A.

Judicial Review
Article 3 Analysis:
o Judicial review is the power of the judicial system to review legislation.
1. Marbury -It is up to the Judicial review to say what the law is
o Judicial powers shall be vested in 1 supreme court and in such inferior courts as congress
may from time to time ordain and establish
o In cases affecting ambassadors, other public ministries and consuls, and those in which a
states shall be a party the supreme court shall have Original Jurisdiction.
o In all other cases the supreme court shall have appellate jurisdiction to both law and fact.
(e.g. listed in Article III section 2, citizens from same state, citizens from different states)
o Original jurisdiction is the right of a court to hear a case for the first time. It can be
distinguished from appellate jurisdiction which is the right of a court to review a case
that has already been heard and decided upon by a lower court.
o The construction doesn’t require lower federal court. Congress has added them in after
the fact. The way we refer to them now is district court, Circuit court of appeals, Supreme
court.
o Federal judges have life tenure. Constitution Article III paragraph 1 says Justices get to
hold their office during good behavior means presumably for life.

Marbury v. Madison (claimed the power of Judicial review)

Issue
Can congress enact a law that is repugnant to the constitution? If a law doesn’t apply
with the constitution does the United States Supreme Court have authority to rule this
law unconstitutional?
Rule
The Judicial System has the authority to review and void acts that don’t comply with
the United States Constitution. (Judicial Review) This case established Judicial review
is the power of the judicial system to review legislation.
Rationale
This is because any law that the legislature acts cannot go against the constitution
which is fundamental law to the United States and if it were to do so it would
undermine the people by allotting more power to the people’s representative rather
than the people. In order for the supreme court to review something with original
jurisdiction the case has to affect other public ministries and consuls, and those in
which a states shall be a party.
B. Judicial Supremacy
When the Supreme court reviews the judgement of a state court, it is of course exercising its
Appellate, rather than its original jurisdiction. (Martin)

Who can federal supreme court review?

o State Judiciaries (Cohen, Hunter)
o Legislators

Martin v. Hunter's Lessee (Supreme court affirmed it appellate jurisdiction)

FACT: This Case was involving a property in Virginia that is in dispute because this
came after the Peace treaty of 1783 (people seizing land from British). Virginia made
a ruling then the case was appealed to the highest court in Virginia and the plaintiff
wanted to appeal to federal court. Virginia courts said they didn’t need to listen to the
Federal courts and the federal courts overruled that argument because the constitution
 explicitly gave congress appellate powers to review any cases under Article III section
II (Federal Question & Foreign parties or states)
ISSUE: Does the U.S Supreme court have jurisdiction over state cases? Can the state
tribunals restrict the appellate powers of the Supreme court?
HOLDING: No because if the state tribunals were allowed to be the sole power of
their cases then this would be a violation of the constitution which gives appellate
powers to the supreme court to almost all cases. The effects of such a thing would be
lack of uniformity of the law throughout the U.S, stripping the appellate power granted
to the US Supreme court by the constitution.
Rule: Courts could review the constitutionality of a decision by a state's highest court.
This is because there must be uniformity in the law.

Cohens v. Virginia
FACTS: Cohen brothers were selling lottery tickets across state lines. Virginia courts
tried to argue that the SCOTUS couldn’t have both appellate and original powers.
RULE: SCOTUS is authorized to exercise their appellate jurisdiction and original
jurisdiction in criminal cases as well as civil cases.
 SCOTUS is not limited to exercise original or appellate jurisdiction in
certain matters, can exercise either freely.
 In this case, original jurisdiction over cases where state is a party, as well
as appellate in state court decisions.
 Constitution does not say where one has original can’t have appellate.
Modern Application: Today, SCOTUS leaves trial level determinations to state or lower
federal courts and chooses only to hear those cases on qualified appellate review.

Cooper v. Aaron (Judicial supremacy over legislator & school)

FACTS: This comes after the Brown v. Board of Ed. Decision where the governor
and legislators of Arkansas have taken measures to prohibit desegregation. Such
measures in include dispatching the national guard to prohibit 9 African American
students from entering Central High School in order to desegregate the school system.
Additionally, the legislature is enticing crowds and causing many problems for the
school to comply with Federal orders interpreting the constitution.
RULE: The Supreme Court of the Unites States has the power to enforce its judicial
power over legislator and governors. Where SCOTUS has made a determination,
lower courts (state and federal) are bound by that decision and must formulate their
decision accordingly.
o Any executive, state, or judiciary attempts to directly or indirectly undermine
SCOTUS decisions whether for good purpose or not are entirely prohibited.
Supreme Law of the Land: when SCOTUS has spoken it is the supreme law of the
land and every municipality and branch is bound by it.

COUNTER MAJORITARIAN DIFFICULTY

Homer, Odyssey Analogy
When Oath is taken to preserve Constitution (Odysseus original instruction) it should
not be swayed by demands of people, legislature, or executives (Odysseus during
stress). By honoring the will of “the people” not majority (at time), the court
(Sailors) may act in direct opposition of majority requests for the greater good of
preserving Constitutional framework intended by Framers.

I. Limits on Federal Court power

Justiciability Doctrines- Justiciability doctrines to overlap
 1. Standing
 Meaning a plaintiff must have a significant stake in the controversy
 Requirement of "injury in fact" ∏ must show that he has suffered an
"injury in fact". Must show that he has himself been injured in some way
by the conduct that he complains of.
2. Ripeness
 A case is not yet "ripe" yet and therefore not yet decidable by a federal
court. (not yet become sufficiently concrete).
 Ex. If a criminal statue is almost never enforced, P's challenge to the
constitutionality of the statute may be found not to be ripe if it is unlikely
that the statute will be enforced against ∏.
3. Mootness
 A case may not be heard by the federal courts if it is "moot". A case is
moot if events occurring after the filing have deprived the litigants of an
ongoing stake in the controversy.

Where did these requirements come from?

 Article III, Section 2 "cases and controversies"- an injured person
during someone allegedly response and asking a court to do something
about it.
 This is what makes up a case and all requirements must be met at the
time the lawsuit is filed and must be maintained throughout the lawsuit.

Letter from John Jay to President

FACTS: George Washington came to John Jay wanted advice on foreign relations
because at this time France and England were at war and the United States was a
neutral party.
RULE: A federal court cannot issue advisory opinions. Reasoning being is
because this could blur the lines between the judicial power shall only extend to
CASES in law and equity. Only cases meaning adversaries (Someone v.
Someone)

a. Standing Doctrine
Requirements (must all be met and can’t be waived) ∏ bears
1. Injury- particularized & Concrete
 Cannot be generalized or vague
 Person invoking claim must be injured.
2. Causation- Traceable to the challenged action
 Must establish the harm to the cause.
3. Redressability- Court has to be able to do something about it.
 There is a remedy available where the court can apply this.
 Lujan

legally protected CoA + Standing (injury that the law wanted to protect a person from)

How do we know whether we have political question on our hands?

(At least one)
 1. Commitment to another Branch: Textually demonstrable
constitutional commitment of the issue to coordinate political
department (article I section 5)
a. Each house elects their own people
b. If it is expressly allocate in the constitution that this
question should go to (Other) branch.
c. I can point you to the text that state another branch is
the one who handles these issues
2. Lack of judicially discoverable and manageable standard for
resolving it.
a. There are no standard for resolving something and the
judiciary acts anyways then this is unconstitutional.
b. Ex. Partisan Jerry Mandering happens when people I
charge of drawing a boundary and give a benefit to one
party over the other.
c. Claims under equal protection due to jerry mandering
d. Nixon v. U.S- Senator got impeached and is on trial in
the senate. The Senate decided they had too much going
on couldn’t allocate resourced and therefore assigned a
committee to take evidence then give a report and there
senate would then rely on the committees report to vote.
Nixon said this was unconstitutional. It begged the
question of if it was constitutional to allow this
committee to give this report? The court found this
question to be unjustifiable.
3. The impossibility of deciding without initial policy determination of
a kind clearly for nonjudicial discretion
4. The impossibility of the court undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government.
5. An Unusual need for unquestioning adherence to a political decision
already made.
6. Potential for embarrassment from multifarious pronouncement by
various departments by various departments on one question.

Injury must be certainly impending

Clapper v. Amnesty Int'l USA
Parties: Attorneys sue against Act in fear that their privilege convos will
be tapped
Rule: (Reasonable Likelihood) Future injuries asserted must be certainly
impending; reasonable likelihood does not work when too speculative.
Decision: reasonable likelihood of injury asserted was too speculative
(attenuated); too many things had to occur before injury by defendant.
Also implicates fairly traceable requirement.

NOTE: cannot manufacture harm or inflict injury in fear that something

will occur
($$ for flights b/c otherwise will be tapped is not valid economic injury)

Court also said although previous cases applied a looser term

"substantial risk". we don’t have to pick either one (certainty
 impending or substantial risk) here because these parties haven't
met either one. (Liberal v. Conservative court)

Cause of Action and no standing

Spokeo, Inc. v. Robins
Parties: Victim of false reporting by web info company sues for violation
of Act
Rule: “Concrete and particularized” are two different standing
requirements related to injury, and both must be met.
o Particularized- affects ∏ in personal and individual way
o Concrete-de facto must actually exist
Decision: Violation of an Act is not a valid injury if the party is not
actually injured by the misreporting.

RULE: In order to bring a claim to Federal Court you must have a cause of
action and standing.
legally protected CoA + Standing (injury that the law wanted to protect a person from)

No Standing because Generalized Grievances

Lujan v. Defenders of Wildlife
FACTS: Travelers sue over new regulation limiting US involvement in
animal welfare
Rule (Scalia): Citizen suit provisions are unconstitutional in the absence
of an actual Injury.
Under Art. III a party does not have standing to litigate a generalized
grievance against the government in federal court if she suffered no
personal injury other than the harm suffered by all citizens.
Decision:
o The inability to observe animals is an injury, but they parties are
not actually injured or face an injury that is certainly impending.
o No planned trips and no idea when they will be visiting
so now idea when they will be injured by not being able
to see endangered species.
o Citizen Suit Provision: Citizens procedural right to
challenge official’s failure to follow law is
unconstitutional without personal injury.
o Redressability also failed b/c reinstating groups involved in
regulation do not guarantee that these animals will be harmed
less.

What is a generalized grievances and why don’t we like them?

 Generalized grievance is basically when a person does not have a concrete and
particularized injury and is suing merely as a citizen concerned with government
following law.
 If we let you sue and you get what you want it won’t be benefitting you more than
it benefits anyone else. We all have an interest in having the law be followed. The
courts also feel like if they allow this generalized grievance the justice system will
feel like they are overreaching into the executive branches territory. The executive
branches job is to execute the law.
 We have an executive branch would be more efficient and focus for fixing the
issues of a generalized grievance because it is their job to execute the law
  Rule against grievance is constitutional (grounded in Article II), cannot be
changed.
Note: where the harm is widespread, but a person has a concrete injury
they can have standing.

Does a cause of action mean a person has standing?

 It is possible to have a cause of action but no standing.
 Lujan- No standing because a generalized grievance is insufficient as an
injury.
 It is possible to have standing but no cause of action.
 (e.g. A professor was rude to you and it hurt your feelings and you were
emotionally damages)
 Law makers haven't made that cause of action.

Prudential v. Constitutional
 If it is prudential it can be changed if it is constitutional it cannot be changed
 Generalized grievance not having standing is constitutional.
 Prudential requirements are not derived from the constitution but rather what
makes sense.
 If a rule comes from the constitution and congress doesn’t like it then "too bad",
however if it’s a prudential rule (courts notion of what prudent) congress can
change this rule

United States v. Student Challenging Regulatory Agency Procedures (SCRAP)

Particularized injury. Standing.
Facts: Railroads asked fed. gov. for permission to impose 2.5% surcharge
on nearly all freight rates. Interstate Comm. Comm’n consented. Ps argue
surcharge will discourage use of recyclable materials, adversely affecting
the environment.
Rule (Stewart): Members use WA parks, those parks could maybe be
damaged by this policy. Court says this is tenable enough to go to trial,
really attenuated but still possible. Survives motion to dismiss. Outlier
case but still technically good law. Never been explicitly overruled but
generally seen as wrongly decided. Not a good case to rely on.

Is paying taxes enough to prove standing??

Flast v. Cohen
Exception- Taxpayer Standing
Parties: federal taxpayers challenge preferable gvt spending for religious schools.
Rule: Federal taxpayers may have standing to challenge expenditures of Congress
and will not be determined a generalized grievance when congress has stepped
outside of taxing and spending power and also violates constitutional right.
Test “double nexus”:
1. Taxpayer must be challenging gvt expenditure of funds raised through spending
and taxing
a. Must be specific limitation on Congress’s taxing and spending powers;
cannot be incidental to the exercise of some other power (i.e. commerce
clause)
2. taxpayer brings suit on the basis that the expenditure violates constitutional
right.
 a. can’t just say that Congress is exceeding delegated powers, must also
show that Congress is violating expressed constitutional right.

Narrowing the Rule of Flask

Hein v. Freedom of religion foundation
Limits Flast exception
Parties: Federal taxpayers challenge executive act for funding to secular funding.
This case differs from Flast in that the federal money used to fund the President’s
program is drawn entirely from the Treasury. The fact that FFRF asserted it had
paid into this fund at some point through general taxes does not constitute the
same kind of specific, personal injury as was present when Congress collected a
tax for the specific purpose of promoting a religious program
Rule: Taxpayers do not have standing to challenge expenditures made by the
executive branch of the federal government solely based on their status as
taxpayers.
Decision: Flast exception does not apply because funds used were appropriated
via other executive power not congressional spending. In other words, lacked the
nexus (#1) between taxpayer status and type of legislative attacked
(taxing/spending).
o Nexus (#2) of Flast would have been met (legislative power infringing on
constitutional right) but cannot be used when both nexuses aren’t met.

Arizona Christian School of Tuition Org v. Winn

Clarifies Flast
Parties: Taxpayers challenge STO tax credit. Arizona is saying if you want to
donate to theses schools then we will exempt these funds on your taxes. The court
said this is a generalized grievance issue if you don’t address an actual
expenditure. NO STANDING because generalized grievance.
 Congress did not expressly allocate funds in violation of the Establishment
Clause.
Rule: Tax credit is not equal to tax expenditure. It is not enough to show double
nexus now must also show that your tax payments are directly contributing to
violation of the establishment clause. A plaintiff has standing to sue solely by
virtue of being a taxpayer where the plaintiff’s tax dollars directly contribute to an
establishment.
Decision: Giving a tax credit does not amount to tax funds being used in violation
of establishment clause.
o Redress is also speculative; loss of tax benefit will not clearly relieve
taxpayers of increased cost.

Lexmark International, Inc v. Static Control Components, Inc.

Bank of America Corp v. City of Miami

What we thought was prudential (not good law anymore)

1. Generalized grievance- NOT because its constitutional meaning it can’t be changed
2. Zone of Interest rule- NOT part of the standing analysis
3. 3rd party interest is still a prudential rule and says that when you have successful
gotten to court, you can assert 3rd party legal interest. You can only assert your own
interest. (ON THE ROAPS)
 You cannot get into a court room and assert other peoples injuries.
  Court are best served when they hear directly from the person hurt. Each
person should be heard directly and be heard on their own.
 EXCEPTION 1: A ruling in my case threatens to chill other people
exercise of rights
 Ex. Freedom of speech
 Ex. I'm in court bc my speech is being restricted. As a
matter of first amendment, free speech is going to harm me
and whoever else and if you uphold this law then you will
have to uphold this law on other and this will effect me and
them.
 EXCEPTION 2: You have a close relationship with the 3rd orty and that
3rd party faces a hinderance in being able to assert their own rights
 Ex. When the law banned contraceptive there was a law
making it illegal for a doctor to prescribe contraceptives. A
doctor brought suit and spoke about the issues that this law
implicated on his patients and asserts the rights of his
patients.
 Ex. Parents asserting rights of their children
 Ex: Teachers asserting rights of students.

b. MOOTNESS
1. An actual controversy must exist at all stages of review. Once injury or case is
no longer at issue, court should not review (would be advisory instead of for
relief of actual controversy)
2. During filing parties had standing, but somewhere along litigation party became
deprived in concrete stake in outcome of litigation.
3. Case will only become moot when it is impossible for a court to grant any
effectual relief
4. Whatever injury you are claiming this injury must persist
5. Must have standing and continue to be injured. When you lose an injury, you
lose standing.
 Ex: Settling disputes- You are no longer being injured and have
decided that the damages you were granted was enough
 Ex: Evidence you wanted to bring in was inadmissible and you win.
On principle you want to keep going and see if you would have won
with the evidence
 Basically you keep arguing on something even though there is there is
no point.

Exception to Mootness
Roe v. Wade (Exception to Mootness)
Case Facts: Defendant tried to claim that since the plaintiff was no longer
pregnant, that she did not have standing anymore. The court threw out this
argument because of the very nature of pregnancy and its 266 day cycle. If
this were allowed there would be no pregnancy litigation, additionally there
is risk that the ∏ would get pregnant again.

Parties: Women seeking permission to abort pregnancy

Rule: Injuries that are capable of repetition yet evading review are not
moot (not only preg lit). Because pregnancy has a inherent time frame and
because a woman can be pregnant again then they can show they can be
 injured again. There is something about this injury that is temporal yet
capable of happening again.

So long as you are pregnant when you file the lawsuit then it will go
through.

Friends of Earth, Inc v. Laidlaw (TOC), Inc. (EXCEPTON TO MOOTNESS)

Case Facts
Parties: Act allows people to bring suit against companies violating clean
water act
Rules:
Party claiming mootness has a heavy burden to convince court with
absolute certainty that wrongful behavior is not reasonably expected to
recur.

Voluntary Cessation will not render case moot unless burden is satisfied.
If the voluntary cessation occur before the case is brought then there
is no case. The case wouldn’t be moot but there is a lack of standing
all together.

If the voluntary cessation occur after the case is brought then the ∏
just must show that it is possible that the injury will occur again. If
this is met then the case will not be moot.

Decision: The ∆ could not prove with absolute certainty that they will not
pollute again primarily because they held their license to have registered
pollutant and had the means of rebuilding.

We look at the complained of behavior. Even if they have stopped the

injury but are capable of doing repeating the offense
Ex. Neighbor keeping making a noise and suit is filed

They start their litigation and the ∆s still are bringing the injury but during
the proceeding they stop and even sell the plant but still hold their permit.
At this point you must show that they have a means of causing injury
Campbell-Ewald Co. v. Gomez (Exception)
Case Facts
Unsolicited text from US recruiting in violation of Act. They attempt to
settle but Gomez refused and chose to go forward with the lawsuit. Had he
accepted the settlement money prior to the trial then the suit is moot.

Can you turn down a settlement offer and chose to go forward with the
suit? Yes you

Rule: Unaccepted settlement offer does not moot case; If class was
certified, even accepted offer couldn’t moot case.
Decision: Regardless of whether the settlement could’ve relieved ptf’s
injury completely (or even more than expected), If it is not accepted it
cannot deprive ptf of right to litigation.
Even if representative of certified class in class action, acceptance of
individual settlement does not defeat class action suit.
c. Ripeness
  Matters that are premature for opinion
 Usually, law hasn’t been enforced yet
TEST
1. Likelihood that crime will occur
 cannot be too speculative
2. Fitness
 Whether the factual record has been sufficiently developed?
3. Hardship
 Whether parties will face undue hardship if relief would be denied?
 Inconvenience, cost, difficulty, etc

Susan B. Anthony List v. Driehaus

Parties: Congressman seeks to enforce false statement penalty against pro-
life advocacy group
Rule The court of appeals analyzed 3 factors to assess whether the case
was ripe for review: (1) The likelihood that the alleged harm would come
to pass, (2)Whether the factual record was sufficiently developed, (3)The
hardship to the parties if judicial relief were denied
Decision: Pro-life advocacy group was permitted to bring claim that act
violated 1st & 14th amendments before enforcement (scheduled penalty
hearing) because fear of enforcement was a sufficiently imminent threat
 Court did not decide on fitness and hardship b/c substantial threat
of particularized harm cause by the act was sufficient to establish
standing. Therefore, ripeness was no longer at issue.
o Constitutional Limitations > Prudential Limitations

d. Political question doctrine

Certain issues are held to involve non-justiciable "political questions"

Note: issues w/ individual rights and not merely effecting branches are never
political Q’s.
 Used to maintain and prevent SCOTUS from usurping powers of other
branches
 Combination of constitutional and prudential limitations
1) Does the question implicate the Separation of Powers? Y move on; no
stop there
2) Does the Constitution reserve this power to another branch?
a. Textually demonstrable constitutional commitment that power
belongs to other branch

Prudential Limitations
1) Lack of judicially discoverable and manageable precedent to resolve issue
a. Can the court point to constitutional clause, statute or precedent,
something at all or will they be essentially making law.
2) Impossible to decide without making a policy determination
a. i.e. if they find this state gvt unconstitutional then they also invalidate all
their laws
3) Will resolution express a lack of respect for other branches or Could resolution
embarrass other branches
 a. Branches are co-equal will the Ct’s decision render a preference in
situations we’re both branches are acting within their power.
4) an unusual need for unquestioning adherence to a political decision already made
a. hasn’t happened yet, think president sends troops and then it is determined
the 30K to support the troops is denied by Cts; this will be an unusual
need to adhere to decision made.

Baker v. Carr
Parties: County members challenge denial of reapportionment based on
equal protection
Rule: political ingredients in claim (i.e. congressional
representation/reapportionment) does not automatically judicial review
when it deals with a constitutional issue, namely equal protection which
all branches must abide.
Decision: This is not a political question whether something violates
constitutionally granted individual rights is always reserved for judiciary;
a tint of political issue (guaranty clause for republican gvt) will not stop
judiciary from deciding on legal issues.

Zivosky v. Clinton
Parties: Person born in Jerusalem seeks to enforce statute granting Israel
listed as POB
Rule: Judicial branch cannot avoid its responsibility merely because cause
raises political implications.
Decision: Constitutionality of a statute is a judicial responsibility; Lower
Ct must determine whether to invalidate or affirm statute enforcement; the
issue is not to what is the political status of a foreign state.

C. Congress' Power under Article I

 Police power- is the power to regulate the people’s health, safety, morality and
welfare.
 Congress was not given this power therefore it’s given to states
 Amendment X (10th)- If a power is not delegated to congress by the constitution
then they do not have that power. If it is not delegated to congress, it is reserved to
the states.
o Okay so what powers have been delegated to congress?
 Why is it important to say the federal government and the states have power?
o It is important and beneficial because on a federal level there is
unification of rights across the board. There should be a unified stance
on some things.
o On a state level there may be some benefit to have individualized
policies that make sense for certain states. Each state has its own
culture and because the U.S is so big some states should have a say on
what they should do that make sense for them.
 Public Education Policy: Local school boards should
decided what education looks like
o Is this a matter of Local Discretion or National Standard?
o We benefit by watching the states experiment with different
approaches. The Federal gov. watches how these states rules go.

United States Term Limits, Inc. v. Thornton

 FACTS: Arkansas §73 decides that they will impose term limits that say that
incumbents will not have to win by write in vote after a certain amount of terms.

Court looks at…

 Powell v. McCormick- says that congress members could not exercise additional
qualification powers than those states in the constitution.
o This is not dispositive because this case was in regards to congress not
the states.
 What is the argument that states can add to the list?
o The constitution never expressly states that they couldn’t have these
powers therefore its silence allows this power because it is reserved to
the state (states in 10 amendment).
 Congress rejects this argument because…
o A state cannot reserve parties that it never had.
 The power to add qualification was never originally had
therefore it couldn’t be reserved.
 No preexisting right because it never existed in the first
place.
 Dissent says "whatever power your talking
about has it been delegated to congress"
o Even if the states had this power, the framers never intended the
constitution to be the exclusive source of qualifications

According to the Majority: This added qualification infringed upon another persons in a
different states relationship with their federal movement.
o Protestant view- If you want to talk to god you can talk to him directly and talk
to his priest.

According to Dissent: Every single person in each state can only be connected to the
Federal government through their state and representative. There is no direct relationship to
the federal government.
o Priesthood model- If you want to talk to god you must talk to a priest and that
priest will talk to got.

RUILING:

Does Term limits have any implications on McCulloch? What issue is address?
 2 big issues
o Congressional power
o Whether Maryland can tax the bank
 What joined these two cases thematically? The issue may
be that who is given what power when something is not
explicitly stated. In both cases we have one state taking an
action that arguably frustrated the people as a larger
 whole. The entirety of the term limits case and this portion
of whether Maryland can tax the U.S bank.

McCulloch v. Madison (developed the Reasonably related case)

FACTS: Congress charted a second bank of the U.S in 1816. The bank was designed to
regulate currency and help solve national economic issues. It was met with political
opposition. Maryland enacted the statute imposing taxes on the bank one of which was the
bank of the U.S. The bank refused to pay this tax and Maryland sued. The bank of the U.S
and its overseer James McCulloch. Maryland courts rule in favor of Maryland and SCOTUS
held the tax was invalid.

RUILING:

Ex Parte Yarbrough
FACTS: 8 white men beat a black man to avoid him from voting in a senate election.

What is difficult about this case?? This is being asserted as an implied power.

RUILING: The necessary and proper clause rides on the back of other enumerated powers.
Here, we are attaching the necessary and proper clause to the concept of a republican form
of government, where people do not themselves make a policy. The constitution sets up this
government and the necessary and proper clause rides on the back of this form of
government to protect this form of government from interference in its election which is
vital to the system.

U.S v. Comstock
FACTS:
The issue is a bit too attenuating leading into a slippery slope into police power. WE cannot
have this happen.

RUILING: (Attenuating a rule) The court here is finding that congress does have the power
to enact this law because it is sufficiently related to the nee to be a responsible custodian.
The Federal government has the power to be custodians because they have the power to
enact crimes and this comes from possibly regulation of commerce.

a. Commerce Clause
 Constitution adopts some rules in Article I section 8&9.
 At this times states were at war with each other economically
 "Congress has the power to regulate commerce with foreign nations and
among the several states and with Indian tribes."
o Suggest from state to state and this is "among the several states"
 What are some examples of things that are, on their face, in regular
candidates of congressional powers through commerce act? Almost
everything can intertwine with commerce, is it appropriate that congress
draws these lines broadly.
o Making bread only made in single bread
 Going to restrict Luke's ability to privately sell bread.
o Jogging
 Benita will need running apparel. Her running is not
completely commerce free.
  Pursuant to hits commerce power congress will restrict
Benita because if Benita runs around with a disease she will
get everyone sick including commerce employees.

Gibbons v. Ogden (Congress governs all intrastate commercial intercourse)

FACT:
RULE: If we are talking about commerce that is intrastate (people in state) this is not
what the commerce clause includes. Congress can only regulate interstate commerce
indicating a crossing of state lines. There must be some person or good that crosses
state lines. Congress has the power to regulate general good and service INCLUDING
navigation, basically all things in commercial intercourse.

United States v. E.C Knight (clashing between commerce power and sovereignty power)
FACT: U.S brought suit against Knight & American Sugar for violating an act by
congress that prohibits the creation of monopolies. American sugar merged and
acquired other companies therefore owning 98% of other companies. Here, the court
is worried about congress infringing upon the state police powers. In this case the
court is concerned that is they don’t draw limits on the commerce powers then this
will take over state powers.

ISSUE: Does U.S have the power to suppress monopolies?

RULE: Congress was not able to exercise control over this monopoly because this
implicated manufacturing which is beyond congress reach because it has not crossed
state lines yet.

Houston Railroad v. United States

FACT: Congress is pushing itself in domain of rates for railroads because they don’t
want discrimination from state to state. Therefore they look at intrastate commerce and
see if there is an unfair advantage. Congress also argues that the railroads themselves
are instrumentalities of commerce (tools of commerce) e.x for modern tools Airplanes,
trucks etc.
ISSUE
RULE: When Intrastate activities are so closely related and substantially related to
interstate commerce, congress has authority vested by the constitution.

Congress stepped over the police power authority of the states: There is a intra state
problem congress wants to tackle so this is how they find their way into that arena.
Congress began to rely upon the commerce powers to enact legislation regarding peoples
health, safety and morality. These courts favored these acts so long as congress focused on
the movement of people or thing interstate commerce. (Congress is basically using
commerce here as an excuse for police power)
RULE: Congress can regulate something as long as it focuses on the movement of
people or thing interstate even if congress has a intent to address peoples health, safety
and morality. The mere fact that congress motive is to protect peoples wellbeing is not
disqualifies so long as they write their law that has a interstate component.
Champion v. Ames
FACT: Courts uphold Federal lottery act stating it was permissible to guard
American people against the pestilence of lotteries so long as they focus on
interstate commerce.
Hipolite v. U.S
 FACT: Court upheld Pure Food and Drug of 1906 by allowing some eggs
with boric acid. Court said it was appropriate and necessary to prevent its
trade in interstate commerce . Appropriate means to that end.
Hoke v. U.S
FACT: upheld "white slave act" prohibiting transportation of women
across state lines for immoral reasons

These cases are looking to impose limits because absent such limits congress will apply
any domain to interstate commerce.
o Is the activity in production or manufacturing because this is before anything
even crosses state lines.
o Focused on regulation of commerce was direct or indirect and if congress is
regulating a activity that is indirect, this is not enough. It must be direct.
Hammer v. Dogenhart
FACT: ∏ brought suit on behalf of himself and his minor children claiming that
the act was unconstitutional exercise of congress' commercial power. The district
court held that congress acted unconstitutionally in attempting to regulate a
purely local matter. Both Hammer and the U.S appealed to the U.S supreme
court.

The hiring of the child is fine. The issue is that child manufactured goods cannot
be sold.

ISSUE: Does the power vested to congress through the commerce clause give it
authority to prohibit good that came from a specific manner of production (child
labor)?

RULE: Congress can address a harm from goods or people only when it crosses
state lines. At the manufacture stage the goods have not been sold yet or crossed
any state lines. The goods themselves are fine, the harm that congress wants to
address has already occurred. This is different from the prior case(Champion,
Hipolite, Hoke) because in those cases the goods were already crossing state
lines and were and would harm after they have crossed state lines. Here, the
manufacture of good via child labor has not yet crossed state lines and is not yet
in congress territory.

Carter v. Carter Coal Co.

FACT
ISSUE
RULE: Production of goods are intrastate commerce (local) because nothing has
crossed state lines yet. The government cant only govern when something
crosses state lines.

The court begins broadens the commerce clause again…

NLRB v. Jones & Laughlin steel
FACT: Jones Steel engaged in unfair labor practices by firing workers in a
manufacturing department because they engaged in union practice. They are
local employees in a huge company. They themselves do no shipping.
ISSUE: Does congress have the power to regulate unfair labor practices from
laborers in manufacturing?
 RULE: Congress' Authority to protect interstate commerce from burdens and
obstruction can be applied to intrastate activities when they are so close and
substantially related to interstate commerce that their control is essential to
protecting interstate commerce from those burden.
 Does not extend to indirect and remote effects so we can preserve
the states rights in local matters.
Here, Congress has the right to intervene with unfair labor practiced because any
stoppage in operation at this huge steel company, due to strife, this would have
serious effects on interstate commerce. Congress intervention is necessary to
avoid paralyzing consequences of industrial war.

Shift from formalism to functionalism…..

(Formalism is categorical and functionalism is if it makes sense)
United States v. Darby (overrules Hamer v. Dagenhart)
FACT
ISSUE: (1) Whether congress has the power to prohibit commerce from lumbar
manufactures who payed their workers less than the required amount and
exceeding the maximum hour requirement?, (2) Whether Congress has the
power to prohibit the employment of workman in the production of goods "for
interstate commerce" at other than prescribed wage and hours?

Used these two approaches

 If you are a company that ships your stuff in interstate commerce
you must pay your employees according to the standards.
 Commerce power includes power to regulate shipment
across state lines for commercial purposes.
 Also said they wont allow shipment in interstate commerce if they
didn’t meet the wage and pay standard.
 Court allowed both of these strategies.

Says the 10th amendment is but a truism. This court limits that the assumption
that the constitution insist that there is a long number of things that is reserved
for the states. Constitution says nothing about how much power is delegated to
states. The constitution doesn't expressly say that they get the rest of the powers.

Congress should have the power to regulate not only harmful goods but the
harmful employment standards. Overrules the decision in Hamer therefore
concluding that the congress powers shouldn’t only extend to articles when they
are inherently harmful because the distinction between harmful products and
products that have been made through harmful employment conditions is novel.

Motive and purpose of a regulation of interstate commerce are matters for the
legislative judgement when the constitution doesn’t place any restriction on the it
and the courts aren't given this control.

RULE: Commerce power includes power to regulate shipment across state lines
for commercial purposes. Congress should have the power to regulate not only
harmful goods but the harmful employment standards when a business trades in
interstate commerce. Pretty much says that anything that directly or indirectly
effects interstate commerce, can be regulated by Congress.
Wickard v. Filburn
FACT
ISSUE: Does congress have the power to exercise control over activity that is
not directly related to commerce? Even though he isn't even planning on selling
it?
RULE: Congress can exercise control over more than industries and even
homegrowers if we can say that their specific activity on a larger scale affected
interstate commerce.

The court decides that the purpose of the act was to regulate wheat and
homegrowers of wheat account for a huge part in its disappearance. Though this
one time homegrower is trivial the totality is substantial. Something being
"production", "consumption", or marketing is not material to the question of
authority. Gets rid of these categories in order to determine if congress can
exercise authority.

If its interstate commerce that feels the pinch its does not matter how local the
operation which applies the squeeze

If this man needs X amount of wheat and we cap him. He will have to go buy it.
Limit how much can be grown at home so people can go to market therefore
increasing commodities.

If this were an early new deal case there is not way this would be permissible by
congress.

If something adversely effects interstate commerce it doesn’t matter how local the
issue may be. Private acts of discrimination links with interstate commerce.
 Don’t have to argue that just this one case affects commerce but can
argue that this conduct does as a whole
 If a reasonable person can draw this connection then its permissible

Heart of Atlanta v. United States

FACT
ISSUE
RULE: Congress can exercise control over local interest if they have
substantial and harmful effects upon commerce. Congress argued that this
hotel conducts business to interstate travelers and that discrimination is
causing loss in business and revenue and refraining businesses from
starting in these areas therefore affecting commerce so they can regulate
discrimination.

Katzenbach v. McClung
FACT
ISSUE
RULE: Congress asserted an argument in that this restaurant gets. When
the restaurant discriminates this violated the civil rights act because fewer
people will buy the food if they cant eat in this therefore drives down
demand on buying products.

Perez v. United States

So far what can congress regulate….
Congress may regulate the use of channels of interstate commerce
Refers to Heartland- commerce free from immoral and injurious
uses.
Hotel which support channels of commerce
Think about movement through a channel or path
Darby- congress has power to regulate employment condition
because these employees who use channels.
Congress is empowered to regulate and protect the instrumentalities of
interstate commerce or persons or things threatening interstate commerce
even though the threat may come only from interstate activities.
Shrevenport Rate cases- ex. Destruction of aircrafts or theft.
Congress can regulate a train and the people or things on the
planes or trains.
Congress commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce.
Congress can regulate any activity that aggregated together
substantially effect interstate commerce.
 Wickard case- when home grown consumption of
wheat in a whole effects supply and demand.
Jurisdictional element for application of this statute under this section (Must be
met)
When the thing or activity has passed through commerce.
The statute will have something that effects interstate
commerce. Something more than just a reference to
statute.
Prosecutor must prove this beyond a reasonable doubt.
(ex. Someone possessed the gun knowingly and that
there was a school and the gun has once upon of time
passed through commerce)
(ex. you have a cause of action if you have been
attacked because of your gender when you passed
interstate commerce.) or (weapon uses crossed state
lines)
Is the activity economical or commercial in nature? (economic or
noneconomic activity)
Morrison- Court doesn’t say they can never take on
other types of cases but we usually grant the
commerce clause for activities that is economic in
nature.
Raich-
Taylor- Congress can have power of illegal economic
activity and regulating someone interfering with illegal
economic activity. Marijuana satisfies the test merely
because the trafficking of drugs effects interstate
commerce in the aggregate.
Is there legislative findings to justify regulating this activity?
Morrison- Rates of violence on woman affecting
interstate commerce
Lopez- no findings provided
Requires the party to prove that this affects commerce
at the applicable standard of proof.
 There must be some finding of fact but also proof that
this fact substantially affects commerce at the standard
of proof required.
Does this activity substantially effect interstate commerce not just
merely affecting commerce? The most attenuating a claim is the
weaker the link or nexus is.
The longer the chain of causation is the harder it is to
prove something is closely linked.
How do we know when the link is too long? When it
infringes upon states police powers too much.

However….a lack of one of these doesn’t give an automatic win..

DO NOT FOCUS JUST ON THE 3rd CATEGORY….. Think of them all

Some Modern Limits on Commerce Power…. Referring to the 3rd category

o Congress gave victim in Morrison an additional cause of action because the
state courts weren't given enough remedy. Provided a ton of evidence with
why this federal cause of action is warranted. These victims could go straight
to federal court and avoid state court.
o Neither of these cases fell under the 1st and 2nd category. It affected the 3rd.
 Had Morrison been assaulted on a plane or brought across state
lines this could have changed things.
o Congress does not contend that gun and violence against women don’t effect
interstate commerce however if they allowed that arguments to succeed there
would be no limit to congress Commercial Powers.
o If we were to blur the lines of state and federal powers then we wouldn't know,
as citizens, to keep accountable.

United States v. Lopez

FACTS: HS student brings gun to school
ISSUE
RULE

United State v. Morrison

FACTS: Woman is raped and no proper action was take.

ISSUE
RULE

Gonzalez v. Raich
FACTS: Marijuana is grown in the state and is used in the state. Nothing crosses
state lines.

∏ argue that there activity with Marijuana is merely intrastate.

All 4 dissenter in Lopez and Morrison are in the majority here. Majority opinion
in Lopez and Morrison are dissenting here.
 Majority found that here we have a production of a commodity which was not an
issue in Morison and Lopez.

The marijuana here is noncommercial activity, only used intrastate but

economic. Morison and Lopez is not economic. Here, Marijuana is economic
because they define economic as the production, distribution or consumption in a
commodity.

Here, this allowing use of marijuana will frustrate the CSA act which regulated
dugs in interstate commerce.

ISSUE
RULE

Concurrence: Scalia said Necessary and proper cause is better. A ban on local
activity is necessary to the success of the overall regulatory scheme.

United States v. Taylor

FACTS: Taylor broke into drug dealers money and drugs and he in some sense is
helping the war on drugs and disincentivizing drug dealers. Hobbs Acts says you
cannot interfere with commerce through robbery, here the commerce is illegal.
Congress made this commerce illegal and its illegal to interfere with illegal
commerce.

Congress can have power of illegal economic activity and regulating someone
interfering with illegal economic activity.

Though the activity in itself is intrastate activity in the aggregate this activity has
substantial effect on interstate trafficking of drugs.

ISSUE
RULE

National Federation of Independence Business v. Sebelius.

FACTS: Millions of insured people in the county who show up in an emergency
room and fed law requires to provide care even if they don’t have money.
Hospitals eat the cost. The fed gov had to give them more money and premiums
on health insurance payers pay more

(1) Guaranteed Issue provision- says you cannot deny for preexisting conditions.
 Will help people no be bared from getting coverage.
(2) Community Rating- ban insurers from charging sick people more than
healthy people.

If all the noninsurers are sitting out and only coming in when there sick then
there is no cushion to support there cost. The money ill come from those who
have been healthy and paying their premium.

The individual mandate- require people to get health insurance or they ill pay a
fine.
 PULL COMMERCE CLAUSE TOGETHER

ISSUE
RULE

Does it matter whether the thing being regulated is a state or private entity??
o The court attempts to draw a line of what fall under state and what falls under
local powers when they are applying "integral tradition and nontraditional
functions".
 NLC v. Usery- adopts
 Garcia v. San Antonio Transit - Overruled NLC ruling. Found it
to be unworkable. Allowed the Federal government to regulate
state government employees.

National League of Cities v. Usery

ISSUE: Does congress have the power to directly regulate activities of states
public employers (states as states)? Are the governing over state employees
functions that are essential to separate and independent existence? The court
ruled that congress did not have this authority. The court was concerned with
keeping state sovereignty. If something is an Integral operations in areas of
traditional government function then congress cannot regulate those employees
pursuant to its congress powers. People who are serving integral functions in
certain areas are not subject to federal regulation (e.g. police).

Problem with this test is it is difficult to decide who falls under this category.

RULE: 10th amendment prohibits congress from regulating wage/hour on state

employees. It could do so to private entities but not state employees because this
would give congress the right to "fundamental employment decisions regarding
state employees and there would be little power left the states that were"
(separate and independent).

Garcia v. San Antionio Metropolitan Transit Authority (overruled National league of

cities)
ISSUE

Politicians own judgements limited itself. Congress would regulate each other
and the citizens would regulate who they wanted to regulate them.

The political framework set by constitution this will be how states protect
themselves from overreaching regulations of them by congress. They protect
themselves by representatives who go to congress and speak up on behalf of
their state from undue federal regulation.
 This may cause tension with Thornton that says that representatives
don’t just represent the people in their state but all citizens.
 The constitution doesn’t predict outcomes but does dictate a set of
political process and the structure in which this plays out is where
the protections will play out.
 In Justice O'Connors dissent she describes a time where congress regulated
themselves and they went 60 years without ruling against congress…. In New
York v. United States O'Connor says We are Back!

RULE

Drawing back Congress' authority again….. THIS IS GOOD LAW NOW…

o They aren't resurrecting National League of Cities. But does attempt to
distinguish on the power of the states and federal powers again..
o COMMONDEERING- Federal government actions which would force a state
government to take some action that it otherwise would not take
New York v. United States
FACTS: The State of New York (plaintiff) brought suit against the United States
government (defendant), alleging that the three provisions of the Act were
unconstitutional under the Tenth and Eleventh Amendments.

In 1985, Congress enacted the Low-Level Radioactive Waste Policy

Amendments Act (the Act) to help address issues of low-level radioactive waste
disposal among the states. The Act encouraged states to adopt programs to
dispose of their own waste by creating three incentives:
Monetary incentive to encourage states to open waste sites,
 Congress authorizes the states to charge a fee for out
of state dumper.
 Federal gov takes a potion of these fees and hands out
this money to states when they hit certain milestones.
(SEE SPENDING POWER)
Access incentive to allow states without sites to be denied access to
other states’ sites, and a
 States can deny access to out of state waste in.
(Dormant commerce clause)
Take-title provision which required a state, upon request of a waste-
generator within its borders, to take title to the waste and pay
damages to the generator for any harm caused by the state’s failure
to take title.
 If the time comes and you don’t have a place to out the
radioactive waste. You will be liable for the damages
of it.
 Congress says deal with the problem or you will be
owner of the waste and liable for damages for it.

If congress is allowed to commandeer the state legislator (coheres it to regulate)

then constituents will get confused. (1) you will either write the law we are
telling you to write or (2) you will be the owner of the radioactive waste. Left
NY with no room for political choice. This is a problem because it will confuse
constituents. If citizens in a state have an issue with this then they will mobilize
against the state government when Congress is actually the culprit of a problem.

Commandeering poses threat to political process at state level and constituents

will blame state legislators for congress act.
 ISSUE: Whether any of the three challenged provisions of the LLRW act
oversteps the boundary between federal and state authority? The first and second
are permissible and the third is unconstitutional.

RULE: Congress may not compel states to enact or administer a federal

regulatory program.

Printz v. United States

FACTS:
Majority looks at
The fed gov basically commandeer these state officials say they
must reports to congress now.
Congress can only encourage in a certain way.
If congress wants to have its laws carried our they should go to the
executive branch.
the Constitution’s structure suggests that it is inappropriate for the federal
government to violate states’ status as separate entities by compelling their
officials to perform federal roles.

Constitution clearly states the execution of the laws is the responsibility of the
President.

RULE: Congress may not compel state officials to participate in the

administration of federal programs.

STEVEN DISSENT: argues that congress has the power to regulate handguns.
They should be authorized to do so under the necessary and proper clause.

State courts are a different matter. They must abide by

federal law.

New York & Printz says that congress cannot commandeer state functions by
forcing them top do performative affirmative acts (e.g. ordering state to enact a
statute)

(Printz) on State Sovereignty v. Enumerated power approach

 Majority starts its analysis with federalism and conception of state
sovereignty and if this law violated principles of state sovereignty then it
cannot be under the enumerated powers.
 Majority starts with the 10th amendment and dissent with the
enumerating powers and they don’t get to the same place. Conservatives
are worried about state sovereignty and that’s what drives their analysis
and liberals start with the enumerated powers as wide and broad as they
may be. The right permits a lesser federal gov. The left permits a greater
federal government. The Majorities starting point will be much more
difficult of a starting point because they will have to analyze the cases
and flush out issues. There is not much to unearth.
 State Sovereignty approach digs into unsaid principles or premise of
federalism.
 Enumerated powers
  Says that they can do this through the necessary and proper
clause supporting the commerce clause which allows
congress to regulate interstate commerce and these
handguns will almost always be thrown into interstate
commerce. The gun either as a whole or in part will go
through interstate commerce meaning congress can regulate
these activities. Congress can regulate the sale of guns
because they are economic.
 We wouldn’t need to worry about the 10th amendment
because we just concluded they can do it under the
enumerated powers.

Analyzing a Congress Commerce clause issue…

Who is being regulated? Is it only legislators or is it everyone??
Is this power in congress' enumerated powers? Is there an issue of
commandeering? TALK ABOUT BOTH.

Anti Commandeering principle-

NY.US & Printz says that congress cannot commandeer state functions by
forcing them to do performative affirmative acts (e.g. ordering state to enact a
statute)
 You can provide incentives or
Also used to invalidate congressional efforts to prevent a state from legislating.
If congress doesn’t want something they can make their own laws instead of
forcing states enact a law to do something.
 Allow for political accountability
Commandeering is worried about Congress reaching into state legislative.
 Reno v. Condon
FACTS:
RULE: Congress is regulating not only state possessors but also private
entities of the DMV information. It is not a issue of legislating and
regulation of states on its citizens when it applied to private citizens
equally.

When congress is saying something to state government and private

citizens this is usually not commandeering. Congress is regulating
commerce that is being used in economic activity.

Prohibition on states right to legislate

Murphy v. NCAA
FACTS: The federal Professional and Amateur Sports Protection Act (PASPA) largely
prohibited states from permitting gambling on sports. PASPA also prohibited private
gambling on sports. PASPA did not make gambling a federal crime but permitted
sports leagues to bring lawsuits for injunctions. New Jersey (defendant) passed a law
permitting sports gambling. The National Collegiate Athletic Association (NCAA)
(plaintiff) sued to enjoin the law based on PASPA. New Jersey argued that PASPA
violated the anti-commandeering principles in the U.S. Constitution. The United States
Supreme Court granted certiorari.
In1992 congress passed the PAPSA which made it unlawful for a state to
authorize sports gambling. NJ already prohibited sports gambling at the time
PAPSA was enacted. In 2014 state enacted a statute to purport to partially repeal
 the state total ban and allow sports betting at horse racing tracks and Atlantic
City casinos.

Congress may not

Force a state to legislate or regulate in a certain way ( U.S v. NY)
Require state executive branch personnel to perform ministerial duties.
(Printz)
Congress may not issue direct orders to state legislatures. (Murphy)

CAVEAT (Garcia wage and hour case) Tenth amendment does not entitle states own
operations to an exemption

ISSUE Can congress prevent states from removing their criminal bands?

RULE: Congress may not issue direct orders to state legislatures.

Sovereign immunity under the 11th amendment

 Doesn’t apply when states agree to be sued
 Congress has a limited power to aggregate state immunity when congress
clearly states its intent to abrogate the rule and the statute has be passed
pursuant to a enumerated powers (nothing in Article I is allowed)
The Taxing Power
The Taxing Power is significant because the power to tax is the power to regulate. By
using taxes to make an activity more costly, or by using tax breaks to make an activity more
appealing, Congress can try to shape a broad range of human behaviors. The Taxing Power
takes on even greater significance if it authorizes Congress to tax activities that Congress
could not directly regulate under the Commerce Clause or any other enumerated power.
Does it? If so, what prevents Congress from using the Taxing Power to blow a large hole in
the notion that the federal government has limited, enumerated powers
Constitution says this about the taxing clause
o Congress can lay taxes (taxing power)
o Spending power (pay debts)
o Provide for General Welfare of the United States.

HYPO: lets say there is no taxing clause. Suppose they try to tax on the commerce clause?
Could they tax only on the commerce clause?
 Yes because some commodities will almost be something in interstate
commerce and even if it is a intrastate sale.
 We don’t need to give congress the taxing power is some pother enumerating
power will give congress the power to do the job.

The courts in Child Labor did not acknowledge the General Welfare clause. They
read this clause to be attached to the spending and taxing power
The Child Labor Tax Case (Tax thumbs up, penalty thumbs down)
FACTS: This comes after Hamer v. Dagenhart wher they couldn’t regulate
child labor under the commerce clause.

Congress enacted a law that would impose a 10% tax on any companies net
profit if they failed to comply with certain regulation. The tax made
exceptions for parties that in good faith believed they were in compliance
(mistook age of its worker). The plaintiff got taxed for having a child under
 14 on its payroll. Plaintiff brought suit against the Collector stating that this
act was attempting to regulating employment of child labor in the states, an
exclusive state function, which is reserved in the constitution and the 10th
amendment. Government disagrees and states that it is acting within its
power denoted under the constitution to tax.

The court found that this tax was being used as more than to raise fund but
rather to push congress agenda to end employment of children within the
age limits prescribed. The court feared that in allowing the government to
use taxation broadly in order to push its agenda, would infringe upon the
sovereignty of the states. The difference in a tax and a penalty in order to
regulate is when it comes to the states is immaterial but not when the
regulatory power is vested in another. Relying on the ruling in Hammer v.
Dagenhart where congress cannot exercise its powers in a way that
infringes on states policing power.

Affirmed the ruling of the DC which ruled in favors of the company.

RULE: Congress cannot tax in a way that it becomes a incidental motive

and adopts penalizing features in order to regulate a certain thing.
Disincentivizing an activity is a form of regulating an activity. The
difference between a tax and penalty is congresses primary motive: to raise
revenue or regulate activity. If we say congress can tax any activity at will
then congress can regulate anything.
Still good law in some way…

United State v. Butler

FACTS: This comes after Congress couldn’t regulate cotton manufactures
because this was in the area where congress couldn’t touch commerce that
hasn’t passed state lined under the commerce clause yet.

Congress enacted a law aimed at boosting the price of certain commodities

by reducing those commodities production in 2 ways: taxing the
commodities processors then using that money to pay farmers to reduce
their acreage. Butler was a processor of cotton and brought suit claiming
the law was unconstitutional.

Congress looked into whether this act could be done under the language in
the constitution that said "to provide for the general welfare." Looked at
Justice Story's interpretation in that if congress were allowed to enact laws
under the color of "general welfare" then congress would have general and
unlimited powers. The true meaning of these terms only grant congress the
power to tax for the purposes of providing funds for payments of the
nations debts and making provisions for general welfare.

Gov argues that congress may spend money for the "general welfare" and
that the power to decide what "general welfare" is vested in congress alone
not the courts. Additionally that the issue at hand is for the general welfare.
They cannot accomplish certain objectives without a broad tax power.
Narrow construction would make the words meaningless.
 Court looked at
 Madison interpretation is that this language was not meant to
be taken liberally or in a broad sense. The language refers to
other enumerated powers. Must stay in this realm.
 Took a narrow view but when it comes to the
taxing power congress can only tax those
activities that one of its other enumerating
powers gives congress the authority to regulate
that activity.
 Hamilton interpretation is that the clause confers the power
separate and distinct from those in the later enumerated
powers and is not restricted by the meaning by the grant of
them. Basically congress has the power to tax and is limited
only by the requirement that it shall do to provide for the
general welfare of the U.S.
 Congress can tax any activity so long as the tax
is for the general welfare.
 Therefore not limited to the scope in the
enumerated powers.
 Agrees with story's view which falls in line with
Hamilton's view.

RULE: Congress has the power tax for the general welfare but cannot
regulate the general welfare.

United States v. Kahriger

FACTS: The Revenue Act of 1951 taxes people in the business of
accepting wagers and requires them to register with the government to pay
the tax. Kahriger (defendant), who was involved in illegal wagering
activities, failed to register and pay the tax. Kahriger challenges the Act on
the grounds that its regulatory purpose violates the Tenth Amendment. DC
found in favor of the plaintiff that this act would infringe on states policing
powers

Kahriger argues that Congress’s primary purpose in imposing the tax is to

regulate illegal, intrastate gambling, which it is not otherwise empowered
to regulate. Kahriger argues that this interferes with the police power of the
states, in violation of the Tenth Amendment. However, a tax that produces
revenue is not invalidated simply because its purpose is regulatory.
Therefore, although this tax has a regulatory effect, it is not invalid for that
reason.

Court referred to License tax cases where they agreed that federal license
discourages activities. There was no dispute that congress did this to hinder
and curtail these activities. However, federal exercise tac does not cease to
be valid merely because it discourages or deters the activities taxed.

RULE: Federal exercise tac does not cease to be valid merely because it
discourages or deters the activities taxed. Nor is the tax invalid because the
revenue is negligible (small unimportant). Says this isn't determinative.
Regardless of its regulatory effect, the wagering tax produces revenue. The
remedy for excessive taxation is in the hands of congress not the courts.
 (refers to commerce clause and how sometimes it intersects with state
matters but is still permissible).

Is there is anything extraneous or irrelevant to collecting tax then they cant

exercise the tax power.

Matter reversed.

Justice Jackson concurrence

 Although Congress may use its taxing power to discourage
certain behavior, this law falls within the outer limits of
constitutionality. It taxes people solely based on the source of
their income and does not appear to be a good-faith method of
raising revenue.
 Evils of taxing to encourage moral reforms will show itself
Frankfurter Dissent
 Congress should not be allowed to regulate through the use of
the taxing power what it is not empowered to regulate by the
Constitution.
 Courts cannot shut their eyes to what is obviously Congress'
attempt to control state conduct.

National Federation of Independent business v. Sebelius

FACTS: Because the commerce clause doesn’t support the positionality we
turn to tax clause.

Congress argues that not having insurance will be taxed just as everything
else the government taxes like buying gasoline or earning income. Court
says it looked like a tax in many respects (shared responsibility payment).
Produced revenue for the government. Though the act described the
payments as a "penalty", not a "tax."

Court found it is still a tax because..

o For most Americans the amount due will be far less than the
price of insurance and it can never be more. Gives tax payers
a meaningful choice to get insurance or pay a fee and opt out.
Its not prohibitory.
 Your still complying with the law is you pay the
fee.
o The individual mandate contains no scienter requirement
o Collection of the tax is done solely through the IRS normal
means of taxation except that it may not use punitive
sanctions such as criminal prosecution.

Choice of words "penalty" v. "tax"

 Majority sees the statutes language as it is permission to not
obtain insurance but you mist pay a fine
 Dissent sees this language as saying "penalty" means that you
did not do something lawful and now you must pay a fine.

RULE
 Scalia Dissent: There is a difference between a tax and a penalty. We have
never held that a penalty imposed for violation of the law is a tax. Congress
has never been given the authority to call an exaction imposed for violation
a power under the taxing power. They don’t even try to name it a tax and
actually call it a penalty. Something that clearly looks like a penalty has
never been held to be a tax?

Courts looks at these things to determine if Tax powers extends… (not

determinative but this is what's looked at)
o Primary purpose of the law
o Is there a scientar requirement.
 If there is then it might tilt toward penalty.
o Is it calculated at tax time
o Is it only payed during tax time
o Is it payed to IRS?
 Who is it payed to?

o Spending Power
The Spending Power authorizes Congress to spend money on a vast array of
programs. But the thing that makes the Spending Power most interesting from a
regulatory perspective is Congress's penchant for attaching conditions to states'
receipt of federal funds. When attaching those conditions, can Congress require
the states to do things that Congress could not compel the states to do under one
of its other enumerated powers? If so, then the Spending Power provides a way
for Congress to extend its reach into areas that even the expansive Commerce
Clause does not put into federal play.

Amendment XVIII (21st amendment)

South Dakota v. Dole

FACTS: South Dakota permits persons over 19 to purchase beer. Congress
says you get a lot of money from federal funding for its highway dollar
allocation if you have a drinking age under 21. SD argues this is a violation
of constitution. SD says congress doesn’t have the power to direct a
drinking age and congress shouldn't be able to do it indirectly whatever is
prohibited to do directly.

Congress reasons that we have already accepted the Hamiltonian approach

that congress can authorize things not under the enumerated power.
Spending clause us not riding the back of the enumerating power. It is its
own power

When congress attached conditions to a state or local grant it must follow

these elements.
1. The condition must be for general welfare
 Must be in pursuant to the general welfare
 Court defers heavily to the discretion of congress
2. Conditions must be unambiguous
 Similar to contract we want all parties to understand
what they are in for.
 3. Condition must be Germaine (relevant) to the federal interest in
some national program.
 Court didn’t decide whether the condition must be
germane underlying the federal grant.
 Allowed to be "pretty lose" Make a connection
between purpose of the grant and the condition.
 Alc limit must be age 21 because they
use highways and it can be dangerous.
 This is the stop on congress exercising police power.
4. There cannot be some other conditional bar on the behavior
congress intents to incentivize
 Congress cannot say if you behave in this way, there is
some money in it
 "if you agree to discriminate based on
race then there is money in it." congress
cannot used spending power this way
5. Congress cannot coerce the states
 If fed gov cannot directly compel then entire can they
use the spending power as a coercive power.
 Usually heavily incentive is not coercion.
 Bring the most litigation
 National Federation - Loss of all medicaid funding is
too coercive.
 South Dakota- Loss of 5% of highway funds isn't
coercive.

ISSUE: Whether the twenty first amendment constitutes an independent

constitutional bar to the conditional grant of federal funds? 21st amendment gets
rid of the 18th amendment (prohibition of alc).
RULE

National Federation of Independent business v. Sebelius

FACTS:

Court says:
o Congress cannot directly compel anyone to do something (get
health care)
o Congress can incentivize. Congress said if you don’t comply they
will lose all their federal Medicaid grants. (substantial sum)

Court decides that all states will be given the funding that was already existing
prior to the act but the additional compensation requires participation of
expanding their health coverage.