Con Law I Outline Ross

Con Law I – Ross – Fall 2014
Tara Bush
Con. Law: Ross Fall 2014
I. Brief History of The United States Constitution
Articles of Confederation: While state government were given open-ended grants of

authority, the national government had only those power “expressly delegated” in the Articles.
This was the governing law before the revolution that remained into the post revolution until the
Constitution was ratified in 1788.
Characters of the Articles of Confederation (1774-1788) Different from the

Constitution (List from Board).
Problems with Articles:
(1) No Executive.
(2) No Judiciary.
(3) One-House Legislature.
(4) No Taxing Power.
(5)No Power to Regulate Interstate Commerce.
(6) Amendment Only With Consent of All States.
****The Articles of Confederation stressed a smaller less powerful government. A weak central
system and state sovereignty.
Convention of 1787: People thought that there needed to be a stronger central government so
each state sent representatives to draft a constitution.
-The Constitution was then reviewed in each state by Constitutional Conventions that
represented the community to determine whether or not to ratify the constitution. All states
(except NC and Rhode Island) ratified the Constitution.
****Who is the ultimate arbitrator of the Constitution?

-The people, not the United States Supreme Court. So it all starts with the people.
Popular sovereignty- ultimate political power “resides in the people.” People are the ultimate
authority. (central principle of US Constitution).
People elect President and Senate  President appoints US Supreme Court  Supreme Court
Justices confirmed by Senate  Thus, “the people” choose the US Supreme Court
***When Congress enacts legislation, they are enacting laws that we hope are Constitutional
however if:
Congress enacts law  Found unconstitutional by US Supreme Court  Congress goes
back to drawing board  People don’t like the law, so they vote out Congress  New
laws made
Tara Bush
Types of Constitutional Arguments: (I don't think this is really important but may be a
listing short answer?)
****Strongest court opinions combine several types of arguments.
(1) Textual argument- finds meaning and operation of provisions of the Constitution by
looking at the meaning of the words included in the text.
****Ross said always start with the text.
****We look to the dictionary or what the framers meant.
Ex. The President must be 35 years old.
(2) Argument from context- focuses on the use of words in other parts of the Constitution to
throw light on the clause under consideration.
(3) Argument from structure and relationship- looks at the broader objects or purposes of
the Constitution and asks how the Constitution must be interpreted to achieve those purposes.
(4) An argument from precedent- Looks to judicial decisions (highly persuasive precedent)
(5) An argument from history- examines the historical problem that the constitutional
provision was addressing.
-Original intent of Framers-
-Original meaning- how the words would have been commonly understood at the
time.
-Larger historical context and grievances that led to the proposal- look at the
larger social and political problems the provision sought to address.
-History as experience leading to practical wisdom- Use history to show what
should be avoided. (negative precedent)
-History as a tradition used to limit broad constitutional phrases-
-The arc of history as revealed by the text of the constitution-
(6) An argument from ethical aspirations- looks to ethical aspirations reflected by the
language of the Constitution as a guide for interpretation.
-ex. "all men are created equal" and "endowed with certain unalienable rights."
(7) Public Policy- Seeks to serve the needs of the people. Certain interpretations are
necessary to promote some social good.
****Ross said whenever possible focus on the text.
II. Powers and Limits of the Federal Courts: Article III of the United
States Constitution.
ARTIICLE III, SECTION 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and establish. The judges, both of
the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at
stated times, receive for their services, a compensation, which shall not be diminished during
their continuance in office.
Creates Supreme Court only and gives justices Lifetime Tenure as long as they have
good behavior. Also enables Congress to create other federal courts .
-What is the only basis for removing federal judges?

Tara Bush
****Impeachment:
(1) Treason
(2) Bribery
(3) High Crimes and misdemeanors
***Judges Salaries cannot be cut under article 3.
***Article 3 doesn't tell us how many justices there are...currently there are 9 (set by
statute).
Judiciary Act of 1789: Basic foundation and charter of our judicial system. Filled in the gaps
contained in Article III Section I by ordaining and establishing the lower federal courts.
****So Article III Section I created the Supreme Court and enabled Congress to establish
the lower federal courts through the Judiciary Act of 1789 under the power vested to it
under Article III Section I.
****Under Article III and the Judiciary Act of 1789 there were two federal courts: The
Supreme Court and the Federal Circuit Courts.
-Until 1891 the Supreme Court Justices served on the Supreme Court and the Circuit
Court. This was strange b/c you often appealed to the same Judge. This was also hard on
the Justices b/c travel ect.
**** In 1891 Congress created the three tier system of today by abolishing the Circuit
Court and replacing it with the US Court of Appeals. (added district court as well).
ARTICLE III, SECTION 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made, under their authority;--
to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty
and maritime jurisdiction;--to controversies to which the United States shall be a party;--to
controversies between two or more states;--between a state and citizens of another state;--
between citizens of different states;--between citizens of the same state claiming lands under
grants of different states, and between a state, or the citizens thereof, and foreign states, citizens
or subjects. (FEDERAL JURISDICTION)
In all cases affecting ambassadors, other public ministers and consuls, and those in which a
state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases
before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact,
with such exceptions, and under such regulations as the Congress shall make. (exceptions
clause)
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be
held in the state where the said crimes shall have been committed; but when not committed
within any state, the trial shall be at such place or places as the Congress may by law have
directed.
Tara Bush
Section 2 deals with jurisdiction of the federal court. (gives us federal question jur.)
****Original jurisdiction- the court of first instance.

-Supreme Court has original jurisdiction over cases affecting ambassadors, other public
Ministers and Consuls, and those in which a State shall be Party.
****Appellate jurisdiction-
-the Supreme Court has appellate jurisdiction over all other federal cases mentioned in
Section 2.
-doesn’t specify the number of Supreme Court Justices (a statute does).
-Chief Justice’s title: Chief Justice of the United States

Implies administrative powers
The “CEO” of the federal court system.
****The United States Supreme Court has original jurisdiction or is a trial court when
there is a dispute between two states named as parties.
**** Section 2 gives Congress the power to limit the Supreme Courts Appellate
Jurisdiction.****===> The Exceptions Clause.
-The Supreme Court's review is discretionary. They will usually grant review over circuit
splits for statutory interpretation and cases dealing with the constitutionality of state
statutes/legislation.
II. The Courts ordained and established by congress under the power granted to it by Article
3 of the U.S. Constitution:
U.S. Supreme Court

I
------------------------------------------------------------------------------------------------------------------
I I I I I
U.S. Court of Appeals Court of Appeals for the Federal Circuit U.S. Court of Military appeals [State Courts] District of
I I I Columbia
U.S. District Court Court of Claims [Claims against Fed. Gov.] Military Trial Courts Court of
U.S. Bankruptcy Court Court of International Trade Appeals
U.S. Tax Court Court of Veterans Appeals I
D.C. Trials
Court
III. Judicial Review:
****The power of the Supreme Court to review and determine the constitutionality and
therefore, the validity of the acts of the other branches of government.
4 Corners of Judicial Review

1. Marbury- federal statute; said to have established judicial review in the U.S.
2. Martin v. Hunter- federal question in state courts
3. Cohens- state courts on criminal matters
4. Fletcher- state court decisions that violate the Constitution
Tara Bush
Precedent leading up to Marbury v. Madison: Essentially support for Marbury
1) Federalist No. 78- discussed judicial review.

-Alexander Hamilton—Federalist No. 78: Expounded a notion that the judicial review was
embedded in the Constitution as a means of checking national power.
 Stated that the judiciary has neither the power of the purse (congress) nor the power of
the sword (President) and thus is the “least dangerous” branch of the new government.
The judiciary has neither force nor will but only the power of judgment—it could not
even enforce its judgments without the assistance and cooperation of the executive
branch.
****Hamilton is trying to say people shouldn't fear the Judiciary despite lifetime
appointments ect. b/c they do not have money or an army.
****Essentially the judiciary is dependent on the power of the people, congress, and the
president.
 Argued that the only way to ensure that Congress and the President act according to the
Constitution is via the medium of courts of justice, “whose duty it must be to declare all
acts contrary to the manifest tenor of the Constitution void.”
 Argued that it was illogical for members of the judiciary to swear an oath to uphold the
Constitution yet force them to interpret and apply statutes that would be in manifest
opposition to Constitutional principles.
 Argued that the interpretation of the laws “is the peculiar province of the courts.”
Therefore, it belongs to the courts to interpret and apply the Constitution to acts of
Congress. That the Constitution represents the will of the People and an act of Congress
in opposition to the Constitution would be an act against the power of the People. Judges
are governed by the People, not Congress.
 Federalist Paper 10 also supports judicial review.
2) Dr. Bonham's Case (English, 1610): An English court held that an act of Parliament was
repugnant to the unwritten English Constitution. Judicial review has never been exercised in
the now U.K.
****So really no judicial review in England.
3) Hayburn Case (1792): Supreme Court was invited to rule on whether certain non-judicial
duties could be assigned by Congress to the federal circuit courts in their official capacity.
Another federal circuit indicated the law was constitutional. After Congress repealed the
statute the U.S. Supreme Court indicated that the statute would have been unconstitutional
had it imposed non-judicial duties on the judges in U.S. v. Todd. First time SC addressed
justiciability
****This seems to be determining Constitutionality.
4) Champion and Dickason v. Casey (1792): Federal Circuit Court held that a state statute
impairing contractual obligations violated the Contract Clause of the U.S. Constitution.
(nullified a state law).
5) Hylton v. United States (1796): The U.S. Supreme court sustained the constitutionality of
a federal statute imposing an excise tax on carriages.
Tara Bush
****Important: If the Court can say that a statute is constitutional they can also say
that it is unconstitutional!
6.) Calder v. Bull (1798): U.S. Supreme court held that a state law permitting the legislature
to order new civil trials did not violate the federal constitution's prohibition against ex post
facto laws.
****Ex post facto only applies to criminal law not civil law. So Civil statutes can be
retroactive.
****He said this is a very important case.
-Black letter law: Ex Post Facto laws are constitutional as long as they are civil not
criminal law.
7) Throughout the 1780s and 90s state courts in numerous states (Virginia, N.Y.) reviewed
the constitutionality of state statutes.
Marbury v. Madison (1803- Marshall)
Background:
****Many people thought the Constitution gave the central government too much
power/excessive power. As a result, political parties were formed...so begins the two
party system.
 Original party conflicts: how much power did the federal government have?
o Federalist Party- favored a strong, centralized government.
o Republican party- favored states’ rights and a weaker central government, led by
Thomas Jefferson.
 John Adams followed Washington (who hated political parties) and was the first president
to belong to a political party (Federalist).
 John Adams then lost to Thomas Jefferson and freely gave Jefferson power/office.
 Before losing power, the federalist enacted the 1801 Judiciary Act to increase the judiciary
in an attempt to maintain power.
 In the last days of his office commissioned and signed many officers of peace but many of
the commissions were not delivered.
Facts:
-Marbury was one of the Justices of the Peace commissioned by President Adams in the last
hours of his presidency.
-His commission was not delivered before Jefferson’s inauguration. Marbury sued James
Madison, the new Secretary of State, for his commission and filed the suit in the Supreme
Court. (Jefferson administration ignored the suit).
o Justice Marshall was the original Secretary of State who failed to deliver the
commission. Should he have recused himself?
****Marbury was seeking a writ of Mandamus to force the secretary of state to deliver
the commission.
- Writ of mandamus- an injunction from a higher court to a lower court or government
official telling a public official that they must do something/do their duty.
Tara Bush
Issue 1: Does Marbury have a right to the commission? OR was there a wrong?
-Yes, Marbury had a vested legal right to the commission when the commission was
signed. So there was a wrong.
-The Court concluded that “It is . . . decidedly the opinion of the court that when a
commission has been signed by the President, the appointment is made.”
Issue 2: Do the laws afford Marbury a remedy?

-Yes, where there is a vested legal right there is a remedy.
Issue 3: What is the remedy? What would be the appropriate remedy?

-A Writ of Mandamus ordering a public official to do his duty and deliver the
commission would be the appropriate remedy.
Issue 4: The Jurisdiction Issue: Does the U.S. Supreme Court have the
authority/jurisdiction to grant the writ of mandamus in this case?
-Having determined that Marbury was entitled to the commission and that the writ of
mandamus was the appropriate remedy, the Court turned its attention to the question of
jurisdiction.
-Marbury argued that the Court had original jurisdiction over the claim pursuant to § 13
of the Judiciary Act of 1789 which states: The Supreme Court shall have the power to
issue writs of prohibition . . . and writs of mandamus in cases warranted by the
principles and usages of the law to . . . any person holding office. Gives Supreme Court
original jurisdiction over this type of case.
-However, Article III: Gives appellate jurisdiction to this type of case.
Held: The mandamus cannot be issued and the part of the judiciary act granting the
Supreme Court original jurisdiction to issue writs of mandamus is unconstitutional.
-In sum, the Marshall Court decided that it only had appellate jurisdiction over
mandamus petitions pursuant to Article III of the Constitution.
*****This is the first time that the Justices had struck down a federal statute as
unconstitutional.===> Doctrine of Judicial Review.
Justification/Support offered to support Judicial Review: (bolded= my notes)
A. Marshall argued that the Constitution imposes limits on government powers and that
these limits are meaningless unless subject to judicial enforcement. Borrowing from
Federalist No. 78, Marshall stated, “The powers of the legislature are defined and
limited; and that those limits may not be mistaken or forgotten, the constitution is
written.”
B. Marshall also argued that it is inherent to the judicial role to decide the
constitutionality of the laws that it applies. “It is emphatically the province and duty
of the judicial department to say what the law is.”
C. Marshall then argued that the Court’s authority to decide cases arising under the
Constitution implied the power to declare unconstitutional laws conflicting with the
basic legal charter.
D. It is the power or right of the Judiciary to interpret the constitution and strike
down laws that are repugnant to the constitution.
Tara Bush
E. Marshall defended judicial review on the ground that judges take an oath of office
and that they would violate that oath if they enforced unconstitutional law.
F. Finally, Marshall argued that judicial review is appropriate because the
Constitution is superior to the laws of the United States under Article VI which
makes the Constitution the “supreme law of the land”—the Supremacy Clause
argument.
II. Argument Against this Decision/Case:

-Ross said that a Writ of Mandamus is a remedy not a class of persons or actions. A
Writ of Mandamus is simply a means of exercising jurisdiction.
III. The Brilliance of John Marshall’s Opinion

A. Marshall established judicial review while declaring unconstitutional a statute that
expanded the power of the judiciary. The particular statutory provision invalidated
was a minor power of the court and his holding was a victory for his opponents BUT
VASTLY expanded the Supreme Court's power through the doctrine of judicial
review.
B. Also, politically, Marshall gives Jefferson a victory by denying the commission so
that Jefferson could not defy the court because Jefferson got what he asked for. Yet,
John Marshall did more than simply rule in favor of the Jefferson administration; he
used the occasion to establish the power of the judiciary and to articulate a role for the
federal courts that survives to this day.
****In Ross's words Madison handed them a small victory but established the far greater
federalist principle of judicial review.
****BIG PICTURE FROM THIS CASE: The First time that the Supreme Court stated
that an act of Congress is unconstitutional. THE SUPREME COURT HAS THE POWER
TO REVIEW and STRIKE DOWN FEDERAL STATUTES/LEGISLATION AS
UNCONSTITUTIONAL.
IV. The Scope of Federal Judicial Review over State and Local Actions
****Fletcher v. Peck (1810): The Supreme Court can review the Constitutionality of State
Legislation.
- The first time an act of state legislature is struck down. Struck down a Georgia statute
that violated the Art. I Contracts Clause
-Marbury established the power of the Supreme Court to review the constitutionality of federal
executive actions and of federal statutes. Two other cases—Martin v. Hunter’s Lessee and
Cohens v. Virginia—were key in establishing the Court authority to review state court decisions.
Although the Constitution does not grant this power expressly, the Judiciary Act provided for
Supreme Court review of state court judgments. Section 25 of the Act allowed the Supreme
Court to review state court decisions by a writ of error to the state’s highest court in many
situations.
Tara Bush
Martin v. Hunter’s Lessee (1816 – J. Story)
-Virginia confiscated Lord Fairfaxes land which was left to Martin.

-Virginia the sold land to Hunter who sold the land to Hunter's Lessee.
- There was a treaty between G.B. that provided for the return of Nationalists land that
had been confiscated. (Denny Martin).
-Martin brought an action to get title to the land.
-The VA Ct. App. ruled in favor of Hunter's Lessee and, in essence, in favor of the state’s
authority to have taken and disposed of the land—a construction of the treaty. The
Supreme Court issued a writ of error and reversed the Virginia court.
Issue: Does the Supreme Court have appellate jurisdiction over state court decisions
involving federal law? YES
RULE: The Supreme Court has appellate jurisdiction to review the constitutionality
of state judicial proceedings.
Policy: If the Supreme Court could not be the final say in how treaties are
interpreted, then there would be mass chaos for how these treaties were applied.
Where does this power come from?

(1) Judiciary Act of 1789 § 25: That a final judgment or decree in any suit, in the highest court
of law or equity of a State in which a decision in the suit could be had, where is drawn in
question the validity of a treaty or statute of, or an authority exercised under the United States,
and the decision is against their validity; or where is drawn in question the validity of a statute
of, or an authority exercised under any State, on the ground of their being repugnant to the
constitution, treaties or laws of the United States, and the decision is in favor of such their
validity, or where is drawn in question the construction of any clause of the constitution, or of a
treaty, or statute of, or commission held under the United States, and the decision is against the
title, right, privilege or exemption specially set up or claimed by either party, under such clause
of the said Constitution, treaty, statute or commission, may be re-examined and reversed or
affirmed in the Supreme Court of the United States upon a writ of error.
****Virginia tried to argue that section 25 of the Judiciary Act was unconstitutional
because it intruded on states powers. The court said that it is not unconstitutional because
Article 3 gives the states the power to interpret treatises but also gives the Supreme Court
appellate jurisdiction to review the states interpretations. The court assumed that the
Constitution granted the supreme court the final authority regarding the constitutionality
of treatises, statute, federal laws, ect. They stated that the very structure of the constitution
the Supreme Court is granted this power. This is the case because it is important that the
U.S. speaks with one voice. It would wreck havoc for states to just make their own decisions
on the validity of treatises.
(2) Construed from Article 3 of the constitution: The Constitution presumed that the Supreme
Court could review state court decisions because the Constitution creates a Supreme Court and
gives Congress discretion whether to create lower federal courts. But if Congress chose not to
create lower federal courts, the Supreme Court would still exist and would have no function if
not to review state court decisions. Supreme Court review is essential to ensure uniformity in the
Tara Bush
interpretation of federal laws the very nature of the Constitution, the contemporaneous
understanding of it, and many years of experience all established the Supreme Court’s authority
to review state court decisions.
****Important: This increases the power of the federal government v. the states and
increases the power of the Judiciary v. Other branches of the government. Finally, Martin
gets the land so this facilitates economic development by protecting vested property
interests (the state cannot take your land and sell it.).
****This case protects vested property interests.
Cohens v. Virginia (1821 - J. Marshall)
-Two brothers were convicted of selling DC lottery tickets in Virginia, in violation of

Virginia law. The defendants sought review in the U.S. Supreme Court because they
claimed that the Constitution prevented them from being prosecuted for selling tickets
authorized by Congress. Virginia argued that the Supreme Court had no authority to
review state decisions in general but criminal cases especially.
****So this is different b/c this is a criminal not a civil case. It is more intrusive on state
sovereignty to review criminal cases b/c the state is a party and the state's prosecution of
criminals is a police power.
RULE: The United States Supreme Court can review the constitutionality of state
criminal decisions.
-The Court reaffirmed the constitutionality of § 25 of the Judiciary Act and held that the
Court has power to review state court judgments—including criminal judgments. The
Court thus declared that criminal defendants could seek Supreme Court review when they
claimed that their conviction violated the Constitution.
-In the end, the Court ruled in favor of Virginia and upheld the convictions because states
have the inherent power to make it illegal to sell lottery tickets under the police powers.
****Marshall once again extended the power of the judiciary while ruling in favor of
Virginia so that Virginia could not defy the court. Gives Virginia a victory and prevents
embarrassment of the court while growing the Court's power.
What are the states Police Powers? The police powers grant the states the authority/power to
legislate and promote the public health, safety, welfare, and morals of the citizens.
3 Main Accomplishments of the Marshall Court:
(1) Enhanced the power of the Federal Government v. the States (Martin v. Hunter's Lessee)
(2) Enhanced the power of the Supreme Court v. the legislature (Marbury)
(3) Protected vested property interest/rights (Martin, Marbury, Fletcher v. Peck)
****So we now have the doctrine of Judicial Review.
Cooper v. Aaron (1958)

Tara Bush
-Governor of Arkansas openly defied the order of Brown v. Board of Education refusing
to comply with school desegregation. It contended that it was not bound to follow the
orders of the Supreme Court.
RULE: The Federal judiciary is supreme in the exposition of the law of the
Constitution. The Constitution is the supreme law of the land so the U.S. Supreme
Court's interpretation of the Constitution is the supreme law of the land.
****Supremacy Clause (Art. 6): The U.S. Constitution is the supreme law of the land.
****Under Article 6 all public officials are bound by the Constitution.
****This case invokes Marbury in stating that the U.S. Supreme Court is the supreme interpreter
of the Constitution.
V. Adequate and Independent State Ground Doctrine

-If a state court has decided on an issue based solely on state law, and if the state decision
does not conflict with a federal constitutional provision, statute, or treaty, the Supreme Court
has no jurisdiction to review/decide the case.
-The state law is “independent” of federal law in the sense that it doesn’t conflict with federal
law
Michigan v. Long (1983) (Not especially important)
-Mr. Long was stopped and his car was searched.

-The police found marijuana in his trunk and he was convicted.
-The Michigan state court overturned the decision by finding that the search was
unconstitutional.
-The U.S. Supreme Court reviewed the case and considered whether the Michigan
Supreme Court's decision was based on federal constitutional decisions or independent
Michigan state constitutional grounds.
Issue: Whether the U.S. Supreme Court had jurisdiction to review state court judgments,
which concern federal issues, and which are not clearly based on an adequate and
independent state law ground? YES
OR
Did the decision of the Michigan Supreme Court (finding illegal search of car as
prohibited by both 4th Amendment and Michigan Constitution) rest on adequate and
independent state grounds? (No)
RULE: The federal constitution is a floor not a ceiling on individual civil liberties
and the States can give individuals more rights under their state constitutions as
long as doing so does not come into conflict with federal rights provided under the
federal constitution. (the rights cannot collide).
Tara Bush
****Historically, the Supreme Court greatly expanded civil liberties under the Bill of
Rights and provided MORE liberties than state constitutions.
****Then the state courts began to interpret state constitutions more generously than
Federal Courts
***ISSUE HERE: Can a state court interpret its state constitution unconstitutionally
under the federal constitution?
-YES, if the rights collide.
ex: There is a federal statutory right to free press and fair trial. The US Supreme Court
held that sometimes Free Press right can collide with the fair trial right. So if a state
constitution tried to open up all proceedings in a trial to the press this would be
unconstitutional under the federal statute (the state right to press would collide with the
federal right to fair trial).
RULE: If a state court has decided on an issue based solely on state law, and if the state
decision does not conflict with a federal constitutional provision, statute, or treaty, the
Supreme Court has no jurisdiction to decide the case.
OR
Rule: When a state court decision fairly appears to rest primarily on federal law, or to be
interwoven with federal law, and when the adequacy and independence of any possible
state law ground is not clear from the face of the opinion, the Court will accept as the most
reasonable explanation that the state court ruled the way it did because it believe the
federal law required so.
****What must the state court do?

-The state must make it clear that they are creating these rights under the State’s
Constitution and law, not the federal Constitution
-The presumption is that there’s no independent state ground unless the opinion
expressly states that there is. The state court, therefore, must make clear that it is not
relying on federal constitutional grounds.
 See chart on page 356-57 for Independent/Adequate Analysis

 If state ground conflicts with the federal Constitution or federal law, then the state ground
would not be independent. US Supreme Court would have jurisdiction.
VI. Congressional Control over Federal Judicial Review:

The Exceptions Clause: Article III Section 2: “the Supreme Court shall have appellate
jurisdiction . . .with such Exceptions, and under such Regulations as Congress shall make.”
****So Congress can confer appellate jurisdiction and Congress can remove jurisdiction
under the Exceptions Clause.
Tara Bush
Question Presented: How far can Congress go under the exceptions clause? Could
Congress remove all appellate jurisdiction and make the Supreme Court essentially a trial
court?
****Ross said it says exceptions suggesting that congress can partially remove power not
totally remove power.
****This question has only come up one time.
Ex Parte McCardle (1868)
-Habeas Corpus: Writ by the court demanding the incarcerated person to appear before
the court.
-Habeas Corpus Act of 1867: Allowed a state prisoner to file Habeas Corpus Petitions
in Federal Court.
-There was a fear that African Americans and pro-reconstructionists would be
treated unfairly in southern state courts.
-McCardle was arrested for violating the Military Reconstruction Act, and filed a writ of
Habeus Corpus in federal court challenging the constitutionality of the Military
Reconstruction Act under the 1867 Act.
-Congress feared that if the U.S. Supreme court reviewed the case it might lead to the end
of reconstruction.
-However, prior to the Court making a decision or hearing the case Congress took away
the U.S. Supreme Courts Appellate Jurisdiction granted under the 1867 Act..
-Issue: Was Congress appropriately exercising its authority to make exceptions to the
appellate jurisdiction of the Supreme Court?
-Held: This was an appropriate exception to the Supreme Court's jurisdiction under
the exceptions clause.
****Ross said the weight of authorities suggests that if Congress tried to take away the
Court's appellate jurisdiction to hear Free Speech Cases it would create a disparity in the
law and would not fly.
****This was a very small portion of the Court's Habeas Corpus power (Withdrawal of the
federal court systems jurisdiction over state claims) and the Court had only had the power
for around a year.
****Essentially, this was a very small withdrawal of Habeus Corpus rights.
VI. Case or Controversy: Justiciability:

-Article III Section 2: Case or Controversy Clause: The Constitution limits the
judicial power of federal courts to actual “cases in controversy.” Essentially, a
case must involve an actual dispute. Courts must determine that they have
jurisdiction to hear the case. Jurisdiction is granted both by the Constitution and by
statute. Even after accepting jurisdiction, courts may decide that the subject matter is
inappropriate for judicial consideration—what courts call nonjusticiable.
-The words “cases or controversy” limit the courts’ jurisdictions to questions

presented in an adversary context and in a form historically viewed as capable of
Tara Bush
resolution through the judicial process.
JUSTICIABIITY
1. The term justiciability refers to a body of judicially created doctrines that define and
limit the circumstances under which an Article III federal court may exercise its
constitutional authority, including its authority to engage judicial review.
2. Article III, § 2 extends the federal judicial power to cases or controversies arising
under the Constitution, laws, and treaties of the United States. Per this language,
technical requirements arise.
1. The court will not issue mere advisory opinions.
2. The court will not decide a case that falls within the scope of a political
question.
3. Parties asserting claims must have adequate standing to sue.
4. A claim must be ripe and may not be moot.
****Advisory Opinions****: The Supreme Court cannot issue an advisory opinion.

-The wording of the Case or Controversy Clause precludes advisory opinions.
-The policy behind this lies in the fact that Congress has the power to interpret the
Constitution itself, so why should Congress "punt" to the S.C. This would undermine our
system of checks and balances!
Prohibition of Advisory Opinions

1. An advisory opinion is an opinion issued by a court that does not have the effect of
resolving a specific legal case, but merely advises on the constitutionality or
interpretation of a law.
2. The case or controversy requirement precludes the federal judiciary from issuing purely
advisory opinions. The core of Article III’s limitation on federal judicial power is that
federal courts cannot issue advisory opinions. Many states allow their judiciaries to
issue advisory opinions to the legislature but the federal judiciary is not.
3. Justifications for prohibiting advisory opinions
a. Separation of powers is maintained by keeping the courts out of the legislative
process. The judicial role is limited to deciding actual disputes; it does not
include giving advice to Congress or the President.
b. Judicial resources are conserved because advisory opinions might be requested in
many instances in which the law ultimately would not pass the legislature.
c. The prohibition helps ensure that cases will be presented to the Court in terms of
specific disputes, not as hypothetical legal questions.
4. Criteria to avoid being an advisory opinion
a. There must be an actual dispute between adverse litigants.
b. There must be a substantial likelihood that a federal court decision in favor of a
claimant will bring about some change or have some effect—a federal court
decision is purely advisory if it has no effect.
5. Advisory opinions distinguished from declaratory judgments
****Ross said Declaratory Judgments are very important.
****A Declaratory Judgment is a remedy just like money damages or an
injunction. In a Declaratory Judgment the Court declares the rights and
Tara Bush
obligations of the parties.

****Essentially a party seeks a declaratory judgment stating that they do not have
to pay.
-For example, an insurance company would seek a declaratory judgment
saying that they do or do not have to pay a claim. If the Court issued a
declaratory judgment that they had to pay and the insurance company
refused the other party could sue and the declaratory judgment would serve
as issue preclusion forcing the court to award damages or an injunction.
a. While advisory opinions are prohibited in the federal judiciary, declaratory

judgments are not. Suits for declaratory judgment are justiciable in the federal
courts so long as they meet the requirements for judicial review.
b. Federal and State Courts have a statutory duty to issue Declaratory Judgments.
c. Parties uncertain of their legal rights want courts to determine those rights before
injury is done. Otherwise, they might have to violate a law to bring a test case or
forego possible rights because of a fear of litigation. By issuing declaratory
judgments, courts can offer preventive relief.
d. Declaratory judgments are binding adjudications that establish the legal right and
other relations of the parties without providing for or ordering damages or
enforcement—they only decide legal rights, not damages or the right to coercive
relief.
-The declaratory judgment act gives federal courts the power to declare the
rights and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought, in a “case of actual
controversy.” Any such declaration shall have the force and effect of a final
judgment or decree and be reviewable as such.
****Ross said this is constitutional because there is a controversy because the
parties are arguing and there will certainly be a case.
****How do you get to court under a declaratory judgment act (each state
has one): Just like any other case! You file complaint/pleadings.
****Ross said that he asked about declaratory judgments on the last test and
by saying a party was seeking a declaratory judgment should it be
dismissed? NO, a declaratory judgment is one of the 3 remedies available to
parties.
****Ross said Declaratory judgment actions are usually brought together
with other remedies and are very important and useful.
6. The Ashwander v. TVA “Brandeis Rules”—Justice Brandeis’ attempt to articulate the

Court’s rules to limit its exercise of judicial review. THESE ARE VOLUNTARY RULES
OF SELF RESTRAINT. The rules are designed to avoid needless and potentially damaging
conflicts with Congress.
(1) Adverseness: The Court will not pass upon the constitutionality of legislation in a
friendly, non-adversary proceeding, declining because to decide such questions “is
legitimate only in the last resort, as a necessity in the determination of real, earnest and
vital controversy between individuals.
(2) Ripeness: The Court will not anticipate a question of constitutional law in advance of
Tara Bush
the necessity of deciding it.

****Judges should not say more than they have to say.
(3) Broadness: The Court will not formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.
**** The Court should not decide things/issues that they do not have to decide.
(4) The Court will not pass upon a constitutional question if there is also present some
other ground upon which the case may be disposed of.
****Dispose on the narrowest claim possible.
(5) The Court will not pass upon the validity of a statute upon complaint of one who fails to
show that he is injured by its operation.
****Case or Controversy clause.
(6) The Court will not pass upon the constitutionality of a statute at the instance of one who
has availed himself of its benefits.
****Same idea as (5).
(7) Avoidance of constitutional issues: When the validity of an act of the Congress is drawn
into question, it is a cardinal principle that the Court will first ascertain whether a
construction of the statute itself is fairly possible by which the question may be avoided.
****Federal legislation has a presumption of constitutionality. So if the case can
be decided on another grounds the court should do so.
Political Question Doctrine:

-Chief Justice Marshall declared that “questions in their nature political . . . can never be
made in this court.” The term “political question” is generally used to encompass all
questions outside the sphere of judicial power.
-The Political Question Doctrine was developed to honor Separation of Powers.
Basically, the court is saying that the question should be left to the other branches and
the Judiciary should let the other branches sort the question/issue out.
ii. Criteria for political questions: Elements of a Political Question:

(1) A textually demonstrable constitutional commitment of the issue to a
coordinate political department (in text of the constitution) (i.e., the legislative
power is accorded to Congress).
(2) A lack of judicially discoverable and manageable standards for resolving the
question. (Too cumbersome for the court to decide.)
(3) The impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion.
(4) The impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due a coordinate branch of government.
(5) An unusual need for unquestioning adherence to a political decision already
made.
(6) The potential of embarrassment from multifarious pronouncements by various
departments on one question.
****The Political Question Doctrine does not say/mean that Courts cannot decide
issues that have political implications or controversies. The Political Question
Doctrine means that if the constitution itself says that the issue is supposed to be
Tara Bush
decided by a certain branch of government other than the judiciary then it is a

political question!
Luther v. Borden (1849) (He said he is not testing on this)

- This case created the Political Question Doctrine.
- The Court was called upon to determine which government was the legitimate
Government of Rhode Island.
- The Court held that this was a political question for Congress.
-"It rests with Congress to decide what government is established in the State.”
Powell v. McCormack (1969 – J. Warren)
-Powell was a NY congressmen elected in 1966 who was not permitted to take his
seat due to deceitful travel expenses.
-Powell filed suit in federal court, arguing that the House could only exclude him if he
failed to meet the standing requirements of age, citizenship, and residence contained
in Article I.
-Respondent argued that a “textually demonstrable commitment to a co-ordinate
branch” existed in the House’s adjudicatory power to determine Powell’s
qualifications. Therefore, they argued no justiciability because it was a political
question for Congress.
Rule: The Court could decide the issue/question because the Constitution does
not textually give Congress the power to exclude based on corruption.
****So essentially, the Constitution does not preclude the court from deciding
the issue/question.
****If Congress had excluded him based on his qualifications then the Court
could not have reviewed the decision because it would have been a political
question for congress. THIS WOULD BE A TEXTUALLY DEMONSTRABLE
CONSTITUTIONAL COMMITMENT.
****The constitution states that there are certain qualifications listed that allow
House to Exclude members if they fail to meet the requirements; However, the court
said the issue here was not his qualifications. The question was whether his behavior
allowed him to be excluded. THIS WAS A QUESTION OF CONSTITITIONAL
INTERPRETATION because the constitution did not specifically give the House the
power to exclude except for a failure to meet the mentioned requirements.
-Essentially, there was only a textually demonstrable commitment of Congress to
judge the qualifications expressly set forth in the Constitution.
****THEY COULD REMOVE NOT EXCLUDE HIM.
Baker v. Carr (1962)
****This Case stands for a lack of judicially discoverable and manageable

standards for resolving the question. (Too cumbersome for the court to decide.)
-Issue: There was a huge disparity between Congressional voting districts.
Tara Bush
- For many years, the court would not address these issues because it was a political
question (lack of judicially discoverable and manageable standards for resolving the
question).
-The court was essentially saying if we find this unconstitutional how would we give a
remedy?
****In this case the Court, rejecting political question logic, said that Equal Protection
Clause was being denied to disadvantaged voters and adjudicated this issue.
Goldwater v. Carter (1979)

****This case stands for:
(3) The impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion.
(4) The impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due a coordinate branch of government.
(5) An unusual need for unquestioning adherence to a political decision already
made.
(6) The potential of embarrassment from multifarious pronouncements by various
departments on one question.
- The U.S. refused to recognize the communist government of China and only recognized
the non-communist government. (so there were 2 Chinas)
- Carter then recognized the communist China and derecognized the non-communist.
-This caused great controversy and forced the government to abrogate a defense treaty
with the non-communist government.
- Goldwater attempted to bring this action claiming that it was unconstitutional for Carter
to abrogate the treaty without congressional consent.
Held: The Court stated that this was a political question and that the Court
was not going to get involved.
****Ross said we need to know this case for the last four factors listed above.
Nixon v. United States (1993 – J. Rehnquist)
-Former Mississippi district court judge (Nixon) convicted of false statements before a
federal jury.
-A committee of Senators conducted impeachment hearings and reported their findings to
the full senate and Nixon was impeached.
-Nixon sued alleging that Senate Rule violated the constitutional grant of authority to the
Senate to “try” all impeachments because it prohibited the whole Senate from taking part
in the evidentiary hearings.
Held: There was a textually demonstrable constitutional commitment granting the

Senate final authority regarding impeachment issues (affording the Senate the sole
right…) and the word "try" is open to interpretation so the judiciary should not review.
Further, other factors (lack of finality, difficulty of fashioning relief) made this a political
question in which the judiciary should not appeal.
Tara Bush
**** The Constitution grants the sole power to adopt Articles of Impeachment to the
House, and gives the Senate the sole power to try all impeachments. By doing so, there
is no mention of judicial review of such actions.
-No history in constitutional conventions or evidence that alluded to the possibility of
judicial review in the context of impeachment powers.
-Impeachment designed to be the only check on the Judicial Branch by the
Legislature. If Judicial Branch could review, it would undermine checks and
balances logic.
****The court wanted to respect the Senate and the Senates procedures were not
inconsistent with the word "try."
****This demonstrates respect for the Senate.
DeFunis v. Odeggard (1974 – J. Burger)

- Law student case – stands for mootness
- Holding: An actual controversy must exist at stage of appellate or certiorari review,
and not simply at the date the action is initiated.
STANDING
Generally: Questions of standing posit whether the individual bringing a cause of action
is a proper party to invoke the court’s jurisdiction as to some or all of his claims.
General Elements of Standing: At an irreducible minimum, Art. III requires the party
who invokes the court’s authority to show:
(1) Injury in Fact: that the he personally has suffered some actual harm or threat
of injury as a result of the putatively illegal conduct of the defendant;
(2) Causation: that the injury fairly can be traced to the challenged action; and
(3) Redressability: that the injury is likely to be redressed by a favorable decision.
Federal Standing
(1) Private Litigation: In order to bring a lawsuit one must have a stake in the action.
The person must have "a dog in the fight."
-Semi-exceptions from having direct stake:
(1) 3rd party beneficiaries
(2) Association or organization on behalf of members: may have standing in some
circumstances.
(3) Surrogates: Parents, Guardian, administrators of estates, etc.
****Essentially, one cannot be an interficious intermeddler.
(2) Federal Constitutional Standing [Three Major Categories]
(a) Individual Standing: In order to have individual standing a putative plaintiff

must have:
1. Injury in Fact to the Plaintiff himself: that he personally has suffered
some actual harm or threat of injury as a result of the putatively illegal
conduct of the defendant;
Tara Bush
2. Causation: the injury must be fairly traceable to the Defendant’s

actions; and
3. Redressability: the injury must be redressable by the court.
City of LA v. Lyons (1983)

-Lyons was pulled over, and during the arrest he was placed in a
chokehold that violated the rules of LA police for excessive force.
-Lyons filed suit and wanted an injunction to stop the force from
using the chokehold again.
-Court dismissed the case, stating that Lyons lacked standing.
While it happened to him once, there is no real threat of such an
event happening to HIM again.
****Court held that Lyons could sue for his own injury but he
did not have standing to sue for an injunction to stop future
choke holds where it was not clear that he would be put in a
choke hold in the future.
****Essentially, Lyons could sue for his choke holds but not
future choke holds that happen to others.
****This case deals with injury in fact.
(b) Citizen Standing: Unique personal injury required

- Persons do not have standing to sue to enforce a constitutional provision
when all they can show or claim is that they have an interest or have
suffered an injury that is shared by all members of the public.
-To have Citizens standing the P. must have a unique personal injury.
****Ross said there is a huge overlap w/ Individual standing and that
they are pretty much the same.
Schlesinger v. Reservists Committee to Stop the War (1974)

-Plaintiffs brought suit challenging the military Reserve status of
several members of Congress under the Incompatibility Clause,
Art. I, § 6 cl. 12, which prohibits members of Congress from
holding any other federal office.
-DISMISSED the claim, holding that standing to sue may not be
predicated upon an interest of the kind alleged here which is held
in common by all members of the public, because of the
necessarily abstract nature of the injury all citizens share.
(c) Taxpayer Standing: For a taxpayer to have taxpayer standing:

(1) The taxpayer must have a personal injury (Richardson)
(2) The action must be related to Article I Taxing Power (Americans
United)
(3) The action must relate to a Specific limitation in the Constitution.
Specific limitation in the Constitution on how congress can spend $.
-practically limited to the Establishment Clause (Flast)
Tara Bush
-In practice, taxpayer standing must relate to a connection between the

Taxing and Spending Clause, and the Establishment Clause (law may
not establish religion).
-Conceivably, there are other constitutional provisions designed to limit
the taxing and spending power, the Court has suggested that the
Establishment Clause is the only constitutional provision that will satisfy
the second half of the double nexus requirement.
(3) Statutory Standing

- Allowed only if a statute confers standing and plaintiff can claim individualized
harm
- Many federal statutes allow taxpayers/citizens to sue if there is individualized
harm
State Standing
(a) Private Litigation – same as federal

(b) Constitutional Standing
1) Individual – usually same as federal
2) Taxpayer – often broader than federal
3) Citizen – usually same as federal
(c) Statutory – same as federal
Flast v. Cohen (1968 – J. Warren)
-Federal taxpayers brought suit to enjoin expenditure of federal funds for the
purchase of textbooks and other teaching materials to religiously oriented schools,
authorized by the Elementary and Secondary Education Act of 1965.
-The United States Supreme Court REVERSED the order of the lower court, holding
that taxpayers do have standing on the rare occasions satisfying a two‐part test.
1. First, a taxpayer will be the proper party to allege the unconstitutionality of
exercises of Congressional power under the Taxing and Spending Clause (Art I.
§ 8 cl. 1), and under this clause only.
2. Second, a taxpayer must show that the challenged enactment exceeds specific
constitutional limitations upon the exercise of taxing and spending and not
simply that the enactment is generally beyond the powers of Congress.
- Because the Establishment Clause of the First Amendment prohibits the making of
any law respecting the establishment of a religion, taxpayers in this case have a
legitimate grievance against the spending of federal dollars in religious institutions,
educational or not.
****First and last case on taxpayer standing.

**** Reflects the philosophical disposition of the Warren court to let people into the
courthouse.
**** Flast has never been expanded.
**** A taxpayer can only challenge Congressional federal spending if:
Tara Bush
(1) The taxpayer has suffered a personal injury.

(2) The Action relates to Article I taxing power.
(3) The challenge must show that the enactment exceeds a specific
constitutional limitation upon the exercise of taxing and spending.
Hein v Freedom (2007 – J. Alito)

-Taxpayers claimed that certain conferences held as part of the Presidents Faith-Based
and Community Initiatives program were unconstitutional.
- Claimed standing b/c the conferences were funded by the General Executive branch
appropriations.
Held: No taxpayer standing under the Flast test because the taxpayers were not
challenging any specific congressional enactment or legislation.
****Limited Flast to Congressional appropriations and said that Flast does not
apply to the executive branch.
****To have taxpayer standing the taxpayer must challenge a specific
CONGRESSIONAL enactment or legislation.
Valley Forge Christian College v. Amers. United for Separation of Church & State, Inc. (1982
– J. Rehnquist)
-The Secretary of Defense closed Valley Forge General Hospital in a cost‐cutting
measure.
-Per the Federal Property and Administrative Services Act of 1949, the Secretary of
Health, Education and Welfare conveyed free‐of‐charge a 77‐acre tract of the former
federal land to Valley Forge Christian College, a non‐profit educational institution
affiliated with the Assemblies of God.
-Americans United brought this taxpayer action against the college, contending that the
conveyance violated the Establishment Clause of the First Amendment. The district court
granted summary judgment to the defendants and dismissed the suit.
-Held: Americans United did not satisfy the first prong of the Flast test for taxpayer
standing. Indeed, source of the complaint was not any Congressional action of taxation or
spending; rather, it was the decision of an executive agency to dispose of a parcel of
property. The transaction in no way involved Congress’s taxing and spending power.
**** Congress authorized the executive branch to give land to religious
organization.
****Even though congress authorized the executive department to give land to the
organization this was not congress acting under its taxing and spending power.
****Must be a direct congressional expenditure.
****Ross said the concept is fairly simple: Taxpayer standing does not exist unless
Congress itself has spent money on religion.
MOVING ONTO: THE POWERS OF CONGRESS:

Chapter 2: National Power: Article I and the Powers and Limits of Congress:
-2 Senators per state.

Tara Bush
-House of Representatives = A states number of representatives is based on population of the

state.
-Under Article I, the Vice President is the presiding officer in the senate. He does not have a vote
but decides when there is a tie.
-Ross said this is very odd b/c it blurs separation of powers.
(1) How do we amend the Constitution? (TEST)

-2/3 vote of both houses of Congress and ratification by 3/4 of the states.
(2) What is the only part of the Constitution that cannot be amended? (TEST)
- Article 5 says that no state shall be deprived of equal suffrage in the senate without
consent.
- Article 5 said that slavery could not be abolished for 20 years.
-The Supreme Court cannot deny a hearing of a case where it has original jurisdiction.
Appellate jurisdiction- Supreme Court has complete discretion. Writ of certiorari must be
granted by at least 4 Justices.
ARTICLE I SECTION 8. (THESE ARE THE POWERS OF CONGRESS)

-The Congress shall have power to lay and collect taxes, duties, imposts and excises, to
pay the debts and provide for the common defense and general welfare of the United
States; but all duties, imposts and excises shall be uniform throughout the United States;
-To borrow money on the credit of the United States;
-To regulate commerce with foreign nations, and among the several states, and with the
Indian tribes;
-To establish a uniform rule of naturalization, and uniform laws on the subject of
bankruptcies throughout the United States;
-To coin money, regulate the value thereof, and of foreign coin, and fix the standard of
weights and measures;
-To provide for the punishment of counterfeiting the securities and current coin of the
United States;
-To establish post offices and post roads;
-To promote the progress of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective writings and discoveries;
-To constitute tribunals inferior to the Supreme Court;
-To define and punish piracies and felonies committed on the high seas, and offenses
against the law of nations;
-To declare war, grant letters of marque and reprisal, and make rules concerning
captures on land and water;
-To raise and support armies, but no appropriation of money to that use shall be for a
longer term than two years;
-To provide and maintain a navy;
-To make rules for the government and regulation of the land and naval forces;
-To provide for calling forth the militia to execute the laws of the union, suppress
insurrections and repel invasions;
-To provide for organizing, arming, and disciplining, the militia, and for governing such
part of them as may be employed in the service of the United States, reserving to the
Tara Bush
states respectively, the appointment of the officers, and the authority of training the
militia according to the discipline prescribed by Congress;
-To exercise exclusive legislation in all cases whatsoever, over such District (not
exceeding ten miles square) as may, by cession of particular states, and the acceptance of
Congress, become the seat of the government of the United States, and to exercise like
authority over all places purchased by the consent of the legislature of the state in which
the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other
needful buildings;--And
-To make all laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in the government of
the United States, or in any department or officer thereof.
ARTICLE I SECTION 9. (PROHIBITIONS/LIMITATIONS ON CONGRESS).

The migration or importation of such persons as any of the states now existing shall think
proper to admit, shall not be prohibited by the Congress prior to the year one thousand
eight hundred and eight, but a tax or duty may be imposed on such importation, not
exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or invasion the public safety may
require it. No bill of attainder or ex post facto Law shall be passed.
Article 1, §§ 7-8 enumerate express powers granted to Congress. Significant among these
are:
(1) Override presidential vetoes;
(2) Originate expenses (specifically, to the House);
(3) Regulate Commerce (the Commerce Clause);
(4) Govern the Post;
(5) Raise revenues (Tax & Spending Clause);
(6) Print Currency;
(7) Govern admiralty and maritime;
(8) Declare War (War Powers Clause);
(9) Raise and support the army/navy;
(10) Govern D.C.; and
(11) Make all laws necessary and proper in executing the above powers (Necessary &
Proper Clause).
IMPLIED CONGRESSIONAL POWER: It’s Nature and Extent

Context: Bank of the United States
-At the Philadelphia convention, James Madison proposed the Congress be given the
power to grant charters of incorporation in cases where the public good may require
them.
-Benjamin Franklin impliedly supported Madison’s proposition through his suggestion
that Congress be given the power to build canals. Rufus King of Massachusetts opposed
Madison’s motion, though, calling the proposed power “unnecessary.” The convention
ultimately defeated the motions of both Madison and Franklin.
- In the debate over ratification, the charter of a national bank was one of the primary rifts
among supporters and opponents.
Tara Bush
- Jeffersonian Republicans, the states’ rights crowd, opposed the charter of a bank.
Under Jefferson’s reading of the necessary and proper clause, Congress could only enact
laws and create agencies which were absolutely necessary, not simply those which may
be convenient. In addition to the constitutional argument, Jeffersonian Republicans
opposed the bank on philosophical grounds. These were agrarian people; they lived in a
world of barter and trade, and were ideologically opposed to contemporary capitalism (as
well as any federal debt).
- Alexander Hamilton, a prominent Federalist and proponent of the national bank,
managed to win the support of President Washington and the Congress.
Purpose of the First National Bank:
1) Power to Tax – must have somewhere to put tax money, however, state banks
were unstable, therefore they needed somewhere to put the money
2) Congress Spending Power – needs a central location to draw funds in order to
have a uniform system of payment
3) Loans to Private Individuals – used to held build industrial enterprises (this
was controversial)
- As a compromise, Congress chartered the First Bank of the United States on a limited
term of 20 years. The charter expired in 1811, and renewal was defeated.
- Come 1816, though, revenues were low. The War of 1812 was a disaster, and the
United States needed credit. In order to serve this need, Congress chartered the Second
Bank of the United States.
Necessary & Proper Clause—Rational Relationship Standard First Declared

Constitution Grants Congress Implied Powers for Executing Express Powers
McCulloch v. Maryland (1819 – J. Marshall)
****Famous for granting the federal government the power to legislate laws that
are Necessary to carry out its enumerated powers.
- In 1816, Congress chartered the Second Bank of the United States, headquartered in
Philadelphia, PA, with one of several branches in Baltimore, MD.
-In 1818, the Maryland state legislature passed a statute levying taxes on all banks and
branches of banks not expressly chartered by the state of Maryland, including, of course,
the Bank of the U.S.
-James McCulloch, head of the Baltimore office of the Bank of the United States, refused
to pay the Maryland state tax.
-Maryland then brought this action against McCulloch seeking payment of the taxes and
McCulloch challenged the Maryland statute on constitutional grounds. Maryland
responded on constitutional grounds, contending that the charter of the bank exceeded
Congress’s powers under Article I. Both the trial court and the Court of Appeals found
for Maryland.
The United States Supreme Court Held:
(1) that Congress does have the power under the Constitution to incorporate a
bank, even though that power is not expressly enumerated in the Constitution, by
way of the necessary and proper clause; and
(2) that Maryland does not have the authority to tax an institution created by
Congress pursuant to its constitutional authority.
Tara Bush
-First, Marshall offered a structural argument, describing the Constitution as a

foundational charter that created a system of government designed to address problems of
national concern. While the specific grants of power marked the outlines of federal
authority, they did not account for unforeseen future contingencies. Because the people
want and expect the government to be effective, Marshall reasoned that the Constitution
vested Congress with the authority to select reasonable means through which to
exercise its constitutional responsibilities. These responsibilities expressly include
powers to tax, to borrow money, to regulate commerce, to declare and conduct war, and
to raise a military, all of which necessarily involve monetary concerns. Stemming from
these concerns, the charter of a Bank is proper.
-Second, Marshall offered a textual argument, focusing directly on the necessary and
proper clause, stating: “But the Constitution of the United States has not left the right of
Congress to employ the necessary means, for the execution of powers conferred on the
government, to general reasoning.” To Marshall, the clause’s diction and semantics were
not confining.
-Necessary does not mean “absolutely necessary.” He continued, stating: “To employ
the means necessary to an end, is generally understood as employing any means
calculated to produce the end, and not being as confined to those single means, without
which the end would be entirely unattainable.”
- Concluding, Marshall acknowledged that the powers of the government are limited, and
that those limits are not be disregarded. Within those limits, though, the Constitution
allows the legislature discretion, with the respect to the means by which the powers it
confers are to be carried into execution. “Let the end be legitimate,” he wrote, “let it be
within the scope of the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist within the letter and
spirit of the constitution, are constitutional.”
Notes on McCulloch
-McCulloch remains good law today. As such, Congress is vested with broad
discretion in choosing the means through which it will exercise its granted
powers.
-Commenting on the Tenth Amendment, which reserves for the states all the
powers not granted to the federal government, Marshall observed that the text
does not include the word “expressly.” -Hence, the federal government implicitly
has powers that are not expressly enumerated. Many of these powers, as we’ll see,
arise as natural outgrowths of the express powers. Others arise in response to
systemic change in society, etc.
-Ross considers an implicit power not granted to the federal government, but one
reserved to the states—the police power. Nowhere in the Constitution is it
expressly reserved to the states, but the grant of such is implied by silence. The
federal government, in turn, has no general police power.
- Ross further highlights the elliptical reasoning of calling something “legitimate,’
“appropriate,” or “in the spirit” of the constitution. These words don’t really mean
anything.
Tara Bush
- In giving a victory to Congress, Marshall cleverly curried political favor with an

otherwise contemptuous Congress. Once vocally opposed to judicial review,
Congress was glad to have the tool on its side here.
THE NATURE OF THE UNION REVISITED
States May Not Impose Add’l Qualifications for Congressional Candidates

U.S. Term Limits, Inc. v. Thornton (1995 – J. Stevens)
-Amendment 73 to the Arkansas Constitution, adopted in 1992 by general election,
denied ballot access to any federal Congressional candidate having already served three
terms in the U.S. House (six years) or two terms in the U.S. Senate (twelve years).
****Note: This was a State Referendum: The legislature refers to the people
by initiating the legislation then referring it to the people for the people to
vote on. (AL does not have this power)
-Initiative: The people initiate law and put it on the ballot. Begins with the
people and then goes to the ballot.
-Bobbie Hill, a member of the League of Women Voters, brought this action in state
court to declare the amendment invalid, arguing that it amounted to an unwarranted
expansion of the qualifications for membership as enumerated in the Constitution.
-Issue: Can states alter those qualifications for the U.S. Congress that are specifically
enumerated in the Constitution? NO
-Article I § 2 ”No Person shall be a Representative who shall not have attained to
the age of 25 years.” § 3 “No Person shall be a Senator who shall not have attained
to the age of 30 years.”
****Essentially, the state was adding a qualification not contained in the
constitution by setting a term limit.
Held: The Constitution vests the right to choose federal representatives not to the
States, but to the people. The Court further noted that sustaining Amendment 73 would
result in a patchwork of state qualifications for federal representatives, describing that
consequence as inconsistent with the uniformity and national character the Framers
sought to insure.
-The Court rejected Arkansas’ Tenth Amendment argument, which averred that the
power to proscribe qualifications on candidates was reserved to the States. The Court
reasoned that the Constitution created Congress; hence, a right that did not exist
before the Constitution could not feasibly be reserved to the States under the Tenth
Amendment.
****Essentially, the power to add qualifications (for term limits) is not within the
original powers of the States, and thus is not reserved to the States by the 10th
Amendment. Even if they had the original power, the Framers intended the
Constitution to be the exclusive source for qualifications for members of Congress,
divesting the States of any power to add qualifications.
****Rule: A state cannot impose an additional qualification on U.S. House Rep. or
Senators, even through the vote of the state people.
****Why? The U.S. Representatives and Senators represent the people of the
United States not just the people of an individual state.
Tara Bush
Out of Ross's Mouth: What do we get from this case?

(1) Term limits are dead.
(2) Where does the power reside? In the people of the U.S. as a whole, not an
individual states people.
THE COMMERCE CLAUSE: A Delegated Power

Art I., § 8 “Congress shall have Power . . . to regulate Commerce . . . among the several
states.”
Two Major Schools of Commerce Clause Interpretation:
(1) Empirical & Economic
-Posits whether activity is commercial and affects more than one state, or if
congressional regulation is reasonably related to regulation of commercial
activity. If yes, the Congress has the power to regulate the activity under the
Commerce Clause.
(2) Formal & Definitional
-Engages a closer reading of the text, generally seeking to limit the exercise of
Congressional power.
Matrix of Perspectives on the Tenth Amendment: Views on the 10th Amendment:

10th Amendment: "The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to the people.
(1) Truism/Tautology View:
-The Tenth Amendment is limited to its text. States retain only those powers not
given to the federal government. Viewing the Tenth Amendment as the only limit
on federal power, many argue that Congress can exercise all of its constitutionally
delegated commerce power, because the Tenth Amendment places no
independent limit on federal power.
(2) Structural/Dual Sovereignty View:
-The Tenth Amendment functions as an affirmative limit on federal power, much
like the First Amendment, reflecting the fact that the basic structure of the
Constitution limits federal power so as to protect state sovereignty.
Four General Categories of Activity that Congress can Regulate Under Commerce Power
(1) Channels of Interstate Commerce (roads, waterways, air):
- Embraces power to prescribe the rules of conduct to be applied to any activity
that can rationally be characterized as constitute interstate commerce.
- Congress may, on this basis, regulate the terms and conditions on which goods
or service sold interstate and may restrict the types of goods that can be shipped
interstate.
(2) Instrumentalities of Interstate Commerce (e.g., vehicles and machines that
facilitate interstate commerce)
- Includes the usual suspects of commercial travel and freight—railroads, airlines,
trucking companies, etc.
- Includes power to protect such instrumentalities from threats both interstate and
local.
(3) Economic activity that substantially affects interstate commerce or is related to it
Tara Bush
- Includes any economic activity that has a substantial relationship with interstate
commerce or that substantially affects that commerce.
- Operationally extends the commerce power to activities that are not themselves
part of interstate commerce, often called the “affecting commerce” rationale.
(4) Persons or things that move in interstate commerce
Ross on Commerce Clause & Federalism

- Our study of the Commerce Clause is as much about federalism as it is about
separation of powers.
- The Commerce Clause is a specific enumeration of federal power bestowed on
Congress, and residual powers in the area are left to the States. Note, however, that Art
I., § 10 expressly prohibits states from exercising select commerce powers.
-No state shall, without the Consent of Congress:
[2] lay an Imposts or Duties on Imports or Exports, except when necessary
for inspection laws . . .
[3] lay and Duty of Tonnage . . . or enter into any agreement with another
State.
Ross on The Dormant Commerce Clause [See full section below]

A doctrine that permits states to enact regulations that may affect interstate commerce
(1) if Congress has not enacted any contrary laws; and
(2) if the State regulations would not unduly interfere with the flow of interstate commerce.
Standards of Review:
(1) Rational Basis: Must be rationally related to a legitimate government interest.
Fairly low bar
High level of deference to Congress
Presumption of Constitutionality
Rational Basis- Used to examine ordinary social and economic legislation that
impacts citizens
1) State must have a legitimate purpose
2) The means need only be rational or reasonable to meet that purpose.
Rational basis is used to review legislation dealing with economic activity
including review of commerce clause issues!
****Ross said Rational basis is all we really need to know.
(2) Intermediate Scrutiny: Must be substantially related to an important government
interest.
(3) Strict Scrutiny: Must be narrowly tailored to a compelling governmental interest.
(less restrictive alternative)
MARSHALL COURT & THE COMMERCE CLAUSE
Congress Has Plenary Power Over Matters of Interstate Commerce, States May Not
Frustrate [Navigable Waters]
Gibbons v. Ogden (1824 – J. Marshall)
Tara Bush
-The State of New York granted Livingston and Fulton the exclusive right of steamboat
navigation on New York state waters.
-Livingston assigned to Ogden the right to navigate the waters between New York City
and ports of New Jersey. Ogden brought this action against Gibbons, seeking to enjoin
him from operating steam ships on NY waters in violation of his state‐granted privilege.
- Gibbons contended that his steamships were duly licensed by the Coasting Act of 1789,
which required federal registration of interstate vessels.
-Issues:
(1) Was steamship movement of passengers interstate commerce? YES
RULE: Commerce is defined as commercial activity generally, not just the
transportation of goods across state lines. The waters provide a channel of interstate
commerce between the states.
(2) Whether a state has the power to pass a law that impacts interstate commerce,
where the law directly contravenes existing Congressional statute? NO
RULE: Congress has exclusive power in regulating interstate commerce and a state
cannot pass statutes to regulate interstate commerce that is inconsistent with a
federal law under the commerce clause.
-No State may employ its police power, through channels of presumably concurrent
jurisdiction, to confer a privilege inconsistent with federal law.
****A state statute that comes into conflict with a Federal Statute governing
interstate commerce===> Federal law trumps state law.
NOTE: States can govern interstate commerce as long as there is no specific
limitation and Congress is silent/ it does not conflict with federal law. In this case, if
Congress had not enacted the coasting law then N.Y. could have done this under its
police powers.
RULE: Where the power of Congress is dormant, then the States are free to
regulate. Once Congress occupies the field (or wakes up), then the States must yield
and conform to whatever the Congressional regulation may be.
Because these waters provide a channel of commerce between/among states, Congress

has a legitimate interest in insuring uniformity of those waters’ regulation. States do not
have the power to regulate such phases of interstate commerce demanding proscription
by a singe authority— Congress. In this context, New York did not have the power to
grant an exclusive right to the use of state navigable waters inconsistent with the
Coasting Act, which licensed Gibbons to use those waters in his trade.
-Marshall confirmed both the broad expanse and the distinct limitation of Congress’s
commerce power, writing: “The genius and character of the whole government seem to
be, that its action is to be applied to all the external concerns of the nation, and to those
internal concerns which affect the States generally; but not to those which are completely
within a particular State, which do not affect other States, and with which it is not
necessary to interfere for the purpose of executing some of the general powers of the
government.” From this, States’ rights in inspection laws, safety regulations, and other
Tara Bush
local exercises of police power are affirmed. Both implicitly and explicitly, Marshall
recognizes the existence of a State’s internal commerce.
****The Marshal Court is famous for promoting a strong federal government and
expanding the powers of the federal government.
****After the Marshal Court came the Taney Court, which is famous for expanding the
power of the states by way of the police powers.
PREEMPTIVE EFFECT OF THE COMMERCE CLAUSE REVISITED

Police Power Doctrine – a State has undeniable and unlimited jurisdiction over all
persons and things within its territorial limits and could regulate its own population to
advance the heath, safety, and welfare of its people.
- Federal government has NO police power. It must have a constitutional
predicate.
- However, the federal government has acquired very close to a general police
power. The courts have construed the “commerce power” and “taxing power” so
broadly, that they have essentially become a police power.
Thin Line—Commerce & Police [Immigration to New York]
City of New York v. Miln (1837)
- NYC statute required vessels to report names, ages, and other info of all passengers
brought into the state (to prevent immigration of paupers)
Held: This was not commerce and a valid exercise of N.Y.'s police power. Under the
Gibbons case, this was interstate commerce, however, there was more at stake in this
decision. If the Court found that new York could not regulate the immigration of paupers,
then it would be hard pressed not to apply the same rule, in some future Commerce
Clause case, to Southern state laws regulating the in-migration or even the movement of
free blacks. The Court held that this was a police power, and the State could regulate it
however they choose.
****NOTE: If this was commerce, then N.Y. still could have acted b/c Congress had
not acted on the issue.
Congress May Delegate Commerce Power to States [Local Ports]

Cooley v. Board of Wardens (1851 – J. Curtis)
-Congress enacted legislation adopting all state legislation regulating ship pilots in the US
and granted states the power to enact legislation regulating pilots.
-In 1803, Pennsylvania passed a law requiring ships of a certain weight to hire a local
pilot before entering or leaving the Port of Philadelphia.
-Cooley violated the statute, and the Board of Wardens brought this action for recovery
of the requisite fine.
-Cooley challenged the statute, contending that it was not covered by the 1789 delegation
of power to ‘existing’ laws. Further, Cooley argued that Congress had exclusive control
over U.S. waters and that the statute was unconstitutional.
Issue: Whether the state legislation was unconstitutional in that it regulated
interstate commerce? No
Held: that the Commerce Clause does not deprive the States of all power to regulate
interstate commerce such that Congress cannot delegate the power through legislation.
Tara Bush
Except in those areas which by their nature require a uniform national rule, the states
retain a concurrent power to regulate local activities that affect interstate commerce
until such time as Congress might opt to regulate those matters itself. Such local
activities, after all, characteristically require diverse treatment.
****So Congress has acted but not in a way that preempts state action; in fact,
Congress allowed for state action on this subject.
****States exercise of Police Powers regulating interstate commerce was often

analyzed as valid if it did not come into conflict with a federal commerce clause
statute Prior to the 18th and 20th century. NOT ANYMORE! In the decades
following Cooley, the Court abandoned the view that there were any areas of local
economic activity over which the states and the federal government had concurrent
authority. Instead, the Court sorted the universe into two mutually exclusive realms.
If matters were subject to federal regulation, states were excluded; conversely, if
matters were subject to state regulation, Congress was excluded. In short, the Court
greatly expanded the enclave set aside for the states at the expense of Congress. See
below.
LIMITED VIEW OF THE COMMERCE CLAUSE: TURN OF THE CENTURY

Constricting Federal Power, Generally
- As noted above, the Courts of Marshall (1801‐1836) and Taney (1836‐1864) widely
recognized areas of concurrent jurisdiction, permitting Congressional regulation through
the Commerce Clause or, in its absence, State action through the police power.
- In the late 19th and early 20th centuries, though, the Court embraced a theory of dual
federalism, assigning subjects exclusively to the purview of the states and others
exclusively to the province of Congress. This era of constricting federal power came at a
time in American history when calls for federal action to ameliorate the harsh effects of
the industrial revolution were growing louder by the day. Nonetheless, the Court leaned
further and further into a formal, definitional reading of Constitutional text.
- In the wake of the New Deal, the Court returned to a more empirical, economic
approach, basing widespread economic regulations on a rational relationship with
commerce.
Context: Tangled Lines of Authority Before the New Deal

- During the 19th century, federal regulation of commerce was minimal. In response to
increasing regulation in the late 19th and early 20th centuries, though, the Court began to
assert that certain federal economic regulations affecting activities within a state were
beyond the power of Congress because the Court did not consider them to be regulations
of interstate commerce. Despite the traceable trend, Commerce clause decisions remained
inconsistent through the advent of the New Deal.
‘Transport’ Within Scope of Commerce Clause [Lottery Tickets]

Champion v. Ames (The Lottery Case) (1903 – J. Harlan)
-Champion, an express carrier, was criminally indicted for violation of the Federal
Lottery Act of 1895, which prohibited the transport of lottery tickets across state lines.
Tara Bush
-This legislation was passed to promote public morals, which is a police power of the
states.
-Champion challenged the statute, contending that it overreached Congress’s power to
regulate interstate commerce. Mere transport, he argued, was not commerce.
Issue: Was the federal prohibition a proper exercise of congressional power under
the Commerce Clause?
(a) Is a lottery ticket commerce?
Held: Yes! because the ticket holds economic value and is linked to a
broader economic value in the lottery. Essentially, it is worth something is
worth a lot more if you win.
Rule (my rule): Anything that has economic value constitutes
commerce, such as a lottery ticket.
(b) Congress is regulating because it is concerned with public morals (wants

to discourage lotteries) not b/c its concerned with regulating the
Commerce/Economics. Is this appropriate?
Held: YES, Congress’s power to regulate commerce is plenary—

complete within itself and only limited by the constitution. Deeming that
lottery tickets are averse to public morals, Congress may regulate the
transport of such parcels among the states. The Court rejects Champion’s
argument that the identification of this specific parcel is arbitrary, citing
Gibbons and the Court’s broad deference to the discretion of Congress.
The Court does acknowledge, though, that the plenary power may not be
used arbitrarily.
Rule (my rule): Congresses power to regulate interstate commerce is

plenary, and as long as the court finds that Congress is regulating
interstate commerce, the court will not opine into Congressional
intent.
McCray v. U.S. (colored oleomargarine is commerce) (1904)

- Congress enacted legislation banning colored oleomargarine to protect the dairy
industry.
- Held that oleomargarine is commerce. Stated that the court will not look into the
motives of congress because it is Commerce and Congress's power to regulate commerce
is complete within itself.
Hoke v. U.S. (prostitutes are articles of commerce) (1913)

- Court used Champion to justify upholding the Mann Act, which made it a federal crime
to transport women across state lines for immoral purposes.
-Held that prostitutes are articles of commerce because prostitution does deal with
economic value.
****Court refused to look at congress's intentions! Its commerce so Congress can
regulate.
****INFERENCE OF CONSTITUTIONALITY!
Tara Bush
Hipolite Egg Co. v. U.S. (Rotten eggs are articles of commerce) (1911)
-Prohibited adulterated food and drugs.
-Clearly articles of commerce.
-Motivated by police power type goal but court once again says O.K.
-INFERENCE OF CONSTITUTIONALITY!
F.E.L.A. Cases (Railroad Workers) (1908 & 1912)

- Federal Employers Liability Act is a federal statute that allows injured railroad workers
to have access to a special federal statute that makes it easier for them to recover than
under normal negligence law
- 1908 – SC struck it down because it did not allow itself to include workers provide in
interstate commerce. However, Congress went back and re-wrote it to include them, and
in 1912 the SC held that it was now Constitutional.
- This gives special advantages to railroad workers on recovering from employers.
- Essentially, the statute gave RR workers benefits in recovering under tort actions.
-Held: Congress can regulate people who are engaged in interstate commerce!
Houston, East & West Texas Railway Co. v. United States (1914 – J. Hughes)
- Shreveport, Louisiana lies just east of the border with Texas. Railways in Texas were
charging much more for shipment of goods westward into Texas than they were charging
for a shipment from Dallas and Houston eastward. The Interstate Commerce Commission
(ICC) brought suit, alleging that the rate differences negatively impacted interstate
commerce.
Issue: May the federal government regulate carriers engaged in intrastate commerce
where the same carriers engage in interstate commerce? Yes
Holding: Congress was granted the power to regulate interstate commerce, which it chose
to do through the ICC. This power extended to “matters having such a close and
substantial relation to interstate traffic.” Since the price discrimination adversely affected
interstate commerce, “it is immaterial … that the discrimination arises from intrastate
rates as compared with interstate rates.” Therefore, the railroads’ intrastate rates were
subject to regulation and the ICC order was valid.
Manufacturing’ Not Within Scope of Commerce Clause [Child Labor]

Hammer v. Dagenhart (1918 – J. Day)
- The KeatingOwen Act of 1916, otherwise known as the Child Labor Act, prohibited the
transportation in interstate commerce of goods produced at factories that violated certain
restrictions on child labor.
- Dagenhart worked at a cotton mill in North Carolina with his two minor sons, both of
whom were barred from employment at the mill under the Act.
- Dagenhart brought this action challenging the statute as beyond the scope of Congress’s
power under the Commerce Clause and seeking an injunction against its enforcement.
Held: Congress was attempting to exercise a police power through the commerce
clause, which was unconstitutional. The Child Labor Act fell beyond the ambit of
power afforded Congress under the Commerce Clause. Specifically, the Court read the
Tara Bush
Act not to prohibit the transport of any inherently dangerous goods, but rather to deter
and prohibit the conditions under which the goods were manufactured. The power of
Congress under the Commerce Clause to exclude certain goods or activities must hinge
on the nature of the goods themselves and the relationship of that nature with interstate
transportation. Manufacturing, in short, is not interstate commerce.
Regulation of manufacturing, an exercise of a police power, is a purely local activity, and
per the Tenth Amendment, such regulation is reserved to the States.
****Essentially, held that Congress was trying to regulate child labor and the
furniture was incidental and not inherently dangerous itself.
****Overruled by Darby
Progression to this point:

(1) Started with Gibbons and the Marshall Court==> Congress had a very broad
power under the Commerce Clause.
Next:
(2) Lottery tickets are commerce/ Congress can regulate the trade of Lottery tickets
(Champion)
****Note: the Court did not have to have an economic interest!
(3) Oleomargarine: Congress can regulate the trade/prohibit the trade of colored
margarine. (McCray)
(4) Prostitutes: Prostitutes were considered commerce because they were being
transported across state lines for an economic purpose (Hoke).
****Once again, it did not matter if Congress was regulating for a moral
purpose as long as congress was regulating commerce!
(5) Rotten eggs: Commerce (Hipolite)
(6) Congress can regulate intrastate commerce where the same carriers engage in
interstate commerce (Houston Railway)
(6) Hamer v. Daggenhart: Prohibited Congress from prohibiting child labor through
the commerce clause.
Ross on Distinguishing the Case Law

-So, we have four different regulations at work here:
1. Lottery tickets (Champion, constitutional);
2. Rotten food (Hoplite Egg, constitutional);
3. Prostitutes (Hoke, constitutional); and
4. Goods manufactured by children (Hammer, unconstitutional).
- In Hammer, the Court distinguishes the regulation at issue by claiming that it seeks to
control a process, not a product. The goods, though made by children, are not inherently
pernicious. For inherently pernicious products, the Commerce Clause can serve as a basis
for regulation.
- Under this logic, though, only the rotten food in Hoplite Egg should be controlled. The
lottery tickets, mere pieces of paper, are not inherently harmful. Women aren’t inherently
harmful either, though their careers might be. What gives? The Court was clearly more
interested in its desired result than the comprehensive logic of their argument.
Tara Bush
****Ross: "You can't really distinguish these cases and if one falls they should all
fall."
Emergence of a New (Old) View of the Commerce Clause
Labor Standards Within Scope of Commerce Clause [Affect, Minimum Wage]

United States v. Darby (1941 – J. Stone)
-The Fair Labor Standards Act of 1938 prohibited the shipment in interstate commerce
of certain products manufactured by employees who earned less than the minimum wage
or who worked more hours than a specified maximum.
-Further, the FLSA prohibited the employment of workers, at other than the prescribed
wages and hours, in the production of goods intended to be shipped in interstate
commerce.
-Darby, a lumber manufacturer, was arrested under the statute.
Rule: (1) Congress has the power to establish and enforce labor standards for the
manufacture of goods in interstate commerce, and (2) that the Supreme Court
cannot consider the motives and purpose of Congress in exercising its power under
the Commerce Clause.
****Congress has the power to regulate intrastate activities that have a
SUBSTANTIAL EFFECT on interstate commerce. (gave us the substantially effects
test for Commerce Clause analysis)
Held: Regarding the prohibition of interstate shipment of goods, the Court found no
difficulty in sustaining the law under the Commerce Clause alone, unaided by the
Necessary and Proper Clause. “While manufacture is not of itself interstate commerce,”
the Court wrote, “the shipment of manufactured goods interstate is such commerce and
the prohibition of such shipment by Congress is indubitably a regulation of the
commerce.” Even if the prohibition on interstate shipment was designed to compel in‐
state manufacturers to adopt federal standards and even if the prohibition had that effect,
the law was constitutional so long as it actually regulated interstate commerce. This
reasoning implicitly overrules Hammer.
-Regarding the direct regulation of manufacturing (wages and hours, etc.), the Court
found the regulation of the otherwise local activity a permissible exercise of the
commerce power under the Necessary and Proper Clause. The Court stated: “The power
of Congress over interstate commerce is not confined to the regulation of commerce
among the States. It extends to those activities intrastate which so affect interstate
commerce or the exercise of the power of Congress over it as to make regulation of
them appropriate means to the attainment of a legitimate end, their exercise of the
granted power of Congress to regulate interstate commerce.” Via the Necessary and
Proper Clause, Congress regulate intra‐state activity that had a substantial effect on
interstate commerce. In the context of the FLSA, direct regulation of substandard
working conditions prevented (or at least made more difficult) the interstate shipment of
goods made under those conditions. Per the Court, interstate commerce served as an
instrument for the spread of substandard labor conditions and unfairly affected businesses
adhering to higher labor standards. Via the reasonable relationship to these interstate
Tara Bush
effects, the direct regulation of manufacturing was constitutional without any reference to
shipments themselves.
-Lastly, the Court rejected Darby’s argument that the FLSA frustrated the Tenth
Amendment. Per the Court, the amendment states but a truism that all is retained which
has not been surrendered. Since the power over commerce was ‘surrendered’ to the
federal government by the Constitution, and since the FLSA came within the scope of
that power, the Tenth Amendment had no bearing on the constitutionality of the FLSA.
****Court said that despite the wages being paid locally, the lumber is being
transported interstate and has an effect of interstate commerce.
****This case once again expanded the commerce clause and laid the precedent for
a police power under the commerce clause.
Notes on Darby
1. As noted, Darby revisits nearly the same issue as evaluated in Hammer, and
comes out the other way. While not expressly overruled, it is implicit.
2. Beginning with Darby, the Court abandoned the view that under the Commerce
Clause, Congress could regulate only “stream of commerce” and those activities
with “direct effects” on interstate commerce; instead the Court adopted a more
inclusive substantially effects test that broadened the reach of the commerce
power.
3. Further, by treating the Tenth Amendment as a mere “truism,” the Court, for all
intents and purposes, destroyed the enclave theory and the notion that certain
activities were expressly off limits to federal regulation.
4. Post‐Darby, Congress, pursuant to the Commerce Clause and the Necessary
and Proper Clause, may regulate interstate commerce itself, as well as any local
economic activity that substantially affects interstate commerce.
Private Practices Affecting Commodity Markets Within Scope of Commerce Clause

[Aggregate Effect, Wheat]
Wickard v. Filburn (1942 – J. Jackson)
-The Agricultural Adjustment Act of 1938 set production quotas on the amount of wheat
put into interstate commerce and established penalties for overproduction.
-The Act was designed to stabilize the market price of wheat by preventing shortages and
surpluses.
-Filburn, a small Ohio farmer, had an allotment of 11.1 acres, but harvested nearly 12
acres above his allotment. Secretary of Agriculture Wickard assessed a penalty against
Filburn, but Filburn refused to pay, contending that the excess wheat was for use on his
farm (feed for poultry and livestock).
-Filburn brought this action challenging the statute as beyond the scope of Congress’s
power under the Commerce Clause.
****So he was growing crops for mostly personal use.
Rule: that (1) Congress can regulate the production of wheat intended for personal use
and not placed in interstate commerce, and (2) Congress can regulate local, intra‐state
activities that have an aggregate effect on interstate commerce, even if the effect is
indirect.
Tara Bush
Rule: Even if it’s local activity, and though it may not be regarded as commerce, it
may still be reached by Congress if it exerts a substantial economic effect on
interstate commerce, whether “direct” or “indirect.”
Held: The power to regulate interstate commerce includes the power to regulate
commodity prices and prices affecting them. The AAA was designed to restrict the
amount of wheat produced for market and the extent to which one may avoid resorting to
the market by producing for his own needs. Though Filburn’s production of wheat for
personal consumption may be trivial, this fact does not remove him from the scope of the
federal regulation. The aggregate effect of such practices by many famers would be far
from trivial. Farmers growing for home consumption, for example, would deliver their
entire allotment to the market, potentially glutting the market and driving prices down.
This decision implicitly overrules the Schechtner Poultry “direct” versus “indirect” test.
****Congress can regulate the crops because it could have a substantial effect on
interstate commerce in the aggregate. So, the court said that this was a local activity
but it can have a substantial effect on interstate commerce.
Racial Discrimination in ‘Places of Public Accommodation’ Within Scope of Commerce

Clause [Substantial Effect, Lodging]
****The next cases deal with discrimination by private businesses/parties.
****The 14th Amendment only deals with state action so where does Congress get
the power to regulate private businesses under the Civil Rights act of 1964? The
Commerce Clause. Specifically, #4 in the list (economic activity).
Heart of Atlanta Motel v. United States (1964 – J. Clark)

- Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public
accommodation if their operations affected commerce. Specifically, the Act made it
unlawful for “any inn, hotel, motel, or other establishment which provides lodging for
transient guests” to discriminate on the basis of race, color, religion, or ethnic origin. The
Heart of Atlanta Motel, situated near I‐75/85 in Atlanta, GA, refused to accept black
guests and was charged with violating Title II.
- Heart of Atlanta challenged the statute, arguing it exceeded the authority of Congress to
regulate commerce.
-The U.S. countered that restrictions in adequate accommodations for black Americans
severely interfered with interstate travel, rendering the regulation well within the ambit of
the Commerce Clause.
Issue: Does Congress have the power to prohibit discrimination in privately owned
motels under the commerce Clause?
Held: Yes, The Act fell well within the power of the Commerce Clause. The pattern of
exclusionary practices, per the Court, imposed a “qualitative as well as quantitative effect
on interstate travel by [blacks]. The former was the obvious impairment of the [black]
traveler’s pleasure and convenience that resulted when he continually was uncertain of
finding lodging. As for the latter, there was evidence that this uncertainly stemming from
racial discrimination had the effect of discouraging travel on the part of a substantial
portion of the [black] community.”
Tara Bush
The Court observed that 75% of Heart of Atlanta’s clientele came from out‐of‐state. By
way of these substantial effects on interstate commerce.
****Essentially, the court held that the discrimination substantially affected
interstate commerce b/c it prohibited black people from traveling. Ross said that
this concept is very well established/supported.
Racial Discrimination in Restaurants Within Scope of Commerce Clause [Aggregate

Activity, Substantial Effect, Food in Commerce]
Katzenbach v. McClung (Ollie’s Barbeque) (1964 – J. Clark)
- Title II of the Civil Rights Act of 1964 prohibited racial discrimination by any
restaurant “that serves or offers to serve interstate travelers or a substantial portion of
food which it serves . . . has moved in [interstate] commerce.”
- McClung owned Ollie’s Barbeque in Birmingham, Alabama, which provided take‐out
service to black customers but allowed only white customers to dine in.
-McClung brought this action seeking an injunction against the Attorney General from
enforcing Title II, which he argued was unconstitutional.
Issue: Whether Congress has the power to regulate discrimination within privately
owned businesses under the commerce clause?
Held: YES, Congress can regulate intrastate matters that have a substantial
economic effect on interstate commerce. In this case, the discrimination had a
substantial economic effect on interstate commerce because it caused less goods to
be sold in interstate commerce, less interstate travel, and obstructed business in
general.
****Further, Ollie's was getting food from a supplier that got food from out of state
so this substantially effects interstate commerce.
-The Commerce Clause grants Congress the power to regulate local business activity if
the aggregate activity of the industry has a substantial effect on interstate commerce
(see Wickard). The portion of Title II at issue is limited to those restaurants either serving
interstate travelers or serving food that has moved in interstate commerce, all within the
ambit of the commerce power. While Ollie’s catered to a largely local clientele, some
46% of the food it served came from a “local supplier who procured it from outside the
State.” As such, the jurisdictional nexus was satisfied. On the question of whether the
Act, as applied, exceeded the power of Congress, generally, the Court again turned to
Congressional hearings, citing evidence that racial discrimination by restaurants had a
depressing effect on the economy by diminishing the amount spent in such restaurants by
clack customers and by imposing a depressant effect on general business conditions in
the respective communities. This burden on interstate commerce, albeit indirect, was
sufficient to justify Congress’s exercise of power.
Notes on Ollie’s Barbeque and Heart of Atlanta

- The political motivation is apparent, but the arguments here are, for the most
part, sound. The connection of the hotel in Heart of Atlanta to interstate
commerce was pretty clear – their customers were from out of state. The
connection of the restaurant in Ollie’s was a little more tenuous. Very few
customers came from out of state, but a little less than half of the food they served
came from out of state through a local supplier. It’s unclear where, if anywhere,
Tara Bush
the Court would draw a line with what constitutes a “substantial portion of the
food” served by a restaurant. If a restaurant specialized in all‐local ingredients,
but served Coke products, would they be free of the regulation?
Keep in mind the two‐level reasoning the Court employs in these cases:
1. Does Congress have authority to reach the activity under the Commerce Clause?
a. If the activity is inherently “interstate,” then yes.
b. If the activity is local, then Congress has the power to regulate if that activity,
in aggregate, has a substantial effect on interstate commerce.
2. Assuming the satisfaction of this jurisdictional question, does the regulation, as
applied, exceed the power of Congress?
- In other words, what is the substantial effect, and is it that effect which is
actually being regulated?
Dual Federalism and the Commerce Clause: The Rehnquist Revolution
Local Gun Control Beyond Scope of Commerce Clause [Substantial Effect, Guns in School
Zones]
United States v. Lopez (1995) (Deals with #4) (mere possession of a gun is not interstate
commerce)
- The GunFree School Zones Act of 1990 made it unlawful for any individual to
knowingly possess a firearm at a place that he knew or had reasonable cause to know was
a school zone.
- Lopez, a high‐school student, carried a concealed and loaded handgun into his school
and was arrested and charged.
Held: That the Act exceeded Congress’s authority under the Commerce Clause. The
Court premised its holding on two related concerns:
(1) the nature of the activity being regulated, and
(2) the activity’s relationship to interstate commerce.
(1) Regarding the nature of the activity, the Court stated: “Where economic activity
substantially effects interstate commerce, legislation regulating that activity will be
sustained.” Elaborating, the Court suggests that economic activity establishes a
threshold requirement for regulating conduct under the commerce power. To be
defined as economic activity, an activity must either (1) be properly characterized as
economic in itself, or (2) be an essential part of a larger regulation of economic activity.
Applied to the instant case, gun possession in a school zone is not itself economic, nor is
the regulation prohibiting it part of a larger economic regulatory scheme.
(2) Regarding the activity’s relationship to interstate commerce, the Court invokes
familiar language: The activity must have a substantial relation to interstate commerce,
or it must substantially affect interstate commerce. The Court emphasizes substantial,
holding (1) that a nominal effect will not suffice, and (2) the Court will not defer to the
discretion of Congress on this standard.
Tara Bush
****From my notes: The court held that there was no economic activity being
regulated. The state just says you cannot possess a gun and there is not economic
activity associated with having a gun on you!
-What is the difference between this case and the civil rights cases? Selling a
hamburger is economic activity but carrying a gun does not involve economic
activity.
****Ross said that there is more of an economic effect with discrimination that with
gun control in a school zone.
****NOTE: The states can still regulate here but Congress cannot use its commerce
power.
Notes on Lopez
- The Court does not make clear whether the “substantial effect on interstate
commerce”
test employs a hard‐line two‐part analysis—(1) economic activity, plus (2)
substantial affect on interstate commerce—or whether the lack of economic
activity would be merely
suggestive, not determinative, of the outcome. The Court answers this question in
Gonzales below.
Violence Against Women Beyond Scope of Commerce Clause [Substantial Effect, Violent
Acts]
United States v. Morrison (2000 – J. Rehnquist) (Focuses of economic ACTIVITY in #4)
- The Violence Against Women Act of 1994 provided a federal civil remedy for victims
of gender‐based violence, even absent criminal changes.
-Virginia Tech freshman was allegedly assaulted and raped.
- College disciplinary proceedings failed to punish either Morrison or Crawford, and
Brzonkala brought this civil action under the Act.
Held: That the legislation did was unconstitutional because the statute did not
regulate and economic activity. The mere fact that the abuse had an economic effect
does not mean that the abuse is an economic activity.
****The majority said that this legislation did not regulate and economic activity.
The majority focused on economic activity and the dissent focused on economic
effect.
RULE: In order for Congress to regulate under the commerce clause there must be
an economic activity not just have an activity that has an economic effect.
-On Board:
-Dissent talks about economic effects.
-Majority focuses on economic activity.
-The Court was unswayed by the data gathered by Congress, finding Congress’s
conclusion based on the same method of reasoning rejected in Lopez—a “but‐for causal
chain from the initial occurrence of violence crime (the suppression of which has always
been the prime object of the States’ police power) to every attenuated effect upon
interstate commerce.” Per the Court, such reasoning would allow Congress to regulate
any crime, as long as the nationwide, aggregated impact of that crime has substantial
effects on employment, production, transit, or consumption.
Tara Bush
****The Court rejected the Government’s argument that “Congress may regulate
noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect
on interstate commerce . . . . The regulation and punishment of intrastate violence that is
not directed at the instrumentalities, channels, or goods involved in interstate
commerce has always been the province of the States.”
LOOK UP FIVE NLRB CASES:

(1) Bus. Company Case: Interstate commerce.
(2) Associated Press Case: Held that the associated press is interstate commerce/ part of
interstate commerce.
-They have agents that travel back and forth which sub. effects interstate
commerce.
(3) Steel company case: Held that the steel company was engaged in interstate commerce
because the steel is used nation wide and the steel was transported nation wide.
-The regulation was regulating labor/management issues.
****most importantly, even a local labor/management strike could have nationwide
consequences because the steel moved throughout the nation.
(4) Trailer and Clothes Manufacturer: This was interstate commerce, similar to Ollies.
****These are the five NRLB Cases: Jones steel is the most important.
- These are cases that lead to a broad reading of the commerce clause.
Quick Review:
(1) Wicker: Even products the farmer raised for his own table can be regulated as
****Ross said that Wicker was limited to Commercial Farmers who
participated in Commercial activity NOT the farmers who was producing
strictly for personal use. THERE IS STILL SOME TYPE OF LIMIT HERE
MAYBE.
(2) Lopez: Federal Gun statute preventing possession was unconstitutional b/c it did
not regulate Economic Activity. This regulated the possession not sale of guns.
-Dissent said that there was an economic effect but the majority said there
must be an economic activity.
(3) Look at 4 part test again. THIS IS WHAT WE HAVE TODAY.
(4) Morrison: Violence against women is not an economic activity!
NonCommercial, Local Growth of Medical Marijuana Within Scope of Commerce Clause

[Substantial Effect, Medical Marijuana]
Gonzales v. Raich (2005)
- California’s Compassionate Use Act of 1996, adopted by ratification, legalized limited
growth and use of marijuana for medical use.
-Permissions provided by this law conflicted with the federal Controlled Substances Act,
which banned and criminalized possession of marijuana.
-After the DEA seized doctor‐prescribed marijuana from a patient’s home, a group of
medical marijuana users brought this action against the DEA and the Attorney General,
claiming that the CSA exceeded Congress’ power under the Commerce Clause.
Issue: Can Congress regulate homegrown medical marijuana?
Tara Bush
Held: Yes, the court found that this was an economic activity that had a substantial
effect on interstate commerce. The court found that growing and selling medical
marijuana would have a substantial effect on interstate commerce because it is plausible
that med. marijuana would effect the supply and demand, sale, and transportation of
marijuana nationwide.
- Regarding the nature of the regulated activity, previous case law suggested that the
terms “economic” and “commercial” were synonymous. The Court clarified the
distinction, holding that for Commerce Clause purposes, an activity may qualify as
being “economic” in nature even though it is “not itself ‘commercial,’ in that [the
goods are] not produced for sale . . . .” Per the Court, “’Economics’ refers to ‘the
production, distribution, and consumption of commodities’”—a definition clearly
embracing personal cultivation and use of marijuana. Characterizing the activity as
economic allows Congress to regulate it under the Commerce and Necessary and Proper
Clauses with only rational basis judicial review, effectively narrowing the circumstances
under which the strict scrutiny of Lopez will apply.
- In Lopez, the sole activity being regulated was non‐economic in nature. In Gonzales,
though, the allegedly non‐economic activity was part of a broader regulatory scheme
that embraced what was clearly economic and commercial drug activity. Hence, as long
as “Congress acted rationally [in] including this narrower ‘class of activities’ within the
larger regulatory scheme” the regulation of that subclass of activity is constitutional.
Sebelius (Affordable Care Act) (2012 – J. Roberts)

-This case deals with the Patient Protection and Affordable Care Act, aka Obamacare.
-Obamacare requires individual citizens without health insurance to buy into a federally
approved plan or face a penalty imposed by the government.
Issue: (1) Is the Affordable Care Act’s individual mandate provision a valid exercise of
Congress’s Commerce Clause powers? Barring that, a legitimate taxing power?
RULE: Inactivity is not economic activity!
H: Not a valid power under the Commerce Clause, because there is no commercial
activity being regulated. Instead, Congress is relying on their power to compel
individuals not engaged in Commerce to enter the market and purchase an unwanted
product. [Upheld under the taxing power, however.]
**** The court held that Congress cannot anticipate or make its own Commerce.
Congress can only regulate existing Commerce. In this situation, Congress is forcing
people into a market that they would not be participating in.
Dissent: Dissent argued that Congress should be able to regulate markets that will almost
surely exist. Such markets should be treated as if they already exist.
Dissent (Ginsburg): Uninsured individuals have an inevitable participation in the
medical market, whether they choose to or not. Their uninsured activities impose a high
cost and substantially affect the national market.
Court Will Avoid Constitutional Question, If Possible Statutory Interpretation Permits

Jones v. United States (2000 – J. Ginsburg)
Tara Bush
- Facts: Jones threw a Molotov cocktail into the home of his cousin. The home was
severely damages. Jones was convicted for violating 18 U.S.C. § 844(i), which makes it a
federal crime to “maliciously damage or destroy, … by means of fire or an explosive any
building … used in interstate or foreign commerce or in any activity affecting interstate
or foreign commerce.” Jones argued that § 884(i), when applied to the arson of a private
residence, exceeds the authority vested in Congress under the Commerce Clause.
- Issue: Whether arson of a private residence falls within a federal statute criminalizing
arson of property used in interstate or foreign commerce? No.
- Holding:
- An owner-occupied residence not used for any commercial purpose does not
qualify as property “used in” commerce or commerce-affecting activity, such that
arson of such a dwelling is not subject to federal prosecution under § 844(i).
- Where a statute is susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise, and by the other of which such questions
are avoided, the Court’s duty is to adopt the latter.
- By reading the statute as such, the Court sidesteps the Constitutional question of
whether the statute falls within the ambit of the Commerce Clause.
- Acknowledging this logic, the Court stated: “When the choice has to be made
between two readings of what conduct Congress has made a crime, it is
appropriate, before we choose the harsher alternative, to require Congress
should have spoken in language that is clear and definite.” Presuming this
statement to indicate that Congress’s language in the statute at issue is ambiguous,
the Court refrains from even considering whether applying the federal arson
statute to a private home implicates the Commerce Clause.
OTHER DELEGATED SOURCES OF NATIONAL POWER: The Power to Spend, the

War Power, and the Treaty Power
A. THE TAXING & SPENDING POWER

The Taxing & Spending Power, Generally:
- The Articles of Confederation, recall, included no power to tax. The federal government
could only ask the states for money. Realizing the limits this imposed, the Framers
explicitly vested a taxing power to Congress.
Article I, § 8 cl. 1
Congress shall have the Power to lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises shall be uniform
throughout the United States.
- Commonly known as the Tax & Spending Clause, this text also includes the General
Welfare Clause, the power and extent of which is often contested. The only other
mention of “welfare” in the text of the Constitution is in the preamble, which is not
binding authority.
Tara Bush
-Recall the Pollock cases (1895) overturning the first peacetime income tax. The
Sixteenth Amendment (1913) directly circumvented this decision, authorizing direct
taxes that did not have to be apportioned by population.
The Income Tax of 1894: Pollock and Political Response

- In response to a federal budget deficit, Congress passed an income tax in 1894.
- Opponents launched two civil suits, both styled Pollock v. Farmers’ Loan & Trust Co.
(1895), challenging the constitutionality of taxes on income from real estate and taxes on
income from personal property.
-The Supreme Court declared both such taxes unconstitutional and struck down the
graduated income tax statute. The Court reasoned that these taxes constituted “direct
taxes,” which, per Art. I, § 8 cl. 1 of the Constitution, are to be apportioned among the
states according to population.
- Popular action led to a constitutional amendment reversing the Court’s decision: the
16th Amendment (1913) authorizing Congress to tax incomes.
Direct Tax: Imposed without a transaction.

ex. A tax for just being a person. A tax on real estate or property just because its
there!
****Originally, these must be apportioned between the states.
Indirect tax: Imposed b/c of a transaction.
ex. buying and selling something
****Before the 16th amendment, a income tax was unconstitutional because it was
not apportioned between the states. The 16th amendment was a direct response to
the income tax cases.
Butler v. United States (1936)

Congress can tax for the general welfare which is construed broadly!
-The Court adopted the Hamilton reading of the Taxing and Spending Clause, leaving
Congress with broad power to tax and spend for the general welfare. I.e. any purpose
that Congress thinks is for the general welfare of the US.
****So the taxing and spending clause is linked to the general welfare clause.
Ross's Handout Cases:

- These decisions sustained the constitutionality of the old‐age pensions and
unemployment compensation provisions of the Social Security Act of 1935.
- In these cases, the court held that unemployment, social security, and pension
provisions are a valid exercise of Congressional taxing power under the General
welfare clause. Held constitutional to fight poverty (general welfare).
-These decisions provided an expansive interpretation of Congress’ power under the
Taxing & Spending Clause and remain good law today.
Steward Machine Co. v. Davis (1937)

- Upheld the unemployment compensation provision of the SSA, holding that
Congress’s power was broad enough to permit Congress tax employers to fund a
Tara Bush
program to protect unemployed works from poverty. Cardozo, writing for the
Court, highlighted the national emergency of joblessness and held that the taxes
authorized by the legislation fell squarely within the general welfare clause.
Helvering v. Davis (1937)

- Upheld the old age provisions of the SSA, reiterating the Court’s broad
interpretation of the federal power to tax in promotion of the general welfare.
Holding that the Tenth Amendment did not bar the statute, Carodozo explained
that unemployment was a national problem which merited national attention (and,
by extension, the resources of the Nation).
Carmichael v. Southern Coal & Coke Co. (1937)

- Upheld Alabama’s unemployment compensation statute, enacted pursuant to
the SSA. Rejecting due process and equal protection challenges, Justice Stone
held that “relief of the unemployed is a permissible use of State funds” and a
proper basis for exercise of the taxing power. The Court further held that the state
had not unconstitutionally delegated power to the federal government by enacting
legislation pursuant to the SSA, insofar as the two governments had a “common
concern” with unemployment and could undertake “cooperative legislative
efforts” to ameliorate it.
Congress May Authorize Expenditure of Public Monies for Public Purposes

Buckley v Valeo (1976)
-The Federal Election Campaign Act of 1971 provided, among many things, that
taxpayer may, by checking a box on their tax returns, donate $1‐2 to the Presidential
Election Campaign Fund. The money raised therein goes to three accounts: (1) party
nominating conventions, (2) general election campaigns, and (3) primary campaigns.
-Challengers to the statute argued that this specific provision is contrary to the general
welfare of the United States and, as such, violates Congress’s power to tax and spend
under the Constitution.
- The act would reduce the effect of large political contributions!
- Held: Art I, § 8 does not limit powers, it grants powers. Public financing of
presidential elections as a means to reform the electoral process is clearly within the
discretion of the granted power. The Court concluded, stating: “The power of Congress
to authorize expenditure of public monies for public purposes is not limited by the
direct grants of legislative power found in the Constitution.”
****Essentially, it is for congress to determine what expenditures will promote the
general welfare. The court deferred to Congress and found the provision
constitutional.
Congress May Withhold Federal Funds from States in the Name of General Welfare
South Dakota v. Dole (1987 – J. Rehnquist)
-In 1984, Congress enacted legislation directed the Secretary of Transportation to
withhold 5% of federal highway funding from states that did not adopt a 21‐year‐old
minimum drinking age.
Tara Bush
-South Dakota, a state permitting persons 19 years and older to purchase alcohol,
challenged the law under the Taxing & Spending Clause.
Issue: Was the mentioned legislation a valid exercise of Congress's taxing and spending
power?
Held: Yes, Congress, acting indirectly to encourage uniformity in the States’ drinking
ages, was within constitutional bounds. Per the Court, the funding legislation was in
pursuit of “the general welfare,” and the means chosen to pursue the goals—uniformity,
safety, and deterrence of drunk driving on federal roads—were reasonable.
-The Court likewise confirms Congress’s interest in this specific aspect of the general
welfare, given that Congress paid for the roads. The Court rejected South Dakota’s
argument invoking the Twenty‐first Amendment (which repealed prohibition and
expressly gave State the power to regulate liquor), holding that the Amendment in no
way limited Congress’s ability to achieve federal objectives indirectly. The 5%
withholding of highway funds was not unduly coercive, and as such does not usurp the
State’s authority as granted in the Twenty‐first Amendment.
RULE: Congress can withhold funding to Promote the General Welfare under the
taxing and spending clause. THIS MUST BE DONE UNAMBIGUOUSLY.
****This was not Coercion because it provides incentives but does not FORCE the
states to set a drinking age. If the legislation withheld all funding then it would be
coercive and unconstitutional.
Sebelius (2012 – J. Roberts) (Taxing Power)

Held- (1) The Court sustained the constitutionality of the Affordable Care Act as a tax on
the individuals who refuse to buy insurance.
-The mandate provision was pursuant to the “general welfare” of the country. (More
people with health insurance=good).
RULE: A fine on the individuals that do not comply is a valid exercise of Congresses
taxing power!
****Taxing inactivity is a legitimate power of Congress under the taxing power.
****This is an economic regulation so the rational basis standard applies: Promoting
healthcare is a legitimate purpose and the means was rationally related.
**** Majority said this was an indirect tax because it was triggered by circumstances.
(2) The provision withholding funds from the states if the states did not expand their
Medicaid programs was unconstitutionally coercive and therefore violated the 10th
amendment.
THE WAR POWER

Article I, § 8: “Congress shall have the power to . . .To declare War . . .To raise and
support Armies . . . To provide and maintain a Navy . . . to make Rules for the
Government and Regulation of the land and naval Forces.”
Powers Relating to Foreign Affairs Are, by Definition, Federal

United States v. Curtiss-Wright
- Congress authorized the President, at his discretion, to embargo arms sales to Bolivia
and Paraguay.
Tara Bush
- President Roosevelt imposed the embargo, and Curtiss‐Wright was charged with
conspiring to sell machine guns to Bolivia. Curtiss‐Wright challenged the
constitutionality of this delegation of power.
-The Court agreed with the defendant that legislation over the international field may
accord to the President greater discretion than would be admissible for domestic affairs.
But the court went beyond the issue of delegation to add pages of obiter dicta to describe
the far-reaching dimensions of executive power in foreign affairs. He assigned to the
President a number of powers not found in the Constitution.
-The Court spoke generally of a fundamental difference between foreign and domestic
policy. Justice Sutherland declared that “the two classes of power are different, both in
respect of their origin and their nature. The broad statement that the federal government
can exercise no powers except those specifically enumerated in the Constitution, and
such implied powers as are necessary and proper to carry into effect the enumerated
powers, is categorically true only in respect of our domestic affairs.”
-Court held that the embargo was within the enumerated powers of Congress.
International relations were never a state issue, and as such the legislation was not in
violation of states’ rights. Further, the War power expressly gives the government the
right to regulate this sort of activity
****This case said that Congress has substantial power over foreign affairs.
War Power Does Not End With Termination of Conflict

Woods v. Miller (1948 – J. Douglas)
- The Housing and Rent Act of 1947 was designed to limit rents in certain areas for the
purposes of controlling a housing shortage connected with returning veterans.
- After admitting violation of the Act, Miller brought this action seeking to enjoin
enforcement of the violation.
Issue: Does the War Power allow Congress to legislate even after a war end or a conflict
terminates?
RULE: (1) Under the Necessary and Proper Clause, the War Power includes the
power to remedy the evils which have arisen from war’s rise and progress.
(2) The War Power allows Congress to remedy the evils that arise b/c of wars even
after a war ends.
Held: Yes, the War Power, which, via the Necessary & Proper Clause includes the
power to remedy the evils which have arisen from war’s rise and progress, sustained the
legislation. Evidence was clear that a housing shortage was prevalent, and new
construction was not meeting needs. Because the war effort contributed heavily to the
deficit, Congress has the power even after the cessation of hostilities to act to control
the forces that a short supply of the needed articles created. Lastly, the Court holds that
questions of constitutionality on actions taken by Congress do not hinge on recitals of the
power which it undertakes to exercise.
THE TREATY POWER

Art II, § 2 cl. 2, The President shall have the Power, by and with the Advice and Consent
of the Senate, to make Treaties, provided two thirds of the Senators present concur.
****President doesn't have to seek advice of the Senate, but it is wise to do so.
Tara Bush
Treaty Power, Generally

- The President has the authority to negotiate and make treaties, but they must be
ratified by 2/3 of all Senators present.
- All treaties, by definition, are federal. The Supremacy Clause of Art. VI
guarantees that treaties are the supreme law of the land.
- Notably, treaties are made under the authority of the United States, not the
power of the Constitution. The distinction is fine, but significant. The U.S.
Government, which existed before the Constitution, transcends this Constitution.
To recognize pre‐existing treaties, this language is necessary. That said, the power
doesn’t exist outside of the Constitution, it is just a broader power than the
Constitution can feasibly grant.
States May Not Challenge Constitutional Treaties Under the 10th Amendment
Missouri v. Holland (1920 – J. Holmes)
- The United States and Great Britain entered into a treaty to protect a number of
migratory birds in the U.S. and Canada.
-Congress passed the Migratory Bird Treaty Act in 1918 in order to facilitate
enforcement of the treaty.
-When Holland, a U.S. Game warden, threatened to arrest citizens of Missouri for
violating the Act, the state of Missouri challenged the treaty.
Issue: Was the Migratory Bird Treaty Act a constitutional expression of Congress's treaty
power?
-Held: Yes, The Act (and Treaty) were valid exercises of congressional treaty power.
Article VI declares that treaties made under the authority of the US are the
Supreme law of the land (Supremacy Clause.) Congress acted under Necessary and
Proper Clause to execute the powers of the Government.
-The Act did not contravene anything in the Constitution, and the States had no inherent
power to regulate the birds. The States do not “own” the migratory birds, which are only
passing through the States anyway.
-RULE: The treaty power, and the power to enact legislation necessary and proper
to carrying out treaties, were both delegated to the United States. Therefore, a valid
treaty cannot, by definition, transgress the limits of the Tenth Amendment.
****Essentially held that this was proper under the necessary and proper clause to
carry out the treaty.
****The court said that this was an international issue and Congress has plenary
power to ratify treatises on the matter.
Protections of Constitution Supersede Treaties

Reid v. Covert (1957 – J. Black)
- In 1957, an executive agreement was in effect between the United States and the United
Kingdom, permitting United States military courts to exercise exclusive jurisdiction over
offenses committed by American servicemen and their dependants on American military
bases in Great Britain.
Tara Bush
- Clarice Covert killed her husband, a sergeant in the U.S. Air Force, at an airbase in
England. Ms. Covert, herself not a service‐person but subject to the treaty, was tried and
convicted by a court‐martial for murder.
Issue: Was this valid under the constitutional (Bill of Rights) right to a trial by a jury of
one’s peers?
RULE: The US Constitution maintains supremacy over treaties with foreign
countries.
****So treatises can be held unconstitutional!
****Note: The court does give more deference to treatises than ordinary legislation
b/c the court gives deference to congress regarding foreign affair and military
issues.
-Held: A treaty can be unconstitutional because the constitution is the supreme law
of the land. In this case, it was unconstitutional to try citizens in Military Court
UNLESS civilian courts are not open and functioning.
-“no agreement (treaty) with a foreign nation can confer power on the Congress, or on
any other branch of Government, which is free from the restraints of the Constitution.”
- Citing the jury trial provisions of Art. III, § 2 and the Fifth and Sixth Amendments,
the Court holds that the jury‐trial protections afforded civilian citizens in the Bill of
Rights and elsewhere are paramount to the technicalities of the treaty.
- Court: Article I § 8 “To make rules for the Government and Regulation of the
land and naval forces.” The Necessary and Proper Clause would not extend to classes
beyond “land and naval forces.” (Not to ordinary citizens.)
LIMITS ON FEDERAL POWER
THE TENTH AMENDMENT, GENERALLY

"The powers not delegated to the United States by the Constitution, nor prohibited by it
to the states, are reserved to the states respectively, or to the people."
-As a practical matter, what does the 10th Amendment mean?

****The 10th Amendment describes the relationship b/t the states and the federal
government and IS NOT meant to be read as an independent source of limiting the
Federal Government.
-Madison’s description of the 10th Amendment: “Simply a reminder that the federal
government was one of delegated powers.”
- The Tenth Amendment, though, functions uniquely, simply reminding the federal
government that its very existence is a delegated power. It’s perhaps unnecessary, but it
does no harm.
STATE INTERGOVERNMENTAL IMMUNITY & THE TENTH AMENDMENT
Tenth Amendment, Federalism Revived as Check on Federal Power Congress May Not
Regulate the Labor Market of State Employees
National League of Cities v. Usery (1976 – J. Rehnquist)
- In 1974, Congress passed amendments to the Fair Labor Standards Act, regulating
Tara Bush
minimum wage and overtime pay for state and local government employees.
-The National League of Cities along with several state and local governments challenged
the constitutionality of these amendments.
Issue: Was the federally imposed minimum wage a violation of the 10th amendment?
Held: YES, the Court stated that the FLSA clearly fell within the scope of the commerce
power, but violated the principle of federalism as embodied in the Tenth Amendment.
- Unlike Darby, the Court here did not treat the Tenth Amendment as a “truism”; rather,
the Court viewed the Tenth Amendment as a reflection of the philosophy of federalism
embodied in the Constitution and AN INDEPENDANT SOURCE OF LIMITING
THE FEDERAL GOVERNMENT. Per the Court, Congress cannot exercise its power
to impair the States’ integrity or their ability to function effectively in the federal
system. Congress may have the authority to regulate individual businesses under the
Commerce Clause, but in this case it is regulating not just individuals, but the States
as States. As such, this exercise of the commerce power runs afoul of the Tenth
Amendment.
BIG DEAL FROM THIS CASE****The majority essentially held that the 10th
amendment can act as an independent restraint on Federal Power.
-RULES: Usery’s Rules (for States to succeed on 10th Amendment basis against
Federal Statutes)
1) The challenged statute must regulate the “States as States,” not as private
citizens
2) The statute must address matters that are attributes of state sovereignty.
3) States’ compliance would directly impair their ability to “structure
integral operations in areas of traditional governmental functions.”
4) The relation of state and federal interest must not be such that “the nature
of the federal interest … justifies state submission.”
- Balancing Test
****So the Federal government can have a minimum wage for private organizations but
such minimum wages do not apply to the states!
Usery Overruled, Federalism Better Protected by Congress, Not Judiciary

Garcia v. San Antonio Metropolitan Transit Authority (1985 – J. Blackmun)
- SAMTA, the primary provider of public transit in the San Antonia metro area, claimed
exemption from the wage and overtime requirements of the FLSA. As a provider of
traditional government function, the entity was exempt from the FLSA under Usery.
-Garcia, an employee of SAMTA, brought this action for unpaid overtime under the
FLSA.
RULE: The Federal Minimum Wage applies to the states!
-Held: Overturned Usery.
-The court stated that the federalism principles established in Usery were
unworkable. Specifically, the court held that the governmental functions test (#3
above) is almost impossible to apply and is extremely costly. The court believed that
a bright line supporting the federal minimum wage was better.
Tara Bush
-Further, the court believed that the principle of federalism was to be protected, if at all,
through the political rather than the judicial process. In other words, Congress, the body
of state representatives, must make the necessary judgments about the scope of any
intrusion upon state sovereignty.
Ross: The direct election of senators, 17th amendment, matters and supports this
result:
(1) Because the people speaking through the senators have imposed these
regulations on themselves. (not ross's big point.)
(2) Originally, the senators were regarded as representatives of the state but
after the 17th amendment they represent the people ... This concept eroded
the concept of state sovereign immunity.
**** What leads the Court to overturn cases like this?

-Ross said it is almost always because changes in personnel on the court OR
one justice changes their opinion.
-In this case, one justice, Justice Blackmon, changed his mind and delivered
the opinion.
Notes on Garcia and Usery

- The ‘truism’ model of the Tenth Amendment articulated in Darby returns to life,
coincidentally in a case involving minimum wage and the FLSA.
- Post‐Garcia, neither the principle of federalism nor the text of the Tenth
Amendment will trump an otherwise legitimate exercise of national power.
Federal Gov’t Cannot Compel Action of State Law Enforcement, Even Temporarily
Printz v. United States (1997 – J. Scalia)
- The Gun Control Act of 1968 established federal regulation of firearm sales.
- The Brady Bill amended the GCA, requiring mandatory background checks of gun‐
buyers and the issuance of a permit before delivery of the weapon.
-The Act provided for creation of a federal agency under the DOJ to conduct the checks,
but the in period leading up to creation of the agency, it compelled state law enforcement
officers to conduct the checks.
Issue: Whether certain provisions of the Brady Act, commanding state and local law
enforcement officers to conduct background checks on handgun purchases, violated the
Constitution?
RULE: Barring a compelling reason, the Federal Government cannot commandeer
state officials to carry out federal programs.
OR
The federal government may not compel the states to implement, by legislative or
executive action, federal regulatory programs.
Held: YES, The Court held that Congress may not require state law enforcement
agencies to perform the duties mandated by the Brady Bill. The court noted that
provisions mandating state action regulated the functioning of the state executive
branch in a manner that offended the principle of “separate state sovereignty” by
forcing the respective States to administer a federal regulatory scheme. As such, each
Tara Bush
provision compromised the constitutional system of dual sovereignty mandated by the

principle of federalism. The Court explicitly refused to balance any interests—A federal
law whose object and effect is to force state participation in a federal regulatory
scheme is categorically unconstitutional.
-The Act would also affect the separation of powers between the 3 branches of
government. While the President has the power to administer Congress’s laws through
officers he appoints, the Brady Act would transfer this responsibility to state officers.
****Essentially, the Federal Government cannot commandeer local law
enforcement officials to carry out federal regulatory programs because this would
violate the 10th amendment and is too intrusive on state sovereignty.
EXCEPTION: This rule does not apply in situations where the Federal government
has a compelling interest. Aka emergency situations.
New York v. United States (1992)

- 1985 Toxic Waste Act
- The Court invalidated a provision in a bill that “coerced” states to comply with a
federal radioactive waste-disposal regime, holding “the Federal Government may not
compel the States to enact or administer a federal regulatory program.”
- Court held that Congress could not constitutionally require the States to enact a
federal regulatory program (even if Commerce Power was satisfied).
STATE SOVEREIGN IMMUNITY

U.S. Const, Amend. 11
The judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by citizens of another state, or by citizens or subjects of any foreign state.
-A clear deference to federalism and state sovereignty, the Eleventh Amendment
provides a constitutional exception to diversity jurisdiction, prohibiting a citizen from
suing a state in federal court.
-Ross: "In its simplest form, the 11th amendment is a constitutional exception to
diversity jurisdiction!”
What lead to the 11th amendment?

Chisholm v. Georgia (1793)
- Citizen of South Carolina had delivered goods to Georgia and the state failed to
pay.
- Chisholm (resident of SC) sued Ga. in Federal Court.
- Held: Supreme Court held that a state could be sued by a diverse citizen in a
federal court. Article 3 permits this lawsuit ... Diverse citizens can sue a diverse
state in Federal Court.
- Since most states agreed with Georgia’ stance on not allowing this to happen,
they amended the Constitution with the 11th Amendment to overturn this decision
****The 11th Amendment overturned Chisholm v. Georgia
Hans v. Louisiana (1890)

Tara Bush
Despite the literal language of the Amendment, limiting the grant of federal jurisdiction
to suits brought by “citizens of another state,” citizens are also prohibited from suing
their own state in federal court. As such, the Eleventh Amendment has since been viewed
as a grant of state sovereign immunity to the federal forums.
****Extended the scope of the 11th amendment.
****Note from Ross: Sovereign Immunity can be waived!
-This happens in suits where the Government believes that justice requires
the state to be potentially liable.
Ex Parte Young (1908)

Held that the 11th Amendment should apply to the state itself or state officials but NOT
lower employees or municipalities.
****Under Young an individual can sue counties, cities, and officials in their individual
capacities.
Pennsylvania v. Unions Gas (1989)

Congress could use commerce power to create specific causes of private action against a
state that could be tried in federal court. (didn’t talk about this)
Seminole Tribe of Florida v. Florida (1996)

Overruled Union Gas
- Held that a state cannot be sued in federal court under the commerce clause according to
the 11th amendment. However, Congress can still create causes of action pursuant to § 5
of the Fourteenth Amendment, which, in § 1, guarantees due process and equal
protection under the laws.
-14th amendment section 5 "The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."
****So, Congress can enact legislation under its remedial powers granted by the
14th amendment that allows an individual to sue a state in federal court. The
individual must specify that they are suing under section 5 of the 14th amendment.
****Points:
(1) If Congress is acting under the commerce clause a state cannot be sued by
a private party in Federal court.
(2) An individual can sue a state in federal court under a cause of action
created by congress pursuant to section 5 of the 14th amendment.
Alden v. Maine (1999 – J. Kennedy)

-Probation officer filed suit against employer, State of Maine, in federal court for
violation of FLSA.
- The district court then dismissed the suit based on state sovereign immunity.
- Plaintiff then filed in State court.
Issue: Whether Congress had the power, under Article I, to subject non-consenting States
to private suits in their own courts? No
RULE: An individual P. alleging that a state violated a Federal Statute cannot sue
the State in Federal OR State court.
Tara Bush
****So congress cannot enact legislation that allows an individual to sue a state in
state court!
Held: No, State sovereignty prohibits any Article I federal legislation providing an
individual with a cause of action against a State (even in state court). State sovereignty
existed before the constitution and still exists today.
****So after this how can Federal legislation be enforced if the states have
Sovereign immunity? Essentially, how can states be sued?
(1) Does not bar suits against “lesser entities” (municipal corporations, other
government entities, state officers)
- Suits against state officers can only lead to injunctions or declaratory relief,
unless using on an individual capacity
(2) If the state provides consent.
(3) The Federal Government (14th Amendment § 5 Suits)! The 11th
Amendment prevents states and individuals from suing not the Federal
Government.
****Once again, read literally, the 11th amendment is just an exception to diversity
jurisdiction! (THIS WILL OBVIOUSLY BE ON THE TEST).
PRESIDENTIAL POWER: SCOPE OF THE EXECUTIVE POWER:
Article II Section 2: The President shall be commander in chief of the Army and Navy of the
United States, . . . and he shall have power to grant reprieves and pardons for offenses against
the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties,
provided two thirds of the Senators present concur; and he shall nominate, and by and
with the advice and consent of the Senate, shall appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other officers of the United
States, . . .
Article II Section 3: He shall from time to time give to the Congress information of the state of
the union, and recommend to their consideration such measures as he shall judge necessary and
expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in
case of disagreement between them, with respect to the time of adjournment, he may adjourn
them to such time as he shall think proper; he shall receive ambassadors and other public
ministers; he shall take care that the laws be faithfully executed, and shall commission all the
officers of the United States.
****Few things Ross noted:
(1) The president SHALL report on the state of the union.
(2) The President can make proposals for legislation but the Bill has to be proposed
by a legislator and enacted by Congress. Usually such a proposal is substantially
changed and the president may veto it.
Tara Bush
****So the president is informally involved in creating legislation b/c he can

make proposals. Note that the president can call and tell/talk to a legislator
what to do. So the Pres has influence.
(3) The President can promulgate executive orders under the "take care" clause to
CARRY OUT legislation but he cannot just create new laws on his own.
Article II Generally: Congress’s powers are enumerated in Article I, and the judiciary’s powers
are enumerated in Article III. The President and the host of executive agencies operate under the
powers bestowed in Article II.
-The President can act pursuant to direct grant of authority from Article II (appointing
ambassadors, for example) or pursuant to a delegation of authority from Congress
(setting specific tax rates, criminalizing interstate trafficking of specific drugs). While
delegation operates in many cases without question, many situations pose substantial
ambiguities. Specifically, whether the executive branch is implementing the
congressional standard or legislating on its own.
Nondelegation Doctrine: The nondelegation doctrine holds that Congress cannot

delegate its authority to legislate to the executive. Modern courts agree with this theory,
but often disagree on the threshold. Most courts are reluctant to find any impermissible
delegation of legislative authority.
-The Administrative Procedure Act of 1946 establishes standards for rule‐making by

both federal executive departments and independent agencies. Departments and
agencies must, among other things, provide notice and a public hearing before using
rules and regulations pursuant to a formal fact‐finding process. SO There is a
process that must be followed for Rule making!
When has the Supreme Court found Congress's Delegation of power

unconstitutional? Handout – Only Two Cases Limiting Delegation (i) Schechter
Poultry Corp. v. United States (1935) and (ii) Panama Refining Co. v. Ryan (1935).
Neither denied Constitutional power to delegate, but simply found too few
guidelines and provisions for oversight and checks.
****Practically, Congress does delegate power to the President. This is especially

true with foreign affairs. In the Curtis-Wright case, for example, Congress
delegated power to the President.
****Practically, the President does have a quasi legislative power under the "taking
care" clause to legislate/fill in the gaps through executive orders and Administrative
Agencies.
President May Not Order a Policy, He May Only Suggest It

Youngstown Sheet & Tube v. Sawyer (1952 – J. Black) (Most famous Executive order case)
Tara Bush
- President Truman ordered the Secretary of Commerce to seize control of American

steel mills in an effort to avoid a strike that he believed would hinder the U.S. efforts to
adequately fight the Korean War.
-Following his order, he requested Congressional action to authorize it, but Congress
never acted. Management filed suit to prevent the seizure, and the lower courts declared it
unconstitutional.
-Strikes settled by negotiation, and the Court took certiorari on declaratory judgment.
Issue: Was the President acting within his constitutional power when ordering the
federal government to seize control of American steel mills? Or did it amount to
lawmaking?
Black Letter Rule: The President of the United States does not have the inherent
authority to order the involuntary surrender of private property to the government.
Held: President Truman did not have this power under the guise of National
Security! The Supreme Court stated that this was unconstitutional because it
exceeded the President's power under the Constitution and would amount to
lawmaking. President Truman’s attempted intervention unconstitutional and holding that
there was no statute of record authorizing the President to take possession of private
property. The Court stated: “The President’s power to see that the laws are faithfully
executed refutes the idea that his to be a lawmaker.” Continuing: “The President’s order
amounts to lawmaking, a legislative function which the Constitution has expressly
confided to the Congress and not to the President.”
****Five years earlier Congress chose NOT to give the President the power he
exercised here. The Taft Hartley Act did give the president the power to enjoin the
strike. So the President did not use the power he had and exercised a power that he
was expressly denied!
-Why? He was a Democrat and didn’t want to slap the unions/organized
labor in the face by granting the injunction! So he slapped the steel industry
instead.
Jackson Concurrence: Stated that the President’s action was “at it’s lowest ebb.”
Three Pronged levels of Presidential Power:
1. Highest ebb: When the President acts pursuant to an express or implied
authorization of
Congress, the President’s authority is at its greatest.
2. Middle ebb: When the President acts in the absence of either a
congressional grant or denial of authority, he can only rely upon his own
independent powers, but there is a zone in which he and Congress may have
concurrent authority. When this is the case, the
test depends on the imperatives of events and contemporary imponderables
rather than on abstract theories of law.
3. Lowest ebb: When the President takes measures incompatible with the
expressed or implied will of Congress, the authority of the President is at its
lowest.
****There is a general understanding that a President will not appoint friends to the U.S.
Supreme Court.
Tara Bush
One House Veto of Executive Action Violates Separation of Powers

Immigration & Naturalization Serv. v. Chadha (1983 – J. Burger)
- Chadha, a Kenyan‐born East Indian with a British passport, was a foreign exchange
student studying in the United States.
- Following expiration of his visa, the INS held a hearing and ordered his deportation.
-Chadha then applied for suspension of the deportation, an INS judge approved, and the
judge reported the suspension to Congress via the Attorney General.
-Pursuant to the Immigration and Nationality Act, the House of Representatives passed a
resolution overturning the suspension and again ordering deportation.
Issue: Whether the provision of Immigration and Nationality Act, which allowed
Congress to veto a decision of the Attorney General to stay deportation proceedings, is
constitutional if enacted by one House and not submitted to the President?
Black Letter Rule: Legislative action is not legitimate unless there is bicameral
approval and presentment to the President.
Held: NO, the unilateral House action was not within the express constitutional
exceptions authorizing one House to act alone, and it was clearly a legislative power.
Analysis: The Constitution explicitly defines the legislative functions of Congress and
the Executive Power.
-Legislative Powers . . . shall consist of a Senate and a House of
Representatives. Article I § 7: Presentment Clause: Every Bill . . . shall be
presented to the President of the United States.
-Lawmaking is a power shared by Congress and the President. Bicameral measures are
enshrined in the Constitution.
-Not every action taken by either House is subject to bicameralism and/or presentment.
Test: Whether the actions contain matter which is legislative in its character and
effect. 4 instances where solitary action is appropriate:
1) House initiates impeachment measures (Article I)
2) Senate holds trials for impeachment (Article I)
3) Senate approves presidential appointments (Article II)
4) Senate can ratify treaties negotiated by the President (Article II).
****Essentially, The Court held that this sort of action was legislative. Legislative
action must comply with the presentment clause and the bicameralism provision.
The presentment clause dictates that both houses present a bill to the President,
which he either signs or vetoes. Bicameralism states that both the House and the
Senate must act on bills. This action is inconsistent with that, therefore, the one
House veto rule of executive decision is unconstitutional.
Notes on Chada
- The presentment clause dictates that both houses, following an affirmative vote,
present a bill to the President for his signature or veto. Permitting Congressional
veto of an executive action reverses this process. The presentment process—
especially the President’s veto power—is intended to provide a mechanism by
which the executive can check the legislature, defend itself against legislative
encroachment, and prevent ill‐conceived policies and decisions.
Tara Bush
- The bicameralism provision is part of the legislative process in Article II. One
house acting without the other defeats the virtue (and check) of the system. The
provision serves as an implicit self‐check on encroachment.
- Despite Chada, Congress still follows such procedures, though perhaps not so
blatantly. The Court lacks enforcement power (of the purse or otherwise), so it
can’t really do anything other than moan.
The Line Item Veto Act of 1996

- Gave the President the authority to unilaterally cancel certain provisions contained in
bills that had been signed into law. Specifically, the line item veto could be exercised by
the President to (1) cancel items of new spending, (2) rescind any dollar amount of
discretionary budget authority, and (3) cancel any new limited tax benefits.
- While Article I, § 7 cl. 2 conferred on the President the power to veto entire pieces of
legislation, this statutory power permitted the president to veto only selected portions of a
law. Further, the line‐item veto could be exercised after the bill had become law, rather
than when it was first presented to the President.
- Cancellations took effect immediately and would there after become ‘null and void’ if
Congress approved and the President signed a ‘disapproval bill.’ Technically, the
President could veto his own ‘disapproval bill,’ invoking the standard 2/3 override
procedure.
Line Item Veto Amounts to Amendment by the Executive, Violates Separation of Powers
Clinton v. City of New York (1998 – J. Stevens)
- Pursuant to the Line Item Veto Act of 1996, President Clinton cancelled a provision in
the Balanced Budget Act of 1997, which relinquished the government’s ability to recoup
$2.6B in taxes levied against Medicaid providers by the State of New York.
-New York challenged the action, arguing that the Act permitting the veto was an
unconstitutional delegation of the amendment power from Congress to the Executive.
BLACK LETTER RULE The Line Item Veto Act is unconstitutional.
Held: that the Line‐Item Veto Act violated the legislative process as defined in the
presentment clause of the Constitution. Per the Court, legislation must either me entirely
approved or rejected by the President. By cancelling only selected portions of bills, the
President in effect exercises an amendment function—a unilateral power to change the
text of duly enacted statutes. Such discretion violates the “finely wrought” legislative
procedures of Article I. If the President is to possess such power—which is enjoyed by
many state governors—“such change must come not by legislation but through the
amendment procedures set forth in Article V of the Constitution.”
-Executive Orders- the President has the power to issue these (derived from the Take
Care Clause). They have to be based on existing law, though.
-Signing Statements- when the President signs a bill into law, the President may add his
own statements that comment on the legislation.
-Rhetorical- innocuous statements praising the legislation.
-Constitutional reservations- President expresses doubt as the legislations
constitutionality, or of the scope thereof.
Tara Bush
-Directions to executive agencies- most extreme example. Directions how to

interpret the statute.
APPOINTMENTS & SEPARATION OF POWERS

APPOINTMENT POWER, GENERALLY
Appointments Clause Article II § 2 cl. 2
[The president] shall nominate, and by and with the advice and consent of the
Senate, shall appoint ambassadors, other public ministers and consuls, judges of
the Supreme Court, and all other officers of the United States, whose
appointments are not herein otherwise provided for, and which shall be
established by law: but the Congress may by law vest the appointment of such
inferior officers, as they think proper, in the President alone, in the courts of law,
or in the heads of departments.
-Determining whether Senate confirmation of an officer is required is occasionally tricky.

At the polar ends of the government service ladder, it’s easy to determine. Cabinet
officials, for example, must all be confirmed, as must the heads of major executive
departments (Department of Justice, Department of Defense, etc.). At the opposite
end, mere employees clearly need not be confirmed.
-Principle officers: S. Ct. Justices, ambassadors, The cabinet (head of executive
departments) ect===> Must be confirmed by Senate.
-Inferior officers: Ordinary public officials===> Not confirmed by Senate
Morrison v. Olsen (1988)

Supreme Court found Act (post-Watergate Act allowing for a “special prosecutor” to
investigate misconduct in the Executive Branch) constitutional because the officer was an
inferior officer who did not operate wholly outside the executive department.
****A person who has magisterial power= Principle officer and must be confirmed.
****A person who has ministerial duties= Inferior officer.
Four factors to determine if someone is Inferior Officer (See Ross Outline)
1) Officer subject to removal by higher executive official
2) Breath and scope of duties
3) Scope of officer’s jurisdiction
4) Tenure of office at issue
Recess Appointments: If Congress is not in session the President can elect Principal
officials without confirmation by the senate under Article 2. § 2.
"The President shall have power to fill up all vacancies that may happen during the recess of the
Senate, by granting commissions which shall expire at the end of their next session."
****This is a temporary appointment but it is much harder for Congress to not confirm
the official when the official is already in office/serving.
Cannon Case:
Rule: The Recess Appointment clause applies when Congress was not in session
AND when Congress recesses for a short time DURING a session.
Tara Bush
****So the President can appoint principal officials when Congress is in Session but on a
recess.
**** The court stated that the recess had to be at least 10 days unless there was a national
emergency.
REMOVAL
RULE: The President can remove an official at his own choice without
Congressional Confirmation unless the official has Constitutional or Statutory
protection. (Myers)
ex. Cannot remove Supreme Court Justices because they have lifetime
tenure.
1. Other than providing for impeachment of the president and federal judges, the
Constitution is silent on the procedure for removal.
****Article II Section 4: "The President, Vice President and all civil officers of
the United States, shall be removed from office on impeachment for, and
conviction of, treason, bribery, or other high crimes and misdemeanors."
2. Generally, officers serving at the pleasure of the President (i.e. in an executive
agency) can be removed unilaterally by the President.
3. Congress can hypothetically create wholly independent agencies apart from the
executive functions, and this may be important, depending on the function of the office,
to prevent excessive concentration of power in the President.
4. The Court has rejected efforts by Congress to reserve for itself a role in the removal of
executive branch officials.
Myers v. U.S. (1936)

-The President removed the Post Master.
RULE: The president can remove a federal official, including Cabinet members, at
will without Congress's Confirmation.
EXCEPTION:
Humphrey's Executor v. U.S. (1934)
-Roosevelt removed an FTC Commissioner. Widow brought suit for backpay.
- Held: A statute stated that the Commissioner could only be removed for certain
reasons that were not satisfied.
-Court distinguished the postmaster from the commissioner.
-Independent Regulatory Commissions: make policy as an independent agencies
(not part of executive or legislature) free of political influences.
ex. Federal Trade Commission, Federal Reserve Board.
RULE: The President cannot remove members of Independent Regulatory
Commissions which are supposed to make regulations independent from
political influences.
The 20th Amendment

A History Lesson From Ross:
-Until 1933:
Tara Bush
(1) Congress was elected in November and would not take seat until December of
the next year. So people would not be serving until a year after they were elected.
(2) The President would "come to town" when Congress "left town."
-Two big events associated with this problem:
(1) Lincoln during the civil war.
(2) Johnson during Reconstruction.
****This was all solved with the 20th amendment. Under the "Lame Duck"
Provision elected Congressmen take seat on January 3rd after being elected
in November and when the President takes office Congress is in session.
****So the Lame Duck provision Shortens the length between when the
President is elected and when he takes office and does the same for
Congressmen.
22nd Amendment: No person shall be elected to the office of the President more than twice,
and no person who has held the office of President, or acted as President, for more than two
years of a term to which some other person was elected President shall be elected to the office of
the President more than once.
****President may only serve 2 terms plus 2 years. Roosevelt tried to serve 4!
25th Amendment (1967): Vacancy in the Officer of the President

States procedures for removing President because of disability, etc. Or what happens
upon death of President.
-The VP then becomes president. Previously, the Constitution held that the VP
would “act as President” but not necessarily become the president.
****Who becomes VP? Done by statute: Speaker of the House then Pro temp
-§ 2: Whenever there is a vacancy in the office of the Vice President, the President shall
nominate a Vice President who shall take office upon confirmation by a majority vote of
both Houses of Congress.
-§3: President may, in writing, transmit a written declaration that he is unable to
discharge his duties of office to the president pro tempore of the Senate and the Speaker
of the House.
-§ 4 Whenever the Vice President and a majority of either the principal officers of the
executive departments or of such other body as Congress may by law provide, transmit to
the President pro tempore of the Senate and the Speaker of the House of Representatives
their written declaration that the President is unable to discharge the powers and duties of
his office, the Vice President shall immediately assume the powers and duties of the
office as Acting President.
****So if a President is unable to discharge his powers/duties b/c of disability he can
be removed under section 4.
PARDON POWER: Art. II, § 2 cl. 1 declares the president commander‐in‐chief, grants power
to require opinions from the executive departments, and grants the power to pardon federal
crimes, except Impeachment.
PRESIDENTIAL WAR POWERS: THE PRESIDENT AS COMMANDER IN CHIEF

Tara Bush
Article II Section 2: "The President shall be commander in chief of the Army and Navy
of the United States."
The Prize Cases (1863)

- Lincoln issued an executive order blockading certain Confederate ports during the Civil
War.
-Lincoln was risking recognizing the Confederacy as a sovereign country by blockading
the ports b/c under international law you cannot blockage your own ports.
Issue: Could President Lincoln Blockade the ports on his own without Congress's
approval?
Held: YES! The court recognized a power in the President to act to protect the country in
Emergency situations without Congresses approval.
Court: The President has discretion to exercise war powers during a national emergency
without Congress's approval.
****This deals with the War Powers Resolution.
Congressional Authority to Declare War:

-Congress has the power to Authorize War, not the President.
War Powers Resolution (1973)

****Response to the Vietnam War.
President’s power to commence hostilities only proper when:
1) a Declaration of War
2) Specific Statutory Authorization, or
3) A national emergency created by an attack on the United States
-The President is to consult with Congress in every situation. If no declaration of war,
the president has 60 days after “written report” to Congress to cease activities.
****The War Powers Resolution allows the President to Act under emergency
situations but the President must almost immediately report to Congress. Congress
can either approve or not.
****The War Powers Resolution gives Congress the power to withdraw troops at
any time.
****Since 1973 Presidents have tried to obtain Congress's authorization BEFORE
beginning overseas conflict. Ross believes this is wise.
CONGRESSIONAL PRIVILEGE: "SPEACH OR DEBATE" CLAUSE

Art I. § 6 cl. 1: They shall in all cases, except treason, felony and breach of the peace, be
privileged from arrest during their attendance at the session of their respective Houses, and in
going to and returning from the same; and for any speech or debate in either House, they shall
not be questioned in any other place.
****Promotes free and frank communication by giving members of Congress absolute
immunity.
Ross on Speech and Debate Clause:

- Protects members of Congress from liability for defamation. Extends to:
1. Speeches/Debates on the floor of Congress;
Tara Bush
2. Any statement in the Congressional Record, even if not actually delivered;

-Statements made in committee hearings and reports;
****b/c so much is done in Committee these days.
-Speeches of Aides in Connection with Congressional Business.
Does not apply to:
1. Criminal activity;
2. Constituent services;
3. Newsletters;
4. Private publications;
5. Speeches delivered away from Congress
6. News Releases.
EXECUTIVE PRIVILEGE: JUDICIAL IMMUNITIES

EXECUTIVE PRIVILEGE & IMMUNITY, GENERALLY
-Theoretically, presidents can claim executive privilege or immunity in three general
scenarios
(1) Immunity from criminal prosecution
- Crimes committed before entering office
- Crimes committed while in office
(2) Immunity from civil liability
-Conduct before entering office (Clinton)
-Conduct while in office (Fitzgerald)
(3) Immunity from judicial process (subpoenas, interrogatories, etc.)
-Immunity from process in criminal cases (Nixon)
-Immunity from process in civil cases
Rebuttable Presumption of Privilege – Presidential Conversations Confidential

United States v. Nixon (1974 – J. Burger)
- A grand jury returned indictments against seven of President Nixon’s closest aides in
the Watergate affair.
-The special prosecutor appointed by Nixon and the defendants sought audiotapes of
conversations recorded by Nixon in the Oval Office.
-Nixon asserted that he was immune from the subpoena claiming "executive privilege"
(i.e. the right to withhold information from other branches to preserve confidential
communications within the executive branch or to secure the national interest.
Held/RULE: The Court stated that there is a presumptive executive privilege of the
President's communications but in certain instances where the disclosure is
necessary for the Judiciary or Congress to carry out its duties the Court will make
an exception to the Privilege unless the communication deals with a national
security issue. They made him turn over the tapes.
****The court recognizes a very strong presumption of privilege to the President's
communications but the privilege can be set aside to facilitate Congress or the
Judiciary in carrying out its duty unless the communication deals with a national
security interest.
****NOTE: If Congress does order the President to divulge information then
Congress can do an In Camera review and redact certain sensitive information.
Tara Bush
Presidents Have Absolute Immunity from Civil Liability for Acts Within Scope of Office
Nixon v. Fitzgerald (1982 – J. Powell)
- Fitzgerald, then a civilian analyst with the United States Air Force, testified before a
congressional committee about inefficiencies and cost overruns in the production of the
C‐5A transport plane.
-Roughly one year later he was fired, an action for which President Nixon took
responsibility.
-Fitzgerald then sued Nixon for damages after the Civil Service Commission concluded
that his dismissal was unjust.
RULE: The President is shielded by absolute immunity from civil damages liability
for acts done in his official capacity.
HELD: Found Nixon immune from prosecution. The Court held that the President "is
entitled to absolute immunity from damages liability predicated on his official acts."
This sweeping immunity, argued Justice Powell, was a function of the "President's unique
office, rooted in the constitutional tradition of separation of powers and supported by our
history."
LOOK UP CLINTON CASE
EXPRESS LIMITS ON STATE POWER: FEDERALISM AND PREEMPTION

PREEMPTION, GENERALLY
1. Congress may use any number of its powers (typically the Commerce Clause)
to prevent States from regulating activities that the States would otherwise be able
to reach. These would originally have been areas of concurrent jurisdiction.
2. In many such cases, Congress explicitly bars State legislation on a subject and
acts within a delegated power. In turn, State statutes on the subject are void.
3. Complications arise, however, when Congress does not explicitly bar State
legislation, but still acts acting within a delegated power potentially affecting
State power.
4. The federal preemption doctrine mandates that valid federal law, including
statutes, treaties, executive agreements, administrative rules, and common law,
supplants or supersedes state law that is inconsistent with the specific terms or
overall objectives of the federal law.
****So Federal Law pre-empts state law if the state law conflicts with the
federal law or Congress has occupied the field.
Three Categories of Preemption:

(1) Express Preemption: explicitly stated in the federal statute’s language;
(2) Implied Field Preemption: where the scheme of federal regulation is so pervasive as
to make reasonable the inference that Congress has left no room for the States to supplant
it
(3) Conflict Preemption: where:
1. Compliance with both federal and state regulations is a physical impossibility;
or where
2. State law stands as an obstacle to the accomplishment and execution of the full
Tara Bush
purposes and objectives of Congress.
Prigg v. Pennsylvania (1842)

- Judge Story upheld a 1793 Fugitive Slave Act and struck down a Pa. “personal liberty
law” (which made it a felony to remove a black person from a state without certificate of
removal) as interfering with federal law.
RULE: State Sedition legislation is unconstitutional under the pre-emption doctrine.
Arizona v. US (2012)
Held: States do have some power to regulate illegal immigration as long as the legislation
does not come into conflict with the Federal Regulation.
****This was NOT FIELD PREEMPTION. This was conflict pre-emption.
THE DORMANT COMMERCE CLAUSE

THE DORMANT COMMERCE CLAUSE, GENERALLY
1. Where Congress has exercised its affirmative power under the Commerce
Clause, we know that any conflicting state laws will the struck down under the
Supremacy Clause and the principles of preemption.
2. If Congress has not exercised its power to regulate interstate commerce in a
certain area or industry, the commerce power is said to be dormant. This
dormancy has generated the doctrine of the so‐called dormant commerce clause.
The dormant commerce clause permits States to enact regulations that may
affect interstate commerce if Congress has not enacted contrary laws and if the
state regulations would not unduly interfere with the flow of interstate
commerce.
States can enact regulations that regulate commerce/affect interstate commerce unless:
(1) The regulation comes into conflict with a Federal Law.
(2) Congress has preempted the field.
(3) The regulation discriminates against other states.
(4) The regulation unduly burdens interstate commerce/ interferes with the free
flow of commerce (Gibbons).
Dormant Commerce Clause Flowchart

1) Has Congress regulated? If yes look to pre-emption; If no look to DCC.
2) Is the State statute discriminatory or even-handed?
Discriminatory
-Does it favor/advantage in-state citizens and commerce over out-of-state citizens
and commerce? Or have an impact that is similar even if not facially
discriminatory?
If YES (Discriminatory) Strict Scrutiny Analysis is Applied:
1) What is the purpose or end pursued by the statute?
(a) If the purpose is admittedly Protectionist = Invalid.
(b) If the purpose if valid (health, safety, environment):
(1) If there is a tight fit to the mean and end=Valid
****There is a tight fit when no non-disc. alternative exists
Tara Bush
(2) If there is a loose fit= Invalid

****There is a loose fit when a non-disc. alt. exists
****Presumption of Invalidity.
Even-handed
Does it treat out-of- state citizens/commerce the same as in-state?
If YES (Non Discriminatory): Balancing Test:
-Does the burden on interstate commerce substantially outweigh the
benefits of state legislation? If YES = INVALID.
****So, if great state interest and slight burden=valid.
****If slight state interest and large burden=invalid.
****Presumption of constitutionality.
Serious Burden Outweighs Nominal State Interest [Passenger Trains]

Southern Pacific v. Arizona (1945 – J. Stone)
-By state law, Arizona banned operation of trains more than 14 passenger cars or 70
freight cars long.
-Trains would have to stop and detach before entering the state. HUGE BURDEN.
- Held: Though the non-discriminatory regulation concerning highway safety had a
presumption of constitutionality, the safety benefits of the regulation were outweighed by
the burden on interstate commerce.
****Essentially, the court weighed the safety benefits with the burden on interstate
commerce and found that the benefits did not justify the burden.
Rule: A state law that puts a significant burden on interstate commerce, yet
provides no real improvement in safety, will be found to violate the Commerce
Clause.
Economic Discrimination Not OK, Even in Enumerated Area of Control [Alcohol, 21st
Am.]
Granholm v. Heald (2005 – J. Kennedy)
-Via state laws, Michigan and New York allowed in‐state wineries to ship alcohol
directly to consumers but restricted the ability of out‐of‐state wineries to do so.
-In separate challenges, the state argued that the laws were valid exercises of the 21st
Amendment, which granted exclusive control of alcohol regulation to the states
Held: The state statutes violated the commerce clause by favoring instate businesses at
the expense of out of state businesses we unconstitutionally discriminatory. Explicit
discrimination against interstate commerce. States may not enact laws that burden out of
state producers or shippers simply to give a competitive edge to in-state business.
(Protectionist)
****Essentially, this is protectionist and unconstitutional.
****Congress has the commerce power to ensure a nationwide market and prevent
states from discriminating against each other.
-Per the Court, state authority to engage in economic discrimination was not the purpose
of the 21st Amendment. As such, the Amendment does not save state laws violating other
provisions of the Constitution.
Tara Bush
21st Amendment: Interpreted to grant the states the power to regulate liqueur. (dissent
argues this)
Ross on the 18th Amendment (Deals with the 21st Amendment argument here)
"After one year from the ratification of this article the manufacture, sale, or transportation
of intoxicating liquors within, the importation thereof into, or the exportation thereof
from the United States and all territory subject to the jurisdiction thereof for beverage
purposes is hereby prohibited."
****Essentially made liquor sale or production illegal.
Ambiguity according to Ross: What is intoxicating?
-Congress enacted law stating that everything that had alcoholic content
constituted intoxicating!
****A lot of people argued that the 18th amendment was Substantively
Unconstitutional Because it contradicted fundamental rights contained in the
Constitution: Due Process, separation of powers.
Argument against 18th Amendment: It does not act on the government it acts
directly on the people. Congress does not have the power through a constitutional
amendment to act directly on the people. All other amendments effect the structure and
management of the government with the exception of maybe the 13th amendment.
Can a constitutional amendment be unconstitutional?

- YES
- There are certain fundamental principles in the Constitution, and if the amendment
contravenes one of those principles, then it would be unconstitutional
Ex. Amendment ending Due proves
Kassel v. Consolidated Freightways Corp. (1981 – J. Powell)

- Iowa enacted a rule limiting the size of trucks using their highway. They stated that the
rule was for the safety and welfare of the people, and was therefore allowed under States
general Police Power.
-Held: Court rejected Iowa’s safety grounds. This rule imposes an undue burden on
****Essentially did a balancing test and stated that the burden on interstate
commerce substantially outweighed the benefits of the regulation. Court found little
to no benefit from the regulation.
Concurrence: Protectionist legislation is unconstitutional under the Commerce
Clause, even if related to safety concerns. (Focused on Protectionist not safety).
Dissent: The benefit of the safety regulation does justify the burden on interstate
commerce.
Less Discriminatory/Burdensome Alternatives Render Law Invalid [Pasteurized Milk]

Dean Milk Co. v. City of Madison (1951 – J. Clark)
- A Madison, WI city ordinance prohibited the sale of milk within city limits unless it
came from a local farm or was pasteurized at a certified plant within five miles. Dean
Milk was denied a permit to sell milk and filed suit against the City.
Tara Bush
Held: The Ordinance was unduly burdensome on interstate commerce. General

discrimination against non‐local producers was not sufficiently tailored to serve the
City’s interests. The Court identified two less discriminatory alternatives:
(1) The City could accept inspections performed in other places, or (2) it could
hire more personnel to inspect pasteurization plants located beyond the five‐mile
radius.
Here, besides being less discriminatory, both alternatives—since they involved
reducing burdens on interstate commerce rather than increasing the burdens on
local businesses—were also less burdensome.
Facially Neutral, Discriminatory Impact Renders Law Invalid [Washington Apples]

Hunt v. Washington State Apple Advertising Comm’n (1977 – J. Burger)
- In 1972, the North Carolina Board of Agriculture adopted a regulation requiring all
apples shipped into the state in closed containers to display only the USDA grade.
-Growers from Washington State, who uniformly employ higher standards than USDA
imposes, challenged the regulation as an unreasonable burden on interstate commerce.
-North Carolina justified the regulation as an exercise of the police power to create
uniformity and protect against fraud and deception.
Held: Struck down the statute as discriminatory. Although the labeling regulation was
facially neutral, it had a discriminatory impact on the Washington growers, and was
protectionism in that it was trying to keep foreign apples out and benefit local growers.
****The law was discriminatory to Washington apple growers, and no local benefits
were justified or alternative methods proven unavailable.
****Despite NC’s argument that the regulation was even-handed, the Court reasoned that
the regulation was discriminatory in that it raised the costs of doing business in NC
market for out of-staters, while leaving the NC apple growers unaffected.
****The burden was on NC to justify the discrimination in terms of local benefits
and the unavailability of nondiscriminatory alternatives.
Discrimination Against Commerce in Non-Economic Context [Waste]

City of Philadelphia v. New Jersey (1978 – J. Stewart)
- A New Jersey state statute prohibited the importation of solid or liquid waste into the
state which was originated or was collected outside the state.
-The City of Philadelphia challenged the statute as unconstitutional under the dormant
commerce clause.
Held: The statute was discriminatory. The Court found that there was a legitimate
state goal but there were alternative means of accomplishing the goal that were less
burdensome on interstate commerce. (A tax). The Court concluded that the statute
imposed on out of‐state commercial interest the full burden of conserving the States’
remaining landfill space. The Court distinguished quarantine laws (i.e. bans on
importing dead livestock) on the grounds that the sheer movement of waste through the
state does not endanger the health of New Jersey citizens.
United Haulers Assn. v. Oneida Sold Waste (2007 – J. Roberts)

Fact: “Flow control” ordinance required haulers to bring waste to facilities owned and
operated by a state-created public benefit corporation.
Tara Bush
H: Laws that favor the government in such areas, but treat every private business the
same, do not discriminate against interstate commerce. (Even handed)
Analysis: Distinguished from Carbone (similar ordinance) because the private
processing plant there was a private company. Favoring local government by its nature
differs from favoring a particular private company.
-Government is vested with the responsibility of protecting the health, safety, and
welfare of its citizens. Here the citizens and businesses within the state would bear
the costs of the ordinances.
-The benefits substantially outweighed any burden on interstate commerce.
-This case is somewhat of a retreat on the power of the DCC. Shows a reluctance on
the Court’s part to scrutinize economic legislation passed under the auspices of the
police power.
Minnesota v. Clover Leaf (1981 – J. Brennan)

-Minnesota law banning the retail sale of milk in plastic non-returnable containers was
judged not discriminatory or protectionist.
-Instead it regulated evenhandedly by prohibiting all milk retailers regardless of in-state
or out-of-state status.
****Act not clearly excessive in relation to local benefits and burden on interstate
commerce.
-Benefits to local pulpwood industry? Maybe, but out of state pulpwood producer would
absorb much of the benefits as well.
MARKETPARTICIPATION EXCEPTION
Generally, the dormant commerce clause applies to the states only when they tax or
regulate private trade in the national marketplace. If a state instead enters the
marketplace as a participant, its actions are treated as being like those of any privative
party.
State, When Selling in the Market, Can Refuse to Sell

Reeves, Inc. v. Stake (1980 – J. Blackmun)
-The state of South Dakota operated a cement plant. A substantial percentage of the
plant's production was sold to buyers outside the state. When a cement shortage arose the
State passed a statute that said all cement that was produced by the State run plan had to
go to state residents before outside orders were filled.
Held: The state was using its police power to benefit its citizens and the statute was
constitutional. The court found that nothing in the purposes animating the Commerce
Clause prohibits a State, in the absence of congressional action, from participating in
the market and exercising the right to favor its own citizens over others. The state, in
this case, was acting as proprietor, not regulator. Per the Court, Evenhandedness suggests
that, when acting as proprietors, states should similarly share existing freedoms from
federal constraints, including the inherent limits of the Commerce Clause.
***Taxing Power under Dorman Commerce Clause (four part test in Ross handout)
THE PRIVILEGES & IMMUNITIES CLAUSE of Art. IV § 2

Tara Bush
THE CLAUSE, GENRALLY

Article IV, § 2 cl. 1
The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
- The language of this clause has been interpreted to prohibit unreasonable
discrimination against out of state citizens with respect to fundamental interests/rights.
- In short, the clause provides out‐of‐staters a limited right of equality of treatment when
they visit other states.
Corfield List of Fundamental Rights (???)

(1) Right to pass through or travel in a state
(2) Right to reside in a state for business or other purposes
(3) Right to do business there, whether it involves trade, agriculture, professional
pursuits, or otherwise
(4) Right to take hold and dispose of property, either real or personal
(5) Exemption from higher taxes or impositions than are paid by other citizens of the
state
(6) Seeking medical services (Doe v. Bolton)
Analysis Flow Chart to Determine if A Statute Violates the Priv. and Immunities Clause
(1) Does the Statute Discriminate against out of state citizens?

(a) If YES: Who does it discriminate against?
(1) Corporations  do not have P.I. Claims.
(2) Aliens  do not have P.I. Claims
(3) Citizens: Does it affect a Fundamental Interest/Right?
(a) If YES: Does state have a fundamental reason for Discriminating?
(1) If YES: Is it a "Close fit?"
(a) If YES: Defendant Wins.
(b) If NO: P.I. Claim Wins.
(2) If NO: P.I. Claim Wins
(b) If NO: NO P.I. Claim
(b) If NO: No P.I. Claim.
Piper Case:
-State had to allow the people that passed the bar exam to practice law in the state EVEN
if they don’t live in the state.
State May Not Discriminate Solely Based on Residency

Supreme Court of Virginia v. Friedman (1988 – J. Kennedy)
- Myrna Friedman, a resident of Maryland, was hired at a law firm located in the state of
Virginia.
- Virginia statute made permanent residency a requirement for admission to the Virginia
bar without taking the bar examination.
RULE: The practice of law is a fundamental right/interest because it affects your
livelihood.
Tara Bush
Held: Virginia's residency requirement was unconstitutional. The Court held that "'one
of the privileges which the Clause guarantees to citizens of State A is that of doing
business in State B on terms of substantial equality with the citizens of that State,'"
and that the practice of law was sufficiently basic to the economy to be deemed a
privilege protected by the Clause. The Court found that the regulation discriminated
among otherwise equally qualified applicants solely on the basis of residency, failing to
bear a close relation to a substantial state interest.
****So, essentially, the practice of law is a fundamental right protected under the
P.I. clause and the statute was protectionism in that it protected local lawyers from
out of state competition. NO STATE INTEREST!
Baldwin v. Fish & Game Comm’n of Montana (1977)

- Court held that $225 elk‐hunting license fee for non‐residents (compared to $30 for
residents), did not violate the clause. Hunting is not a fundamental right/interest. Said this
is a sport, recreation so if the state has an interest they can discriminate.
- Court went further and said that the conservation of wildlife was an interest that
permitted the discrimination.
****Conservation of wildlife is a valid state interest permitting discrimination.
- Ross said we need to ask about the need for conservation and the number of people
coming into the state/ severity of the fee.
State Power to Tax Commerce (Ross handout)
 Complete Auto Transit, Inc. v. Brady (1977)

o The Supreme Court established a four-part test for determining the constitutionality
of a state statute that taxes commerce.
o Brady Test: (NEED TO KNOW FOR TEST)
 1) Does the tax have a sufficient nexus with the state that levies the
tax?
 2) Is the tax fairly apportioned?
 Looks at whether the tax is fairly appropriated between in state and
out of state activities
 3) Does the tax unfairly discriminate against interstate commerce?
 4) Is the tax fairly related to services provided by the state?
o For all practical purposes, courts also look at a fifth factor that is closely related to
the second factor: Would the tax expose the taxpayer to multiple tax liability?
(i.e., would the taxpayer have to pay the same tax in other states?)
 Oklahoma Tax Commission
o Court upheld an Oklahoma tax on the sale of bus tickets sold in Oklahoma for
interstate travel originating there.
o Brady Test Applied:
 1) Court held that there was a sufficient nexus with the state because the
ticket was purchased in the state for service originating there
 2) It was fairly apportioned because if every state were to impose a tax
identical to Oklahoma’s, no sale would be subject to more than one state’s
tax
 3) There was no discrimination against out of state activity
Tara Bush
 4) It was related to services provided by the state because the sale took
place wholly within Oklahoma
 Do NOT have to know the rest of the cases on the handout
 To what extent does this apply to the Dormant Commerce Clause?
o You do Dormant Commerce Clause test first, then do Brady test
The Contracts Clause (Article 1 § 10)
 Article 1 § 10
o No state shall enter into any treaty, alliance, or confederation; grant letters of
marque and reprisal; coin money; emit bills of credit; make anything but gold and
silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law,
or law impairing the obligation of contracts, or grant any title of nobility.
 Fletcher v. Peck (1810)
o State of GA sold vast tracts of land in 1795 to four large companies. Every legislator
voting for the measure sold his vote either for money or for shares of stock in the
companies. Public outrage forced the new legislature a year later to rescind the
statute.
o Issue: Did the repeal of a corrupt statute violate the contractual rights of prospective
settlers who purchased land from the companies?
o Court held that the legislature possessed constitutional authority to pass the initial
statute. The innocent third parties who bought land from the companies were not
responsible for legislative corruption or fraud.
 Charles River Bridge (1837)
o Massachusetts legislature had incorporated a company to build a bridge and take
tolls. This was a very lucrative business. Then after 20 years, the legislature built its
own bridge, which was toll free. Naturally, the business on the original bridge
decreased and owners of bridge came to court claiming a violation of contract.
o Court said “too bad,” the state never promised the corporation that it would not
build a rival bridge.
o Vested economic rights must yield to competition – want competition because this
promotes the economy
 Dartmouth College (1819)
o The college has been created as a charity school to instruct Indians in the Christian
religion. In 1769 it was chartered by the British crown as a private corporation. In
1816, New Hampshire passed legislation to increase the number of trustees in the
college and thereby transfer control to appointees of the governor.
o Court held this was unconstitutional because the state had granted the charter to
the private company and could not use its power to alter that contract.
o Provided the constitutional foundation for the development of business
corporations in this country
 Calder v. Bull (1798)
o The prohibition against ex post facto laws might have been used to protect contracts
and property rights, but in Calder, the Court restricted this constitutional provision
to criminal statutes only.
o States can pass ex post facto laws, but they still CANNOT impair contracts
 Sturges v. Crowninshield (1819)
o State of NY created a bankruptcy law
Tara Bush
o Court held that this was a violation of the Contracts Clause for a state to enact a
bankruptcy law to relieve debtors of their debt to creditors
o However, if one enters into a contact at the time the bankruptcy law is in effect, it is
NOT a violation of the Contracts Clause because the parties are on notice of the laws
then. (Ogden v. Suanders)
 Home Building & Loan Association v. Blaisdell (1934)
o Minnesota legislature created a statute that farmers would be given a grace period
to pay their mortgages, because too many farmers were having their land foreclosed
on and this would have been very bad for the U.S.
o The Farmers were not released from their debt and interest would be incurred
during the grace period, so Banks would get more money in the end (but they didn’t
care)
o Banks challenged the constitutionality of this under the Contracts Clause
o Court held that the “essence” of the contract had not changed since the farmer still
had to pay and it only delayed that time frame
o Court also held that emergency conditions do not create power, but they may
furnish the occasion for exercise of power.
 After Blasidell, if a State wants to create a statute that affects contracts, but does not nullify
the contacts totally, they can do so under their Police Powers/Emergency Conditions
Doctrine.
o Essentially the Contracts Clause doesn’t hold much power anymore
The Takings Clause
 Fifth Amendment - “… nor shall private property be taken for public use, without just
compensation.”
 Regulatory Takings
o Miller v. Schoene (1928)
 Virginia legislature passed law stating that infected cedar trees should be cut
down. Plaintiffs were ordered to cut down a large number of ornamental
red cedar trees, due to the threat to nearby apple orchards.
 The State did not exceed constitutional powers by deciding on the
destruction of one class of property in order to save another class, which is
of greater value to the public.
 This was not an actual taking
o Euclid v. Ambler Realty Co.
 The Court upheld zoning laws.
 Not a regulatory taking
o Penn Central Trans. V. NY (1976)
 The Court applied regulatory zoning analysis to zoning ordinances
 Three-Part Test to determine if zoning is a taking:
 1) What is economic impact of regulation?
 2) What is the extent to which it interferes with investment-
backed expectations?
 3) What is the character of the governmental action?
o Nuisance – powerful interests
o Aesthetics – lesser interests
o Lucas v. SC Coastal Council (1992)
Tara Bush
 Issue: Whether SC’s Beachfront Management Act’s dramatic effect on the

economic value for plaintiff’s lots was a taking of private property requiring
the payment of just compensation?
 H: Maybe not/remanded
 Facts: P planned to erect single family homes on two purchased lots, and
originally there was no obligation to obtain a permit.
 Analysis: 2 categories of regulatory action that are always takings
 1) Regulations that compel property owners to suffer a physical
invasion of his property
 2) Where regulation denies all economically beneficial or productive
use of the land.
 “Harmful or noxious use” principle (outdated?)¬- land may be proscribed by
government regulation without compensation if in the protection of the
health, safety, morals, or general welfare.
 Led to “substantially advance state interests” rationale. (modern)
 A function of the police power of the States.
 The State may choose not to compensate only if the nature of the owner’s
estate shows that the proscribed use interests were not part of his title to
begin with.
 Or, if pre-existing limitation existed on the landowner’s title.
 Or, to achieve principles of nuisance laws.
 For instance, if activity was not previously permissible under
relevant property or nuisance laws.
 Concurrence: What is Scalia talking about? The proper test should be the
possible deprivation to reasonable, investment-backed expectations.
Nuisance law analysis too narrow a test.
 Dissent (Stevens): The “valueless property” rule is arbitrary. 95%
diminished value and plaintiff recovers nothing? But 100% and plaintiff is
compensated?
o Kelo v. City of New London (2005)
 H. City could use its power of eminent domain to take property and sell it
for private development if used for a “public purpose.” (As opposed to a
“public use.”)
 Hugely controversial. 42 states have since enacted anti-Kelo legislation.
Substantive Due Process
 People have certain natural rights that are not explicitly in the Constitution. Those liberties
are protected under the Due Process Clauses of the 5th and 14th Amendment
 Per Ross: Idea is that government cannot deprive citizens of their fundamental rights
without a legitimate purpose or by means that are not rationally related to that legitimate
purpose, then the government has deprived them of their liberty of property without due
process of law.
 Rationale Basis Level of Review
 14th Amendment – “[N]or shall any state deprive any person of life, liberty, or property,
without due process of law.”
 5th Amendment – “No person shall be deprived …”
 Two Separate Time Periods
Tara Bush
o Pre-1937 Period
 Generally called “Economic Substantive Due Process”
 Before 1937, SC held that economic regulatory legislation was
unconstitutional because it deprived businesses and employees of their
property without due process of law because the legislation was not
sufficiently necessary or rational
 Court was who decided what was fair and rational
o Next Semester, Post-1937 Period
 Lochner v. New York (1905)
o New York’s Bake Shop Act prohibited bakery employees from working more than 60
hours a week or ten hours per day.
o Supreme Court held that the Back Shop Act was unconstitutional violation of due
process. This violated the liberties of the employer and employees.
o Violation of 14th Amendment because it was a violation of Liberty of Contract
o Rule: Law that unduly restricts liberty of contract constitutes a violation of
Due Process.
 There was no reasonable grounds in which it could be inferred that the State
was impeding a contract based on a legitimate exercise of police power.
o Court does not talk about Contract Clause
 Holden v. Hardy (1896)
o 9 years before Lochner
o SC had sustained constitutionality of a Utah statute that limited the number of hours
miners could work
o Distinction from Lochner – more protection on safety of miners (which is very
dangerous), whereas in Lochner, they was more concerned with the safety of the
public than the baker (which was less dangerous)
 Lochner Era
o Most people believed that this time was just the Supreme Court knocking down
State economic regulatory legislation. However….
o Between 1890-1937, the state and federal courts did sustain economic regulatory
legislation.
 Muller v. Oregon (1908)
o Supreme Court sustained the constitutionality of an Oregon law that limited the
number of hours that women could work
o Idea was that women needed special protection and were more vulnerable to
disease. Since women gave birth to children, they needed to be in particularly good
health for the benefit of the baby.
 Morehead v. Tipaldo (1936)
o Supreme Court struck down a statute involving minimum wages for workers in New
York.
o Interfered with right of employer and employee to negotiate time and rate at which
they work (liberty of contract)
 West Cost Hotel v. Parrish (1937)
o Supreme Court sustained constitutionality of a Washington State law that was
virtually identical to Morehead
o This was the DEATH of economic substantive due process
 Morehead was the last case that Supreme Court struck down a statute based
on economic substantive due process
o Called the Judicial Revolution of 1937
Tara Bush
 United States v. Carolene Products (1938)

o A 1923 act of Congress banned the interstate shipment of "filled milk" (milk with
skimmed milk and vegetable oil added). A manufacturer, indicted for shipping filled
milk, challenged the law.
o The Court upheld the Act. Congress’s “Filled Milk Act” was rested on a rational basis
within the knowledge and experience of the legislators. Lots of evidence for need of
regulation.
o The Court says there would be a presumption of constitutionality to economic
regulation. Unless the legislature is absolutely wacky, the Court will presume
constitutionality of economic regulatory legislation.
o Footnote 4: “There may be a narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a specific
prohibition of the Constitution.”
 If Congress enacts laws that restrict liberties that are listed out in the
Constitution, then there may be justification for a higher level of
scrutiny.
 Court applies higher level of scrutiny that affects liberties spelled out in the
Constitution, especially in the Bill of Rights.
 Roadmap for all of next semester
 Williamson v. Lee Optical (1955)
o An Oklahoma law prohibited persons who were not licensed optometrist or
ophthalmologist to fit lenses for eyeglasses.
o Supreme Court held that the law may have been “needless” or “wasteful,” but it was
the duty of the legislature, not the courts.
o Rational Basis Standard of Review
 Government has a legitimate purpose that people have healthy eyes
 The new law is rationally related to that purpose
 The Court openly speculates about this by saying there may be better
ways to go about this, but they leave it up to the legislation
 Economic Legislation has been evaluated under a Rational Basis Standard since 1937
o Which has been very broad. The Court does not look very closely to the “rationally
related” part of the standard
o Unless it is absolutely wacky, the Supreme Court will sustain the constitutionality of
it
 Non-Economic Liberties Legislation (Don’t think we really need to know this for exam,
we will cover this next semester)
o Supreme Court become more strict on this
o Myers v. Nebraska (1923) - Supreme Court struck down the teaching of German
provided in schools
 This interfered with Liberty of Contract with teacher who taught German
and schools
 The Court went on to say that there were also certain non-economic
fundamental liberties in the Constitution that could not be taken away
unless there was some very good reason for doing so
 Right to marry, raise children, worship God (these are non-economic
rights)
o Beginning in 1923, the Court became MUCH more protected with personal liberties
o 1923-1927 – Supreme Court used Substantive Due Process Clause to bring down
violations of personal liberties
Tara Bush
o 1920s-1965 – used Bill of Rights to protect personal liberties

o 1965 – Court confronted with statute that prohibited contraceptives
 They could not connect that to Bill of Rights, so they brought back
Substantive Due Process and said that it was not rationally related to
legitimate government interest
 If you don’t like what the Supreme Court is doing, how do you get around their decision or
change the course of the Court?
o 1) “Pack the court” with Justices that you like, or
o 2) Jurisdiction Stripping – Congress could withdraw the Courts jurisdiction to hear
those matters under Exceptions Clause, or
o 3) Not follow what they say – Gun Case, Chadha Case, or
o 4) Not give them a raise, or
o 5) Nuclear Option 1 – Amend the Constitution to overturn decision – 11th
Amendment, 16th Amendment, or
 Abolish lifetime tenure
 Elect federal judges or limit time in office
o 6) Nuclear Option 2 – Congress could abolish all courts outside Supreme Court and
that would severely limit what they could do (based on Art. III saying that Congress
can create courts, so they should be able to take them away), or
o 7) MOST COMMON – refashion legislation to make it Constitutional and comply with
Court’s decision
 This doesn’t disrespect the Court
Procedural Due Process
 Procedural Due Process is not concerned with content of legislation, but more with
the means by which the government goes about enforcing it. (NEED TO BE ABLE TO
DISTINGUISH FROM SUBSTANTIE DUE PROCESS FOR EXAM)
 2 Basic Questions in Procedural Due Process Cases
o 1) Is there any property?
 Cannot be deprived of Due Process without violation of property interest
o 2) If there is property interest, what procedures need to be undertaken for
that person to be deprived of that property?
 Right to Notice
 Right to be Represented by Counsel
 Right to present witnesses
 Right to have rules of evidence
 Rule to a written record
 Right of a written transcript
 Right of appeal
 These are given in every criminal cases, and also provided in many
administrative context, but the Court struggled with how many of these
rights should be given in each administrative context.
 Goldberg v. Kelly (1970) (welfare) – pre-termination hearing
o For welfare benefits, one has a right to a hearing BEFORE welfare benefits were cut
off
 Matthews v. Eldridge (1976) (disability) – no pre-termination hearing
o Court said there is no pre-termination hearing before disability benefits are cut off
Tara Bush
o Difference from Goldberg – person who lives on welfare desperately need welfare
benefits to eat, but if you are on disability you probably have other assets
 This is important because state governments cannot afford to give every person the full
benefits of all those rights.
 Fuentes v. Shevin (1969) (repossession) – pre-repossession hearing
o Does a finance company have to give a person a right to a hearing when they are
repossessing consumer goods? Yes, they do
o They must be able to be heard before it is taken away
 Sniadaoh (1969) (wage garnishment) – no pre-wage garnishment hearing
o There is NOT a right to a hearing before wage garnishment

Con Law I Outline Ross

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Con Law I Outline Ross

Загружено:

Авторское право:

Доступные форматы

Con Law I – Ross – Fall 2014

Con. Law: Ross Fall 2014

I. Brief History of The United States Constitution

Articles of Confederation: While state government were given open-ended grants of

Characters of the Articles of Confederation (1774-1788) Different from the

****Who is the ultimate arbitrator of the Constitution?

-What is the only basis for removing federal judges?

ARTICLE III, SECTION 2.

****Original jurisdiction- the court of first instance.

-Chief Justice’s title: Chief Justice of the United States

U.S. Supreme Court

4 Corners of Judicial Review

Precedent leading up to Marbury v. Madison: Essentially support for Marbury

1) Federalist No. 78- discussed judicial review.

Marbury v. Madison (1803- Marshall)

Issue 2: Do the laws afford Marbury a remedy?

Issue 3: What is the remedy? What would be the appropriate remedy?

Justification/Support offered to support Judicial Review: (bolded= my notes)

II. Argument Against this Decision/Case:

III. The Brilliance of John Marshall’s Opinion

Martin v. Hunter’s Lessee (1816 – J. Story)

-Virginia confiscated Lord Fairfaxes land which was left to Martin.

Where does this power come from?

Cohens v. Virginia (1821 - J. Marshall)

-Two brothers were convicted of selling DC lottery tickets in Virginia, in violation of

3 Main Accomplishments of the Marshall Court:

****So we now have the doctrine of Judicial Review.

Cooper v. Aaron (1958)

****Under Article 6 all public officials are bound by the Constitution.

V. Adequate and Independent State Ground Doctrine

Michigan v. Long (1983) (Not especially important)

-Mr. Long was stopped and his car was searched.

-YES, if the rights collide.

****What must the state court do?

 See chart on page 356-57 for Independent/Adequate Analysis

VI. Congressional Control over Federal Judicial Review:

****This question has only come up one time.

Ex Parte McCardle (1868)

VI. Case or Controversy: Justiciability:

-The words “cases or controversy” limit the courts’ jurisdictions to questions

resolution through the judicial process.

****Advisory Opinions****: The Supreme Court cannot issue an advisory opinion.

Prohibition of Advisory Opinions

obligations of the parties.

a. While advisory opinions are prohibited in the federal judiciary, declaratory

6. The Ashwander v. TVA “Brandeis Rules”—Justice Brandeis’ attempt to articulate the

the necessity of deciding it.

Political Question Doctrine:

ii. Criteria for political questions: Elements of a Political Question:

decided by a certain branch of government other than the judiciary then it is a

Luther v. Borden (1849) (He said he is not testing on this)

Powell v. McCormack (1969 – J. Warren)

Baker v. Carr (1962)

****This Case stands for a lack of judicially discoverable and manageable

Goldwater v. Carter (1979)

Nixon v. United States (1993 – J. Rehnquist)

Held: There was a textually demonstrable constitutional commitment granting the

DeFunis v. Odeggard (1974 – J. Burger)

****Essentially, one cannot be an interficious intermeddler.

(2) Federal Constitutional Standing [Three Major Categories]

(a) Individual Standing: In order to have individual standing a putative plaintiff

2. Causation: the injury must be fairly traceable to the Defendant’s

City of LA v. Lyons (1983)

(b) Citizen Standing: Unique personal injury required

Advisory Opinions: The Supreme Court cannot issue an advisory opinion.