General analytical framework

o What branch is exerting authority?

o Why is the authority problematic?
o How is the authority defended?
Jackson concurrence from Youngstown re: Ps authority in EOs
o 1) express/implied support from C to P = P given most authority possible
strongest power of fed gov
only federalism/indiv right objection could invalidate action
o 2) no involvement from C = P only has own independent powers
includes indifference/silence from C, like here
o 3) P acting against will of C = P only has express constitutional powers MINUS any of Cs
power over matter
weakest case for P
o must consider contemporary imponderables facts of case, history, prior rulings on related
cases
Chadha test re: legislative action
o Action is legislative in nature if:
1) It alters legal rights/imposes obligations
2) It originates in Congress
3) Action could only be done by legislation through both Houses and P

Analysis for firing an agency head

o Who controls the IA? What kind of power is being exercised?
Executive? Quasi-legislative? Quasi-judicial?
o 1) officers under full control of exec (i.e. Cabinet) P can fire at will
o 2) officers of indep agencies outside control of exec P can only fire for cause
o Is C involved in a firing?
C cannot fire an officer under exec control
3 situations in which C can exercise commerce power
o 1) channels of IC (shipment of goods)
o 2) instrumentalities of IC (railroads, highways)
o 3) intrastate activities that substantially affect IC

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Ways to use federal spending to influence state policy:
o 1) $ given directly for a specific purpose
o 2) $ given for a purpose with conditional policies embedded
o 3) $ given on condition of related legislative change
o 4) $ given to compel some unrelated state action
INVALID b/c gov couldnt compel action otherwise

4 general restrictions on spending power (S.D. v. Dole)

o 1) must be in pursuit of general welfare
will typically defer to C on this point
o 2) C must unambiguously condition funding
o 3) must be related to national projects/federal interest
o 4) other constitutional provisions may bar conditional grant of funds
o EXTRA: CANNOT BE COERCIVE states must be able to reject it w/o serious effect

How to analyze fed govs conditions on funding (NFIB v. Sibelius Medicaid)

o How coercive is it?
o How significantly is states functioning affected?
o threat of loss v. hope of gain
C can prevent 14th Am. violations by regulating state conduct that:
o Might lead to/risk violations (SC v. Katzenbach)
o May correlate with/be evidence of violations that that are hard to prove (City of Rome)
o C believes may actually be a violation even if not proven (Morgan)
Does the federal statute logically relate to the violation?
o 1) what does Cs statute require?
o 2) what is the constitutional violation that the statute seeks to prevent/enforce?
o 3) How does the statute address the alleged violation? (factual correlation, evidence, history)
o Statutes requirements must be congruent and proportional to the constitutional violation
they seek to protect against (Boerne)
Must prevent violation AND must not be harsher/broader than degree of violation

rational basis test for Court to assess Cs action (Shelby County)

o 1) Is it rationally related to legitimate government purpose?
o 2) Is there a fundamental liberty interest or suspect classification at stake?
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 Requirements for standing (Lujan)
o 1) actual, imminent, concrete injury in fact
type of injury matters must be particularized, must injure plaintiff beyond general
public effect
o 2) causal connection btw conduct and injury must be fairly traceable
o 3) likelihood of redress from requested relief
if no causal connection, redressability is unlikely

Political v. Legal Qs
o Is there a limit on the actor who is being challenged and by what authority are they permitted to
make decision?
If limits exist = legal Q to determine if limits have been surpassed

Baker standards what is a political question?

o 1) Textual constitutional commitment of issue to other branch
Concrete, constitutionally required that Court abstain
o 2) No judicially discoverable and manageable standards for Court
no standards refers more to helpfulness than existence
o 3) Impossible to decide without policy determination made by other branch of gov
mushier concept
o 4) taking case would show lack of respect for other branch
o 5) unusual need to adhere to prior political decision (i.e. war)
o 6) potential embarrassment to gov as a whole if different answers given to one question (i.e.
foreign affairs)
Types of preemption
o 1) express = federal statute explicitly states that C exerts preemption power
o 2) field Cs statutes so comprehensive that they create ceiling which states cannot build upon
most common type of preemption
no additional regulation is required or valid
uniformity matters
o conflict when state statute conflicts with federal statutes in such a way that one cant comply
with both
not necessarily direct
federal law almost always takes precedence
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 Is a state inappropriately interfering with interstate commerce?
o 1) law creates facial distinction btw goods based on origin (City of Philadelphia)
o 2) law is even-handed BUT burdens out-of-state interests disproportionately
Scalias continuum of validity re: tax subsidy system (West Lynn Creamery)
o 1) discriminatory tax = invalid
o 2) non-discriminatory tax w/exemptions for insiders = invalid
o 3) non-discriminatory tax put into segregated fun for rebates to insiders invalid
o 4) subsidy for insiders paid from general state funds = valid

Test re: facially neutral laws that burden IC (S.C. v. Barnwell)

o Balancing benefit to state from prohibition (i.e. safety) vs. burden on IC
Protectionism or valid reason for this action?
o Did state legislature act within its province and is regulation reasonable to achieve the means
sought?
o Is safety concern REAL? court will probably defer

How to analyze dormant commerce clause cases

o If facially discriminatory (protectionist intent rebuttably presumed), statute is unconstitutional
UNLESS:
State is market participant (b/c state can choose its market partners)

Hughes; Reeves; Wunnicke

State shows 1) state interest justifies distinction based on origin AND 2) no feasible
alternative exists
Philadelphia v. NJ; Maine v. Taylor
Very rare for this to be effective
o If facially neutral but imposes incidental burdens on IC (no protectionist intent presumed),
statute is constitutional UNLESS:
Challenger shows statutes benefits are not real AND do not outweigh burdens on
commerce
If so casts doubt on non-discriminatory nature of statute

Southern Pacific; Hunt; Kassel

10th Amendment Powers not delegated to Congress or prohibited to the states are left to the states

13th Amendment Slavery/involuntary servitude shall not exist in the U.S. (+enforcement) badges and
incidents of slavery included
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 14th Amendment No state shall deprive anyone of life/liberty/property w/o due process (+enforcement)

15th Amendment Right to vote may not be denied by U.S. or states based on race (+enforcement)