CONSTITUTIONAL LAW OUTLINESPRING 2016Prof.

Gudridge
Casebook (CB): Young, The Supreme Court and the Constitutional Structure (1st ed.)
All con law questions can be broken down into 2 issues:
1. Does the government have the power to act?
2. Has the government violated a limit on their authority?

The Constitution
I.

Origins and structure of the U.S. Constitution

a. The Constitution is the Supreme Law of the land and written charter of the Federal Government
b. Grants and limits power, and allocates that power among actors
i. Albany Plan of the Union (1754)
ii. Stamp and Townshend Acts (1765-1767)
iii. Boston Tea Party (1773)
iv. Revolutionary War (1775)
v. Declaration of Independence (July 4, 1776)
vi. Articles of Confederation (1777)
vii. Annapolis Convention (1786)
viii. Constitutional Convention (1787)
1. Secret meeting to revise the Articles
c. Constitution
i. Series of compromises
1. Representation
a. Bicameral Legislature
i. House of representatives (voice of the people)
1. Representatives delegate by population
ii. Senate (voice of the state)
1. Two representatives per state
2. Slavery
3. Federal Judiciary
a. Federal Supreme Court
b. Article 3 grants congress the authority to create federal courts
4. Federalists and anti-federalists
a. Alexander Hamilton, James Madison and John Jay wrote the Federalist Papers
5. June 21, 1788 the 9th State ratified the document
6. Bill of Rights ratified (1791)
a. We the people
i. Article 1: legislative authority
1. Section 8: powers of Congress
ii. Article 2: Executive authority
1. Commander and chief
a. Head of foreign affairs
iii. Article 3: Judiciary
1. Vesting Judicial authority to adjudicate cases in the Supreme
Court and any lower courts congress chooses to establish
iv. Article 4: Full Faith and Credit
1. Privileges and Immunities
v. Article 5: Amendments
1. Requirements
vi. Article 6: Supremacy
1. Laws and treaties of the United States
vii. Article 7: Ratification
1. The requirement of ratification by 9 states before ratification can
take affect

The Dead Hand Problem:

Why do the wishes of the (very dead) Framers trump the wishes of contemporary elected officials?
o The Constitution is entrenched due to Article V (U.S. Constitution 27 amendments)
Theory vs. Doctrine
o Theories are general organizing ideas
3 Constitutional Theories
Theories of obligation (explain why we obey the Constitution)
o Divine Right C came from God
o Consent Lockean social contract to consent
o Morality Its the right thing to do
Theory of Judicial review (explain why judges, get to interpret it and not other
government officials)
o Judicial job description Courts must apply the highest law in cases
before them
o Institutional capacity courts > other governmental actors @ enforcing
the constitution
o Representation reinforcement judicial review might be necessary to
correct for defects in the ordinary political process
Theory of interpretation (What does the constitution mean?)
o Textualism Formalist theory of the interpretation of law
o Originalism fixed as of the time of enactment
o Common law development custom and judicial precedent
o Moral theory what actions are right and wrong
o Doctrines are the more local rules and principles that guide decision in particular cases
Ex. In Heller, Test for 2nd amendment in Justice Breyers dissent
The black letter rules in Emanuels study aides

Section 1Heller
Chap 1. Constitutional Functions and the Dead Hand Problem:
CB 21-45;
District of Columbia v. Heller (2008) (Emmanuel pg.442-450) (pg.25)
Individual has right to bear arms regardless of militia, based on 2nd Amendment
Facts: D.C. passed a law that barred registration of handguns, required licenses for all pistols and mandated firearms be
kept unloaded/disassembled or trigger locked. Respondent, Heller, is a cop authorized to carry handgun and DC refused
registration to keep it at home. Heller filed sued to enjoin the bar on registration of handguns, licensing requirements for
at home and the trigger-lock requirement as prohibits functional use at home.
Issue: Do the D.C. Codes violate the rights of 2nd Amendment to keep handguns and other firearms for private use in
their homes when the codes:
(1) general bar against the registration of handguns,
(2) prohibition against carrying a pistol without a license, and
(3) requirement that all firearms be unloaded/disassembled or trigger locked, violate the rights of 2 nd Amendment to keep
handguns and other firearms for private use in their homes?

Holding: Yes, the D.C. Code violates the 2nd Amendment, which protects an individuals right to possess a firearm for
private use, but more reasonable regulations are permissible.
(a) Language of the 2nd amendment:
1. Language refers to an individual right of the people to bear arms outside of an organized militia, including
weapons of offense and armor of defense.
2. Security of a free state refers to the freedom of the people to dissent and security from suppression of
freedom.
3. Total ban on handgun possession in the home, requires guns to be inoperable and disassembled.
a. A disassembled or inoperable gun is not a gun at all.
b. Need for protection of family and property against home invasion.
(c) The Operative Clause: the right of people to keep and bear Arms, shall not be infringed is controlling and refers to
rights to carry weapons for self-defense/tyranny
(b) The Prefatory Clause: well regulated Militia, being necessary to the security of a free State, is consistent with
operative clause and refers to well-trained militia (all males physically capable of acting in concert for the common
defense) as being necessary sec of free people
-Today, we dont use strict white able bodied males
-Scalia says legislature can determine what subset of people is the people
Dissent (Stevens): 2nd Amendment protects only the rights of individuals to bear arms as part of a well-regulated state
militia, not for other purposes, even if they are lawful
-Reinforces that prefatory clause shows real purpose and intent not purely prefatory
Dissent (Breyer): Even if possession were allowed, any law regulating use of firearms has to be unreasonable or
inappropriate to violate the 2nd Amendment
-The D.C. laws here are both reasonable and appropriate
Significance: First SC case to directly address whether right to keep and bear arms is right of individuals, in addition to
being a collective right that applies only to state-regulated militias.
-Suggests that 2nd Amendment is applied to States, though unanswered, otherwise this decision would not have much
impact.
-This case illustrates the problems of originalist interpretation and different levels of scrutiny; does not specify exact
level of scrutiny to be used but rejects Breyers balancing of interest.
-Justices themselves establish review of the case either originalist or non-originalist
Friedman v. City of Highland Park, (2015);
Facts: City ordinance prohibited possession, manufacturing, or sale of semi-automatic rifles and high capacity clips
(10+).
Issue: Whether the citys ordinance restricting assault rifles violates 2A?
Holding/Reasoning: City ordinance did not violate 2A.
Appellants rely on Heller, which said a ban against all pistols violated 2A. However, it did reserve states the right to
enforce bans on some weapons not expounded upon.
- Looks at a rational basis for the firearm.
- But states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade
firearms, so as to have them available when the militia is called to duty.
- Highland Park's ordinance leaves residents with many self-defense options.
- Local crimes are most likely to be committed by local residents, who are less likely to have access to firearms
banned by a local ordinance. A ban on assault weapons won't eliminate gun violence in Highland Park, but it may
reduce the overall dangerousness of crime that does occur.
- Highland Park's ordinance may increase the public's sense of safety
- Difficult opinion to grasp. Not simple and does not provide a test. However, it is important and does tell us that when
judges cant decide and issue, perhaps it should be left to the political process to resolve it.

Section 2 Judicial Review

Chap 2. Judicial Review:
CB 57-79; CB 80-99; CB 99-116;
-Judicial branch powers Art. 3 creates the SC and gives the congress the power to make lower fed court
-First judiciary act of 1789 congress created the district courts and the federal courts of appeal.
-General rule: fed court can hear a case only if there is both constitutional/statutory authority.
-State courts can hear any case so long as it is not limited by statue.
Art 3 sec. 2 Cases and Controversies:
-The judicial power of the SC court comes from this cases and controversies clause.

5 Justiciability Doctrines
(1) Standing: if the P is the proper party to bring a matter to the court for adjudication. SC has stated that this is the most
important requirement.
Requirements for standing include:
a. Injury: the P must present only personally suffered injuries. P seeking injunctive or declaratory relief must show a
likelihood of future personal injury.
b. Causation and Redressability: P must allege and prove that the defendant caused the injury so that a favorable fed court
decision is likely to remedy the injury.
c. No Third Party Standing: P cannot present the case of a third party. Only can brings personal claims in front of the
court.
-Exceptions: a P that meets the other standing requirements and one of the following exception must be met: (1)
sufficiently close relationship b/w the P and injured third party. (2) if the injured third party is unlikely to assert its own
rights. (3) Organizational standingan org can assert the rights of its members if 3 requirements are met
1. Individual members have standing
2. Interest must pertain to the orgs purpose
3. Neither the claim nor relief request must require individual participation.
d. No Generalized Grievances Allowed: SC has said the Ps asserting general grievances lack standing. General Grievance
refers to a specific type of claim. P must not be suing solely as a citizen or a tax payer interested that the gov follow the
law.
-One exception: taxpayers have standing to challenge government expenditures, pursuant to a statue as violating the
establishment clause.
(2) Ripeness: may the fed court grant preenforcement review of a statute or regulation?
-Usual way to challenge a law is to break it be prosecuted and assert that the law is unconstitutional.
-If the P doesnt want to break the law, they can ask for declarative judgement. SC asses ripeness on 2 criteria:
a. Hardship P will suffer w/o preenforcement review.
b. Fitness of the issue and the record for judicial review. Any reason that the fed court should wait for someone to actually
break the law and pass judgement then.
(3) Mootness: if events after the filing of the law suit end the Ps injury then the case shall be dismissed as moot. Few
exceptions where Ps injuries are over but the fed court can still hear the case:
a. Wrongs capable of repetition but evading review.
b. Voluntary Cessation: D voluntarily halts the offending practice, but is free to resume it at any time the case will not be
dismissed as moot.
c. Class action suits: if the name plaintiffs claim becomes the class action will not be dismissed so long as one of the
members of the class has an ongoing injury.
(4) Political Question: allegations of Constitutional violations that the Fed court will not adjudicate. 4 examples that fed
court will not hear bc of political question:
a. Cases under the republican form of government clause. Art 4 sec 4 (Guarantee Clause).
b. Challenges to the Presidents conducting of foreign policy.
c. Challenges to the Impeachment and Removal Process (Nixon v. U.S.)
d. Challenges to partisan gerrymandering.

(5) Advisory opinion

a. Seminal case: Thomas Jeffersons Correspondence of the Justices (1793)

Solicitor General Brief in Texas v United States (Article III discussion only)
Marbury v. Madison (1803) (Emmanuel pg.5) (pg. 40)
**Single most important decision in American Con Law. It established the authority for the judiciary to review the
constitutionality of executive and legislative acts.
Facts: Adams, outgoing President, named 42 justices of the peace one of whom is Marbury. Commissions of the justices
signed on Adams last day in office and signed and sealed by Marshall but the formal commissions were not delivered by
the end of the day. New President, Jefferson, treated unformalized papers that werent delivered prior to Adams leaving as
nullity. P brought writ to SC to compel Jeffersons Secretary of State, Madison (D), to deliver the commissions.
Issue: Does the Court have the power to judge the constitutionality of laws? (Yes)
-Marshalls questions:
1. Does the applicant have a right to the commission?
2. If so, has the right been violated?
3. Does the law offer a remedy, and is that remedy a mandamus from the court?
Holding: Yes-Yes-NO. SC ruled against Marbury and held that it could not constitutionally hear the case as a matter of
original jurisdiction. Although the Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute was
unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution.
1. Does Marbury Have a right to the commission?
a. Yes. Court concluded that Marbury had a right to the commission b/c all appropriate procedures were followed.
Marshall said when the commission is signed, the appointment is made, but President Jefferson said delivery was
necessary. Court rejected Jeffersons view and ruled delivery was merely a custom no law on it.
2. If yes to 1, do the laws of his country afford him a remedy?
a. The judiciary could provide remedies against the executive when there is a specific duty to a particular person,
but cannot when it is a political matter left to executive discretion. So not all injuries can be remedied by the
court. However, can review administerial even if stems from political matter.
3. If yes to 2, can the SC issue this remedy and is mandamus the appropriate remedy?
a. Where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy,
including a writ of mandamus.
-This established the power of the federal courts to review presidential actions and is the basis for many important
SC decisions throughout American history. Sneaky Marshall
-Congress cannot increase the SCs original jurisdiction or expand the jurisdiction granted in Article III
specifically lists what has original jurisdiction, expansion is unconstitutional.
(a) Marshalls reasoning for Judicial Review:
a. Constitution is law. Courts have to interpret the law when resolving a case.
b. Constitution is written
c. Constitution is superior law.
d. Government offices must follow the constitution as it is the will of the people.
e. Separation of powers.
f. Judicial oath / duty to protect the Constitution as the Supreme Court interprets.
Note on Marbury and the Legitimacy of Judicial Review:
1. Creates authority for judicial review of executive decisions where there are individual rights and therefore government
duties. But where the executive has discretion on how to act the check is political. Technically was win for executive, but
was REAL win for judicial power now.
2. Establishes that Article III is the ceiling of federal court jurisdiction and says congress cannot expand the original
jurisdiction of the Supreme Court. this means that the courts get their jurisdiction from Article III, not from Congress
3. Establishes authority for judicial review of legislative actions; end of democracy with out this power there was no
directive straight from the Constitution

How did Marshall establish judicial review:

Conflict
- Article III does not give jurisdiction, while article 13 of judiciary act of 1789 does
- Article III says Supreme court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and
those in which a state shall be a party. 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 but Marshall quotes it without the part
about exceptions.

- Argument says exceptions only apply to appellate jurisdiction portion

- Marshall says the original jurisdiction stuff is both a floor and a ceiling
- The Constitution is Law notion from Marbury
- It is a rule of decision for the courts
- How does Marshall conclude the court had the power of judicial review?
- (aside) British courts cant find a statute from their parliament unconstitutional
- Each other branch already has power to refuse to enact a statute because it is unconstitutional so the judicial
branch should have this veto ability as well
1st argument -arising under cases arising under the constitution are reviewable by the court
Art 3, 2: Grant of jurisdiction.
2nd argument Case deciding function of court the Constitution is law and since its relevant it must be inquired into by
the court to decide the case
Court must decide cases must be able to look to the Con must have power of judicial review
constructively adversely possessing this power
Other argument - Supremacy Clause
- Constitution is supreme law of the land Art VI clause 2
o 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, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
- Says state judges are bound by the constitution
Problem word pursuant meant later in time back around 1789, so the text implies treaties do not have to be
made to fit within the constitution
Procedural (derived from/in conformity with) vs. temporal (after)
o If procedural, then treaties may not have to conform to Con. use temporal meaning.
- Argument about whether framers left out fed courts power to review on purpose
- There is no definitive evidence either way
Warth v. Seldin (STANDING) (Emmanuel pg.740; 742)
Facts: Ps challenged constitutionality of zoning practices in suburb of NY saying wanted to live in the burb but claimed
could not because zoning practices prevented construction of multifamily dwellings and low-income housing. Association
of home builders joined as Ps too. Restricted more than 90% of the empty lots to single family housing land.
Issue: Do petitioners, contesting Penfield, NY zoning laws on the basis that they exclude persons of low-to-moderate
income from living in the town, have standing?
(1) Metro-Act of Rochester, a not-for-profit corporation dedicated to alleviating the housing shortage for low and
moderate income persons in the Rochester Area
(2) Several individual Rochester taxpayers
(3) Several Rochester area residents with low or moderate incomes who are members of minority racial or ethnic
groups
Holding: No-No-No No causation. P could not point to a project that would show they WOULD have housing if this
ordinance did not exist
-Here, none of the minority citizens has alleged facts that show an actual injuries; they merely represent a larger class.
-They have never lived, nor allege that they would live, in Penfield if the zoning laws were different. No
demonstration that petitioners would get the housing they need per a favorable ruling by the court.
-Arlington Heights had similar exclusionary zoning challenge but builder had specific plans for low income housing that
were rejected (none in Warth) so was a sufficient probability that the housing project would be built and P had chance to
live in burb = Standing

Baker v. Carr (1962) (Emmanuel pg.751; 752; 754)most important case on political question!!! Justiciable
Fact that suit seeks protection of political right does not mean necessarily is political question
Facts: Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state's General
Assembly was virtually ignored. Baker's suit detailed how Tennessee's reapportionment efforts ignored significant
economic growth and population shifts within the state.
Issue: Whether an Equal Protection challenge to malapportionment of state legislatures is a non-justiciable political
question?
Holding: In an opinion which explored the nature of "political questions" and the appropriateness of Court action in them,
the Court held that there were no such questions to be answered in this case and that legislative apportionment was a
justiciable issue.
-Justice Brennan provided past examples in which the Court had intervened to correct constitutional violations in
matters pertaining to state administration and the officers through whom state affairs are conducted.
-Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised
in this case merited judicial evaluation.
6 independent tests for the existence of a political question (listed in descending order of both importance and certainty)
1. A textually demonstrable constitutional commitment of the issue to a coordinate political department history
of issues management by another governmental branch; or
a. The only Constitutionally demanded one all others are made up by the Court
2. A lack of judicially discoverable and manageable standards for resolving it; or
3. The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial
discretion; or
a. Policy question not fit for judges, purely institutional in way judges view role
4. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due
coordinate branches of the government; or
5. An unusual need for unquestioning adherence to a political decision already made; or
6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question
another policy reason
Rationale: None of the above mentioned characteristics are present.
- Cases under the guaranty clause are non-justiciable; SC has never varied from this
- Court holds that the claim does not rest upon nor implicate the guaranty clause so it is justiciable
Dissent: This has all of the elements that make the Guarantee Clause cases nonjusticiable. The Equal Protection Clause
provides no clearer guide for judicial examination of apportionment statutes than would the Guarantee Clause. Rewriting
the Constitution by choosing between Clauses.
Nixon v. United States(Emmanuel pg.752)
Judge collected pay while in jail and impeached by committee is political - Not Justiciable
Facts: Walter Nixon, a Federal District Judge, was convicted of a felony, making false statements to a grand jury.
-The House of Representatives voted three articles of impeachment; impeachment in the Senate followed.
-In accordance with Senate Rule XI, a Senate committee heard the evidence and reported its findings. The full Senate
convicted Nixon and sought to remove him from office.
-Nixon challenged Senate Rule XI in federal court on the ground that the rule violated the impeachment clause of the
Issue: Is Nixon's claim -- that Senate Rule XI violates the Impeachment Trial Clause -- justiciable, i.e., appropriate for
judicial resolution?
Constitution, which declares that "the Senate shall have the sole Power to try all Impeachments."
-The lower courts deemed the issue non-justiciable and declined to intervene in the dispute.

Holding: No. A unanimous Court held that the question of whether or not the Senate rule violated the U.S. Constitution
was non-justiciable since the Impeachment clause expressly granted that the "Senate shall have sole Power to try
any impeachments."
-The clause laid out specific regulations that were to be followed and as long as those guidelines were observed
the courts would not rule upon the validity of other Senate procedures regarding impeachments.
-Chief Justice William Rehnquist observed that while the Supreme Court was the "ultimate interpreter of the
Constitution," a matter would be deemed non-justiciable when there was "a constitutional commitment of
the issue to a coordinate political department."
Reasons judiciary was not chosen to have a role in the impeachment proceedings (nonjusticiable):
1. There would be 2 sets of proceedings, the impeachment trial and a separate criminal trial and judicial review
of the Senates trial would introduce the same risk of bias as would participation in the trial itself
2. Judicial review would be inconsistent with the framers insistence that the system be one of checks and
balances and the only check on the judicial branch by the Senate is the ability to impeach a judge
3. Judicial review of process could expose countrys political life to periods of chaos
Concurrence (White): Framers intended use of word sole to be limitation on potential interference by the House and
not on review by the judiciary. Saying word try does not present judicially manageable standard is dumb where would
intuitively think Framers used in legal sense.
Robins v. Spokeo, Inc., 742 F.3d 409 (2014)
Issue: Can Congress authorize a cause of action based on a violation of a federal statute and therefore confer Article III
standing on a plaintiff who has not suffered concrete harm?
Holding: The court identified three components required in establishing a standing in statutory right:
(1) the plaintiff has suffered and injury in fact that is
(a) concrete or particularized and
(b) actual or imminent, not conjecture or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant;
(3) it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision.
-Further the court stated that in standing cases that analyze statutory rights, Congresss creation of a private cause of
action implies that Congress intended the enforceable provision to create a statutory right, and a violation of a statutory
right is usually a sufficient injury in fact to confer standing.
-The Court also identified two constitutional limitations on congressional power to confer standing:
1. a plaintiff must be among the injured in a sense that she alleges the defendants violated her statutory rights
2. the statutory right at issue must protect against individual, rather than collective, harm.
Solicitor General Brief in Texas v United States (Article III discussion only)
Issue: Whether TX had any Art. III standing by providing voluntary subsidiaries to aliens that would allow TX to
challenge the federal policies of DACA and DAPA?
Holding: TX was able to establish the minimum needed to establish standing under article three which was cognizable
injury that affects it in an individual way that is fairly traceable to the policy.
-TX voluntarily provided (1) subsidized cost for aliens to receive temporary visitor drivers licenses; and (2)
allowed aliens with deferred action to apply for those subsidized licenses.
-By the Fed increasing the number of deferred action recipients through DACA and DAPA the cost to TX would
increase dramatically causing the alleged financial injury
-The brief clearly shows that Congress has given the Secretary discretion to establish all consequences that result from
deferred action under federal law through both the PRWORA and INA.
-The brief also established that any pressures felt by TX were self-imposed and that TX could end the self-imposed
programs if the federal programs did not align with their interest. Also, shows Congress delegation of power in a federal
issue trumps the state interest in such a federal issue.

Section 3 The Marshall Court

Chap 3. The Marshall Court and the Federal Balance
CB 120-41; 141-50; 150-55

Marshall court empathized federalism in the cases they took. Was a nationalizing court that sought to establish the
powers of the national government and check the power of the states.
Seminal case: McCulloch v. Maryland.
o Held that congress had implicit authority to establish the Bank of the US. Powers of congress to be
interpreted generously. Court invalidated MDs attempt to tax the bank. Marshall told the states not to
interfere with federal gov.
o In Gibbons v. Ogden, the court took the limits in McCulloch a step further in limiting states laws the less
directly impinged on federal authority.
o In Willson v. Black Bird Creek, the court did not limit state action when federal authority was absent.

McCulloch v. Maryland(Emmanuel pg.17-19; 45; 111; 113; 482)

Most important SC decision in US history defining the scope of Congresss powers and delineating the relationship
between the federal government and the states.
Facts: Maryland statute prohibited any bank operating in state without state authority from issuing notes not on state
issued paper. Law specified fees payable for the paper and provided penalties for violators. Act of Congress established a
U.S. bank. McCullough (D) was U.S. Banks cashier for Baltimore branch and issued bank notes without complying with
Maryland (P) law.
Issue: 1) Does Congress have the power to incorporate a bank?
2) Does a state have power to impose fees (taxes) on operation of institution created by Congress
pursuant to its constitutional powers?
-The issue SHOULD HAVE BEEN: was the tax appropriate?
Holding 1): Yes, Certain federal powers, giving Congress the discretion and power to choose and enact the means to
perform duties imposed upon it are implied from Necessary and Proper Clause.
Constitution does not exclude incidental or implied powers everything does not need to be granted expressly
and minutely described.
o Congress not limited only to acts specified in the Constitution; Congress may choose any means, not
prohibited by the Constitution, to carry out its lawful authority.
The Necessary and Proper Clause gives Congress the power to make all laws which shall be necessary and
proper, for carrying into execution the powers vested by the Constitution in the U.S. Government term
necessary not located with the limitations of those powers
o Common usage, the term necessary = convenient, useful, desirable essential
o Marshall says, Let the end be legitimate, let it be within the scope of the constitution, and all means
which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist w/ the
letter and spirit of the constitution, are constitutional. This granted more power to Congress.
Must allow Congress some discretion to choose means to perform the duties imposed upon it and as long as the
end is legitimate and within scope of Constitution it is constitutional.
o A bank is convenient, useful, and essential for national finances so it is within Congresss power to enact
a law incorporating a U.S. bank.
Holding 2): No, the federal Constitution and the laws made pursuant to it are supreme and control the Constitutions and
the laws of the states. Maryland statute is unconstitutional and void.
The Constitution derives its power from the people, not the states
o This defeats MD argument that state retains ultimate sovereignty because they ratified the constitution
Marshall maintains people ratified it and people retained sovereignty
Marylands statute taxes the operation of the U.S. Bank, which was properly created within Congresss power so
it is in opposition to supreme congressional power to create a bank.
The states have no power by taxation or otherwise to impede, burden, or in any manner control the operations of
constitutional laws enacted by Congress.
o This case spawned a bunch of cases saying the federal govt could not tax instrumentalities of the states
so things were reciprocal
Eventually in 30s this line of cases was reversed

Significance: Necessary and Proper Clause comes from this case. Article 1, Section 8, Clause 18
- Where does the 10th amendment come from? Articles of Confederation
- Only one word was changed expressly was left out of the 10 th amendment; on purpose!
- So this now means the fed government has implied powers not just express powers
- Real issue in McCulloch shows standard for implied powers as being as long as the ends are legitimate, the means are
not prohibited if they work towards the end.
- Marshall says that the Court must inquire into the motives of Congress.
- We must never forget that it is a constitution we are expounding. John Marshall
- Constitution is merely a framework, not supposed to explicitly cover all contingencies
This fundamental case established the following two principles:
1. That the Constitution grants to Congress implied powers for implementing the Constitution's express powers,
in order to create a functional national government; and
2. That state action may not impede valid constitutional exercises of power by Fed Gov
Gibbons v. Ogden (1824)
Commerce is intercourse and includes all phases of business Defines Commerce Power; expands the scope of the
Commerce Clause
Facts: NY legislature gave monopoly to 2 guys for operating steamboats in NY waters. Gibbons was licensed under law
of the US and began operating a competing ferry service and thus violated the exclusive rights given to Fulton and
Livingston, and their licensee, Ogden, under the monopoly. Gibbons maintained that he held the right to operate his ferry
b/c it was licensed under a federal law as vessels in coasting trade.
Issue: If a state law conflicts with a congressional act regulating commerce, which is controlling?
Holding (Marshall): The congressional act is controlling and NYs legislature granting of the monopoly was not
constitutional. It was preempted by federal law and was an impermissible restriction of interstate commerce. Power to
prescribe the rules by which commerce can be governed.
Rationale: Congress has the power to regulate navigation within the limits of every state and, therefore, regulations that
Congress passed controlling navigation within NY boundaries are valid. Congress was given all the power to regulate
interstate commerce, although it is possible for the states to pass regulations that may affect activity associated with
interstate commerce though this must be based off a different power (like PP or state) and must yield to federal law.
What is commerce?
- Counsel for Ogden said commerce was limited to traffic of buying and selling, or the interchange of
commodities (the buying and selling of goods) and that his clients operating of a steamboat was not considered
commerce.
- Marshall says everyone just knows commerce includes navigation (no citation really); much more than buying
and selling of commodities. It is commercial intercourse. Includes all phases of business not just the typical
buying and selling of goods; proceeds from sale may go interstate. Says only limit on Congress is political vote
em out if not like
It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This
power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the Constitution.
What does among the states mean?
- Among means intermingled with or concerning more than 1 state. By this view, Congress may regulate when
commerce has interstate effects, even if the commerce occurs within a state.
What are limitations of power?
- Congress has complete authority to regulate all commerce among the states
- Sole check is Political people vote for reps according to how much regulation they want
Significance: In the years after Gibbons there were few cases dealing with challenges to commerce power. Manufacturing
is not interstate commerce even if everything youre manufacturing is to be sold in another state. To this day, Supreme
Courts COMMERCE CLAUSE ANALYSIS ALWAYS BEGINS WITH Gibbons v. Ogden even to this day

Wilson v. Black Bird Creek Marsh Co. (Emmanuel pg.82-84)

Facts: Delaware established a chartered company to regulate its own creeks, marshes, and wetlands, by constructing a
dam. Plaintiff contends that by rendering the creek unnavigable, Defendant has rendered interstate commerce along that
route impossible.
Issue: Is Delawares action to dam its internal waterways in violation of the Constitution?
Holding: No, as it falls exclusively within the borders of Delaware and there is no conflicting federal law.

Section 4 Constitutional Concomitants of Slavery

Chap 4. Slavery, Civil War, and Reconstruction:
Constitutional concomitants of slavery (Gudridge)
CB 158-85
Constitution mentions slavery in three places: slave trade clause, fugitive slave clause, three-fifths clause.
Taney Court and Slavery (national consolidation) Dred Scott
o Dred Scott 2nd time the court held a congressional act unconstitutional
Prigg addressed the scope and enforcement of the Fugitive Slave Act. It enforced Congresss power to provide for
the return of fugitive slaves against northern states that had sought to regulate and impede the process.
Prigg v. Pennsylvania
Issue:
1. Did Pennsylvania's law prohibiting the extradition of Negroes to other states for the purpose of slavery violate
Article IV, Section 2 of the Constitution?
2. Did the law violate the Fugitive Slave Law of 1793 as applied by the Supremacy Clause?
Holding (Story): Yes, Yes.
1. The 1788 and 1826 Pennsylvania laws contradicted Article IV, Section 2 of the Constitution and the Fugitive
Slave Law. The Supremacy Clause assured that federal laws prevailed over the state laws.
2. BUT: The state laws put in place by slave states to recapture slaves in free states only had to be enforced by
federal officials, and not state magistrates.
Arguments:
a. Dormant argument: federal authority to regulate fugitive slaves, whether or not Congress has actually acted, is
exclusive.
b. Pre-emption argument: Pennsylvanias liberty law was in actual conflict with the Federal Fugitive Slave Act.
Vertical vs. Horizontal Aggrandizement:
-Vertical: Federal government seeks to increase its power at the expense of the states.
-Horizontal: States attempt to use the Federal government to impose their policy preferences on other states.
Dred Scott v. Sandford
Facts: Dred Scott was a slave in Missouri, who from 1833 to 1843 lived in Illinois, a free state due to the Missouri
Compromise. Scott returned to Missouri, and sued for his freedom, claiming free-state citizenship made him a free man.
Issue: Was Dred Scott a free citizen?
Holding (Taney): No.
a. Only a citizen of the United States can be a citizen of a state.
b. Only Congress can confer national citizenship.
c. Article III did not extend citizenship to descendants of slaves.
d. Missouri Compromise was unconstitutional.

Section 5 Constitutional Concomitants of Abolition

-CB 193-226

-The war of race:

-The two Cruikshank decisions: the first written by Justice Bradley, the second written by Chief Justice Waite;
-CB 335-42;
-Moore v. Dempsey
-Fourteenth Amendment incorporation as second reconstruction: CB 393-426
Abolition of slavery gave rise to the 13th (formally abolished slavery), 14th (conferred individual rights of
citizenship, due process, and equal protection) and 15th (barred racial discrimination with respect to voting)
amendments.
Reconstruction amendments created individual rights against state governmental action and empowered the fed to
enforce those rights. National government protecting citizens from states.
Barron v. Baltimore interpretation of the Bill of Rights pre-civil war.
Barron v. Mayor of Baltimore (1833) (Pre-incorporation / 14th Amendment DPC): (Emmanuel pg.162)
Amendments to the Constitution were intended as limitations solely on the exercise of power by the US Government and
are not applicable to the legislation of the States
Facts: City diverted water, made Barons wharf useless Baron sued Baltimore for taking property w/out just comp in
violation of the 5th amendment
Issue: State legislature limited by Constitutional Amendments - takings Clause of the 5 th apply?
Holding (Marshall): No, Bill of Rights was restriction of fed actions, not state and local conduct
- Constitution and its amendments were established by the people for themselves, own government and not for the
governments of the states
- Intended solely as a limitation on the exercise of power by the federal government
- Art. I 10 expressly lists restrictions on state gov no express words saying Amends do
- People and each state establish their own constitution they will incorporate this themselves
- Framers in BoRs looked to state constitutions for what to have anyway
- No conflict between states action and federal constitution = no jurisdiction; peace case
- 5th Amendment Takings Clause does NOT apply to the states
Significance: Most say this was correctly decided at the time
- If BoRs did apply to states, would be huge limitation on state powers
Slaughterhouse cases (1873) (Emmanuel pg.165; 422-423)
The privileges or immunities clause is removed as a basis for applying the Bill of Rights to the states or for protecting any
rights from state interference; 1st case construe meaning of P&I clause in the 14th amendment
Facts: LA law granted monopoly to a slaughterhouse company but Butchers (P) not included so sued claiming violate
involuntary servitude under the 13th Amendment and violated protections of P&I of national citizenship and equal
protection and due process of law under the 14th
Issue: Does 14th P&I Clause make all P or I's of citizenship fed rights subject to fed enforcement?
Holding (Miller): No, the 14th Amendment protects the privileges and immunities of national, not state, citizenship and
neither the Equal Protection/Due Process/Privileges and Immunities Clauses of that amendment may be used to interfere
with state control of the P or Is of state citizenship
- Underlying purpose 3 post-civil war amendments (13/14/15) was to eliminate remnants of slavery so Equal Protection
Clause and others have no basis here
- PorI Clause was not meant to protect individuals from state government actions and was not meant to be a basis for
federal courts to invalidate state laws
- Cant interpret any other way to prevent State from exercising police power (promote health in slaughterhouses) to
define particular privileges and immunities of its citizens
- Depends what P/Is are

- Fundamental i.e. protect by gov, right to acquire/own prop, happiness, and safety
- Refused to give due process clause a substantive meaning (only gave procedural; narrow interp)
Dissent (Fields): Views 14th amendment as protection for all citizens of fundamental rights of free government from
abridgment by the states if states differ than nation, people will lose out
Significance: Narrow interpretation of the P or I Clause precludes using provision to apply BOR
- Shot down argument that BoRs provis are the basic privileges and immunities all citz possess
- Narrow interpretation of Equal Protection lasted until 20 th cent now gender, alienage, legitimacy
Rosenn: This is an empty vessel basically makes the privileges and immunities clause of the 14 th worthless
because it only gives us the rights we already have this still holds true today
- To hold otherwise would be to freeze state legislation in 1868 if you had a right to do something before the 14 th
was adopted, the state cannot later limit this
Civil Rights Cases: US v. Stanley (1883) - Initial articulation of the state action doctrine
Civil rights guaranteed by the Constitution cannot be impaired by wrongful acts of individuals unless such acts are
sanctioned or authorized by the state
Facts: Passed Civil Rights Act of 1875 under 13th and 14th prohibiting private citizens from excluding others from public
places based on race. Challenged in 4 criminal and 1 civil suit.
Issue: Can civil rights guaranteed by Constitution be impaired by individuals if not ok in state?
Holding: No, 1 of 14th only applies to state and local government actions, not to private conduct
- Congress under 5 of the 14th can only regulate what is covered under 1 (state conduct), so cant regulate private
conduct but, rather, only could legislate against wrongs by state governments
- Because State law guides the conduct of individuals, first two sections of Act are invalid since
Dissent (Harlan): Read to narrowly and goes against framers intent of inherent liberty to US citz
Significance: Constitution offer no protection against private wrongs 14th only affects state action
- Does not matter how discriminatory or how much they infringe fundamental rights
- Congress now has broad power under 2 of the 13th Amendment to prohibit private racial discrim
Rosenn: Rehnquist court reaffirmed Civil Rights Cases in the United States v. Morrison (2000) that Congress lacks the
power under 5 of the 14th Amendment to regulate private conduct
Nobody argued commerce clause because in 1883 it was puny
13th Amendment does not have state action requirement because States dont own slaves
So why is there a state action doctrine? 3 major answers:
1. Text of the Constitution
2. History it used to be that the common law protected individuals from private interference of their rights, but
congruence has diminished over time when constitutional rights such as freedom of speech become recognized
makes SA requirement more troubling
3. Policy arguments that the state action doctrine enhances individual autonomy and safeguards federalism
United States v. Cruikshank (Justice Bradley decision)
United States v. Cruikshank (Chief Justice Waite decision)
Plessy v. Ferguson (Emmanuel pg.276)
Issue: Is a Louisiana law requiring separate railway cars for blacks and whites constitutional?
Holding (Brown): Yes
a. Separate but equal doctrine: as long as the separate quarters are equal, constitutional.

b. 14th amendment intended to establish absolute equality, BUT:

c. in the nature of things it could not have been intended to abolish distinctions based on color or to enforce
social equality as opposed to political equality.
Dissent (Harlan):
a. Legislation that allows a determination of race for the purpose of restricting civil rights violates the right of
privacy to ones own race
b. Separate but equal is discrimination in its own right because of the intent of keeping blacks away from whites.
c. There is no caste system in the eye of the law.
Moore v. Dempsey
Issue: Whether the rights of the black defendants were abridged (shortened) under the Due Process Clause of the
Fourteenth Amendment by the process of the trial.
Holding: In a 6-2 decision, Justice Holmes wrote for the Court that a mob-dominated trial violated the due process
provisions. He also said that federal courts, upon being petitioned for a writ of habeas corpus, were compelled to review
such claims of discrimination in state trials and to order the release of defendants judged unfairly convicted.
-"If the whole case is a mask -- that counsel, jury and judge were swept to the fatal end by an irresistible tide of public
passion, and the state courts refuse to correct the wrong, then nothing can prevent this court from securing to the
petitioners their constitutional rights."Justice Holmes
The case was sent back to the lower courts and Arkansas finally freed all 12 men.

Adamson v. California
Prosecutor allowed to comment on the defendants lack of testifying
Facts: Adamson was convicted in California of murder in the first degree. During the trial, the prosecutor, in accordance
with a California law, made comments to the jury which highlighted Adamson's decision not to testify on his own behalf.
Issue: Does the 5th amendment guarantee of freedom against self-incrimination extend to the states?
Holding (Reed): No
a. It is settled law that the clause of the 5th amendment [in question] is not made effective by the 14th amendmentas a
right of national citizenship.
b. Palko v. Connecticut: 5th amendment protection against double jeopardy did not apply to the states through the 14th
amendment.
c. Twining v. New Jersey: Intended to leave the states wholly free to compl confessions
d. I fear to see the consequences of the Courts practice of substituting its own concepts of decency and fundamental
justice for the language of the Bill of Rights
Concurrence (Frankfurter): Incorporation would tear up by the roots much of the fabric of law in the several states,
and would deprive the states of opportunity for reforms in legal process designed for extending the area of freedom.
Dissent (Black): Court should not incorporate unenumerated rights, but should extend the enumerated rights of the Bill of
Rights to the states.
-Criticized natural law approach
Dissent (Murphy): Murphy would follow Blacks approach, but also incorporate those implied rights NOT specifically
enumerated.
Duncan v. Louisiana (1968) -Warren Courts approach to DP meaning incorporate almost all BoR
Right to jury trial in serious criminal cases punishable by 2+ years prison is a fundamental right that must be recognized
by states as part of their obligation to extend DP all person in jurisdiction
Facts: D charged with battery, which is punishable by max of 2 years prison and $300 fine. LA law only grants jury trial
for cases that may impose capital punishment or imprisonment at hard labor

Issue: Does 14th guarantee right of jury trial in all crim case that would have 6 th guarantee in fed ct?
Holding (White): Yes, trial by jury in crim cases is fundamental right in American justice scheme
- It is fundamental right because it avoids oppression by government and biased judges
- Ex. overzealous or corrupt prosecutor and the compliant, biased, or eccentric judge
- Incorporates the 6th Amendment through the 14th Amendment
Test: Is it fundamental to the American scheme of justice? How know do you know when it is?
- Other states actions, other courts said, what Courts own policy considerations are
Concurrence (Black/Douglas): Prefer not to give settled meaning to DP since changes over time
- Want incorporate whole Bill of Rights, but ok with 1 at a time Total then Selective incorporation
Rosenn: Incorporation means its identical for the states as it is for the federal government
Exception: Jury trials States not need 12 people; allow non-unanimous jury verdicts in state courts
What is not incorporated yet?
2nd Right to bear arms ; uphold state gun control laws
3rd Quartering soldiers ; not likely to come before court obviously
5th Right to grand jury indictment in criminal cases ; can use alternatives like prelim hearg
7th Right to jury trial in civil cases
8th Prohibition on excessive fines

Mapp v. Ohio
Facts: Mapp was convicted of possessing obscene material after an illegally conducted police search of her home for a
fugitive.
Issue: May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal
proceeding?
Holding (Clark): No
a. All evidence obtained in violation of the constitution is inadmissible in state court.
b. 4th Amendment right of privacy, exclusionary rule
c. Placed the requirement of excluding illegally obtained evidence from Court at all levels of the government.

Section 6The Commerce Clause and Congressional Power

-The opinion of Chief Justice Roberts in Sibelius (the Affordable Care Act decision)
-United States v. Lopez; Gonzalez v. Raich CB 715-63.
-National Labor Relations Board v. Jones & Laughlin Steel Corp; Wickard v. Filburn CB 295-307
-Pre 1937: United States v. E.C. Knight Co.; Hammer v. Dagenhart CB 260-279
Chief Justice Roberts in Sibelius
Opinion of Chief Justice Roberts in Sibelius (the Affordable Care Act decision)
The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the
power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
The scope of the commerce power depends on the interpretation of commerce. If construed sufficiently broadly, the
commerce power can give Congress the power to legislate in many areas that otherwise would fall within the scope of the
states police power. The Constitution does not define the term and the Supreme Court therefore has great flexibility in

deciding cases involving the Commerce Clause and enormous power to influence the balance of state versus federal
power.

The Powers of Congress

MuCulloch v. Maryland this government is acknowledged by all to be one of enumerated powers.
o The federal government may exercise only those powers affirmatively conferred upon it by the
constitution; all other powers, as the 10A makes clear, are reserved to the States.
o Powers belong to the states, every national action must be tied to a constitutional provision.
Three biggest powers of congress:
o 1) Commerce Power
o 2) Power to enforce Reconstruction Amendments
o 3) Spending Power
The Commerce Power
Congress can regulate commerce between
o 1) States
o 2) Foreign nations
o 3) Indian tribes
In Black Bird Creek Marsh Co., congress used commerce power to impose dormant limits on state regulation.
In 1995, Congress ability to use the commerce clause to enforce any congressional action was limited for the first
time in US v. Lopez.
United States v. Lopez (1995) Reinforces stricter test of substantially effects No Commerce
Gun-Free School Act exceeded Congresss Commerce Clause regulatory powers State Gov. wins
Facts: 1990 federal Gun-Free School Zones Act made federal offense for student to knowingly possess a firearm at a
place that the person knows or has reasonable cause to believe is a school zone / carry gun onto campus. Lopez caught
with gun. Argues Act beyond Congresss powers under Commerce Clause.
Issue: Did the Gun-Free School Zones Act exceed Congresss Commerce Clause as reg. power?
Holding (Rehnquist):
Can regulate in three areas:
Rehnquist gives 3 prongs under which Congress may regulate:
1. Use of channels of interstate commerce Heart of Atl., Darby, Ames, Gibbons
2. Instrumentalities of interstate commerce i.e. Shreveport regulate intrastate activity for the sake of interstate
commerce
3. Activity that substantially affects interstate commerce i.e. Laughlin Steel
- Does not have to be close now, just substantial
Substantial relation affect vs. substantially affect
Yes, the fed gov. is one of limited, enumerated powers. Struck down statute.
Rationale: For Congress to legislate, it must do so under an express constitutional provision. Commerce Clause has been
source of most of Congresss legislative power since 1930s, but this is not a general grant of police power.
- no studies or express congressional findings linking interstate commerce to gun possession in a school zone.
-did not believe governments national productivity rationale: no limits
- Statute struck down b/c no reason that gun in school zones substantially affects interstate commerce; Court quickly
disposes of first two prongs and weighs in on the third.
- Any lengthy series of interferences and assumptions to say may affect interstate commerce
would make any activity that way.

- Article I limits Congress legislative powers to those that are express or implied in the Constitution. Federalism allows
states to have their own criminal codes.
- Powers not written were not meant to be given to Congress. Not written = not wanted
- Point at which line is drawn to limit federal government is where a regulated activity does
not substantially affect interstate commerce this point has been passed here.
Concurrence (Kennedy): When an exercise of power under the Commerce Clause unduly upsets the balance of power
between the states and the national government, as the law does here, it is proper for Court to intervene though usually
best left to political sectors of government.
Forecloses the states from experimenting and exercising their own judgment in an area to which states lay claim by right
of history and expertise.
Concurrence (Thomas): Point is to show how far they have strayed from framers intent. Substantial effects test goes
beyond original intent of framers and grants Congress something closer to a general Police Power and is at odds with the
10th Amendment. Argues with shades of Carter v. Cole and Dagenheart Neanderthal view of Commerce Clause.
Dissent (Stevens): Education of youth has major impact on national economy and is proper subject for Commerce Clause
regulation
Dissent (Souter): Is excessive judicial activism similar to judicial review from 1 st third of century
Dissent (Breyer): To determine if has significant impact on interstate commerce, need to think of cumulative effects of all
similar instances of the conduct not a single example of regulated activity. Cumulative impact of guns on campus will
have significant impact on national economy.
Breyers 3 Basic Principles of Commerce Clause Interpretation ( Rosenn would like this)
1. Encompasses the power to regulate local activities insofar as they significantly effect interstate commerce
2. In determining that significant effect, the Court must consider not the effect of an individual act, but rather the
cumulative effect of all similar instances
3. Courts must give Congress a degree of leeway in letting them determine how to control commerce b/c the
Constitution gave them the Commerce Clause power and their branch is better suited to make that judgment.
Rational Basis captures this point. Trust Congress.
Significance: 1st case to limit Congresss power under the Commerce Clause since the Great Depression. May signal a
trend back towards States rights?
- After this case, Congress amended the statute and added a jurisdictional element saying the gun must have traveled
interstate
The Court specifically looked to 4 factors in their determination:
1. Whether the activity was non-economic as opposed to economic activity; previous cases involved economic
activity.
2. Jurisdictional element: whether the gun had moved in interstate commerce.
3. Whether there had been Congressional findings of an economic link b/t guns and education.
4. How attenuated the link was between the regulated activity and interstate commerce.
- Whether there is a substantial effect on interstate commerce (3rd prong), does this really matter?
- If Congress decides that the Moose is an endangered species, can Congress pass an Act saying that you cant harm
Mooses?
- Moose travel across state lines the same way that companies pollute irrespective of state
borders. Rosenn does not believe the economic only argument makes any sense!
- Kids bringing guns to school is a national problem, not restricted to any specific state. So does it make sense that
Congresss power is restricted to an economic sense?
- This Statute was put back in the books under the same # immediately after this case. Statute was just clarified to add the
3-prong test given by Rehnquist
- Usually conservative arguments interpret the original intent of the Framers of the Constitution
- Its not the Courts job to figure out why Congress made the decision it did.
3 Problems with the Majoritys Opinion
1. The holding runs contrary to modern Supreme Court cases.

2. The Court thinks it can reconcile this holding with past holdings by making the difference between
commercial and non-commercial transactions
3. It threatens legal uncertainty in an area that until this case seemed reasonably well settled. (Theyre creating a
shit-storm when there doesnt need to be one.)
4.

Gonzales v. Raich (2005) - Broad authority - Commerce

Commerce Clause permits Congress to criminalize local cultivation and medicinal use of marijuana even if those uses
otherwise comply with a States laws
Facts: Congress enacted Controlled Substances Act (CSA). Raich and Monson wanted to smoke pot for medicinal
purposes under CA law. DEA raided their home and seized their plants that they claimed was for their medicinal use only.
Sued gov for injunctive and declaratory relief to prohibit CSA enforced. The government argued that if a single exception
were made to the Controlled Substances Act, it would become unenforceable in practice. The government also contended
that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana, and hence
that the federal government may regulateand prohibitsuch consumption.
Issue: Commerce Clause permits Congress to criminalize local cultivation and medicinal use of marijuana even if those
uses otherwise comply with a states laws?
Holding (Stevens): Yes, Congress may regulate local economic activities that substantially affect interstate commerce.
Statute regulates home-grown, home-used pot, which is an activity that would substantially affect the nationwide market
for pot. Decisions in Morrison and Lopez dont apply because those cases decided challenges to entire statutes and
involved no economic activity; the proposed use here seeks only to invalidate local enforcement of CSA for very specific
purpose and use is also an economic activity. Weed popular part of commerce; legal or not.
Concurrence (Scalia): The Necessary and Proper Clause, which permits Congress to regulate local, noneconomic activity
if the regulation is necessary to effectuate valid legislation enacted pursuant to the Commerce Clause supports CSAs
application against Ps. Regulation should be permitted as necessary part of the CSAs overall regulatory scheme. Both
together = ok!
Dissent (OConnor): Court denies CA from letting itself be laboratory on question of medicinal pot use. Majority
upholds fed law under Commerce Clause without any proof that proposed use of pot constitutes economic activity or that
the use substantially affects interstate commerce even if it is economic activity. Pot never involved in interstate commerce
since home-grown and no evidence that makes up large enough amount to substantially affect the national market.
Dissent (Thomas): Decision will let Congress regulate almost anything under Commerce Clause. Merely possessing item
for personal use is not economic activity under CC. The CSA doesnt pass under Necessary and Proper Clause because
regulating uses is not necessary based on some failure of CAs law. Regulation is not proper because undermines
federalism and states rights.
Significance: Majority uses contemporary Commerce Clause analysis in distinguishing Morrison and Lopez; follows
Wickard by saying weed is directly related to / has a substantial effect on commerce. Majority restores much of gigantic
breadth of Commerce Clause power that existed before Lopez was ruled on in 1995
- Intrastate production of a commodity sold in interstate commerce is economic activity and thus substantial effect can
be based on cumulative impact
- Maybe Pierce County and Raich signal a shift away from limiting Commerce? Or just pause?
N.L.R.B. v. Jones & Laughlin Steel (1937) - Contested issue, most likely on the exam
Congress has power to regulate any activity, even intrastate production, if the activity has an appreciable effect, either
direct or indirect, on interstate commerce affectation doctrine

Facts: J&L (D) engaged in unfair labor practices. NLRB issued cease and deceased at two steel plants in and around
Pittsburgh. D operates in multiple states with thousands of employees. D refused to comply saying that National Relations
Act unconstitutional since plants not engaged in interstate commerce, being totally manufacturing facilities. Act was
limited to things that affected interstate commerce.
Issue: Do the manufacturing portions of a large, integrated multistate corporation fall within the constitutional meaning of
the term activities affecting commerce to allow fed regulation?
Holding: National Relations Act is Constitutional. Yes Commerce can regulate.
Rationale: Congress has the power to regulate any activity, even intrastate production, if the activity has an appreciable
effect, either direct or indirect, on interstate commerce. Because the industries crossed over state borders, it was the
Congresss responsibility to regulate. Controlling question is the effect on interstate commerce, not the source of the
interference. Congress still has power to regulate if intrastate acts bear such a close and substantial relation to interstate
commerce that control is appropriate for the protection of commerce. Congress forbidden only from regulating acts that
have a remote and indirect effect on interstate commerce. If production were interrupted at one of plants here because of
labor dispute, extensive nationwide operations would necessarily be an immediate effect on interstate commerce
Congress can regulate to protect interstate.
Significance: This case signals Court changing its view (takes view opposite of Schechter; no more strict geographical
definition of interstate commerce). Abandons direct/indirect idea, takes idea Congress can regulate intrastate commerce if
it has a harmful affect on interstate commerce. First place that you see the close and substantial relationship test. Before
this States were almost always winning. This is where the Federal Govt starts kicking some ass
- Expressly declared that fact that employees engaged in production was not determinative
- Same time that SC abandoned the substantive DP principles of Lochner too!
Wickard v. Filburn (1942) Fed wins again Wheat grown for family = interstate Commerce
Farm production intended for consumption on the farm is subject to Congresss commerce power, since it may have a
substantial economic effect on interstate commerce.
Facts: Congress passed and amended the Agricultural Adjustment Act of 1938 in order to control the amount of wheat
produced and subsequently the price of wheat by setting allotments. Filburn had produced more wheat than he was
allotted by the government. He argued that the extra wheat was for his own personal consumption and did not travel
across any state lines, therefore unable to be regulated by Congress.
Issue: Does Congress, under the Commerce Clause, have the power to regulate the production of wheat that is grown for
home-consumption purposes rather than for sale in interstate commerce?
Holding: Yes, farm production that is intended for consumption on the farm is subject to Congresss commerce power,
since it may have a substantial economic effect on interstate commerce. Congress can regulate even if the activity is local
as long as there is a substantial economic effect on interstate commerce. Aggregation principle: if the 239 bushels and
aggregate it with the other leftover wheat, the number becomes far from trivial and can impact interstate commerce.
Rationale: Congress has power to regulate prices and practices affecting prices. Wheat destined for home consumption
has an effect on the interstate price of wheat so subject to regulation. And if Filburn had not used homegrown, he would
have bought on open market, just like all the other farmers would have. So in aggregate would be substantial effect on
interstate commerce in market for wheat, even if individual effects are trivial.
Significance: These facts were perfect for a test case to test the constitutionality of this Act. Court adds in aggregation
principle. Now Congress has even more power to regulate local activity
- Congress is very close to basically regulating virtually all private economic activity.
- Critical expansion of federal powers because the Court is making explicit that it is no longer conceiving of commerce in
purely mechanical terms. It perceives of it in economic terms.
- Not whether activity is commerce, but whether has a substantial effect on interstate commerce.
- Expressly reject direct/indirect and production/commerce formulas builds on affectation doctrine

United States v. E.C. Knight Co. (1895)

Commerce Clause does not empower Congress to regulate manufacturing Not Commerce
Facts: One Co. had almost monopoly of refining sugar in US Government brought Anti-trust suit
Holding: Manufacturing is NOT commerce at this time, so Sherman Antitrust Act could not be used to stop a monopoly
in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing. Effect on
commerce would be indirect/secondary and thus outside the scope of federal power. Read Sherman Act to be nonapplicable.
Significance: Not dealing with trade but with manufacturing. Commerce is different from manufacturing. Were looking
for logical stopping point so decided to exclude mining, manufacturing and agriculture with their similar antigovernment
regulation view to these pre-commercial activities. Were artificial limitations. This is classic example of dual federalism
view.
- Invalidates anything with indirect effect on commerce. Better to be safe and NOT act if potential for blurred vision
(police power v. commercial power) and unconstitutional intervention. Court had a problem conceiving things that did not
actually travel interstate as part of the commercial landscape.
Hammer v. Dagenhart (1918)
Congress cannot, under commerce power, pass law prohibiting transport in interstate commerce of products of companies
that employed children laborers in violation of terms of law No Commerce
Facts: Congressional prohibited shipment in interstate commerce of product of any mill, canery, workshop, factory that
employed children under 14 or for too long of hours. Dagenhart (P) brought suit on behalf minor children after heard
company worked at was going to fire them because of act.
Issue: Can Congress, under its commerce power, pass law prohibiting transportation in interstate commerce of products of
companies that employed children laborers in violation of the law?
Holding: The child labor law is unconstitutional because it infringed on the states rights. Court is essentially saying that
you can employ workers as young as 12 to produce things, but cannot be shipped interstate.
Rationale: Commerce power includes the power to prohibit the transportation of ordinary products in commerce. The
goods are harmless in themselves as the production of articles intended for interstate commerce is matter of local
regulation. Making of goods and mining of coal are not commerce, so shipping them interstate does not make them
commerce. Commerce clause is not intended to give Congress a general authority to equalize such conditions by requiring
states to exercise their police powers. The 10th amendment reserved to the states control over production, and federal laws
attempting to regulate production are unconstitutional.
- Uses same technique as Champion v. Ames
Dissent (Holmes): States are free to control within their borders, but once transportation extends beyond the borders,
Congress may certainly intervene. Congress is trying to regulate manufacturing (because we said so) and this allows
- Indirect effect on state action should not curtail congressional directives.
Rosenn: Thinks this is one of the dumbest decisions ever
When the commerce begins is determined by its actual delivery to a common carrier for transportation, or the
actual commencement of its transfer to another state
Only makes sense by Court saying is only a pre-text, not really regulating interstate commerce, just says doing
that what really doing is regulating manufacturing
Significance: Expressly overruled by Darby in 1941

Section 7Federalism Constraints and the Commerce Clause

-U.S. Term Limits, Inc. v. Thorton CB 635-669

-Garcia v. San Antonia Metropolitan Transit Authority CB 676-698
-Commandeering?: New York v. United States CB 826-864
-Supplemental: Alden v. Maine
U.S. Term Limits, Inc. v. Thorton

Garcia v. San Antonio Transit (1985)

Expressly overrules National League of Cities v. Usery
Facts: Mass Transit people were not believed to be immune from FLSA wages. Pursuant to Usery, Argued activities
comprised a traditional governmental function and were thus immune from requirements of the FLSA.
Issue: Does the test for determining whether a state activity is immune from federal regulation under the Commerce
Clause continue to include a determination of whether the activity is a traditional state governmental function? what is a
traditional state function
Holding (Blackmun): No, the test is now if regulation as applied to state activity is destructive of state sovereignty or
violative of any constitutional provision. FLSA requirements are not destructive of state sovereignty or violative of any
constitutional provision so Transit is not immune.
Rationale: Test in Usery that has prerequisite of governmental immunity from statute that infringes on traditional
governmental function is an unworkable standard. There is no indication how to determine traditional from nontraditional.
Limitations imposed by the Constitution under Article I and in the structure of the fed government itself give state
considerable influence over both branches of the Congress and executive branch. This affords states protection against
unbridled regulation of fed government under Commerce Clause.
Policy reasonings:
Separation of powers you dont want an unelected federal judiciary about which state policies it favors and
which ones it dislikes. Traditional state functions depend on what time period you go back to, so this reinforces
that it really is the judge enforcing it with his view.
Federalism/Political Process is a check on Congresss commerce clause power.
Dissent (Powell): Framers intended states to retain sovereignty in some matters at least and majority ignores no
explanation how protect sovereignty simply through role in electoral process
Dissent (Rehnquist): the majority will eventually switch back to the other side (the side of Userys majority). Mad
because they think the Court has reduced the 10th amendment to pure rhetoric as long as the Commerce Clause is used to
justify the action or decision. Well be back!!!(1990s+true)
Significance: No more integral or traditional divisions, state has same obligations as private employers. Garcia really
says that the 10th amendment will not protect the states, but the 11th Amendment argument from Alden will. Political
process echoes holding of Gibbons v. Ogden
New York v. United States (1992) Nuclear waste case
The federal government may not order/compel a state government to enact particular legislation
Facts: 3 states in the Union who were accepting and disposing of nuclear waste. 2 said they were done because they were
tired of being the countrys dumping ground. The last state started limiting the amount of out of state waste they would
accept. Created fed Act that set 7 year deadline for every state to figure out what going to do with waste so that the 3
states didnt have to burden all of it. The Low-Level Radioactive Waste Policy Amendments Act provided 3 incentives for
states to comply with the agreement (1) Congress authorized sited states to impose surcharge some goes to fed and some
to complying states to reward waste disposal; (2) Congress empowered sited states to deny access to states not in
compliance; and (3) State not in compliance after deadline has to take title to all waste generated in state or become

liable to instate waste generators for all damages. NY did not join regional waste compact and couldnt settle on in-state
site so sought to invalidate Act as violative of state sovereignty principles of the 10 th Amendment.
Issue: May the federal government order a state government to enact particular legislation?
Holding (OConnor): No. First 2 incentives (both monetary) are constitutional under Spending and Commerce.
However, the take title provision (3rd incentive) crosses the line to coercion. Whether a state chooses to take title to
waste or to accept liability for disposal, the burden of not enacting the federal plan falls on the state. Forcing states to
accept ownership of radioactive wastes would impermissibly commandeer state govts, and requiring state compliance
w/ federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation.
Strength of fed interest is irrelevant. Fed courts may issue directives to state officials, but Constitution expressly grants
thaity. Such authority is outside Congresss enumerated powers and thus infringes on state sovereignty reserved by the 10 th
Amendment. State may not constitutionally consent to give up their sovereignty.
Congress may urge state to adopt legislative program consistent with fed interests in 2 ways:
1. May attach conditions to the receipt of federal funds conditions must bear some relationship to the purpose of the
federal spending state can just say no if it doesnt want the funds
2. Where congress has authority to regulate private activity, Congress can give a choice b/t letting the states regulate that
activity according to federal standards, or having state law preempted by federal legislation. i.e. clean water act,
OSHA state residents may want their state govt to concentrate on other matters, and thus just basically adopt the
federal legislation
Concurrence/Dissent (White): Acts were product of cooperative federalism as the states bargained among themselves to
solve an imminent crisis and achieve compromises for Congress to sanction. States helped formulate agreement of Act so
shouldnt be able to sue. Majority wrongly finds states cannot consent to relinquish some sovereignty. 10 th Amendment
restrictions on the commerce power are procedural limits designed to prevent federal destruction of state government, not
protect substantive areas of state autonomy.
Concurrence/Dissent (Stevens): Notion that Congress may not order states to implement federal legislation is incorrect
and unsound fed gov already regulates state railroads, schools, prisons, and elections, and in time of war, Congress
undoubtedly could command states to supply soldiers.
Significance: 1st case since Usery that invalidated a federal law as violating the 10th amendment. Everyone agrees that the
Federal Government couldve enacted legislation to solve this problem, but instead they sat back and let the states
determine how to fix this problem. Thats why the SC slams Congress in this opinion. Leads you to believe that this case
doesnt really make much sense.
Rosenn: Cant just look at 10th Amendment for powers need to look at Art I, NPC & Implied Pow
- Thinks OConnor goes to far in trying to make 10th Amendment a meaningful truism its not
- Command comes from obligation States voluntarily assumed, where Garcia was imposed by Fed
- Court seems to be ok w/ Congress regulating states indirectly, but it also regulates states directly.
- It appears that if a federal law compels state legislative or regulatory activity, the statute is unconstitutional even if there
is a compelling need for the federal action.
Alden v. Maine (1999) - probation officers labor case - "congruence and proportionality"
Congresss Article I power does not authorize it to abrogate the states immunity from suit on federal claims in their own
court broad principle sovereign immunity applies in fed/state cts
Facts: Probation officers (P) sued state of Maine saying violated Fair Labor Standards Act of 1938 (FLSA). State did not
consent and sought to dismiss on basis of sovereign immunity.
Issue: Does Congresss Art. I power authorize it to abrogate states immunity from suit federal claim in own courts?
Holding (Kennedy): No. Immunity from suit was a fundamental aspect of sovereignty that the states enjoyed before the
ratification of the Constitution and retained after ratification.

- Congress cannot authorize suits against state governments in state courts; state governments may not be sued in state
court, even on federal claims without their consent
- States sovereignty is confirmed by the 10th Amen and history that led to enactment of 11th Amend
- SI doesnt come from 11th Amendment, but structure of original Constitution itself
- Dont look narrowly at text of 11th(not from here); but comes from history and structure of Constitution
- This supports inference that constitution preserves states immunity form suit absent express waiver
- Power given to Congress in Art. I and by Supremacy Clause may override sovereign immunity only when doing so is in
keeping with the constitutional design history says cant
- Principles of federalism and role of state courts in constitutional design support this conclusion
- States would have to turn against selves and give fed gov more power to control
- Could force states to be debtors and severely burden financial integrity
- Must strike balance between supremacy of federal law and states sovereignty
- States still must obey fed laws that follow constitutional design and subject to suits brought under Congresss
enforcement power under 5 of 14th Amendment; didnt consent here!
- Not judicially enforceable except certain circumstances
Dissent (Souter): Majoritys historical analysis is wrong because sovereign immunity at common law was defeasible
by statute and was not an unalterable right. Wrong on every point.
- When constitution was first framed, did not even mention sovereign immunity
- At ratifying convention, nobody brought up sovereign immunity
- Federalism rationale is wrong too states not sovereign with respect to national objectives
- Once state creates courts of general jurisdiction, supreme clause req. entertain fed claims
- Majoritys ruling would not allow state tort victims (FLSA) to sue without a federal attorney
Significance: First case to set down the "congruence and proportionality" requirement for laws enacted under 5 of the
14th Amendment
Class: While pending, Seminole was decided which made clear that Congress lacks power under Article I to abrogate
States SI form suits so got dismissed, refile in state, then dismissed on SI
- End result here forces the US govt to be the ones who have to sue the states
- There isnt anything that says Cong cant abrogate common law immunity and changing the rules
- Inconsistent state statute loses under supremacy clause when it goes up against an Act from Cong
- No textual support from the Constitution for the conclusion that Justice Kennedy reached.
- The Court has now constitutionalized the principle of State Sovereign Immunity
- If Fed Govt had sued on behalf of people seeking their money, wouldve been a different story.

Section 8The Dormant Commerce Clause etc.

-Philadelphia v. New Jersey; Kassel v. Consolidated Freightways Corp. CB 870-892
-Complications: South-Central Timber Development, Inc. v. Wunnicke; United Building & Construction Trades Council v.
Mayor and Council of the City of Camden; Metropolitan Life Ins. Co. v. Ward CB 893-916
-Preemption: Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commn; Lorillard
Tobacco Co. v. Reilly CB 919-939
Philadelphia v. New Jersey (1978) - Garbage case NJ prohibits outside garbage - Unconstitutional
State laws that basically protectionist in nature unduly burden interstate comm and unconstitutionl
Facts: NJ statute prohibited importing solid/liquid waste collected or originating from another state
Issue: Do state laws that are basically protectionist in nature unduly burden interstate commerce?
Holding: Yes, even if ultimate purpose was to protect health and safety, the state may not accomplish this by
discriminating against articles of commerce coming from outside the State
- Discrimination must be based on some property of the goods other than geographic origin
- This law treats inherently similar products differently solely based on origin

- Distinguish quarantine cases b/c outside waste is not distinguishable from NJs own waste
- Both on its face and in its plain effect, the statute violates the principle of nondiscrimination
- State may not attempt to isolate itself from problem common to many states by erecting barrier against movement of
interstate trade
- Court says if the state law is for economic protection, its virtually per se invalid
- Isolating themselves economically because landfills privately run and form of economic protection
Dissent (Rehnquist): NJ saw health and safety problems associated with landfills in disposing of waste and state can
validly limit waste citizens deal with under its inherent police power
Significance: Is the statute basically a protectionist measure, or can it fairly be viewed as law directed to legitimate local
concerns, with effects upon interstate commerce that are only incidental?
- Reality is that its hard to justify why in-staters should access states resources and out cant
Consolidated Freightways Copr. Of DE v. Kassel (1981) IA prohibit big trucks Unconstitutional
A state safety regulation will be unconstitutional if its asserted safety purpose is outweighed by its degree of interference
with interstate commerce
Facts: IA statute restricted length of vehicles that use its highway to 55ft for most vehicles and 60ft for doubles. IA was
only state in Western or Midwestern US to outlaw use of 65-foot doubles.
Issue: Will state safety regulation be held unconstitutional if its asserted safety purpose is outweighed by degree of
interference with interstate commerce?
Holding (Powell): Yes, though bonafide state safety regulations are given a strong presumption of validity, asserted safety
purpose must be weighed against degree of interference with inter comm.
- IA failed to give any persuasive evidence that 65ft doubles are less safe than 55ft singles
- States safety interest is illusory
- P showed law substantially burdens interstate commerce by changing routes or smaller trucks
Dissent (Rehnquist): State safety regulation is invalid if safety justification is merely a pretext for discrimination against
interstate commerce
- Here, the statute is a valid safety regulation and entitled to the strongest presumption of validity
Significance: 1st finds that safety aspects are illusory, then uses balancing test to strike down statute
- Follows strike down when marginal increase in safety causes huge burden on interstate commerce
- Look at truck size laws on case-by-case basis looking at specific safety evidence!!!
South-Central Timber v. Alaska (1984) State cant attach restrictions that discriminat Not MP
If state imposes burdens on commerce within market it is a participant, but the burdens have a substantial regulatory
effect outside of that particular market, they are per se invaild under CC
Facts: AK offered large quantity of state-owned timber below cost but required it to be processed within the state. Law
enacted to protect existing timber-processing industries within the state and get more revenue from timber beyond sale.
Issue: If burden within market participate in, but large effect outside market, invalid under CC?
Holding (White): Yes, MP doctrine allows states to impose burdens on interstate commerce within the market in which it
is a participant but allows it to go no further
- Can influence a discrete, identifiable class of economic activity in which is a major participant
- Cannot impose condition by statute/reg/K with substantial regulatory effect outside partic market
- State cant use leverage in market directly participating to regulate a down stream market
- AK is a participant in timber market, but not in the processing market
- Cant attach restrictions on the goods after AK no longer has proprietary interest in them
- As typical seller, state has no say how product is used after sale
- State cannot have these tie-in type regulations

- Local processing requirement burdens interstate commerce and is per se invalid under CC
Dissent (Rehnquist): Distinction here between market participant and market regulation is fake
AK had constitutional ways that would require process in state, all of which in substance are the same as the K
provisions that majority held violates the CC
Coulda only sold to companies that themselves own and operate processing plant in AK
Statute could have paid to have logs processed and sold only processed (direct subsidy)
Significance: This LIMITES THE MARKET PARTICIPATION DOCTRINE
Initial disposition of goods = MP ; No on disposition subsequent goods in priv hands
United Building v. Camden (1984) - Very similar to White v. Boston; discriminate if the source
P&I applies to municipal ordinances that discriminate on the basis of municipal residence
Facts: NJ enacted ordinance requiring contractors and subcontractors working on city construction projects employ
workforce of 40 Camden residents because just using the area and leaving.
Issue: P&I apply to municipal ordinances that discrim on basis of municipal rather than citizenship?
Holding (Rehnquist): Yes, ordinances are enacted under the municipalitys power derived from the state so are not
outside the clause merely because they are enacted by the municipality
- NJ residents outside of Camden affected by ord could expand/contract municipal power by voting
- Out-of-staters did not have this power so Privileges and Immunity Clause does apply!
1. Must decide whether the ordinance burdens a basic P or I (fundamental right)
Yes, ordinance affected rights of nonresidents to pursue a livelihood of their choosing
2. Whether the o-o-Ss are the particular source of evil sought to be addressed by ordinance
Unknown, argued nonres are just mooching, remanded and disappeared (probably settled!)
Significance: P&I imposes direct restraint on state action in the interest of interstate harmony
- Validity under the CC because city was a market participant does not apply when looking at P&I
- Just like White v. Boston where ok by DCC, but P&I strikes it down
- Cant give preferential employment treatment to residents
- Union is regarded as an association, not a corporation (same thing with labor unions)
- Associations can bring a claim under the P&I clause in a 3 rd party standing type way
Metropolitan Life Ins. Co. v. Ward
Pacific Gas and Electric v. State Energy Commission (1983)
AEA preempted state safety regulation but intended states retain economic concerns
Facts: Conflict between 76 CA law (dealing w/ economics) and 1954 Atomic Energy Act (safety). CA law made a CA
nuclear power company wait before they began construction. Company argued that this law was preempted because
Congress intended to preempt the field of nuclear regulation and state law interfered with the fede objective of
encouraging the development of nuclear power.
Issue: Does AEA totally preempt any state regulation of nuclear power or power plants?
Holding (White): No, intent of AEA was to give federal government exclusive regulatory power of the radiological
safety aspects involved in construction and operation of a nuclear plant.
Field: CA law was based on economics, fed law was for safety so no preemption
Moratorium aimed at economic, so statute lies outside occupied field of nuclear safety reg
Not conflict with fed reg of waste disposal because does not impose state disposal standards
Conflict: Congress intended to encourage nuclear power only when economically feasible
Congress intent behind AEA was promote nuclear power, but not intended to be accomplished at all costs.

CAs statute does not frustrate AEA purpose of developing commercial use nuclear power

Rosenn: Shows how preemption determinations are based on record and context of particular case
Also shows outcome turns on the manner in which characterize the purposes of the federal and state laws and how
broad or narrow it chooses to construe the federal and state laws
Forced to (1) Characterize federal objective and (2) Characterize state law and its purpose
Congress Intent to Supersede State Law Found: (when not expressly stated)
1. Scheme of fed reg so pervasive can reasonably infer Congress left no room to supplt it
2. Fed Act touches field with such large fed interest that fed system will be assumed to preclude enforcement of
state laws on the same subject
3. Objective of fed law and character of obligations by it reveal same purpose
Lorillard Tobacco v. Reilly (2001)
FCLAA expressly preempts state regulation of outdoor and point-of-sale cigarette advertising by unequivocally
prohibiting such regulation by the states
Facts: Federal Cigarette Labeling and Advertising Act (FCLAA) prohibited states from further burdening advertising or
promotion of cigarettes that already complied with FCLAA guidelines. Massachusetts 5-foot high rule on tobacco
advertising added more restrictions.
Issue: Does FCLAA expressly preempt state regulations of outdoor and pos ads?
Holding (OC): Yes, Cong intended to bar state reg even if concern for health prompted regulation
- MA regulations are preempted because the asserted attempt to regulation location, and not the content, of cigarette
advertising has no foundation in the FCLAA
- Trying to deter young people smoking by limiting advertising by schools/playgrounds; but
at end of day this is to prevent health. Case closed.
- The FCLAA prohibits states from imposing additional burdens on cigarette advertising. Not ambig
- Express definition of the pre-emptive reach of a statute supports a reasonable inference that Congress did not intend to
preempt other matters Congress purpose is ultimate inquiry
Dissent (Stevens): Where Congressional intent to preempt states traditional police powers is ambiguous, the Court must
read a preemption provision narrowly and not preempt
- In FCLAA, Congress not intend to preempt states from regulating location of sales
- FCLAA restricts state regulation of content, not location
- Even if this wrong, preemption provision is, at best, ambiguous should defer to presumption favoring traditional police
powers of the states
- Court works on the assumption that the historic police power of the States is not to be superseded by the Federal Act
unless that is the clear and manifest purpose of Congress
Significance: Preemption doctrine allows manufacturers some national uniformity, so they only have to meet 1 set of
regulations. Comes from Supremacy Clause in Article Vi, 2 Constitution
Rosenn: Majority / dissent is opposite of what wed think of as far as federalism concerns
- In cases of preemption, the pairings usually end up weird
- Stevens wrote majority in Altria, here he writes dissent

Section 9Congressional Power to enforce the Fourteenth Amendment

-City of Boerne v. Flores CB 771-782
City of Boerne v. Flores (1997) - Church wants to expand, but a local ordinance prevents it
The RFRA unconstitutionally exceeds Congresss enforcement power under DPC of 14 th Amend

Facts: Religious Freedom Restoration Act (RFRA) prohibited gov from substantially burdening persons exercise of
religion even if result of generally applicable law, unless gov has compelling interest and is using least restrictive means.
Bishop want expand historic landmark church. Denied.
Issue: Does RFRA unconstitutionally exceed Congresss enforcement power under DPC of 14 th?
Holding: Yes, judiciary determines constitutionality of laws; legislative powers are defined and limited.
- Congress under 5 of the 14th Amendment may not create new rights or expand the scope of rights; rather Congress is
limited to laws that prevent or remedy violations of rights recognized by the Supreme Court, and these must be narrowly
tailored proportionate and congruent to the constitutional violation.
- Congress is trying to remedy the SCs previous interpretation Court says they cant do this
- Congress gets to determine what is a violation of the statute so long as Congress is only
expanding theories (ratchet theory)
- 5 gives Congress the power to enact laws to enforce the provisions of the 14th amendment.
- Only authorizes Congress to adopt remedial measures, not alter substantive boundaries
- Legislation, which alters the meaning of the Free Exercise Clause, cannot be said to be
enforcing the Clause rejects definitional theory of Katzenback (overrules w/o overruling)
- RFRA redefines scope of Free Exercise clause, which Congress does not have ability to do
- Congress is thus limited to enacting laws that prevent or remedy violations of rights already recognized by the
Supreme Court and such laws must be narrowly tailored
- Federalist perspective where Congress under 5 cannot create new rights or expand scope
- Court has since reaffirmed Boerne 3 times in Florida Prepaid, Kimel, and Garrett
- On Exam will need to argue both a Katzenbach side and Boerne side since not overruled
- Boerne +SC role as sole interpreter of Constitution not protect human rights
Application: Today application of Boerne and Congresss powers under 5 used to see if a particular law can be used to
sue state governments
Recent cases of Hibbs and Lane suggest Congress has broader authority to legislate if it is a type of discrimination
or right that receives heightened scrutiny

Section 10Executive Authority

-Youngstown Sheet & Tube: CB 955-73
-Dames & Moore: CB 1092-1103
-Whitman: CB 987-97
-Chadha: CB 1002-20
-Clinton: CB 1020-36
-Nixon: CB 1039-47
-Morrison: CB 1050-76
Youngstown Sheet & Tube Co. v. Sawyer (1952)
Rule: The President of the United States may not engage in lawmaking activity absent an express authorization from
Congress or the text of the Constitution.
Facts: In December 1952, the steelworkers threatened to strike for a wage increase. President Truman persuaded the
union to await a recommendation by the Wage Stabilization Board, made up of representatives of producers, workers, and
the public, which ultimately recommended certain wage increases. The industry, however, rejected the recommendation
and the unions set a strike date for April 1952.
President Truman feared that a steel strike would undermine the war effort. In order to prevent this, he issued an executive
order transferring control of the steel industry to the government, to be run by the Secretary of Commerce.
The Industry sued the Secretary of Commerce for an injunction against his seizure and possession of their steel plants.

Issue: May the president of the Unites States, under his constitutional executive powers, issue a lawmaking order
directing the Secretary of Commerce to take possession of and operate most of the nations steel mills?
Holding and Reasoning (Black, J.): No. The Presidents power to issue executive orders must come from either an act of
Congress or the Constitution. Congress expressly rejected the use of seizure to solve labor disputes as unconstitutional
when it considered the drafting of the Taft-Hartley Act in 1947. Here, the President does not rely on any statutory
authority to seize real property.
The Governments argument is that there is implied seizure power due to the Take Care clause and Commander in
Chief Clause. The President is resting on either general or implied powers.
The commander in chief clause doesnt cover this case because the link to the war is too attenuated, and the CC power
cant cover anything that has an effect on military efforts. Justice Jackson 2 points: First, expansion of the Presidents
own domestic powers by committing our troops to foreign ventures, would be really dangerous, especially without a
declaration of war from congress. Second, the president has no monopoly of war powers.
The Take Care Clause give the President authority and obligation to take care that the laws be faithfully executed. The
Majority rejects this because the power to execute the laws doesnt include the power to be a lawmaker. The President
attempted to make policy, not execute a congressional policy.
Formal approach vs. Functional approach
-Justices Frankfurter and Jackson pursue a functional approach. Stating the constitutional text doesnt end the matter.
-Justice Jackson concurrence is very important**

I.
II.

III.

Creates 3 categories focusing on the relationship between congressional and executive action (Pg.351)
Presidential Action with Congressional Authorization
a. When President acts pursuant to an express or implied authorization of Congress, his authority is
at its maximum.
Presidential Action/Congressional Silence
a. In the absence of either a congressional grant or denial of authority, President can only rely upon
his own independent powers. There is a twilight zone where him and congress may have
concurrent authority. Test of power likely to depend on the imperatives of events and
contemporary imponderables not abstract theories of law.
Presidential Action Contrary to Congressional Action
a. This case fits into this category***
b. Taking measures incompatible with the expressed or implied will of Congress, the President can
rely only upon his own constitutional powers minus any constitutional powers of congress over
the matter.

Dames & Moore v. Regan (1981)*** Important case

Rehnquist clerked for Jackson the term Youngstown was decided. Here, he gets to apply his old bosss framework.
Rule: The President has authority to settle claims through executive orders where the settlement of claims is necessary for
the resolution of a major policy dispute between the United States and another country and where Congress acquiesces to
the Presidents action.
Facts: On November 4, 1979, the Iranian hostage crisis began when the American Embassy in Tehran, Iran was seized. In
response, President Carter, acting pursuant to the International Emergency Economic Powers Act (IEEPA), issued an
executive order that froze all Iranian assets in the United States. On January 20, 1981, the Americans held hostage by Iran
were released pursuant to an agreement reached between the United States and Iran. The agreement stated that the
government of each country would seek to end all litigation between itself and nationals of the other country by reaching
binding settlement agreements. A new Iran-United States claims tribunal was established to facilitate settlements. On April
28, 1981, Dames & Moore (plaintiff) filed this action in district court against the United States Government and Secretary
of the Treasury (defendant) seeking declaratory and injunctive relief to prevent enforcement of executive orders and

Treasury Department regulations implementing the new agreement with Iran. Dames & Moore argued that the executive
branch exceeded its constitutional powers in making such an agreement, and that the agreement was unconstitutional
because it interfered with enforcement of Dames & Moores final judgment against the government of Iran and the
Atomic Energy Organization.
Issue: May the President settle the claims of United States citizens against a foreign government through executive order?
Holding and reasoning (Rehnquist, J.): Yes. Justice Jacksons Analysis in Youngstown is useful, but instead of three
pigeonholes there is probably more of a continuous spectrum. (1) Does 203 of IEEPA authorize the presidents actions?
(Pg. 390)
The court breaks the Presidents action into two parts:

(1) Nullification or the district courts attachment of Iranian property, and

(2) Suspension of Dames & Moores claims in federal court.
203 authorized nullification of the attachments; that part falls within Jacksons first category, and is presumptively
constitutional. However, 203 doesnt say anything about authority to suspend claims pending in American courts.
Neither does the Hostage Act. But both IEEPA and the Hostage Act are highly relevant in the looser sense of indicating
congressional acceptance of abroad scope for executive action in situations like this. Additionally, the Court says its
conclusion is buttressed by the fact that the Presidents means afford Dames & Moore an alternative forum for its
claims.
Important:
Remember, Separation of Powers is meant to protect individual rights. Therefore it cant be entirely irrelevant that the
actual individual rights most directly at issue are protected here. Also, the standing of the President at the time may have a
lot to do with the different results in Youngstown and Dames & Moore Truman was at a low point when he seized the
steel mills; conversely Reagan was new and popular in 1981.
The court here seemed to follow the essence of Justice Jacksons approach by asking whether President and Congress are
in harmony on the action at issue. Although Congress remained silent on the precise issue in both cases, the Court has
enough contexts to draw different implications from that silence.

Whitman v. American Trucking Assns (2001)

Rule: (1) When Congress confers decision making authority to agencies, it must set forth in a legislative act an intelligible
principle to which the person or body authorized to act is directed to conform; and (2) Under 109 of the Clean Air Act,
the EPA Administrator may not consider implementation costs in setting national ambient air quality standards.
Facts: The EPA revised national ambient air quality standards (NAAQS) under the Section:109(b)(1) of the Clean Air Act
(CAA). The changes affected ozone. Several states challenged the new promulgated rules.
Issue: (1) Does 109(b)(1) of the CAA delegate legislative power to the Administrator of the EPA? and (2) Under 109
of the Clean Air Act, may the EPA Administrator consider implementation costs in setting national ambient air quality
standards?
There are two delegation issues:

(1) Whether the delegation is standardless and therefore unconstitutional?

(2) Whether an agency can cure and unconstitutional delegation by self-constraint, that is by
promulgating rules setting out more definite standards, even though the standards dont come from
congress?
Holding and reasoning (Scalia, J.):

(1) No. An agency may not cure an unlawful delegation of legislative power by adopting a limited
construction of the statute because doing so is itself an exercise of unlawful legislative authority. The
degree of agency discretion that is acceptable depends upon the scope of the power that Congress has
conferred. Here, the text of 109(b)(1) of the CAA places limits on the EPAs discretion that are similar
to those that this Court has approved in earlier cases.
(2) No. Although plaintiffs claims may have some validity, the plain and unambiguous text of 109(b)(1)
make clear that cost considerations do not enter the decision-making process for establishment of
NAAQS. The judgment of the court of appeals is affirmed on that point.

Delegation issues: (pg.361)

(1) The court asks whether, Congress has narrowed the discretion of the agency sufficiently to give a court a
basis for judicial review of agency action. How broad is the scope of delegation?
(2) No. The court rejects this idea.

INS v. Chadha (1983) (Pg. 365)

**Deportation case
Rule: Legislation providing Congress with a veto over an action of the executive branch does not meet the constitutional
requirements of presentment and bicameralism.
Facts: The Supreme Court of the United States held that it is unconstitutional to allow one house of Congress to
unilaterally veto a decision of the executive branch.
Issue: May the House of Representatives enact a provision that permits one house of Congress to unilaterally override an
executive action?
Holding and reasoning (Burger, CJ.): No. The court holds that the legislative veto is unconstitutional. Congress wants
to place a legislative veto provision in this statute to control the exercise of delegated power. The court relies on
provisions, Bicameralism Art. I, 1 (provides that legislative power is vested in a Senate and a House of Representatives)
and Presentment Art. I, 7 (provides that every bill passing Congress shall be presented to the President, and must be
approved by him before taking effect, unless the veto is overridden). The Framers felt strongly about this procedure and
required that it be strictly adhered to.
Important:
When the House exercises legislative power its action must satisfy bicameralism and presentment. The Houses action
was legislative if it had the purpose and effect of altering the legal rights, duties and relations of persons outside the
legislative branch. The Houses veto over Chadhas case is legislative because absent the provision, it would have taken
a statute to do what the House did here.
Justice Powell argues that action is judicial in nature. It is, after all, not a general rule that Congress has implemented.
This view would make all legislative vetoes that adjudicated the rights of particular individuals unconstitutional.
The Court says this isnt judicial because no justiciable case or controversy concerning Chadha was presented by the
Attorney Generals suspension of the deportation. The court took a formalist approach, categorizing the exercise of power,
and then applying a bright line rule that determines whether the exercise is permissible.
3 sorts of formalist claims:
-Nondelegation
-Same-branch limits
-Mixing

The constitution contains only 4 situations in which a single House can take real action:

House initiation of impeachment

Senate impeachment trials
Confirmation of appointments
Ratification of treaties

Clinton v. New York (1998) (pg.368)

Rule: There is no provision in the United States Constitution that authorizes the President to enact, amend, or repeal
statutes.
Facts: The Line Item Veto Act (Act) gave the President the power to cancel in whole three types of provisions signed
into law. Specifically, the Act allowed for the cancellation of (1) any dollar amount of discretionary budget authority; (2)
any item of new direct spending; or (3) any limited tax benefit. The effect of the cancellation was the prevention of the
item from having any legal force or effect. President Clinton (defendant) invoked the Act to cancel a provision in the
Balanced Budget Act of 1997 that would have allowed New York to avoid repaying funds received under Title XIX of the
Social Security Act. Individuals who would have benefitted under those provisions of the Social Security Act (plaintiffs)
challenged the cancellation. The district court found that the Act was unconstitutional. The case came before the United
States Supreme Court.
Issue: Is the Line Item Veto Act constitutional?
Holding and reasoning (Stevens, J.): No. There is no provision in the United States Constitution that authorizes the
President to enact, amend, or repeal statutes. In identifying items for cancellation, the President must consider the
legislative history, purposes, and other relevant information concerning the items. He must then determine that each
cancellation will:

(1) Reduce the Federal budget deficit;

(2) Not impair any essential Government functions; and
(3) Not harm the national interest.
He must notify Congress of any cancellation within five days after enactment of the canceled provision. Cancellation
takes effect upon Congresss receipt of the cancellation message. But Congress may enact a disapproval bill by majority
vote, subject to a Presidential veto. Plaintiffs who stood to benefit from canceled items sued to invalidate the law.

The majoritys rationale for striking down the statute is a non-compliance with the Art. I process.
o The repeal and amendment must comply.
Nondelegation claim
o The majority rejects the Fields case argument, on the ground that here, the President is not
merely finding facts. Rather, the President gets to make a discretionary decision in light of facts
that also existed when Congress acted. Moreover, the Field-type statutes dealt with foreign
affairs, where the President has inherent authority.
The Mixing claim
o The Court Majority states that this is not simply discretionary spending no prior law has given
President authority to change the text of statutes.
The Encroachment claim
o This seems at least implicit in the Courts Art. I discussion the President is horning in on
Congresss power of the purse.

Note: Scalia and Breyer are both in dissent (functionalist and formalist respectively)
The dissenters say that this isnt an Art. I case at all Congress has simply delegated authority to cancel spending in the
course of implementing the budget act. This is no different than discretionary spending. Field v. Clark argument
upheld law that all President was really doing was finding whether certain factual conditions were met. Breyer and Scalia
state that the President is exercising executive power, therefore no mixing problem exists.
Justice Breyers Hypothetical (p.1149)
3 case distinction (pg.370)
There may be important differences in terms of the weight and placement of the burden of overcoming legislative inertia.
Appointments and the unitary executive (pg. 372):
In Chadha and Clinton v. New York, we dealt with efforts to restructure the legislative process; in Morrison, Congress has
tried to restructure the Executive Branch.

Morrison v. Olson (1988) (pg.373)

Independent counsel statute
Rule: A law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and
prohibiting removal without cause does not violate separation of powers principles.
Facts: The Ethics in Government Act (the Act) allows for the appointment of an Independent Counsel by a special
court, upon the recommendation of the Attorney General. The purpose is to investigate and if necessary, prosecute
government officials for certain violations of federal criminal laws.
Issue: Does a law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel)
and prohibiting removal without cause violate separation of powers principles?
Holding and reasoning (Rehnquist, C.J.): No. The court holds that the independent counsel provisions are
constitutional. There are three issues in the majority opinion:

(1) Appointments Clause: Does appointment of the independent counsel by the Special Division, rather than
the President violate this?
a. The President appoints principal officers
b. Congress can appoint inferior officers in Head of Departments or Courts of law
i. Inferior vs. principal (key variables, no clear line)
1. She can be removed by the AG
2. She is authorized to perform limited duties
3. Her office is limit in jurisdiction and tenure
c. Congress inter-branch appointment limits: such as might be unconstitutional if
i. It impaired the constitutional function assigned to a branch
ii. If there were some incongruity between the power to appoint and the functions
normally performed by the appointing branch.
(2) Article III: Does the power of the Special Division to appoint the independent counsel and define her
jurisdiction violate Article III?
a. No. Because they are mostly passive or ministerial
b. Conflicts of interest are avoided by disqualifying judges of the Special Division from
participating in any matter relating to the independent counsel they appointed
(3) Separation of Powers: Does the independence of the independent counsel violate more general
separation of powers principles?

a. No. The Act as a whole does not upset the separation of powers. The three branches dont have to
operate with absolute independence. Here, there is no exaggeration by Congress or the
judiciary. Nor does the Act prevent the Executive from performing its functions.
b. Removal limitation placed upon the president has been upheld in the past (Humphrey v. US)
Scalias Dissent:
Famous quote Frequently an issue of this sort will come before the Court clad, so to speak, in sheeps clothing; the
potential of he asserted principle to effect important change in the equilibrium of power is not immediately evident, and
must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
Stating that the Court is wrong to take the Appointments Clause first. The requirements of that clause are a function of the
larger separation of powers concerns.
Argument centers on strong unitary executive position. That means the statute is unconstitutional if:

(1) Prosecution involves a purely executive function, and

(2) The statute deprives the President of exclusive control over the exercise of that power
Problem with argument makes the President unaccountable to anyone else.

Section 11The constitution of politics

-Shaw v. Reno: CB 570-85
-Bush v. Gore: CB 603-17
Shaw v. Reno (1993)
Rule: A political district may not be created in an attempt to segregate voters based on race.
Facts: Based on the 1990 census, NC legislature created new redistricting plan that included one majority black
congressional district. This redistricting scheme was irregular on its face that it could only be viewed as an effort to
segregate races for purposes of voting.
Issue: Does a reapportionment plan violate the Equal Protection Clause if it cannot rationally be understood as anything
other than an attempt to segregate voters based on race?
Holding and reasoning (OConnor, J.): Yes. The Equal Protection Clause is violated by a reapportionment plan if it
cannot rationally be understood as anything other than an attempt to segregate voters based on race, and if there is not
sufficient justification for the segregation. The Equal Protection Clause requires strict scrutiny of all racial classifications
because without that level of heightened scrutiny there is no way to determine whether such discrimination is indeed
benign. Racial gerrymandering must therefore be afforded strict scrutiny.
Bush v. Gore (2000)(Pg.225)
**The Political Thicket
Rule: In the event of a contested presidential election, the Equal Protection Clause requires states conducting a manual
recount of votes to issue uniform rules governing the recount to determine the intent of the voters and give equal weight to
each vote.
Facts: The 2000 Presidential election in Florida was extraordinarily close. The initial results show Bush ahead; Al Gore
requests recounts in four heavily democratic counties. The FL Secretary of State certifies Bush as the winder when the

recounts dont get done within the seven-day deadline prescribed under FL law; the Democrats sue arguing that state law
required her to accept the recounted votes. Ultimately, the FL Supremes order a statewide manual recount, but allow
different counties to apply different standards in determining the intent of the voter in ambiguous cases or cases when the
voter failed to properly mark the punch card ballot. Bush people appeal matter to U.S. Supreme Court.
Issue: Whether the use of standardless manual recounts of votes violates the Equal Protection Clause of the Fourteenth
Amendment.
Holding and reasoning (Per Curiam): (5 to 4) Yes. Floridas approach violates the Equal Protection Clause. The
formulation of uniform rules to determine intent based on these recurring circumstances is both practicable and necessary.
Otherwise, different standards will be applied throughout the recount for determining whether a vote was cast, resulting in
impermissible inequality of treatment of votes.
**Important Issues:

(1) Issues on the Merits

a. Equal Protection (per Curiam majority)
b. Article II violation (Rehnquist, Scalia, & Thomas)
i. Arguing that Florida is also violating Art. II by enforcing rules made by the state supreme
court rather than by the legislature
(2) Issue of Remedy
a. Two different ways of proceeding with EP holding
i. Re-do the recount under uniform vote-counting standards, or
ii. Abandon the recount and go with the States original certification of Bush as the winner.
b. The SC orders the 2nd without remanding the 1st, which is brought up in the dissent. This may be
due to the distrust of the FL Supremes for their original decision.
(3) Political Question (12th Amendment)
a. Should the Court have decided this case at all? Should it have been a nonjusticiable political
question?
i. The 12th Amendment contemplates that at least some election disputes will be resolved in
the HR, where voting would be by state delegations.
1. However, they focus on the nature of the challenge, not the governmental activity
being challenged.
2. An equal protection claim is justiciable. See Baker v. Carr