CONSTITUTIONAL LAW 1

I. CONSTITUTION
A. DESCRIPTION
1. Written Constitution
a. It is the oldest, continuous written Constitution in existence.
a. Supremacy Clause The Constitution is the supreme law of the land, and
its ultimate application is left to the Supreme Court.
c. Written clauses restrict freedom of government organizations, i.e. lay out
enumeration of powers
3. No Legislative Review Constitution is not open legislative review, the Supreme Court.
serves as the ultimate interpretive authority for Constitutional meaning
4. Based on Federalism rather than Nationalism
a. Limits Constitutions control at state level
b. Enumeration of National Powers - Government is organized into 3 Branches with
enumerated powers limiting their governmental powers creating a system of
checks and balances.

B. 2 Categories of Constitutional Questions

1. Challenges to Action by the National Government D is the government or a
government official
a. Doctrine of Enumerated Powers - Action not authorized by the Constitution
If the power used cannot be traced back to specific powers granted to that
governmental body, then it is unconstitutional
b. Separation of Powers Action, even though authorized by Constitution, is being
performed by the incorrect governmental body
c. Unconstitutional Power Action is forbidden by Con
2. Challenges to Actions Taken by State Governments
a. Pre-Emption Doctrine State has legislated on something that is Constitutionally
pre-empted and assigned solely to the National Government (i.e. entering Treaties,
maritime law, declaring war or peace, etc.)
b. Supremacy Clause State action conflicts / interferes with national action (Art VI
2 Supremacy Clause)
c. Affirmative Limitations on States Power State is forbidden from taking action
due to affirmative limitations placed on it by Constitution (The Untitleable)

II. CONSTITUTIONAL AUTHORITY

A. SUPREME COURT AUTHORITY Article VI 2 the Con is the supreme law of the land. In
Marbury v. Madison, the S.C. said, it is emphatically the province and the duty of the judicial
department to declare what the law is.
1. Federal Legislation & State Actions Federal courts have authority to review whether
federal legislation and state actions are Constitutional. Marbury
2. State Court Decisions Federal courts have authority to review state court decisions if
case arises out of a federal question and there are no independent and adequate state
grounds for courts decision. Article III; Martin v. Hunters Lessee
3. Policy behind Judicial Review Since the Constitution is silent, it is more practical to
have an ultimate arbiter, and that should be the Supreme Court, because they can protect
the interests of the minority because they are not subject to political pressures.
a. Countermajoritarian Rule Emphasizes democratic nature of the Constitution.
Since judges are not elected, they are appointed, even if they are appointed by
elected individuals; the rule is still Countermajoritarian b/c they are not held
accountable to the people.
b. Rule of Deference p67 [Congresss acts] were its necessity less apparent,
none can deny its being an appropriate measure; and if it is, the degree of its
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necessity, as has been very justly observed, is to be discussed in another place. i.e.
it is more appropriate for the legislature to decide what is an appropriate means for
enforcing its power under the Commerce Clause, the voters review the Acts of
Congress.

Marbury v. Madison (p. 29), (1803) Jefferson (new
President) refused to deliver via Madison the commissions for
Justices of the Peace appointed by Adams (old President) this
included Marbury. Marbury sues in S.C. for a write of
mandamus to compel Madison to deliver the commission.
3 Issues: 1. Has the applicant a right to commission he
demands?
2. If yes, and right has been violated, do laws of US afford a
remedy?
3. If yes, is it a mandamus issuing from this court? To answer
this:
(a) Is this the right of writ?
(b) If yes, does S.C. have the jurisdiction to issue it?
1 Yes, since the right is conferred w/the Presidents
seal delivery is not an essential aspect of this legal
right; therefore he has a right to the commission.
2 Yes sometimes, the Political Question Doctrine
forbids review of some disputes.
3 (a) Yes
3 (b) 13 of the Judiciary Act says that S.C. has
the authority to hear this matter, but Art. III of Con
interprets Con as saying the S.C. does not have
jurisdiction. Constitutional issue is which body of law
takes precedent? Constitution trumps the Act of
Congress.

B. CONGRESSIONAL AUTHORITY

1. EXCEPTIONS CLAUSE -Under Art. III, 2, Congress has power to limit the appellate
jurisdiction of S.C by not affirmatively addressing SC jurisdiction; it may not expand the
S.C.s jurisdiction beyond the federal judicial power. Ex-Parte McCardle.
a. Check on the Exceptions Clause if the bill of rights
b. NOTE: Justice Douglas contended that there is a serious question whether the
McCardle case would command a majority view today Glidden.

Congresss ability to Limit the SCs authority

Ex Parte McCardle (83)(1869), McCardle wrote for Under Art. III 2 Con grants Congress the plenary
a newspaper right after the Civil War during power to make exceptions to the SCs jurisdiction.
reconstruction, his articles were highly critical of However, it may not expand the SCs jurisdiction beyond
federal governments use of its authority. He was the federal power.
arrested and detained; the trial was over whether or Judiciary Act of 1879 [Limits jurisdictions over cases
not his detention was lawful. and controversies] Lists cases where the SC does have
This is the most authoritative interpretation of the jurisdiction and by not listing cases excludes SC
Exceptions Clause. jurisdiction over them, i.e. jurisdictional stripping bills.
[Examples of jurisdictional stripping bills is in the The Exceptions Clause, Art III 2
Handout that he gave us]
NOTE Justice Douglas contended that there is a serious question whether the McCardle case would command a
majority view today Glidden

Klein (87)(1872) To establish a claim of seized
property in the Civil War, a P had to show proof of
loyalty to the Union
Congress tried to change the effect of the
Presidential pardon
The jurisdictional exception at issue here violated the
principle of separation of powers in 2 ways
1. By usurping a judicial function
2. By encroaching upon a presidential prerogative
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2. NECESSARY AND PROPER CLAUSE: , Article 1, 8:

a. Under the "Necessary and Proper" clause of Article 1, 8, if Congress is seeking an
objective that is within the enumerated powers of the Constitution (i.e., commerce
clause, taxing, spending, war, treaty, equal protection), then Congress can use any
means that are rationally related to the objective Congress is trying to achieve
provided it is not specifically prohibited by the Constitution. McCulloch v.
Maryland.
b. Doctrine of Enumerated Powers Just b/c it is not expressly stated does not mean
it does not fall under the N & P Clause, i.e. Implied Powers, Policy: This goes
largely to the Rule of Deference, there is a wide ranging discretion about means to
effectuate enumerated powers, Rationale Basis test Congress has power to
regulate through the Commerce Clause (Art I, 8, sc3) the N & P Clause, Art I
8 sc18
c. Example: Congress can raise and army and navy. Congress makes law to have
national bake sale for army and navy. Nothing in constitution about bake sale, but
congress can make a bake sale to raise army.

McCulloch v. Maryland (1819)(61) Maryland is alleging
that the Bank of the US has refused to pay a state tax,
specifically can James McCulloch, a cashier of a branch of
the bank. John James sued on behalf of himself and the
state of Maryland quitam.
Issues:
1. Can Congress charter the Bank of the US, i.e. is the
Bank of the US created by Congress Conl?
Art I, 8, - Nothing says that Congress has the power to
charter a national bank, but other powers listed such as the
power to levy taxes. So you look to Implied Power; Art I,
8 sc18th Clause = Congress uses the Necessary and Proper
Clause in order to achieve the means necessary to follow
through with their powers listed under the Commerce
Clause.
The Doctrine of Enumerated Powers Congress cannot
overstep their bounds, however, Necessary & Proper Clause
allows Congress to create means with which to achieve
goals.
Pretext Argument Is it the SCs job to act as a lie detector
to see whether or not Congresss stated means are pretext?
No. - Rule of Deference
Art 10 all powers listed not listed goes to states does
NOT limit Congresss power to create a Bank
2. Can Maryland tax the Bank, i.e. can a state tax
the national government?
In this case, with a targeted tax, the SC held that
Maryland cannot tax the national bank, but it is still
to be determined whether or not a broader tax would
be allowed. P70
Targeted tax = the power to destroy b/c it gives
Maryland the authority to tax a federal entity, i.e.
people in other states as well Maryland.
Supremacy Clause federal objectives should
prevail b/c the federal government should have the
ability to go about its business without being
impeded by states.
First Issue Holding = Courts interpretation of
Commerce Clause under McCulloch Using the
N&P, p67, When it comes to ascertaining whether a
particular act is within the powers of Congress i.e.
so long as Congresss choices are reasonable and
related to some purportedly Conl power the courts
will sustain the act of Congress at this point a
generous interpretation.
SEE APPENDIX for Constitutional Interpretation
Analysis using this case.

C. STATE COURT AUTHORITY Federal courts also have the power to review state court
decisions, but only if the case arises out of federal law and there is no independent and adequate
state grounds for the courts decision. Article III; Martin v. Hunters Lessee.
1. The Appellate power of the US must extend to cases arising under the Constitution, the
laws and the treaties of the US, thus the SC has appellate jurisdiction over Constitutional
decisions by state courts. SC has judicial review of state courts.
2. 25 of the Judiciary Act (which authorizes the exercise of jurisdiction in the specified cases
is supported by the Constitution) SC has judicial review of acts of Congress, i.e.
National Government.
CONSTITUTIONAL LAW 4

3. Federal and State courts must follow the decisions of the S.C. SC has judicial review of
state and federal courts.

Martin v. Hunters Lessee (51), (1816)
Hunter claims title comes from state of VA,
Martin claims title through a grant from
Britain, a grant recognized as valid in a treaty
with between the US and GB.
TC Finds for Martin, treaty valid.
AC Finds for Hunter, VAs property rights
had vested before treaty through an Act of
Compromise w/GB.
S.C. of US Finds treaty valid, remands to AC
w/direction to find for Martin.
AC of VA says No!
SC says that 25 of Judiciary Act says that
SC is highest appellate court in the land.
VA says 25 unconstitutional b/c of 3
Arguments listed by #:
1. Art III could specifically deny state courts
the authority to hear the cases listed and it
doesnt,
2. 25 encroaches upon VAs sovereignty
3. It is dangerous for SC to have power over
everything
SC examines 25 and finds it constitutional, responding to each
argument
Argument 1
Con says all cases, if VA were correct then jurisdiction
would be some cases Art III
Art VI 2 all judges are bound by Con
Con contemplated SC review of state cases shown w/all
cases b/c Con doesnt say lower federal courts must exist (Art I,
8) so these cases must have meant state cases
Argument 2
Art I 10 has provisions that limit state sovereignty
w/regards to other branches of government, follows would apply
to judiciary as well
Argument 3
You cant instill upon a general power a restriction which is
not found in the terms in which the power is granted
************
Con suggests that state courts can be partial/unfair b/c
otherwise diversity jurisdiction would not exist
Practical Argument: Judicial system requires uniformity
throughout federal cases

Cohens v. Virginia, SC does have the authority to review judgments of state courts AND where states are parties.
Cooper v. Aaron Took the power of the states to interpret the Constitutionality of their laws away, i.e. States are
involved and bound by SC decisions, only SC can review Constitutionality of laws.
CONSTITUTIONAL LAW 5

III. CASE / CONTROVERSY REQUIREMENTS Art III 2 provides that power shall extend to
enumerated cases and controversies.

A. POLICY Designed for docket control, ensures cases are not abstract / hypothetical, promote judicial
restraint.

B. DIFFICULT FACT PATTERN [w/cases involving the govt]: the govt has or hasnt done to someone
else and it has an adverse on me.

C. FOUR ELEMENTS:

1. ACTUAL CONTROVERSY The SC may not issue advisory opinions.

2. STANDING The party invoking federal jurisdiction bears the burden of establishing both Article
III and Prudential Standing requirements.
Lack of standing does not indicate a judgment on the merits (a subsequent lawsuit could be filed
for same injury by party who would be granted standing).
a. ARTICLE III STANDING. Allen v. Wright
1. Injury in Fact / Threat of Injury in Fact
Requires a Distinct & Palpable injury
Requires a legal injury under common law or statute (includes a wide variety of
economic, aesthetic, environmental, and other harms, NOT an academic exercise).
Lujan v. Defenders of Wildlife, Federal Elections Commissions, Aikens.
Nexus is an important limitation to standing requirements. If injury affects
opportunity and ability, then standing is available.
When government is not properly regulating a third party, there must be more
than just a denial of opportunity or diminished ability. But, when a party is
directly denied opportunity or is diminished ability, there is standing.
2. Fairly Traceable to Ds behavior Causation, Simon
Eastern Kentucky Welfare Rights Organization,
3. Injury Likely to be redressed by a favorable decision from the Court Test:
Whether the relief sought from the court will alleviate the Ps injury?

b. PRUDENTIAL STANDING Standing requirements that are beyond the constitutional

minimum. [Narrows Article III Standing] Injury must be:

1. Arguably within the zone of interests protected or regulated by the statutory or

Constitutional provision at issue. Ps claim must be protected by the Zone of
Interest of the law invoked. Not really considered.

2. Not be too generalized it must be particular and not shared by all or almost all
citizens.
Policy: You should not litigate where a more appropriate remedy is political.
Generalized grievances can be granted standing if injury is concrete. FEC v.
Aikens (denial of information), but not if it is abstract. Lujan v. DOW (report
which would not affect building projects).

Generalized grievance + Concrete Injury = Standing under Article III/Maybe

Standing under Prudential, if Congress doesnt override.

3. P cannot litigate for 3rd Party, Jus Tertii

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Exception: Associational Standing. Hunt v. Washington State Apple.

Requires:
i. One or more of its members has standing
ii. Issue to be litigated is germane to the organization or associations
purpose
iii. Individuals used to establish standing do not necessarily need to
participate in litigation, [Difficult to recover damages on of other
individuals]
c. Congress MAY WAIVE prudential standing by specifying who has the right to sue.
FEC v. Aikens.
NOTE: Remember to check statute for waiver (i.e. any citizen may sue for a violation of
this statute).

No Standing: Injury is too abstract and not traceable or redressable.

Allen v. Wright (92)(1984) [5-3
opinion] opinion/Marshall did not
participate] Class action suit by
African American Families for those
families with black children in public statutes.
schools under desegration orders by
Courts or DHS. Millions. IRS
allowed private schools to claim tax-
exempt status even upon proof school An asserted right to have the government act in accordance with the
was discriminating. IRS is not
knowingly allowing race
discrimination, they are simply not
doing enough to catch these schools.
Bob Jones University v. United
States court sustained a law
disqualifying schools from receiving
tax exempt charitable status to
institutions intentionally
discriminating against on the basis of
race.
Issues: Whether or not the Ps have standing?
P wants the Court to require the IRS more aggressively control
granting exempt status. POLICY: Traditionally SC extremely
cautious of telling IRS how to regulate enforcement of tax exemption
Structured law enforcement of executive branch raises separation of
powers argument. Problem from the outset.
ISSUE: Whether the Ps have standing to sue?
law is not sufficient standing alone to confer jurisdiction on a federal
court.
Plaintiffs alleged two injuries: stigmatic and diminished ability to
attend integrated public schools.
Stigmatic injuries are generalized grievances so that there is no
standing.
Diminished ability to attend integraged public schools is an injury in
fact, but is not traceable or redressible, because of the long chain of
connection leading to the IRS and many things could have prevented
attendance of public schools.

Standing: Injury is fairly traceable and redressible.

US v. SCRAP (107)(1973)
Environmental groups could
challenge ICC failure to suspend
surcharge on RR freight rates as
unlawful. Members used forests.
Members injury was fairly traceable based upon their use and
enjoyment of park.
Fairly attenuated, but had standing..
Might not command a majority today.

No Standing: Injury not redressible. Too abstract.

Simon v. Eastern KY Welfare Rights
Organization P argue hospitals should not be
charitable organizations b/c hospitals were acting
as for profit entities and not providing enough
care to indigents.
Court held that is speculative whether changing the tax
status would increase the care and treatment offered to
indigents.

No Standing: Separation of powers argument.

Rizzo v. Goode (1976)(95) Well established rule that government is traditionally granted the widest latitude
in the disptatch of its own internal affairs.
CONSTITUTIONAL LAW 7

Goes to merits, not standing.

Reinforces separation of powers argument, which seems to be why ct tightening up its standing requirements
Court uses standing instead of political question, but would also be denied under political question

Lack of Standing for Different Types of Injuries.

Lujan v. DOW(97)(1992)There is an
ESA Act imposing obligations on federal
agencies to make sure any action funded
by the agency wont interfere with
endangered species created by secretary
of interior.
Old rule: Anywhere on continent.
New Rule: Anywhere w/in territory of
US.
DOW was able to bring case based on
Associational Standing (see outline above HOLDING 2: Fails under Lujan v. National Wildlife, must
for requirements).
Nexus is an important limitation to
standing requirements. If injury affects
opportunity and ability, then standing is
available. Legitimate arguments,
insufficient facts.
Actual Injury. Aesthetic Injury-
Environmental injury is okay, but you
actually have to use the environment.
Threatened injury is okay, but must be
imminent
ISSUE 1: Plaintiffs alleged impairment of ability to observe
endangered species in their native habitat.
HOLDING 1: Impairment of ability to observe native species is
sufficient for claim of injury in fact. Sierra Club v. Morton (107)
(1972). However, the construction has not taken place, therefore
no injury in fact. Someday plans are not enough to establish
injury in fact.
ISSUE 2: Ecosystem/Animal nexus. Anybody that occupies
a contingent ecosystem to the one affected by agency or has an
interest in studying or seeing the animals action has standing.
actually visit the land (no plane tickets). Anyone who visits zoo
cant have standing.
ISSUE 3: Vocational nexus It is possible and plausible that a
person who works with a particular animal threatened by a federal
decision is facing a perceptible harm or works in the very area of
the world where the species is threatened, may have standing.
HOLDING 3: D did not establish. Failure to get plane tickets.
ISSUE 4: P claims violation of procedure - Procedural Injury.
Under statute, US Aid reqired to consult with department of the
interior about the agencys action, and receive a biological
opinion.
MOST IMPORTANT - HOLDING 4: Court has limited
Congress ability to determine who has rights to sue though
standing requirements.

Extreme Cases where standing was allowed based on denial of opportunity and diminished ability. Questions why
no standing in Allen v. Wright.
Regents of UCA v. Bakke (112)(1978) guy goes to medical school and is denied admission. Brings suit
based on reverse discrimination.
Northeastern Fla. Ch. Of Associated General Contractors v. Jacksonville (1993)(112) ability to get a
contract with minority set aside, would they have gotten the K?
Gratz v. Bollinger (2003)(113)challenging admissions at University of Michigan he didnt even apply.

Generalized Grievances: Specific v. Abstract Injury

FEC v. Aikens (1998)(105) Claimed When its a generalized grievance and abstract, there is no
injury by through inability to obtain injury. Lujan.
inforamtion that Aikens claims the statute HOLDING: When its a generalized grievance and concrete, it
requires an agency to make public. is an injury. Also applies to prudential standings requirements.

US v. Richardson (108) No standing because he didnt suffer a particular concrete injury.

(1974)CIA budget not
available which goes
against Article I, Section 1.
Also, unlike Aikens, Congress did not grant standing.
The doctrines do not change, the courts just change their interpretation of what
constitutes standing. Distinctions the Courts are drawing are not very clear,
especially whether they arise from the Constitution. (Makes Prof.
uncomfortable).
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City of Los Angeles v. Lyons Entirely speculative whether he would be arrested again w/ use of
(1983)(108)Arrestee sued chokehold.
for use of chokehold. Injury must be in fact or imminently threatened harm.

3. POLITICAL QUESTION The Court will not hear political questions.

a. Determining if political question: Per Baker v. Carr, to identify whether the issue is considered a
political question that should not be decided by the Court, the court looks at whether there is:

i. A textual commitment to an alternate branch of the government; and/ or

a. Nixon v. US: Congress has the sole power of deciding to impeach someone
judicial branch has no power to look at this decision (it is a political issue).
b. Effectiveness of Amendments.

ii. An absence of judicially discoverable and manageable standards to decide the issue;
a. Bush v. Gore: cant come up with a method to recount votes properly, so no
judicially manageable standards.
b. Resolves Luther v. Gordon (Guarantee Clause, Article IV, Section IV), as reason
why Courts may be reluctant to interpret and enforce the Guarantee Clause (of
republican form of government).
c. Connects to Marbury in discretion. Whether the Constitution gives us criteria on
the Constitutionality of the presidential veto. Since it does not, it cannot be
reviewed
iii. Other secondary things to consider:
1. Impossibility of deciding without a policy determination that is not for judicial
discretion (for another branch of government).
2. No way for an independent resolution without showing lack of respect for another
branch. Luther v. Gordon.
3. Need for unquestioning adherence to a decision already made (primarily
international affairs and war declarations, i.e. Iranian hostages could not sue due to
presidential treaties - Stephanie).
4. Potential for embarrassment from a variety of announcements by different
governmental departments on one question.
b. Note: Dont confuse things having to do with politics and political questions!! RARE! Things
having to do with politics are not necessarily political questions.

District lines justiciable under one person, one vote standard.

Reynolds v. Simms (1964)(136) Requires one person, one vote under the Equal Protection clause
roughly similar populations in judicial districts.

Court will deal with gerrymandering under one person, one vote standard that is judicially manageable since no
possible remedy through normal political process.
Baker v. Carr (119)(1962)In TN voting strength The district plan encroached on the residents in TN in such
given to districts. 1901 Plain creates legislative a way that it would be impossible for a remedy through
districts. Popluation changed so significantly, normal political processes. Suggested in McCulloch.
legislature contained disproportionate number of Court is willing to deal with gerrymanding problem and it
representatives. No allegation of disparate is justiciable controversy.
treatment to a particular racial group. If rural Eventually develops one person, one vote standard, so
interests control legislation, not willing to give up that it is a judicially manageable standard.
power through redistricting. What to look for if
case before court is nonjusticiable?
CONSTITUTIONAL LAW 9

Under McColloch v. Maryland is there an effective political remedy when the power is wrongly distributed and
difficult to change due to entrenchment of particular group makes political solution less probable?
Under Marbury v. Madison Certain executive acts that the Court is not inclined to review. This is not an act by
executive, but an act by legislature of TN. Case is justicable.

Guarantee Clause, Article IV, Section IV, Presidident and Cognress have authority to determine republican form of
government. Not justiciable.
Luther v. Borden (120)(1849)Claims in RI of 2
entities being legitimate government. P claimed
trespass against D. D admitted, but claimed
authority on part of government to enter the land.
Congress chose to seat representatives of the
charter government to sit in federal congress.
The President called out millitia to suppress
other government faction.
Possibly would have contradicted acts of other
branches with ruling.
Court wont deal with claim since it would be called to
decide which contending faction in RI was lawful
government.
Would create a chaos due to illigitimate acts of
government .
Article IV, Section IV Guarantee Clause - vests
Congress and President with authority to decide what
constitutues a republican form of government (really only
says United States, not just Congress or President).
Court would not know standard to decide republican
government.

Article I, Section III, Clause 6, Senate has sole authority to impeach. Not justiciable.
Nixon v. United States (1993)(124) Nixon sued Textual commitment criteria strong basis for finding
for failure of Senate to try him for impeachment this to be a political question. Artilce I, Section III, Clause 6
before a committee. He claimed he was not tried Senate shall have sole authority Bringing case before
by senate as required by Article I, Section 3 and Court would be adverse to framers intent that Sentate be
should have been tried in the same manner as sole authority for impeachment.
criminal. Judically manageable standards criteria - Court also
Case ultimately dismissed for lack of describes how difficult it would be to identify a manageable
jurisdiction. Constitutional guarantee of being tried standard for the procedure of trying an individual.
in the Senate means whatever the Senate decides to Justice Suters dissent what if they flipped a coin? Not
do. This decision actually interprets the a trial on an impeachment. Can imagine that there be some
constitution and the meaning of Article I, Section criteria (by identifying outliers, flipping coin, declaring king
III. Could be viewed as a decision on the merits. v. republican form of govt, etc
Is there such a thing as the political quesiton
doctrine or is there a decision that states the
constitution does not give you a remedy, which
would be a decision on the merits.

Court decides ejectment from Congress. Is the PQ doctrine really a question of politics or is it simply whether the
constitutional issue invoked does not allow a remedy?
Powell v. McCormick (1969)(126) Powell This only requires judicial interpretation of the
denied a seat in Congress because of misbehavior. Constitution and Court consistenly intrepets Constitution in
He brought judicial challenge b/c Congress can ways different than other branches of government.
only refuse to seat on on Article I, Section 2 There is a textually demonstrable constitutional
requirements of age, citizenry, and residency commitment of the issue to a coordinate political
requirements. Powell wins. department and the scope of such a commitment.
This is not a political question.

Vieth v. Jubelirer (137)(2004)Plaintiffs Does political gerrymandering raise to the level of a

challenging map being drawn for redistricting PA. political question?
Alleging unconstitutional political gerrymandering. Article I, Section IV allows Congress to make or alter
Organizing districts in a way not to equally regulations of the Manner of Holding Elections. Congress
represent parties and gives advantage to one
CONSTITUTIONAL LAW 10

political party, to pollute the vote. Census
mandates redistricting.
Any allegation that Renyolds v. Sims one
person, one vote standard is violated? No.
Is this a claim that some ethnic or racial minority
is disadvantaged? No.
is allowed to override a state redistricting plan or make
rules.
Best way to interpret case, Justice Kennedys opinion:
No political question and no standards to apply. Decides the
case on the merits, not on the doctrine.
NOT ON EXAM!

Bush v. Gore (144)(2000) FL S.Ct. ordered a revote of undervotes cast in FL counties.

5-4 vote decided 2000 Presidential election.
ISSUE 1: Various methods of recounting votes HOLDING 1: FL SCT has right to order recount, but
violates Equal Protection Clause of 14th manner in which it was being implemented was arbitrary as
Amendment and Due Process Clause. the standards for counting votes were not uniform.
ISSUE 2: Article II, Section 1, Clause 2, each HOLDING 2: There is a direct grant of authority by
state shall appoint in such Manner as the Congress to legislature of states. FL SCTs Order was
Legislature thereof may direct, the number of unconstitutional infringement of Constitutions grant of
electors. Direct grant of authority in Constitution power to states legislature
to FL legislature and FL SCT decision is
unconstitutional infringement on power of
legislature.

4. Question of TimingNOT ON EXAM!

a. Ripeness Bars court from deciding cases that are premature, too speculative or remote to
warrant judicial intervention (i.e. Lujan v. DOW, suing for housing discrimination when
you havent applied for an apartment).

b. MootnessPrevents Court from hearing cases where the controversy has been resolved
(i.e. suing to get into school youve graduated from).

IV. CONGRESSIONAL POWERS

A. POLITICAL SUPERVISION OF THE SUPREME COURT
1. Amendments: If 2/3rds of both the Senate and the House propose
an amendment OR if 2/3rds of the states of the states call for a
constitutional amendment AND the amendment is ratified by of
the states,
Successful Amendments that have overturned S.C. Decisions
a. XI - limiting jurisdiction of the federal courts to hear suits
brought against states
b. XIV deeming Americans of African Descent citizens of
the United States
c. XVI Expanding the power of Congress to tax
d. XXVI setting the voting age

3 Policy Views on whether the Constitution Should Be Amended

Madison: We do not need Washington: Proposed Consitutionall amendments only when they
amendments b/c the Constitution is amendments should be would remedy huge structural defects.
sufficiently flexible as it is. welcomed.

2. Appointment of Justices to the S.C. S.Ct. Justices are appointed by the President and
subject to consent by Congress.
3. Impeachment Art III, 1
4. Life Tenure Federal Judges are Appointed for Life
5. Informal Control of Sitting Judges and Self-Imposed Limits
CONSTITUTIONAL LAW 11

[SC is generally sensitive to the mood of the country and does not generally continue for a
long time if it faces intense popular disagreement]

B. COMMERCE CLAUSE Federalism in Action

1. Benefits to Federalism
a. More efficient to allow various jurisdictions to allow government to adjust the
manner in which it addresses problems b/c of geography, population, natural
resources
b. Permits local differences to be taken into account
c. Checks and balances - dividing authority is more supportive of individuality
2. Forms that federalism might take (not mutually exclusive)
a. Neither state nor nation may have power to act
i. Matters that simply are off the table in terms of authority
ii. Bill of Rights (which does not address States powers)
iii. If regulation violates the 1st Amendment, neither state govt nor Congress may
adopt it
b. National government may be given exclusive power to regulate in some manner
i. Some grants of authority given to Congress that are later denied of the states
ii. What about powers in Article I, 8, Commerce Clause are those powers meant
for just Congress?
iii. Perhaps not exclusive powers of Congress, but a provision that would allow
Congress to share authority w/ states
iv. Which law would rule in the event of a conflict? The Supremacy Clause =
Congress
c. States may enjoy some exclusive powers of their own
i. Is it an empty set? Are there things that are exclusively w/in the authority of the
state to which national power does not extend? Is there anything states can do that
the national government cannot? What might those subjects be?
CONSTITUTIONAL LAW 12

3. COMMERCE CLAUSE: Three Categories Congress Can Regulate: Consistent with the
great weight of our case law, the proper test requires an analysis of whether the regulated activity
substantially affects interstate commerce Lopez. Per Lopez, Congress may regulate three
broad categories of activity under the Commerce Clause of Article I, 8:

a. The use of channels of interstate commerce (Gibbons); the channels of interstate

commerce are the places where interstate commerce occurs.
Examples: Navigable waters, highways, waterways, air traffic, radio frequencies,
internet, trucking companies, airspace/commercial travel in planes,
Waterways - Gibbons v. Ogden
Railroads Shreveport Rate Cases

b. The instrumentalities of interstate commerce or the persons and things in interstate

commerce, even though the threat may come only from intrastate activities
(Shreveport Rate Cases; Katzenbach); instrumentalities are things that facilitate
interstate commerce
Examples:
Planes, trains (Shreveport Rate Cases), automobiles, trucks, telecommunications
(telephones, etc.), internet, radiowaves, stock, insurance, cattle;
US v. Bass (transportation of gun requires criminal received gun in interstate
commerce; potentially very large category since many articles used every day in
interstate commerce)

c. Those activities that have a substantial relation to or substantially effect

interstate commerce. (Wickard; Morrison; Lopez; Darby; Katzenbach; Ollies BBQ;
Heart of Atlanta Hotel; Jones & Laughlin Steel)

ANALYSIS: Lopez Substantial Effects Test

1) Is the regulated activity commercial (economic)? Court makes a distinction. If
the activity is not apparently economic, the government must inform them.

2) If yes, did Congress have a rational basis to conclude that the class of
activities of which the regulated activity is a part has a substantial effect on
interstate commerce? (Rational basis + aggregation principle)

Environmental issues: Biodiversity (potential effect) argument: the availability

of a large number of animal and plant species has a substantial effect on interstate
commerce. Each species is important under this argument b/c it is the number of
species that matters, not the characteristics of any particular species. Having a
great number of species could lead to cure for AIDS, etc.

Ecosystemcould be considered interstate commerce if ecosystem greatly

affects interstate commerce, and species is vital to the ecosystem.

3) If its not economic, is there a jurisdictional element (jurisdictional hook)

which would ensure, through a case-by-case inquiry, that the [activity] affects
interstate commerce?
Jurisdictional Hook (i.e. no guns vs. no guns that have been transported in
interstate commerceconnection between activity and interstate commerce)
Likely sustained. A requirement that the thing being regulated has been
moved in interstate commerce? Notes following Morrison gives answer. In view
CONSTITUTIONAL LAW 13

of Courts of Appeal, yes. But, S.Ct. hasnt addressed. Sustaining gun free school
zone acts as amended. U.S. v. Dorsey, 418 F.3d 1038 (9th Cir. 2005).
MIGHT NEED CASE-BY-CASE INQUIRY: BUT look at jurisdictional hook
language on p. 212: jurisdictional element which would ensure though case-by-
case inquiry, that the firearm possession in question affects interstate commerce
Reminiscent of Hamer v. Dagenhart Looking back at pretext?

4) If no jurisdictional element, is the activity an essential part of a larger

regulation of economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated?
Aggregation principle and Rationale Basis still available.

5) If no jurisdictional element and if not part of a larger regulation, has

Congress made findings that demonstrate a fairly direct link between the
regulated activity and interstate commerce?
If yes, sustained if connection to interstate commerce is direct.
NOTE: Legislative findings showing only an attenuated link between the
activity and interstate commerce are not sufficient (Morrison).
i. If its non-economic, the Court goes into an aggressive mode and requires
a showing of the connection.
ii. Court will not apply the rational basis test when it is not economic activity.
iii. The characterization must be fairly direct. Not some attenuated version of
the effect Court will not pile inference upon inference An indirect
line of causation is insufficient. Too tenuous and remote. Congress went
too far.

POLICY:
First principle, the doctrine of enumerated powers, there is a limit to federal power. If
test to apply leaves one government power limitless, youve either got the wrong test
or youre not applying it right. It is not clear which is the conclusion of the Lopez
Court.
Rational basis is a mediation between giving carte blanche authority to Congress and
complete deference to their acts and requiring the government to prove that the act is
connected to Commerce.
P. 212 where economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained. Even Wickard, which is perhaps the most
far reaching example of Commerce Clause authority over intrastate activity, involved
economic activity in a way.
If the activity is non-economic, the rational basis does not apply. We need robust proof
of the connection with intrastate commerce if it wants to substantiate it.

2. Historical Developments Effecting the Commerce Clause

a. Civil War After the Civil War, Congress more willing to exercise power to
control interstate commerce b/c the effects of regulation less likely to cause war
(war over)
b. New Deal Era Depression and political maneuvering (stacking the bench) made
Court more generous to Congressional regulation under the Commerce Clause.

3. Formalist v. Realist Approaches

a. FORMALIST A textualist approach. Court examines the statute and the
regulated activity to determien whether certain objective criteria are satisfied.
When looking at reach of federal power, it looks at each term (commerce, among
CONSTITUTIONAL LAW 14

several states, regulates) and defines the terms of the grant looking at internal
grants of power. [Not concerned with real effects of regulation, i.e. EC Knight].
Objective.
TEST:
i. Is Congress regulating commerce?
ii. Is it commerce among the several states?
-Is it completely internal to the state? (NO.)
-Does not affect other states? (NO.)
iii. Is it regulation? Knows NO limit only limit one might expect ot be
found by this power is one that is enforced through the poles. Marshall.
[or external limit enforced by Courts].

b. REALIST A functional appropach.

Attempts to determine actual economic impact of regulation or actual motivation
of Congress; would uphold legislation even if formal definition is not met.
[Concerned with real effects of regulation, i.e. Wickard]. Subjective.

Realist (Functional) Formalist

Focuses on whether it practically affects
commerce.
i.e. in EC Knight owning 98% of sugar
production definitely affects interstate
commerce
REALIST = FUNCTIONAL = EXTERNAL
Focuses on the formal happenings.
i.e. in EC Knight technicially owning 98% of sugar
production doesnt occur among the several states
(since it is production) and doesnt cross state lines.
FORMALIST = TEXTUALIST = INTERNAL

3. Tests for Challenging Congressional Regulations

1. Substantial Effects Test Does this effect other states commerce (thus allowing
for regulation of intrastate commerce)? Gibbons v. Ogden, 1824.

2. Rational Basis Test Scutiny of the linkage between what Congress has chosen
to regulate and interstate commerce; If the Court can immagine a reasonable
relationship between what Congress is trying to regulate and interstate commerce,
it is acceptable regulation. No necessity to provide hard evidence by government.

3. Aggregation Principle Effects of the entire class matter, rather than individuals
of the class. So, even if the single farmer did not substnaially effect interstate
commerce, if all farmers in the class will, it will substantially effect interstate
commerce. Dont look at just the individual before the Court, but look at the effect
of the activity in aggregation.

Effects Test: Still good law today.

Gibbons v. Ogden (1824) (p170)Congress passes
law allowing Gibbons to operate a Ferry, but NY
has given Ogden a monopoly. Court declares the
monopoly unconstitutional and says that Gibbons
has right to operate a ferry.
Regulation: Dormant commerce clause invalidating
NY monopoly law.
TEST: Effects Test does this effect other states
commerce (thus allowing for regulation of intrastate
commerce).

Commerce/Manufacturing Distinction; Direct/Indirect Test (Regulation of Morals)

Hammer v. Dagenhart (1918)(p. REGULATION: Not okay because child labor occurred
174)Court says that Congressional Act before placed in interstate commerce.
prohibiting interstate transport of goods TESTS: Commerce/Manufacturing Distinction;
CONSTITUTIONAL LAW 15

produced by factories using child labor is Direc/Indirect Test

unconstitutional. The evil has ended once the
goods are manufactured and before they are
placed in commerce.
Justice Holmes dissent says formalist
approach should not look at intent and should
remain strictly formal (should uphold the
law).
Overruled by US v. Darby (FLSA).
BAD LAW
This is manufacturing, not commerce, Congress cannot
regulate. BAD LAW!
Formalist approach (but looks at intent).
Morals Case: Congress is using commerce clause as pretext
to regulate morals.
10th Amendment allows states to regulate child labor .
REGULATES SHIPMENT OF GOODS.
HIGH WATER MARK Courts willingness to police
Congress (constrast with Wickard).

Aggregation Doctrine; Clear and Substantial Effect; Rejects Direct/Indirect through Aggregation; and
Manufacturing National/Local Test
Wickard v. Filburn (1942) (p. 175) Filburn was Court upheld Act on basis of Aggregation Doctrine
ordered to pay a penalty imposed by the saying that if all farmers did the same, there would be a
Agricultural Adjustment Act for producing wheat in substantial effect on the economy.
excess of his assigned quotas. He argued the Aggregation Principle applied. The collective
regulations could not be constitutionally applied to consumption of excess wheat on farms has substantial
his crops because part of his crop was intended for impact on the interstate market for wheat. Wickards
home use and consumption and not interstate small impact is enough to bring his activity within the
commerce. regulated whole.
REGULATION: Okay. Rational Basis test applied. While the government
REGULATION OF INDUSTRY. supplied hard evidence of the relationship between
LOW WATER MARKCourts willingness to Wickards activities and interstate commerce, they were
defer to Congressional regulation (contrast with not required to do because if the Court can immagine a
Hammer). reasonable relationship, it is acceptable regulation

Direct/Indirect Test; Substantial/Insignificant Test; Commerce/Manufacturing Test

United States v. E.C. Knight (1895)(p.187) US Production is not related to interstate clause. Object of
invokes Sherman Act to set aside sugar company regulation is not directly related to interstate commerce.
acquisition of 98% of Sugar Refineries. Court says Because it is only indirect, it is not constitutionally
this is not covered by the Sherman Act because it is sustainable by conjoining the Necessary and Proper
only manufacturing. Clause with the Commerce Clause.
REGULATION: Not okay. This deals with Formalist Approach.
manufacturing. Limited by NLRB v. Jones & Laughlin Steel.

Direct/Indirect Test
Shreveport Rate Cases [Houston East & West
Texas Railway v. US] (1914) (p. 188) The ICC
set a maximum rate applying equally to shipments
from Dallas or Marshall to Shreveport.
REGULATION: Okay.
Court ruled that regulation between Dallas and Marshall
was permissible. Congress can regulate intrastate
commerce where there is an inseparable relationship
between intrastate and interstate commerce.
RR being regulated is interstate carrier, thus viewed by
court as an instrumentality of interstate commerce.
RR has close and substantial relation to interstate
commerce traffic.
If not an instrumentality, use EC Knight test
(direct/indirect test).

Direct/Indirect Test
Coronado Coal v. United Mine Workers (1925) (p. Regulation: Okay. Striking miners intended to interfere
188) Court upheld application of the Sherman with commerce.
CONSTITUTIONAL LAW 16

Act to a strike against mine operators, calling it a Direct / Indirect Test

local act, but one that indended direct interference
with commerce.

Stream of Commerce Theory Initiated

Stafford v. Wallace (1922) (p. 189 ) Packers and Stockyards are the throat through which the current
Stockyards Act of 1921 was held constitutional flows in the stream of commerce.
because it is within the stream of commerce. Regulation upheld.
(Distinguished from production in EC Knight). Precedent for NLRB v. Jones & Laughlin Steel.

Direct/ Indirect: (Regulation of Morals)

Champion v. Aimes (p. 190) (1903) Federal Regulation: Okay. Lottery tickets shipped across state
Lottery Act of 1895 prohibited interstate lines.
transportation of foreign lottery tickets. Champion TEST: Stream of Commerce carried on through
was indicted for shipping a box of Paraguan lottery interstate commerce. Direct/Indirect.
tickets from Texas to California. The Court The carrying from one State to another by independent
declared the Act constitutional. carriers of things or commodities that are ordinary
Formalist approach. Congress will not examine subjects of traffic and, which have in themselves a
motives behind legislation. recognized value in money, constitutes interstat
commerce.
GOOD LAW.
DISTINGUISHED FROM HAMMER V. DAGENHART: Hammer which is realist and functional in its
analysis, looks at motive of congress. Champion can be distinguished since Hammer legislation would invade
state authority by eliminating all child labor, whereas Champion still allows state lotteries, just prohibits
interstate shipping of tickets, thus not a serious limitation of state soveriegnty.

Stream of Commerce; Direct/Indirect

ALA v. Schechter Poultry (p. 193) (1935)
New deal case where court ruled that live poultry
codes set up through NIRA to regulation working
conditions in the poultry industry were
unconstitutional where they applied to NY poultry
company at the end of the stream of commerce.
Court begins to look at both formalism and
functionalism to make decisions on commerce
authority.
Effects of regulating the local wholesale is not
direct or close enough to be controllable by
Congress but questions of degree are important.
Regulation: Not okay. NY poultry company at end of
stream of commerce with an indirect effect on commerce.
The opposite of EC Knight. Centerpiece to New Deal
regulation.
Internal argument: Court has burden to determine
meaning of terms commerce among several states and
regulate based on Gibbons (textual).
External argument: Congress power is limited by
constitutional grants and cannot transcended based on the
10th Amendment (this is province of the state). This is
later rejected by Darby.

National/Local; Stream of Commerce; Direct/Indirect; Severability

Carter v. Carter Coal Co. (p. 195) (1936)
Congress attempts to set up local coal boards to
regulate labor conditions, declaring that mining has Manner of degree has no bearing. No consideration of
direct effect on interstate commerce. Court
invalidates these provisions on basis that this is
local and mines are at beginning of stream of
commerce.
Notion of Severability: In this case, you cannot
excise one portion of the statute.
Two provision: price-fixing and labor provisions.
Regulation: Not okay.
Mines are local and are before stream of commerce.
the extent of the effect but the relation between the
activity and the effect on interstate commerce. Production
is off limits.
IMPORTANT: SEVERABILITY.
CONSTITUTIONAL LAW 17

The majority of justices address the labor and not

the price fixing and will not excise one portion of
the statute. Not severable.
More like Hammer and could not be a plainer
example of a formalist approach.

IS PURPOSE OR MOTIVE RELEVANT?

Relevant Hammer v. Dagenhart, Carter v. Carter Coal
Ambiguous Gibbons (Congress can do whatever it wants, as long as regulating commerce)
Irrelevant Champion

ARE THE EFFECTS ON INTERSTATE COMMERE IMPORTANT?

No Unless direct EC Knight, Schechter, and Carter Coal
Maybe Shreveport Rate Case or Special Rule for Instrumentalities
Definitely Wickard v. Filburn (Modern view).

Close and Substantial Effect on Commerce; Rejects Stream of Commerce and

Commerce/Manufacturing Distinction - Triumph of Functionalist Approach
NLRB v. Jones & Laughlin Steel Corp. (p. 200) Regulation: Okay. Labor regulations of steel
(1937) The NLRA regulates labor relations. corporation with plants in many states.
Charged D with unfair labor practices for firing Silently overruled Carter and Schechter as not
employees seeking to unionized. controlling.
Justice Hughes, who wrote Schechter, says must Replaced the old stream of commerce and
consider effects on interstate commerce so indirect manufacturing/commerce tests with new test: Close
and and Substantial Relationship to Commerce.
The question is necessarily one of degree Holdings are very fact specific, due to the nature of the
How are the activites Congress is trying to Defendants national business operations.
regulate really affecting interstate Commerce? Looks at Wagner Act on case-by-case basis.

Affectation Doctrine; Clear & Substantial Effect (Regulation of Morals)

US v. Darby (p. 204) (1941) Darby was a Regulation: Okay. Wage and labor provisions.
lumber manufacturer, some of his goods were later Overrules Hammer. Carter is implicitly overruled.
shipped in interstate commerce. He was indicted Tests: Affectation Doctrine and Clear & Substantial
for violating wage and hour provisions of FLSA. Effects
PRETEXT ANALYSIS DOES NOT APPLY: p. Court says that efforts to promote fairness are okay.
205 (Important quote). Purpose to level competition among states.
TENTH AMENDMENT DOES NOT APPLY: Courts conclusion is unaffected by 10th Amendment b/c it
p. 206 (Important quote). is not a prohibition that would otherwise restrict
KEY POINTS: congressional power because it merely states relationship
1. Motive Not justicially reviewable, subverts between state and federal governments.
pretext argument of Hammer v. Dangenart Rationales:
(overruled). 1. Goal is to prevent interstate trade in goods and the means
2. 10th Amendment No independent barrier to is regulating wages and hours. Are these measures
regulation of interstate commerce. reasonably adapted to a legitimate end? Yes.
3. Generous analysis of the means Congress may 2. Affects Test This activity affects interstate
use to regulate interstate commerce. commerce, a broader test.
4. Extends Congressional power to reach activities
which affect interstate commerce in some
significant way.

Aggregation Principle in Employment Cases

CONSTITUTIONAL LAW 18

Maryland v. Wirtz (p.206) (1968)Where a general Note 2b. No individual instances of employment
regulatory statute bears a substantial relation to will be carved out and ignored as long as regulatory
commerce, the de minimis character of individual scheme as a whole is a proper exercise of power.
instances arising under that statute is of no consequence.

Is a constitutional record necessary to establish Aggregation Principle? No.

Perez v. United States (p. 207)(1971) As long as the person regulated is a member of the class
Clarification of Wirtz and Wickard. Closer to test regulated and the class as a whole has an effect on interstate
for civil rights cases. Justice Douglas tells us after commerce, Court has no power to excise, as trivial,
looking at leglislative history that prevented individual instances of the class.
extortionate credit practices (loansharking), it is Case by Case Analysis championed in Jones v. Lauglin is
not necessary that Congress make a record that the abandoned.
Courts can examine to determine the Interpretation of aggregation principle in Wickard.
constitutionality of an action.

Jurisdictional Hook
United States v. Bass (p. 207)(1971)Not a
constitutional decision, but Constitution
serves as a background for Court to adopt
certain principles. It is a statutory
interpretation question. Looks at possession,
transport and receipt by a felon of a gun.
Language of the statute reproduced on p.
207.
Do the receives, possesses and transport
have to be shown to have occurred in interstate commerce? YES.
This is a jurisdictional hook required.
There must be a jurisdictional hook to give rise to the
regulation by Congress. This interpretive principle is applied
sometimes by the Court. When Congress does not speak clearly as
to the application of the statute, the Court.

Affectation Doctrine; Aggregation Doctrine; Clear & Substantial Effect (essentially Rational Basis)
Heart of Atlanta Motel v. US (p. 208)(1964) Regulation: Okay. Public Accommodations.
Katzenbach v. McClung (p. 209)(1964) Affectation Doctrine; Aggregation Doctrine; Clear &
Companion cases where Court ruled Congress had Substantial Effect (essentially Rational Basis)
power to regulate public accommodations under This is a rational basis test: Did Congress have a rational
1964 Civil Rights Act on basis that their food basis for concluding that there was a substantial effect on
products were shipped in interstate commerce and interstate commerce?
that they affected interstate commerce in various
ways.
How obstructions in commerce may be removed what means are to be employed is within the sound and
exclusive discretion of the Congress. It is subject only to one caveat that the means chosen by it must be
reasonable adapted to the end permitted by the Constitution. We cannot say that its choice here was not so
adapted. The Constitution requires no more.

THE DOCTRINE: Substantial Effects Test.

US v. Lopez (p. 211) (1995) Lopez was convicted for
knowingly carrying a handgun in a school zone. Defense
was that the statute cannot be constitutionally applied to
him. He facially challenges the entire statute.
Government tries to link violence in schools to
interstate commerce by showing the effects of violent
crime on the economy.
Government must show Consistent with the great
weight of our case law, that the proper test requires an
analysis of whether the regulated activity substantially
affects interstate commerce (p. 212 quote).
A bald prohibition of guns in school zones.
Legislation: Not okay. Regulation of
Where economic activity substantially affects
interstate commerce, legislation regulating that activity
will be sustained.
To come within this standard, the activity being
regulated must itself be economic in nature or an
essential part of a larger regulation of economic
activity.
Three categories of activities that Congress can
regulate under commerce power: channels of interstate
commerce, instrumentalities of interstate commerce, and
economic activity that has a substantial relationship with
CONSTITUTIONAL LAW 19

Kennedys dissent states that this analysis is really interstate commerce.

about protecting traditional areas of state sovereignty. If the activity is non-economic, the rational basis
Majority implicitly agrees that the legislation should be does not apply.
subject to greater scrutiny if it invades area of traditional If Congress wants to regulate a non-commercial
state concern. activity, they must provide robust proof of that need.

Substantial Effects Test

US v. Morrison (p.222) (2000) Violence
against Women Act. Allows a federal
remedy for women who are assaulted. Rape
by student athletes of Morrison and got no
relief through school processes or tort law.
The connection is too tenuous. Line from
cause to effect is not direct enough to justify
regulation.
Regulation: Not okay. Violence against women not an economic
activity.
Congress must show a substantial effect on interstate commerce.
Congress argues the but for causal chain in the occurrence of
violent crime for interstate commerce.
Congress reasonings and studies are not enough. Congressional
findings will not save the day unless they are direct and substantial.
Indirect circular arguments.
Cases where Congress is trying to regulate non-economic activity,
Congress cannot assume the aggregation principle is available.
Wickard principle of aggregation not available, so Congressional
findings are inapposite.

Substantial Effects Test

Gonzalez v. Raich (packet)(2005)2 pieces of
legislation, Controlled Substances Act (Fed) and
Compassionate Uses Act (CA). Marijuana a Type 1
controlle substance (strictest classification under
CSA). Ps want one type of activity removed from
CSA (do not contest act).
Dictionary definition: Economics refers to
the production, distribution, and consumption of
commodities .
Ps concede CSA is regulating commerce.
Concede it is within larger regulatory scheme.
Take issue with small portion of regulation (use of
marijuana for medicinal purposes in accord with
Compassionate Uses Act).
POLICY: Economic activity might be a little bit
different. But, once you buy into aggregation
principle and rational basis test, there is very little
Congress cannot regulate under the commerce
clause. Trying to find a line is very difficult.
Court will not excise one portion of a statute when the
entire purpose of the larger statutory scheme statute is to
regulate interstate commerce.
Congress can regulate things that have a substantial effect
on interstate commerce.
Statute is part of a larger regulatory scheme intended to
regulate interstate commercial activity involving controlled
substances.
Issue: The question presented is whether the power vested
in Congress to make powers that are necessary and proper
includes the power to prohibit the local[use of marijuana].
Mere fact that it is economic activity is not enough to
invoke rational basis (seeds).
If it is part of a large legislative scheme, it is a broad
deferential standard to Congress (not judges purpose to
determine the tightness of the legislation to the things
regulated therein).

4. STATE REGULATIONDORMANT COMMERCE CLAUSEunder the dormant commerce

clause, states are restricted from discriminating against, or unduly burdening interstate commerce.

A. Background
1. Key concerns of framers and animated Constitution and developing a stronger
national government
a. New union looked like a confederation of independent states than a nation.
b. Economic policies contributed to view, tariffs between states and
protectionism
2. Desired for economic barriers to be eliminated.
CONSTITUTIONAL LAW 20

B. Theories to Apply a Dormant Commerce Clause (Examine the Statute)

1. Purely Political Theory Promotes idea that citizens are part of a nation working
toward national purposes. Some state statutes are incompatible with the ideal of a
unified nation (i.e. protectionist statutes)
2. Purely Economic Theory Barriers inhibit economic stability (prohibits trade
wars between the states and prohibits interference with efficient disposition of
resources throughout the country; want all states to achieve maximum economic
performance)
3. Mixed Theory of Political and Economic Theory: protectionist legislation form
the operation of political process understood as distorted in ways that lead to the
enactment of economically inefficient statutes. Barnwell Brothers Appropriate
for Court to step in and give Congress power under commerce clause and coupled
with the NP clause to preempt state legislature.

C. Exclusive Power Theory Consequence would be radical disempowerment of the states.

1. Consequences of Exclusive Theory falls by the wayside. Radical
disempowerment of the states, especially in light of commerce clause
interpretation under Gonzalez and Lopez.
2. Over time this has erroded. Cooley v. Board of Port Wardens. States cannot
regulate in those areas where national treatment is necessary. If there is room for
local treatment in objects of legislation, states can regulate it. No need for national
rule regarding pilotage laws.
3. Court has recognized concurrent authority of states with federal government to
regulate commerce.

Gibbons v. Ogden (1824)(170)

Justice Thomas suggested states are constitutionally disempowered to regulate commerce.
Suggested Exclusive Power Theory.
If there was no regulation, Ogden would have argued that he does not need a federal statute to engage in the
practice and he can challenge NY statute as unconstitutional as contrary to the exclusive power of Congress to
regulate commerce.
CONSTITUTIONAL LAW 21

D. Preemption determining what implications are when Congress says something and when they
have not.
1. TEST: Has Congress specified in the statute?
a. Has Congress specified in the statute?
i. If no, it is a commerce clause analysis.
ii. If yes, look at preemption.
b. If express, does it specify the Congressional criteria? i.e. Are the
states standards either as or more stringent, as specified?
c. If implied preemption, Court attempts to determine Congressional intent, look for
field preemption and conflict preemption.

2. Types of Preemption:

a. Express Preemption: Congress states expressly what states may do. [No states
may regulate this subject matter or States may regulate subject to some caveat.]
i.e. Clean Water Act (federally mandated pollution controls). States are free to
impose own standards, but must be AS or MORE stringent.

b. Conflict Preemption (Implied): Congress has stepped in to regulate a particular

area, but has not addressed the appropriateness of state legislation.
i. When a conflict between state and federal regulation, Courts will hold that
there is preemption.
ii. Primary Example Gibbons v. Ogden (Federal statute v. NY statute).
According to Supremacy Clause, federal statute trumps.
iii. TEST:
a. Impossible to comply with both state and federal law.
b. State objectives impede, obstructs or frustrates federal objectives.

c. Field Preemption (Implied): Congress has regulated a field so completely that a

Court is willing to conclude that the entire area is preempted and no state may
regulate.
Primary ExampleNuclear power regulation for safety reasons.

3. Judicial Decision on Commerce Clause Challenge not necessarily final

a. If a challenge is rejected, those who oppose state regulation may secure federal
legislation preempting it.
b. If a challenge is sustained, those who support state regulation may secure federal
legislation permitting it.
c. Anomoly: With Federal Acts, Court has last word.

Leisy v. Hardin (1890)(232)State cannot This is a regulation of interstate commerce that is

exercise their power to tax items of interste discriminatory and must be struck down.
commerce so long as the items remained in their Court denied states ability to regulate.
original packages. While state has power to
regulate consumption and sale of alcoholic
beverage, it could not prevent importation as long
as it is in its original package.

Wilson Act Liquor imported into a state shall upon arrival [be] subject to local laws as if it had been locally
producd, and shall not be exempt therefrom by rason of being in original packages.
Congress overruled the Courts decision of the original package rule in Leisy v. Hardin.
CONSTITUTIONAL LAW 22

In re Raherer, Court held that Wilson Act was constitutional exercise of Congress exlcusive power to regulate
interstte commerce.

When are states efforts to regulate unconstitutional?

City of Philadelphia v. New Jersey (1978)(236)
New Jersey law prohibiting solid waste from
outside the state. Your trash is your problem. NJ
is New York and Philadelphias trash dump. State
is trying to protect the health and welfare. NIMBY
at state level.
To determine if its protectionist or affects interstate
commerce?
COSTS:
Local landfill operators
Out of state waste producers
BENEFITS:
Out of state landfill operators
In state waste producers
NJ law is protectionist because it imposes on out-of-state
commercial interests the full burden of conserving the states
remaining landfill space.
Where simple economic protectionism is affected by state
legislation, a virtually per se rule of invalidity is established.
Where simple economic protectionism is effected by
state leglislation, a virtually per se rule of invalidity has been
erectedThe clearest example of such legislation is a law
that overtly blocks the flow of interstate commerce at a
States borders
POLICY: Justice Rehnquist states there is no distinction
between quarrantine cases and trash cases. States should be
able to preclude economic bads from entering. If the state
discriminates on the basis of economic origin, it is per se
discriminatory. (Court has moved away from economic
bad analysis).

ANALYSIS
1. If FACIALLY discriminatory OR discriminatory PURPOSE it is Invalid per se,
i. DEFINITION: If the statute is facially discriminatory, legislates on the basis of
geographic origin of the service or product, or has a discriminatory purpose against
out of states, it is virtually per se invalid.
ii. TO AVOID INVALID PER SE PRESUMPTION: State has the heavy burden of
proving:
1) Legitimate Purpose: that the measure is virtually certain to achieve its
legitimate purpose; and
2) NO Alternatives: that the purpose cannot be served well by available,
less discriminatory means. City of Philadelphia v. NJ. Policy: Avoid
protectionism,. C&A Carbone, Inc. (See Exceptions, below.)
The extent of the burden that will be tolerated depends on the extent of
the local interest involved and are there reasonably alternative means of
achieving the states objective. Philadephalia.

iii. POLICY: Court worried about economic balkanization, with no integrated

economy. Might impose intolerable costs on states of origin. Court worried about
retaliation through trade wars.

2. If not DISCRIMINATORY (facially or purpose), apply the Flexible ApproachIs the burden
on interstate commerce such that the statute should nevertheless be declared unconstitutional? Are
the costs on interstate commerce are excessive based on the benefits granted to the state?

a. But where other legislative objectives are credibly advanced and there is no patent
discrimiantion against interstate trade, the Court has adopted a much more flexible
approach, the general contours of which were outlined in Pike v. Bruce Church.

b. Apply Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)
Quote Definition Assessment on whether the burden placed on interstate commerce by
legitimate state interests and its effects on interstate commerce are only incidental, it will
CONSTITUTIONAL LAW 23

be upheld unless the burden imposed on such commerce is clearly excessive in relation to
the putative local benefitsIf a legitimate local purpose is found, then the question
becomes one of degree. And the extent of the burden that will be tolerated will of course
depend on the nature of the local interest involved, and on whether it could be promoted as
well with a lesser impact on interstate activities.
c. Historical Development:
1. Applies a rational basis test to determine if state is acting in a sphere that is
appropriate. South Carolina v. Barnwell.
2. Then applies a balancing test between the local benefits and the burdens placed on
interstate commerce. Southern Pacific Co. v. Barnwell.
3. Then, look at reasonable alternatives to states regulation to see if there is a less
burdensome way to regulate the matter. Id.
d. Policy Developments:
1. Under Cooley, examine the subject matter of local legislation and consider if it is
appropriate or more appropriate for national legislation.
2. If want to legislate on national matter, such as RRs, it must coordinate efforts with
other states to reduce burdens.
3. Southern Pacific Co. suggests it will examine the most stringent state standards
and see if the incremental difference that burdens commerce is outweighed by the
local benefits. (i.e. 16 cars or 8 cars).
4. Examine how to make these policy determinations (legislation would save 3 lives
annually v. $18 million per year to comply). Is this a legal judgment or a policy
judgment? Should it be left to the Courts or the states? Is this the Courts role?
5. Alternative way to deal with the problem. Rather than asking the Courts, ask
Congress to regulate and preempt the area.

TIER 1: Allowed facially discriminatory law.

Maine v. Taylor(1986)(240) Prohibits bait fish from
outside state from being imported into Maine.
Similar to Quarrantine laws.
On its face, it is geographic.
States justification, out-of-state bait fish have
parasites that in-state do not. Shipment might wreak
havoc upon Maines aquatic ecosystem.
Is there a less discriminatory or burdensome way to
accomplish? Court says no.
There could be an inspection system, but the Court
finds that it is not adminsitratively feasible to have an
inspection system that will do the job of a complete ban.

TIER 1: Prohibited geographic discrimination.

Sporhase v. Nebraska (239)(1892) Nebraska Court says cannot discrimination based on economic
prohibits sending groundwater to other states unless destination in regulating resources.
the other state allows reciprocal sending. Appropriate remedy is judicial challenge not legislative
protectionism.

TIER 1: Prohibited legislation due to Discriminatory PURPOSE Disparate Effects

Hunt v. Washington State Apple (p.256) Regulation: Not okay.
(1977)Two major rivals in apple market (North Regulation applied to all apple growers, no matter their
Carolina and Washington State). Challenge to law geographic origin so not discriminatory on its face.
that required USDA labels and standards instead of Discriminatory Purpose is that it disparately effects out
Washington State Standards that are higher. of state apple growers over others.
Is there preemption by US FDA laws? No. Statutes with discriminatory effect will be struck
Important to remember, but not discussed. down even if not facially discriminatory.
Is North Carolina taking it upon itself to give US Three discriminatory effects: 1. adding costs; 2.
FDA laws preemptive effect? deprives economic good will by virtue of superior
p. 258 notes following case indicates that statue economic grade standards; 3. has a leveling effect of
CONSTITUTIONAL LAW 24

was enacted at request of NC apple growers, not downgrading Washington apples with apples of less
confused consumers. quality.
Court does not explicitly call it protectionist or MADDENING: does not tell us what the test is.
discriminatory, but colors the whole opinion.

TIER 1: Rejected facially discriminatory legislation and REQUIRES STATE TO MAKE CLEAREST
SHOWING OR CONCRETE EVIDENCE. An idea not explicit in the Constitution (Dormant Commerce
Clause) is found to trump an idea explicitly in the constitution (21st Amendment states can regulate alcohol).
Granholm v. Heald (2005)(Supplement)MI law Geographic discrimination raises presumption of
regulates and prevent shipment of wine directly unjustified economic protectionism. (Virtual per se rule.
instate by out of state producers, while allowing Under Maine v. Taylor, can escape by showing a good
instate wineries to directly ship wine to consumers. reason and no alternative regulation.)
21st Amendment EXPLICITLY grants authority NY and MI give reasons 1. limit alcohol access to
to the states to regulate importation. minors; 2. out of state will avoid sales tax. Court finds both
No design to have the amendment displace the inadequate.
ordinary working of the commerce clause to limit There must be concrete evidence that direct shipping will
discrimination or economic protectionism. cause these issues.
Court rachets up the showing required by state. Courts require the clearest showing to justify
discriminatory state regulation. MORE than Maine v.
Taylor. State being held to VERY high burden.
Court reinforces Philadelphia analysis with a more
demanding burden on states to justify reason for
discriminatory regulation.

TIER 1 VS. TIER 2 ANALYSIS: Difficult determination when local protectionism is involved. Court
extends Philadephalia Rule to cover local interests. See Law Journal.
C&A Carbone, Inc. v. Clarkstown (240) (1994) Closing the market completely to out-of-state competition
Clarkstown subsidized a private waste transfer completely burdens interstate commerce.
station to collect solid waste. City passes flow Discrimination against interstate comerce in favor of local
control ordinance that all waste must pass business or investment is per se invalid, save in a narrow
through 4 facilities located w/in town jurisdiction. class of cases in which the municipality can demonstrate,
W/o the ordinance, Carbone would have shipped under rigorous scrutiny that it has no other means to
materials to out-of-state destinations at lower cost. advance a legitimate local interest.
Justice Souters Dissent it is dubious that Arguments must be rejected absent clearest showing
economic protectionism is the motivation of the that the unobstructed flow of interstate commerce itself is
statute. unable to solve the local problem.
Justice OConners Concurrence: There is no State and local governments may NOT use their
discrimination here (agrees w/dissent) b/c here no regulatory power to favor local enterprise by prohibiting
in-state class favored over out-of-state class. patronage of out-of-state competitors or their facilities.
OConner applies balancing test and concludes Close call, 5-4 vote.
violates Commerce Clause, makes economically Economies of scale are found in other utilities, also in
bad sense. trash by achieving environmental goals.
PROF thinks this is a draw! Agrees with Could regulate, but would be expensive. Justice Kennedy
Souters reasoning, but would not change said that the statute could have been effective without
majoritys ruling. Replacing competition with discriminating on its face by giving it financial subsidies or
monopoly citys do it all the time, water, gas, etc. very low taxes. Subsidies are okay if come out of general
It might not be so bad to extend to trash. This is revenues and not earmarked taxes.
not a dormant commerce clause issue. Court
should have stayed out of it.

TIER 1: Geographic Discrimination on its face.

Dean Milk Co. v. Madison(1951)(245): HYPOS: Geographic discrimination on its face.
CONSTITUTIONAL LAW 25

City of Clarkstown. There are four waste
processing facilities in town. City passes ordinance
that all waste has to be processed at any one of the
four. It must be one of 4 located w/in towns
jurisdiction
What if only one is chosen and there are several
others inside and out side the town?
What if it must be processed at only 2 out of 4
located in the city?
What if 2 have more state of the art equipment?
Why still objectionable?
Case cited by S.Ct. that resembles this case. Dean Milk.
Madison, WI had requirement that all milk sold in city must
be located within 5 miles of city. Economic discrimination
of instate v. out of state.
Another step required.
In-state discrimination just as much as out of state
discrimination.
Just go down to jurisdictional unit acting. Ask is city
prefering its own to all others?
Court includes all discrimiantion, even on a local basis.
Other interests not represented in that government. It
impedes access to the regulatory body because local entities
have greater representation at enacting level.
Hard to say that discriminatory intent is geographic, since
equally discrimination against in-city/in-state and out-of-
city/out-of-state.
Doesnt necessarily eliminate geographic discrimination.

West Lynn Creamery, Inc. v. Healy
(1994)(247)Imposed uniform tax
and gave refund to in-state dairy
producers. Thats unconstitutional as
well. If neutral tax went into general
pot, and not earmarked for return to in
state dairy producers, it would be okay.
Why?
Lack of political fix is a main concern. If it comes out of general
revenues, there are many competing interests from the revenue and it is
sufficient to ensure that economic protectionism would not be basis for
using tax revenues.
Ordinary political safeguards are thought to be enough for general
taxes b/c you can address it though ordinary political processes (i.e. the
polls, voting, complaining).

Facially Neutral Statutes with Significant Effects on Interstate Commerce

South Carolina Hwy Dept. v. Barnwell Brothers
(1938) (255) Weight and size limitations placed on
trucks that can be used on South Carolina highways.
Some intrastate carriers could not use trucks inSouth
Carolina. Limits applied both to in state and out of
state trucking firms. Not geographic discrimination,
but will significantly affect intersate commerce.
Legislation was upheld.
Modern View: Kassel v. Consolidated Freightways
Corp (1981).
TEST: #1. Has the state identified a legitimate state
interest for the legislation.
Whether the state legislature has acted within its
province? At this time, yes, no federal interest in
highways.
#2. Whether the means of regulation chosen are
reasonably adapted to the end sought. Rational basis
test and invoking N&P clause.
If rational basis, then must give deference to state
legislatures.

Southern Pacific Co. Is there a legitimate state interest? Certainly protection of RR workers.
v. Arizona (1945)(255) Is there a rational basis? Yes.
State regulated Balancing test develops. Balance the putative local benefits against the burdens based
number of cars on RR on interstate commerce.
in order to protect No denial of state legislation, but must show that the benefits exceed the burdens.
safety of RR workers. Benefits must exceed the costs.
Modified by Kassel. It does not work. Race to the bottom, RR would have to choose least number to avoid
dismantling trains at states border. Very substantial cost.

Exxon Corp v. Regulation: okay.

CONSTITUTIONAL LAW 26

Governor of ANALYSIS:
Maryland (p. 259) 1. Is there facial discrimination? No. MD refineries and producers would be affected
(1978) Early 1970s equally (practically there are none).
major gasoline 2. Are there discriminatory effects? Yes. No gas reserves or refineries in state of MD.
shortage due to OPEC Only entities outside MD are affected.
oil embargo. Gas was Court looking at something else? Can they sell gas in the state? Yes. Just not by
being rationed and retail, by wholesale. No disruption to interstate commerce since flow of gas not
prices soaring. The prohibited focuses on product market. Dissent focuses on service market.
Statute prohibits 3. Is there a legitimate state interest? Yes. There is a shortage of supply. If refiners and
gasoline refiners and producers operate stations, they will get the gas during times of short supply. State of
producers from MD is concerned this will exacerbate the shortage and not distribute gas in an effective.
operating retail gas This is a legitimate state interest.
stations. If they 4. Is the legislation reasonably related to a legitimate state objective? Yes.
already own them,
they have to divest.

Exxon HYPO what The effects cannot be alleged to be as discriminatory as they are in MD since there are
if TX enacted the same a LOT of in-state producers and refiners thus as discriminatory in-state as out-of-state
legislation as MD? Compare to Hunt, where any state (other than WA) if enacted the statute, would have
Would that have a the same result.
serious impact upon Idea should the accident of geography in MD (where there are no refiners and
the commerce? producers) preclude them from allowing the statute?

Hunt Exxon Kassel

Facial Discrimination No No No (applies to all trucks) A bit
with exemptions
Discriminatory Effects Yes No (Dissent says yes) No (a bit)
Legitimate state Yes Yes (gas supply) Yes (highway safety)
objectives?
Legislation Reasonably ?No? Yes. [No discussion in ?Dicy. Are there any safety
Related to legitimate case. Suggests that benefits from this statute?
State objectives? there are.]
Alternatives Yes. Yes. No.
Balancing? (implied) No-not explicitly No-whats left to balance?
Distinguished The legislation seems to The legislation may Legitimate state interests hint at
Explains different have discriminatory have similar protectionism (exceptions for
outcomes effects and the discriminatory effects border states).
Both casesout of state legislation is not (protect from prime
interests bear all of the reasonably calculated to competitor) but is
costs. address legitimate state reasonably calculated to
Court believes State in objectives. address legitimate state
Exxon not Hunt. objectives.

Raymond Motor Transportation, Inc. v. Rice Unanimously found truck length statute unconstitutional.
(243)(1978)Close in time.

Burden on Interstate Commerce is outweight by insignificant safety benefits.

Kassel v. Consolidated Freightways Corp. (p. 265) Regulation: not okay. Regulation does not provide any
(1981) Plurality opinion. State statute limits significant safety benefits and it also imposes heavy burdens
length of trucks (double trucks). on interstate commerce.
Classic multi-factor constitutional analysis in Iowa argued Barnwell: rational basis between regulation
CONSTITUTIONAL LAW
which no single factor seems to be determinative.
Rehnquist says the relevant comparison should
be the benefits of limiting the size in genral; no
regulation compared to IAs regulation. If done this
way, truck length limitation is reasonably related to
highway safety. Does it yield significant safety
benefits? Yes.
Prof sees Rehniquist will uphold every piece of
legislature as long as it passes the RBT.
Creative argument for attorneys. Hints in Kassel
that rational basis still might apply.
States w/out bordering states (FL, HI, etc.)
would turn out differently.
HYPO: What if the statute is not something like
truck length? What if its vehicle emissions? CA
suddenly telling everyone they can only have X
amount of CO2 emissions and government hasnt
gotten into business of regulating this. All the other
states allow unlimited emissions. Then auto
produces would have to make a special car just to
CA. Is it plausible to argue economic
protectionism?
27
and benefits it is attempting to achieve.
IA statute bears disproportionately on out of state
interests b/c discrimination in Special Exemptions (border
cities allowed to have large trucks) and (mobile homes
produced in the state can be transported out in larger
vehicles than can be used to come in to state).
The Plurality compares the benefits from the 65 feet to 55
feet yield any safety benefits? Compares what other states
are doing versus what the state before it is doing. Does it
yield incremental safety benefits? No.
Does it balance? Doesnt need to if not reasonably
related. 2 lives vs. $12.6 million. Four justices believe
balancing is the way to go. Five justices do not agree.
But is not a benefit to CA and CA alone not entirely
clear that this is a regulation that favors insiders vs. outsiders
If challenged under Commerce Clause, why not
appropriate to argue RBT?
Is the states interest in avoiding the ill-effects global
warming reasonable? YES
Is the regulation legitimate to reach that interests (the
states objective)? YES its a reasonable first step.
CONSTITUTIONAL LAW 28

V. Taxing and Spending Power of Congress

A. Taxing Power
1. CONGRESS HAS WIDE DISCRETION: With passage of 16th Amendment (allowing federal
income tax), there is not much limit on taxing power.
2. REMEDY IS USUALLY POLITICAL: McCulloch v. Maryland Courts should not normally
assess legality of taxes imposed by states. Remedy for abuse of tax powers is normally political.
This is a powerful check on Congress ability to tax, new taxes are very difficult to support
politically.
3. PRINCIPLE ISSUE: Can taxing and spending powers be used to support objectives that Congress
cannot other achieve through the using other methods (i.e. via Commerce Clause).

B. TAXING AND SPENDING POWER ANALYSIS: TEST

1) Is the recipient coerced into complying w/ conditions attached to spending?

a. Not in Dole test, but independently in the framework of the Courts analysis. This factor
drives conclusion in Butler and Steward Machine.
b. If coercion involved, not necessarily a reason to say its not w/in powers. Coercion can
cross into the area of regulation
c. Steward Machine what counts as coercion is substantially modified. At some point
inducement might turn into compulsion or coercion, but doesnt tell us where that point
might be.
d. PROFESSOR: if there is truly no coercion, then who cares the state is making a
voluntary choice to obey by the conditions or not not really able to figure out what this is
all a/b

2) IF YES, are the conditions otherwise w/in Congress spending powers?

a. It is sometimes acceptable if the recipient is coerced b/c there is another power
available to Congress.
b. Example: Butler would be sustainable today, after Wickard, since regulation of agricultural
production is now within the Commerce Clause.

IF NO, the Dole test: (exact language on p. 291)

1) Does it promote the General Welfare? Butler.
a. Court has never struck down a spending program for failing to meet this criteria.
b. Courts should defer substantially to Congress on what constitutes general welfare.
c. Williams astonished if Court would develop adequate criteria for what sort of
things establish general welfare sees it as a political matter* (political question
doctrine)
2) Are the conditions stated in an ambiguous way?
a. If yes, they would probably be construed not to be conditions at all.
b. If Congress intents to interfere with the sovereign rights of the States, it must do so
in an unambiguous manner. See Pennhurst, where findings did not clearly
equate to conditions on receipt of funding.
3) Are conditions related to federal interest in particular projects or programs?
a. RATIIONAL BASIS TEST: Very deferential review. Conditions must be related
to the actual Act, not some unrelated activity.
b. Departs a little bit from Cardozos formation in Steward Machine.
i. Steward under 21 drinking limit must be related to highway funding (ct
found it related)
ii. Appears loosely like a rational basis going to resemble the test that is
applied in some Commerce Clause situations (larger regulatory scheme
part)
CONSTITUTIONAL LAW 29

iii. OConnors dissent wants a more rigorous test with conditions be closely
related to actual spending program. Says there is no reasonable
relationship in Steward.
c. PROFESSOR: If court required to relate conditions to spending programs based
on federal concerns this might be the place where they could do it. Better way
of ensuring Congress isnt intruding in areas of state concern (*Williams)
d. This is the element where most litigation would occur.
e. Sabri v. US Federal crime to bribe state or local official of governmental unit
receiving more than $10K.
GOOD EXAM QUESTION (Like US v. Perez Corrupt commercial activities).
Analyze that under the commerce clause. It analyzes under the Dole framework.
Rigorous policing these conditions would be a way to tighten up this analysis.

4) Violate affirmative limits on congressional power?

a. Cannot violate the Bill of Rights (i.e. giving money to build particular churches;
not coercive, conditions reasonably related, but STILL violates 1 st Amendment
Prohibition on Establishing Religion)
b. Dispute regarding law schools being required to allow army recruitment because
of open discrimination against homosexuals. FAIR v. Rumsfeld. Court found no
violation.
c. Rare cases. Dont worry about this element.

Hammer v. Dagenhart (1918)(174)Court struck
down Child Labor Act for transporation of goods
made by child labor.
Bailey v. Drexel Furniture Co. (1922)(p. 281) In
the interim, Congress decided to impose a Child
Labor Tax Act. If cant reach it through the
Commerce Power, we will seek objective through
the tax power. McCulloch the power to tax is the
power to destroy. Defined child labor the same
way as Child Labor Act. Enacted 10% tax on
entire net profit.
Congressional efforts were transparent.
Congress had already been denied the power under
the Commerce Clause, so this was also
unconstitutional exercise of taxing power.
Signals in prior decision involving tax authority.
Congress decided if it did not have this power under the
Commerce Clause, it would try to reach it through the taxing
power.
Main point was the coercive nature of the tax 10% on
all profits. This was a punitive tax and coerced compliance
with child labor regulations, so that taxing authority was
deemed unconstitutiuonal.
TEST: 1) Tax cannot be so high as to be coercive and tax
cannot be a pretext to an unconstitutional exercise of taxing
power to regulate an objective Congress could not otherwise
achieve by penalizing falure to comply.
2) Tax should be designed to generate substantial revenue.
Its not entirely clear that revenue would be generated.

When a taxing measure has the primary purpose of generating revenue, any other purpose or regulation within the
statute will be given the greatest deference pursuant to the Necessary and Proper Clause.
United States v. Doremus (p. 280) (1919) Whatever motive Congress might have had other than to
Harrison Act regulated sale and distribution of tax is not reviewable.
narcotic drugs. Act required special forms and Argument like Darby, not really worried about motive,
charged tax. Doctor challenged and claimed that worried about purpose.
Congress real motive was to regulate the use of Revenue keeping and forms were all upheld on theory that
narcotics. they were N&P to ensure that tax was actually paid.
After Gonzalez, Congress given blank check to Regulatory measures in statute are justified by purpose to
regulate drugs. Outdated type of argument being raise money.
advanced. Not presently a good argument. Very deferential approach to Congress taxing authority.
Consistent with McCulloch v. Maryland with N&P clause.
CONSTITUTIONAL LAW 30

Congress cannot regulate through coercion an area it could not otherwise regulate.
US v. Butler (1936)(p. 283)Agricultrual It is not contended that this provision grants power to
Adjustment Act taxes producers. Tax goes into an regulate agricultrual production upon the theory that such
earmarked fund that subsidizes farmers willing to legislation would promote the general welfare, but
privately contract with the government to limit government concedes that the phrase to provide for the
their production. This is a tax and spend program. general welfare qualifies the power to lay and collect
(2 years before Jones v. Lauglin Steel and 6 years taxes.
before Wickard v. Filburn) Providing for the general welfare is a restraint on the
Goverened by EC Knight Congress cannot taxing and spending power BUT not spending power has
regulate production. been struck down for failure to pursue the general welfare.
Settled Power to spend must be to advance WHY UNCONSTITUTIONAL: 1) Invades powers
general welfare. traditionally reserved to the states 10th Amendment (not
The general welfare is not restricted to Article I, true today under Darby); 2) Coerces complaince with
Section 8 enumerated power, but cannot invade regulatory conditions.
internal limits of Constitution that prohibits Conditional appropriation of money Congress can
th
Congressional action, i.e. 10 Amendment. place restrictions on money it gives. It just cannot Pre-
Idea that Congress cant coerce compliance existing condititions only. Farmers did not have to spend the
through the spending power to achieve objectives money in a particular way.
that would be denied under its other spending
powers. Coercion=regulation, basis for forcing
compliance. This is a sanction, not a spending
program. Farmers punished for not limiting
production.
The Condition on Spending must bear a substantial relation to the PURPOSE of the program.
Steward Machine Co. v. Davis States challenge stating coercion due to 1) to adopt an unemployment
(1937)(p.288) Social Security Act. insurance program and 2) that meets federal standards.
Tax on employers to pay money for Regulation: okay.
Federal Unemployment Insurance. If Every tax is in some measure regulatory by imposing an economic
the employer made contributions on impediment to something taxed vs. something not taxed. It is a temptation
qualified state unemployment fund, or motive, but determining it would result in an endless legal inquiry
they get a 90% credit for federal The Court refuses to engage in analysis that drove Butler.
unemployment tax. What about the minimum criteria requirement? TEST: The
Distancing from Butler in terms of CONDITION must bear a subtantial relation to the purpose of the
when a spending program coerces, program. Without the conditions, govt cannot be sure that the program
every tax is in some measure will alleviate the federal burden. [If state funding related and
regulatory inappropriate, then it might be unconstitutional].
p. 290 Cordozo Is the adoption of criteria related to the subject matter
and fairly within the scope of national policy and power?
Establishes the 4 Part Analysis of Spending power.
South Dakota v. Dole (1987)(291)Statute to withhold 5% of federal highway Is this coercion? No.
funds for states unless they impose a minimum drinking age of 21. Congress cannot 5% is hardly coercive.
regulate this directly by commerce clause due to the 21st Amendment which gives 4-Part Test.
states regulatory power over alcohol. Congress resorts to spending power
Conditions listed must be unambiguous.
Pennhurst State School & Hospital v. Halderman In federal legislation, there were a number of conditions
(1981)(296)Federal spending in aid of state attached to the federal funding that states were required to
programs to assist mentally disabled persons. meet. States had to submit a program to the federal agency.
Halderman challenged states receipt of federal Statute had findings that established rights of mentally
funds since it did not protect the rights of disabled.
mentally disabled as outlined in statute. Court held that Congress did not intend state to be bound
to protect rights. List of rights would be an ambiguous
CONSTITUTIONAL LAW 31

condition, so did not bind the state.

CONSTITUTIONAL LAW 32

X. 10th AMENDMENT AS A FEDERAL BASED LIMITATION OF CONGRESSIONAL POWER

1. FEDERAL SOVERIEGNTY ISSUESWhether the 10th Amendment or the structure of the

Constitution might impose some restraints on Congress power (Conferred by Article I, Section 8)?

A. Treaty Power: Under the Necessary and Proper clause, Congress has power to implement
the provisions of a treaty though legislation even when there is no independent power to
pass such legislation. Missouri v. Holland.

Is this federal sovereign power sovereign somehow restricted by the 10 th Amendment.

Missouri v. Holland (1920)(330)Missouri challenges
statute that implements Migratory Bird Treaty between US
and Britain (b/c going into Canada at time). Challenge to
statute to regulate taking of migratory birds within the
jurisdiction of the state. Prior statute called Migratory Bird Treaty is not self-executing, therefore Congress
Act was struck down by District Court. Wildlife was
viewed as property of the state. Significant inroad of
sovereignty of state protected by 10th Amendment.
President invokes Treaty power and Congress enacts same
law under same power.
Hammer v. Dagenhart era.
10th Amendment is a truism Darby. Is there an
invisible radiation from the terms of the 10th Amendment?
NO!
Missouri states that it violates the 10th
Amendment.
Treaty power is an independent form of power
that is not constrained by the commerce power.
implements legislation, MBTA (Migratory Bird
Treaty Act).
In order to make treaties, it is absolutely
necessary to be able to enforce them througout your
own coutry. Congressional power under the N&P
Clause is invoked to legislate, and in all other
powers vested by this Constituion in the
Government of the United States.

HYPO: Treaty for human rights.
Aggressive measures preventing
violence against women. Congress
reenacts Violence Against Women Act
that was held unconstitutional under
the Commerce Clause in Morrison.
MO v. Holland suggests that VAWA as part of treaty would not
represent a violation of 10th Amendment.
This would be N&P under such a treaty.
Lopez and Morrison represent rather weak limitations on
Congressional power.
BUT it is limited by requirement that it must be a treaty with another
nation willing to agree. This will be a RARE problem.

2. ANTI COMMANDEERING ACT ANALYSIS Congress cannot commendeeer the

legislative powers of the state. (Can induce with incentives, can preempt, can financially induce as
long as meets the Dole test). Legislature cannot be commandeered to crate legislation that meets
federal standards. New York v. United States. 2 Strands of Cases:

1. Garcia cases: No Commandeering. The Court leaves these cases alone because all
legislatures in some way will affect state legislation and they wish to:
a. Avoid political questions (there is no justiciable standard to determine a core
governmental functions this is unique to each state government)
b. Leave legislation to be rejected/accepted through political safeguards.
c. Garcia overruled National League of Cities, where it was held that the Commerce
clause does not allow Congress to legislate in areas of traditional governmental
functions. National League of Cities. Overruled by Garcia. But see OConner
dissent in Garcia and tries to resurrect this case in New York v. United States.
d. NOW: State soveriegn interests are more properly protected by procedural
safeguards inherrant in the structure of the federal system than by judically created
limitations on federal power. Garcia.
CONSTITUTIONAL LAW 33

TEST: When state acting in a private manner and the statute is generally
applicable to others acting in the same way (i.e. possessors of information), it does
not violate the Anti-Commandeering Principle. New York does not apply since it is
not a core function.
Stated Another Way: [Does the legislation affect everyone (is it generally
applicable), or is the state is acting in a private manner? If yes, the Court will not
find Commandeering.
e. POLICY: Analysis starts to look like National League of Cities (state run
railways), but invokes Garcia as general applicable law.

2. NY v. US cases: Commandeering. The court will hold the legislation violates the Anti-
Commandeering Act in some cases.
a. How can Garcia and New York be reconciled this is not a case in which
Congress has subjected the State to the same legislation applicable to private
parties. Regulation of states as states not as an employer as in Garcia.
b. RULE EXPANDED: Congress cannot use states administrative structure to
implement and enforce federal law. Printz v. United States.
c. TEST:
1) Is the state targeting only the states or things that can be run by states (i.e.
zoning boards, CLEOs) [Disparate effects can be an argument here for
whether or not something can only be run by states]
If No: No Commandeering.
If Yes: move on to next part of test:
2) Does the legislature only affect the judicial processes of the states (judicial
functions)?
If Yes: No Commandeering.
If No: Move On:
3) Does the legislation affect legislative (NY v. US) or administrative
processes (Printz, CLEOs)?
If No: No Commandeering.
If Yes: Move On:
4) Can the state opt out of performing the tasks required by the legislature
without any retaliatory action by the federal government? (i.e. states that
comply dont have to pay federal taxes, careful, is it coercion or just a
carrot on a stick to get the states to do it)
If Yes: No Commandeering.
If No: Commandeering.
CONCLUSION: Legislation Must Survive Each Of These Tests In
Order To Be Found to Violate Anti-Commandeering Act

d. POLICIES:
a. Accountability issues: who enforces, who determines whether a
reasonable effort has been made. New York and Printz.
b. Shifts fiscal burdens. Printz.
c. Power of the federal government would be augmented immeasurably if it
impresses officers of state government into service. Printz.
Consent is not sufficient to defeat the application of the anti-commandeering
principle. It is individual rights that are protected, not states interests.

FLSA applied to state as private employer is Unconstitutional.

National League of Cities v. Usery (1976)(334) Although FLSA substantially affects interstate commerce,
FLSA required that states and governments as it is unconstitutional for infringing on traditional aspect of
CONSTITUTIONAL LAW
private employers were bound to uphold standards.
Could Congress apply FLSA to states as
employers?
Darby sustained the act as applied to private
employers.
Overruled by Garcia. But see OConner dissent
in Garcia and tries to resurrect this case in New
York v. United State.
Core of Sovereignty
Hodel v. Virginia Surface Mining Association
(1981)(334) TC held that statute interfered w/
the traditional governmental function of land use
regulation.
United Transportation Union v. Long Island RR
(1982)(334) Proposition that maintaining the RR
was essential to the infrastructure of economic and
social activities in NY as is setting wages and hours
of state employees.
Testa v. Katt (1947)(334) State commissions
required to enforce federal standards.
Procedural safeguards inherent in federal system protect state sovereignty. No judicial intervention.
Garcia v. San Antonio Metropolitan Transit
Authority (1985)(335) No facts.
Cases above demonstrate that the examination of federal system than by judically created limitations on
core state functions is a political question due to federal power.
lack of justifiably manageable standards available
to the Court.
What would justify judicial intervention? Bad
political process (i.e. appropriation rider). or a
breakdown in political processes in a significant
way, perhaps judicial intervention might be
necessary (small window).
OConners Dissent:
New York v. United States (1992)(337)Low-level
radioactive waste regulation (LLRQPAA).
NIMBY. How do you locate a radioactive waste
disposal site? LuLus (Locally Undesireable Land
Uses). States could not find waste sites due to
public opposition. Congress imposed upon states
an obligation to make and implement policy to
handle its own waste.
How can Garcia and New York be reconciled
this is not a case in which Congress has
subjected the State to the same legislation
applicable to private parties. Regulation of states
34
state sovereignty.
Relationship between employer (the state) and its (govt)
employees are at the core activities of states as semi-
sovereigns Congress cannot reach.
TEST: Commerce clause does not allow Congress to
legislate in areas of traditional governmental functions.
Overruled in Garcia.
Held: Federal statute regulating the operation of strip minds
was constitutional since it did not affect State as States
and therefore did not violate a states constitutional
immunity from regulation.
Held: Railway Labor Acts collective bargaining
provisions to the state-owned Long Island RR were
constitutional
Running RR is not a core governmental function or an
essential element of commercial activity.
Mandatory consideration requirement on grounds that
Congress had the power to preempt state regulation entirely,
or adopt less intrusive scheme of PURPA.
State soveriegn interests are more properly protected by
procedural safeguards inherrant in the structure of the
NOT PROPER FOR JUDICIAL INQUIRY: Rejected as
unsound in principle and unworkable in practice, a rule of
state immunity from federal regulation that turns on a
judicial appraisal of whether a particular government
function is integral or traditional.
Procedural safeguard is in the Senate (states are
represented equally).
Article I, Section 8, Clause 10 No state can enter into
pacts w/out Congressional approval.
Anti-Commendeering Principle: Congress cannot
commendeeer the legislative powers of the state. (Can
induce with incentives, can preempt, can financially induce
as long as meets the Dole test). Legislature cannot be
commandeered to crate legislation that meets federal
standards.
States were given no opt out provision and thus were
required to carry out federal regulation.
POLICY: Accountability issues: state governments would
be politically accountable for federal imposed programs. [If
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as states not as an employer as in Garcia. citizens do not understand, democracy faces much bigger
problems Prof].
New York v. United States Worries him (p.343-344). OConner opens a window to overrule Garcia. In
determining whether the Tenth Amendment limits the ability of Congress to subject state governments to generally
applicable laws, the Court has in some cases stated that it will evaluate the strength of federal interests in light of
the degree to which such laws would prevent the State from functioning as a sovereign; that is, the extent to which
such generally applicable laws would impede a state governments responsibility to represent and be accountable
to the citizens of the State OConner suggests there is some life to National League of Cities.

Printz v. United States Legislation: Brady Act -
CLEO (Chief Law Enforcement Officer) of each
state must make a reasonable effort upon request of
gun dealer to conduct a background check on a
purchaser during 5 day waiting period.
This falls within the NY anti-comendeering principle.
Congress cannot use states administrative structure to
implement and enforce federal law. Mild extension of a
fairly clear rule.
Legislates against only state officials, CLEOS.
POLICY: Same New York accountablility issues: who
enforces, who determines whether a reasonable effort has
been made, shifts fiscal burdens, and power of the federal
government would be augmented immeasurably if it
impresses officers of state government into service.
Consent is not sufficient to defeat the application of the
anti-commendeering principle. It is individual rights that are
protected, not states interests.

Reno v. Condon (351)(2000) Drivers privacy
act - prohibits state officials from selling or
distributing information used to get drivers license
to marketers, but permits disclosure if they concent,
and restricts private entities that receive
information from states.
Does it commendeer? State official must be responsible
to ensure that the information is not disclosed. Alternatively,
if want to market the information, must create provision for
getting consent from drivers.
BUT Court upholds statute:
1) Regulating state as a possessor of information, not as
states. Subject to Garcia since the statute it is generally
applicable to all possessors of information, not just states.
2) State is not acting in a sovereign capacity, but in a
commercial manner. New York does not apply since it is not
a core function. Looks like National League of Cities
analysis(state run railways), but invokes Garcia as generall
applicable law.

Federal Energy Regulatory Commission v. Upheld: No coercion. No imposition on substantive

Mississippi (1982)(334)Relies on Testa v. Katt. sovereignty. Only procedural limitations (thin).
State commissioners have to apply federal Commissions are acting like little courts with regard to
standards. utility disputes.
Requires them to consider, not adopt federal Mandatory consideration was upheld on idea that
standards and publish reasons why the standards Congress could preempt altogether.
were not adopted. Certain provisions of the Public Utilities Regulatory
Policies Act constitutional state commission could be
required to enforce federal standards.
Judicial Processes of State Government Can be Commandeered.
Testa v. Katt (1947)(334) Congress commanded This is not commandeering since:
state courts to consider federal claims. Constricted Article VI, Supremacy Clause, federal law trumps state
to perform a federal function. law.
Judicial function is neutal one of applying law, not
CONSTITUTIONAL LAW 36

making policy choices.

EEOC v. Wyoming Application of the Age Discrimination in Employment Act to state in employees is
(1983)(334) constitutional b/c act did not impair states abilities to structure their integral operations
to a degree making the act unconstitutional.
The costs of eliminating mandatory requirement policies were said to be neither
direct nor obvious.

3. Constitutional Challenge Might Be Mounted On The Grounds That Power Was Undertaken And
Performed By Wrong Branch

A. Montesquieu says that all powers must be separate and compartmentalized. Pristine framework of
task:
1. Legislature Power Article I
2. Executive Power Article II
3. Judicial Branch Article III

B. Not separation of Powers, BUT Checks and Balances. No strict separation. Each power overlaps.
Things are not quite as simple as they seem
1. President has veto power.
2. Legislation has appointments power (Congressional oversight of president).
3. President and Legislature appoint Judiciary.
4. Judicial Branch oversees these processes through process of judicial review.
5. What about administrative agencies? Execute law, adjudicate disputes, impose civil
penalties, create regulations, etc.

C. Serious and difficult questions about scope of Presidential Power:

i.e. Wiretapping program, not authorized by Congress
i.e. Troops to Iraq (no specific Congressional declaration later ratified)
i.e. No war since WWII has been declared

D. When is Presidential Action Sustained?

A. HISTORICALJUSTICE BLACK ANALYSIS: Basic proposition is Enumerated

Powers. Presidential Action must be
1) Specifically authorized by an Act of Congress
2) By the Constitution. Either
a. take care
b. Commander-in-Chief; and
c. Executive Power

B. CURRENT ANALYSIS (adopted in Dames and More v. Regan) JUSTICE JACKSON

ANALYSIS: Spectrum. Framework for assessing constitutionality of executive conduct.

1) When a President acts pursuant to an act of Congress, Presidential power is at its zenith.
Likely to be sustained.
2) When Congress is silent, Congress has neither approved nor disapproved, President is in a
zone of twilight. Depending upon the circumstances and a range of imponderables, act
might be sustainable. Leaves open the possibility of emergency action. Ad hoc review:
fact specific and case specific analysis.
3) Express Congressional Prohibition. Presidential power at its lowest ebb and can only be
sustained if President can find a source of authority in the Constitution that is so robust to
CONSTITUTIONAL LAW 37

overcome Congressional prohibition, showing Congress action is unconstitutional. (i.e.

President shall have no say over who is appointed in his cabinet. President appoints his
cabinet anyway. Intrusion by Congress into his domain.)

Youngstown Sheet & Tube Co. v. Sawyer (1952) Multiple Opinions.

(361) Nationwide steel strike. President Bases for finding this is a legislative act: Article V
concerned that steel strike would shut down requires expenditures come from legislation or Congress
production. Issued executive Order allowing Sec. should raise and support troops.
of Commerce to sieze all steel mills on the theory
that a breakdown of production would seriously
compromise the Korean War effort and the national
defense.
Justice Black Basic proposition is Enumerated Powers. Presidential Action must be
1. Specifically authorized by an Act of Congress
President admitted no statute applied.
2. By the Constitution. Either the take care Commander-in-Chief and Executive Power. clauses.
Critical step taken by Black is to put power into one category, judicial, executive, or legislative.
Presidents power to take care that the law is faithfully executed refutes the idea that he is to be a lawmaker.
Justice Jackson Framework for assessing constitutionality of executive conduct.
When is presidential authority most likely to be upheld? Later becomes a spectrum.
1) When a President acts pursuant to an act of Congress, Presidential power is at its zenith. Likely to be
sustained.
2) When Congress is silent, Congress has neither approved or disapproved, President is in a zone of twilight.
Depending upon the circumstances and a range of imponderables, act might be sustainable. Leaves open the
possibility of emergency action. Ad hoc review: fact specific and case specific analysis.
3) Express Congressional Prohibition. Presidential power at its lowest ebb and can only be sustained if
President can find a source of authority in the Constitution that is so robust to overcome Congressional
prohibition, showing Congress action is unconstitutional. (i.e. President shall have no say over who is
appointed in his cabinet. President appoints his cabinet anyway. Intrusion by Congress into his domain.)
Justice Frankfuter Gray area where Congress has acquiescence in Presidential action that is been unbroken
over time. Judicial gloss.
DISSENT: Vincent, Reed and Minton It was an emergency and he is allowed.

Both cases involve Congressional silence. Not prohibition. Considered, but did not grant.
Dames & Moore v. Regan (1981)(372) President This could be treated as a gloss on the executive
negotiated Iran Hostage Crisis. Part of agreement power (Frankfurter) for long, unbroken practice
that all disputes would be heard by Iran Claims acquiesced in by Congress. No disapproval of Presidents
Tribunal and all property transferred off shore. action. Executive power might be deemed to include
President Carter negotiated and President Regan unbroken line of practice by Presidents acquiesced in by
made the compliant executive order. There is no Congress.
Congressional action that allows President to take Absence of Congressional Action might allow President
actions to implement agreement. A contrary ruling to deal with situation appropriately and invite Presidential
would mean that the federal government lacks the authority to be suitably invoked.
power to negotiate the agreement. Court does not Nature of problem: international. Foreign policy issue.
want to make this decision. Significant authority under Constitution for President to
PROF WILLIAMS: Congressional silence is not engage in foreign relations and treaties principle agent of
always permission. If not explicit action, either US foreign policy. This is also a political question.
conclusion is fiction. It might mean that houses are Adopts Justice Jackons framework for congressional
evenly spit. go-it-alone action.
Practically, this could be treated as a treaty, but this was
never ratified by the Senate. However, practically
speaking, NAFTA was never been ratified by Senate.
CONSTITUTIONAL LAW 38

Reject Black. Accept Justice Jackons opinion as most

persuasive.

Delegation Doctrine: If Congress delegates too broadly to President, it will not be upheld on separation of powers.
United States v. Curtis-Writght (1936) Action Delegation challenge. Challengers say the delegation is
by President to indict and charge people for selling too broad.
arms to Bolivians. Does President have authority? Authority over domestic acts delegate specifically.
One year before Court strikes down the NIRA in Authority over international acts delegate broadly.
Schechter Poultry. The Act was found Can President make it a crime to sell arms to Bolivia
unconstitutional b/c it exceeded power under without legislative powers? This is Category 2, not likely
Commerce Clause and unconstitutional delegation to be sustained. Congress has authority under N&P to
of legislative power to executive. enact legislation on his own.

APPENDIX:
I. MARBURY v. MADISON ANALYSIS

Article III allows Congress to Article III prohibits Congress

Judiciary Act 13 does grant SC
original jurisdiction
Judiciary Act 13 doesnt grant
SC original jurisdiction
enlarge the original jurisdiction of from enlarging the original
the Supreme Court jurisdiction of the Supreme Court
Marbury wins writ issued Depends on who to enforce the
limitations of the Constitution is
the court authorized? If judicial
review permits court to pass upon
the Constitutionality or legality of
an action Marbury loses.
If no judicial review Marbury
wins.
Marbury loses b/c theres no Marbury loses.
jurisdictional basis for the suit.
Unless it doesnt take an act of
Congress to confer jurisdiction
upon the Supreme Court. Then we
ask if Article III can be invoked by
a litigant? In Marburys case, he
wouldnt be allowed.

II. METHODS OF CONSTITUTIONAL INTERPRETATION

Example: McCulloch
I. PRECEDENT
Doesnt really appear in McCulloch, but it is the most
significant approach
Usually the first thing that you look at: Ask yourself
whether it has already been decided, a common law
approach to Constitutional interpretation?
Precedent reigns in the federal court system attempt
to interpret holdings narrowly or broadly, distinguishing
cases, reasoning by analogy, etc.
Stare decisis
II. TEXT Looking at Art I 8, power to regulate interstate
Comparing Articles to Each Other commerce and such. Coupled with Art.I 8s
If Commerce Clause look to the N&P Clause necessary & proper clause, specific enumerated
CONSTITUTIONAL LAW
Look to the admission and omission of words, i.e.
expressly
III. ORIGINAL INTENT
When the text is ambiguous or where it seems to be
unambiguous, you might be able to discern the meaning
by looking at what the framers intended.
Problems: Who are the framers? The ones who wrote
the text? Or was it the people voting in the ratifying
process?
Sometimes this goes under the meaning original
meaning, we might look to ordinary meaning and see
how the words would be used in general discourse at the
time the Constitution was written
Strict Construction approach if the framers didnt
intend to prohibit something, it should not be prohibited
- Problems: Todays world has things that the framers
could not have anticipated, i.e. airlines, internet, genetics,
etc.
- Sometimes people pull out quotes from Jefferson or
Madison and so forth to try to prove their case and what
they think the framers meant
IV. STRUCTURE AND RELATIONS
Reason from what kind of relations are established in
the Constitution and the structure of the Constitution
what is meant, i.e. what is the structure of the
Constitution supposed to do? Create an effective
government therefore it should be interpreted as a tax
code, somethings different b/c its a Constitution,
Semi-wrapped up in the idea of living constitution,
V. REPRESENTATION REINFORCEMENT
39
powers,
More subtle uses of text here, the 10th Am. and the
omission of the word expressly, suggest that a more
generous rule be applied.
p63 of McCulloch - This was used a lot, (pink
quote bottom p63)
Many variations to this approach:
In McCulloch the idea that Congress is intended
to be effective, so you shouldnt interpret it that
strictly
- the debate between MA and the opposing party about
the Constitution, does the power emanate from the
people or from the state, Marshall - The government
of the Union is emphatically and truly a government
of the people But what dies this mean?
- How trusting ought the court to be about various
Constitutional actors? The court concluded that the
stated are where Congressional power has its roots
it would tend to say that the states ought to be the
primary place to which people turn in order to get
things done while the federal government should be
turned to only occasionally i.e. maybe the states are
the bad guy and the federal government the savior
The idea of deference, there is another place where
these ideas can be debated, i.e. in the legislative
branch, the court is probably not the best place for the
debate this goes directly towards the relations
between the branches and the structure of the
government
BIG ISSUE: Is it determinative not on the second
question? Supported by the Supremacy Clause,
federal government trumps state law.
In McCulloch We can reinforce democratic
CONSTITUTIONAL LAW 40

The Constitution ought to be interpreted in a way that
reinforces the Constitutions commitment to democratic
principals which means? - enhances a government by
the people for the people
principals by the courts unwillingness to decide
whether a tax is too high, this is the peoples job by
accepting a tax or not
BUT: Only citizens of MA would be able to vote on
this tax, and it is a National Bank, it is not an adequate
safeguard for the interests that are being taxed. i.e. no
taxation without representation

VI. LIVING CONSTITUTION
The Constitution should be interpreted in a way that
helps Congress address the problems of the day merely
b/c the framers of the Constitution couldnt have dreamed
of the problems that Congress must deal with in present
day
McCulloch: In this case, p65, last full paragraph,
recipe for living Constitution theory: This provision
is made in a constitution intended to endure for ages to
come, and, consequently, to be adapted to the various
crises of human affairs. To have prescribed the means
by which government should, in all future time,
execute its powers, would have been to change,
entirely, the character of the instrument, and give it the
properties of a legal code. Does not tell us what it
good, though.

VII. LONGSTANDING PRACTICE
If the President and all the Constitutional actors have
been engaged in some practice for a long time, then this
may suggest that it is Constitutional (Me: such as
Miranda rights, supplemental jurisdiction)
In McCulloch, p61 It has been truly said, that this
can scarcely be considered as an open question,
entirely unprejudiced by the former proceedings of the
nation respecting it The idea of the bank had been
discussed by the very framers of the Constitution, p62,
top of page, i.e. the best and brightest had thought
about this for a long time, the court ought to give a
large measure of deference to this practice that had
been sustained

III. STATUTORY ANALYSIS OF NEW YORK:

Structured Approaches:
1) MONETARY surcharge (stick) and spending program (carrot)
Congress' ability to do this under CC - allows states to impose a tax on out-of-state waste
Portion of surcharge collected by states to be turned over to earmarked fund administered by federal government
money then give to states who meet certain milestones toward dealing w/ problem of LL radioactive waste
Surcharged as federal "tax" since a portion going to federal government conditional spending program a
condition of the "spending power"
Ct adopts framework established by South Dakota v. Dole
Conditions of spending must be related to some national product or purpose "conditions imposed are
reasonably related to the purpose of the expenditure" (doctrinal clarification)
Congress "choosing" to allow states to regulate interstate commerce but states can decline to regulate, it's their
choice. Congress is not saying "You have to impose a surcharge, if not XYZ will happen to you" no coercion

2) ACCESS
States can gradually increase their access costs and eventually forbid the importation of out-of-state waste for
disposal purposes ( Philadelphia v. New Jersey)
Absent congressional authority this would be violation of dormant commerce clause
Lopez category #2- regulating the instrumentalities of interstate commerce persons or things
States are allowed to do this, but are not compelled to do this
NO coercion, again states have the CHOICE Congress chose to let them deal w/it if they wanted to

3) THE "TAKE TITLE" PROVISION Presents a choice to these states:

CONSTITUTIONAL LAW 41

1) Provide for disposal of its own waste: through citing its own disposal facilities that meet federal standards
or regional agreements w/ other states (amended legislation Congress gave the okay to do that)
2) "Take title" take ownership of waste generated w/in their state by private parties own waste and they
have to figure out what to do w/ it (designed to put pressure on states to get rid of it)
What if the state doesn't want to do either of these? Too bad there's no "opt out" option which is a
problem, according to the ct
What justifies provisions? Commerce power activity might have substantial effect upon interstate commerce
CONGRESS CANNOT DO THIS Why?
1) States might have a choice in how to implement federal program, but it still HAS TO implement: It's
coercion!
2) Because this could fall under commerce power, isn't it properly coerced?
(Recall Butler, where problem when Congress trying to regulate something commerce power couldn't
reach but there commerce power can reach this)
This is not directed at the actual participants of interstate commerce (private entities) but at the states
themselves designed to force the State to regulate "commandeering" the
The anti-commandeering principle Congress can't commandeer the legislative processes of the state into
creating federal regulatory programs
Why is it impermissible for Congress to regulate the States as States?
Why would the take title provision commandeer legislative processes of state? State would have to adopt statutes
authorizing minimum federal standards, criterion for establishing sites, etc some legislation for deciding this
disposal sites.
States might have to appropriate money to cover their liability in these issues makes a claim upon the fiscal
resources of the states which is generally under the control of the state legislature constrains state legislature's
choice of which programs should be funded