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I. Federal Judicial Power
A. Source & Scope:
1. Source: Art. III 1: The judicial power of the United States shall be vested in the one
Supreme Court and in such inferior courts as Congress may ordain and establish.
2. Scope: Art. III 2:
a. Cases & Controversies: The judicial power shall extend to all cases and controversies.
1.) Nine Categories
a.) Cases in law and equity arising under this Constitution, the laws of the U.S. and
Treaties made under their authorities.
b.) Cases affecting ambassadors, other public ministers, and consuls.
c.) Cases of admiralty and maritime jurisdiction
d.) Controversies to which the U.S. shall be a party
e.) Controversies between two or more states
f.) Between a state and a citizen of another states (changed by the 11
g.) Between citizens of different states
h.) Between citizens of the same state claiming lands under grants of different states
i.) Between a state or citizens thereof and foreign states, citizens thereof, and foreign
states, citizens and subjects. (changed by the 11
b. Jurisdiction of the Supreme Court
1.) Original (Trial) Jurisdiction: Article III 2: Congress cannot restrict or enlarge.
(Marbury v. Madison).
a.) Cases involving ambassadors, other public ministers and consuls
b.) Cases in which a state shall be party
2.) Appellate Jurisdiction
a.) All other cases before mentioned, with such exceptions and under such
regulations as the congress shall make. Congress has provided two methods for
invoking Supreme Court appellate jurisdiction, appeal and by certiorari.
1.) Writ of Certiorari (Discretionary): Requires 4 justices to agree to hear it.
(1) Applies to cases from the highest state courts where
(a) The constitutionality of a federal statute, federal treaty, or state statute
is called into question or
(b) A state statute allegedly violates federal law
(2) Applies to all cases from federal courts of appeals.
(3) Grounds for cert include:
(a) Conflicts between different federal court of appeals
(b) Conflicts between the highest of two state courts or the highest state
court and a federal court of appeals.
(c) Important yet unresolved issues from either state or federal courts.
2.) Appeal (Mandatory): SOTUS must hear those few cases that come to it by
appeal. Appeal is available only as to decisions made by three-judge federal
district court panels that grant or deny injunctive relief. (example, when a
lawsuit challenges the constitutionality of apportionment of congressional or
state legislative districts.)
c. Power of Judicial Review:
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1.) Power to review state court decisions in order to insure states act in conformity with
the US Constitution. Martin v. Hunters Lessee
2.) Power to hold acts of other branches of the federal government unconstitutional.
a.) Power to hold acts of Congress unconstitutional: Marbury v. Madison
holding the authority given to SCOTUS by the Judiciary Act of 1789 to issue
writs of mandamus is not consistent with the Constitution. An act repugnant to
the Constitution cannot become the law of the land and is therefore void. This
case cemented the Judiciarys role to say what the law is, the power of judicial
b.) Power to hold state statutes unconstitutional. Fletcher v. Peck
(a) Cooper v. Aaron: The court outlines the origin of its power of judicial
review and explains why the States lack standing to assert they may not be
bound by the courts decisions. The states therefore cannot delay
integration as ordered under Brown v. Board.
3. Constitutional Interpretation
a. Originalism
1.) Original Intent of the Legislature
2.) Original Meaning, how reading in 1700s would have read the text.
3.) Original Principles, original underlying principles.
b. Textualism: One must interpret the text on its own basis. The meaning of a word can be determined by its
association with other words in the same phrase or document
c. Non-Originalism (Non-Interpretivism) more fluid than its counterpart.
B. Legislative Checks on Judicial Power:
1. Statutory Regulation as Limitation:
a. Appellate Jurisdiction:
1.) Ex Parte McCardle (1869) Congress has the power to regulate and limit SOTUSs
appellate jurisdiction. Some limitations on such congressional power:
a.) Congress may eliminate certain avenues for SCOTUS review as long as it does
not eliminate all avenues. In McCardle, two statutes allowed SCOTUS to grant
habeas corpus to federal prisoners. SCOTUS upheld the constitutionality of the
repeal of one of the statutes because the other statute remained as an avenue for
SCOTUS habeas corpus review.
b.) Although Congress may eliminate SCOTUS review of certain cases within the
federal judicial power, it must permit jurisdiction to remain in some lower federal
c.) If Congress were to deny all SCOTUS review of an alleged violation of
constitutional rights or deny a hearing before any federal judge on such a claim
this would violate due process of law.
2.) US v. Klein (1871) This case is distinct from Ex Parte McCardle. Congress tried to
create an exception based on how the court may hold in a particular matter. If they
affirm, then they do not have appellate jurisdiction. If they reverse, they do have
jurisdiction. This limits the power the Constitution provides the Judiciary and is
therefore un-Constitutional.
C. Self-Imposed Checks on Judicial Power:
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1. Case or Controversy Requirement
a. No Advisory Opinions: No roles or functions which encroach on separation of powers.
(Since 1793 when President Washington asked SCOTUS for the courts opinion on legal matters relating to
the nations neutrality in the war between France and G.B.).
b. Declaratory Judgment permitted.
2. Prudential Grounds for Declining to Hear Case:
a. Mootness- A real, live controversy must exist at all stages of review. Exceptions:
1.) Collateral Legal Consequences: Although the principal issue in the lawsuit has been
resolved, if a party still has an interest in resolving collateral issues, the case will not
be dismissed.
a.) Powell v McCormack: (see below under Political Question). Representative
Powell had regained his seat in Congress at the time of SCOTUS review but the
case was not moot because his entitlement to back-pay was unresolved.
2.) Capable of Repetition but Evading Review
a.) Issue concerns events of short durations (pregnancy, elections etc). Such issues
will not be dismissed for mootness if the issue may arise again for (1) the same
plaintiff, or (2) other plaintiffs who are members of the same class.
b.) Defendant voluntary stops the offending practice but is free to resume it.
b. Ripeness Immediate Threat of Harm: Courts are prevented from deciding
constitutional issues before it is necessary to do so.
1.) Standing v. Ripeness:
a.) Standing: Who is a proper party to litigate a particular matter? Issue of whether
the type of injury alleged is qualitatively sufficient and whether the plaintiff has
personally suffered that harm.
b.) Ripeness: When may the litigation occur? Whether the injury has occurred yet.
2.) Pre-enforcement challenges to laws may be dismissed for lack of real threat.
3.) Must be actual claim of harm
c. Abstention:
1.) Pullman: Court may abstain from hearing case where there are undecided issues of
state law presented. Proper deference is shown to state court.
2.) Younger:
a.) Pending Criminal Proceedings: Court will abstain from deciding a suit seeking
an injunction against the state prosecution absent a showing of bad faith
harassment on the part of the state prosecutors.
b.) Civil Proceedings Court will abstain from deciding a suit seeking an injunction
(i) where state civil proceedings have already commenced, i.e., public nuisance,
and (ii) where civil contempt hearings had begun.
3.) Adequate and Independent State Ground: Although a state court decision involves
a federal question, if the state court judgment can be supported on an adequate and
independent state ground, SCOTUS will not take jurisdiction.
a.) Example: If a state court strikes a state law down as violating both the state and
federal constitution, SCOTUS will not take jurisdiction where the state
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constitutional basis for striking it down is adequate independent of the federal
d. Standing: Article III requires Injury + Causation + Redressability Mass. v. EPA
1.) Injury in Fact: Plaintiff must show a direct and personal injury. Must be a specific
injury to this plaintiff and not a theoretical injury to other persons.
a.) Specific Economic Injury
b.) Specific Harm to Plaintiffs Well-Being.
2.) Causation: Must be causal connection between the injury and the conduct
complained of.
3.) Redressability: The court asks whether the ruling would bind the defendant and
eliminate the harm to plaintiff. The relief sought in the suit must prevent or redress
the injury.
4.) Examples of Standing in Action:
a.) Taxpayers Standing: No standing in general because their interest in federal
expenditures is too remote for them to have any stake in the outcome.
(1) Exception: Where there is a nexus (logical link) between the taxpayer and
the claim sought to be adjudicated. Flast v. Cohen
b.) Third Party Standing: A litigant lacks standing to assert the rights of third
persons not before the court. But, exceptions include:
(1) Special relationship exists between the claimant and third party (doctor &
abortion patient)
(2) Third party unable to bring suit on own behalf. NAACP v. Alabama.
(3) Associations: only (1) if the members would otherwise have standing to sue
in their own right (2) the interest asserted is germane to the associations
purpose and (3) neither the claim asserted nor the relief requested would
require participation by the individual members in the lawsuit.
1.) Cases:
a.) Lujan v. Defenders of Wildlife (1992) 7-2
- Issue of standing
- Majority Scalia: Parties failed to demonstrate injury & redressibility
- Concurring 1, Kennedy & Souter: Parties failed to demonstrate injury
- Concurring 2, Stevens: Parties demonstrated injury & redressibility but the act does not apply to
foreign actions.
- Dissent, Blackmun & OConnor. The parties demonstrated injury & redressibility, at least enough
to survive summary judgment.
b.) Massachusetts v. EPA (2007) 5-4
- Issue of Standing:
- Majority Stevens: Mass can show standing; it has lost coastline due to rising sea levels,
attributable to global warning, attributable to release of greenhouse gases. The EPA is supposed to
regulate the gases but does not. Its inaction contributes to the injury. Forcing the EPA to regulate
greenhouse gases will redress the injury.
- Dissent Roberts: Threat of injury 100 years away is not imminent. The remedy sought wouldnt
make a difference anyway. No standing.
c.) Summers v. Earth Island Institute (2009) 5-4
- Issue of Standing:
- Majority Scalia: The failed to show that the s action injured him in a concrete and personal
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- Dissent Breyer: suffered an injury in the past and there remains a realistic likelihood that he will
again suffer that injury due to the procedural impairment. This was sufficient in previous cases and
should be in the present case (Roe v. Wade).
- Aesthetic harm may be sufficient injury.
e. Political Questions: The court will not decide issues that should be resolved instead by
the political branches rather than the judiciary.
1.) Political questions are:
a.) Those issues committed by the Constitution to another branch of government or
b.) Those inherently incapable of resolution and enforcement by the judicial process.
2.) Baker v. Carr: Six Factors:
a.) Is there a textually demonstrable constitutional commitment of the issue to a
coordinate political department?
b.) Is there a lack of judicially discoverable and manageable standards for resolving
the issue?
c.) Is it impossible to decide without an initial policy determination of a kind clearly
for non judicial discretion?
d.) The impossibility of courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government.
e.) Is there an unusual need for unquestioning adherence to a political decision
already made?
f.) Is there the potentiality of embarrassment from multifarious pronouncements by
various departments on one question?
3.) Areas Treated as Political Questions:
a.) The impeachment process
b.) The amendment ratification process
c.) The presidents power to unilaterally terminate a treaty
d.) Foreign affairs, particularly diplomatic and military strategizing
e.) Disputes about the Guaranty clause of Article IV
4.) Cases:
a.) Baker v. Carr (1962). 6-9
- Issue of whether issue is Political Question
- Barker argued that Tennessees voter apportionment was discriminatory in violation of the equal
protection clause of the 14
amend. The court held that claims of malapportionment violates equal
protection clause and are therefore justiciable. Such challenges do not present a political question.
Six Factor Test (see above) applied.
b.) Powell v McCormack (1969) 7-1-1
- Issue of whether issue is Political Question
- Majority: Issue is whether Congress erred in basing its decision to not see the congressman on his
failure to meet qualifications not articulated in the Constitution. The issue is justiciable, is not
political. Congress is in the wrong. COLLATERAL CONSEQUENCES: The may have already
been seated but he still hadnt been paid.
- Dissent: Issue is moot (the congressman had been reelected & seated.
c.) Nixon v. US (1993) 7-1-1
- Issue of whether issue is Political Question
- Majority: Impeachment of imprisoned federal judge who refused to resign. Issue is non-justiciable
because there is a textually demonstrable constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and manageable standards for resolving it.
D. The Eleventh Amendment:
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1. The 11
amendment prohibits a federal court from hearing a claim for damages against a
state government unless: (1) The state has consented; or (2) The plaintiff is the U.S. or
another state; or (3) Congress has clearly granted federal courts the authority to hear a
specific type of damage action under the 14
a. Scope:
1.) Upholds sovereign immunity of state government, including state agencies.
2.) Applies to diversity suits as well as constitutional question cases.
3.) Applies to suits brought in federal court against a state by its own citizens. (Hans v.
Louisiana, Alleged constitutional violation where state refused to pay money due on
bonds. SCOTUS held that a suit against a state by one of its own citizens is not one to
which the judicial power of the Court extends without the states consent).
4.) Applies to such suits brought in State courts. Alden v. Maine.
b. Exceptions:
1.) Suits against state officials: If the relief sought is something other than damages that
would be paid from the state treasury. Suits for injunctions against state officials for
abusing their power in enforcing an unconstitutional state statute are permitted. Ex
Parte Young.
2.) Suits against state subdivisions (cities, towns, or counties): Suits against state
subdivisions not barred.
3.) Suits brought by a state or federal government: Suits brought by one state against
another state or suits brought by the federal government against a state are not barred.
4.) State Consent: A state may consent to suit in federal court. Consent will not be
found unless the state clearly waives its 11
amendment immunity by either (i)
expressly and unequivocally doing so or (ii) voluntarily invoking federal court
jurisdiction. No implied or constructive waiver.
5.) Enabling Clauses of Civil War Amendments: (13
, 14
, and 15
Congress may authorize states to be sued in federal courts by individuals seeking
compensation for past acts of discrimination. For example, the Equal Pay Act, based
on the 14
amendment, can serve as a basis for federal suits against a state by its
II. Legislative Power: Article I 8: The power of congress to make laws
I. In General:
1. Express Powers: Article I 8: The power to lay and collect taxes, borrow money, regulate
commerce, declare war, raise and support armies, to provide and maintain a navy.
2. Implied Powers: Article I 8 c. 18: The Necessary and Proper Clause: (see below)
3. Enabling Clauses: The enabling clauses of the 13
, 14
, and 15
II. The Necessary & Proper Clause
1. In General: Congress has the power to make all laws necessary and proper for carrying into
execution any power granted to any branch of the federal government. The N&P Clause is
not a basis of power but merely gives Congress power to execute specifically granted
2. Cases:
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a. McCulloch v. MD (1819), Issue: Whether Congress has the power to incorporate a bank.
Yes, it can. The creation of a bank is the means by which Congress can achieve its
Constitutional ends. Congress has the power to enact appropriate legislation under
the N&P Clause pursuant to an enumerated power provided the legislation does not
violate another part of the Constitution. P. 153, 2 States are presumed to have the
power to act on the behalf of its citizens, unless congress says no.
1.) Factors:
a.) Is the end legitimate?
b.) Is the end within the scope of the constitution?
c.) Are the means appropriate and plainly adapted to that end?
d.) Are the means inconsistent with the letter and spirit of the constitution?
b. U.S. v. Comstock: Factors to apply when determining whether a statute is necessary and
proper means of exercising the federal authority that permits Congress to act:
1.) The breadth of the necessary and proper clause
2.) The long history of federal involvement in the particular arena
3.) The soundness of the reasons for the statutes enactment
4.) The statutes accommodation of state interests
5.) The statutes scope (favoring a narrow scope)
3. Restraints:
a. Whether the ends analysis measures up to the means analysis.
b. Congress cant adopt a law expressly prohibited by another provision of the constitution.
III. Commerce Clause:
1. In General: Congress has the power to regulate
a. Channels of interstate commerce (waterways, highways, etc),
b. Instrumentalities of interstate commerce, and
c. Activities, whether carried on in one state or many, that substantially affect interstate
commerce, whether directly or indirectly.
1.) Examples:
a.) Regulation of local matters which in the aggregate affect commerce (Wickard v.
Filburn: Wheat farmer).
b.) Prohibition of racial segregation and discrimination where such activity
interferes with interstate commerce.
(1) Heart of Atlanta Motel v. U.S.: Racial discrimination in the hotel industry
obstructed interstate commerce by making it more difficult for black travelers
to find accommodations and thus created a disincentive for blacks to travel.
(2) Katzenbach v. McClung: Congress banned discrimination against blacks in
restaurants, even those not frequented by out of state travelers. But for the
discrimination, there would be more customers resulting in increased
movement of meat in interstate commerce.
c.) Criminal Statutes prohibiting extortionate credit transaction on the ground that
such transactions fund organized crime and as such has an adverse impact on
interstate commerce. Perez v. U.S.
2.) Limitations: Congress is overreaching if the activity regulated is neither a
commercial activity nor an activity that substantially affects interstate commerce
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unless the legislation includes a jurisdictional nexus connecting the activity to
interstate commerce. Lopez
2. Cases:
a. United States v. Lopez: Congress can regulate three categories of activities:
1.) Regulate the use of the channels of interstate commerce,
2.) Regulate and protect the instrumentalities of interstate commerce, or persons, or
things in interstate commerce even though the threat comes from intrastate activities,
3.) Regulate those activities having a substantial relation to interstate commerce and
substantially affects interstate commerce.
4.) TEST: Whether the regulated activity substantially affects interstate commerce.
There must be a jurisdictional nexus connecting the regulated activity to interstate
5.) The court held the attempt to regulate gun possession in or near schools was an overreach because the
Act did not contain a jurisdictional element which would insure the offense affected interstate
commerce and the activity itself did not substantially affect interstate commerce.
b. Gibbons v. Ogden (1824): Commerce is every species of commercial intercourse which concerns
two or more states. NY steamboat monopoly infringed by NJ interloper: Commerce includes navigation.
If foreign commerce begins or concludes at a port w/in a state that commerce is regulated by congress.
Congress power is the power to prescribe the rule by which commerce is to be governed. Congress
power over commerce is plenary (complete), limited only by the will of the people. The primary restraint
is political.
c. The Daniel Ball (1870): Fed law requiring steamboats be inspected & licensed. Rule: rivers are
navigable in fact when they are used or are susceptible of being used in their ordinary condition as
highways for commerce over which trade & travel are or may be conducted in the customary mode of trade
& travel on water. Rivers constitute navigable waters of the US if in their natural condition they can be
used for interstate travel or international travel.
d. US v. EC Knight Co. (1895) 8-1: Sugar company monopoly. Can congress suppress any monopoly?
No. The power to regulate commerce is the power to prescribe the rule by which commerce shall be
governed and is a power independent of the powers to suppress monopolies. This power may operate to
repress monopoly whenever that comes w/in the rules by which commerce is governed or whenever the
transaction is itself a monopoly of commerce. When can congress repress a monopoly? When the
monopoly (1) comes w/in the rules governing commerce or (2) the transaction is itself a monopoly of
e. Champion v. Ames (Lottery Case) (1903) 5-4: Congress has the power to regulate commerce
among the states. Commerce among the states embraces navigation, intercourse, communications,
traffic, the transit of persons and the transmission of messages by telegraph.
f. Smith & Co. v. US: If something occurs in the stream of commerce it is subject to national regulation
under the commerce clause even if the actual matter regulated only occurred within a state.
g. Hammer v. Dagenhart: The power to regulate commerce is the power to prescribe the rule by which
commerce is to be governed. The power to regulate provides the authority to prohibit.
1.) The Commerce Clause has been found to grant Congress the power to:
a.) Prohibit interstate trade of lottery tickets
b.) Prohibit impure foods and drugs from interstate commerce
c.) Prohibit trafficking of women
d.) Prohibit interstate commerce of liquor.
h. United States v. Darby: Congress has the power to regulate intra-state activity that has a substantial
economic impact on interstate commerce. The power to regulate commerce is the power to prescribe the
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rule by which commerce is to be governed. The power extends to regulations which aid, foster, protect,
prohibit commerce. In this case, substandard labor practices result in unfair competition in manufacturing
between the states. This intrastate practice impacted interstate commerce and therefore is within the reach
of congress commerce clause.
1.) This case relies on three separate powers:
a.) The power of Congress to regulate interstate commerce.
b.) The power of Congress under the Necessary and Proper Clause to take measures to implement that
c.) The power of Congress to regulate intrastate matters that have a substantial effect on interstate
i. Wickard v. Filburn: Activities which are strictly local may only in special circumstances be regulated
under the commerce clause power because their effects upon interstate commerce are as a matter of law
only indirect. But, even if the activity is local and not regarded as commerce it may be reached by
Congress if it exerts a substantial economic effect on interstate commerce. Although Filburn never sold
his wheat, because he grew it, he didnt have to buy it which impacted interstate commerce.
1.) Takeaway: An activity which affects commerce through avoidance or non-participation in the market
is within Congress power to regulate. Congress has the power to regulate non-commercial activities
where in the aggregate they impact interstate commerce.
j. Gonzales v. Raich: Repeats 3 areas Congress can regulate cited in Lopez & Darby. CSA is an
appropriate means for Congress to achieve the legitimate end of eradicating marijuana from interstate
3. Restraints:
a. Political Restraints
b. Structural Restraints (within the text of the Constitution)
IV. The Tenth Amendment
1. The powers not delegated (enumerated) to the United States by the Constitution nor
prohibited by it to the states, are reserved to the states respectively or to the people.
a. Scope:
1.) Regulation of States as States: Federal laws whose effect serves to regulate the
states as states (state businesses and/or employees) do not violate the 10th
Amendment. [Garcia v. San Antonio Metropolitan Transit Authority, applying federal
minimum-wage and overtime provisions to employees of a municipally-owned mass-
transit system is a valid exercise of the federal commerce power and does not violate
the 10th Amendment].
b. Limitation:
2.) Commandeering the State Legislative Process: Congress barred from interfering
with a states law-making processes. Congress may not commandeer the legislative
processes of the states by directly compelling them to enact and enforce a federal
regulatory program. [New York v. U.S.finding 10th Amendment violated by a
federal law which required the state of New York to pass legislation to arrange for
the disposal of radioactive waste generated within its borders]. Printz v. U.S. (Gun
law required state law enforcement officers to collect from gun dealers reports
regarding prospective buyers and to conduct background checks on them)
c. Cases:
1.) Garcia v. San Antonio MTA: (Issue of whether operation of metropolitan transit system is a
traditional governmental function. If so, FLSA cannot apply under Natl League of Cities test. The
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court overruled Natl League of Cities. FLSA constitutional even when applied to states. A regulate
valid against a private party will be valid against a state.
2.) Missouri v. Holland: if the power is delegated to the federal government, then the 10
does not apply.
3.) Maryland v. Wirtz: SCOTUS upheld federal minimum wages and maximum hours laws.
4.) Natl League of Cities v. Usey: SCOTUS held federal minimum wages and maximum working
hours laws had substantial impact on interstate commerce but the 10
amendment prohibited
application of the law to state employees.
a.) Four Factor Test:
(1) Federal statute at issue regulates states as states.
(2) The statute addresses matters that are indisputably attributes of state sovereignty.
(3) State compliance with federal obligation must directly impair the states ability to structure
integral operational areas of traditional governmental function.
(4) The relation of state and federal interests must not be such that the nature of the federal
interests justifies state submission.
5.) NY v. U.S.: The federal government may not compel the states to enact or administer a federal
regulatory program. Congress can exercise legislation directly upon individuals but not states.
Congress can prohibit an activity but it cannot order the state to do something. Encouragement is
favored over coercion.
6.) Reno v. Condon: Congress is allowed to regulate states by prohibiting them from performing
certain acts, i.e., selling drivers personal information provided on drivers license applications.
V. Taxing and Spending Clause:
1. Source: Article 1 8 Clause 1: Congress shall have the power to lay and collect taxes,
duties, imposts, and excises to pay the debts and provide for the common defense and general
welfare of the US.
a. Taxing Power: Congress has the power to lay and collect taxes, imposts, and excises.
1.) Taxing Power for Purposes of Regulation: Congress may use its taxing power as a
necessary and proper means of achieving regulatory effect. Taxes are upheld as valid
a.) Congress has the power to regulate the activity taxed, the tax can be used as a
regulatory device rather than for revenue raising purposes. Sunshine Anthracite
Coal v. Adkins.
b.) Even if Congress does not have the power to regulate the activity but the tax
produces revenue. McCray v. U.S.; U.S. v. Kahriger.
2.) Limitations:
a.) Uniformity: Art. I 8: All duties, imposts and excises must be uniform
throughout the US. Uniformity refers to geographic uniformity, thus tax rates may
b.) Direct Tax Limitation: All direct taxes (i.e., one imposed against property) must
be apportioned among the several states so that each states share of the total tax
burden is proportional to the national population.
(1) Note: the 16
amendment gives Congress the power to lay and collect taxes
on income from whatever source derived without apportionment among the
several states.
c.) Export Tax Limitation: Art. I 9 Cl. 5: No tax or duty shall be laid on Articles
exported from any state. To qualify, the goods must actually be in transport bound
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for a foreign country. Goods may be taxed while still in the manufacturing state,
even if manufactured for export.
3.) Cases:
a.) South Dakota v. Dole: Congress may attach conditions on the receipt of federal
funds to further policy objectives by conditioning receipt of federal moneys upon
compliance of recipient with federal statutory and administrative directives. A
federal law that would withhold 5% of the federal highway funds otherwise
allocable to a state if the state did not set a 21 years minimum age for the
drinking of alcohol has been upheld.
b. Spending Power: Article I, 8 Cl. 1: The General Welfare Clause: Congress may spend
to provide for the common defense and general welfare of the U.S.
1.) Regulation Through Spending: Congress can use its spending power to regulate
areas even where it otherwise has no power to regulate the area by requiring state or
local governments that accept government money comply with explicit conditions.
2.) Limitations on Spending Power: Where conditional spending is an issue, apply the
Dole Factors:
a.) General Welfare:
b.) Unambiguous:
c.) Relationship between regulated activity and program funded:
d.) Not Coercive
e.) Other constitutional provisions may provide an independent bar (cant force
state to adopt religion)

VI. The Civil War Amendments (13
, 14
, 15
1. Three Amendments: Each include enabling clauses creating congressional power to enforce
the provisions of the amendment. All three have been deemed to apply to state action only,
not private conduct. The amendments affected a shift in power from the states to the federal
a. 13
Amendment prohibits slavery/racial discrimination. (Civil Rights Act of 1866.)
b. 14
Amendment extends due process protection to state action. Prohibits discrimination.
c. 15
Amendment extends right to vote to all men. (Civil Rights Act of 1870, 1871, 1875).
2. Suspect Classifications: SCOTUS has identified classes of individuals whose civil rights
have historically been violated and qualify for protection under the Civil War Amendments.
The Court, not Congress defines these rights. Congress merely enforces the rights.
a. Strict Scrutiny: State action based on race or alienage, the courts will review with strict
b. Intermediate Scrutiny: Gender and illegitimacy, fall within a quasi-suspect class which
will be reviewed under intermediate scrutiny.
c. Rational Basis: Age, gender and mental retardation are not suspect or quasi suspect and
are reviewed under rational basis test.
3. Scope of Protection: The State Action Requirement
a. The Civil Rights Cases (1883) Issues of Federalism. SCOTUS held the law to be
unconstitutional because the 14
amendment applies to state action, not private conduct.
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b. Jones v. Alfred Mayor (1968) Issue of whether the authority of Congress to enforce the
amendment by appropriate legislation include the power to eliminate all racial
barriers to the acquisition of real and personal property? Yes. The Civil Rights Act of
1866 bars all (private/public) racial discrimination in the sale or rental of property as a
valid exercise of congressional power to enforce the 13
c. US v. Morrison (2000) Issue of whether the 14
amendment gives Congress the power
to pass VAWA. Congress may enforce by appropriate legislation the constitutional
guarantees that no state shall deprive any person of life, liberty, or property w/o due
process of law nor deny any person equal protection of the law. SCOTUS held that the
civil remedy section of VAWA is not a valid exercise of Congress remedial power under
the 14
amendment because the 14
amendment prohibits state action only and VAWA
is aimed at individual conduct. 14
amendment applies to any unconstitutional
discrimination by states, no just racial. However, the decision in Jones remains good law
for the proposition that private racial discrimination may be badges and incidents of
slavery that Congress can eliminate under the 13
4. Protection of Rights:
a. City of Boerne v. Flores Congress, through the enforcement power of the 14

amendment enacted RFRA to protect a citizens right to the free exercise of religion but
rather than merely enforce an existing right, it expanded on the right as defined by the
court. The remedy was far out of proportion to actual or alleged violation. Congress
power is limited to enforcement or protection of rights pursuant to the constitution as
defined by the court. The court will look for a pattern of discrimination on the part of the
state. (Hibbs)
a.) Congress may not extend a right but may only enforce it with respect to the
states pursuant to 5 of the 14
b.) Congress may engage in preventive and remedial measures.
c.) Such preventive and remedial measures must be congruent and proportional to
actual violation.
b. Nevada Dept of Human Resources v. Hibbs (2003): SCOTUS sustains Congress
efforts to provide damages remedy under 14
amendment. Unlike the statute at issue in
City of Boerne, which applied broadly to every aspect of state operations the FMLA is
narrowly targeted at the fault-line between work and family and affects only one aspect
of the employment relationship. Issue of whether Congress acted within its constitutional
authority when it sought to abrogate the states immunity under FMLA. Congress may
abrogate state immunity in federal court if it acts pursuant to a valid exercise of its power
under 5 of the 14
amendment. In this case, the states record of unconstitutional
participation in fostering gender biased discrimination in the administration of leave
benefits was weighty enough to justify the enactment of FMLA. The proposed remedy
was congruent and proportional to the targeted violation.
c. Other Acts and Cases:
1.) Voting Rights Act of 1965 under the 15
Amendment: prohibits use of literacy tests as
qualifications for voting in places where less than 50% of voting age residents were
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registered to vote. Prohibited the denial of non-English speaking Puerto Ricans the right to
2.) Voting Rights Act of 1970 under the 14
Amendment: Prohibited states from denying the
right to vote in any election to any person on the basis of age if the person is 18 years or
older. Applies to federal, not state, elections.
3.) Employment Division v. Smith (1990): A law that substantially burdens a persons free
exercise of religion does not violate the free exercise clause of the 1
4.) Board of Trustees of the Univ. of AL v. Garret (2001): Issue of whether the ADA was a
congruent and proportional congressional response to violations in light of history and pattern
of constitutional violation. The 11
amendment protects non-consenting states from being
sued by private individuals in federal court for damages. Congress may abrogate this
immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of
constitutional authority. In order to authorize money damages against the state there must be
a pattern of discrimination by the states which violates the 14
amendment and the imposed
remedy must be congruent and proportional to the targeted violation.
5.) Tennessee v. Lane: Disabled man forced to crawl up stairs to get to courtroom and sued the
state. SCOTUS held that Congress has the power under Section 5 of the Fourteenth
Amendment to abrogate the States' sovereign immunity in cases implicating the fundamental
right of access to the courts.
VII. Preemption: The Supremacy Clause: The effect on a state or local law that under the
Supremacy Clause (Article VI, Clause 2) is rendered invalid because it conflicts with Federal
law. An issue of federalism.
1. Express or Implied?
a. Express Preemption: the law expressly preempts a state law.
b. Implied Preemption: In the absence of express preemption, the courts must interpret the
statute to determine Congresss intention. There are 3 types of implied preemption:
1.) Field Preemption: Where the federal government so fully regulates the field that any
state regulation is seen as incompatible with exclusive federal regulation.
2.) Direct Conflict Preemption: When a person cannot comply with both state and
federal laws at the same time.
3.) Obstacle Preemption: When state law does not actually conflict with federal law but
it stands as an obstacle to the accomplishment and execution of the full purpose and
objectives of congress. An example would be where Congress offers alternative ways
to comply and a state requires adherence to only one of the national alternatives.
2. Cases:
a. Geier v. American Honda Motor Co. (2000): The issue of whether federal statute
preempts a DC law regulating airbags. SCOTUS held that the federal statute requires auto
manufacturers to install passive restraints including but not limited to airbags. The DC
required airbags which creates an obstacle for a manufacturer to meet the requirement of
the federal statute. Therefore, the DC law is preempted by the federal statute.
VIII. Other Federalism Limitations in the Constitution
1. The Dormant Commerce Clause: If Congress has not enacted laws regarding the subject, a
state or local government may regulate local aspects of interstate commerce if the regulation
(i) is non-discriminatory; and (ii) imposes no undue burden on interstate commerce,
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using a balancing test. (i.e., the incidental burden on commerce does not outweigh the
legitimate local benefits produced by the regulation).
a. Origins:
1.) Gibbons v. Ogden (concurring opinion): The Commerce Clause by itself, without any
action by Congress can preclude some state action.
b. Discriminatory State Laws: State or local regulations that facially discriminate against
interstate commerce to protect local economic interests are almost always invalid.
1.) Examples:
a.) Regulations Protecting Local Businesses:
(1) A state cannot place a surcharge on out-of-state milk to make that milk as
expensive as or more expensive than milk produced in the state. West Lynn
Creamery v. Healy
(2) A state cannot exempt local businesses or products from taxation or regulation
that it seeks to apply to out-of-state business or products that come into the
states. Bacchus Imports v. Dias (case cited within West Lynn Creamery).
(3) A law requiring all locally produced solid waste to be processed at a local
waste processing business was held to violate the commerce clause because it
was a trade barrier against competition from out-of-state processors. Carbone
v. Town of Clarkstown.
(4) A law discriminating against out-of-state suppliers by requiring all milk sold
in the city to be processed and bottled locally is invalid. Dean Milk v. City of
b.) Regulations Requiring Local Operations
(1) A state law cannot require a business performing specific business operations
in the state to engage in other business activity within the state as this is an
attempt to discriminate against other states where the business operations
could be performed more efficiently. (Example: South Central Timber v.
Wunnicke where state of Alaska wanted those buying wood from the state to
have the wood processed in state.)
c.) Regulations Limiting Access to In-State Products
(1) A state cannot pass a law that makes it difficult or impossible for out-of-state
purchasers to have access to in-state products.
d.) Regulations Prohibiting Out-Of-State Wastes
(1) A state may not prohibit private landfill or waste disposal facilities from
accepting out of state garbage or waste or surcharge such waste. Philadelphia
v. N.J
e.) Need for Uniform National Regulation: If the matter regulated requires uniform
national regulation then no state regulation is permissible. Cooley v. Board of
f.) Cases:
(1) Philadelphia v. New Jersey: NJ statute prohibiting the importation of out-of-state
rubbish. State laws are invalid if they are designed to protect local economic interests at the
expense of out-of-state competitors. The NJ statute was invalid because the court concluded
the purpose and effect of the regulation was to discriminate against commerce from another
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state and was therefore invalid. Facially discriminatory, actually discrimination can be
found in the text of the law.
(2) Carbone Inc. v. Clarkstown (1994): Issue of whether the flow through ordinance
implicates the commerce clause (trash collection/processing case) and if so whether the
ordinance imposes a burden on interstate commerce that is clearly excessive in relation to the
putative local benefits. Discrimination against interstate commerce in favor of local business
or investment is per se invalid except where the state can demonstrate under rigorous scrutiny
that it has no other means to advance legitimate local interests. The ordinance discriminates
because it allows only the favored operator to process waste that is within the town limits.
(concurring opinion distinguishes between facially discriminatory and non-discriminatory yet
impermissible regulations).
(3) Hunt v. WA State Apples (1977): Issue of whether the challenged NC statute
constitutes unconstitutional burden on interstate commerce. In the absence of conflicting
legislation by Congress, there is a residuum of power in the state to make laws governing
matters of local concern which nevertheless in some measure affect interstate commerce or
even to some extent regulate it. A state statute may be unconstitutional where the practical
effect is not only to burden interstate sales of WA apples but discriminating against them. NC
failed to show the benefits of the statute outweigh the burden on interstate commerce created
by the discriminatory practice. Discrimination in fact/effect. The discrimination or effect
thereof depends on the particular facts.
(4) West Lynn Creamery Inc. v. Healy (1994) Issue of whether the pricing order (tax)
unconstitutionally discriminates against interstate commerce. The negative aspect of the
commerce clause (dormant commerce clause) prohibits economic protectionism, i.e.,
regulatory measures designed to benefit in-state economic interests by burdening out of state
competitors. Although the tax in this case is non-discriminatory, it is coupled with a subsidy
to one of the groups hurt by the tax making it unconstitutional. The out-of-state producers
milk is more expensive and therefore less competitive with in-state producers.
2.) Exceptions (Lawful Discrimination):
a.) Necessary to Important State Interest: A discriminatory state or local law may
be valid if (i) it furthers an important non-economic state interest and (ii) there
are no reasonable alternatives available. The burden is on the government.
(1) Example: Public health measures such as quarantine, inspection or safety
b.) State as Market Participant: The market participation exception permits a State
to influence a discrete, identifiable class of economic activity in which it is a
major participant. However, it does not allow the State to impose conditions,
whether by statute, regulation, or contract that have a substantial regulatory effect
outside of that particular market (i.e., no downstream regulation of a market in
which the State is not a participant).
(1) Cases:
(a) South-Central Timber v. Wunnicke: Alaska violated the Commerce Clause when
it imposed a contractual requirement on purchasers of state owned timber that the timber
be processed in Alaska before being shipped out of state. A state acting as a market
participant may be violate the commerce clause where it has the effect of reducing the
flow of goods in interstate commerce. Court scrutiny is vigorous where the restraint is on
(1) foreign commerce (2) natural resources (3) the product involved is an end product.
The state program regulates downstream processing of the timber it is selling which
exceeds the scope of the market participant exception.
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(b) Reeves v. Stake (1980): Issue of whether the state of SD in a time of shortage may
confine the sale of the cement it produces without violating the commerce clause. The
commerce clause does not prohibit a state in the absence of congressional action from
participating in the market and exercising the right to favor its own citizens over others.
SD is a market participant, not a regulator.
c.) Favoring Government Performance of Traditional Government Functions:
In cases where a law favors governmental action involving the performance of a
traditional government function (i.e. waste disposal), discrimination against
interstate commerce in such a case is permissible because it is motivated by
legitimate objectives rather than economic protectionism.
(1) Case:
(a) United Haulers v. Oneida-Herkimer Solid Waste Mgt. Authority: A county
flow-through ordinance that favored a state created public-waste facility by requiring
waste haulers to bring wastes to the state facility rather than to private facilities is valid.
The flow control ordinance benefited a public facility while treating all private companies
the same. (Pike v. Bruce Test applied).
c. Non-Discriminatory State Laws Balancing Test: Facially non-discriminatory
regulations will be invalidated only if the burden on interstate commerce outweighs
the promotion of legitimate (not discriminatory) local interests.
1.) Pike v. Bruce Church Test: Burden on challenger:
(a) Does the statute regulate evenhandedly to promote legitimate local interests?
(b) Does the statute only incidentally affect interstate commerce?
(c) Is the burden on interstate commerce is excessive in relation to the putative
local benefits? (burden on challenger to show burden clearly outweighs the
legitimate benefits.)
(d) Is there a less restrictive alternative? (If law found to be discriminatory, the
burden is on the proponent to show there was legitimate local interest and that it
could not be achieved in any less discriminatory way.)
2.) Cases:
a.) Minn. v. Clover Leaf Creamery (1981): Minn. banned use of plastic milk bottles. Issue of
whether the burden is excessive in relation to the putative local benefits. Pike v. Bruce rule
applied. The statute regulates evenhandedly, the burden was minor, and outweighed by substantial
state interest in promoting conservation of energy, natural resources and easing solid waste
disposal. No other approach with lesser impact on interstate activities was available.
b.) Dean Milk v. Madison (1951): (see above) Law imposed a discriminatory burden on
interstate commerce which is improper where there are reasonable nondiscriminatory and
adequate alternatives available.
d. Transportation: Burden cannot outweigh state interest.
1.) Issue: Whether the state action actually results in safer conditions. There must
be a legitimate safety purpose. If a state regulation achieves no real benefit and
imposes a substantial burden on interstate commerce it will be held unconstitutional.
Statutes regulating highway safety but which impact interstate commerce are upheld
unless the total effect of the law on safety is slight or problematic and does not
outweigh the national interest in keeping interstate commerce free and unimpeded
from serious interference.
2.) Cases:
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a.) Bibb v. Navajo Freight Lines (1959): An Illinois statute requiring all trucks to be equipped
with a new type of contour mudguards was declared unconstitutional because it placed an
unreasonable burden on interstate carriers.
b.) Raymond Motor Transport v. Rice (1978): A state law limiting the length of trucks
traveling in Wisconsin highways held unconstitutional because the regulation unduly burdened
interstate trucking and the state failed to demonstrate any significant safety benefit.
e. Non-Discriminatory Taxes:
1.) Four Part Test: Complete Auto Transit v. Brady:
a.) Tax must be applied to an activity with substantial nexus with state taxing.
b.) Tax must be fairly apportioned
c.) Tax must be nondiscriminatory against interstate commerce and
d.) Tax must be fairly related to services provided by the state.
2. The Privileges and Immunities Clause(s):
a. Two Separate Privileges and Immunities Clauses:
1.) States: Article IV 2, Clause 1: The citizens of each state shall be entitled to all
privileges and immunities of citizens of the several states. Corporations and aliens are
not citizens for purposes the P&I clause.
2.) Citizens: 14
Amendment: extends the P&I Clause to all citizens.
b. Examples of Improper Discrimination:
1.) Supreme Court of NH v. Piper (1985): Issue of whether N.H.s restriction on bar
admissions to state residents violates the P&I clause. The P&I clause guarantees the
privilege of citizens of state A doing business with state B on terms of substantial
equality with the citizen of that state. The P&I clause does not preclude
discrimination against non-residents where:
a.) There is a substantial (legitimate) reason for the differences in treatment
(does the state have a substantial goal to accomplish) and
b.) The means chosen have a substantial relationship with the end objective, and
c.) There are no less restrictive means available.
2.) Turner v. Witsell: State statute requiring a nonresident commercial fisherman to pay a $2500
license fee to fish offshore while a resident fisherman paid only $25 licenses fee.
3.) Austin v. N.H.: Commuter tax applied to nonresidents who entered N.H. to work while residents
were exempt.
4.) Doe v. Bolton: State statute imposing residency requirement on women seeking an abortion.
5.) Hicklin v. Orbeck: Alaska law requiring employers to give hiring preference to state residents held
c. Examples of Permissible Discrimination:
1.) Sporhase v. Nebraska: Discrimination against nonresidents will be given special consideration if
its purpose is the preservation of natural, state-owned resources such as scarce water resources.
2.) Baldwin v.Montana Fish and Game: Statute requiring nonresident to pay $225 for recreational
hunting license while resident hunter pays only $9. Discrimination permitted because it is within a
states police power to regulate recreational, noncommercial activities.
d. Distinctions from Commerce Clause Analysis:
1.) Corporations are not protected by the P&I Clause.
2.) No market participation exception.
3.) Congress cannot reverse a decision by the court under the P&I Clause.
III. The Executive Power
A. The Separation of Powers v. Federalism
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1. Federalism: The vertical tension between federal and state lawmaking.
2. Separation of Powers: The horizontal tension between the executive, congressional and
judicial powers. The concern is of overreaching by the executive, of a power grab, whether
the president is usurping the authority or power of another branch in violation of the
a. Types of Separation of Powers Analysis:
1.) Functionalism: Presidential powers are not fixed:
a.) The separate powers were not intended to operate with absolute independence.
b.) The Constitution diffuses power to secure liberty, but contemplates that practice will integrate the
dispersed powers into a workable government.
c.) Analysis begins with whether the act in question has impermissibly prevented one branch from
accomplishing its constitutionally assigned functions.
d.) This involves a determination of what functions of each branch are involved with the disputed act
and how they are realistically affected.
e.) U.S. v. Nixon, the Court weighed the importance of the "general privilege of confidentiality of Presidential
communications in performance of the President's responsibilities against the inroads of such a privilege on
the fair administration of criminal justice." It concluded that "the allowance of the privilege to withhold
evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process
of law and gravely impair the basic function of the courts." Courts apply the functionalist approach to limit
their role in resolving inter-branch disputes.
2.) Formalism: Clear lines separate the powers.
a.) Separation of powers requires each branch of government operate with maximum independence.
b.) The government was divided into three branches to ensure against tyranny
c.) Must enforce a strict division of labor between the branches.
d.) Inter-branch conflicts resolved by drawing sharp boundaries between the branches and defining
every act and actor in terms of each branch's "assigned responsibility."
b. Examples:
1.) Functionalist: Youngstown
2.) Formalist: Chada, Clinton v. NY
B. Power as Chief Executive: The President has the authority to execute the laws of the U.S. Few
powers are expressly granted under Article II. The Presidents power over internal affairs as the
chief executive is implied and unclear. The holding in Youngstown is used to determine the
validity of presidential action regarding internal affairs.
1. Youngstown v. Sawyer (1952): Issue of whether the president was acting within his
constitutional power when he issued an order directing the secretary of commerce to take
possession of and operate most of the nations steel mills. The presidents power to act stems
only from the constitution or from an act of congress. In this case, there was no act from
congress, either prior to the Presidents order or after to ratify the order. Neither did the order
stem from congressional power as it was not within the presidents military power as
commander-in-chief. The president may suggest laws or policies to congress but it is
congresss role to enact.
a. Justice Jacksons Concurring Opinion: Three situations where a presidents exercise of
power may be evaluated:
1.) Greatest Deference: Constitution + Congressional Grant: When a president acts
with the express or implied authority of Congress, his power is at its maximum and
his actions likely are valid.
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2.) Flexibility Tests: President relies on own power; Zone of concurrent power:
Where president acts where Congress is silent, his action will be upheld as long as the
act does not take over the powers of another branch of the government or prevent
another branch from carrying out its tasks.
3.) Close Scrutiny Test: Where the president acts against the express will of Congress,
he has little authority and his action is likely invalid. The equilibrium of separation of
powers is at risk.
2. U.S. v. Curtis-Wright (1936): Congressional Grant of Power: Issue of whether a joint
resolution authorizing the president to forbid the sale of weapons to those involved in the war
between Paraguay and Bolivia was an unconstitutional delegation of legislative power to the
executive. If the joint resolution had related solely to internal affairs it would be open to
challenge as an unlawful delegation of legislative power to the executive. Instead, the whole
aim of the resolution falls within the category of foreign affairs which is within the power of
the executive.
C. Foreign Relations & Treaty Power
1. Foreign Relations: The presidents power to represent and act for the U.S. in day-to-day
foreign relations is paramount. He has the power to appoint and receive ambassadors and
make treaties which the advice and consent of the senate, and to enter into executive
agreements. His power is broad even as to foreign affairs that require congressional consent.
No significant judicial control has been exercised over this power.
2. Treaty Power:
a. Executive Treaty Power: Article II 2: The treaty power is granted to the President by
and with the advice and consent of the Senate provided two-thirds of the Senators present
b. Legislative Power to Implement Treaties: Under the Necessary and Proper clause,
Congress may make all laws necessary and proper to carry into execution the powers
vested in the constitution in the government of the United States which includes the
power to make treaties.
c. Supreme Law: Like other federal laws, treaties are the supreme law of the land. Any
state action or law in conflict with a U.S. treaty is invalid.
1.) Self-Executing Treaties: Some treaties are expressly or impliedly self-executing,
meaning they are effective without any implementation by Congress. Missouri v.
Holland. Self-executing treaties are considered the supreme law of the land.
a. Missouri v. Holland (1920): Treaty between US & GB requiring legislative
actions to protect migratory game birds. Congress executed the treaty through
statute. Missouri sued. SCOTUS held the treaty was constitutional because the
issue governed is a national interest although it affects the states. A treaty cannot
be valid if it infringes the constitution. What Congress cannot do unaided in
derogation of the powers reserved to the states, a treaty cannot do. This case
demonstrated that where there is a national problem, there needs to be a national
solution. The federal government cannot rely on the states to address such
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2.) Not Self-Executing Treaties: Other treaties are not effective unless and until
Congress passes legislation to effectuate their ends. A not self-executing treaty is
not the supreme law of the land without further action by Congress.
a.) President has no power to implement non-self-executing treaties: The
president does not have independent power to issue memorandum ordering
compliance with a non-self-executing treaty that has not been the subject of
effectuating legislation by congress.
(1) Medellin v. Texas (2008): Issue of whether the ICJs judgment is directly
enforceable as domestic law in a state court or does congress need to enact
legislation for enforcement. (self-executing or not) and whether the
Presidents memorandum urging the Texas courts to enforce the ICJ judgment
independently require the states to act in accordance with the memos
conclusions. The presidents memo does not constitute directly enforceable
federal law that preempts state limitations on the filing of successive habeas
petitions. A treaty is equivalent to an act of the legislature and hence self-
executing when it operates of itself without the aid of legislative provisions.
When treaty stipulations are not self-executing they can only be enforced
pursuant to legislation to carry them into effect. The responsibility for
transforming an international obligation arising from a non-self-executing
treaty into domestic law falls to congress.
3.) Conflict with Congressional Acts: If there is a conflict between a valid treaty and an
act of congress, the conflict is resolved by order of adoption. The last in time prevails.
4.) Conflict with Constitution: Constitution trumps. Duh.
3. Executive Agreements: agreements between the president and executive heads of foreign
countries do not require congressional ratification. Such agreements stem from inherent
power when acting in foreign affairs. Courts have never struck such agreements down.
a. No overt limits on subject of executive agreements (as with treaties)
b. No need for senate approval to form
c. No need for senate approval to rescind (Goldwater v. Carter).
d. Executive agreements are not supreme law of the and therefore, a conflicting statute or
treaty will prevail, regardless of which was adopted first.
D. The Unitary Executive
1. Imperial Presidency v. Unitary Executive:
a. Imperial Presidency: A broad reading of executive power implying this power
extends to everything that is not expressly legislative or judicial.
b. Unitary Executive: The executive power resides in the president alone and cannot be
divested from him. (i.e., Congress cannot by law place the responsibility for executing a
particular law in the head of an agency as opposed to the President.) Disputes over the
unitary executive are disputes over the separation of powers.
2. Obligation to report: Article II 3: The president from time to time. state of the union.
3. Appointment Power: Article II, 2, Clause 2: The President, with the advice and consent of
the Senate, is empowered to appoint all ambassadors, public ministers, consuls, judges of the
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supreme court and all other officers of the U.S. whose appointments that are not otherwise
provided for in the Constitution.
a. Limitation on Congressional Appointment Power:
1.) Principal Officers: Congress must vest the appointment of Principal officers in the
President alone.
2.) Inferior Officers: Congress may by law vest the appointment of such inferior
officers as they think proper in the President alone, in the judiciary, or in the heads of
3.) Congressional Appointment: Congress itself cannot appoint members to any agency
or commission with executive powers.
b. Congressional Limitation on Executive Appointment Power: Congress can, by
statute, limit who the president may appoint by setting minimum qualifications for the
c. Who is an Executive Officer? Persons appointed by Presidential nomination with the
advice and consent of Congress. One who exercises significant authority pursuant to the
laws of the United States must be officers. One who is
d. Who is an Inferior Officers?
1.) Morrison v. Olson: In Morrison, the Court held the independent counsel was an
inferior officer. Four factors were considered:
a.) Subject to removal by higher executive official but someone below the President.
b.) Authorized only to perform certain limited duties
c.) Jurisdiction limited to what is granted by a superior below the president
d.) Tenure limitations (by accomplishing a particular task)
2.) Edmond v. U.S.: Morrison factors not a definitive test. In Edmond the Court focused
on the fact that judges on a Coast Guard appeal board, appointed not by the President
but by the Secretary of Transportation, answered to a superior officer. Whether one
is an inferior officer depends on whether he has a superiorIt is evident that
inferior officers are officers whose work is directed and supervised at some
level by others who were appointed by Presidential nomination with the advice
and consent of the Senate.
4. Removal Power: As to removal of appointees, the Constitution is silent except for ensuring
tenure of all Article III judges during good behavior.
a. By President:
1.) Bowsher/ Myers: The president has inherent power to exercise general
administrative control of those executing the laws (executive officers). His
responsibility to take care that the laws are faithfully executed includes the power to
remove those for whom he cannot continue to be responsible. If Congress has the
power to remove an executive officer, the officer is an agent of Congress exercising
executive powers not vested in Congress.
2.) Humphreys:
a.) Principal Officers: Myers applied to principal officers who answer directly to the
president. Congress may restrict the presidents removal power of principal
officers whose roles are quasi-legislative and quasi-judicial rather than purely
executive with term limits and removal for good cause.
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b.) Inferior Officers: Appointment may be vested by Congress in department heads
who have the power of removal, instead of the President. For cause removal is
3.) Morrison: The independent counsel is a purely executive inferior officer appointed
by the attorney general and subject to removal for good cause only by the attorney
general. The attorney general is removable by the President at will, thus the good
cause removal restriction of the independent counsel is a constitutional single level of
removal protection.
4.) Free Enterprise: If either the president or a subordinate he can remove at will has the
power to decide whether the inferior officers conduct merited removal under good
cause standard, the presidents power of removal is not unconstitutionally restricted.
A dual-level of protection however is unconstitutional.
b. By Congress:
1.) Limitation on Removal Power: Congress cannot give itself power to remove an
officer charged with the execution of laws except through impeachment. Bawsher v.
c. Cases:
1.) Myers v. U.S. (1926): The president fired the Postmaster of Portland without Senate
approval. The postmaster is an executive officer. The president has the exclusive
power to remove executive officers as well as inferior officers.
2.) Humphreys Executor v. U.S. (1935): Issue of whether the FTC Act restricts or limits
the power of the president to remove a commissioner except for cause. The Act limits
the executive power of removal for good cause. The president alone has the power to
remove purely executive officers. This power does not extend to inferior officers such
as the FTC commissioners. Good cause removal restriction on such officers is
3.) Morrison v. Olson (1988): Distinct from Bowsher and Myers. SCOTUS upheld
statute under which the judiciary appoints the independent counsel to investigate and
prosecute government officials suspected of wrongdoing. The independent counsel is
an inferior officer subordinate of the US Attorney General. Issue of whether the
President should be able to fire at will the independent counsel or would a restriction
against such firing violate separation of powers. SCOTUS held the restriction on
removal to be valid because the restriction of removal only for cause is not an
impermissible burden on the presidents power to control or supervise inferior
4.) Free Enterprise Fund v. Public Company Accounting Oversight Board (10): Issue of
whether multiple layers of restrictions on removal violate the principle of separation
of powers. The principal and inferior officers both could only be removed for cause.
SCOTUS held that such multi-level protection from removal is contrary to Article
IIs vesting of executive power in the president as it interferes with her ability to
take care that the laws be faithfully executed. The dual for cause limitations in the
removal of board members contravenes separation of powers.
d. Questions to Ask:
1.) Who is doing the appointing/removing? Congress or the President?
2.) What restrictions/requirements come with the appointment?
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3.) Whether any removal restrictions are of such a nature that they impede the
Presidents ability to perform his constitutional duty? (Morrison).
4.) Is the appointee a principal or an inferior officer?
5.) Which officers may be appointed without senate approval? Inferior officers.
5. Signing Statements: President, when signing bill, issues signing statement expressing
constitutional or political concerns and views with respect to the bill or how the president
interprets it or will enforce it.
6. Pardons: Article II 2: The president is empowered to grant reprieves and pardons for
offenses against the united states except in cases of impeachment.
7. Veto Power: Article I 7
a. Congressional Override of Veto by Two-Thirds Vote: Article I 7: Ever act of
Congress must be approved by the President before taking effect, unless passed over his
disapproval by two-thirds vote of each house.
1.) INS v. Chadha (1983): Legislative veto unconstitutional: Attorney General may
suspend deportation and report to Congress. One house of Congress may then issue a
resolution of disapproval or bill of approval. The issue is whether single house veto
power of executive action violates separation of powers. Yes. When the framers very
specific in constitution about when if ever a single house may act alone. In the present
case, the action by the House under the Act is not within any express Constitutional
exception to bicameral standard.
a.) Examples of constitutional single house action:
(1) House of Rep alone has power to initiate impeachment.
(2) Senate alone has power to conduct trials following impeachment by House
(3) Senate alone has final unreviewable power to approve/disapprove presidential
(4) Senate alone given unreviewable power to approve, disapprove presidential
b. President has Ten Days to Veto: The president has 10 days (except Sundays) to exercise
his veto power. If he fails to act within that time:
1.) The bill becomes law if Congress is still in session; or
2.) The bill is automatically vetoed if Congress is not in session (pocket veto). Brief
recesses during an annual session create no pocket veto opportunity.
c. Line Item Veto Unconstitutional: The veto power allows the President only to approve
or reject a bill in toto; he cannot cancel part (through line item veto) and approve other
parts. The presidents veto power does not authorize him to amend or repeal laws passed
by Congress.
1.) Clinton v. N.Y. (1998): Issue of whether Line Item Veto Act violates the separation
of powers. Yes. If it were valid, it would allow the president to create a different law,
one whose text was not voted on by either house of congress or presented to the
president for signature. The president was exercising legislative power, essentially
repealing in part acts of congress.
2.) Field v. Clark: The president was given the power to suspend exemptions for certain
products under the Tariff Act. The court held this was not an exercise of legislative
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power. Instead, the president had a duty to suspend an exemption when a condition
arose, in accord with the policy Congress embodied in the statute.
IV. Congressional and Executive War Power
A. Congressional War Power
1. War: Article I 8: Congress has the power to (i) declare war, (ii) raise and support armies,
(iii) provide for and maintain a navy, (iv) organize, arm, discipline and call up the militia.
a. Scope of War Power:
1.) Authority to initiate measures deemed necessary to provide for the national defense in
peacetime as well as in wartime. Includes:
a.) The draft
b.) Exclude civilians from certain restricted area during wartime.
c.) Calling Forth the Militia: Congress has the power to authorize the president to
order members of Natl Guard units into federal service even in circumstances
that do not involve a national emergency. The president does not need the consent
of the governor of a units home state to call it into such service.
b. Economic Regulation
1.) During War: The court has sustained national price and rent control as well as
conscription and regulation of civilian/military production and services.
2.) Postwar: Power may be extended to remedy wartime disruptions and to cope with
cold war exigencies. Legislation in the field of veterans rights may be extended
B. Executive War Power The Commander-in-Chief: Wars and Emergencies: No power to
declare or initiate a formal war, the President has extensive military powers. All residual power
of the government not expressly granted to the legislative and judicial branches must reside in
the executive.
1. Actual Hostilitiesor not: The president may act militarily under his power as commander
in chief of the armed forces and militia (when federalized) under Article II 2, in actual
hostilities against the U.S. with or without a congressional declaration of war. But congress
may limit the President under its power to enact a military appropriation every two years.
2. Seizure of Property: The president has the power to seize private property during wartime.
U.S. v. Pewee Coal (Coal mines seized to prevent nationwide strike).
3. Cases:
a. The Prize Cases (1862): Issue of whether the president has the right to institute a
blockade of confederate states and if this right requires a state of war to exist and if so,
did such state of war exist when the president instituted the blockade. The president has
the authority to call out the militia and use the military and naval forces to suppress
insurrections against the government of the U.S. Although war was not nor could be
officially declared, a state of insurrection nonetheless existed. Congress also acted
retroactively to ratify the action.
b. The War Powers Resolution (WPR) of 1973 - Federal law intended to check the power
of the President in committing the United States to an armed conflict without the consent
of Congress.
1.) In General:
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a.) The President can send American forces into action abroad only by authorization
of Congress or in case of "a national emergency created by attack upon the United
States, its territories or possessions, or its armed forces."
b.) Requires the President to notify Congress within 48 hours of committing armed
forces to military action and forbids armed forces from remaining for more than
60 days, with a further 30 day withdrawal period, without an authorization of the
use of military force or a declaration of war.
c.) The resolution was passed by two-thirds of Congress, overriding a presidential
veto. Presidents hate this resolution. President would claim that any challenge on
the constitutionality of this act would be a political question not subject to
judicial review. Very uncertain issue, can president make a preemptive strike of
what he deems is an imminent danger? (Clinton in Iraq Bombing, Obama in
C. Military Government: The power to establish military governments in occupied territories
including military courts and tribunals.
1. Military Courts and Tribunals: Article I 8 Clause 14: Trial and review of offenses by
military personnel, including courts-martial and reviewing agencies and tribunals. Military
courts are NOT Article III courts and thus, the accused in court-martial proceedings is not
entitled to the same procedural safeguards set forth in the Bill of Rights (right to jury, grand
jury indictment).
a. Scope of Power:
1.) Judicial Review by Article III Courts: Jurisdiction extends only to habeas corpus
2.) Jurisdiction over Enemy Alien Civilians and Soldiers Permitted:
a.) Ex Parte Quirin (1942): Issue of whether the president has the power to detain, try and
execute a sentence with regard to persons alleged to be unlawful enemy belligerents acting in
violation of the laws of war. Congress has the power to declare war which empowers the president
to wage war which includes punishing violations of the law of war. Congress has enacted
legislation which recognizes military commissions as appropriate tribunals for such offenses.
3.) No Jurisdiction Over American Civilians: As long as there are civilian courts
available, military courts are denied jurisdiction over civilians and their dependents.
a.) Ex Parte Milligan: Defendant had never been a resident of any of the states in rebellion, was
not an enemy belligerent entitled to status as POW or subject to the penalties imposed upon
unlawful belligerents. As a non-belligerent, Milligan was not subject to the law of war.
b. Suspension of habeas corpus for enemy combatants:
1.) Citizens:
a.) Hamdi v. Rumsfield (2004): Issue of whether citizen enemy combatants are entitled to due
process. Although Congress authorized the detention of the combatants in narrow circumstances
due process demands that a citizen held in the U.S. as an enemy combatant be given notice and a
meaningful opportunity to contest the factual basis for the detention before a neutral decision
2.) Aliens:
a.) Boumediene v. Bush Congress does not have the power to deny habeas corpus
review to all aliens detained as enemy combatants absent a meaningful substitute
for habeas corpus review. A meaningful substitute would allow prisoners to:
(1) Challenge Presidents authority to detain indefinitely
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(2) Contest military commissions findings of fact
(3) Offer exculpatory evidence discovered after the military commissions
proceedings and
(4) Request release.
V. Privileges and Immunities of Congress and the President
A. Congressional Privileges and Immunities: Article 1 6 Cl. 3:
1. Members of Congress are privileged from
a. Arrest when their house is in session and going to and from, except for treason,
felony, breach of peace; and
1.) Limited to arrest for civil cases which no longer occur. Every criminal violation
breaches the peace to some extent.
b. Questioning for any speech or debates. This privilege protects against criminal or civil
proceedings for legislative acts including:
1.) Speech
2.) Voting
3.) Other legislative acts
4.) Matters which are integral part of the deliberative and communicative processes by
which members participate in committees and house proceedings with respect to
consideration, passage or rejection of proposed legislation or with respect to other
matters which the constitution places within the jurisdiction of either house.
c. This privilege does not protect against conduct outside the scope of legislateive
activities such as:
1.) Issue press releases or newsletters which defame someone
2.) Taking bribes to influence legislation
2. Gravel v. US (1972): Issue of whether the Speech and Debate Cause protects a senator and his aide where
the senator read into the congressional record a copy of the Pentagon Papers and subsequently arranged to have
those papers published. SCOTUS held that for the purpose of construing the S&D clause a congressman and his
aid are to be treated as one. The clause prohibits inquiry into things done by the aide which would have been
protected had they been done by the senator. What happened at the meeting is privileged but the arrangement to
publish the papers was not protected.
B. Executive Privilege: The executive privilege is not a constitutional power but rather is an
inherent privilege necessary to protect the confidentiality of presidential communications.
1. Scope of Privilege: Presidential documents and conversations are presumptively privileged
but the privilege must yield to the need for such materials as evidence in a criminal case to
which they are relevant and otherwise admissible. This determination must be made by the
trial judge after hearing the evidence.
a. National Security Secrets: Military, diplomatic, or sensitive national security secrets are
given great deference by the courts.
b. Criminal Proceedings: In criminal proceedings, presidential communiqus will be
available to the prosecution where a need for such information is demonstrated.
1.) US v. Nixon (1974): Issue of whether the Constitution provides an absolute privilege of
confidentiality for all presidential communications. SCOTUS held that high level communications
pertaining to military, diplomatic or sensitive national security secrets are protected. But, the
legitimates needs of the judicial process outweigh presidential privileges. When the grounds for
asserting a privilege as to subpoenaed materials sought for use in a criminal trial is based only on
generalized interest in confidentiality it cannot prevail over the fundamental demands of due process of
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law in the fair administration of criminal justice. The generalized assertion of privilege must yield to
the demonstrated specific need for evidence in a pending criminal trial.
c. Civil Trials: The court has not ruled on the scope of the executive privilege in a civil
case. The court has noted that the need for information in criminal cases is weightier than
in civil cases. The executives withholding of information in a civil trial would not impair
the judiciarys ability to fulfill its responsibility to resolve cases as much as in a criminal
trial. The court will give greater deference in a civil trial than a criminal trial.
C. Executive Immunity:
1. Absolute Immunity for President:
a. The President has absolute immunity from civil damages based on any action that the
President took within his official responsibilities, even if the action was only arguably
within the outer limits of presidential responsibility.
1.) Nixon v. Fitzgerald (1982): Issue of whether the scope of Presidential immunity extends to
allegations of termination of employment as retaliation for an employees testimony before congress
which resulted in embarrassing the administration. SCOTUS held that Presidents are entitled to
absolute immunity from damages liability predicated on his official acts.
a.) Rule in Scheurer v. Rhodes and Butz v. Economon: State/Federal Executive Officials
possess a good faith immunity from 1983 suits alleging constitutional violations. The scope
varies in proportion to (i) the nature of the official functions and (ii) the range of decisions that
conceivably might be taken in good faith. EXCEPTION: Sensitive duties of certain officials such
as judges and prosecutors require absolute immunity.
b. The President has NO immunity from private suits in federal courts based on conduct
that allegedly occurred before taking office. The immunity is intended only to enable
the President to perform his designated functions without fear of personal liability.
1.) Clinton v. Jones (1997): Issue of whether the doctrine of separation of powers requires federal
courts to stay all private actions against the president until he leaves office and if not, whether the trial
court in this case abused its discretion in granting the stay. SCOTUS held first that separation of
powers does not require federal courts to stay all private actions against the president until he leaves
office. The president is subject to judicial proceedings in appropriate circumstances. Although the
court in this case did grant a stay, doing so was not an abuse of discretion. A plaintiff may be required
to submit to delay, not immoderate in extent and not oppressive in its consequences if the public
welfare or convenience will therefore be promoted.
2. Immunity May Extend to Presidential Aides: Only if the aides are exercising discretionary
authority of the president in sensitive area of national concern such as foreign affairs. Other
aides are entitled only to qualified immunity (a good faith defense).
VI. Impeachment:
A. Persons Subject to Impeachment: The president, vice president, and all civil officers of the
United States are subject to impeachment.
B. Grounds: Treason, bribery, high crimes, and misdemeanors.
C. Impeachment by House: A majority vote in the house is necessary to invoke the charges of
D. Conviction by the Senate: A two-thirds vote in the senate is necessary to convict.