Con Law I Outline 1

JUDICIAL POWER
Judicial Review Judicial branch has authority to review acts of president and
Marbury v. Madison, congress to determine if they are Constitutional or not.
1803 Distinguishes between political acts (outside scope of Courts
review) and legal acts (within scope of review). Can invalidate
On-going theme throughout acts (such as parts of the Judiciary Act of 1789) that it determines
SC cases: we can determine are inconsistent with the Constitution. Any level of court can do
what is Constitutional and thiswith appeal rights higher up the chain.
what isnt but some Justices Later: What we say is the supreme law of the land. More
are reluctant to do so (do it rhetorical than literal. (Cooper v. Aaron, in context of 1960s
only when it is an incident of civil rights)
deciding a specific case) and
others are more active about
doing it (active role of the
Court to uphold the
Constitution)
Marbury v. Madison, p 52
1804, Marbury promised a commission as DC magistrate and wasn't given it by outgoing
administrator (Marshall just before appointed as Chief Magistrate) and incoming new
administrator (Madison) wouldnt give it him.

Who won? Ostensibly Madison won (didnt have to give the commission to Marbury) but it was
really Marshall who won the casefound a way to let his political rival have what he said he was
entitled to (deciding not to give the commission to an appointee made by a rival political party)
while at the same time establishing the great power of the Court to review executive and
legislative actions for constitutional compliance. Boxed Madison in very thoroughly and
gracefully.

Difference between political acts (not reviewable by Court) and legislative acts (reviewable)
Political: By the Constitution of the US, the President is invested with certain important
political powers, in the exercise of which he is to use his own discretion, and is accountable
only to his country in his political character, and to his own conscience. (54)
Legislative: But where a specific duty is assigned by law, and individual rights depend upon
the performance of that duty, it seems equally clear that the individual who considers himself
injured, has a right to resort to the laws of his country for a remedy. (54)

Court holdings:
Does Marbury have a right to the commission? Yes (it was lawfully signed and sealed)
If he has a right, does he have a remedy? Yes (were a nation of lawswhere there is a right
there must be a remedy, otherwise our claim to be a nation of laws would make no sense)
If he has a remedy, is the remedy mandamus from the Supreme Court? No (the section 13 of
the act of Congress that apparently authorizes the Supreme Court to exercise original
jurisdiction in this matter is improperthe SC does not have original jurisdiction in this matter
since the Constitution limits their original jurisdiction to cases involving foreign reps and
Statestherefore the part 13 of the 1789 Judiciary Act that allows SC original jurisdiction in
this matter is unconstitutional, the rest of it is not being reviewed here)
Con Law I Outline 2

Court gets to make this decision because it is courts that apply statutes to facts (p 59)
(checks and balances political science argument is not made by the Court in 1804; it is
developed later)
Self-Imposed Checks
Standing Three elements to standing:
Lujan v. Defenders of 1. Injury (fact that law has been broken is not enoughthere
Wildlife, 1992 must be a specific, particular, concrete injury (or immediate
threat of one)
Court limiting own scope to 2. Causation
review things that come 3. Redressability (either $ after the fact; or, injunction before the
before it. fact to prevent injurious action)
Dont need to have definite cause or redress, just the possibility
The reluctant justices see a of cause or redress.
higher barrier for injury
(therefore standing), and the There is no such thing as a procedural injury, only a procedural
activist justices see a lower violation (as when EPA doesnt allow comment). An injury for
barrier. purposes of standing is something like I wont get to walk in the
woods if they are leveled. Cant claim a procedural violation is
an injury for purposes of standing.

Associational (or Organizational) standing (95)

if group meets three tests, it can sue:
1. It has at least one member with personal standing
2. Purpose of the organization relates to the subject matter of the
lawsuit
3. That the group member who has personal standing does not
need to be a named partyi.e., that the action brought by the
Association is either for an injunction or declaratory judgment.
(If was seeking $, individual member would need to be a
named party.)

If there are multiple Plaintiffs and they are all seeking the same
injunction, if one of them has standing, we dont care about the
rest of them

Redressability doesnt require avoiding injury altogether, doing

some good to lessen injury is enough
Lujan v. Defenders of Wildlife, p 79

This is not a constitutional caseits a statutory case about the Endangered Species Actbut
there is a constitutional issuestanding. There is no injury in this case, per the Court. Plurality
also says redressability element not met.

Injury needs to be specific and particular (although it can be aesthetic or recreational loss, not
something as narrow as taxation or being hit). If youre really injured, go to court. If the injury
youre complaining about is general (you are part of a large grouplike the inhabitants of earth),
go to the legislaturethats why we have democracy.
Con Law I Outline 3

Redress needs to be likely (not certain) and plurality says that blocking the 10% cut in project
funding from USAID to save species isnt enough to yield a likely redress.

Causation and redressability are usually opposite sides of the same coin, which is why Court
didnt deal with causation element here.

Compare with Massachusetts v. EPA, 2007. Even a possibility of a minor degree of redress
(lessening of injury) is enough to merit Massachusetts claim against EPA. (EPA can only reduce
greenhouse gases in US, which EPA argues is not enough to do MA any good anyway, so they
argued against redressability.) Even dissent agrees that if your land is being flooded, you are
injured. But they reject that there is causation.
Justiciability: Political 6 Factors to assess justiciability (Baker v. Carr, Tenn state rep
Questions districts, 1962):
Court limiting own scope to 1. Matter is textually committed to another branch of
review things that come government
before it. 2. Lack of judicially discoverable and manageable standards (ex:
Constitution is silent on an issue)
Reluctant court has a wider 3. Requires a policy decision that is not appropriate for the
conception of what is a judiciary (overlaps with 1 & 2)
4. Cant resolve without expressing lack of respect owed to
political q (allows fewer
another branch of government (not clear what this means
cases before the court)
exactly)
Activist court has a narrower
5. Unusual need to adhere to a political decision already made
conception (allows more
(ex: was it Constitution to drop the atom bomb? Or launch a
cases to come before the
particular war?)
court) 6. Potential for embarrassment (Court telling President hes
wrong on foreign affairs)
Other Justiciability Advisory Opinions: Court will not issue one, as it is a violation
Doctrines: Advisory of separation of powers (President gets opinions of leaders of
Opinions, Mootness, departments, not the Justices). Only a ruling on a case or
Ripeness, Prudential controversy. Decision from 1793 (Request by Pres. George
Grounds Washington, through Secy of State Thomas Jefferson, was
turned down by SCOTUS .)
Mootness: where the case or controversy no longer exists by
the time it reaches Court, it will not be heard. Two exceptions:
o Voluntary cessation of conduct against which an
injunction is sought may not necessarily moot a case
(potential for acting party to take case out of SCOTUS
chain by cessation, then restarting again once that case
declared moot)
o Cases about issues capable of repetition, yet evading
review (example: abortion)
Ripeness: case is not yet ripe for a decision (ex: dispute
between Legislative and Executive branches, not yet worked
on to the point of an impasse)
Prudential Grounds: Developed by the good judgment of the
Court, not by Constitutional requirements. Ex: may not bring a
Con Law I Outline
11th Amendment
Amendment limited Courts to any suit in law or equity, commenced or prosecuted against
scope; then in interpreting
the Amendment, Court
further limited own scope.
Congressional Checks
Congress can pass laws
to limit the Courts
authority, provided they
are consistent with
Article III, 2
LEGISLATIVE
POWER
Necessary and Proper
Clause
McCulloch v. or Tax and Spend clauses).
4
claim based on the rights of another person (even if you have
standing yourself)
Text: The judicial power of the US shall not be construed to extend
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State. (1798)
As interpreted by Court: this amendment also prohibits suits
against a State by its own citizens (Hans v. Louisiana, 1890)
States may consent to be sued on their own
States may consent to be sued as a condition of receiving a
Federal grant (must be very very explicit so States know what
they are consenting to)
States may have their consent waived for them by the Federal
government under the 14th Amendment, 5
States can sue each other without consent and Federal
government can sue States without consent
Under what circumstances can citizens get damages from the
State?
State allows itself to be sued
Congress waives the States right to declare immunity from
suit, under 14th Amendment, 5
Ex Parte Young claims: people can sue officers of the state
to enjoin them from violating the Constitution or the laws of
the US. Based on the legal fiction that if the officer is
violating the Constitution or laws, cannot be acting
officially (therefore open to suit, since not acting as the
State.) Similar claims against Federal officers are allowed
under the federal Administrative Procedure Act.
Congress can control/limit/exclude appellate review (Art. III
2.2; reinforced in Ex Parte McCartle, 1869) (post-Civil War
publisher case)
Congress cannot tell the Court how they must apply a rule [in
effect tell Court how to decide a case]; US v. Klein, 1871 (post-
Civil War case on restoration of property seized from former
Confederates)
But Congress can set up a statutory definition for the Court to
apply (US v. Klein)
Necessary and Proper Clause is the tool that Congress can use to
accomplish ends (such as under the General Welfare, Commerce,
Con Law I Outline 5

Maryland, 1819
McCulloch v. Maryland, p 145
Maryland opposed the creation of a Bank of the United States, which would have national, rather
than State charter. Created a tax on all non-Maryland charted banks in Maryland. McCulloch
was the branch manager for the Maryland branch of the Bank of the US; refused to pay. (80%
private investment/20% Federal Government)

Is the word necessary to be strictly construed by the court (as in essential)? No, that was
not the intent of the convention/framers.
1. The clause is place among the powers of congress, not among the limitations on those
powers
2. Its terms purport to enlarge, not to diminish the powers vest in the government. It
purports to be an additional power, not a restriction on those already granted. (152)
It is not the Courts role to determine if the method Congress selects is the best method, only
that its within the test.
Holding creates a new, broad test: Let the end be legitimate, let it be within the scope of the
constitution, and all means where are appropriate, which are adapted to that end, which are
not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
(153)

Commerce Clause Article I, 8.2: [Congress shall have power] to regulate Commerce
History with foreign Nations, and among the several States, and with the
Indian Tribes.
Gibbons v Ogden,
1824 In the early days of the Commerce Clause it was understood to
apply narrowly to commerce (the act of buying and selling)
which including shipping, navigating or transporting. But NOT
manufacturing.

Daniel Ball 1870 case introduced the navigable waters of the US

test (rises to among the states if navigating within a single
state on the navigable waters of the USthereby connected to
other states). Broader interpretation
Gibbons v Ogden, p 156

1824, SCOTUS looking at NYs attempt to regulate who can pilot in its waters, based on a license
it issued. Federal license granted to a non-NYer and Court held that Commerce Clause and
Necessary and Proper Clause meant that Feds could issue licenses and States could not refuse to
allow navigation. (The issuance of the license was a form of regulation.)
Commerce Clause - In the modern (progressive era) days of the Commerce Clause,
Modern it was interpreted more broadly, including manufacture. Sense
that CC could serve larger societal needsit wasnt the role of the
Wickard v. Filburn, Court to investigate the motivations of Congress in its legislation.
1942
A number of racial integration cases in this era brought under the
commerce clause based on less immediately direct connection to
interstate commerce than previous era of cases had looked to.
Con Law I Outline 6

1964, Heart of Atlanta motel which was on the interstate with

75% of customers being interstate; refused to rent rooms to
African Americans. Congress found this obstructed interstate
commerce and passed law banning such discrimination,
upheld by Court when challenged. That motive was moral
rather than economic was irrelevant per the court.
1964, Ollies BBQ would only sell to African Americans via the
back window. Congress found this lowered the amount of
money spent in restaurants, and since Ollies bought meat in
interstate commerce, it was penalized under law protecting
interstate commerce. Court upheld law on challenge.
1981, Two cases challenging Federal law requiring land
reclamation after string mining. Court upheld, citing among
other things that CC allowed regulation of activities causing
air or water pollution, or other environmental hazards that
may have effect in more than one State. (195)
Wickard v. Filburn, p 189

1942 Attempt to regulate maximum farm productivity to prevent price crash in commodities.
Issue: Can Agricultural Adjustment Act control the home consumption of home-produced wheat
under the Commerce Clause? YES (Broadest zenith of the Commerce Clause)

Unanimous ruling
Broaden concept of commerce/reject formalist definitions: Once the economic measure of
the reach of the power granted to Congress in the Commerce Clause is accepted, questions
of federal power cannot be decided simply by finding the activity in question to be
production not can consideration of its economic effects be foreclosed by calling them
indirect (191-2)
Home-consumed market is 20% of the total market, allows for a substantial influence on
price and market conditions (193) [Raich, 2005 was also an aggregate effects testhome
marijuana markets within context of national market]
Substantial effects test: but even if appellees activity be local and though it may not be
regarded as commerce, it may still, whatever the its nature, be reached by Congress if it
exerts a substantial economic effect on interstate commerce and this irrespective of whether
such effect is what might at some earlier time have been defined as direct or indirect.
(192)
Aggregation doctrine: each small transaction is negligible, but cumulatively they are large
enough (20% of national market) to warrant regulation (192) [cf. 17.6% of health care market
is uninsured folks]

Compare with Affordable Care Act: the Individual Mandate doesnt fly (for Roberts and the 4
dissenters) under the Commerce Clause, because the CC cannot be used to regulate a refusal to
buy. (Though in Wickard it can be used to regulate a refusal to sell.)

Commerce Clause - Post- Narrower reading of CC, more reluctant that in progressive era.
Modern
Three categories of activity that Congress may do under the
Con Law I Outline 7

US v. Lopez, 1995 Commerce Clause (out of US v Lopez, p 197):

1. Regulate the use of the channels of interstate commerce
2. Regulate and protect instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though threat may come only from intrastate activities
3. Regulate those activities having a substantial relation to
interstate commerce, i.e., that activities that substantially
affect interstate commerce
US v. Lopez, p 196

Federal law prohibiting gun within 1000 feet of a school. (State law also existed, but Lopez
charged under the Federal law.

Court is in agreement that if there are fewer guns near school>>less violent crime>>lower
insurance rates for schools>>better educational environment with less violent crime>>impacts
national economy.

Majority view is that Commerce Clause is not close enough to these issues to make it appropriate
to regulate intrastate on this issue. Majority wants some outer limitsotherwise we accept that
Commerce Clause touches all activity in some very very attenuated way. Majority says even
Wickard didnt go this far. (Dissent doesnt have a good response to this.)

Areas of law that majority does not want to see federally regulated, even though have an
attenuated impact on the economy: education policy, family law (divorce), basically anywhere in
the view/concern of majority. Would usurp sovereignty of States in areas where they have
historically been sovereign.

Afterwards, Congress amended act to restrict possession of a gun that had travelled in
interstate commerce. Consistently upheld in the lower courts.
Taxing and Spending 4 factors (then a 5th) for conditional grants under the Tax and
Clause Spend Clause (South Dakota v. Dole, 1987)

Congress can use 1. Must be in pursuit of the general welfare

withholding of funds as a
blandishment to get states
to do things that Congress
cant regulate directly,
within guidelines
2. Conditions must be unambiguous, so States can decide to
participate or not
3. Conditions must be related to the federal interest in particular
national programs or projects
4. Conditions may not violate other constitutional provisions
(does not prohibit congress driving objectives that are not part
of the enumerated powers; rather, means congress cant
intent activities that would themselves be unconstitutional)
5. Cant be too coerciveline not drawn by the court, but it
says that this level of budget impact is clearly on the ok side
of the line (less than 5% of budget for South Dakota). Later, in
Affordable Care Act case, the budget impact is clearly on the
not ok side of the line (Roberts plus dissenters). Not clear
why: because its 100% of Medicaid funding, because the total
$ figure is too big, because Congress intended that all States
Con Law I Outline 8

would have to follow it?

Treaties
Federal Government can
bind the States by making a
treaty which impacts their
rights, even on a topic not
included in the enumerated
powers.
There are two types of
treaties: self-executing and
non-self-executing. See
International Treaties, below.
Article II, 2.2: President shall have Power, by and with Advice
and Consent of the Senate, to make treaties
Article VI, 2: The Constitution and all Treaties made under
the Authority of the US, shall be the supreme Law of the Land
any Thing in the Laws of any State to the Contrary
notwithstanding.
Migratory Bird Treaty Act, 1920 (Treaty with Congress; plus
executing legislation from Congress)
Acts of Congress are the supreme law of the land when made in
pursuance of the Constitution, while treaties are declared to be so
when made under the authority of the United States. (228)

10th Amendment Limits
Garcia v. SAMTA, 1985
NY v. US, 1992
As most of the laws of the US are carried out within the States
and as many of
them deal with matters which in the silence of such laws the
State might regulate, such general grounds are not enough to
support Missouris claim. (228)
10th Amendment: The powers not delegated to the US by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.

On the face of it, and for many years, everyone said this
amendment was just Constitutional dictathat it didnt say
anything that wasnt already said in the Constitution. Then,
States began using it (and Court began reading it) to limit Federal
authority to tell States what to do.

Basis of the anti-commandeering doctrine: Feds may not tell

States to act as a Federal regulatory body. On some matters, may
regulate directly or may pass a law that pre-empts a State law.
But cant have a law saying that States must enforce Federal
laws. Each sovereign has to take responsibility for the laws they
pass and not try to hide their laws behind actors of the other
sovereign.
Garcia v. San Antonio Mass Transit Authority, p 230 [10th Amendment limits do not
apply because FLSA is a generally applicable law, not regulating States as
States-- that is, it regulates States only in as much as it regulates all employers]
1985, Does FLSA apply to State employers? Rule from previous case (National League of Cities,
1976) was that it didnt for areas of traditional government function.

Does FLSA apply to State ERs? [yes]

Revisiting an issue from 1976 ruling
1968 Wirtz (yes, FLSA applies to States)
Con Law I Outline 9

1976 Ntl Lg Cities (no, it doesnt, at least for traditional govmnt functions)
1985 this case (yes, it does after all)

Everyone agrees Commerce Clause allows Feds to regulate private sector employers. Question
is: can it regulate the States in their role as employers? Yes, because it is not regulating them
as States but rather as employers.

Blackmun wrote opinion:

Points out that the rule from the previous case (traditional functions of gvt v. other roles) is
totally totally totally unworkable (which it is). Throws out the 4 part test from National
League of Cities.
Then goes on to state that it is also improper: because it inevitably invites an unelected
federal judiciary to make decisions about which state policies it favors and which ones it
dislikes (232)
No new test created.
Holding: the fundamental limitation that constitutional scheme imposes on the Commerce
Clause to protect the States as States in one of process rather than one of result. Any
substantive restraint on the exercise of Commerce Clause powers must find its justification in
the procedural nature of this basic limitation, and it must be tailored to compensate for
possible failings in the national political process rather than to dictate a sacred province of
state autonomy 234
Adequate protection of states through the political process [State delegations to Congress]:
The political process ensures that laws that unduly burden the States will not be
promulgated. In the factual setting of these cases the internal safeguards of the political
process have performed as intended (234; also 238, n.4).

Dissenters were sure it would eventually be overruled.

OConnor dissent: The problems of federalism in an integrated national economy are capable
of more responsible solution than holding that the States as States retain no status apart
from that which Congress choses to let them retain (238)
NY v. US, p 239 [10th Amendment limits apply because there is commandeering of
the States as Statesie, in their role of doing State stuf]
1992, National Governors Assoc worked with Congress to develop a protocol for States handling
of low grade radioactive waste. NY didnt like it and sued, alleging violation of 10 th Amendment.

Issues:
Can Congress enforce a regulation telling States how to handle low grade radioactive waste
which gives them three approaches to take for compliance? [no]
Can direct a State to regulate a particular field or a particular way? [no] (241) The Federal
Government may not compel the States to enact or administer a federal regulatory program.
(245)

OConnor wrote the majority opinion:

Nature of the 10th A: The 10th A [like the 1st A limiting Congress powers under the
Commerce Clause] restrains the power of Congress, but this limit is not derived from the text
of the 10th A itself, which, as we have discussed, is essentially a tautology. Instead the 10 th A
Con Law I Outline 10

confirms that the power of the Federal Government is subject to limits that may, in a given
instance, reserve power to the States. The 10 th A thus directs us to determine, as in this
case, whether an incident of state sovereignty is protected by a limitation on an Article I
power. (241)
o For this case, the 10th A is interpreting the Necessary and Proper Clause
th
10 A may not be waived by the States: The Constitution instead leaves to the several
States a residuary and inviolable sovereignty (245)
Although 2 of the incentives were allowable (monetary incentives; access incentives), the 3 rd
was not (take title provision requiring States to take title of waste).
Congress is allowed to offer States a choice:
o Conditional grants (under South Dakota v. Dole)
o Regulate activity according to Fed Standards or Have state law pre-empted by Fed
Regulation
In result, I think the activity would look the same, but according to Court the issue is that the
accountability would be clearer: Feds would be identifiable as the decision-makers about the
policy, and State lawmakers would be able to retain their independence from Fed decisions in
the eyes of the voters. (243)
Upshot: The Federal Government may not compel the States to enact or administer a federal
regulatory program (245)

Dissenters:
States may waive their 10th Amendment rights, just like natural people can waive jury trial.
(National Governors Association is not quite the formal body for that, I think, but that issue is
not explored)
Highlights that the coercion v encouragement difference is not clearly identified by the
majority, nor is it discussed in the context of the law itself (246)
Theres a policy problem when Congress attempts to engage constructively with the States in
empowering them, and thats used against them at litigation. If theyd taken a less-engaged
track and just issued an instruction (2 choices that majority would allow) it would have been
upheld by the Court but castigated by the States.

NOTE: Funk thinks this case should have been assessed under the Necessary and Proper Clause,
but Court looked at it under the Commerce Clause.
Civil War Amendments Amendment XIII: Ban on slavery or involuntary servitude (applies
to private actors)
The Civil Rights Cases, Amendment XIV: All persons born or naturalized in US are
1883 citizens; States owe due process to deprive any person of life,
liberty or property (applies to States) DUE PROCESS and EQUAL
On-going resentment of PROTECTION.
former Confederate states BOTH: Congress has authority to enforce by appropriate
about reconstruction. By legislation
time these cases were
before SCOTUS, sense was Current Law:
to give the South a break, CRC on 13th A is overruled (though it is cited positively) in Jones v.
already. Meyer , 1968 (refusal of white person to sell house to black
person; holding was that racial discrimination was, in fact, a
badge or incident of slavery prohibited by 13 th A).
Con Law I Outline 11

CRC on 14th A is upheld in US v Morrison, 2000 (Violence Against

Women Act creating private right of action for rape victim to file
FEDERAL civil suit against rapist because state courts were clearly
showing gender bias in these casesthis isnt corrective per
the Court). SUMMARY: Court allows corrective legislation (Feds
telling States they may not pass laws that discriminate) but not
directive legislation (Feds taking direct role to police)

Congress cant redefine the scope of parties rights under the

Constitution; only enforce the provisions of the 14 th Amendment
through legislation. Legislation must be congruent and
proportionate to remedial or preventative goal Congress trying
to achieve. Religious Freedom Restoration Act case/City of
Boerne v. Flores, 1997.

14th Amendment (Equal Protection Clause) has three levels of

scrutiny.
Strict Scrutiny (fundamental right in place, or discrimination by
race) (The greater the extent of violations, the greater the
appropriate remedial or preventative power, p 282)
o ADA Title II was authorized under 14th A 5 where it
prohibited discrimination against the disabled in access
to essential government functions (291). Case was
Tennessee v Lane, 2004; paraplegic criminal defendant
had to drag himself upstairs in court house to go to trial.
Since was authorized under 145 (due process
violation), could seek $ damages.
o Voting Rights Act
Mid-Level Scrutiny (sex) (Practice must serve important
government objectives and be substantially related to the
achievement of those objectives, p 286)
o Nevada HR v. Hibbs, 2003. FMLA was passed to
alleviate gender-based workplace discrimination around
family care obligations. Court found its remedies were
congruent and proportional to problem it seeks to
address, therefore, it can be applied to States as
employers.
Rational Basis (all other, basically) (Rational basis for
discriminating at a class-based level even if it is probably not
true that the reasons are valid in the majority of cases; p
286)
o U of Alabama v. Garrett, 2001. Nurse with breast
cancer transferred to lower level job by State employer.
Could get injunctive relief, but not cash damages b/c
Title I of ADA under which she sued was not authorized
by the 14th A 5.
Con Law I Outline 12

The Civil Rights Cases, p 249

Several Civil Rights Acts passed to ban discrimination by private citizens. Criminal indictments
against private citizens (5 cases) for violation of various provisions of these acts.

1883, Court looked at challenges to a number of Civil Rights Acts based in light of the XIII, XIV,
and XV amendments

Court allows corrective legislation (Feds telling States they may not pass laws that
discriminate) but not directive legislation (Feds taking direct role to police)

Per Court, Amendment XIII bans slavery [and badges or incidents of slavery] but not
discrimination (after all, Court says, there was discrimination against Free People of Color even
when there was slavery and they werent slaves, so clearly discrimination is not the same as
slavery or its badges and incidents) [NO LONGER GOOD LAW]

Majority view: if people are denied public accommodation, they can sue under State common
law doctrines. Then, if State doesnt give a remedy, Congress can pass a law
correcting/instructing States for not enforcing the common law. But Congress cant
police/directly enforce Federal non-discrimination laws against private parties. So, Court
essentially blocks remedies for citizens experiencing discrimination. [Funk called this crippling
the Federal governments in this function.]

Majority:
XIII amendment abolishes legal institution of slavery, and the badges and incidents of
slavery
Discrimination in accommodation etc. is not a badge or incident of slavery (does not
subject a person to servitude or tend to fasten upon him any badge of slavery-- presumably
the black codes would not be permitted?)
XIV only regulates the conduct of States, not private actors
Discrimination by private actors must be regulated by the States; Congress cant regulate
that
Nasty remarks about Freedmen accepting they are mere citizens not entitled to be treated
as special favorites

Harlan (the great dissenter):

Majority is construing the Amendments/Acts to defeat the ends the people desired to
accomplish
Discrimination by corporations or individuals in their public or quasi-public functions [must
be licensed to act in those roles] is a badge of servitude and therefore Congress can
regulate
Majoritys view that saying victims of discrimination must rely on the States to regulate for
their protection, when States decline to do so, reverses the policy which the general
government has pursued from its very organization
The one underlying purpose of congressional legislation has been to enable the black race to
take the rank of mere citizen
OTHER FEDERALISM LIMITATIONS
Dormant Commerce 1. If laws facially discriminate against Interstate Commerce (IC):
Con Law I Outline 13

Clause Subject to strict scrutiny (unconstitutional unless there are

no other means to accomplish the States legitimate
Gibbons v. Ogden, objective)
1824, p 156 Presumed unconstitutional

Even where there is not
direct Federal law about a
topic, States may not hinder
Interstate Commerce.
Protectionism is the big evil.
2. If laws dont discriminate against IC but have a negative
effect on it:
Law is constitutional unless the burden on IC greatly
outweighs the local benefits of the law
Presumed constitutional, and burden is on other party to
prove that laws benefit is outweighed by the burden on IC

There are more DCC cases Sometimes the Court has trouble with a law that doesnt facially
than any other single kind of discriminate. They may apply the test does the burden on IC
constitutional law challenge greatly outweigh the local benefits? If the answer is yes, then
usually at least a couple of the law is said to discriminate (and they apply the first rule/test).
these on the SCOTUS docket If the answer is no, they apply the second rule. Reasoning is a
each year. 90% of laws bit backwards.
(other than transportation
ones) are constitutional Transportation cases (ex: mudflaps) tend to get special attention,
(upheld as ok). generally because of the burden on interstate commerce is likely
to be quite high. (Bibb v. Navajo Freight Lines; IL made law
requiring contoured mud guards to reduce thrown debris and
avoid accidents, but AR already had one prohibiting them, burden
imposed by IL too high: This is one of those casesfew in
numberwhere local safety measures that are nondiscriminatory
place an unconstitutional burden on interstate commerce. (90%
of transport laws challenged under DCC not ok, though SCOTUS
has never said there is a transport rule.)
Gibbons v. Ogden
1824, SCOTUS looking at NYs attempt to regulate who can pilot in its waters, based on a license
it issued. Federal license granted to a non-NYer and Court held that Commerce Clause and
Necessary and Proper Clause meant that Feds could issue licenses and States could not refuse to
allow navigation. In this section of the case two Justices opine on whether or not a Federal law is
required or not for NYs law to be improper. Even in the absence of a specific contradictory
Federal regulation, perhaps, the NY law would violate the essence of the Commerce Clause (this
is the first suggestion of a Dormant Commerce Clause).

Marshall [before concluding that the Commerce Clause controls, since there is a contradictory
Federal law]: an affirmative grant of power is not exclusive, unless in its own nature it be such
that the continued exercise of it by the former possessor [States used to regulate commerce] is
inconsistent with the grant. There is great force in this argument and the Court is not satisfied
that it has been refuted. [turns to CC].

Johnson:
And since the power to prescribe the limits to its freedom, necessarily implies the power to
determine what shall remain unrestrained, it follows, that the power must be exclusive; it can
Con Law I Outline 14

reside but in one potentate; and hence, the grant of this power carries with it the whole subject,
leaving nothing for the State to act upon.

I do not regard [the effect of the Federally issued coasting license]as the foundation of the right
set up in behalf of the appellant. If there was any one object riding over every other in the
adoption of the constitution, it was to keep the commercial intercourse among the States free
from all invidious and partial restraints.

Nutshell: power to regulate commerce is a not a concurrent power that can be shared by two
powers (Feds and States)only one can have the football.

Market Participant DCC has an exception: MPD

Doctrine
There is an exception to the
Dormant Commerce Clause
the State may act like a
private party in commerce,
not like a regulatory body,
and do things that a private
party could do even if they
interfere in Interstate
Commerce.
Market Participant Doctrine allows the State to do things that
impact/hinder Interstate Commerce as long as it is acting like a
private party in commerce (i.e., private parties can decide who to
sell to) and not like a regulator of commerce (who is engaged in
protectionist regulation). State is limited to 1-level of private-
party-like behavior and cant impose downstream conditions (ie,
can choose who to sell to, but cant set post-sale conditions, even
though they are found in the private commercial sector, like
franchises).
MPD has an exception (limited):
State government may pass protectionist legislation
provided that it protects a government agency engaged in
a traditional government function.

This doctrine is very weakgets applied only to DCC and not to

other areas of Constitutional law (ex: States cant exempt selves
from 1st Amendment when engaged in commerce like a private
party and say well only sell to Republicans). And if it were
robust, there wouldnt be the restriction of it to 1-level of private-
party-like behavior; nor would there be the (recent, one case only)
exception.
Privileges and Article IV, 2.1: The Citizens of each State shall be entitled to all
Immunities Clause Privileges and Immunities of Citizens of the several States.

Note: dealing here just with
Art. IV, not 14th Amendment
(which has the same
language but means
something different)
99% of this is the right to engage in a common calling and
profession (ie, work in the other states)
The discrimination is allowed where:
1. There is a substantial reason for the difference in treatment,
AND
2. The discrimination practiced by the State against non-State
residents bears a substantial relationship to the States
objective (in deciding if there is a substantial relationship, the
court will usually look to the availability of less-restrictive
Con Law I Outline 15

means.
NOTE: test looks like the facial discrimination test for the Dormant
Commerce Clause

Distinguished from Dormant Commerce Clause (p 374):

Congress cannot pass laws to override the Privileges and
Immunities Clause like it can for the Dormant Commerce
Clause
No market participant doctrine exception to the Privileges and
Immunities Clause (States cant say: were acting like a private
entity and will just hire State residents) [another example of
MPD being weak]
Only Citizens are protected by the Privileges and Immunities
Clause (not aliens or corporationstheyre persons, but not
citizens)
EXECUTIVE v. LEGISLATIVE POWERS
Separation of powers What are the horizontal and vertical separations of powers?
US v. Curtiss-Wright, The horizontal separation of powers refers to the
1936 separation between each of the three branches of
Youngstown Sheet & government (judicial, legislative and executive). The
Tube v. Sawyer (steel vertical separation of powers refers to the differentiation of
seizure case), 1952 Federal versus State powerwhen the Federal government
can or cannot tell States what do to (also called
federalism).

What is the difference between "Separation of Powers" and

"Checks and Balances"?
The separation of powers is a concept the stems from the
design of the Constitution itselfidentifying the three
branches of the Federal government and specifying the
areas of authority that each of the three has, and the areas
of authority left to the States. Its about the places in the
Constitutional machine or design in which each branch
functions independently.
Checks and balances is a political science term not in
place at the time the Constitution was drafted. It describes
the ways that the three branches interact with each other
the places in the machine where the gears mesh and the
different parts keep each other in check.
For example (I made this up, didnt get it from Funk), the
President can appoint ambassadors with the advice and
consent of the Senate (Art. II 2). In a separation of powers
analysis, whats important is that the President has
authority to identify potential ambassadors and submit
them to the Senate for review (consent). The Senate has
authority to give or withhold its assent, but has no power to
propose additional candidates to the President for
Con Law I Outline 16

nomination. Each branch has its designated sphere of

authority and they do not step into each others realm. In
a checks and balances analysis, whats important is that
neither branch can select and appoint ambassadors on its
owneach must interact with the other so that no one
branch has too much authority in terms of the final result.
US v. Curtiss-Wright, p 376

Facts: In context of dispute between Bolivia and Paraguay, Congress gave authority to President
to enact criminal laws by resolution regarding arms dealing to either of those countries. Goal
was to keep US and US arms dealers out of the conflict, per request of League of Nations.

Arms dealers were prosecuted and argued that the President didnt have authorityCongress
could not constitutionally delegate an essentially legislative power to the President. Court
disagreed because this was a foreign affairs matter and involved an area in which the President
had Constitutional discretion.

Takeaways:
President is the sole organ of foreign affairs (NOTE: per Funk, people misuse this phrase now
and say President is the only person with power in foreign affairsnot true, shared by
Congress and Executive)
Establishes notion that president gets more flexibility in foreign affairs (different standard of
review for external/foreign affairs vs. internal/domestic affairs.
Congress can delegate lawmaking to the President for external affairs. (Delegation Doctrine)
Known for the historical analysis, deeply flawed, about the transfer of foreign affairs power
from the States (prior to Constitution) to Federal government.

Why a different approach?

President has access to better info regarding foreign affairs than Congress does
President is the sole organ of the nation in its external relations (the only negotiator; person
who speaks and listens for the nation)
Youngstown Sheet & Tube v. Sawyer (steel seizure case), p 381

Discussion in class focused on formalist opinion of the Court (Black) versus the functionalist
concurrence by Jackson (which is what this case is known for).

Formalism: putting things in boxes. Does the justice believe this is a box this issue fits in?
Example: seizing the steel mills is a legislative action [the box]; since it is a legislative action, the
President cant do it.

Functionalism: looking at how things really work. Jackson here comes up with the three levels of
Presidential powerthis became the standard approach to assessing constitutionality of
executive actions.
1. P+C (at the zenith of Presidential power, but even that may be unconstitutional as we see
below in INS v. Chadha)
2. P
3. P-C (which may be Constitutional in some settingsforeign affairsand not others, such
Con Law I Outline 17

as this case)

Theres no neat alignment between judicial philosophy and formalist/functionalist approach

(might be some overlap between being textualist and formalist, but not a cut and dried
relationship).

Other opinions:
Douglas: allow the seizure because time is of the essence, then if able to get a post-facto
ratification from Congress, its ok. (Not clear why Congress didnt respond to Trumans memo
notifying them of the seizuretoo many possibilities of political mess.)
Frankfort: goes over every case in history and finds 3 or 4 like this (not a track record).
Doing unconstitutional things for years doesnt make them ok, but if its a greyer area and
precedent might be powerful.
Dissent: This is an emergency! Allow it! [but no major catastrophe when the strike
happened]
Wars and Emergencies President on his own:
Prize CasesIf someone invades us, there is a legal war (dont
Presidential War Powers need Congress to declare war for President to take action in
case of invasion or insurrection)
Commander-in-Chief roleallows President the decision to
invade another country (even if only with one ship)
President with Congressional approval:
President has power to order military tribunals for US citizen
who was unlawful combatants discovered in the US when
Congress allows him that power; Ex Parte Quirin (Nazi
saboteur case)
Majority: President does not have complete discretion to hold
citizens indefinitely (Hamdi v Rumsfield)
o AUMF allows President this power (all necessary
means); with Congressional approval the President
can do anything; Thomas and OConnor
o Congress didnt authorize this in the AUMF; Souter and
Ginsburg
o Congress does not have the power to authorize this;
Scalia
International Treaties There are two types of treaties: self-executing (enacted within the
US by the treaty itself) and non-self-executing (which require
My nutshell summary of the additional legislation).
difference: to be self-
executing, treaty must Majoritys rule/interpretation strategy is to look at the text, history
EITHER of negotiation and ratification, and how other treaty parties have
a) Not require domestic law handled it. Was it clear it would go into effect without more
of any kind (including statutes?
State governments
budgeting funds) to Medellin v. Texas (Mexican national sentenced to death in TX for
implement it, OR double rape/murder; Texas authorities did not notify Mexican
b) The language of the consulate of arrest as required by Geneva Convention). Majority
Con Law I Outline 18

treaty is absolutely suggests that if it is self-executing, wed find evidence of that. As

explicit that the
agreement is between
national governments
(not involving third
parties, like citizens) and
only requires each
government to do X, Y or
Z.
Per Funk, the Vienna
Convention agreement for 1
government to notify the
one is easily self-executing
as to the US/Federal
Government; less easily self-
executing as to the States,
but one could argue that it
is.
Unitary Executive
Morrison v. Olson,
1988
Appointments Clause (Art. II)
: Default is that officers can
be removed by the person
(position) that appointed
them. Who appoints you,
can remove you for any
reason, UNLESS Congress
establishes some
restrictions. Then the
question is whether that Under PCAOB (peekaboo) a single for cause level of restriction
is ok; two is too much (because its more than oneno more
restriction is Constitutional.
detail than thatit just seems too much to the Court).
Morrison v. Olson, p 442
a practical matter, if no evidence, it is non-self-executing
(although the Court doesnt come out and say that).
Minority would say that even without evidence of intent to be self-
executing, we need to determine which it is.
Note: in other countries, such as UK, treaty is negotiated by one
office (PM) and then must be legislated into internal effect by the
House of Commons. In US, since Senate has a ratification role
(although House does not), there is some question about whether
additional legislation is needed. International Court of Justice
seems to think Senate ratification is enough to be internally
binding in the US (majority says that SCOTUS is best group to
interpret US Constitution). But would never think that treaty
signing by other countries would be internally binding without
parliamentary legislation.
The unitary executive view is that President can fire department
heads without cause (removal) OR tell them what to do
(supervise). The President needs to be in charge of the executive
branch.
The non-UE view is that President only has removal power but
not supervisory power (not that its very different in practice),
subject to how Congress authorizes in by statute. Presidents
responsibility is only to see the laws enforced, not to set the
policy within each department (by telling directors what to do
supervising).

The removal discussion is why this case is important. What is the ability of Congress to restrict
the Presidents removal powers?

May Congress limit the removal power for President? Generally no, with two exceptions
If the office in general is such that independence from the President is desirable (Morrison
was an independent counsel investigation executive branch; she was appointed cross-branch
by the Courts of Law)
Can impose a good cause standard (but, from a later case, only 1 level of it)

Distinction between principal and inferior officers is important (principal ones require advise and
Con Law I Outline 19

consent of Senate; Congress may delegate power to appoint inferior officers to Executive).

Appointment process:
Principal: Must be appointed by president with advise and consent of Senate
Inferior: May be appointed in the same way as Principals, or may be President alone, Courts
of Law, or the Heads of Departments

4 Factors that distinguish inferior officers from principals ones

1. Answer to a higher official who is below the level of the President
2. Temporary position, limited duration
3. Limited jurisdiction-cant prosecute/investigate just anything, only certain identified things
4. Limited duties

Rule out of Olson (fuzzy per Funk): No restriction allowed on firing if it interferes with the
exercise of the Presidents core function. Funk articulated this also as the restriction may not be
of such a nature as to impede the Presidents ability to make sure the laws are faithful executed.
House and Line-Item One- and Two- House vetoes are unconstitutional
Vetoes
INS v. Chadha, 1983
Future oriented line item vetoes are unconstitutional (Clinton v
NY). Congress cant give away the rights of future Congresses.

Joint resolution: passed by both house and sent to president for

signature and then become law. The parliamentary distinction is
that resolutions cannot be amended on the floor (unlike bills).
Concurrent resolution: passed by both houses without going to
the President. Does not become a law.
INS v. Chadha, p 449

Congress argued that it had passed a statute (signed by President) which provided a mechanism
for a legal effect/created the power (based on the vote of either house) which it said was within
the scope of whats allowable under the Necessary and Proper Clause. Court didnt agree.
Congress continues to pass legislation with one house veto provisions. Not yet had another
court challenge.

Bright line rule:

One and two house vetoes are unconstitutional because EITHER
a) They are a legislative act (b/c taking action with legal effect outside their house without
complying with Art. 1 7, the Presentment clause), OR
b) They are enacting/carrying out a statutory provision which is an executive act which they
cant do
Congressional and Congressional: there is a prohibition about executive or judicial
Presidential Privileges branch questioning (putting pressure on about, potentially
and Immunities investigating) members of Congress for any speech or debate in
US v. Nixon, 1974 either house (Speech and Debate Clause). Remarks made in
speech/debate are protected even if exact same remarks made in
another setting (to reporters for example) would be actionable as
Con Law I Outline 20

for slander. (Gravel v US, re Pentagon Papers.)

Presidential: No Constitutional language, but Court has inferred

some privileges for the President. Such privileges exist for
current presidents, not former ones.
No privilege against a judicial subpoena in a criminal case.
(US v Nixon)
But a privilege for presidential scope akin to judicial scope
exists (Nixon v. Fitzgerald). Absolute immunity in civil suits
about his actions as president. (Qualified immunity for lower
offices; not clear where VP goes)
Clinton v Jones: holding that President could not defer civil
litigation for pre-Presidential acts while in office. Not sure if
SCOTUS would go that way again, based on political
catastrophe that followed.
US v. Nixon, p 479
Nixon ordered to bring the tapes to court (criminal investigation of Watergate parties). He says
no. Nixon argues for a general privilege over all executive communications and advisors. Court
says they have authority to review this claim (it is justiciable).

Court sees that some privilege is constitutionally created by the separation of powers and notes
there would be harm to candor of advisors if everything came out (SCOTUS must also have
known they were speaking about themselves, too).

Court also sees a counter-interest in the need for justiceto convict the guilty and keep
innocent out of jail. Says prosecutor needs all evidence (this per Funk is not anywhere in the
constitutionits provisions for criminal justice are about defendants rights to information).

Holding/analytical upshot: Court balances Constitutional basis for executive confidentiality

against constitutional interest in prosecuting criminal cases/prosecutorial information-
gathering. Finds for prosecutorial information-gathering. (Odd: in common law, that interest is
trumped by other confidentiality privileges, such as doctor-patient.)

Court does a balancing test in US v. Nixon (Presidential Privilege v. criminal investigation). The
holding isnt broader than thatdoes not apply to state secrets, for example. (SCOTUS hasnt
really come up with a rule for state secrets.)

Case deals with judicial subpoenas; no court has ever upheld a congressional subpoena against
the executive office.