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Hofstra Law, Professor Charlow, Fall 2008



I. Origins of the Power of Judicial Review – The power of the courts to review legislation to
determine if it’s consistent with the Constitution.
a. Art III, § 2, Cl. 2 – “The judicial power shall extend to all cases, . . . arising under this Constitution. . . . In
all Cases [where state is a party or affecting foreign officials], the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
b. Marbury v. Madison (1803) – power of judicial review to declare acts of Congress uncon'l.
i. Background: The incumbent federal Adams lost Pres election of 1800 to Jefferson. Right be4 end of
his term, Adams appoints a bunch of federalist judges. Marbury’s commission is signed and sealed,
but it’s never delivered (by Madison, secretary of state). Once he took office, Jefferson tells Madison
not to deliver the commission. Marbury sought a writ of mandamus to get the commission delivered.
[Took a long time to hear the case b/c Congress suspended the Supreme Court for a term – Art III,
Congress can regulate Judiciary (but not tell them how to decide)].
ii. 1st Issue: Is Marbury entitled to the commission? Marshall says yes, the Pres granted it to him via an
act of Congress (Organic Act). His right was vested once it was signed and sealed.
a. Note: but it was never delivered – Prob Marshall does this so he can get to Judicial Review.
iii. 2nd Issue: Does Marbury have a remedy at law available? Marshall says yes, the essence of civil
liberty is that there is redress to every denial of a legal right.
a. Prof says not always true – but again Marshall prob says this just to get to judicial review.
iv. 3 Issue: Is Marbury entitled to the remedy he seeks? – Yes.
1. Nature of the writ of mandamus – an order to compel a lower ct or govt official to do his
duty. Madison has a duty to deliver the commission. Since it was signed & sealed, it’s vested,
so there’s a legal duty here. Therefore writ of mandamus is a proper remedy.
2. Note: Pres doesn’t like this – ct is undermining authority of executive by telling them what to
do. But if Marshall decided otherwise, would be undermining authority of Congress. Either
way, still undermining.
v. 4 Issue: What’s the source of the court’s power to issue the writ of mandamus?
1. The Judiciary Act 1789, § 13: “"The Supreme Court shall also have appellate jurisdiction
[from lower & state courts], in the cases herein after provided for; and shall have power to
issue . . . writs of mandamus . . . to any courts appointed, or persons holding office, under the
authority of the United States."
a. So, Judiciary Act is interpreted to mean that since Marbury is person holding office
under authority of U.S., this give SC power to issue the writ. Interpreted to mean that
this is a source of original jurisdiction.
b. But there are other possible ways it can be interpreted:
i. “Appellate jurisdiction”- so court has jurisdiction to hear a writ under appeal.

ii. This is an available remedy only when the SC would otherwise have
1. If read this way, court would need to still have original jurisdiction.
But the SC doesn’t have original jurisdiction b/c it’s only where state
is a party or in cases against foreign officials.
2. But Marshall then says the Judiciary Act is unconstitutional b/c it goes against Art III, § 2 of
the Constitution, therefore, there is actually no jurisdiction per Art III, § 2.
a. Art III, § 2, cl. 2 - Lists the issues for which SC would have original jurisdiction. All
other cases, SC has appellate jurisdiction. Writ of mandamus not listed there.
b. But it also says “with such exception, and under such regulations as the Congress
shall make.” So, Congress added this original jurisdiction in the Judiciary Act.
i. Marshall says that Congress can't do this. If drafters had intended that
Congress could add original jurisdiction of SC later, they wouldn’t have listed
specific instances of original jurisdiction. Marshall is interpreting it as setting
a ceiling to the SC's original jurisdiction. An affirmative grant implies a
negative of what’s not granted.
ii. However, prof points out differing interpretations:
1. The list of original jurisdiction written out to set a floor (min) of when
SC has original jurisdiction – guarantees these powers. Prob here is it
may allow Congress to give SC too much work to do – SC becomes
overwhelmed & may impinge on SC's power & destroy its authority.
2. Distribution for court to follow, but Congress can change it.
3. Note: Judiciary Act written by drafters of the Constitution, so it’s most likely not
unconstitutional. More likely that Marshall read the Judiciary Act wrong.
vi. 5th Issue: Can the court declare an act of Congress unconstitutional? So Marshall explains
judicial review. So the question is WHO DECIDES whether an act of Congress is unconstitutional.
Marshall makes six arguments in support of judicial review:
1. Written Constitution – It’s important that we have a written constitution. What’s the point of
having it if it couldn’t be enforced? Therefore, SC has power of judicial review to enforce it.
a. Prof Criticism – ok, but why the court & not another branch? WHO DECIDES? It’s
not clear that framers intended for court to have absolute power of judicial review b/c
they gave legislature power to take away court’s jurisdiction over certain cases.
i. Still, if legislature had this power, may be problem b/c self-regulation. But the
check would be the general public; we can vote ppl out (accountability).
2. Judicial Role or duty - (textual argument) Court has a role or duty to say what the law is, &
when laws conflict to determine which law governs.
a. Prof Criticism – Marshall is lumping the 2 roles of the court together as the same
thing. Just b/c there’s power of JR to act as CL court doesn’t mean there is JR to act
as a Const’l court. Roles:
i. Interpreting the law (acting like CL courts); fill in statutory gaps. Here, Leg
can just go back & make changes (by maj vote) to the law if they don’t agree.
ii. Saying what has legitimacy as law (acting like a Const’l court). Here, Leg
can’t just change the law, they have to make a const’l change (amendment)
3. Checks & Balances / Separation of powers – (structural argument) if no judicial review, the
legislature would police itself - & this means nothing, b/c they do whatever, & just decide it’s
const’l. Power must be checked.
a. Prof Criticism – But here the court is doing the same thing. Court deciding how much
their power extends, and so is policing itself. So also begs question, who decides?
4. Grant of jurisdiction to Judiciary in Art III – (textual argument) Art III, § 2 grants the court
power of judicial review to hear cases arising under the Constitution. So there’s an implicit
grant of jurisdiction, b/c the grant would be meaningless if court couldn’t examine all parts of
the constitution when reviewing one part of it.

a. Prof Criticism – Question of statutory interpretation. Art III could also be viewed as a
simple grant of jurisdiction - courts can examine the Constitution, but other branches
are not precluded from doing so. If Congress passes a law, then means Congress
thinks it’s constitutional. Doesn’t mean judiciary has power over another branch to
tell it what to do.
5. Judicial Oath to the Constitution (textual argument) – Art VI, § 3 requires judges to take an
oath to uphold the constitution. So they must rule on the constitution, b/c they’d be
disobeying the oath if they ignored it.
a. Prof Criticism – Every federal employee takes that oath – doesn’t mean they have this
power. So this cannot be the source of the power.
6. Supremacy Clause – Art VI, § 2 requires that an act of Congress be made in pursuance with
the Constitution, b/c it is the supreme law of the land. So if inconsistent with Constitution,
then legislation is void.
a. Criticism – Yes, but WHO DECIDES? Still doesn’t answer why the judiciary gets to.
vii. The holding in Marbury can be interpreted broadly or narrowly:
1. Most broad – SC has power to rule on constitutionality of everyone – State & federal courts,
legislature, executive, individuals.
2. Broad – SC has power to rule on constitutionality of acts of other branches of federal gov’t
3. Narrow – SC has power to rule on constitutionality of acts of Congress
4. Most Narrow – SC has power to rule on constitutionality of acts of Congress only when it
pertains to powers of the judiciary
5. –Marbury understood to give a limited power of JR (most narrow). Then Dred Scott
broadened the scope of JR, interpreting Marbury to give the narrow power (all acts of
Congress). But since that case supported slaver, it’s not cited, and Marbury instead is cited.
Today, we have the “most broad” interpretation.
II. Judicial Review of State Actions
a. Martin v. Hunter's Lessee (1816) - power of judicial review to review decisions of state courts.
i. Background – Martin’s a British citizen who owns land in VA. State confiscated land owned by
British citizens, & gives this piece to Hunter. U.S. has treaty with Great Britain where we wouldn’t
do that. State appeals court found for Hunter, b/c (1) they found that the state’s title to the property
was perfected before the existence of the treaty, and (2) VA state law settled ownership for Hunter.
SC reverses, holding that the title wasn’t perfected before treaty enacted, so the confiscation violates
the treaty, and treaty is the supreme law of the land (Art VI). SC remands back to VA appeals to enter
judgment for Martin, but VA refuses, arguing that SC doesn’t have power to review state court
1. Note: SC doesn’t talk about the state law at all – no FSMJ, but can get in under suppl.
jurisdiction. Usually SC will decide just not to hear the case. But they do & ignore this.
ii. Issue: Whether SC has power to review decisions of state courts.
iii. Arguments in support of Judicial Review
1. ***Art IV - Supremacy Clause – “This Constitution, and the laws of the United States . . .
and all treaties made, or which shall be made, under the authority of the United States, shall
be the supreme law of the land; and the judges in every state shall be bound thereby…”
a. Per Art IV, Federal law is supreme over state judges. Therefore, state courts will deal
with federal question. Since state courts may hear federal questions, then SC should
have power to review them. Otherwise, the SC would never have appellate
jurisdiction as per Art III, § 2 (b/c at that time no lower federal courts, just lower state
courts). Therefore, SC can decide on the constitutionality of the decisions of state
court judges.
i. Furthermore, since Congress has power to create federal courts, wouldn’t
make sense for Supreme Court to review state court decisions, but not lower
federal court decision. Therefore, Supreme Court has power of judicial review
for both state & lower federal court decisions.

2. Art III, § 2 – Textual Argument – Art III say, judiciary power extends to all cases arising
under the Constitution. So all federal questions, including the ones that start in state court and
are in SC under appellate jurisdiction. Argues that jurisdiction is over the case not the
tribunal – but Prof says this doesn’t fly b/c federal court doesn’t have authority to review int’l
court decisions, even if a federal issue (treaty).
3. The Spirit of the Constitution argument – It’s the spirit of the Constitution to limit state’s
powers. State sovereignty is curtailed by the Constitution.
4. Uniformity – necessary to have uniformity in constitutional interpretation across the nation.
Need SC to do this, b/c state’s only look out for own interests. But we don’t necessarily need
uniformity – a lot of other laws are diff across states and that’s ok.
5. State bias problem – Conflict between states (bias for own state) so we need a neutral party.
6. Historical Precedent – Historically, SC has told state courts what to do, and states listened.
7. Argument of original understanding – everyone, incl. framers understood that SC has power
to review state court decisions.
8. Judiciary Act - Authorizes exercise of jurisdiction in the specific case. Since framers of
Constitution also wrote Judiciary Act, they intended what they said in the Judiciary Act. This
argument not used in Marbury b/c Marshall was arguing that Judiciary Act and Constitution
are in conflict, and this argument would defeat what he was arguing.
9. Art I, § 10 – Limitations on State Sovereignty
b. Other Possible Arguments
i. SC not politically accountable (life tenure) – no political bias, & can freely interpret Constitution.
But criticism – free to interpret as they see fit, they might place personal bias into decisions.
ii. Framer’s intent – clear that Court would have this power b/c of the structure of the gov’t
iii. Necessity – Someone has to be able to give the last work – finality. But who? SC more constant (life
tenure), they don’t change as often as Pres & Legislature (4 yrs). More consistency, uniformity &
stability. Criticism – not necessarily a bad thing if what is constitutional changes often.
iv. Voice for the people – somewhere to go. Criticism – can also go to legislators.

III. Problem with Judicial Review

a. Is it a good idea for the Supreme Court to be the “Final” Arbiter of what is Constitutional?
i. Good idea – for efficiency. If SC wrong, amend the Constitution.
ii. But, uniform laws may not work for vastly different cultures across the states.
1. Counter-Majoritarian Dilemma
a. Supreme Court not answerable to the people like Congress & President, b/c not
elected by ppl & hold position for life. So we have a minority telling the majority
what to do, which creates a counter-majoritarian dilemma.

IV. Different modes of Constitutional Interpretation

a. Structural Argument – certain things implied b/c of the structure of the gov’t set forth in Constitution.
Problem here is that you have to be skeptical about what’s implied – might go too far.
b. Textual Argument – rely on the text. Problem is there’s a lot of room for interpretation.
c. Framer’s Intent Argument – look at the legislative history. Problem is that this is hard to define. Framers
had diff ideas, and they voted, etc. So whose intent should govern? Also, some things were not
contemplated back them (air force).
d. Argument of Original Understanding – Public’s understanding at the time it was written. Ppl wrote
books/articles about what they thought it meant; Dictionaries from the time of what things meant.
i. The dead hand problem, we have changed/evolved. Only white men had a say when Constitution
adopted, & we would be stuck with how ppl understood it 200 yrs ago. Go back to see how
understood – but look at overall purpose of ho gov’t was established. Constitution formed during
time of heightened political awareness, public now not as aware.
e. Consensus Interpretation – Today’s majority. The Congress is the majority consensus, not judicial review.

i. Problem - Ppl not really aware of this stuff today; but ppl back then had a heightened awareness of
political issues. Also, this is contractual – we decided, as a country, by super majority, back then,
and we shouldn’t change that unless we get another super-majority. Need a fixed point of agreement.
f. Judicial Precedent – Stare decisis. Court already decided how it’s interpreted, shouldn’t change that. We’re
relying on what the gov’t has always said.
g. Policy Argument – Constitution must embody good policy & promote justice. Problem is who decides what
these fundamental values are. Judicial review – the court decides. Problem is they don’t represent the
majority. They have here own bias; decide what’s fundamental b/c of what they believe.
h. Functional Argument – argument of necessity.
i. History – rely on historical practice/precedent. Since no one questioned it, must have been right. Problem is
that just b/c they’ve been doing it all along doesn’t make it right. May have been wrong to begin with.

V. Congressional Regulation of Judicial Power

a. The Exceptions Clause - Art III, § 2 – says that SC's appellate jurisdiction is "subject to such exceptions
as the Congress shall make."
b. Art III also says judicial power vested in Supreme Court, & in “such inferior courts as the Congress may
from time to time ordain or establish.” So Congress has power to create lower federal courts.
i. Congress has never given lower federal courts the max jurisdiction that Constitution allows. It has
always imposed limits on the appellate jurisdiction of the SC. Limits on SC jurisdiction largely to
protect SC from being swamped with cases
ii. But sometimes Congress will impose limits b/c they didn’t like what the court did. Only way to
overturn SC decision is to amend the constitution - this is very hard to do. So, instead, Congress can
limit jurisdiction of SC (to not hear certain cases). These are called "jurisdiction-stripping bills."
1. Ex Parte McCardle (1869) - is the leading case on the stripping of SC jurisdiction
a. Background: Act of 1867 - Congress grants federal courts power to grant writs of
habeas corpus, & one provision authorized SC to hear appeals when circuit courts
denied application for the writ. McCardle imprisoned by military gov’t for publishing
material tending to incite violence & impede Reconstruction; he sought habeas
corpus, alleging unlawful restraint by military force. Circuit court denies it, and he
appeals it to SC (under the 1867 Act). SC hinted it wants to hold military
Reconstruction unconstitutional, but Congress doesn’t like this, so they pass a
repealing act before case is decided, so SC wouldn’t have jurisdiction to hear the
appeal –stripping SC of its jurisdiction to hear this case.
b. Holding: Art III says that SC's jurisdiction limited "under such regulations as the
Congress shall make." Since Congress first granted, but now stripped the SC's
jurisdiction to hear this appeal, the SC no longer has jurisdiction. Repealing act only
took away jurisdiction from the SC that was granted by the Congress in the 1867 Act,
not any other jurisdiction SC had before.
c. Note: SC could still hear an original writ of habeas corpus under the Judiciary Act;
repeal of jurisdiction was only for hearing it on appeal from circuit court. Only one
source of habeas corpus review was foreclosed by Congress, not all.
i. Ex Parte Yerger (1869) – same issue as McCardle, but court upheld
jurisdiction, b/c petitioner sought review based on the Judiciary Act, not the
1867 Act.
iii. Congress can manipulate SC's jurisdiction, but there are limits to what they can do.
1. If you take away all avenues for someone to bring a case of civil rights (by taking away
jurisdiction from all courts), you are eliminating due process, in violation of the Constitution.
2. There are other Constitutional provisions that limit Congress’ ability to manipulate the
judicial branch.
iv. Art III gives Congress power to establish the lower federal courts. Therefore, it also has broad,
discretionary power to prescribe & limit the lower federal court’s jurisdiction. Although lower

federal courts have general jurisdiction to hear cases arising under the Constitution, Congress has
never given them the full jurisdiction allowed by the Constitution.
v. Habeas Corpus Jurisdiction – The Suspension Clause of Art I, § 9, cl. 2 provides that “the privilege
of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the
public safety may require it.”
1. INS v. St. Cyr (2001) – writ of habeas corpus has served as a means of reviewing the legality
of executive detention. Suspension Clause bars Congress from banning judicial review of
executive detention – they can't suspend writ of habeas corpus unless in times of rebellion…

VI. Discretionary Review – Have to apply for writ of certiorari for SC to hear your case. SC will decide
only those issues whole resolution will have immediate importance far beyond the particular facts and parties
a. Reasons for granting certiorari
i. Disagreement between holdings in various courts; or if one court diverges significantly from
accepted & usual course
ii. If state court decision conflict with another state or federal
iii. When a state or federal court has decided an important matter of law that should be decided by SC,
or has decided a federal question in a way that conflict with the SC precedent.
b. Maryland v. Baltimore Radio Show - Crim court found Δs guilty & imposed fines for broadcasting over
radio matters relating to a criminal trial b/c it was an obstruction of the administration of justice, depriving
Δ of an impartial jury. Court of appeals says reverses, per 1st and 14th amendment. Court denies writ of
i. Can be denied for technical reasons, or b/c the issue can't muster support from 4 members of the
court. Also if record or issues are unclear.
ii. Rule of 4 – takes 4 judges to grant certiorari


I. Prerequisites to Federal Jurisdiction and Judicial Review

a. Art III – federal judicial power extends only to cases & controversies.
i. Therefore, courts precluded from giving advisory opinions or deciding moot cases. Parties asserting
constitutional challenged must have standing, and claims may only be asserted when they’re ripe.
b. Nonjusticiability - Limitations on access to the court. It’s a controversy that is not appropriate or proper for
judicial consideration or resolution.
i. Not b/c of jurisdiction, would still have jurisdiction, but for other reasons will not take the case.
1. Classical Rule – Court has a duty not to decide. The issue is given to someone else.
a. Issue of separation of powers. We want courts to play a limited role – Art III,
adjudicate cases & controversies. Judiciary can't step outside enumerated power.
2. Functional Rule – just not possible for Court to decide the issue.
3. Prudential Rule – Not required by the Constitution. Court uses own prudence & imposes on
itself as a policy requirement to limit access. There are limited resources, and want the best
possible use of those resources. Ppl who care, have an interest will make better arguments &
will represent that side better. (Ex: 3rd party standing).
ii. Even if fed courts say nonjusticiable, can still take it to state courts. You can then appeal to federal
courts, and they’ll prob take the case, b/c it doesn’t want to leave decision of constitutionality to state

c. Final judgments or decrees – court ordinarily only reviews final judgments or decrees of highest state court.
This avoids (i) unnecessary constitutional decisions, (ii) inefficient, piecemeal review, and (iii) unnecessary
interference with state court processes. But nowadays, there are exceptions to this.
d. Also, Judicial Review limited to issues of federal law.

II. Political Question (some disagree whether it’s a justiciability doctrine - but it does limit access to the
a. Exclusive Textual Commitment (Classical Rule) – Constitution gives jurisdiction to another branch of
gov’t. If judiciary were to hear it, it would show disrespect to the other branch, b/c other branch can handle
it. Even if court has power to get involved, it won't.
i. Impeachment
1. Art I, § 2, cl. 5: "The Senate shall have the sole Power to try all Impeachments.”
2. Nixon v. United States (1993) – House of Rep impeaches Nixon, a district court Judge.
Senate invokes its own impeachment rule, and creates a committee of senators to receive
evidence & take testimony, and then presents this to entire Senate to decide. Senate votes
Nixon out of office, and he argues that the impeachment rule violated constitution b/c it
prohibited entire Senate from taking part in the evidentiary hearings.
a. Court says nonjusticiable b/c it’s a political question. Up to Senate to decide
impeachment process b/c they have sole power to try all impeachments.
b. Charlow says: Court, by saying it’s a political question, is basically saying what
Senate was constitutional. If Senate behavior was egregious & unconstitutional, SC
would have intervened. So really decision on merits – it’s constitutional.
3. Powell v. McCormack (1969) – Art I § 5 says "each house shall be the judge of the
qualifications of its members.” Court here says it’s not a political question & decides on
merits. How do you reconcile this with Nixon? Well, court in Nixon said that here it was diff.
The qualifications for membership in the house are specifically listed in the Constitution, &
nothing outside of this can serve as a qualification. House can't add. Only thing House can do
is decide who is qualified for membership based on those qualifications.
ii. Guarantee Clause (Art IV, § 4): U.S. shall guarantee to every state in this union, a Republican
Form of Government (a representative democracy).
1. Pacific States v. Oregon (1912) – an initiative goes to ballad for the public to decide. This is
direct lawmaking – a democracy not a representative democracy (republican form of gov’t).
So it violates the guarantee clause. Court says it’s a political question b/c exclusive textual
commitment. “U.S. shall guarantee” – U.S. means Congress, not the court. Congress has
control over this matter.
2. Courts have always said that Guarantee Clause questions are always political questions – but
they might change this later (like if NY Gov declares himself King – Court would definitely
iii. Amending Process
1. The Amendment process. Art V.
a. Proposed - 2 ways to do this: (1) 2/3 of both houses of Congress, or (2) 2/3 of state
legislators apply to Congress to propose an amendment, and asks Congress to call a
b. Ratified – by ¾ of the states. Either by ¾ of state legislature or ¾ of state convention.
c. Congress decides when to propose and which to propose. Congress decides how they
will be ratified. But up to states to ratify.
d. Can't deny state of seat in senate (2 per state) – so more populated states don’t
overwhelm. Every state gets same representation. Can't change by amendment.
2. An Example: Amendment XXVII (1992) – If Congress wants to give itself a pay raise, must
wait until next election to take effect.

a. May be argued that this amendment is invalid. ¾ of states eventually ratified it, but it
happened slowly over 200 yrs. This doesn’t truly reflect the will of the ppl b/c no
super-majority at any given point in time. So how much lapse of time is too much?
3. Coleman v. Miller (1939) – the issue was whether a proposed amendment lapses if not
ratified within a reasonable time. Court said political question – exclusive textual
commitment, b/c Congress has exclusive power of amending process.
iv. Regulating the Militia
1. Gilligan v. Morgan (1973)
b. Absence of Standards (Functional Rule) – lack of judicially discoverable & manageable standards. So it’s
impractical to decide – either court would act as a lawmaker, or it would be inappropriate to decide.
i. Judicially Manageable Standards
1. Vieth v. Jubelirer (2004) – Plurality – Scalia - (no majority) says it’s a political question b/c
no judicially manageable standard exist to decide when gerrymandering violates the
Constitution – no standard for figuring it out; no constitutional ban on it. Concurrence
(Kennedy) says not standard but doesn’t agree it’s a political question b/c a standard may
emerge in the future. Prof says this is weird – we can't figure out standard now but may be
able to in the future?
ii. Malapportionment
1. Baker v. Carr (1962) – apportionment of reps never changed even though population
increased. Same # of reps for 2 towns, even though one has higher population. Higher
populated town says their power is diminished. Court says it’s not a political question b/c
there is a standard to apply – the Equal protection clause. Court defines standard as one man,
one vote.
a. Should the court have gotten involved in the apportionment of state legislatures?
i. No – this is legislature’s duty. Ppl elect legislature, so it’s their duty.
ii. Yes - Ppl’s vote is being diluted here & they can't do anything about it. If court
doesn’t get involved, will never change.
c. Finality (Prudential Rule) – there’s an overriding need for finality over a decision already made by another
branch of gov’t. Court shouldn’t second-guess another branch b/c there’s this need for finality.
i. Foreign Relations
1. Goldwater v. Carter (1979) – Pres wants to terminate a treaty; Congress says no & since you
need ¾ Congress to pass a treaty, can't do it w/o Congress. 4 justices said political question
b/c no standard – the Constitution only says how to make a treaty, not how to get rid of it.
Powell (concurrence) decides the case – says not a political question, but rather
nonjusticiable b/c of prudential considerations – not ripe/ready for judicial review.
2. What usually happens with regards to treaties? Court won't take it, but rely on finality.
Usually finality question will involve foreign matters, where Pres acts first. And once Pres
acts, there’s a need for finality b/c other countries depending on us.
d. Thesis: No such thing as political question
i. Sometimes when clearly a political question, court will still take it. So this implies that what the
court is doing is really just deciding on the merits by declaring an issue to be a political question.
Basically, their saying that whatever the complaint about is constitutional. If they really thought it
was unconstitutional, they will take the case. Sometimes there’s a compelling reason to decide, even
though otherwise would be political question, and they’ll go ahead anyway.

III. Standing (Classical Rule – Separation of power; Judiciary can’t step outside their enumerated powers).
a. Nature & Purposes of the Standing Doctrine
i. Standing focuses on the particular party and whether they can sue for that particular claim. But
sometimes to determine standing, must look at merits of claim. But court not ruling on the merits.
ii. *** A Π must allege personal injury fairly traceable to the Δ's allegedly unlawful conduct and likely
to be redressed by the requested relief.

iii. Art III confines the federal courts to adjudicating actual cases and controversies. Requires that party
asserting the claim has a personal stake in the outcome.
1. Separation of powers & concern of the proper role of the judiciary. Don’t want judiciary
usurping powers of other branches, so only going to decide when absolutely necessary to
vindicate some individual right. So we bar adjudication of generalized grievances that are
more appropriately addressed in the representative branches.
2. Why restrict judicial review to cases brought by concretely harmed individuals:
a. The smooth allocation of power among courts over time
b. The unfairness of holding later litigants to an adverse judgment in which they may
not have been properly represented
c. The importance of placing control over political processes in the hands of the people
most closely involved.
iv. When you consider standing, you must consider it for each party and each claim, and each one is
separate. Each party is separate, and each claim is separate.
v. Standing to sue in state court – governed by state law/constitution
b. Constitutional Standing - imposes 3 requirements: Injury in fact, causation, & redressability.
i. Allen v. Wright (1984) – Parents of black school children allege IRS did not adopt sufficient
standards to fulfill obligation to deny tax-exempt status to racially discriminatory private school.
Harms them b/c interferes w/ children’s right to desegregated public schools b/c gov’t basically
encouraging private schools (& thus the segregation). Court holds there’s no standing.
1. Claim #1: Gov’t act was illegal & they suffered as a result of that act. Court says this claim is
not sufficiently personalized to these Πs – called a generalized grievance. Everyone has right
to have gov’t act legally.
2. Claim # 2: Being stigmatized as African-Americans by policies that support the
discrimination. Stigma injury could be ok, but here it’s inadequate b/c it’s not sufficiently
personal - Generalized grievance.
3. Claim #3: The IRS's policy resulted in their children being unable to receive an education in
a desegregated school. Injury in fact; but no causation.
a. Court says this is a personal injury, but it's not fairly traceable to the government's
conduct. Court says it’s mere speculation that this injury was caused by the
government's actions. Claimants couldn’t prove that even if tax-exempt status was
taken away, that children from private schools would move to public schools.
b. Also can't be redressed - we don’t know if granting the relief will cure the problem.
Usually, when no causation, not going to be redress (usually tied together, but
exception: the Lyons case).
c. Dissent: there is a direct causal relationship; common sense that elimination of tax-
exempt status would make private segregated schools more expensive, and whites
would move to public schools, so public schools would become more desegregated.
ii. Injury in Fact (Constitutional injury) – Π must have suffered an actual or threatened injury as a
result of Δ’s conduct. Ways to describe this: (1) Injury must be distinct & palpable; (2) Injury may
not be abstract or conjectural; (3) Injury must be concrete & particularized.
1. Non-economic Injuries – Courts have accepted that non-economic injuries can satisfy the
constitutional requirements, but needs to be pleaded with sufficient specificity.
a. United States v. SCRAP (1973) – law makes cost if freight rates to be more expensive.
Injury claimed is that their recreational interest. Court upholds standing where injury
is noneconomic, recreational interest.
i. But Prof says the causation here is very attenuated. Argument is that if freight
costs increase, there might be more discarded trash in the park, which
interferes with their recreational interest. Why? (1) higher rates increase cost
of recycling, so may use more natural resources which may be taken from the
area; (2) increased rate will lead to use of non-recyclable goods, resulting in
more waste in area.

2. Injury and the Equal Protection Clause
a. Heckler v. Matthews (1984) – law gave large social security benefits to women than
to men; only remedy available if found unconstitutional (per statute), was lowering
the women’s benefits to be same as men. So even though Πs wouldn’t benefit if they
won a lawsuit, court says there’s standing b/c interest was equal treatment.
Discrimination itself is the noneconomic injury, and this can be remedied by
providing equal treatment.
iii. Causation – Injury suffered must be fairly traceable to the challenged action against the Δ. The Δ’s
action must have caused the particular injury you’re asserting.
1. Simon v. Eastern Kentucky Welfare Rights (1976) – IRS eliminated requirement that hospitals
receiving favorable tax treatment had to provide care for indigents. Class action on behalf of
indigents – they argued they would be harmed b/c hospitals would no longer provide those
services to them Court said no standing b/c harm too speculative for causation. Don’t know if
change in IRS action would change hospitals treatment of indigents – hospitals may just
decide it would cost more to serve poor w/ tax benefit, than to just not serve the poor w/o tax
a. Note: If Simon just re-characterized the injury as impairment of opportunity, this may
have worked.
2. Re-characterize the injury to show causation
a. Regents of the University of California v. Bakke (1978) – not clear if affirmative
action program was what caused a white applicant’s rejection. But court said there’s
still standing b/c the injury he suffered wasn’t that he was rejected, but that he was
deprived of the chance to compete for every place, based on his race. So there is
causation for that.
b. Northeastern v. Jacksonville (1993) – affirmative action program gives preference to
minority business owners in winning gov’t contracting bids. Causation b/c injury was
not that he lost the bid, but that he lost a chance to fairly compete.
iv. Redressability – Injury must be likely to be remedied by a favorable court decision. The remedy
will solve the claimant’s injury.
1. Los Angeles v. Lyons (1983) – Π choked by police after being stopped for traffic violation;
police dep’t allows police to apply this life threatening choke. Π sues for injunctive relief
(stop this practice). Court says no standing b/c the redress would only be for future injury, &
too speculative whether Π would be injured again. Π didn’t ask for damages, if he did he
would have his past injury redressed.
c. Prudential Standing: 3rd party Standing Rule
i. This is a prudential rule – the court imposes limit on itself, so it can waive it whenever it wants.
ii. There’s a general prohibition on a litigant’s raising another person’s legal rights.
1. Tileston v. Ullman (1943) - denied standing to a doctor to assert his patient's rights in
challenging a state law prohibiting use of contraceptives
iii. But not always prohibited. Criteria for determining when 3rd party claims can be brought:
1. Power v. Ohio - upheld standing of a criminal Δ to assert the rights of a prospective juror not
to be dismissed from the panel on account of race. Court recognizes right to bring action on
behalf of a 3rd party when 2 criteria met:
a. Litigant must have suffered an injury in fact - giving him a sufficiently concrete
interest in the outcome of the issue in the dispute
b. Litigant must have a close relationship to the 3rd party
c. There must exist some hindrance to the 3rd party's ability to protect his or her
own interests (usually, but not always).
i. Craig v. Boren – statute says women can buy beer at 19, but men not until 21.
Storeowner permitted to assert equal protection rights of the men, to not be
discriminated against.
1. Π suffered an injury – less business (men are would-be customers)

2. Π has a close relationship – his customers
3. There’s not hindrance but court allows standing.
iv. Reasons for the rule – right-holder not asserting his right. So person asserting a 3rd party’s right may
not properly represent the injured party, b/c they don’t have a personal stake.
1. Not fair to hold later litigants to adverse judgment when not properly represented in the first
place. Also, issue of allocating judicial resources to best use – when someone has a personal
stake, they will fight better & the decision will be a better quality.
d. Status-based Standing Issues
i. Taxpayer Standing – Taxpayers generally don’t have standing based on that status alone; However,
Flast makes an exception when the taxpayer attacks an expenditure under Congress’s Taxing &
Spending Power which violates a specific constitutional limitation on that power.
1. Frothingham v. Mellon (1923) – federal taxpayer challenged a federal statute that provided
funds to states that create programs to reduce maternal & infant mortality.
a. 1st claim: this burdens Π by increasing future taxes. Court says no standing b/c no
injury. This interest in Congress’ spending money is an interest shared by everyone.
Generalized grievance; not particular to the Π. Recourse is the political process when
there are general grievances – go to Congress & complain about spending.
b. 2nd claim: it’s a taking of her property w/o due process of law. Court says no standing
b/c no direct connection. Effect on her is too remote & uncertain. Don’t know if
program will affect how much she pays in taxes. Usually gov’t just collects taxes,
then decides how to spend. They don’t collect more just for a specific funding.
2. Flast v. Cohen (1968) –federal taxpayers challenge federal spending on religious schools
under the religious clauses of the 1st amendment (gov’t money can't go to religion).
a. ***Court develops a test to determine taxpayer standing – in order to ensure
satisfies reqs of Art III.
i. a logical link between the status and the type of legislative enactment
ii. A nexus between the status and the precise nature of the constitutional
infringement alleged.
b. Test as applied in Flast:
i. Logical link satisfied - the constitutional challenge is made to Congress’s
exercise of their spending power (general welfare) & and the challenged
program involves a lot of federal spending from tax funds.
ii. Nexus satisfied – Πs alleged that the spending violates the 1st Amendment
(which operates as a specific constitutional limitation upon the exercise by
Congress their spending power).
3. Difference between Frothingham and Flast:
a. In Frothingham, there was no nexus between the status & the precise nature of the
constitutional infringement alleged. She alleged Congress has exceeded its general
power delegated, but doesn’t identify a specific limitation. But in Flast, the 1st
Amendment’s Establishment clause specifically limits Congress’ spending power –
can't spend on religion.
4. Applying the Flast test
a. Valley Forge Christian College v. Americans United for Separation of Church and
State, Inc. (1982) – taxpayers challenge fed giving surplus federal property to
religious organization. Claims it violates 1st amendment establishment clause.
i. Court holds that there’s no logical link between the status and the type of
legislative enactment attacked. Diff from Flast b/c here the challenged action
is not a congressional action limited by establishment clause, but rather an
agency action under the property clause, not limited by the establishment

ii. Prof says so what? Why should it make any diff, even though involving diff
clauses. Still contradicts the purpose of having the establishment clause
(prevent gov’t giving $ to religion).
b. Hein v. Freedom from Religion Foundation (2007) – Expenditures here not made
pursuant to an act of Congress, but Executive. They say that can’t have taxpayer
standing to sue over everyday exec action affecting religion, b/c too impractical, too
many lawsuits (prof says not talking about standing though). Dissent would apply
Flast and uphold standing. Same if either Exec or Legisl.
c. United States v. Richardson - no standing because challenge didn’t address a
constitutional power, but rather a CIA statute. Too generalized – everyone aggrieved
when gov’t violates this clause (accountability clause – public accounting of how our
money is spent).
d. Schlesinger v. Reservist committee to Stop the War - no standing because exec action,
not legisl. Incapability clause violated – can't be member of 2 branches of gov’t (in
Congress & hold an office). Too generalized – everyone aggrieved.
5. Generalized Grievances – some cases say not appropriate for JR – go to political process
a. Maybe issue is not whether grievance is widely shared, but instead that it stems from
personal constitutional rights (discrimination)
b. Prof - But what's the problem with just letting anyone sue? - it must be important
enough for them to spend the time and money in pursuing the lawsuit.
6. Local and State taxpayer
a. Frothingham - the interest of a taxpayer of a municipality in the application of its
money is direct and immediate.
b. But, Asarco Inc. v. Kadish (1989) - held that there's an exception to this rule for
municipal taxpayers - in that it doesn’t apply to state taxpayers unless there's proof of
a direct injury.
ii. Voter Standing – more likely to find voter standing than taxpayer standing; not considered a
generalized grievance
iii. Standing of Legislators – Lack standing unless there’s a personal injury
1. Coleman v. Miller – Congress members have standing over constitutionality of a law
Congress enacted, but only if their votes would have changed the outcome of the legislation.
2. But, in Rained v. Byrd, Congress members lack standing to challenge constitutionality of
legislation passed b/c the # of ppl who sued wouldn’t have changed the outcome of the
legislation to begin with.
e. Congressional Power to Create Standing
i. Congress can legally recognize by statute for someone to have a claim not otherwise recognized. If
Congress gives a specific right for something, it's creating an injury that didn’t otherwise exist. So
now you would have standing, because you have this right & injury.
ii. Lujan v. Defenders of Wildlife (1992) – Endangered Species Act required federal agencies to
consult with Secretary of Interior to insure that funded projects don’t threaten endangered species.
The Act (Congress) created standing so any person can sue.
1. Court said no standing b/c Πs weren’t personally affected by a violation of this act. No matter
what Congress does, still have to meet constitutional requirements, and there is no injury in
fact. Person suing must be aggrieved (personal injury)
a. Violates Separation of powers – it would transfer the power of the executive to the
court. Have to redress with the political process.
2. Lujan rejects the notion that Congress may confer standing wherever it choose, but
distinguishes. In cases involving actual injury, even if a generalized grievance, Congress may
confer standing. But where no injury, Congress can't confer standing.
iii. Massachusetts v. EPA (2007) – court found standing when state is challenging EPA’s refusal to issue
regulations on car emissions. Congress had impliedly created standing for a litigant that is accorded
a procedural right to protect his interest. But still, litigant has to show he was injured. The injury was

the loss of the state’s coastal land by rise in sea levels, which was exacerbated by lack of emissions
standards. There’s redressability b/c regulations on emissions would reduce the effect of global
warming. But criticism – Don’t really know that this is the cause; rather, there are so many sources
of global warming. It’s not certain that fixing this will solve the state’s problem.

IV. Timing of Adjudication: Mootness & Ripeness (Classical Rule – Separation of power; Judiciary
can’t step outside their enumerated powers)
a. Mootness – claim may have been good, but too late now to sue.
i. Ex: Law says gov’t can't quarter soldiers in your home during peacetime. Natural disaster, & soldiers
quartered in your home. By the time case comes before the court, soldiers are out. Your claim is
moot. Doesn’t exist anymore.
ii. DeFunis v. Odegaard (1974) – law school special admission policy violates equal protection. But Π
admitted into school already, & by the time case comes to SC, in his final year, and school said he
wouldn’t be affected regardless of outcome of the case. His case is moot. Determination by the court
is no longer necessary to redress his injury, already been cured.
iii. Possible bases of mootness doctrine
1. Like a bar against advisory opinions
2. No case or controversy anymore
3. Judicial economy
iv. Capable of repetition, yet evading review - when a statute directly applies to particular Πs only for a
short period, it may sometimes be difficult for Πs to prosecute a legal challenge to its conclusion
before the statute has ceased to apply to them.
1. Ex: Assert right to abortion. By time issue goes through court no longer pregnant & can't
have abortion – so no longer have a claim, it’s moot. But it would re-occur, and always evade
b. Ripeness – claim not ripe if it’s too soon to sue
i. United Public Workers v. Mitchell (1947) – Act prohibited federal civil service employees to
participate in certain political activities. Bunch of them sue – violates 1st amendment rights. But only
one of them actually violated the act; others just wanted to. Standing only for the one that violated
the act; since the others faced no direct threat, no standing for lack of ripeness.
ii. Pursuant to Art III, Courts don’t give advisory opinions. There must be a concrete legal issue, an
actual case or controversy – also applies to declaratory judgments.
1. Separation of powers – Courts can't decide on the constitutionality of acts of Congress unless
an individual interest is violated and requires it to be redressed by the courts. Otherwise
judiciary intruding on powers vested in another branch.

V. Advisory Opinions
a. Judicial power is limited under Art III to the resolution of "cases or controversies."
i. Protection is vested or legal rights
ii. The province of the Court is solely to decide on the rights of individuals
iii. Judicial review limited to the protection of identifiable and concrete personal rights (like CL courts)
iv. Courts don’t have the "special function" of "policing or advising Legislature or Executives," unless
individual rights were at issue
b. Virtues of limiting judicial review in this manner:
i. Provides concrete factual framing that both narrows the issues presented for resolution and ensures
that the issue is being argued by someone who has a stake in the matter
ii. Separation of Powers - It keeps the judicial role within historically accepted bounds and preserves
the separation of powers by preventing the judiciary from broadly interfering with the actions of the
legislative & executive branches.



I. Division of power between state and federal government

a. Why have state and federal governments?
i. Benefits of having both – creates a system where each can check the other
1. State - Diff cultural interests can express themselves in forming government accordingly
2. State - Like a laboratory - based on what people want
3. State - Closer to the people. Government more representative/responsive to the people
ii. Conflict exists between what the federal and state governments wants
1. If this happens, federal law trumps state law – Sovereignty Clause
2. But if federal doesn’t have the power to act, state law trumps
II. The Vesting Clause: Federal government power is granted by the Constitution
a. Article I vests all legislative powers “herein granted” in Congress. Congress’s powers are only those that
the Constitution grants. If the power isn't listed in the Constitution, Congress cannot act.
b. When does the federal government have the power to act?
i. First, determine whether the federal government has the power to act in the first place:
1. Federal grants of power
a. Art I, § 8 enumerates the legislative power
b. The Commerce Clause – source of most of federal’s power today
c. The Necessary and Proper Clause
ii. Then, look to see if there’s a constitutional limit or bar to the power to act
1. Limitations
a. Another constitutional provision that explicitly bars
b. Power expressly given to the states by the Constitution
c. The 10th Amendment - "The powers not delegated to the US by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people."
i. This might operate by cutting federal power before it reaches the full extent of
its breach. States stop the federal from acting, by exercising the power –
Checks & Balances scenario.
ii. Or it might operate by reserving for the states the particular sphere where only
states are allowed to act. Line separating who can act for what.

III. Implied Powers – The Constitution’s structure suggests the existence of implied powers beyond those
enumerated in the Constitution.
a. McCulloch v. Maryland (1819) – MA taxing any bank operating in the state without state authority, and
penalized a federal bank located in MA for not paying the tax. Federal government says they have a right to
create a bank & not be taxed. State trying to tax them out of existence, stop operating within the state. They
thought federal bank was an intrusion, and federal would get too powerful.
i. Federal government has the power to create a bank. The constitution does not explicitly grant this
right. But, it is implied. In order for Congress to carry out its enumerated powers, it is
necessary and proper to create the bank.

ii. Which enumerated powers? Specifically, under Art I, § 8, :
1. Need bank to collect taxes, borrow money, regulate commerce, raise & support army/navy
(the powers of the sword & the purse)
a. There are other ways to carry out these functions, but it doesn’t matter b/c it’s proper.
As long as it’s an efficient & useful way to do it. Also, court doesn’t really care if this
is the true purpose of the bank; all that matters is that Congress has the power to do it.
iii. The Necessary and Proper Clause Art I, § 8, cl. 18 – Power of Congress “to make all laws which
shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any Department or Officer
1. Even if no necessary & proper clause, it is implicit that if certain powers are given to
Congress, you’ll have to establish an agency to do it. Congress has the express powers, but
also have the implied powers necessary for carrying them out.
2. Who decides what’s necessary & proper? – Congress – they decided when they took
action. Court defers to Congress, not going to ask questions, as long within the realm of
rationality that the act is useful.
a. Congress can't go too far. If they created a bank in a way that would destroy the
states, b/c it was necessary & proper, this just violates the Guarantee Clause –
guaranteed to a Republican form of government. Although Guarantee Clause usually
political question, Court would prob step in. But court is not going to decide whether
it’s necessary & proper.


Art I, § 8, cl. 3: Congress shall have the power to regulate commerce . . . among the several states.

I. Development of Basic Concepts

a. Congress has plenary power over interstate commerce
i. Gibbons v. Ogden (1824) - Ogden has an exclusive right to navigate steamboats between NY
and NJ, given to him by NY state, & he makes $ by transporting ppl. Gibbons also navigating per an
act of Congress, so Ogden seeks an injunction.
1. Since The Commerce Clause grants Congress the power to regulate “commerce among the
several states,” the state statute is unconstitutional; Congress has plenary power over
interstate commerce.
a. Among the several states – between NY and NJ. It’s not the sale of tickets that’s being
regulated (which is done only in one state).
b. Commerce – court says commerce includes navigation – it’s intuitive. Can't have
commerce w/o navigation, so must be included. Court takes broad view of commerce.
ii. Plenary Power – this power is strictly vested with Congress; it gives Congress the sole power to
regulate interstate commerce. Full & complete; exclusive. This power cannot exist concurrently with
state power. This makes sense b/c each state would have diff laws and it wouldn’t work. So Congress
needs to be the one regulating.
1. Supremacy Clause - For there to be federal preemption under the supremacy clause, there has
to be conflict between state & federal; if no conflict, then have to comply with both. But this
is not a case preemption though, b/c the State just doesn’t have the power.
iii. Meaning of “Commerce” – normally, this means buying & selling. Gibbons broadened this to
include navigation. Paul v. Virginia (1869) held that insurance policies are not commerce. And Kidd

v. Pearson (1888) held that manufacture & commerce are different. Manufacture takes place within
the state; it’s a quintessential local activity, so its regulation is within state power.
iv. “Among the several states”
a. The Daniel Ball (1871) – a ship navigating exclusively within a state can be commerce
among the states, when its purpose was to transport goods destined for other states. The ship
was part of a bigger commerce – part of the flow of interstate commerce.
II. Foundations for Extending The Reach of Congressional Power
a. Congress has power to regulate channels of interstate commerce
i. The Lottery Case (1903) – Federal Lottery Act prohibited interstate buying & selling of lottery
tickets. Box of lottery tickets gets shipped from TX to CA, to be sold. Held that Congress can
regulate the traffic of the lottery tickets.
1. Congress is regulating the shipping of the lottery tickets (only that’s being done interstate,
not the buying & selling). The movement of tickets, from one state to another, is the
interstate commerce.
2. But Congress not regulating, but prohibiting it. Court says prohibition is a form of regulation.
Constitution doesn’t say Congress can't regulate by prohibiting. Congress regulating this b/c
gambling is immoral.
3. Dissent: Says lottery tickets like insurance policies – contingent Ks, so not commerce. Also,
if Congress is allowed to regulate everything transported from state to state, they’d be taking
jurisdiction away from states – too much power, creating a centralized government.
ii. Paul v. Virginia (1869) - held that issuing a policy of insurance is not a transaction of commerce, and
insurance contracts are not articles of commerce, even if issued in one state and shipped to another.
An insurance contract is an intangible contingent contractual right; only a piece of paper.
1. Insurance policy vs. lottery tickets - Both are intangible contingent contractual rights – the
right to get money if something happens. So, how do you reconcile these cases?
a. Lottery probably based on the morality issue, and has nothing to do with the
Commerce Clause. The cases are inconsistent.
iii. Commerce clause as source of national police power
a. Commerce clause probably not intended by framers to regulate moral activities as well as
economic ones. But still, if there’s an economic reason as well as the moral one, then it’s ok.
If only moral, then it wouldn’t fly.
b. Congress later used Commerce clause to regulate commodities and activities "injurious, not
to that commerce or to any of the agencies or facilities thereof, but to the health, morals,
safety, and general welfare of a nation"
iv. Channels of interstate commerce:
1. interstate shipment/movement
2. interstate transportation
3. interstate navigation
4. interstate buying and selling
5. interstate flow of intrastate commerce
b. Congress has power to regulate intrastate activity to protect the common instrumentalities of
interstate commerce
i. The Shreveport Case (1914) – Texas railroads were discriminating in the rates they charged
interstate traffic as opposed to intrastate traffic (favoring intrastate). Congress decides to fix both
rates via the Interstate Commerce Commission.
1. There’s a need for uniformity of the rates for interstate & intrastate; this will affect interstate
commerce by inhibiting it (much more expensive, so more favorable to just distribute goods
2. Congress can regulate to prevent the common instrumentalities of interstate & intrastate
commerce from being used in their intrastate operations to the injury of interstate commerce.
a. Common instrumentality – the railroad; all using same tracks, cars, etc.

3. The Shreveport court said that Congress has power to regulate intrastate activity when
there is a close and substantial relationship to interstate commerce.
4. This is a purely economic regulation.
ii. "Current of commerce" concept, also “Stream of Commerce”
1. Stafford v. Wallace - upheld federal regulation of rates and practices in local buying and
selling. Court reasoned that the regulated activities, while intrastate, because of "current of
commerce" - the acts would probably create a direct and undue burden on interstate

III. Regulation of National Economic Problems

a. Limitations on Commerce Power Through 1936
i. Hammer v. Dagenhart (1918) – Court held that Congress exceeded its commerce power when it
prohibited interstate transportation of products from factories using child labor.
1. The Lottery reasoning doesn’t apply b/c nothing is wrong with the goods themselves, it’s just
Congress wants to curtail child labor done intrastate.
a. But then, what’s actually wrong with the lottery tickets? Just a piece of paper, it’s the
activity behind it that’s bad. So this reasoning isn't so great.
2. But court distinguishes btwn manufacture & commerce. This is a regulation of manufacturing
done in the state, so Congress doesn’t have power to regulate.
3. Another argument is made that using the advantage of child labor (current of commerce idea)
gives the state an unfair advantage. But court disagrees, saying it’s not within the purpose of
the commerce clause to equalize competition. Otherwise, Congress would have too much
b. Constitutional Struggle: The New Deal v. The Great Depression
i. The New Deal legislation sought to give the federal government more powers in order to get the
country out of the depression. At first, court wasn’t having it.
1. Schechter Poultry v. United States (1935) – struck down a code adopted under the National
Recovery Act, to regulate the NY poultry slaughtering market, where 96% of poultry came
from other states; but the actual activities regulated all done in NY. The regulated conduct
had no direct effect on interstate commerce.
2. Carter v. Carter Coal (1936) – Used Schechter’s direct effect test, and held that the
Commerce Clause didn’t give Congress the power cannot to regulate labor in coal
production. But the coal will be used outside the state. Close & substantial means there’s a
direct connection. It’s the proximity to interstate commerce that determines this. Here it’s an
indirect effect. this activity - beyond commerce clause power.
ii. So President Roosevelt packs the Court – he appoints his own people for every Judge over 70; these
Judges will agree with Roosevelt. Congress has this right, & they’re going along with the President.
But this court packing ended up not being necessary; justices changed sides to agree with President
(the switch in time saves nine). The NLRB case broadened the scope of the commerce power.
1. NLRB v. Jones & Laughlin Steel (1937) – upholds the National Labor Relations Act of
1935. Court opens scope of what's close & substantial. If it substantially affects interstate
commerce, even if indirectly, Congress has power under the commerce clause.
c. Expansion of Commerce Power after 1936
d. Congress has power to regulate intrastate commerce when it substantially affects interstate
i. United States v. Darby (1941) – The Federal Labor Standards Act regulated employment conditions.
Upheld Congress’s power to regulate under the commerce clause.
1. The interstate regulation here was that it prohibited shipment of goods manufactured in
violation of the Act – this is within Congress’s plenary powers, & it doesn’t matter why
Congress did it, even if just for a moral reason.
2. Intrastate Regulation – because the goods being produced locally will be sent into interstate
commerce. Congress is regulating the goods going out of state.

a. There has to be a substantial effect on interstate commerce. But it’s for Congress to
decide whether this is the case – whether intrastate regulation is appropriate in order
to advance some legitimate commerce clause reason. Now, Congress has very broad
3. Substantial Relationship = Substantially affects – Also called affects power (really the
necessary & proper clause power).
4. See how diff it is with the Dagenhart case, where court said manufacturing is done strictly
within the state, so unable to regulate under commerce clause.
ii. After Interstate commerce ends
1. United States v. Sullivan (1948) – pills are bought in bulk and resold in smaller quantities, all
locally, by a retail druggist. Federal regulation violated for not labeling pills properly. Upheld
regulation under the Commerce clause
a. The pills themselves traveled in interstate commerce.
b. Criticism - But it’s not the pills being regulated it’s the packaging. In another case,
they reasoned that it’s impractical to regulate while in interstate travel, so must
regulate while actually on the shelf in a state. But that reasoning won't work here b/c
the container itself never traveled interstate – just the pills.
iii. In the Aggregate - Although each instance will only trivially affect interstate commerce, in the
aggregate it can be a substantial effect.
1. Facial challenges – where the act in itself if challenged. But also another argument that it’s
unconstitutional as applied to a specific circumstance. So under the Commerce Clause, the
local activity has to have a substantial affect on interstate commerce. Well, for each
individual instance, the effect may be trivial, so argument is that it’s unconstitutional as
applied in those circumstances. But it’s still constitutional. The court will aggregate the entire
class of activities and decide whether in total it affects interstate commerce. If in the
aggregate it’s a substantial affect, the Congress can regulate.
a. Wickard v. Filburn (1942) – allows Congress to regulate wheat production intended
solely for consumption on the farm – they weren't selling it. Reasoning is that if you
grow it yourself, you’re not buying it, and this affects interstate commerce.
Substantial affect in the aggregate.
b. Maryland v. Wirtz (1968) – Federal minimum wage law for any business engaged in
interstate commerce. Issue is how this applies to local schools. Reasoning is if you
don’t pay ppl enough, they strike; if not working, institutions shut down, & fewer
goods bought from interstate commerce.
i. VERY TENUOUS connection, but court allows it.
1. But we don’t want Congress to be able to regulate everything, and if
we allow such a tenuous connection, everything can come under the
commerce clause, and Congress will control everything.
c. Perez v. United States (1971) – upholds federal regulation of loan sharking, even
though purely local activity. Organized crime affects the whole nation. Doesn’t matter
if each instance is trivial, because in the aggregate, it has a substantial affect.

IV. Civil Rights Protection through the Commerce Clause

a. Heart of Atlanta Motel, Inc. v. United States (1964) – Π motel by interstate highway; majority of guests
from out of state. They discriminate based on race, violating the Federal Civil Rights Act. The Act entitled
everyone, regardless of race, same access to public accommodations – defined as place that serves transient
guests and whose operations affect commerce.
i. It doesn’t matter that Congress was only trying to legislate against moral wrongs. Evidence that the
discrimination impedes interstate travel, & interstate commerce, so within scope of the commerce
power, b/c intrastate activity has a substantial effect on interstate commerce.
ii. Equal Protection Clause (14th Amend) – Couldn’t be used here b/c it only protects ppl from states,
not from other individuals.

b. Katzenbach v. McClung (1964) – Civil Rights Act applies to restaurant using discriminatory practices;
located close to interstate highway (although served mostly local clientele). Affected interstate commerce
b/c less was consumed b/c they didn’t serve minorities, & so less goods bought from interstate commerce.
Discrimination also discourages those discriminated against from traveling, affecting interstate commerce.
Although in this instance, trivial, becomes substantial in the aggregate. Court also says it’s up to Congress
to decide if the regulations they impose are necessary to protect commerce; as long as there’s a rationale
basis for it, Court will defer.

V. New Limitations at the end of the 20th Century: Commerce Clause power is limited again
a. United States v. Lopez (1995) - First case since the new deal that Court overturned Congressional power
via the commerce clause; Court struck down federal law making it unlawful to possess a gun near a school.
b. United States v. Morrison (2000) - Violence against Women Act provided civil remedies for victims of
gender-motivated violence.
i. No interstate commerce involved in gender-based violence. So focus is on whether the regulated
activity has a substantial affect on interstate commerce – Court says no.
1. The violence only has an “attenuated” and indirect effect on commerce, not a direct and
substantial one. The reasons Congress gives are too remote in a causal connection, so it
doesn’t prove there’s a substantial effect.
ii. 10th amendment - There must be limits to using the commerce power to regulate b/c then it would
obliterate state sovereignty/autonomy, creating a centralized government. If this connection is
allowed, then under the same reasoning, Congress can regulate virtually anything, including powers
normally designated to the states (crime, divorce).
iii. Concurrence talks about how a broad use of the commerce power is inconsistent with the original
understanding of it – when it had a much narrower definition.
iv. Dissent: Big problem with gender-motivated violence that Congress should be able to address (like
Civil Rights Act). In the aggregate, it does have a substantial affect (woman who are beat up can't
work, not productive – affects interstate commerce). Question of boundaries of commerce clause is
up to Congress to decide, b/c it should be the political process that protects states from overreaching
federal power, not the courts. Congress more accountable to ppl & to the states (state’s reps
represented in Congress). Therefore, Congress more likely to protect state’s interests. No state
representation in court.
c. Substantial Effects – like proximate cause. Relationship between regulated activity & interstate
commerce must be strong enough or close enough to justify federal regulation.
i. Gonzales v. Raich (2005) – upheld Congress’s power to ban marijuana use & cultivation, even when
states approve it for medical use. The cultivation & personal use of marijuana here – court says this
is an economic activity (? Maybe). Since federal can regulate the interstate, they can regulate the
intrastate b/c so closely linked. Also, federal law trumps the state law that allowed it.
1. Concurrence invoked the Necessary & Proper Clause – In order to affect the larger interstate
activity, Congress must be able to regulate the local activity, which could make its way into
the illegal interstate market.

Basis for Congress’ power under the Commerce Clause:

1. Plenary power over interstate commerce (Art I, § 8, Cl. 3, Gibbons)
2. Channels of interstate commerce (Lottery, Darby, Heart of Atlanta)
3. To protect the common instrumentalities of interstate commerce (Shreveport)
4. Intrastate regulation when it substantially affects interstate commerce (Darby, Jones & Laughlin)


Art I, § 8, cl. 1 - grants Congress power "to lay and collect taxes, duties, imposts and excises, to
pay the debts and provide for the common defense and general welfare of the United States."

I. Regulation through taxing: Purpose of the taxing power is to raise money. At first, courts say you
can't use it as a pretense for regulating. But this limitation has been rejected more recently.
a. Bailey v. Drexel Furniture Co. (1922) – (Child Labor Tax) First, court decides that Congress doesn’t have
the power to regulate child labor, under the commerce clause, b/c it infringes on state power. So to get
around it, Congress imposes a tax on people violating those regulations. Court says this is unconstitutional
b/c its purpose is not to raise money, but to punish by imposing a penalty – to regulate by controlling
behavior. The taxing is a pretext for the actual regulation.
i. Evidence that Congress is actually regulating rather than just collecting taxes:
1. Need knowledge of worker’s age (scienter) in order to be taxed. If they care about whether
person being taxed knew what they were doing, shows that Congress actually more
concerned about the behavior.
2. No proportion between number of violations and amount of tax due. Looks more like
regulation – they don’t want this being done at all.
3. Employer subject to inspection, not just by tax collector, but by the dep’t of labor. Dep’t of
labor is a regulatory agency – shows intent to regulate behavior.
4. Specific activity being targeted is a very narrow class that subjects you to the tax/fine. The
more detailed the class of activity required to impose the tax, the less likely you’ll impose the
tax – and the less likely you’ll actually collect money.
ii. Criticism – We want to raise money, so tax cigarettes. Always target tax on bad things, b/c the public
will back you up on it – even if purpose is to raise revenue.
1. But it really does look like a regulation considering the history, where court first overturns
the regulation.
b. United States v. Doremus (1919) – Congress imposes $1 tax and requirement to register with feds anyone
selling/manufacturing narcotic drugs. Clearly the purpose was to regulate the activity (only $1) – how
much can really be raised. Also, most offenders were illegally trading – so the purpose was to be able to put
ppl in federal jail for violating it. But court upholds it.
c. United States v. Constantine (1935) - followed the Bailey reasoning, and found that Congress was
attempting to usurp police powers by taxing liquor businesses operating contrary to state law 10-40 times
more than other liquor businesses.
i. However, because of the broad powers Congress' got for regulation via the Commerce clause
afterwards, they didn’t really use the taxing power for regulatory purposes. And since Constantine,
no other federal tax has been invalidated because deemed a regulatory motive outside federal power.

II. Regulation through Spending – Purpose of spending power is to provide for the common defense
& general welfare. At first, courts held that the spending power cannot be used to purchase a
compliance which Congress is powerless to command (looked to see if states are being coerced into
behaving in a certain way). More recently, the restriction been abandoned; spending power becomes
more broad.
a. The Spending Power
i. Narrow view - spending limited to the exercise of other enumerated powers.
ii. Broader view - Taxing & spending is limited only by the general welfare.

b. United States v. Butler (1936) – Congress taxes agricultural commodities, & redistributes the funds the
farmers who promised to reduce their acreage (the prices were too low & farmers can't make it, so it sought
to raise prices to help farmers).
i. Congress says the source of their power to act is the spending clause. But court says it’s
unconstitutional, b/c the spending is being used to regulate agriculture, & Congress’s power is cut off
by the 10th amendment- agriculture reserved to the states.
ii. Individuals are being coerced into acting how the federal government wants them to – This is taking
power away from the state to decide how to regulate farming within the state. State loses a policy
option b/c federal law took over, in an area reserved to the states, & if state wants to make own laws,
federal law would preempt.
1. Coercion – it’s not mandated, but there’s a tremendous incentive to join the program (gov’t
giving you money to do nothing), so farmers will comply.
a. Prof says not necessarily coercion – a farmer may not comply & end up making more
money b/c the price just went up but he still produces same amount.
c. Steward v. Machine Co. v. Davis (1937) – Employers must pay money towards federal tax, but they can get
90% credited back if they pay taxes to a state unemployment fund, but only if the state unemployment fund
complies with federal standards. Purpose was to help unemployment (during Depression).
i. Court holds that the Act is fine; doesn’t intrude on state’s power - no coercion. That’s b/c whether or
not the employers paying into the state unemployment fund, it will not affect whether the state has to
comply with federal standards. Employers will want state to comply, but the state doesn’t have to.
ii. Spending power being used to promote for the general welfare. Almost anything can constitute
spending for the general welfare. Court will normally defer to Congress on this issue.
d. South Dakota v. Dole (1987) – federal law withheld 5% of federal highway funds from states that didn’t
adopt a 21 yr old minimum drinking age. Court said law is valid – no coercion.
i. Limits of Congress’s spending power:
1. Must be in pursuit of the general welfare
a. Clear that it is – make highways safer by reducing drunk driving by young adults
2. Must be unambiguous, so states know what will happen if they don’t comply.
a. Clear – 5% of federal highway funds will be taken away
3. Has to be related to a federal interest
a. Court imposes a germaneness requirement – federal spending cannot be conditioned
on something unrelated.
b. Court says yes, but it’s arguable how related the drinking age is to highway safety; a
bit too attenuated – Dissent said not reasonably related.
4. There isn't another constitutional provision that bars it (like 10th amendment)
a. 10th amendment not being violated – b/c no coercion. It’s a voluntary program &
amount of money is not too significant to coerce states into complying (only 5%).
States don’t have t adopt the program.
i. Prof says still can be coercive. Federal taxing takes away some ability for
states to tax (b/c ppl will only allow gov’t to tax us to a certain amt).
e. Sabri v. United States (2004) – Spending Power used very broadly. Held that, under the spending power,
Congress can make it a crime to bribe a state or local official whose gov’t agency receives at least $10K in
federal funds in any year (even if the bribe & federal funding has nothing to do with each other).
i. Congress has power under the Spending Clause to appropriate money to promote the
general welfare. Under the Necessary & Proper Clause, Congress has the power to use
this measure to make sure that the federal funds are going where they’re supposed to
(not given away as bribes).
1. But here, the federal funds weren’t being given away as bribes – bribe has no
connection to federal funds. Court says it doesn’t matter b/c it’s within
Congress’s power to prohibit all bribes to all federally-funded organizations (b/c
proving the exact connection would be impractical).


I. Treaties as a source of legislative power

Art. II § 2: "[The President] shall have power, by and with the advice and consent of the
Senate, to make treaties, provided two thirds of the Senators present concur…"

Art VI: "This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and the judges in every state shall be
bound thereby, anything in the Constitution or laws of any State to the contrary

a. Treaty-making power - made by President, with advice and consent of 2/3 of Senate.
i. The treaty clause only gives right to make treaty, binding only between U.S. & other countries. It
infers the right for it to be self-executing (automatically become domestic law), b/c of the
Supremacy Clause. But the House is not involved with making treaties, so how can they become
valid domestic law?
1. Possible policy argument - senate in better position to get involved in international matters
than House. House more accountable to people, closer for the people. So House is more
parochially tied, and more representative of the people, so good for making domestic laws.
But still not involved here.
ii. 10th Amendment
1. Missouri v. Holland (1920) - Treaty with Canada which protects certain species of
endangered birds. Under Art II, this is a valid treaty. Only issue is whether this is forbidden
by the 10th amendment, but under Art VI, treaties are the supreme law of the land. There is a
national interest here in the protection of these birds, and it’s not sufficient to rely on the
states. Treaty here is not self-executing. It needs an act by Congress to make it domestic law
– which it does, and it is necessary & proper to enforce this treaty, b/c it’s enforcing an
express power of the federal government.
b. Scope of treaty power – The scope of treaty power can be very broad, and the government can enact a law
just by entering into a treaty. Federal can use it as a means of regulation, outside of the power they actually
have, b/c treaties always trump. But they still have to be constitutional.
i. Judiciary limiting treaty power
1. Limiting it to only matters of international concern.
2. Treaty power is also limited in that it has to be made pursuant to the Constitution
a. Cannot be inconsistent with any specific constitutional provisions.
II. Other bases for legislative power over foreign affairs
a. Art I, § 8 (Scope of legislative power - only pertaining to foreign affairs)
i. To regulate commerce with foreign nations
ii. Define and punish piracies and felonies committed on the high seas, & offenses against the law of
iii. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and
iv. Raise and support army and navy

b. Perez v. Brownell (1958) – federal statute mandated loss of citizenship for voting in a political election in a
foreign state. Upheld, b/c there’s an implied constitutional power to enact legislation on an issue affecting
foreign affairs, b/c for government to function effectively, they have to be able to affirmatively deal with
foreign affairs. It’s not practical to make a treaty every time government has to deal with foreign affairs.
i. Here, Congress was regulating to prevent tension risked by citizens participating in the political or
governmental affairs of another country.


I. Federal Immunity from State taxes

a. McCulloch v. Maryland (1819) – held that MA’s taxes on Federal bank was invalid. Bank is immune, b/c
it’s owned by the federal government, and it was like state was taxing the federal government. Federal
government is immune from state tax.
i. A tax on the federal government would give the state the power to destroy it, therefore, it would also
have the power to control it. States cannot have this power. The Constitution is the supreme law of
the land, and doesn’t allow this.
ii. Collector v. Day - Early on, this immunity was reciprocal. States were immune from federal taxation.
This was abandoned in 1938.
II. State Immunity from Federal Taxes – There is no absolute state immunity from federal taxation, like
the reciprocal. The state and its entities are generally immune from federal taxation, with some exceptions.
a. State revenue may be taxed by the federal government if the revenue from the state activity is not
uniquely capable of being earned by the state.
i. New York v. United States (1946) – court upholds federal taxes on NY’s sale of mineral waters,
which were bottled & sold by the state to provide funds for a state health resort. As long as Congress
taxes a source of revenue that is not uniquely capable of being earned only be the state (like deriving
income from taxation), the Constitution does not forbid it merely b/c it falls on the state.
1. Some Justices want a broader state immunity b/c tax may be interfering with the State’s
2. Dissent says just b/c state enter into private enterprises doesn’t mean federal can tax them.
b. Federal government can tax revenue generating activities of the state that are of the same nature as
those of private enterprises, even if the proceeds from the activity go to essential state functions.
i. Massachusetts v. United States (1978) – upheld tax on all civil aircraft that fly in navigable U.S.
airspace, including aircraft owned by state and used it exclusively for police functions.
1. The law is non-discriminatory, in that it applies to everybody (state, private individual) that
has aircraft, and doesn’t apply just to the states. It's not a law in effect only to destroy state
power; not targeted at government operations.
2. Also, it doesn’t impinge on important governmental objectives, and also the states are
represented in the political process by Congress, so they are not being burdened by the tax.
3. Therefore, federal government can tax revenue-generating activities of the states that are of
the same nature as those of private enterprises, even if proceeds from activity go to essential
state functions.
III. State Immunity from Federal Regulation
a. Recognition of State Autonomy – Early on, Court gave federal government power to regulate the states
via the commerce power, even if it interfered with state functions. Court later overrules this in Usury,
saying that the commerce power cannot dictate how a state operates its essential state functions.
i. Maryland v. Wirtz (1968) – upheld Fair Labor Standards Act as applied to state schools and
hospitals, b/c it only interfered with state functions to the extent that the activity affected commerce.
Just b/c run by the state for benefit of their citizens doesn’t exempt them.

1. Dissent – state sovereign power is severely being tampered with and being potentially
crippled. B/c states pay wages from the state budget. Now that the state can't decide how to
spend their money. So basically, federal telling them how to spend it.
ii. National League of Cities v.Usery (1976) –. Federal minimum wage law applies to state employees.
Court says the commerce power cannot dictate how a state should operate its integral operations
(overruling Wirtz). Same reasoning as the dissent in Wirtz – The economic burden is now placed on
the states by the federal government, and this interferes with the state’s ability to structure its integral
operations in areas of traditional governmental functions.
b. Then the Court overrules Usury and upholds the Fair Labor Standards Act
i. Garcia v. San Antonio Metropolitan Transit Authority (1985) – court upholds application of the
Fair Labor Standards Act wage and hour provisions to a municipally owned and operated mass
transit system.
1. Reasons why the court changes its mind:
a. The political process is adequate to protect the states.
b. Impossible to draw a clear line on whether something is a traditional state function
c. Judiciary is making decisions that should be done by the legislature, letting unelected
federal Judges decide which policies were important and not. This is not a role for
federal Judges – instead for state policy makers
2. Are these good reasons for Blackburn to change his mind?
a. It’s good for court to change their minds b/c times have changed, but these arguments
have always been around.
b. Test was unworkable – doesn’t make sense to stick to something just because/c it was
decided if it’s unworkable.
3. Problem: But we need consistency in the system. If we allow the law to change whenever,
then there won't be any stability in the law. If not, each case will come out different, and this
opens up the door for political manipulation.
4. RULE: The states will be able to protect themselves in the political process. The only
limits in the constitution on the federal government impinging on states powers, is
procedural only, and political process will enforce that, Courts will not enforce it.

c. Federal government can't impose obligations on state officers b/c it violates the separation of powers
i. Prinz v. United States (1997) – federal law said that state & local law enforcement officers had to do
background checks before guns could be purchased, if possible, until federal government could build
its database. Held unconstitutional b/c federal government can’t impose obligations of state officers.
1. Reasons why federal can't impose obligations on state officers:
a. No textual provision or historical practice covers it
b. Violates the separation of powers horizontally within the federal government – by
taking away power from the executive and giving it to state officials. Upsets balance
between Congress & Executive.
c. Violates the separation of powers vertically between state and federal government.
Congress using state police power for its own use, telling them what to do to enforce
a federal program.
2. Both separation of powers argument are a structural argument – violates the presupposed
structure of the government (b/c it doesn’t directly violate anything in the Constitution)
3. Also a policy argument – there’s no accountability. If program fails, federal government
doesn’t get blamed, the state police do, b/c they’re administering it.
4. Dissent – But what about emergencies? There the federal government will try to co-op state
resources to solve emergency situations; b/c state governments can't do this themselves. So
maybe you can do this in emergencies.



I. Internal Matters: Domestic Lawmaking

a. Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case] (1952)
i. There are three categories of circumstances in which the President may act:
1. Highest ebb of power: President acts in accord with Congress. Maximum authority b/c
acting under his congressional powers, plus those powers delegated by Congress. If this
is the case, there is a strong presumption that President’s actions are constitutional.
2. Mid Spectrum: President acts under his constitutional powers, and Congress is silent.
Whether President’s actions are constitutional is unclear – so one way is to look at
history to see if Congress has been a persistent objector, or whether they’ve acquiesced.
(Dames-Moore v. Regan)
3. Lowest ebb of power: When President acts in ways contrary to Congress. Here, maybe
President has overstepped its authority; President has burden to prove otherwise
(Youngstown case)

ii. During Korean War President seized most of the nation’s steel mills so that steel workers don’t
strike (expected), b/c a strike would have jeopardized the national defense. Congress had given him
the power to seek an injunction against such strikes, but rejected permitting government seizures.
President is acting under his lowest ebb of power, where he is using his independent powers, but
contrary to Congress.
1. Court says he cannot use his constitutional powers to seize private property.
a. Const’l authority as Commander in Chief to see that all laws are faithfully executed –
but this power only extends over the military, not private property. Executive has
power only to enforce laws, only legislature has power to create them.
i. Congress has sole authority to order seizures. They get this power from the
Necessary & Proper Clause (support army), and the Commerce Clause
(substantial effects doctrine on interstate commerce in aggregate).
b. Statutory authority (given by Congress) – can’t be implied b/c Congress specifically
considered it previously, and decided not to give the president this authority.
2. Dissent: Argues there’s an implied authorization for this power.
3. This was a plurality decision – so what happens is that courts follow the least common
denominator. So lower courts would interpret Youngstown as standing for the proposition that
the constitution and congressional statutes are two sources of Presidential power
b. Dames & Moore v. Regan (1981) – Iran takes American hostages. In response to the crisis, President issues
order that froze Iranian assets in the U.S. Iranian gov’t terminates contract with Dames (business), and
Dames sues for payment of work completed. But then U.S. negotiates with Iran to get hostages back. Part
of the agreement was that it nullified rights to Iranian assets, and terminated all present litigation, and go
instead to arbitration. Dames sues b/c he can't recover. Does President have these powers?
i. Power to nullify rights to Iranian assets – This falls under Youngstown’s first category, b/c Congress
(IEEPA) gave President this power. So heavy presumption this is constitutional.

ii. Terminating litigation and requiring arbitration – This falls under Youngstown’s second category, b/c
Congress is silent. Court looks at history and sees that President has done this before and Congress
had acquiesced (agreed passively). Implicit consent here.
1. Diff from Youngstown, b/c there Congress had rejected giving the President this power, but
here Congress was silent.
c. Medellin v. Texas (2008) – Treaty specifies that when nationals are abroad & accused of crime, they must
be notified of their right to use embassy. Medellin is a Mexican national convicted of a crime in TX.
President asks TX court to comply with the int’l treaty, but TX refuses. Mexico goes to ICJ for a judgment
against the U.S. President trying to keep the peace, and orders the TX court to release him. The treaty was
no self-executing, therefore Congress would have had to enact it to make it domestic law, but they didn’t.
Therefore, the President is acting at the lowest ebb of power pursuant to Youngstown, b/c by Congress not
enacting it, they explicitly denied authorization. Also, there’s no unlike Dames, Congress wasn’t silent, so
no presumption of assent b/c of historical practice. Held that President’s power doesn’t stretch so far.

II. External Matters: Foreign Affairs and War

a. United States v. Curtiss-Wright Export Corp (1936) – Curtiss conspires to sell weapons to Bolivia, who
was involved in the Chaco war. There was a joint resolution of Congress that gave the President broad
foreign affairs power, and prohibited what Curtiss did. Curtiss says this violates the non-delegation
doctrine. But court says this is constitutional.
i. The Constitution implicitly grants the President the power to conduct foreign affairs. Although
constitution gives Congress the power to declare war, the President has foreign powers to
receive/appoint ambassadors, & sign/negotiate treaties, so it’s a mixed power.
ii. Functional necessity argument –Need the President to be the unified voice for foreign affairs. Plus
President has expertise in foreign affairs that Congress doesn’t, & it’s custom for President to have
this power
iii. Therefore, the non-delegation doctrine doesn’t even apply, b/c Pres already had this power.
b. Campbell v. Clinton (2000) – After Vietnam Way, Congress enacts War Power Resolution which says Pres
can send troops, tell Congress, & Congress decides whether to to go to war, if not troops come back.
Conducting war needs speed, so Pres gets power b/c he can act quickly, decisively and efficiently; Congress
takes too long, but Congress still has final say on war. Pres wants to declare war, but Congress says no
(pursuant to WPR). Pres vetoes Congress; & says WPR is unconstitutional b/c it takes away Pres’s powers.
Court dismissed for lack of standing.
i. But they can also say non-justiciable b/c of political question:
1. Absence of standards – no clear way for Court to decide what constitutes war
2. Textual Commitment – Power to declare war given to Congress; power to act given to Pres
3. Need for finality – Pres ant leave just b/c Congress said no.
c. “War Powers” - The phrase "war powers" does not appear in Constitution, but describes a cluster of
powers exercised by Congress or the President

III. Individual Rights and the War on Terrorism

a. Hamdi v. Rumsfeld (2004) – After 9/11, Congress (AUMF) authorized Pres to use all necessary &
appropriate force against nations, orgs, or persons he determines planned/authorized/committed/aided
attacks. Hamdi, U.S. citizen, was seized in Afghanistan when the military went there; held him but never
charged him with anything. His father files writ of habeas corpus; gov’t holding Hamdi in violation of 5th
amendment. Also violated non-detention act (can't imprison or detain citizen except by act of Congress).
Gov’t says pursuant to AUMF, they can hold him indefinitely w/o bringing any formal charges.
i. Plurality (O’Connor) – Congress authorized Pres to do this pursuant to AUMF. But
there’s a constitutional due process problem. Due process requires a trial so he can rebut
his status as an enemy combatant. Once that status is established, he can be held
indefinitely. There could be emergency powers to hold someone w/o trial, but only if
authorized by Congress.

ii. (Souter) – disagrees with O’Connor. The detention is not authorized by the AUMF, so
although Congress could authorize it, they didn’t. AUMF is not a clear authorization to
detain; it must be read narrowly. Otherwise, it would be an unchecked power for Pres.
iii. (Scalia) – Unless Congress suspends the writ of habeas corpus, you can't detain a citizen
indefinitely w/o charges.
iv. (Thomas) – Ok to detain Hamdi. Pres is acting within his inherent powers of foreign
affairs and emergency (war).
b. Hamdan v. Rumsfield – Same situation as Hamdi, but not a U.S. citizen. There is no presidential power, b/c
it’s not authorized by Congress. Concurrence adds this isn't an emergency, implying you don’t need
Congress’s authority if there’s an emergency. Another concurrent opinion (not in book) talks about (1) the
risk of tyranny, (2) separation of powers supposed to avoid this exactly, (3) implies that if there was some
great exigency, then maybe.
c. Boumediene v. Bush (2008) – U.S. detaining a bunch of foreign nationals designated as enemy combatants.
Law gives DC district court habeas corpus jurisdiction to review lawfulness of those detained. Congress
also enacted MCA to strip all U.S. courts of habeas corpus jurisdiction of Guantanamo detainees. Congress
then sets up CSRT (dept of defense) to review the cases, & if they decide DC court can review, only then it
will. Majority says this is unconstitutional, b/c everything is going on in one branch. Dissent says it is
constitutional, b/c there is a judicial court that can review it.


I. Delegation of Rulemaking Power

a. Non-delegation doctrine
i. Art I, § 1 grants the power to make law to Congress.
1. Why Congress? – Congress most closely tied to the ppl; we want our views to be
represented, and b/c Congress is accountable. Also, consistency.
ii. Congress cannot delegate its powers to another branch.
b. Delegation to agencies
i. However, Congress can delegate some of its authority to agencies. Congress can do this b/c it enacts
a statute that delegates that power to an agency, & sets up standards/rules for the agency to follow.
The Agency is simply implementing Congress’s statute. So the theory is, Congress is not actually
giving away its power, but telling the agency what it has to do. In reality, though, the standards
Congress sets forth when delegating are extremely broad. You would think they would be narrow,
b/c delegatee is merely executing.
ii. Congress' delegations will be upheld if Congress furnished an "intelligible principle" that rule-
makers are bound to follow
1. Yakus v. United States (1944) - WWII emergency price control act authorizes president-
appointed administrator to carry out act’s purposes. Court says this is fine. Congress has
stated it’s legislative objective, prescribed a method for achieving it, & laid down standards
to guide the administrative determination. So it’s sufficiently narrow.
c. Policy
i. Delegation may lead to arbitrary decision-making. Usually laws decided by diverse group of ppl
(Congress), & giving power to an agency will remove the check on arbitrary rule.
ii. However, delegation enhances accountability.
d. Reasons for delegation
i. Need for efficiency and expertise in the administration of government programs. Congress can only
do so much; if they can delegate, more can be done.
ii. Congress may not be able to deal with the specification of specialized and complex issues
iii. Congress may delegate b/c it doesn’t want to be held accountable for the details.

II. Legislative and Line Item Vetoes
a. INS v. Chadha (1983) – Immigration & naturalization act authorized Attorney general to suspend
deportation of an alien if he met a specific condition & would suffer extreme hardship if deported. Also
authorized either house of Congress to invalidate those rulings. Attorney Gen suspends Chadha’s
deportation & House disagrees. Held that the House veto is unconstitutional.
i. The provision of the act authorizing either House to veto decision was unconstitutional.
1. Violates bicameralism (having 2 legislatures, senate & house) – b/c act only requires one
house of congress to veto
2. Presentment – the process of bill-making wasn’t there when they vetoed it
a. Berger says the legislative veto was lawmaking – b/c legislature is giving power
away, but reserving a check on the delegated power – so it was their power to begin
with. When Congress gives power to delegatee, with the intelligible principle guiding
the agency, it’s the same as if Congress was making those decisions. And that was
made with bicameralism & presentment, so if needs to be changed, must be done
same way.
ii. Concurrence: (Powell) Court needs to decide this, not legislature or exec. This power given to
judiciary. Can't have a trial by legislature.
1. Separation of power – the more you divide, the less danger of tyranny. Purpose f the
separation of powers;
a. Prevent tyranny
b. Accountability (also prevent tyranny)
c. Promotes efficiency (experts in each branch)
d. Maintain consistency/stability
2. Function Argument – there’s just no problem of tyranny by doing this
a. No real danger of tyranny here b/c Congress is not giving itself more power than it
already had. Even if letter of the constitution is violated, it may not matter, b/c the
real purpose of separation of powers is not implicated by Congress taking this power.
3. Formalist Argument – look to see if that branch of gov’t is acting as allowed by constitution.
b. Clinton v. New York (1998) – Line Item Veto act gives Pres power to cancel in whole certain provisions
enacted by Congress & signed into law.
i. Majority makes a Formal Argument - Held that this violates the Presentment Clause,
which outlines a specific practice for enacting a statute, & also violates bicameralism.
Basically, Pres signing a diff law than Congress actually agreed to. Pres doesn’t have this
unilateral power.
ii. Concurrence makes a Functional Argument – Exec has too much power by making law
w/o Congressional approval. Power may lead to tyranny.
iii. Dissent makes a Functional Argument – Pres line item veto power is limited to budget
cuts, so Pres not getting a lot of power, and he doesn’t have much discretion (Congress
gives an intelligible standard) and so there’s no real risk of tyranny.
iv. Note – point of the line item veto was to take away accountability from Congress, so ppl
don’t get mad at them & let Pres veto instead. Functional argument – we may not want
this b/c it muddies the water when it comes to accountability.

III. Appointment and Removal of Officers

a. Art III, § 2, cl. 2: states the President's power to "appoint . . . Officers of the United States," but nowhere
does the Constitution address the power to remove officers.
i. Myers v. United States (1926) – law says postmasters to be appointed & removed by Pres with
advice & consent of the Senate. Pres removes postmaster w/o senate approval. Court found that the
power to remove appointed officers is vested in the President alone. (Formalist opinion).

1. If they’re working for him, under his authority, so he must be allowed to remove them, b/c
Pres is responsible for their actions. He must be able to control the ppl acting on his behalf.
ii. Humphrey's Executor v. United States (1935) (formalist opinion) – Congress limits the grounds by
statute for the removal of federal trade commissioner. So now if Pres wants to remove, can only do
so by the specific criteria set.
1. The commissioner executes the law, which it the function of the executive. So why doesn’t
Pres can control to remove him?
a. B/c the commission is independent, disconnected from exec, and it not only performs
exec function, but also makes rules & laws, therefore quasi-legislative. So ok for
Congress to limit Pres’s authority to remove him, b/c he doesn’t only work for the
2. Pres has authority only over those solely working for exec. He doesn’t have that
authority for those working for other branches as well.
iii. Bowsher v. Synar (1986) – held that a congressional provision that allowed Comptroller to make
automatic budget cuts was unconstitutional.
1. Majority says its exec (Formal argument) –. Since Comptroller is part of legislative branch,
& performing exec functions, can't do this. He is only removable by Congress, but pres needs
to have authority to remove ppl performing exec functions.
2. Concurrence: Sys it’s a legislative function. Comptroller making law, but no bicameralism or
3. Dissent (Functionalist) – doesn’t care about bicameralism or presentment, even though it’s a
legislative function. The treat of tyranny is very little here. One branch won't get too much
power just b/c comptroller exercising this power.
4. Congress enacted the balanced budget in this way instead of the traditional voting b/c of
accountability. They don’t want to be the one doing this, b/c it makes the public unhappy. So
they pass it along, not accountable in public’s eye.
b. Morrison v. Olson (1988) – Act calls for appointment of an independent counsel to investigate, & if
appropriate, prosecute high-ranking gov’t officials violating federal crim law (not pres – impeachment).
Court upholds the law
i. (Functionalist argument) This is an exec function (law enforcement) & takes away Pres’s power to
stop investigation, or not let it proceed, if he wanted, but he had previously had that power. But this
is a very small invasion. Especially b/c of reason behind the law – want a neutral person
investigating so there’s a check on prosecutorial power. One reason for separation of power is to
prevent tyranny, and this check does the same thing – prevents tyranny.
ii. Dissent (formalist) – exec has sole exec power, no one else.
1. Ppl act on behalf of Pres, so Pres should control his ppl. Otherwise may intrude on
confidentiality, and hinder efficiency. Pres will fire someone if they’re doing something
wrong. If public disagrees, they’ll vote him out, or in extreme cases, impeachment.
c. Mistretta v. United States (1989) – law puts the sentencing commission in the judicial branch. They would
set up guidelines & restrict judge’s discretion. Commissioners appointed by Pres, can be removed by Pres,
and made up of federal judges (+ others). But acting in a legislative function, making laws. But Court finds
it constitutional, even though intruding on Congress’s power. B/c Judiciary is not gaining any power –
they’ve always had this power. Basically, this is a functionalist argument – not too much invasion, and not
much of a worry of tyranny. Dissent makes the formalist argument.


I. Executive Privilege and Immunity

a. President’s Powers - Foreign affairs, Executes laws, Appoint Judges to Supreme Court and lower
executive officials, Supervises executive branch, etc. Purpose to have these particular jobs done by Pres -
promotes efficiency. Negative – too much power concentrated in one person is dangerous - can lead to
tyranny. If there's a broad Pres immunity, then Pres can become too powerful, no one is checking his power.
But if you have very narrow Pres immunity/privilege - you have to worry about efficiency, because
someone will always be looking over his shoulder (confidentiality)
b. United States v. Nixon (1974) – Pending criminal prosecution stemming from Watergate; Pres indicted as
conspirator. Subpoena requires Pres to give up tapes of recorded convos in the oval office (Nixon recorded
everything). Pres says those tapes are privileges – everyday running of the gov’t, convos w/ subordinates.
i. Court holds it’s not privileged. It conflicts with the Judiciary’s duty to conduct the criminal trial.
1. Court has a responsibility to protect constitutional rights of Δs and the taps may have
information that would uphold those rights
2. Court balancing danger of tyranny vs danger of hindering exec from conducting his duties.
3. But court gives special solicitufe to Pres – Judge reviews tapes (neutral party), and only
disclosed selected, relevant parts, so no privileges information disclosed.
c. President is immune from suits arising from him carrying out his executive duties (too cumbersome)
i. Nixon v. Fitzgerald (1982) – Nixon fires Fitzgerald, who sues. Pres carrying out exec duties, so
immune from suit. But Fitzgerald says Nixon fired him for being a whistle blower, not in execution
of exec duties.
1. Court holds there’s an absolute immunity of the Pres from being sued from performing his
job. Even if outer perimeter of his duties, can’t sue. Even litigation issue is too burdensome
on efficiency. Otherwise, Pres will be hindered whenever making any decision, because of
fear of being sued.
d. Suits for Injunction
i. Mississippi v. Johnson (1867) – want to sue Pres for injunction against the Reconstructive Act. Pres
has immunity - can't have Pres subject to suit when exercising his core functions, too burdensome on
the efficiency of executive office, because he'll always be in court. No threat to tyranny, because he's
doing his job.
e. President’s “private” acts
i. Clinton v. Jones (1997) – Jones sues Pres acts done before he was President, totally unrelated to his
Presidency. Pres says not that you can't sue, but just not while I’m Pres, b/c it’s an unacceptable
burden on time & energy. But Court holds Pres does not have immunity, b/c it doesn’t relate to his
job as president, so it won't chill his acts as President (for fear of being sued).
1. But the lawsuit is cumbersome & time consuming
a. Court says trial court can take Pres’s schedule into account
b. Impliedly, he gets some special solicitude b/c he’s Pres
2. Since no threat to energy of President, so no immunity.
a. But in actuality, this lawsuit usurped the President's time for months. The argument
for why there should at least be temporary immunity, becomes more clear after this
happened. This did significantly impede on President's ability to function as
II. Impeachment of the President
a. Definition of impeachable offense - Art II, § 4 provides that "all Civil Officers" may be impeached for
"Treason, Bribery, or other high Crimes and Misdemeanors."
i. Impeachment is the charge the House brings against the President. Then Senate votes at the
impeachment trial whether or not to throw him out.
ii. It’s really what Senate thinks is a high crime or misdemeanor
1. This doesn’t just mean statutory crimes (like refusing to defend against foreign invasion)
2. Also, not necessarily all crimes – like private crimes (tax evasion).
3. Maybe high crimes & misdemeanors only means political crimes.



I. Is the Commerce Power Concurrent or Exclusive? - A grant of authority to Congress

necessarily implies a withdrawal of some regulatory power from the states. When Congress asserts its
Commerce Clause power, there is no doubt that states are preempted from acting. But what happens
when Congress’s power lays dormant?
a. Constitutional preemption: Exclusive – There are certain powers that are given exclusively to Congress
by the Constitution, and states may not act.
b. Statutory Preemption: Concurrent – Some powers are concurrent where both state & federal have the
power. Supremacy Clause says federal law trumps if there’s a conflict. This only occurs when there’s
actually a federal law in place – when Congress is asserting its power.
i. Conflict preemption
1. Actual conflict of performance – it’s impossible to comply with both state & federal law
2. Purpose preemption – you can comply with both, but state law conflicts with purpose of the
federal law.
ii. Field preemption – Congress intended that federal law occupy the field
1. There’s such a pervasive federal regulation of the field, clear that Congress intended to cover
everything in it, so any state regulation represents a contrary intention.
c. Early on, court was divided whether the power was exclusive or concurrent.
i. Exclusive Gibbons v. Ogden (1824) – State can only regulate for non-economic reasons, b/c since
the commerce clause gives Congress power to regulate interstate commerce for economic reasons.
ii. Court avoided the exclusive-concurrent commerce clause power issue by invoking the state’s
police power to regulate. But the state’s power to protect its citizens might sometimes affect
commerce (so it looks concurrent).
1. Willson v. Black-Bird Creek Marsh Co., (1829) – upheld state statute authorizing a dam
which ended up impeding interstate commerce. The purpose was to improve local health and
property values – so not economic power, but police powers. Criticism – isn't protecting
property values an economic purpose?
2. City of New York v. Miln (1837) –Court says state regulation of interstate transportation is
permissible, even though it impinges on interstate commerce, b/c the regulation has a police
power purpose – regulating immigrants coming in & out of the state, & using state’s welfare
services. Criticism – It is a regulation for an economic purpose! It ends up burdening out-of-
staters instead of the in-staters.
d. In 1852, the Court said that some commercial powers are exclusive in their nature and others are not
(concurrent). Federal commerce power is very extensive, so it may not be a good idea for the power to be
exclusive, b/c states would be constitutionally preempted, so even if Congress never got involved, states
couldn’t either, and wouldn’t be able to do a lot that they need to in order to benefit their citizens.
i. Cooley v. Board of Warden (1852) – State law requires ships using state port to hire a local pilot, or
else pay into local pilot fund. This conformed with a federal act that said U.S. ports/harbors shall
continue to be regulated in conformity w/ state laws already in place or later enacted.
1. Up until now, interstate commerce viewed as exclusively federal. If so, the state law would
be unconstitutional b/c it infringes on Congress’s commerce clause power.

2. But the court finds it constitutional, stating that some commercial powers are exclusive in
nature, while others are not.
3. Court divides up the commerce clause into exclusive/concurrent:
a. Exclusive – When national uniformity is important (when national subject matter),
then uniformity of regulation is necessary.
b. Concurrent - When diversity of regulation is desirable, then want local regulation,
rather than national uniformity.
i. Here, we want diversity of regulation. Local pilots know the local waters, so
this type of regulation is desirable.
ii. Also, Congress made it clear with the federal act that they though diversity
here is important, saying it’s up to each state to figure out how to regulate (act
is just proof of this)

So, when Congress’s power lays dormant, states retain regulatory power under the commerce clause,
if the power is concurrent in nature – meaning, when diversity of regulation is desirable. But if
national uniformity of regulation is necessary, then that commerce power is exclusive to Congress.

II. Congressional Authorization of State Regulation

a. Even if Court has held that it’s a concurrent power, Congress can always come back & take away that
power to regulate interstate commerce. Since Congress has the constitutional grant of power to regulate this
and b/c of the supremacy clause, federal law trumps.
b. However, even if court holds a state regulation to be unconstitutional, Congress can still come back
and say the state can regulate – This is called Congressional validation (or authorization).
i. Prudential Ins. Co. v. Benjamin (1946) –court upheld Congress’s power to authorize state taxes that
discriminate against interstate commerce (thus insulating it from challenges that it’s violating the
dormant commerce clause).
1. Although the reasoning runs directly contrary to Marbury (court says when something is
unconstitutional via power of judicial review), court says it’s ok. Prof says the reasoning
behind this too complicated, so it was taken out of the book.

III. The Quest for an adequate Standard - When Congress’s powers lay dormant and the power is not
exclusive, then state can act. But what standard to apply to determine if state regulation is constitutional (can’t
violate the dormant commerce clause) when Congress’s powers lay dormant?
a. The focus is on whether state regulatory action is actually state economic protectionism.
i. Economic protectionism – this is when regulatory measures are designed to benefit in-state
economic interests by burdening out-of-state competitors.
ii. Why is state economic protectionism forbidden by the commerce clause?
1. Impedes national unity and national economic development. If states discriminate against one
another, the adversely affected state will retaliate. So there is a danger that states will fight
with each other, and this is bad for the national economy.
2. As a practical matter - Permits an inefficient state business to compete against out of state
efficient state businesses. State is promoting an inefficient industry.
b. Modern formulation of the standard
i. When state regulation burdens interstate commerce, it’s per se illegal unless there’s some
extraordinary justification, other than economic protectionism (strict scrutiny).
1. Facially discriminatory – it discriminates, on its face, between in-staters and out-of-staters.
ii. The Pike Test: But where the regulation only “incidentally” restricts flow of interstate
commerce, then this will trigger judicial balancing. This happens when the regulation has a neutral
purpose & effect, but still imposes a burden on interstate commerce (although this burden is
equivalent to that imposed on in-staters).

1. The Pike balancing test – balance the burden on interstate commerce against the benefit
of the regulation to the state. Regulation will be upheld unless burden on out-of-state
outweighs the local benefit. Court will also consider if there are less discriminatory ways to
achieve the local purpose.

IV. Regulations that burden out-of-state supplies seeking in-state markets

a. Baldwin v. G.A.F. Seelig, Inc. (1935) – NY act regulated minimum milk prices in NY, & prohibited sale of
milk in NY bought outside of state at lower prices. NY says purpose was to make sure there’s always a
regular & adequate supply of milk, & the supply may be put in jeopardy if in-state farmers can't earn a
living & also that farmers who are underpaid may cut corners on sanitary precautions. Therefore, it’s a
valid exercise of police power, & burden on out-of-staters only incidental.
i. No facial discrimination – Min price same – both being burdened. Also, legitimate state interest.
ii. But court says it’s the effect of the law that invalidates it. NY has attempted to project its legislation
into VT by regulating prices to be paid for milk acquired there.
1. Criticism – Court is making a big factual assumption that VT milk prices are lower than NY
milk prices. But we don’t know this, &. if not, then the regulation doesn’t change anything.
iii. Court also says there are nondiscriminatory alternatives, which would more likely achieve their
legitimate local interests than the actual regulation, so it tends to infer its purpose was economic
protectionism, and health reasons just a pretext.
1. Criticism – does it really matter that there are less discriminatory ways? Still going to have
the same benefit. The fact that the court looks at this shows that they aren’t really balancing,
but actually looking for a protectionist motive.
b. Dean Milk Co. v. Madison (1951) – Madison city ordinance prohibits sale of milk within city limits that
wasn’t processed at approved pasteurization plants within 5 miles (in-state). Local interest to make sure
milk is healthy & those plants have more rigorous sanitary standards.
i. There is a legitimate state interest, but since there are reasonable less discriminatory alternatives to
promote that interest, this is no good b/c there is, in effect, there’s a burden on out-of-staters.
ii. Effect of intrastate discrimination - Court didn’t take into consideration that some intrastate
commerce was also being discriminated against - because the milk must be pasteurized in city of
Madison. Court says this is irrelevant, but Prof disagrees:
1. When a state/locality enacts a law that benefits only those that can vote for the law, but
burdens those that cannot vote for the law, then it is suspect, and looks like protectionism.
2. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept of natural Resources (1992) – Can only
use in-state landfill if garbage was generated in-state. The law is invalidated. Everyone who
voted for the law was protected. The out-of-staters, who couldn’t vote, were burdened by the
c. Breard v. Alexandria (1951) – upheld ordinance forbidding door-to-door sales. Court says there was a
legitimate purpose of protecting the important social interest of residential privacy, and no less restrictive
alternative was available.
i. But although it’s not facially discriminatory (everyone forbidden), in effect, there is discrimination
on interstate commerce, & evidence of a protectionist purpose.
1. Local businesses don’t need to go door-to-door, only out-of-staters, b/c they don’t have a
local base. However, the industry is not really important like milk, so no one cares that much.
d. Hunt v. Washington State Apple Advertising Comm'n (1977) – NC barred from the state closed apple
containers bearing any grade marked except USDA, but allowed those not graded. WA apples used WA
grade which were viewed as equivalent or superior to USDA. Held unconstitutional as violating the
dormant commerce clause.
i. Not facially discriminatory – neutral on its face, everyone treated the same.
ii. So use Pike balancing test:
State Interest Interstate Burden
Prevent fraud – use uniform system so Regulation takes away WA’s advantage

no one gets confused & everyone knows of using their own grading system, b/c
what the grading means well-known these are good apples
1. NC didn’t meet its burden to justify the interstate burden in terms of local benefit &
unavailability of nondiscriminatory alternatives. Looks like it had a protectionist purpose.
a. Regulation doesn’t eliminate problems of fraud, b/c it allows apples with no grading.
Also, alternative that would actually promote this interest is to require USDA grades
on containers, along with WA grades.
e. Purpose and effect – is it really balancing, or is it the Court’s purpose to get rid of protectionist
motivation by using the balancing test to achieve their conclusions?
i. Granholm v. Heald (2005) – state regulation allows in state wineries to sell wine in state to
consumers, but prohibits out-of-state wineries from doing so.
1. This is a clear case of facial discrimination against interstate commerce, but Congress had
actually authorized this, so they would be exempt from the dormant commerce clause. Also,
21st amendment gave right to state to control alcohol within its borders.
2. Still, court held it unconstitutional, saying that this would serve the legitimate interest of
keeping alcohol out of the hands of minors. This tends to show that court really is just
looking for a protectionist purpose.
f. Subsidies and Linkages
i. Subsidies are constitutional even if they have a negative effect on interstate commerce, because
they are only a regulation of intrastate commerce
1. New Energy Co. of Ind. v. Limbach (1988) – OH law gives tax credits to users of
ethanol produced in OH, or in a state that gave a reciprocal tax credit. OH denies tax
credit for ethanol produced in IN. IN provided direct subsidies to IN ethanol
producers, but no reciprocal tax credit.
a. OH statute is facially discriminatory – deprives certain ethanol producers of
the tax credit by virtue of what state they’re from. Doesn’t matter that it
doesn’t discriminate against all out-of-staters.
b. IN subsidies are constitutional. States are allowed to provide benefits to its
citizens. Subsidies are only a regulation of intrastate commerce. So it doesn’t
matter that it has a negative effect on interstate commerce. Also, subsidies
come from the state, not outside (from taxes collected from citizens).
ii. Linkages are unconstitutional - State can't collect a nondiscriminatory tax which goes into an
earmarked fund that will the specifically be disbursed as subsidies to only in-staters - Roundabout
way of just using a discriminatory tax.
1. West Lynn Creamery, Inc. v. Healy (1994) – statute taxed all sales of milk (in-state & out),
but the tax went directly to fund subsidy payment to in-state producers.
a. Not facially discriminatory, but it has the effect of discriminating by basically taxing
out-of-state producers in a roundabout way – Tax everyone, then give back tax to in-
staters. So its purpose is discriminatory.
b. Court says it would be ok if subsidies just came from a general fund (but still has
same effects on out-of-staters!).
i. But if coming from general fund, public might oppose subsidies b/c they’re
paying for them. If they know those funds are coming directly from taxes
from out-of-staters, they may not mind.
ii. Also if subsidies coming from an earmarked fund, it’s already determined that
the money is going to a specific place. But if coming from a general fund,
everyone is fighting for the money, and industries will just have to show they
need it more.

V. Regulations that burden out-of-state interests seeking in-state resources

a. Can't curtail the volume of interstate commerce to aid local economic interests. However, it’s ok to
create a minimum price – and thus raising both in-state& out-of-state prices, thereby effectively limiting the
amount of it going out of state. Reasoning is that local citizens will fight & make sure the minimum price is
at a reasonable level. But if you limit the actual supply, there’s no such check.
i. H.P. Hood & Sons, Inc. v. Du Mond (1949) – Hood seeks license for a depot to ship NY milk to
Boston. To get the license, NY law requires Commissioner to find that it will not create destruction
in competition in a market adequately served, or for public interest. Court held that the law, as
applied, violated the commerce clause. Commissioner denied license b/c by doing this, more milk
will be sent to Boston, and there won't be enough milk for NY.
1. But this is unconstitutional. Although there is the health & safety interest of making sure
everyone has milk, NY is isolating itself by discriminating against the out of state market.
This creates a danger of retaliation, where each state will keep resources for itself, and won't
give out unless state is satisfied.
2. Dissent says the court is not balancing & that there is nothing that shows the measure was
protectionist. Need more information like whether they’re giving license to in-state sellers
instead (then looks protectionist - need to show treatment is different).
ii. Milk Control Bd. v. Eisenberg Farm Products – upheld PA law that set a minimum price of milk in
PA, but which also ended up raising the price of milk shipped out of state. Constitution b/c it has a
negative effect on local commerce as well as out-of-state – everyone pays more for milk (min price).
b. Curtailing volume of interstate commerce by also curtailing intrastate commerce
i. Parker v. Brown (1943) – CA wants to raise price of raisins to help the industry by limiting the
supply. So it limits how much producers can sell; 95% of total goes out of state.
1. Court says this is constitutional, even though it curtails volume of the commodity going out
of state in order to protect local economic interests. This is b/c it’s not discriminatory, b/c it
affects local markets just as well. Criticism – they are not balancing here; if they were, this
would be unconstitutional.
c. Pike v. Bruce Church, Inc. (1970) – AZ law says that all cantaloupes grown in AZ must be packed in AZ,
with AZ label on the box, no matter who buys or where it’s sent. Court says unconstitutional.
i. Effect on interstate commerce – It’s not the volume of cantaloupes that’s being affected. Rather, it’s
that the packaging industry is being moved to AZ. But AZ doesn’t have such packaging plants, so it
could be done more efficiently outside AZ. So what AZ is doing is forcing business into AZ by
requiring the packaging industry to be moved there, and thereby bringing revenue to the state. Court
says this is a per se violation of the commerce clause, b/c it’s clearly discriminatory (no balancing).

VI. Regulation to Protect the Environment and Preserve Natural Resources for in-state
a. Even if there’s a legitimate state interest in protecting the environment, the regulatory action cannot,
on its face, be discriminatory.
i. Philadelphia v. New Jersey (1978) – NJ forbids out of state waste from coming into NJ landfills.
State’s purpose is to protect the environment in NJ. But court says still invalid.
1. The measure is overtly discriminatory against out-of-state interests. Court says regulation has
to be even-handed between in-staters & out-of-staters; treat everyone the same.
ii. Preserving Natural Resources for In-state Use
1. Hughes v. Oklahoma (1979) – law limits catching minnows in natural waters, b/c they’re
being deleted. But the limitation is that it prohibits out of state shipment of them. Court says
that even though the purpose is legitimate, it’s still invalid b/c it’s facially discriminatory.
b. Even if facially discriminatory, court will uphold when there’s a legitimate state interest, and there
are no less discriminatory alternatives
i. Maine v. Taylor (1986) – court said it was permissible for ME to ban importing bait fish, but not bait
fish from ME. ME says out of state bait fish may contaminate ME waters (parasites), and hurt the
fishing industry. Although this is a per se violation (facially discriminatory), there is an overriding

justification. The state has a very important purpose not related to economic protectionism and there
are no other less discriminatory alternatives.
c. Even if there’s some evidence of protectionism, law will be valid if it’s not facially discriminatory,
there is a legitimate interest, and there’s no less discriminatory means.
i. Minnesota v. Clover Leaf Creamery Co. (1981) – state bans non-returnable plastic milk containers,
but not non-returnable pulpwood containers. Not facially discriminatory – applies to everyone.
Reasoning is b/c pulpwood is biodegradable, while plastic is not; hurts the environment. Court
accepts that state objective is environmental protection.
1. May still find state protectionism b/c all containers now banned come from out-of-state,
while pulpwood mostly from in-state. However, pulpwood can be made everywhere; it’s not
unique to the state. Also, you can use the plastic for something else. Plus no other reasonable
alternative to the state’s interest – plastic container just won't decompose, no other way to get
rid of it.

VII. State Regulation of Tender Offers

a. States can regulate tender offers, even if it burdens interstate commerce, as long as it’s not
discriminatory, and the laws apply to everyone the same.
i. CTS Corp. v. Dynamics Corp. (1987) – tender offers are subject to state law. So since it
hinders tender offers, it’s going to burden interstate commerce, b/c ppl will not make tender
offers across state border, b/c they’ll be less appealing after this ordinance.
1. Court says it’s constitutional, b/c it treats both in-staters & out-of-staters the same.
Doesn’t matter if it hinders interstate commerce, but instead look to see whether it’s
discriminatory. This also show court is not really balancing.
VIII. Extraterritorial Regulation – If the state law has an extraterritorial effect and intent, it’s
unconstitutional as violating the commerce clause. Even if not facially discriminatory, court won't even
balance. But this rule is controversial.
a. Edgar v. Mite Corp (1982) – law authorized secretary of state to adjudicate fairness of tender offers and to
deny the required registration if found inequitable, tended to work fraud or deceit on offerees. Statute
applied to all corporations, but majority owned by out-of-staters.
i. Although it’s not facially discriminatory, court says it’s still unconstitutional, b/c it controls conduct
outside of the state. The law applied to corporations outside of the state, and burdened out-of-state
ii. The discrimination is the entire extraterritorial effect and intent (not because its facially
discriminatory, which it’s not).
b. Brown-Forman Distillers Corp. v. New York State Liquor Auth. – NY requires liquor distillers selling
wholesale in state to sell at the lowest prices the distiller charged in any other state for the same month.
i. Court held that this provision violated the commerce clause - a state may not require out-of-state
producers or consumers to surrender any competitive advantage they may have.
ii. A state may not project its legislation into other states by regulating the prices to be paid for in
those states.

IX. Regulation of Transportation - When it comes to transportation - uniformity is very important.

We can't have national unity, if we have diff rules on transportation in diff states. However, there are
some problems that the Court can't decide (which is a better mud flap), and the legislature hasn’t decided
either, so still within state province. But if a problem gets big enough, Congress will and should step in.
a. Southern Pacific Co. v. Arizona (1945) – AZ law limits the # of train cars for safety concerns. There
is a legitimate purpose, but this doesn’t outweigh the burden – it costs more money (but Prof argues
how do you balance efficiency against safety – like apples & oranges.) Court then says that actually,
smaller trains cause more traffic, thus more traffic, so not much safety gained. But the Dissent argues
that the court is acting like a legislature here, determining which trains are better – longer or shorter.

b. Kassel v. Consolidate Freightways Corp. (1941) – IA law prohibits the use of certain large trucks
within the state. State is concerned about safety, but court says unconstitutional. There’s a substantial
burden on interstate commerce, and the state’s purported purpose is illusory – not necessarily safer
by having smaller trucks & also b/c there are exemptions for certain in-state truckers, so it actually
looks very protectionist.
i. Prof says court is really looking for the protectionist purpose – not economic protectionism,
but protectionism by sending the large truck traffic out of the state b/c of the wear & tear on
the roads, etc.
c. Inconsistency with other states
i. Bibb v. Navajo Freight Lines (1959) – Ill requires all trucks to have a new innovation of
mudflaps. But problem is that there are multiple inconsistent burdens imposed on interstate
transportation, and you can't comply with all of them. The trucks would have to keep
changing the mudflaps at each border.

X. The Market Participant Exemption: A state can discriminate against interstate commerce when
they are acting as a market participant, rather than regulating. Market participant is when the state is
acting as a buyer or seller in the market.
a. Rationale for the market participant exception (even though it has the same effect)
i. When the state acts as a market participant, it looks like a private party acting in the market, so it
should be treated like a private party, who is allowed to buy and sell to whoever it wants.
1. Prof criticism – when state acts as a market participant, it’s not exactly acting like a private
party. When state is in the market, it’s trying to help its citizens, and won't necessarily make
the best economic choices, as a private party would.
ii. State retaliation? – Not really - actually retaliation is less likely. When state acting as a market
participant, it is limited to the market it’s buying into. On the other hand, when the state is regulating
as a legislature, it can affect the entire market.
iii. Why allow states to prefer their own at all? – B/c the point of having states is to help their citizens,
so we must allow them to. But not to the point where it goes so far that states will retaliate and we
will no longer have a united nation.
b. Reeves , Inc. v. Stake (1980) – scarce supply of cement, and SD controls all the cement in the area. So it
decides it will sell cement to SD first, then to other states. Court said it can do this b/c state is acting like a
market participant.
i. But SD controls the entire market, so it effectively has power over the entire market (like it would if
it were regulating). But Court reasons that SD doesn’t have a monopoly on cement. Anyone can
open up a plant and make it. Also, SD owned the limestone necessary to make cement (limited
natural resource), but court says it doesn’t matter b/c the state is not limiting the access to the
limestone. Limiting a natural resource is the kind of thing that states would retaliate for – and so
states not permitted to limit this.
c. South-Central Timber Development, Inc. v. Wunnicke [aka Alaska Timber] (1984) – AK owns the
timber, and requires that if you buy timber in AK, you must process it in AK. They invoke the market
participant exception. But court says this is unconstitutional.
i. B/c there are 2 separate industries here – AK is a market participant in the sale of timber, but not for
the processing of the timber. For the processing part of it then, the state is acting like a legislature.
And the state cannot regulate the processing like this (like the Pike cantaloupe case), b/c it’s a forced
relocation of processing into the state. Court says you can't regulate further downstream than the
market you are actually participating in.
d. Also, state can prefer its own when it creates something, as long as it doesn’t have a monopoly over it,
and anyone can compete (b/c acting like a private party). So they can do this with higher education, b/c
anyone can open up a school. But they can't do this with regards to courts, police, etc., b/c the only the state
can act, and so it’s a monopoly.

XI. Dormant Commerce Clause vs. the Privileges and Immunities Clause
a. Art. IV, § 2, cl. 1 provides that "The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States."
i. It prohibits state govts from discriminating against citizens of other states in favor of resident
citizens. Rights include to trade, use the courts of the state, equal taxation, habeas corpus, and right
to purchase property.
ii. Early View – states create rights. Once created, if fundamental, they have to be afforded to foreign
citizens as well.
iii. Modern View – states can treat in-staters & out-of-staters differently, but only when there’s a valid
reason for the discrimination, and not just b/c they’re out-of-staters.
1. The Substantial Purpose Test – discrimination had to serve a substantial purpose in fixing the
problem caused by the out-of-staters.
2. Hillside Dairy, inc. v. Lyons - When a state has a policy that ‘facially’ is not discriminatory
but has the effect of burdening out-of-staters, it can be a violation of the clause. Usually
requires a showing that there is a discriminatory intent, so effect alone is not usually enough.
iv. Toomer Test
1. Is it a fundamental right? Fundamental rights bear on the vitality of the nation as a single
entity. What privileges are basic to national unity? – access to courts (not higher education).
2. Is there a substantial reason for the discrimination? The out-of-staters need to be a peculiar
problem. Must be a nexus between the discrimination and the solution to the problem trying
to be solved.
b. Dormant Commerce Clause vs. Privileges and Immunities
i. Similarities
1. Used to invalidate a state regulation.
2. Common purpose – to promote national unity.
3. Aimed at discrimination against out of staters.
ii. Differences
Dormant Commerce Clause Privileges & Immunities Clause
Subject matter is interstate commerce Subject matter is an individual’s treatment in
a foreign state
Anyone can bring claim, but must be an Only out of state citizens can bring a claim
individual, not a corporation
Issue is the effect on interstate commerce Issue is Π’s treatment by foreign state
Market Participant Exception No such exception

c. Paul v. Virginia – Only natural people can raise claims under the privileges and immunities clause.
d. NO exception for market participant to P&I clause - White vs. Mass
i. United Building & Construction Trades Council v. Mayor of Camden – Municipal ordinance
requires 40% of contractor employees to be Camden residents, to be hired for city funded
construction projects. No market participant exception with P&I. P&I applies b/c foreign citizens
treated differently from instate in a fundamental right (employment). Court remands under Toomer to
determine whether there was a substantial reason for the city to prefer its own.
e. Hicklin v. Orbeck – AK statute says any person engaged in business of any sort even remotely related to
buying & selling AK oil or gas must hire locally. Unconstitutional under P & I – it goes beyond transaction
where state is buying and selling its own gas. AK is regulating to far downstream from what it is allowed to



I. Early Expressions of the Notion that Governmental Authority has Implied Limits - There
are substantive rights that limit gov’t power. There are some in the constitution and some that are not
explicitly called out in the constitution.
a. Calder v. Bull (1798) – Natural Law Right. Chase expressed a willingness to strike down legislation
without regard to explicit constitutional limitation based on “natural law.” But Iredell disagrees - the
theories of natural justice are regulated by no fixed standard. The court is in no position to declare an act
void when it was within congress’s power to enact it.
b. Substantive Due Process – 5th Amendment – starts out as procedural limit (procedures affecting life,
liberty & property), but later evolves to where it limits the substance of laws.
i. 5th amendment – no punishment w/o due process of the law; can't be deprived of life, liberty &
property; government can't take property w/o just compensation

II. Fourteenth Amendment – The Privileges & Immunities Clause of the 14th Amendment
a. Diff from 4th amendment P&I clause. 14th protects federal citizens.
b. Slaughter-House Cases (1873) – LA legislature passes law allowing New Orleans to create a corporation
that centralized all slaughterhouse operations in the city. Purpose was to restrict dumping of remains &
waste in waterways & have it all done in one place. Πs claiming state taking away right to earn a living,
guaranteed by 14th amendment.
i. But no, the 14th amendment was not the same rights as those given under the 4th amendment, and it
doesn’t include the right of employment (only under 4th – can't raise claim under 4th b/c in-state
citizens). Also, this is not a deprivation of property within the meaning of the 5th amend.
ii. 14th amendment only protects those P&I that are owed by the federal government:
1. Right to petition the government
2. Right of assembly
3. Right of hebeous courpous
4. Treaty rights
5. Right to use interstate waterways.


I. Substantive Due Process of Economic Interests

a. The Road to Lochner [p. 304]
i. Munn v. Illinois, (1876) - "In mere private contracts, relating to matters in which the public has no
interest, what is reasonable must be ascertained judicially."
ii. Allgeyer v. Louisiana (1897) - first reasoned Supreme Court decision to hold that the substance of
economic legislation violated the 14th Amendment Due Process.
1. LA law prohibited any act in the state to effect a contract for marine insurance on state
property with a company not licensed to do business in the state.

2. Court said statute exceeded the police power of the state and deprived the Δs of their 14th
amendment liberty to contract for insurance.
b. Substantive due process - idea that there is substantive protection of economic rights and interests.
Not just a matter of procedural protection, but also substantive.

c. Lochner v. New York, (1905) – court held invalid NY statute forbidding employment in a bakery for more
than 60 hours a week or 10 hours a day – b/c violates the 14th Amendment.
i. The right to contract is a substantive liberty interest covered by the due process clause. So when the
state interfered with this right to contract, it infringed on the constitutional right of due process
ii. Rationale Basis Test: Rationale Purpose; Rationale Means
1. If the state's regulation infringes on your life, liberty or property interests, the state must have
a rationale (legitimate, rationale, reasonable) purpose for interfering with it.
2. In addition, the state must use rationale means to achieve that purpose. Must be a rationale
way for state to accomplish that rationale purpose.
iii. 3 characteristics of rationale basis analysis used in Lochner
1. Refined balancing (not gross balancing) of the substantive due process
2. The Court, when looking at whether purpose is rationale, does a lot of scrutinizing of the
stated purpose of the measure. Court is willing to second-guess the state's asserted purpose.
Also, it is willing to question the legitimacy of the asserted purpose. So Court second-guesses
state's determination.
3. Court engages in a legislative fact-analysis. Do we really think this measure adopted by the
state will further the stated purpose (health benefit)? Court second-guesses them again - does
own fact analysis, and says you won'8t get much help in having the regulation.
d. The Abandonment of Lochner
i. Nebbia v. New York (1934) – state interfering w/ right of milk sellers to contract with buyers of milk.
Court uses rationale basis test & finds it fine. Reason it comes out diff from Lochner, is that the
court won't second-guess. They will defer if rationale, and unless there’s a clearly arbitrary &
unreasonable, then it’s reasonable.
1. Court uses the same test as Lochner – Rationale basis test
a. Purpose of the statute – make sure farmers made a decent living, & ensure an
adequate supply of milk. Legitimate, Rationale.
b. Means chosen – set a minimum supply of milk.
i. Court says this is rationale too. Help farmers by making sure they make
money. Also achieve the purpose of ensuring an adequate supply of milk -
because if farmers don’t make enough money, they go out of business. If
farmers making enough (by setting min price) they'll continue to supply milk,
and therefore ensuring an adequate supply of milk.
2. Same right is at issue here as in Lochner, so why diff conclusion? Court said here they can't
second-guess the legislature, but they did in Lochner. Court defers to the state's
determination that it had a rationale reason for the law. Unless it’s clearly arbitrary and
unreasonable, then its rationale.
ii. Olsen v. Nebraska (1941) - upheld a NE statute fixing max fees for employment agencies. Court so
deferential, it only look to see if its rationale. So Court, after, almost never overturns a state
legislation on these grounds (economic liberty). Economic rights no longer considered fundamental
iii. Williamson v. Lee Optical of Oklahoma (1955) - upheld OK law regulating opticians and
optometrists – if you want new glasses, need new prescription. Costs consumers money – looks like
specficially protecting eye doctor. State’s rationale is health – make sure prescription is right & this
is a rationale means of achieving this. Shows how far Court has moved away from Lochner


I. 5th Amendment – limits the federal government’s power of eminent domain: "nor shall private
property be taken for a public use without just compensation." But the question comes up, whether a
regulation is a taking, whether it’s for public use, and what is private property?
a. Purpose of the takings clause - Prevent government (majority) from exploiting the minority, for the benefit
of everyone.
II. Purpose of "Taking"
a. Berman v. Parker (1954) – federal government confiscates land in a blighted area, the turns it over to a
private developer, to develop it into something nicer. Court says this is a constitutional taking.
i. Must be taken for a public use, and must be just compensation.
1. There is just compensation. But store owner says not taken for public use, but for private use
- because the land given to a private party - government didn’t redevelop the land. But Court
says it is a public use. Redeveloping a blighted area is in the public's interest. So there
was a public purpose for taking the land.
a. But store itself was not blighted, so what's the purpose of taking this non-blighted
store - the developer needs to take over the entire area in order to redevelop it. Must
to take over the whole thing, or else it won't make sense.
b. As long as there’s a rational reason for the government exercising its power of eminent domain, the
court will defer.
i. Hawaii Housing Authority v. Midkiff (1984) - upheld the use of eminent domain to take away
property owned by the very few (b/c of past feudal system), and sell it back. This is b/c by having all
land in hands of few, it inflated land prices, injuring the public welfare. Court held this was a taking
for public use.
c. Kelo v. New London – Public use here - to promote economic development - leads to more taxes, increase
property value, create jobs - economic benefit to the public - is the public use.
i. Dissent – public use vs public benefit. This is a benefit not a use.

III. When is Regulation a Taking?

a. Per se takings – where government regulations are per se takings, and unconstitutional.
i. Where there is a permanent physical invasion (Loretto)
1. Loretto v. Telepromptor (1982) – NY law allowed cable company to put box on building.
Court says per se taking. There was only a small intrusion, but there is a great public benefit.
It doesn’t matter, a permanent physical invasion is a per se taking. Now, the owner no longer
has the right to possess the occupied space itself or to exclude others, which are basic
property rights.
1. Prof says real rationale - because it's reminiscent of confiscation.
b. Where regulation renders the property completely, economically valueless (Lucas)
i. Lucas v. South Carolina Coastal Council (1992) - Lucas bought property on the beach, which at the
time was zoned for single-family dwellings, intending to build houses there. Then state law prevented
Lucas from building any permanent habitable structures on his lots. Per se taking, b/c it renders it
economically valueless. Only bought property to build house on the beach, but law renders it
economically valueless - can't sell it either. What's the point of owning beachfront property if you can't
build on it. As thought government actually took the land, because it no longer has any economic use.
ii. Andrus - Court prohibits resale of eagle feathers. Not taking, because even though you can't sale
them, you cans still do other things with them, so not rendered completely valueless. Give them away,
or admire them, basically. Prof doesn’t like this. Because even in Lucas, still can do other things with
property. But still economically valueless.
iii. What if government takes property, but only temporarily?
1. Tahoe case - not per se. still get it back, and get value from it.

iv. Pennsylvania Coal Co. v. Mahon (1922) - Substantial public purpose for this law - make sure
houses are stable to prevent disaster. Court still finds this is a taking. Π only had the reserved right to
mine, and that was taken away. Now he is left with nothing - the right to property he has is
economically valueless. He can no longer do anything with the land. They had an investment backed
c. All other regulatory takings will be analyzed under the Penn Central test
i. Penn Central - not allowed to build because of a landmark law. Owner says the law has taken the
property – can’t build a profit-making structure.)
1. Test the court uses:
a. Economic impact of the regulation on the Π
b. Nature of the government action or regulation
i. A physical invasion, or regulation we see everyday, where government adjusts
the benefits and burdens of economic life for the public good
c. Is there any inference of this regulation with the π's investment backed expectations?
i. Like Lucas case - invested in property with expectation of building a home. If
state comes along and changes the law so he can't build, then state interfered
with this.
d. Does this look more like a classic appropriation of property, or everyday regulation?
2. In Penn, Court says not a taking, after looking at those factors.
a. Justified public benefit. But they say its not balancing a public benefit.
b. Not rendered valueless - still has value as train station as it always had. No
investment backed expectation. Still had value of land that it always had. Contributes
to the sense that land still has value - so just a regulation, not a taking.
d. "Extraction" cases or Conditions on development cases / Permit Condition Cases
i. Must be an essential nexus between the state's interests that its trying to promote by the
permit condition, and the permit condition itself.
1. Nollan v. California Coast Comm'n – Nolan seeks a permit to expand house. Conditioned
that Nolan allow an easement across her beach. Held to be an uncompensated taking.
a. The permit condition (easement) has no relation to the governmental purpose
(maintain appearance of a beach). The easement won't change the appearance of
beach access. Still can't actually see the beach; all easement does is create access to
the beach.
b. Unconstitutional, b/c it’s an uncompensated taking of your property
ii. Must also be a certain degree of connection - rough proportionality - more than rationality
1. Dolan v. Tigard (1994) - Dolan wants permit to expand store, and pave parking lot, which
was adjacent to a creek.
a. Court says still an unconstitutional taking. There's no nexus between the bike path
dedication and the flood plain purpose. So it fails the essential nexus requirement.
i. Condition - pedestrian/bicycle path; Stated public purposes for the condition -
ease traffic
ii. Condition – public greenway; Stated public purposes for the condition -
maintain a flood plain for safety purposes
b. This is actually a physical permanent invasion of your property - require landowner to
give up property without compensation