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1) The Constitution

a) Historical background
i) Articles of Confederation
(1) Approved 1781 by all 13 states
(2) Written like a treaty between sovereign states
(3) Unicameral, 9/13 votes passes laws that only affect states, not individuals within
(4) Congress sole power of war, peace, foreign relations
(5) Problems
(a) Too weak federal government didnt have enough power
(b) what happens if state disobeys congress? Ie, paying taxes.
(c) States start developing relations with other countries
(d) Economic state of nation terrible no power over commerce
(i) Each state had own currency, bankruptcy laws
(ii) Trade wards
(iii) Imposed tariffs on interstate trade
(iv) Lenders wary of doing business with new country
ii) Constitutional Convention
(1) Controversial tossing of Articles of Confederation radical solution to problem would
have had to get unanimous approval to amend Articles anyway
(a) Second Great Illegality Constitution legally inconsistent with Articles
provision for amendments
(b) First Great Illegality armed uprising against legitimate English government
couldnt change it by legal means, so resorted to illegal rebellion
(2) Plenty of people thought Articles were fine beginning of states-rights v. federalism
(a) Federalists pro-Constitution
(b) Anti-Federalists anti-Constitution theme: centralized government
dangerous to individual liberty called for Bill of Rights
b) Text
i) Preamble no legal effect, but noted for its contrast to language of Articles
(1) we the people, not we the states
ii) 7 articles
(1) I legislative
(2) II executive
(3) III judicial
(4) IV relations between states
(5) V how to amend constitution
(6) VI Supremacy Clause
(7) VII ratification
iii) Is the US actually a democracy? Where is this visible in the text of the Constitution?
(1) Democracy = rule by majority this is not provided for
(2) All sorts of qualifications for voting, running for office, etc.
(3) We have amended the Constitution to make it more democratic
iv) How important should the text of the Constitution be when times have changed and the
size of the nation has grown enormously?
(1) Could language be adjusted?
(2) Should interpretation just be adjusted, made more flexible?

c) Judicial Review
i) Chief Justice what does he do?
(1) Approves appointment of court administrative officials
(2) Presides at impeachment trials
(3) Real role in tradition, not in the law
(a) Rule of Four four justices vote yes and a certiorari case will be heard
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(b) Rule of Four not a rule of law can be changed
(c) Chief Justice also casts last vote in deciding cases can vote strategically
(i) If part of majority, he decides who writes opinion
(ii) If dissenting, most senior justice of majority will write opinion
(iii) Different justices write in varying degrees of broadness/narrowness and
this is what will make the law

d) Invalidation of Federal Laws Marbury v. Madison

i) granddaddy of con law cases
ii) Marshall opinion
iii) What is the significance of this case?
(1) The beginning of the Supreme Court as we know it
(2) Start of opinons per curiam not individually
(3) Established power of judicial review
(a) Judicial opportunity to review the constitutionality of any federal law the
constitution is the supreme law of the land
(i) But unclear as to HOW to go about this review
(b) Constitution is the supreme law of the land, trumping federal law Supremacy
(c) Here, Federal Judiciary Act of 1789 was held unconstitutional
(i) Act gave Supreme Court power to hear writ of mandamus
(ii) Powers given to Courts in the Constitution:
1. Over what does Supreme Court have original jurisdiction?
a. cases affecting ambassadors, etc
b. cases in which a state is a party
2. Appellate jurisdiction?
a. constitutional cases
b. federal laws and treaties
c. ambassadors, etc
d. admiralty and maritime cases
e. cases in which US is a party
f. controversies between 2 or more states
g. cases between citizens of different states
h. between co-citizens who claim land under grants of different states.
i. With such exceptions as Congress shall make
(iii) Exceptions clause allows Congress to tweak appellate jurisdiction only.
(iv) However, Congress could not give court new original jurisdictions. Could
only have appellate jurisdiction over any matter which was not stated as
original jurisdiction.
(v) Marbury could sue in a different federal court, and appeal up to the
Supreme Court
(d) No other statutes declared unconstitutional until McCulloch v. Maryland, in mid
(4) Also, addressed issue judicial review of executive conduct
(a) Whether or not executive officials could be held legally accountable for their
(b) Can be required to follow the law if it applies to their actions because then
their acts arent merely political in nature
(c) Strategy of opinion didnt just dismiss case for lack of jurisdiction (due to
Judicial Act being unconstitutional) but rather save that till last to address
merits of case, including illegality of executive action
(5) Thus, both Congress and Executives are subject in part to the judiciary unlike in
English courts at the time
(6) Four textually based arguments in favor of judicial review, but yet no definitive support:
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(a) Art III Sec. 2 federal judicial power extends to cases arising under
(b) Certain provisions of constitution are addressed specifically to the courts, so it
must be supreme to the legislature
(c) Art VI, cl 3 requires that judges take oath to support Constitution (but so do
the executives and legislature, so maybe each branch assesses the
constitutionality of its own actions?)
(d) Supremacy Clause Art VI, cl 2.
(7) If each branch does have final word about constitutionality of own actions, Constitution
would be no longer enforceable as law. Requirements in it would be merely moral and
political norms and violations of them could only be amended by the political process
which would offer little protection to such victims.

iv) Later, Supreme Court decides that state laws may also be overturned.
(1) Federalism issue how much can federal government meddle in state affairs?
(2) Uniform rules throughout country desireable
v) Canon of Statutory Construction:
(1) Court wants to interpret statutes to uphold their constitutionality
(2) Only exercise extreme countermajoritartian power when absolutely necessary
vi) Reality: many rules deemed unconstitutional are still enforced all over the country
(1) Ie, pledge of allegiance in schools
(2) Who will sue in protest?

vii) Theories behind Marbury v. Madison debated because of Countermajoritarian Difficulty

(1) Nine persons, appointed for life rather than elected for a term, are given authority to
overturn majority opinions of Congress
(2) Yet, US system of democracy was never intended to be purely democratic federal
government partially established in response to tyranny of the majority
(a) People might want unconstitutional things
(b) Representatives might do unconstitutional things without consent of people
(3) Where does this power come from?
(a) Who gets to ultimately decide what is supreme?
(b) Why should the judiciary decide? Two opposing theories:
(i) Cases and Controversies theory
1. When a case comes before the court, it must be resolved.
2. Passive role of court, deciding on what is before it only.
3. The case might be resolved on facts, or it might be resolved on the
constitutionality of statutes as it relates to the facts of the case
a. Congress is free to keep unconstitutional laws
b. however, if an issue arises that brings that law before the court, it
will be decided in a way depending on court precedent, ie
unconstitutionality of a certain law
c. all courts have this power, not only the Supreme Court and this is
an amazing power
(ii) Separation of Powers theory
1. non-democratic judicial system is a check on democratic political
2. guards against majority abuse of minorities
3. this is not necessarily contradictory to Cases and Controversies theory,
but rather the other side
4. because the court is playing an active, rather than a passive, role.
(iii) Neither of these theories has become a standing rule rather, they tug
back and forth over the years depending on court membership
(4) What are the limits to this power?
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(a) If people disagree with court, constitution may be amended (ie 13th, 14th,
(b) Control over appointments process via representatives (court packing)
(c) Popular opposition justices may change views
(d) Impeachment via Congress

e) Interpretive Issues Scot v. Sanford (Dred Scot)

i) How constitutional interpretation can be used for evil as well as good
(1) Thus, judges are not merely umpires calling balls and strikes
(a) A great deal of sophistication is required to properly interpret Constitution
(b) Also, a judge must also rely on precedent; what are a judges feelings towards
ii) Different approaches to constitutional interpretation
(1) Originalists
(a) What was the intent of the founding fathers? (can be difficult to ascertain.)
(b) What is the meaning of the original text? Use old dictionaries and Federalist
papers as clues. (but who actually were the framers?)
(c) Goal: to prevent judges from imposing own beliefs on society in guise of
interpreting the constitution
(d) These justices value consistency with founders over a modern interpretation
(e) Is the constitution so static a document?
(2) Living Constitution
(a) Document evolves over time in terms of meaning but without actual
amendments to bring it up to date
(b) Constant amendments would ruin special nature of document
(c) Interpret Constitution in light of today, facts and issues of today
(d) Broad reading of phrases like cruel and unusual punishment, free speech,
due process.
(e) Gives all judges the power to interpret the Constitution, and to decide what the
meaning is today
(i) Should judges be able to do this, or is this the job of Congress?
iii) Supreme Court doesnt always agree with how precedent should be used in Constitutional
(1) Generally, believe that it should be used unless it is really, really WRONG
iv) Dred Scot v. Sanford
(1) Taney opinion
(2) What Dred Scot demonstrates:
(a) Power of judges to interpret constitution
(b) Lack of clarity of the language in the constitution
(i) majority and dissent use same historical facts to produce different opinions
(c) How a decision can be wrong although defensible on a strictly legal basis
(3) Issue is Scot a citizen, and able to sue in federal court? Court decides no, because:
(a) At the time that Constitution was drafted what the public held to be true
regarding the inferiority of blacks
(b) Text of constitution, Articles of Confederation, legislative history, all brought into
(4) Majority clearly takes an originalist perspective
(a) But taking such a perspective is an individual choice that is still based on
personal morals, values, etc
(b) Involves discretion where to set upper and lower limits of rules
(5) The merits of Missouri Compromise should not have been examined at all, after case
was thrown out.
(a) Trying to be a great jurist like Marshall in Marbury opinion
(b) Missouri Compromise held unconstitutional
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(c) Upended a huge political deal that was meant to ensure the continuation of the
Union by balancing number of slave and free states
(d) Lousy reasoning
(6) Opinion that former slaves and descendants could not be citizens was reversed by the
14th amendment

2) Limits on the Judicial Power

a) How can Congress defend laws from being constantly overturned?
b) Ensure that no one person or group can exercise too much authority; purpose is to safeguard
the rights of individuals rather than any one political branch
c) Separation of Powers
i) Different branches of government have different roles.
ii) Overlap of branches is minimized; insulation of branches to safeguard liberty
iii) How is the judiciary separated from other branches by Constitution?
(1) Article III Section 1 -- powers of judiciary that cannot be exercised by anyone else;
types of cases that the court may hear
(2) Article III Section 2 original jurisdiction
d) Checks and Balances
i) Permits overlap; interactions of branches to safeguard liberty
ii) Ie, where Congress can pass legislation, and president can veto it; or, judicial
appointments, judicial review, legislative impeachment
iii) What are the checks on the judiciary? See below.
(1) president and legislature select judges
(2) legislature can remove them by impeachment
(3) Congress may narrow jurisdiction of lower federal courts
(4) Congress may narrow Supreme Courts appellate jurisdiction
(5) Judicial review
e) many separation of powers issues are simply non-justiciable
f) Also, the law of separation of powers might escape definitive pronouncement from the
Supreme Court for long periods of time, if not forever.

g) Congressional Limits
i) Constitution, expressly and impliedly, presumes Congress will supply most of design and
detail of the federal judiciary
(1) Congress may establish (or un-establish) lower federal courts
(2) May also set jurisdiction for these courts, including concurrent jurisdiction with
Supreme Court
(3) May change appellate jurisdictions of federal courts, but may not restrict or enlarge the
original jurisdiction of federal courts only regulate procedural matters (but that could
include when and if the Supreme Court meets)!
ii) Congress may NOT meddle with state court systems
iii) Leading case construing exceptions power: Ex Parte McCardle
(1) Supreme Court bound by the law, regardless of whether or not the law was politically
(a) Judicial Act of 1867 allows appeal of habeas corpus decision to Supreme
(b) McCardle appeals accordingly
(c) But: Congress has power to restrict Supreme Court appellate jurisdiction, and
passes Act in 1868 to repeal part of 1867 act that allows appeal
(d) Case dismissed for lack of jurisdiction
(2) Evidence of traditional interpretation of exceptions clause: anything goes; plenary

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(3) More permissive interpretation of exceptions clause: mandatory interpretation
(a) For any case arising under Constitution, at least one Article III court must have
jurisdiction to hear the case.
(b) Was the existence of an alternative forum for McCardle essential to holding?
iv) Other Congress/Judiciary dynamics
(1) Congress may not pass laws to change final judgments, reopen final judgments for
reconsideration, or tell courts how to decide a case
(2) However, ongoing court injunctions can and must be changed to reflect changes in
underlying law
(3) Case Example: Miller v. French

h) Case or Controversy Limits

i) Article III Section 2 words cases and controversies
(1) When is a matter justiciable? When it possesses a sufficient number of those
characteristics historically associated with the judicial function of dispute resolution.
Four different doctrines:
(a) Standing, ripeness, mootness, political questions
(2) An actual dispute involving a legal relationship between adverse parties for which
relief can be granted an injury must be done
(a) No hypos, abstractions, academic questions
(b) No collusive suits in which parties attempt to fabricate a case or controversy
(3) Advisory opinions
(a) Not permitted by federal courts
(b) Go beyond Constitutionally mandated separation of powers
(c) Executive branch has advisors that serve this function
(d) Traditionally, most courts dont issue them MS, Canada exceptions
(e) How do advisory opinions interfere with democracy?
(4) What if cases and controversies just arent there?
(a) Bankruptcy declarations, earch warrant, naturalization
(b) These are all court functions that dont deal with cases/controversies
(c) Historical precedent/tradition
(5) Cases and Controversies a good excuse if there is a question that the courts dont
want to answer

ii) Standing
(1) Standing also not mentioned in constitution requires that litigant have a stake in the
outcome of the case
(2) 20th century concept requiring 3 things which plaintiff must bear burden of proof:
(a) Injury what constitutes injury? No set test, but must consider:
(i) Perceptible and recognized harm
(ii) Invasion of any right recognized under Constitution, statutes, or common
law as long as it is not too abstract
(iii) Present or threatened injury
(iv) Case example of no injury: Lujan v. Defenders of Wildlife
(b) Causation what illegal act has caused injury?
(i) Injury must be fairly tracable and not conjecture
(ii) Odds of satisfying standing decrease as causation and claimed harm
together become less concrete
(c) Redressability how could a favorable decision alleviate the injury?
(i) Relief must not be dependent on absent third party
(ii) Nature of underlying injury must be clearly identified
(3) Is the plaintiff the proper party to bring an action?
(a) Representational standing
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(i) An organization on behalf of a party
(ii) Lawsuit must be consistent with organizations purpose
(iii) Member has standing as an individual
(iv) No damages may be awarded; just declaratory relief (no requirement of
participation of individual members in the lawsuit)
(4) Very difficult to have standing to bring suit against the government or an officer of that
government for unconstitutional behavior
(a) Actual injury requirement
(b) Generalized grievances of many persons does not equate injury
(i) Grievances are political issues to be brought up in a political forum
(ii) However, grievances are not generalized merely because they are widely
shared. Widely shared injury may be legitimate
(iii) Rule against g.g. is triggered only if plaintiffs sole claim of injury is a share
of a harm suffered by all citizens when the government does not act legally
(iv) Exception taxpayer may challenge taxpaying statutes
(c) Government officials are subentities of larger government. This larger
government must police itself
(5) Corporations are legal persons with standing
(6) Standing is a fundamental legal philosophy that the court can interpret in different
(a) Conservative, narrow:
(i) Court is minimalist institution, because they are non-democratic
(ii) It is the job of the president to enforce laws
(b) Liberal, broad
(i) Many things qualify as injury
(ii) Including being made to feel like an outsider in society
(7) Who has standing to sue when laws declared unconstitutional are still enforced?
Standing is a real limitation to many actions.

iii) Political Questions

(1) For these matters, enforcement of Constitution is dependent on the will of the
executive and legislative branches
(2) Like standing, is not discussed in Constitution
(3) Unlike standing, has a less well-established precedent
(4) Threshold question:
(a) Does issue implicate the separation of powers?
(b) Nonjusticability is usually a product of separation of powers
(5) Case example: Baker v. Carr (election district case): 6 factors in determining
political questions:
(a) Is there a constitutional commitment of the issue to another branch?
(i) Usually clear-cut in the text, but can require a careful textual interpretation
(b) Are there judicially discoverable and manageable standards for resolving the
(c) Does resolution require an initial policy determination of a kind clearly for
nonjudicial discretion?
(d) Will a judicial resolution express a lack of respect for a coordinate branch?
(e) Is there an unusual need for unquestioning adherence to a political decision
already made?
(f) Will multifarious pronouncements by the various departments on one
question cause embarrassment to the government?
(6) Very few cases thrown out because they are political questions is a last resort
reasoning when plaintiff has standing and case is not moot
(7) Political questions and political cases are not the same thing

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(8) No aspect of a case involving a political question may be decided, including due

iv) Ripeness focuses on potential prematurity of suit; no actual dispute yet

v) Mootness addresses staleness; no longer a live controversy

i) 11th Amendment Limit on Judicial Review of State Laws

i) Constitutionalizes the concept of sovereign immunity
(1) No suits against a state by
(a) Citizens of another state
(b) citizens of a foreign state
(2) This repeals the citizen-state and alien-state diversity clauses of the original Article III
(3) Direct reaction to decision in Chisholm v. Georgia in 1793, which held that sovereign
immunity could be overturned in the Constitution by Article III this was an
undesirable interpretation
(4) Diversity jurisdiction not touched by this amendment
(a) Suits between citizens of different states
(b) Suits between different states
(c) Suits arising under the Constitution or US laws
(d) Suits brought by a foreign official
ii) The second 11th Amendment
(1) the government may not be sued without its consent irregardless of appropriate
diversity jurisdiction a more expansive reading of 11th Amendment
(a) after Hans v. Louisiana in 1890
(b) True of both state and federal governments, including agencies of the states
(c) Not true of municipal governments, like counties and cities
(2) Consent must be express, not implied
(a) State acceptance of US funds that contain an express requirement that
acceptance constitutes a waiver of sovereign immunity would qualify
(b) State removal of a lawsuit to federal court constitutes express consent to suit
iii) Exceptions
(1) With respect to states, federal laws passed under authority of Section 5, 14th
amendment expressly override state immunity
(a) This section gives Congress the power to enforce antidiscrimination laws
(b) Union Gas case
(2) With respect to states, suits brought by states or the federal government
(3) Suit brought by private persons against state government officers for injunctive or
declaratory relief
(a) Case Example: Ex Parte Young

3) Congressional Power
a) Three major powers over interstate commerce, taxation and spending, and foreign affairs
i) 17 separate paragraphs total, in Art. I Sec. 8
b) The major and more frequently examined grants of Congressional authority
c) Prelude the Necessary and Proper Clause because every exercise of national authority
must be linked to a constitutionally granted power

d) Necessary and Proper Clause

i) to make all law which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution Final clause of Art. I
Sec. 8
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ii) Necessary and proper clause applies to both the express powers of Congress and to all
other governmental powers, including the executive and judicial branches. Coordinate
branches may be provided with means to carry out their ends, including assistant
agencies and personnel.

iii) McCulloch v. Maryland

(1) The question of federalism v. states rights
(2) What is the extent of the federal governments power?
(3) Where do states pick up the slack?
iv) Bank of US to be taxed by Maryland.
(1) Is bank constitutional?
(a) First bank was created by founding fathers over objections of anti-federalists
(i) Originalist argument
(b) Anti-federalist see new need for bank after War of 1812 and renew its charter
(i) Insurance of transfer of funds; facilitation of transfer of funds
(2) First, affirmance that govt can only act pursuant to a constitutional power
(3) Two lines of reasoning:
(a) Structural Constitution is a charter which creates a system of government
designed to address problems of national concern. Not all details or
contingencies described, but the national government should still be effective.
A reasonable means of exercising these powers should be selected.
(b) Textual Constitutions language affirms this structural reasoning. Necessary
does not mean absolutely necessary.
(4) Test determines what is necessary:
(a) Legitimate end
(b) Within scope of Constitution
(c) Means is appropriate
(d) Means are plainly adapted to an end
(e) Means are not prohibited by the Constitution
(f) Means are consistent with letter and spirit of Constitution
(5) Is tax constitutional?
(a) No. Comes down to state sovereignty
(b) States must have sovereignty over what they tax.
(c) States cannot control a federal institution; states can only control creations of
the state.
(i) The states are agents of the people, who created the federal government.
The states themselves did not create the federal government.
(ii) Supremacy Clause federal law trumps state law
(d) Federal government cannot tax state institutions either

e) The Commerce Clause

i) Introduction
(1) Article I Section 8 Clause 3
(2) To regulate commerce with foreign nations, and among the several states, and with
the Indian tribes.
(3) The economy was the reason the Constitutional Convention was called in the first
place; it was in shambles, because Articles of Confederation were too weak to
regulate interstate commerce
ii) Today, the commerce clause is the primary tool relied on by Congress to regulate
domestic affairs but its power is not infinite
iii) Nature of power in the federal government and in the states
(1) Some powers for federal government alone these are enumerated
(a) Police power power to provide for health, safety, and welfare of the nation
is not described in Constitution
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(2) Remaining powers for state
(3) Did federal government carve its power out of the state powers, or did the federal
government always have power, doling out some to states?
(a) Theory of social contract holds the former
(i) This was the theory of the framers
(ii) Was at the time, how a legitimate government would come to power
(iii) The people always withhold powers from the federal government
(4) Can concurrent powers exist?
(5) What is the power balance today? Does the federal government or the states have
more power?
(a) Does it even matter? Either state or federal governments can regulate
personal freedoms.
(b) It is factions that matter, ultimately, rather than size/scope of government
iv) Divided powers very important to the functioning of the nation
(1) Vertical separation of powers local, state, federal
(2) In addition to horizontal three branches of government
v) Consider rights of individuals to govern themselves

vi) History of interpretation of the Commerce Clause

(1) Began with Gibbons v. Ogden, 1824. Marshall opinion.
(a) NY law giving monopoly of interstate waterway to Ogden is unconstitutional
(i) Supremacy Clause
(b) Examine what founding fathers meant by commerce; navigation is included
as an instrumentality
(c) Congress vested with a plenary authority to regulate only commerce that
affected more than one state
(i) What does regulate mean? Total power to make laws, within the bounds of
the Constitution
(d) Commerce cant just be regulated at the state line; the effect of regulation
would have to also apply within a state
(e) In absence of federal law, state law prevails, but it was not decided what
happens if Congress fails to regulate an aspect of interstate commerce that
needs regulating
(2) Over the years since Gibbons, the judiciary has expanded and restricted the
interpretation of the clause.
(a) Formalist v. functional courts:
(i) Functional: protect commerce
(ii) Formalist: regulate commerce only; do not want federal powers to protect
raging out of control
(iii) Why does a justice choose a side?
1. Politics is still inherently federalist and anti-federalist.
2. will choose any interpretation method that furthers their views
3. justices rarely consistent in their judicial philosophy

vii) Case history since Gibbons:

(1) Gibbons did not provide an obvious solution for myriad commerce problems. Of
particular concern was the validity of state regulations of local matters that were
potentially subject to federal regulation under the CC and Necc. & Prop.
(2) Consistent concerns of states righters:
(a) Big government
(b) Over-policing
(c) Loss of state power to decide own matters
(d) Believe that an inherent part of government before the Constitution was with
the states, and that those powers were not given up upon ratification
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(3) Struggle between formalist rule and functionalist rules how to draw clear lines
regarding what is and isnt interstate commerce

(4) The Daniel Ball, 1871

(a) Steamboat can be regulated by Congress even though it is only operating
within a state because it carries goods which are from out of state, and
destined for another state.
(b) is a part of the interstate commerce process
(5) US v. EC Knight (sugar case), 1895
(a) Manufacture of a good is not commerce, nor is mining or growing
(b) Only transporting a good is commerce
(c) Manufacture is only an indirect effect on commerce, so it cannot be regulated
(d) Doesnt matter if goods are manufactured with intent to ship them out of state
(e) Inconsistent with Daniel Ball decision; this is a formalist opinion, whereas D.B.
was functional
(6) The Shreveport Case, 1914
(a) Intrastate commerce can be regulated by Congress if it has a direct, negative
effect on interstate commerce
(b) Another functional case
(7) The Lottery Case, 1903
(a) functional
(b) instrumentalities of commerce can be regulated
(c) regulation can mean total prohibition because regulatory powers of Congress
under Commerce Clause are plenary. Congress can do anything.
(8) Child Labor Case
(a) Goods themselves are only interstate commerce once they cross the state line
(b) Goods themselves arent inherently dangerous
(c) Manufacture isnt commerce
(d) States role to regulate labor within borders
(e) Functional interpretation

viii) Modern Doctrine

(1) Pre New-Deal, what was the state of the Commerce Clause?
(a) Core issue: if Congress has power under Commerce Clause to regulate
anything, what are the outer limits of this power?
(b) In the early 1800s, there was a struggle with how to draw the line
(i) First, state boundaries, and interstate waterways
(ii) Varying degrees of effectiveness
(c) Later 1800s mechanical formula in place to draw the line
(i) Manufacture, mining, agriculture v. commerce
(ii) Practical problem important legislation becomes useless and states have
no power to fill the void
1. ie, Sherman Antitrust Act w/ Knight case
(iii) purpose of commerce clause was not being served and that is a
discrimination-free trade zone
(2) The New Deal
(a) National legislation to solve economic problems of the Great Depression
(b) Much legislation declared unconstitutional as beyond Congress power
(c) FDR threatened to change Supreme Court makeup if it didnt start declaring
legislation constitutional
(d) Justice Roberts started switching sides; switch in time saves nine

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(3) enter Case Example: Wickhard v. Filburn
(a) constitutionality of Agricultural Adjustment Act in question
(b) regulation of production of home-grown wheat because of the possibility that it
could enter the market and destabilize prices
(c) affirmed US v. Darby which extended power to regulate to 1) anything that
substantially effected commerce, 2) destroyed the 10th amendment notion
that certain state activities were off-limits to federal regulation
(i) this included goods not necessarily produced for export, like home-grown
(ii) rationale: not buying from marketplace affects interstate commerce. One
farmer doesnt matter, but aggregate effect is detrimental
(iii) the affecting commerce test
(d) Critical to upholding act:
(i) Affect of activity being regulated on commerce
(ii) Aggregate effect of such activity
(e) Effect of this decision:
(i) Anything describable as commerce (any activity surrounding production of
goods and services) is subject to regulation
(ii) Line-drawing history thrown out as unworkable
(iii) Conclusion (aided by Depression) that the economy is bigger than any
state and needs tough regulation
(4) Case example: Heart of Atlanta Motel v. US, 1964
(a) Title II of Civil Rights Act in question
(b) Congress got its authority for the Act from the Commerce Clause; no
discrimination in provision of goods and services related to interstate travel
(i) Previous Civil Rights Act of 1875 overturned partially because it did not
address discrimination as it related to commerce, but as a whole.
(ii) Essentially, was too broad
(c) How do people affect commerce?
(i) Determinative test:
1. commerce concerns multiple states
2. has a real and substantial relation to the national interest
(d) Takes Wickhard rationale of aggregation, and makes it so that regulation of
commerce doesnt have to be the primary purpose of a law
(e) Commerce Clause the only way Congress could regulate individual, non-
governmental acts of discrimination
(f) Short-term economic good of some thrown out in consideration for the whole
(5) After Wickard and Atlanta, we have a regulatory power of the federal government that
is almost unlimited today

ix) Post-Modern Doctrine

(1) Case Example: US v. Lopez, 1995 reeling in the Commerce Clause power a little.
Concern that modern applications of CC run risk of obliterating the principle that eh
US is a limited government.
(a) Is its outcome consistent with Wickard, which enlarged CC? No, so as such it
was a surprise. First time since New Deal that regulation exceeded
Congressional authority.
(b) Two concerns
(i) Nature of activity being regulated:
1. Whether or not something is an economic activity is a threshold
a. Activity is economic in nature
b. Regulation of activity is part of large regulation of economic activity

Bill Funk Constitutional Law Outline Fall 2005 12

2. Possession of gun in a school zone held to be an isolated, non-
commercial activity just possessing a gun is not commerce
(ii) Relationship to interstate commerce
1. must pass substantial impact test
2. Aggregate impacts?
3. Does the statute in question
a. Limit measures reach to activities having explicit connection to
interstate commerce
b. result from any express congressional findings regarding effects
on commerce
4. How is commerce affected here? No strong evidence
a. Argued that violence affects education which affects job training
which effects the economy a tenuous argument
i. yet, draws the line in a formulaic way, stating that education
does not equal commerce when it sure as heck has a huge
impact on commerce
b. Congress needs to somehow rationalize legislation. Otherwise,
could start regulating anything without good reason.
c. Degrees of proximity are important how directly is the regulated
activity affecting commerce?

(c) Today: 3-parted test to evaluating constitutionality of a law based on

Commerce Clause: (existing before Lopez, and restated here):
(i) Regulates channel of commerce
1. terms and conditions of sale
2. types of goods
(ii) Regulates instrumentalities of commerce
1. railroads, airlines, trucking companies
(iii) Regulates something that has a substantial effect on commerce
1. using Necessary and Proper Clause in conjunction with CC to extend
powers of CC
2. any economic activity that has such an effect ie, the production of
goods for market
3. few economic activities escape the substantial effect test
4. what is substantial has been hotly contested
(d) What constitutes substantial effect is the main issue remaining today
regarding Commerce Clause application
(i) Aggregate effect of Wickard is still good law, and represents the outer
limits of Congressional power under the Commerce Clause
(e) Should another test be established instead?
(i) What about scale of problems national or local?

(f) Real issue of Lopez: court decides this case based on its potential to be
applied as precedent to future cases do not want Commerce Clause
expanded any further than this: denial of plenary police powers
(g) Why this legislation at all?
(i) passed because constituents want uniform legislation throughout the states
(ii) Could not have suspected that Commerce Clause wasnt the answer this
time, like it was for other public welfare laws
(iii) Should have written law (and later did) to read that possessing a gun that
has traveled in interstate commerce in a school zone is illegal.
(h) Should the court even be able to question the rationale behind a law like this?
(i) Concern is not the merits of the legislation, but its constitutionality

Bill Funk Constitutional Law Outline Fall 2005 13

(ii) Should have tried to pass equivalent legislation that would have been
(iii) Wont decide merits of legislation

(2) Case Example: Gonzalez v. Raich, 2005

(a) Growing and use of medicinal marijuana in California likened to home-grown
wheat in Wickard for the purposes of declaring constitutional a federal
Controlled Substances Act that trumped CA legislation permitting this type of
use of marijuana
(b) Substantial aggregate affect on commerce
(c) Scalia feels that Act was not only required by Commerce Clause, but also
Necessary and Proper Clause
(i) Questions regarding the scope of federal power always calls Necessary
and Proper Clause into play

(3) Concerned about the government regulating everything?

(a) Where govt cant regulate: Bill of Rights
(b) No other support in Constitution or Declaration of Independence
(i) Only promise not to take away life, liberty, and property without due
process of law
(ii) Things like right to privacy are not really protected

f) Other Article I Powers

i) As the commerce clause narrows in scope, other things can be expanded to allow the
government to continue regulating.
ii) Taxing
(1) National defense, debts, general welfare
(2) What is general welfare and who gets to decide?
(a) Nothing has ever been found by a court to be outside the general welfare
(b) Is it even a judicially enforceable restriction?
(3) If something cannot be regulated, ie by commerce clause, may it be taxed?
(a) Originally, courts held no, ie Child Labor Case.
(b) Now, otherwise.
(4) Taxing power is currently unlimited. Power to tax and spend is a distinct constitutional
power that can be exercised without reference to granted powers (Ie, to regulate
interstate commerce)
(a) Congress can therefore tax anything it cannot regulate by any other means
iii) Spending
(1) Also done for the general welfare
(2) How much is conditions on receiving money acceptable?
(a) Money must be used for purposes specified ok
(b) Other conditions, may not be ok
(i) If federal government can attach conditions to spending, can it do whatever
it wants?
(c) If condition furthers a general welfare, it is constitutional
(i) Condition must be clearly expressed
(ii) Must be related to underlying purpose of spending
(iii) Condition must not violate other constitutional prohibitions
(d) When does pressure turn into compulsion?
(i) When states really rely on federal spending to get by
(ii) Persuasive v. coercive
(iii) spending may actually be a disguised regulation of private activity
iv) Treaties

Bill Funk Constitutional Law Outline Fall 2005 14

g) 13th, 14th, and 15th Amendments Powers Pursuant
i) 13th slavery banned as illegal
ii) 15th voting for all citizens
iii) 14th Amendment HUGE deal
(1) Only applies to states, not individuals
(2) Pulls powers from states that they possessed in the past
(3) No longer could states decide to deprive individuals of life, liberty, and property
(4) Equal protection of citizens throughout the nation
(5) No more state power to make discriminatory laws end of atmosphere of violence
(6) Section 5 Congress can make laws to enforce provisions of the Amendment
iv) Test for laws pursuant to 14th Amendment
(1) Can be preventative or remedial
(2) However, must be solidly based in factual evidence of discrimination
(3) Also, must be congruent and proportional
v) Examples of test applied:
(1) Religious Freedom
(a) RFRA unconstitutional
(b) Laws passed that affect the population generally and burden religious
expressions indirectly are constitutional because they are not directly targeting
religious expression
(2) Disabilities
(a) 11th amendement sovereign immunity no suing states for damages
(b) Not enough evidence of discrimination by states to abrogate sovereign
(3) Sexual Discrimination
(a) Plenty of evidence to show need for FMLA
(b) Narrow application of law doesnt effect more people than reasonably

4) Executive Powers and the Distribution of National Powers

a) Introduction
i) Article II
(1) Section 1 qualifications for office; protect and defend the Constitution;
(2) Section 2 specified powers
(a) Commander in Chief; advisory opinions of department heads; pardons;
treaties; nominations; temporary appointments
(3) Section 3 duties State of the Union; recommend laws; convene and adjourn
Congress; receives ambassadors/recognizes nations; take care that the laws are
faithfully executed.
(4) Section 4 impeachment
ii) Textualist/originalist interpretation Article IIs brevity = minimist role of president
iii) Living Constitution adapt document so that Presidents role can grow
iv) In other words:
(1) Formalist textual basis for arguments based on specific wording of Constitution
(2) Functionalist draws upon inferences from the structures and relationships created by
the Constitution, and involves a pragmatic assessment

b) Executive Power, Privilege, and Immunity Pursuant to Statute

i) Case Example Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure Case)
(1) President puts control of steel mills under Secretary of Commerce when strike in the
middle of the Korean War threatens wartime supply of steel striking workers will
Bill Funk Constitutional Law Outline Fall 2005 15
work because President will authorize paying them the wages they want. No law
supports the seizure, or favors permitting seizure, but none forbid it either.
(2) President took matters into his own hands in a national emergency issuing an order
that amounted to lawmaking
(3) Formalist reasoning Black
(a) Putting actions of president into boxes either within Presidents own power,
or without, and thus belonging to Congress alone
(b) Congress could pass a law authorizing actions
(4) Douglas action would have been constitutional if Congress had ratified afterwards
(5) Frankfurter looks at case from a historic perspective
(a) if history allowed for such seizures, this would be strong evidence that they
were constitutional.
(b) However, Congress had earlier considered then rejected the option of allowing
the President to seize industries
(6) Importance of case the Jackson Concurrence
(a) Functionalist reasoning
(b) Actions of a President can fall into three categories :
(i) President acts with Congress on his side P + C greatest authority
(ii) President acts on own power P
(iii) President acts against will of Congress P C least authority
(c) This is not a sliding scale of more or less constitutionality
(d) 1st category presumed constitutional, unless proven otherwise
(e) 3rd category is presumptively unconstitutional, unless proven otherwise
(7) In this case, actions were in the 3rd category no Congressional authorization, but no
direct prohibition either
(8) In the end, no rules result from this case just factors to consider in determining
whether actions are constitutional or unconstitutional.
(9) Compare action in Steel Seizure with Emancipation Proclamation
(a) Slavery still legal in South and in two Union states
(b) Lincoln made it under authority as Commander in Chief, to incite rebellion in
the South against the Confederates
(c) Deprivation of property without due process of law, to further a war effort
(d) Isnt this essentially what Truman was doing?
(e) Condemn or applaud actions based on whether or not you embrace the
ultimate goal.

ii) Delegation Doctrine/Non-Delegation Doctrine

(1) Constitution vests legislative power in Congress only
(2) Can Congress delegate power to President to do things?
(a) Ie, cancel trade restrictions set by Congress if he thinks certain contingencies
have been met to make such action necessary
(b) Upheld by Supreme Court
(3) Executive action can be allowed by Congress for sake of convenience
(a) Enlist assistance of coordinate branches
(b) Also, exclusive action to Agencies
(c) Ie, EPA, to set clean air standards
(4) The trouble with delegating:
(a) Separation of powers not done for benefit of branches, but for rights of
individual citizens
(b) Therefore, the impaired branch simply cannot waive a usurpation of its powers
(c) It is irrelevant if that usurpation was permitted or not
(5) Only one way to make delegation constitutional = Congress has to set an intelligible
principle or sort of framework for decisions to be made in and for the courts to use in
reviewing the decision
Bill Funk Constitutional Law Outline Fall 2005 16
(a) Some are broader than others
(b) in the public interest.
(c) unfair trade practices
(6) When has such delegation been held unconstitutional?
(a) New Deal era, 2 cases only 1935
(b) Thus the intelligible principle test is very easy to meet
(7) The outer limit of delegation is the intelligible principle but as a practical matter,
seems unlimited so far
(8) Scalia opinion that the president is not taking on legislative powers at all, but that he
is just executing the laws
(a) bright lines either a legislative or an executive power is there really such a
clearly drawn boundary?

iii) Unconstitutionality of Line Item Veto: Clinton v. City of NY

(1) Presentment Clause bills passed by Congress must be signed by the president. If
not signed, they are vetoed, and in their entirety are sent back to Congress for
(2) Line Item Veto signs bill into law, but strikes out pork from bill in efforts to manage
the federal budget
(3) Is this constitutional?
(4) Court holds no because President is getting to make legislative decisions
(a) Doesnt matter that Congress has authorized him to do so
(b) Cannot authorize President to do that which the Constitution has forbidden
(5) Court trying to decide what formalist box to put this in the executive or legislative
(6) Real issue is not improper delegation:
(a) Appropriation acts have been interpreted as being requirements to spend, not
options to spend
(b) To delay or cancel spending, must ask Congress
(c) Congress could always take initiative to write legislation so that president has
option of spending

iv) Delegation in regards to Foreign Relations US v. Curtiss-Wright

(1) Prohibition of arms dealing to Latin America in 1936
(2) the president as the sole organ
(3) what constitutes a unconstitutional delegation of authority to the President?
(4) There is a difference when it comes to delegation of foreign powers and domestic
powers. Reasons given:
(a) Historically, states never had foreign affairs power (not necessarily true) so no
foreign affairs power was carved out for them from Constitution
(b) Authority abroad inherently different from domestic authority
(c) Certain foreign affairs powers are deemed inherent in the Executive power
(5) Main idea: federal government speaks on behalf of the US, so that President is the
sole organ of the nation with respect to foreign affairs
(6) Gets lots of leeway, with few strings attached
(7) Sharp contrast with domestic relations in 1936, court found two other delegations to
the President unconstitutional. No more unconstitutional until Steel Seizure Case.
(8) Argument today more about what the President can do without Congressional
authority have moved way beyond what he can do WITH its authority
(9) Implicit Congressional approval
(a) Case example: Dames and Moore v. Regan
(b) In the Steel Seizure case, lack of approval or disapproval meant prohibition
(c) Here, lack of approval or disapproval means authorization
(d) Totally different spin on Congressional silences

Bill Funk Constitutional Law Outline Fall 2005 17

c) Privileges

i) US v. Nixon
(1) Interbranch controversy can the president legally fail to respond to a subpoena?
Can parties within the executive branch sue another executive?
(2) Does separation of powers preclude judicial review? And does executive privilege
supercede a subpoena?
(3) Main idea: Executive privilege does exist, and it is implicit in the Constitution
(a) Privilege applies to state secrets (foreign affairs, national security, etc.)
(b) Also, to deliberative process privilege name case for this reason
(i) The need for advice provided to superior executives to be candid, honest,
with no fear of statements being made public
(4) Implied, inferred constitutional privilege derived from duty of president to see that
laws are executed
(5) What can overcome this privilege?
(a) Needs of criminal process the interest of the prosecutor
(b) Deliberate privilege could be harmed, but it is not often that candor required of
advisors will be headed off by the threat of a criminal proceeding in the future
(c) Materials to be examined in camera, in secret chambers. Only relevant
information has potential to be made public.
(6) Balancing test
(a) Military or diplomatic secrets or general interest in confidentiality?
(b) Pending criminal trial or a civil action?
(7) The idea that a constitutional privilege of immunity can be trumped by a criminal
proceeding is a little ridiculous considering that the common law immunities of
attorney/client relationships or priest/confessor relationships are still standing
(8) Privilege issue comes up all the time when Congress tries to get information from the
executive branch. Is privilege stronger against the legislative branch than the judicial
branch? Question never really answered.f
(a) Congress has means of enforcing requests for information: ie, civil contempt
(i) Lock in Congressional jail for refusal to testify before Congress
(ii) Different than criminal contempt can get out of the jail just for complying
with request

ii) Other executive privilege

(1) Lower levels of government may have same privilege, to promote free and frank
discussions between advisors and their bosses
(2) Qualified immunities of departmental secretaries, federal executive branch officials
and employees if defendant had objectively reasonable grounds to believe that the
conduct was lawful

iii) Privilege from civil suits not related to official actions : Clinton v. Jones
(1) Sexual harassment claim
(2) Does not argue pure immunity from suit President immune from suits arising out of
duties as president Nixon v. Fitzgerald. To be held personally liable would:
(a) Interfere with ability to do job (distraction of suit)
(b) Ability to act swiftly and with confidence in office because of fear of later suit
(3) Clinton just wants to delay suit until after office -- suit is a distraction from official
presidential duties
(a) 3-4 years wait is deemed unacceptable
(b) Prejudice to plaintiff loss of evidence, witnesses becomes more likely
(4) no man is above the law President to be treated like anyone else
(a) However, special accommodations may be made for his needs and schedule
(5) With proper management, case highly unlikely to occupy a great deal of time
Bill Funk Constitutional Law Outline Fall 2005 18
(a) Did court really do a good job managing the case? No. Maybe this power
should not be placed in the hands of a mere district court.
(b) Real world funding of suit came from Clintons political enemies. Cant
ignore this truth.
(c) Creation of a constitutional crisis leave separation of powers issues to the
hands of district court judges?
(6) Both a functional and formalist opinion
(a) Functionalist because similar suits against presidents were not problems in the
(b) formalist because of designation of president as an ordinary citizen

5) Legislative v. Executive Authority

a) Focusing on limits to Congress when it comes to interfering with executive powers
b) Domestic affairs
i) INS v. Chadha
(1) Formalist decision (widely criticized) resulted in about 250 laws being declared
(2) Legislative veto unconstitutional (here, as it relates to Immigration Reform Act)
(a) Chadha petitions US not to deport him
(b) Attorney General agrees, submits to House and Senate committee to confirm
(c) Committee does not confirm vetoes
(d) Challenged: one house cannot veto decision of Attorney General
(3) Why unconstitutional?
(a) Clearly a legislative action on part of only one house
(b) Legislative action: that which has the purpose and effect of altering the legal
rights, duties, and relations of personsoutside of the Legislative Branch.
(c) To be constitutional, legislation must meet requirements of both:
(i) bicameralism
(ii) presentment
(d) bright line answer with no factors to weigh
(4) Concurring opinion calls legislative act judicial in nature and therefore
unconstitutional on structural grounds
(5) Whites functional dissent delegation to executive branch (ie to INS) results in too
much imbalance among the branches. This growing power can be countered with the
legislative veto. Not a violation of separation of powers, but a refinement of separation
of powers and an action consistent with purposes and principles of separation of
(6) Case or controversy? DOJ had long believed one-house veto to be unconstitutional,
just needed a case before it to declare it thus, and it brought this case before the
Supreme Court to do so

ii) Bowsher v. Synar, 1986

(1) Separation of powers concerns arise when Congress attempts to participate in the
removal of officials who perform executive or judicial functions, thereby creating a risk
that Congress will usurp authority that belongs to another branch.
(2) However, Constitution is almost completely silent on removals short of impeachment
(3) Constitutionality of Balanced Budget Act, committees, and the Comptroller General
Burger opinion
(a) Executive and legislative committees study deficit or surplus and present
findings to CG
(b) CG makes recommendations to President about what programs to cut to
balance the budget
(c) CG
Bill Funk Constitutional Law Outline Fall 2005 19
(i) appointed by President with approval of Senate
(ii) Congress can remove him by impeachment, or by joint resolution (both
houses and signed by President) for cause
1. Joint resolution is a law
2. Concurrent resolution is not a law
3. House and Senate resolutions are not laws
(4) Unconstitutional because
(a) CG is an agent of Congress is a legislative official
(b) but is executing laws when he decides what to do about the budget and makes
recommendations to President regarding the budget
(c) President is unable to unilaterally remove him
(d) some executive branch officials work so closely with the Prez that their
services must be terminable at will.
(e) Separation of powers issue Congress is making laws, and CG is executing
them, but Congress can remove him from office. Undue influence by Congress
is a possibility.
(5) Majority opinion turns on removal for cause, which it finds to be a broad standard
liable to be abused. Usually, removable for high crimes and misdemeanors, treason,
(a) Congress can impeach anyone without making them an agent of Congress,
but CG is a different case
(b) Formalist opinion
(6) Concurrence by Stevens
(a) Removal alone not the deciding factor, but all facts taken together point to that
CG is agent of Congress
(b) Functional
(7) Dissent by White
(a) Also functional. How else to deal with deficit? Also, the CG is more of an
independent office than anything else in the government.
(b) Looks closely at how the system really works

iii) Morrison v. Olsen, 1988

(1) Prior cases
(a) Meyers Case, 1926
(i) legislation requiring approval by Senate before an official is fired is
declared unconstitutional (passed unicamerally in the days of Andrew
Johnson by a Congress of the opposite party as the president)
(ii) rejected: president should have pure power over an executive
(b) Humphreys Executor
(i) for an official who is mostly legislative, but has quasi-judicial and quasi-
executive functions (agency head), Congress may impose reasonable
limitations on firing
(ii) for cause only
(c) Bowsher v. Synar
(2) Office of Independent Counsel challenged, but ultimately held constitutional.
(3) Violation of appointments clause?
(a) principal officers must be appointed by president
(b) Exception clause: Congress can determine a way to appoint inferior officials
(leeway; chance to limit Presidential powers)
(i) By president alone
(ii) By department head
(iii) By courts of law

Bill Funk Constitutional Law Outline Fall 2005 20

(iv) Constitution allows Cross-branch appointments as long as they are not
incongruent with functions and powers of those branches (because the
appointers have no knowledge of the field of the inferior officer)
(c) congress can never directly appoint an officer can only make
recommendations to the president or to appointment officials
(d) court appoints IC; argued that only Prez can do this because IC is superior
officer. It is determined that IC is inferior because:
(i) who IC reports to; are they a superior officer?
(ii) scope of duties and whether or not they make policy
(iii) tenure and removal provisions
(4) removal for cause constitutional limit on presidential power
(a) here, a purely executive officer, but with a limitation placed on firing by
Congress for cause only
(b) How is this reconciled with previous cases in which there was a clear rule that
this was unconstitutional?
(c) there are certain circumstances in which Congress may place limits on firing
namely, when there are legitimate reasons for immunizing even a purely
executive official from political influence
(d) without the ability to limit the presidents removal authority, it would be
impossible for Congress to create independent agencies and offices that
operate free of partisan influence and executive control
(e) for cause limitation used most often in conjunction with the vesting of removal
authority in someone other than the President
(5) a clear test becomes a fuzzy test does the for cause limitation on the ability of the
president to remove someone from office interfere with core Presidential functions?
(a) Removal for cause doesnt impede the ability of the President to take care
that the laws are faithfully executed
(b) Here, AG can still remove the IC power not completely stripped from
executive branch
(c) Is there anyone now who the President can still fire without cause?
(i) probably foreign affairs officials only

6) Federalism and Congressional Powers the 10th Amendment

a) all powers not delegated to the federal government or prohibited to the states, are reserved
for the states.
b) To what extent does federalism trump the otherwise legitimate exercise of national powers?
c) History of amendment
i) Its creation: was it designed to make laws directly applicable to individuals while
exempting the states, or was it meant to regulate individuals in addition to the states?
ii) as long as under the commerce clause, there was an effective limitation on the reaching
of the federal government, the 10th amendment didnt have to be implicated
iii) Now, is more of an issue because Congress has great power under Commerce Clause
d) Early case examples: Maryland v. Wurtz and National League of Cities
i) Wickard v. Filburn had seemed to end federal check on exercise of national power
ii) However, NLC turns tide the other way; finds 10th amendment limitation of regulation of
state employees
iii) Four part test
(1) .
(2) .
(3) traditional governmental functions
Bill Funk Constitutional Law Outline Fall 2005 21
(4) .
e) Are matters traditionally regulated by the states not to be regulated by federal government?
Court throws this idea out in Garcia v. SAMTA. Were problems applying the old rule.
i) Ie, if government does a function that private sectors also do ie, railroad, buses
ii) Government already perfectly entitled to regulate private entities under Commerce Clause
f) New Rule:
i) Throws out four-part test
ii) If the activity regulated is otherwise subject to Commerce Clause restrictions, it
may also be regulated in regards to the States. End of test!
iii) However, states may still not be regulated as States.
iv) Ie: federal minimum wage and work week standards
g) 10th amendment in essence totally ineffective. It is a political argument rather than a legal
argument and is pretty much legally unenforceable. Federalism to be protected through
political process rather than judicial processes.
h) Anti-commandeering principle. Specific directives to a state to do something are
i) Case example: NY v. US
(1) Commandeering = no choice on part of states
(2) States cannot be treated as government agencies
(3) Policy argument confuses political accountability at both state and federal levels
(4) Unconstitutional even under necessary and proper clause
(5) May be unconstitutional under guarantee clause in a republican form of government,
the people of a state have the right to laws in response to their initiatives, not those of
the federal government. (Not used in reasoning because long ago the guarantee
clause was held to be a political argument rather than a legal one.)
ii) Ways to make a state do something that are constitutional:
(1) Conditions on federal government spending
(2) Pre-empt state law with federal legislation (supremacy clause)
(3) cooperative federalism choice of adopting federal program and direct federal

7) Dormant Commerce Clause and Privileges and Immunities

a) There are limitations on states that arise directly out of the Constitution
i) Ie, Art. I Sec. 10 no treaties, money, nobility, troops, ambassadors, etc.
ii) Art IV
(1) Full faith and credit
(2) Privileges and immunities
(3) Extradition
(4) Escaping slaves to be returned to owners
iii) 14th amendment states cannot deny a person of their life, liberty, or property without
due process of law unless there is a really, really good reason for doing so. (does not say
b) Active Commerce Clause limitation on states by CC when Congress passes legislation
c) Dormant Commerce Clause limitation on states although Congress has not passed a law
under the CC; applies strictly to interstate commerce, not other activities substantially
affecting interstate commerce, etc.

Bill Funk Constitutional Law Outline Fall 2005 22

d) Does CC alone impose restrictions on the states? The text of the Constitution does not
support this, but concept has existed since days of John Marshall, with its theory changing
over time
e) Today, this theory is defunct. The only reason there is a dormant commerce clause is judicial
precedent and stare decisis.
f) It is the second most litigated con law issue besides standing.
g) It is the only arena in Con Law where the judiciary can declare behavior unconstitutional, and
Congress can declare it constitutional, and have the judiciary uphold constitutionality.

h) Two basic kinds of dormant commerce clause cases, each with its own test:
i) A law that facially discriminates
(1) On its face against out-of-staters
(a) Case example: Philadelphia v. NJ
(b) Balancing test: is law a protectionist measure, or enacted for the benefit of
legitimate local concerns?
(i) The goal here is not protectionism but a legitimate interest; however, it is
being achieved by illegitimate means.
(ii) Needs to treat NJ and other states alike
(iii) Law of this nature isnt necessary to meet goals.
1. Strict scrutiny discriminatory law is unconstitutional unless there is
no other way to meet state ends.
2. must employ less discriminatory means if possible
3. only one case has ever passed strict scrutiny test Maine Bait Fish
(2) Market Participant Doctrine
(a) When government acts not as a regulator, but as a participant, it can pick and
choose who it does business with and constitutionally exclude out-of-staters
a justification of conduct that would otherwise violate dormant commerce
(b) This is because private market entities can also discriminate all they want
(c) Almost the only arena where the government gets a free pass to act as a
private individual
(d) Applies only in very narrow circumstances: when government is a pure
participator, and not a regulator at all
(e) Case example: South Central Timber Co. v. Wunnike

ii) A law that is facially neutral

(1) A law may be neutral on its face, and neutral in purpose, but be so indirectly
burdensome on interstate commerce that it is declared unconstitutional under the
(2) Case example: Pike v. Bruce Church, Inc. (cantaloupe case)
(a) Cantaloupe Test: where the statute regulates evenhandedly to further a
legitimate local interest, and it effects interstate commerce only incidentally, it
will be upheld unless burden of it outweighs the benefits.
(b) Different than rule of strict necessity followed for facially discriminatory laws
challenger of the law must prove burden to interstate commerce, rather than
defender of law showing no other way to achieve the goal besides a
discriminatory measure.
(c) Do not have to address alternate methods of achieving same goal at all.
(3) Weighing the burden against the benefit is easy in some cases, where there is no real
benefit at all; more difficult where law provides significant benefit, especially in regards

Bill Funk Constitutional Law Outline Fall 2005 23

to public safety. How to measure value of safety against dollars lost in interstate
(4) Burden and benefit a matter of fact, found in trial or by the legislature, which the
court may or may not assume is true.
(5) Other case examples: Bibb v. Navajo Freight Lines (mudflap case); Minnesota v.
Clover Leaf Creamery Co. (milk carton case)

i) Privileges and Immunities

i) Given in two parts of Constitution 14th amendment, and Art. IV section 2
ii) The one at issue is the original what exactly does it mean?
iii) the citizens in each state shall be entitled to all privileges and immunities of citizens in the
several states.
iv) Interpreted to give rights to out-of-state citizens in a manner slightly different than the
dormant commerce clause
(1) Limited to citizens, not persons so it doesnt apply to aliens, or non-natural persons
like corporations
(2) No market participant doctrine although there is no theoretical reason why it should
not also apply here, it just doesnt
(3) Congress cannot overrule the courts decision regarding violations of P and I
v) Case example: United Building Trade and Construction Co. v. Camden
(1) Local law contractors employed on city projects must have 40% of their employees
be Camden citizens
(2) Discriminates against both NJ and out of state persons but any discrimination
against out of state will trigger the P and I clause
(3) What constitutes a Privilege or Immunity?
(a) A fundamental right
(b) Such as the right to engage in a trade or profession
(4) Test: Strict Scrutiny.
(a) if law is discriminatory with respect to Privileges and immunities, there needs
to be a very good reason why that discriminatory law was made.
(b) Protectionism is not a legitimate reason.
(c) If there is a legitimate reason, is the goal unable to be achieved in any other
(5) Basically, same test as for DCC
vi) Privileges and Immunities argument may be used against both facially discriminatory and
facially neutral laws

Bill Funk Constitutional Law Outline Fall 2005 24