where they sue the state, and
■ The case where they sue the state official
○ Understand that there may be an alternative for Congress to regulate
○ Look very carefully in the language in problem 3, pursuant to which sections of the
constitution did congress pass the act in question
○ If Congress passed the act pursuant to Section 5 of the Fourteenth Amendment, there is
an argument to be made that Congress can abrogate state sovereign immunity as long as
it is in clear unequivocal language
○ Other thing to look for is: pursuant to the commerce clause there is a whole other set of
problems…
Fourth Question on the Final Exam
● Preemption issue and the dormant commerce clause
○ If no preemption issue, then often there is a dormant commerce clause issue
● EXAM: no express preemption
○ Go straight to whether there is implied preemption
● If there is no express, conflict, or field preemption
○ Next, go into a dormant commerce clause analysis…
● Dormant Commerce Clause:
○ Once you determine what the statute is (even handed or discriminatory) you have to
apply it to the fact
■ Use the facts to spell out that you are balancing the state interest versus the
burdens (ON THE EXAM)
○ Analyze it as both even-handed AND discriminatory

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■ State that even if it seems even handed on its face it may have a discriminatory
effect

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