Constitutional Law Outline

 Important Note: When there is a federal law, ask what enumerated power it is being enacted
with on the exam!! VERY IMPORTANT.
 Modes of Interpretation
 Textual – look to the exact language of Constitution. Check dictionary from the time
it was made/or now. Look to how the words were used in other contexts (ex:
federalist papers)
 Pro: being true to founders
 Con: narrow and difficult to evolve
 Historical – intent of frames – look to anything recorded, notes from the convention,
earlier drafts of the Constitution
 Pro: framer’s intent
 Con: they’re old, won’t evolve, history is subjective
 Doctrinal – look to precedent and SC cases
 Pros: easy because resolved in cases, consistency, modern approach
 Cons: “we the people” but judges interpreting, don’t want to be confined to
previous cases
 Structural – look to what Constitution says about terms and form relationships
 Prudential – cost and benefits of enforcing or not – cost/benefit analysis
 Pros: case by case, allows for differences, fairer
 Cons: obscure other values, not stable, inconsistent
 Ethical – to interpret, go and look to sources of overall social values
 Who Does the Constitution Govern?
 State Action Doctrine: The Constitution only applies to government actors.
 What Does the Constitution do?
 Establishes allocations that grant, allocate and limit government power
 Allocate
1. Separation of powers
2. Gives federal government limited, enumerated powers
 Grant
1. Federalism
2. Power structure where two government entities exercise concurrent
powers
 Limit
1. Limits on individual rights
 Sets rules for politics
 Serves as a pre-commitment device
 Effort to bind citizens at point A so that when you hit point B and become
impulsive, can’t do anything because locked yourself into commitments for
decades.
 Bind us from temptations and impulses. Need stability with our rules.
 How Can Other Branches Check Court’s Power?
 Amend Constitution through Art. V.
 Staff more judges onto the Court
 Impeach judges

1
  Amp up the tension
 Strip the Court’s jurisdiction
 Overall Themes?
 Avoid tyranny
 Preserve individual liberty
 Specialization
 Efficiency
 Support federalism by controlling federal power
 Checks and balances  blurs separation of powers
 Prevent tyranny but also create an efficient, effective government
 Functionalism v. formalism – do we want branches to be separate or no allow any
branch to disrupt the essential function of another branch
 Ex: President exercises legislative powers when vetoing a law; Congress
acts judicially under impeachment power; Congress control judiciary
through jurisdiction; Congress has executive power by declaring war
 Articles of Confederation
 Each state retains sovereignty. State governments appoint representatives with one
vote per state. States levy taxes. Congress has limited powers. Need unanimous
consent for amendments and no executive, national judiciary, power to tax or power
to regulate interstate commerce for Congress
 Problems: raising revenue, coordination in international affairs, western expansion,
malaise and economic downturn, unanimous consent requirement, not unified.
 Solution: get rid of AOC to make diplomacy easier, unify nation, economic benefits,
common defense and help western expansion
 Developed the Constitution
1. Separations of powers in the three vesting clauses
2. Dual sovereignty – federalism
3. Protect individual liberties
4. New amendment structure

Article III – Judicial Branch

 Judicial Review
 The power to declare laws enacted by Congress unconstitutional
 The power to declare actions taken by the President or other executive branch officers
unconstitutional
 The power to declare actions taken by state executives, legislatures and courts
unconstitutional
 All federal and state judges can interpret and enforce the constitution
 Basically power to tell Congress and President, no!
 Marbury v. Madison
 Facts: Pres. Adams wants to appoint Marbury as a judge at the end of his
presidential term. On last day, signs and seals commission but never
delivered. Pres. Jefferson sworn in and refuses to deliver commission.
Marbury filed suit directly with Supreme Court because original jurisdiction
to issue writ of mandamus (order to court asking it to order a government

2
 officer to perform a duty) (§ 13 of Judiciary Act of 1789 allowed suit in
SC).
 Problem: constitution says SC has appellate jurisdiction in all other
cases – filing suit directly to SC is original jurisdiction
 SC found § 13 unconstitutional because Congress can’t expand
original jurisdiction of SC. There is an exception section for appellate
jurisdiction in the Constitution but not for original jurisdiction which
shows framers didn’t want expansion for og.
 Holding: establishes judicial review over laws passed by Congress.
 Establishes the power of JR over executive actions – court claims
power to order the President to execute laws that Congress directs him
to execute = ministerial acts
 Ex: who Pres. chooses to appoint to cabinet
 Court recognizes some areas where the Constitution gives the
President full discretion over whether or not to act – these acts are
unreviewable by the court = political acts
 Ex: whether to veto a law
 Congress may not enlarge the S.C. original jurisdiction beyond the
areas listed in Art. III.
 Textual sources for judicial review:
 Vesting Clause: Art. III § 1 – vests judicial power in courts so they
interpret and apply the law
 Arising Under Clause: Art. III § 2(1) – “The judicial power shall
extend to all Cases, in Law and Equity arising under this
Constitution…” – Judges need to hear and make decisions about
constitutional cases
 Oath Clause: Art. VI (3) – judges are bound by oath
 Supremacy Clause: Art. VI (2) – If statute or action violates the
Constitution the Constitution preempts it. Can’t be supreme if don’t
empower judges to enforce the law and need JR to ensure remains the
law of the land
 Exceptions Clause: Art. III § 2 – give Original Jurisdiction to a
limited number of cases AND CONGRESS CAN’T
EXPAND IT
 SC has APPELLATE jurisdiction in all other cases
 Martin v. Hunter
 Facts: M claimed title to certain land based on inheritance. H claimed that
the state took the land before treaties (protecting right of British landowners)
came into effect so M didn’t have a valid claim to the property
 Holding: establishes judicial review over state court decisions and
interpretations of the constitution/federal law. Uniformity and state
allegiances.
 Counter-majoritarian Difficulty: when the court acts to declare a statute
unconstitutional, it acts against wishes of the people in a democracy.
 Judges are unelected and a democracy operates by majority rule (50% +1).
Judges are not democratically accountable. There’s a danger they will use

3
 judicial review to impose their personal policy preferences without any
democratic accountability.
 Opposing argument: we elect the President who then nominates judges.
Judges are elected at different times by different political parties so there is
accountability.
 Art. III, Section II
 Sets nine categories of enumerated powers that extends to the judiciary. To involve
judicial power, must be one of the nine. If not one of them, federal courts have no
power to hear or decide those cases
 Must be an actual case or controversy – not a hypothetical case
 Clause 2 = Exceptions Clause
 Sets out original and appellate jurisdiction
 Congress can determine the scope of courts appellate jurisdiction
 Jurisdiction Stripping statutes: Congress can use its power under the
exceptions clause to pass a law preventing either SC or lower federal courts
from hearing a case or a group of cases
 Ex Parte McCardle (1868)
 Facts: M was newspaper editor arrested for writing editorials critical to
Reconstruction. M filed writ of habeas to SC pursuant 1867 Act and
sought to have Reconstruction Act declared unconstitutional. SC held
oral arguments and during this time, Congress adopted a bill that
repealed the part of the statute allowing SC appellate review of writ of
habeas cases – its purpose was to remove M from the docket and
prevent invalidation of Reconstruction
 Holding: Congress has the express power to make appellate
jurisdiction exceptions, regardless of motives. Congress exercises its
power under the exceptions clause and stripped jurisdiction from the
Court to hear the case on appeal.
 Broad interpretation
 US v. Klein (1871)
 Facts: 1863 Congress adopted statute providing individuals whose
property was seized during Civil War could recover the property or
compensation for it – upon proof that they didn’t offer aid to the
enemy. SC held that a presidential pardon fulfilled statutory
requirement showing not a supporter of the rebellion. In response to
the pardons issued, Congress adopted statute saying pardons
inadmissible as evidence that aid wasn’t offered to the enemy
 Outcome: Congress has the power to limit appellate jurisdiction but
may not impose rules for court’s decisions. Congress could’ve just
stripped jurisdiction to hear these cases but they didn’t – cannot
impose what counts as evidence.
 Narrow interpretation – favors separation of powers; powers
are distinct and separate
 Justiciability Doctrines
 Derived from Art. III vesting federal courts with judicial power over certain types of
cases and controversies. They operate as a limitation on federal judicial power and

4
 come into play before a federal court hears a case on the merits. If a case is non-
justiciable, the court reaches no ruling on the merits and dismisses. Justiciability is
different from jurisdiction over a case – the court could have jurisdiction but the case
might be non-justiciable.
 Five Kinds:
 Bar on Advisory Opinions
 Prevents courts from deciding “abstract, hypothetical or contingent
questions.” Requires an actual dispute between litigants and the
court’s decision must have practical consequences for litigants. Not
judicial nature to make recommendations or decide something not
actually before the court.
 Ex: SC won’t advise the President about whether a proposed
legislation is constitutional – must be an actual dispute.
 Standing
 If there is no standing, then there is no case or controversy under Art.
III and the court has no power to decide the case.
 In order to bring a case to federal court, P must satisfy three
requirements for Art. III standing:
 Injury-in-fact
 An invasion of a legally protected interest which is
concrete and particularized, and actual or imminent,
and certainly impending, not conjectural or
hypothetical
 Causation
 The injury must be fairly traceable to the challenged
action and not the result of the independent action of
some third party that is not before the court
 Redressability
 It must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable
decision
 Groups that usually do not have standing:
 Ps asserting the rights of third parties (usually comes up when
organizations sue for injury to its member)
 Ordinary citizens bringing claims based on generalized
grievances
 Taxpayers – the government’s use of tax dollars to enforce a
law that a taxpayer thinks is unconstitutional is not a basis for
standing
 Allen v. Wright
 Facts: during a period of desegregation, there was aggressive
enforcement. White parents were pulling kids out of public
schools and sending them to all-white private schools so ended
up segregated. IRS steps in and offers tax exemptions making
school cheaper and available to wide range of people – but
need to show admits students of any race and doesn’t

5
 discriminate based on race. Getting more expensive so less
people will buy it.
 Outcome: 3 elements of standing developed – court says no
standing here. Injury must be distinct and palpable not abstract
or conjectural. Causation must be fairly traceable to the
challenged action. Redressability relief must be likely to follow
from a favorable decision.
 Court said numerous third parties involved; merely
speculative that this tax exemption would lead to
segregation; needed to be personally denied equal
treatment
 Lujan v. Defenders of Wildlife
 Facts: P sues to challenge a new regulation under a “citizen
suit” provision of the ESA allowing “any person” to bring suit.
Suing about effects that new agency regulation will have
abroad claiming they are being denied the opportunity of
enjoyment to see wildlife abroad (they wanted to go see
animals but won’t be able to because of a dam).
 Holding: no standing
 Rules: injury must be actual or imminent
 Clapper v. Amnesty Int’l
 Facts: P who are attorneys for foreigners outside of US.
Challenging the Foreign Intelligence Surveillance Act which
allows government to surveillance individuals outside the US
(suspected of terrorism). Claimed their injury is the cost to visit
client since will not want to call and objectively reasonable
likelihood that their communications will be surveillanced in
the future.
 Rule: injury must be ‘certainly impending’ – future harm is not
enough nor are highly attenuated chain of possibilities (injury
may never happen).
 court say it was speculative that they’d be targeted
 Prohibition Against Generalized Grievances
 United States v. Richardson
 Facts: taxpayer files suit alleging injury to taxpayer
right to know how their money is being spent
 Rule: injury must be particularized, not a generalized
grievance
 Exception that taxpayers can sue if government
violated establishment clause of 1st amendment
 Political Question Doctrine
 Applies to subject matter the court has deemed inappropriate for
judicial review and left to the politically accountable branches to
resolve (Congress, President). Courts invoke it when (two from
Baker).
 Baker v. Carr

6
  Six criteria to determine if PQD (but focus on 2 most
common):
 (1) textual commitment of the issue to a
coordinate branch of government
 Constitution explicitly says another
branch gets to make the decision
 (2) lack of manageable judicial standard
 Court is unable to come up with a
constitutional test that judges can apply
in a principled way
 **applied in Goldwater and in Nixon**
 “SPIDEY SENSE” subject areas where court is likely to invoke PQD
and rule the case non-justiciable:
 Foreign Policy (Goldwater v. Carter) – most common
 Congressional self-governance (filibuster)
 Electoral Process (partisan gerrymandering)
 Impeachment process (US v. Nixon)
 Art. V amendment process (guidelines for constitutional
convention)
 Why have PQD?
 Expertise in foreign policy for Pres. and Congress
 Minimize judicial intrusion – separation of powers
 Court legitimacy so branches can’t say “you and what army”
 Goldwater v. Carter
 Facts: President C. rescinded treaty from Taiwan. Senator G.
sues saying Senate must rescind treaty just like they have to
ratify when making one. C argues non-justiciable because
foreign policy so PQD. G argues Art. II requires 2/3 consent
from Senate to make treat so same should be for rescinding.
 Plurality Holding: used Baker test  textually demonstrative
commitment to allocate foreign policy to Pres. and Congress in
Art. II. & lack of discoverable and manageable standards
because Constitution silent about rescinding treaty.
 Nixon v. US
 Facts: N. was a former judge and convicted for making false
statements to grand jury & sentenced to prison. Refused to
resign while in prison so impeachment proceedings began by
committee of the Senate. N argued this violates Art. I because
Senate has sole power to impeach yet using a committee to do
it here. Senate argues (using Baker) can’t hear because PQD,
demonstrative commitment to Senate because Constitution says
“sole” power to them, lack of manageable standards because
Constitution silent on issue of Senate committee.
 Holding: challenges to impeachment and removal are non-
justiciable
 Ripeness

7
  Bars consideration of claims that are not fully developed
 Seeks to separate matters that are premature for review because the
injury is speculative and never may occur, from the cases that are
appropriate for federal court action
 Ex: P files suit seeking declaratory judgment challenging a law
before the law has ever been enforced
 Mootness
 Invoked when circumstances change in a case such that judicial
intervention is no longer necessary
 Ex: P dies before resolution of the case; student claiming
discrimination in denial of admission to a state law school but
graduates from another law school before case is resolved
 Exception: wrongs capable of repetition but evading review

Article I – Legislative Branch

 Article 1 Sections
 Section 1: Vests legislative power—the power to make law—into Congress.
Powers “herein granted” meaning only the 18 power enumerated in the Article.
 Section 2: House of Representative; elections; apportionment
 Section 3: Senate; structure; impeachment power
 Section 4: Rules of Congressional elections; state check on federal power
 Section 5: Each house controls their internal workings
 Section 8: 18 enumerated powers
 Focus on:
 Necessary and Proper Clause
 Commerce Clause
 Taxing Power
 Spending Power
 Doesn’t empower Congress to eliminate slavery
 Doesn’t allow Congress to veto state laws
 Section 9: list of don’t for Congress:
 Congress cannot suspend writ of habeas corpus
 Congress cannot give titles of nobility
 Congress cannot ban ex-post-facto (retroactive) laws
 Section 10: list of don’t for states:
 States can’t enter treaties with foreign countries
 States can’t start war
 This prevents economic warfare on states by forbidding them to
tax imports from state to state absent Congressional consent
 How can Congress check other branches?
 Only entity that gets funding; Can override Presidential veto; Can refuse to
confirm Presidential nominees; Oversight hearings; Impeach executive branch;
Impeach judges; Alter jurisdiction of federal judiciary
 Congress may act only if there is an express or implied authority in the Constitution
(enumerated power), whereas states may act unless the Constitution prohibits the action.

8
  Exam:
 Whenever you see a federal law, ask:
 (1) which enumerated power did Congress rely on?
 (2) what’s the scope and limits of that power?
 (3) what’s the standard of review the court applied to determine whether
the law falls within the scope of the power?
 Standard of review: how close the court looks to the
constitutionality of a government action
 “rational” & “legitimate” = if you see these words on an
exam, it means the court will not look closely to the action
and take the government for their word. Very deferential
and avoid the counter majoritarian difficulty.
 Congress only has enumerated powers that it can act on. States have police power in which
they have the general power to regulate health, safety, welfare and morals.
 Limits on state police power:
 Bill of Rights
 Art. 1, Sec. 10 list of don’ts
 Art. 6 Supremacy Clause that federal law trumps state law
 Why Separate Federal and State Powers?
 Check against self-interest & tyranny; Preserve individual liberties; Preserve
federalism; Specialization in one area; Localism; Democratic benefits; Police
experimentation on the 50 states before inflicted nationally
 Suggestion that Constitution seems to support slavery?
 3/5 Clause: when you count number of people in state, count free people and
those who aren’t free (slaves) count as 3/5 a person – when determining HoR reps
 Slave Trade Clause: prevents Congress from prohibiting importation from foreign
slaves
 Fugitive Slave Clause: if escaped slave comes to your state, you need to return
them to their original state
 Constitutional Challenges to Statutes
 Facial: statute is unconstitutional in all possible applications  remedy is that the
entire statue will be struck down
 As Applied: statute is unconstitutional as applied to the particular facts of this
case  remedy is statute remains valid but cannot be enforced against the parties
in this case or other similarly situated
 Doctrine of Constitutional Avoidance: when possible, courts should avoid issuing
constitutional rulings. If the claim is that a government action violates statute and
constitution, court more likely to rule action violates the statute. Court is more likely to issue
“narrowing interpretation” of the statute so that it conforms with the Constitution rather than
striking down the entire law.
 Federalism
 Relationship between the federal government and the states
 If Congress wants to act, must act pursuant an enumerated power
 DEFAULT RULE is states have the police power to regulate health, safety,
welfare, and morals. States have the power to regulate in any area that they want
unless the Constitution limits them.

9
  Dual sovereignty – the ability for federal and state governments to govern and
make law

10th Amendment
 Powers not delegated to the federal government and not prohibited to the states, are reserved
to the states or the people.
 Court has used 10th Amendment as a basis for the protection of state governments
from federal encroachment.
 Theories:
 Theory that states called the union into being and only gave up some
powers – states are the nation
 Theory that the power is in the people and the best representation of the
people is Congress so they should have broad power to interpret federal
power – people are the nation
 Theories:
 Truism: 10th Amendment has no real effect and just confirms that Congress must
act pursuant to an enumerated power
 State Sovereignty: even when Congress acts pursuant an enumerated power, it
can’t legislate in areas exclusively reserved to states under 10th Amendment –
‘force field theory’

Necessary and Proper Clause

 “Congress shall have the power 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 governments…”
 McCulloch v. Maryland
 Facts: during GW presidency, question as to whether Congress had the authority to
create the first Bank of the US. Strong favor and opposition of it. Chartered in 1790
and expired 1811. After war of 1812, serious economic problems so Second Bank of
US chartered in 1816. State laws were made to limit the operation of the bank and
Maryland tried to tax the bank and collect from McC. who was a bank teller. Sues for
failing to pay the tax.
 N&P Clause must always be used in conjunction with an enumerated power! It is
not a separate power.
 Argue broad interpretation: N&P is in a list of “do’s” in Section 8, not in the
list of “don’ts” in Section 9 of the Constitution. Worded broadly so need a
means to execute enumerated powers.
 Argue narrow interpretation: if broad, government would have unlimited
power making the enumerated powers a joke. Necessary means only when
absolutely necessary.
 Outcome: Congress has the power to charter a bank. Maryland does not have the
power to tax the Bank. Because Congress has the power to create the bank, they
cannot be taxed. State can tax themselves but not the federal government.
Unavoidable consequence of Constitutional supremacy.
 Impact: Court blew off the plain text. Supremacy Clause is an affirmative limit on
the states. States can’t tax the federal government. And N&P Clause is not an

10
 independent grant of authority – it provides Congress a means to exercise other
enumerated powers. **always refer to N&P and an enumerated power**
 US v. Comstock
 Facts: government action is a statute authorizing civil-commitment of individuals
currently in custody. C argue there is no enumerated power being acted on so violates
Constitution. Government argues that they acted under N&P and the enumerated
power to create prisons.
 Rule: Look to whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power.
 Rational Basis Scrutiny standard of review

Commerce Clause
 Article I, Section 8
 Congress shall have the power to regulate commerce with foreign nations, and
among the several states, and with Indian tribes.
 Commerce Clause is narrowly defined and 10th Amendment serves as an
independent, judicially enforceable limit on federal action.
 **Spidey Sense**: Commerce Clause issue only when Congress passes a federal law! Not a
state law, even if it regulates commerce.
 If you want to challenge a federal regulation, start with the Commerce Clause and
then the 10th Amendment. Even if it’s commerce, it could violate the 10th
Amendment if it is a power exclusive to the states.
 Congress can regulate in three distinct areas: [if a regulated thing or activity doesn’t fall
within these three categories, Congress cannot regulate it]
 (1) Channels of interstate commerce
 A channel is a route for interstate commerce. It is anything through which
interstate commerce is conducted. Congress has Plenary Power to regulate
these channels through regulating rates charged [for example] by railroad
companies.
 Ex: railroads, airspace, international highways, internet, telephone
lines
 (2) Instrumentalities of interstate commerce
 A vehicle or thing used to move good or services in interstate commerce
as well as people or things that are actually in interstate commerce.
Congress can use its power to regulate by [for example] making it a crime
to deface an airplane or transport fireworks across states.
 Ex: airplane that carries people between states, hazardous materials
that move from state to state, trucks that ship good across state
lines, cell phones
 **if talking about a federal law that directly regulates or is designed to
protect interstate commercial transactions or interstate transportation,
Congress is likely operating within its broad power to regulate channels or
instrumentalities of interstate commerce**
 (3) Activities that have substantial effect on interstate commerce

11
 Congress can regulate activities that take place entirely within a single
state as long as those regulated activities have a substantial effect on
interstate commerce.
 Critical Question to figure out if regulated activity has a substantial effect
on interstate commerce is, whether the class of activities Congress is
regulating is economic or commercial in nature?
 IF YES, the court is going to give deference to Congress’s judgment.
 Test: did Congress have a rational basis for concluding that the
regulated activity, in the aggregate, substantially effects interstate
commerce
 Very deferential standard of review
 IF NO, the court will closely scrutinize the connection between the
activity and interstate commerce
 Considerations:
 Larger Regulatory Scheme: the court will consider whether
the federal regulation is a part of a larger regulatory scheme
to address interstate economic activity
 Allows Congress to regulate activity that is non-
commercial and takes place purely within one state.
 US v. Lopez additional factors: these factors look beyond
whether the activity is economic or commercial in nature
and help determine whether the regulated activity has a
substantial effect on interstate commerce:
 (1) presence of jurisdictional element
 Requirement in the law that creates a direct
connection between the regulated activity
and interstate commerce
 Ex: fed crime to steal someone’s car if it had
been used in interstate commerce
 (2) legislative findings
 Court will look to whether Congress has
made findings about relationship between
regulated activity and interstate commerce
 Existence of these are not necessarily a
definitive factor particularly if the activity if
commercial/economic in nature  not
enough by itself
 (3) link between the regulated activity and
commerce
 Court will look to whether the link between
interstate commerce and the regulated
activity it too attenuated
 Court will reference federalism
considerations when trying to find links

12
  Congress may not use its commerce power to regulate inactivity.
(cannot force citizens to participate in the interstate market or to
purchase a particular good or service) (see NFIB)
 Development of Commerce Clause Doctrine
 Early Period (Gibbons -1885) – Broad
 Lochner Era (1885-1937)
 Court is conservative and has narrow definition of commerce clause
 Post-Lochner Era (1937-1995)
 Court does not over turn fed legislation; Very broad
 Modern Era (1995-Present)
 Court seeking middle ground
Lochner Era
 Gibbons v. Ogden
 Facts: NY grants a monopoly to a company who then exclusively licensed O to
operate a ferryboat between NJ and NY. G was competitor and operated under a
federal license. O sues G.
 O argues Commerce Clause doesn’t include navigation – just commerce of
trading goods
 G argues Commerce Clause gives Congress power to issue licenses and
NY must abide by them because of the Supremacy Clause. Commerce
includes navigation because it’s a means to fulfill and manage commerce.
Commerce should be interpreted broadly.
 Outcome: NY exclusive license invalid under the Supremacy Clause. Expansive
definition of commerce – broad power to Congress. Power to the states extends
not only to state lines but in the interior as well or the power would be useless –
intermingled with states.
 Rule: Congress can’t interfere with internal commerce that is only in the state
unless it potentially effects other states. Congressional power to regulate interstate
commerce does not stop at the external boundary line of a State.

Post-Lochner Era
 US v. Darby
 Facts: D is lumber company charged with violating the federal minimum
wage/maximum hour laws (Fair Labor Standards Act).
 Holding: 10th Amendment is a truism. Congressional motive is irrelevant.
Congress can regulate intrastate activities so long as it affects interstate
commerce. The power of Congress over interstate commerce extends to intrastate
activities, which so affect interstate commerce, or activities whose regulation
furthers the attainment of an end that is legitimately under Congress’s commerce
power.
 Wickard v. Filburn
 Facts: F owned small farm where harvests wheat. Agricultural Adjustment Act
gave allotment requirements for wheat and penalized F for growing surplusage of
wheat then allowed. F argues Congress doesn’t have the power to regulate the
what because local in nature and not commerce.

13
  Court: even though local and might not be commerce, Congress can regulate it if
it has a substantial economic effect on interstate commerce. Wickard
Aggregation is to consider all of the activity together, not one activity in isolation
(if you aggregate what F is doing with everyone and everyone grows their own
wheat, then there would be no market for wheat)
 To argue against aggregation, argue that it’s intrastate activity and not
really commerce because doesn’t substantially effect economic or
commercial activity
 Darby and Wickard = can use aggregation to find a substantial economic effect
 Heart of Atlanta Motel v. US
 Facts: D owns a motel readily accessible to interstate and state highways – wishes
to continue racially discriminatory operations in spite of the Civil Rights Act
barring such in places of public accommodation.
 Outcome: Substantial effect (and connection) of this discrimination because it
would affect the amount of people who travel and reduce the amount of money
they spend. The power of Congress to promote interstate commerce also includes
the power to regulate the local incidents thereof, including local activities in both
the states of origin and destination, which might have a substantial and harmful
effect upon that commerce.
 Ollie’s BBQ Case – rational basis
 Facts: Ollie’s is a family owned restaurant in Alabama located on a state highway
blocks. Caters families, white-collars, and only offered take-out for blacks; no
seating for blacks.
 Congress has the ability to require desegregation of restaurants under the
Commerce Clause where the establishment serves interstate travelers or offers
food that a substantial portion of which has moved in interstate commerce.
 Rule: as long as Congress has a rational basis for finding a particular regulation
necessary to protect interstate commerce, it is okay.
 VERY deferential standard of review
 Exam
 Make explicit links and connections between the regulated activity
and how it’ll affect interstate commerce as the government

Modern Era
 US v. Lopez – channels, instru., substantial effect
 Facts: Gun-Free School Zone Act passed by Congress making it a federal offense
for anyone to knowingly possess a firearm in a school zone. D charged under this
when brought gun to school.
 D argue Congress exceed its Commerce Clause power because possession
a gun doesn’t contribute to interstate commerce. No national argument,
truly local.
 Government argues possession of a gun has a substantial effect on
interstate commerce because it threatens education and safety, discourages
travel, and imposes insurance costs. In the aggregate, effects national
economy in those ways. Court should use deferential standard of review
because Congress has broad power under commerce clause.

14
  Holding: Three categories of activity that Congress can regulate: (1) channels, (2)
instrumentalities, and (3) activities with substantial effect on interstate commerce.
Only the third category applies here so look to see if activity substantially affects
interstate commerce. If regulating non-economic activity [like possession of a
gun] look to see if (i) jurisdictional element, (ii) legislative findings, or (iii) link
between the non-economic activity to interstate commerce. The court is basically
telling Congress to do work if they want to regulate non-economic activity –
unconstitutional here.
 Material facts here: no jurisdictional element, relationship of regulated
activity to interstate commerce was too attenuated, lack of legislative
findings about why this law was created and what the impact on interstate
commerce is
 Court mentioned federalism themes – criminal law and education usually
left to states, no room for states to regulate here; Congress was trying to
regulate activity that is left to the states.
 US v. Morrison
 Facts: woman was raped at Virginia Tech. and sued under Violence Against
Women Act which allows victims of to sue in federal court for civil damages.
Congress passed this statute in response to states not doing enough to protect
victims. Government argues statute is constitutional since gender based violence
substantially affects interstate commerce because it deters travel, deters business
and loss of productivity since victims not at work and in the hospital [which also
increased medical costs]. M argues gender based violence is non-economic
activity like Lopez that doesn’t have a jurisdictional element and not legislative
findings alone are not dispositive.
 Holding: this is unconstitutional.
 Rule: Court will use close scrutiny when Congress is regulating non-economic
activity, even if legislative findings are present. Intrastate activity will be viewed
in the aggregate only if such activity is economic in nature. No aggregation if the
activity is non-economic.
 Material facts here: legislative findings are not enough even when
present because slippery slope and could ruin federalism; no jurisdictional
element; the law was regulating non-economic activity
 Gonzalez v. Raich – defines “economic”
 Facts: California statute allowed those who are seriously ill to have access to
medical marijuana without criminal prosecution. Federal Controlled Substances
Act prohibits all times of uses of marijuana. DEA went to plaintiff’s homes and
seized their marijuana plants even though they were lawful under Cali. law. Ps
seeking injunction against enforcement of the federal law claiming it exceeds
Congressional authority under the Commerce Clause because it’s non-
economicactivity, there is no jurisdictional element, no legislative findings and all
local activity. Government argues larger regulatory scheme to regulate the
interstate market so if it sweeps in non-economic activity, it’s okay since scheme
and don’t want marijuana in the market so prices stay high and hard to get.
 Holding: federal law is constitutional! This is “quintessentially economic”
activity. No requirement of particularized findings by Congress on the substantial

15
 effects. Wickard involved a commodity market (wheat) that Congress sought to
protect and stabilize. Congress’s power to regulate commerce STILL includes the
power to prohibit commerce in a particular commodity. Aka Congress can use its
power to regulate to SHUT DOWN a market.
 Rule: If there is a “rational basis” for believing that something will happen [like
more weed will be sold and because more accessible], regulating the economic
activity is enough! Very deferential standard. If it is non-economic activity being
regulated, ask if it is part of a larger regulatory scheme to regulate the market and
look to whether there is a jurisdictional element and legislative findings to create
a closer nexus.
 Economic is defined as ‘the production, distribution, and consumption of
commodities”
 NFIB v. Sebelius
 Facts: Affordable Care Act [Obamacare] includes an individual mandate that
requires individuals to purchase health insurance from private insurance
providers; if do not, additional tax penalty for failure to comply. Act also includes
a Medicaid expansion that expands the scope of Medicaid coverage through
addition grants. If states do not comply, they lose all Medicaid funding including
what they already had.
 Opposing argues that Congress doesn’t have the authority under the
Commerce Clause to regulate because they are not regulating economic
activity that substantially affects interstate commerce—no activity is
occurring!
 Congress argues authority under the Commerce Clause because regulating
economic activity that taken in the aggregate, substantially affects
interstate commerce. Designed to regulate the drug health care market just
like Gonzalez and in the aggregate, affects everyone because high rates
since many people don’t have insurance but get sick and can’t pay like in
Wickard.
 Holding: individual mandate not valid under the Commerce Clause because it
does not regulate activity. Congress cannot force individuals to engage in
commerce or regulate inactivity [this might be dicta but 5 justices agreed so
take seriously]. Congress can only regulate commercial activity, not force non-
active individuals to become active in commerce.

Commerce Clause Line of Argument

 Is it economic activity? [use definition given from Gonzalez]
 If yes, defer to Congress and apply the “rational basis” test
 If no, look to see if it is part of a larger regulatory scheme? Jurisdictional
element? Legislative findings?

Federalism Based Limits on Congressional Power

 Conditional Spending (Dole, NFIB)
 Anti-Commandeering (NY, Printz, Reno)
 § 5 of the 14th Amendment (Boerne)
 11th Amendment State Sovereign Immunity interrelated
i

16
Taxing and Spending Power
 Article I, Section 8
 Congress shall have the power to lay and collect taxes…to pay the debts and
provide for common defense and general welfare of the US.
 Taxing Power
 Congress has broad authority to tax and spend for the “general welfare.” Congress
is not limited to tax and spend based solely on the enumerated powers in Art 1.
They may tax for whatever reason so long as it is to advance a public policy or for
general welfare. Anytime Congress taxes something, it indirectly regulates what
people do – this is another way Congress can somewhat control activity they
cannot regulate. Power to tax is the power to raise money. 16th amendment allows
Congress to lay an income tax.
 NFIB v. Sebelius
 Government argues this is a tax because it raises revenue for the
government and most taxes affect individual conduct anyways.
Challengers of the statute argue it is a penalty, not a tax, because it
regulates behavior.
 Court says individual mandate is within Congress’s taxing power because
it raises money, regardless of the motive. Power to tax is very broad.
 Spending Power
 “to pay the debts and provide for common defense and general welfare of the US”
 **Spidey Sense** - when Congress grants federal money to a state conditioned
on that state doing something  conditional spending
 Underlying federalism concerns because threatens state sovereignty and
kind of goes against 10th amendment. Political accountability problem
because Congress can use conditional spending to do something unpopular
but they will not get the hit for it – state legislators will.
 South Dakota v. Dole
 Facts: SD challenging a federal law that withholds 5% of highway
funds from any state with a drinking age less than 21 years old.
Lose 5% if don’t raise the drinking age – conditional spending. SD
argues no relationship between the money and the condition
imposed and violates the 10th amendment powers reserved to the
states; infringing on state sovereignty.
 Holding: non-coercive financial incentives by Congress are a
constitutional exercise of spending power. This is constitutional
and the 5% minimal threat is not coercive.
 Rule: Four-part test for conditional spending:
 (1) must be in pursuit of the general welfare – high
deference to Congress
 (2) the condition must be unambiguous – condition must be
clear
 (3) must be a relationship between the condition and the
spending

17
  (4) cannot conflict with the constitution and cannot be
coercive.
 NFIB v. Sebelius
 Congress argues that this is just like Dole and that states either
accept or they’ll lose some money. State argues this is so coercive
and a threat because if they do not accept, they look all funds, both
old and new.
 Court says the Medicaid expansion conditional spending program
is unconstitutional! It is coercive. Congress could’ve just taken
away new money and would’ve been fine but cannot take the old
money too.
 Size of grant and size of pre-existing money matters for conditional spending
problems!

10th Amendment & 11th Amendment

10th Amendment
 Powers not delegated to the US by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.
 This amendment deals with state sovereignty.
 Most of the time, 10th amendment arguments are losers. For anti-commandeering, there is a
distinction between prohibition and affirmative duties (Reno) and between generally
applicable laws and laws targeting states exclusively (Reno).
 Real question here is what powers are reserved to the states?
 Truism: 10th Amendment has no real effect and just confirms that Congress must
act pursuant to an enumerated power; no affirmative limitation on federal power
 State Sovereignty: even when Congress acts pursuant an enumerated power, it
can’t legislate in areas exclusively reserved to states under 10th Amendment –
‘force field theory’; example of tradition state authority = family law.
 Garcia v. SAMTA
 Facts: 10th amendment challenge to the Fair Labor Standards Act and its
application to a city’s mass transit system. The rule that the 10th amendment
prohibits regulation of matters of “traditional state function” is unsound and
unworkable – overrules National League of Cities.
 Material fact: amendment to the statute makes it now apply to state and
local government, not just private individuals; Law of general
applicability
 Enumerated power used: Commerce Clause
 Court adopts the truism theory in this case and upheld the law – no areas of the
traditional state authority where the federal government is prevented from acting
by the 10th amendment. This means Congress is only limited by the scope of its
enumerated powers under Article I. Court says states protect themselves in other
ways such as political safeguards – can use elected officials as a check on federal
government

18
  Federalism arguments still influence the Court (Lopez – criminal law
reserved to states; NFIB – coercive on state-sovereignty), even if the 10th
Amendment does not provide an affirmative limitation.
 Affirmative Limit on Federal Power = Anti-commandeering
 One major area where the 10th amendment provide an affirmative limit on
Congress is through anti-commandeering. Commandeering arises when the
federal government tries to force a state to adopt or administer a federal program.
The 10th amendment prevents the government from forcing a state legislator to
pass legislation (NY v. US) or require state executive officials to administer or
enforce a federal program (Printz).
 Anti-commandeering principle: federal government can’t come in and
commandeer a state’s resources. Can’t make a state pass a law and can’t require
state employees to enforce a federal law.
 Note on exam that Congress can use conditional spending or
preempt the industry from states and make it federal government
industry RATHER THAN commandeer.
 NY v. US
 Facts: Congress passed law (in response to states wanting to divvy up the
burden of waste sites) requiring states to provide for disposal of
radioactive waste generated within its borders or “take title” of it.
 NY argued violates 10th Amendment because trying to force states to pass
a law and then saying how they need to enforce it by requiring them to
enact another law or acquire billions in liability. Government argues 10th
amendment is a truism like in Garcia.
 Outcome: unconstitutional! Not like Garcia because that was a law of
general applicability because it applied to public and private employers -
whereas here this law is directed at the states and tells them to do
something (commandeering). No accountability; voters will blame the
states so this undermines the democratic process.
 Printz v. US
 Facts: Brady Act requires state employees to make reasonable efforts to
run background checks within five days. Congress ordering state officials
to implement a federal program. P argue government is commandeering in
violation of 10th amendment by forcing officials to implement the rule.
Government argues this is different from NY v. US because not requiring
to make law but just to implement so not a great intrusion.
 Outcome: unconstitutional! Directed at state officials (not generally
applicable). Could’ve been constitutional if Congress used conditional
spending to achieve the same goal.
 Rule: federal government can’t command state officials to administer or
enforce a federal regulatory program/law.
 Fundamentally incompatible with dual sovereignty, infringes on
Presidents power, lack of accountability and hurts federalism.
 Reno v. Condon
 Facts: Congress passed law protecting information given to the DMV by
not allowing the private information to be sold without the driver’s

19
 consent. Penalties if don’t comply. This law applied to state and private
persons – law of general applicability.
 State argues violates 10th amendment because it’s commandeering
state officials since requires state to implement the law and get
punished if fail to comply.
 Government argues different from Printz because law of general
applicability since applies to states and individuals (Printz applied
only to state officials). This is regulating states in the market. This
is a prohibition whereas in Printz, affirmative force to do
something.
 Outcome: constitutional! Generally applicable law and doesn’t just target
states. It is telling states to cease action, not forcing them to affirmatively
do anything. Would be unconstitutional when there is an affirmative duty
on the states to do something.

11th Amendment
 This amendment deals with sovereign immunity from suit in federal courts. It operates as a
limit on the power of federal courts to enforce federal law against the states – important for
federalism.
 Sovereign immunity  two types covered.
 Federal Immunity: Federal government and agencies are immune from suit by
private individuals unless they allow themselves to be sued.
 State immunity: governed by the 11th amendment and provides state immunity
from suits brought by citizens of other states and citizens of their own state in
federal court.
 **Spidey Sense** of an 11th amendment issue: When P is suing a state for money damages
for violating a federal law.
 WHEN THIS HAPPENS, pay attention to whether one of the 11th amendment
exceptions apply, particularly Congressional Abrogation under the enforcement
powers (13, 14, and 15th amendments).
 Four Major Exceptions to State Sovereign Immunity Allowing Citizens to Sue
 (1) suits by US – federal government can sue the states
 (2) state waiver – waiver must be explicit
 (3) state officers can be sued for injunctive relief (not money damages) for
violating the Constitution or federal law, in their individual capacity (Ex Parte
Young)
 (4) Congressional Abrogation only when Congress passes legislation under its
Section 5 power of the 14th Amendment. (13, 14, 15 Amendment).
 Congress can abrogate (do away with) states 11th amendment and allow
them to be sued in federal court by making a law abrogating it.
 When Congress does this, they must:
 (i) pass a law using its § 5 power
 (ii) expressly create a cause of action for an affected person to
obtain money damages for a state violation of that law
 (iii) expressly state that Congress is abrogating the states
sovereign immunity

20
Section 5 of 14th Amendment
 “Congress shall have the power to enforce by appropriate legislation, the provisions of this
article.” - § 5 power can only be used to regulate states and state officials; not private
conduct.
 **Spidey Sense** of abrogation issue: When P is suing a state for money damages for state
violating a federal law.
 Under this issue, if Congress if using § 5 power to abrogate state sovereign
immunity [under the 11th amendment], then you know that citizens can sue so you
need to look to the congruent and proportionality test to determine if the
abrogation is appropriate [aka the remedy and violation are congruent and
proportionate)
 US v. Morrison
 Facts: VAWA gives victims of gender-based violence a cause of action to sue
their alleged perpetrators in federal court for civil damages. Court says no
Commerce Clause power so then goes to Section 5 argument.
 M argues Congress can only regulate states, not private actors as per
Section 1 of the 14th amendment. Government argues that the state official
is not going enough to remedy this problem so Congress needed to step in.
 Outcome: unconstitutional. The text of the 14th amendment says state action –
Congress cannot regulate private individuals under the 14th amendment (but
maybe under another amendment).
 Scope of Section 5 Power
 Section 5 is a remedial power. it gives fixes for actions of states who are violating
rights. Congress cannot create new rights or expand the scope of existing rights;
Congress can act only to prevent or remedy violations of rights, and such laws
must be narrowly tailored in that they constitute a proportionate and congruent
measure to prevent and remedy constitutional violations. 11th Amendment –
prevents state from being sued in federal court by citizens for money damages.
Congress can abrogate the state immunity under the 11th amendment only by
valid action under Section 5 of the 14th amendment.
 Standard of Review
 Rational Basis  statute must be rationally related to a legitimate state
interest [very deferential]
 Greater leeway (Hibbs)
 Strict Scrutiny  statute must be narrowly tailored to a compelling state
interest [ex: when states discriminate against race, courts will closely
look]
 Less leeway (Garrett)
 Congruence and Proportionality Test
 **Spidey sense** - use this when Congress is using it’s § 5 power under the 14th
amendment.
 (1) what is the substantive constitutional right that Congress thinks states are
violating?
 (2) has Congress identifies a “history and pattern” of unconstitutional violations
by states?

21
  (3) is the remedy congruent and proportional to the documented violations?
 City of Boerne v. Flores
 Facts: church in Texas wants to enlarge its facilities and is denied a permit based
on local law. Use RFRA which prohibits government from burdening free
exercise of religion even if law of general applicability unless they can provide
good reasons [high standard of review] – gives cause of action.
 Enumerated power: § 5 of 14th amendment
 B argues that RFRA is unconstitutional under § 5 of 14th because it
is not enforcing any substantive provision…it is altering the Free
Exercise Clause by adding additional requirements.
 Material fact: potentially challenge any generally applicable law that
burdens religion as a basis to sue in federal court
 Outcome: unconstitutional because too broad - applies to any general applicable
law by state and local government. It is a very hard standard to meet that applies
to a wide range of laws. §5 is a remedial power.
 TEST – there must be congruence and proportionality between the injury that
congress is trying to remedy (i.e. the unconstitutional conduct by states) and the
means that Congress is trying to achieve.
 if a lot of violations [history and a pattern], remedy can be broader
 if not many violations, remedy should be narrower and smaller
 Note: when making a law, you want to create a record of evidence of the history
and pattern of conduct and make sure your remedy is congruent and proportional
to the violation.
 Board of Trustees v. Garrett
 Facts: G is a nurse and took leave from work after diagnosed with breast cancer.
She was then told to take a lower paying position. Sued under ADA which gave
citizens a cause of action in federal court for money damages is discriminated
against for disabilities.
 Enumerated power: § 5 of 14th amendment
 UNCONSTITUTIONAL! Court analysis:
 What is the right Congress is trying to enforce?
 Right to be free from disability discrimination. [not in the text of
14th amendment]
 Old Cleburne rule that use rational based scrutiny for this
classification
 Has Congress identified a history and pattern of state violating right?
 Examples from private individuals – few of state officials which is
what the 14th amendment governs
 Is the remedy congruent and proportional to the documented
discrimination?
 Amount of state activity (discrimination) is small and this punishes
discrimination whether it is reasonable or not.
 Very expensive remedy (accommodation requirement) and very
broad
 Nevada v. Hibbs

22
  Facts: FMLA creates private right of action for citizens to sue state in federal
court for money damages if they violate their right to be free from sex
discrimination. State argues FMLA violates Congress power under § 5.
 Record: higher % of women; state laws and policies applied in
discriminatory ways (15 states provided for women, 4 for men)
 Remedy: limited remedy and not overbroad. There was a wider range of
unconstitutional activity in this case as opposed to Garrett.
 Outcome: constitutional! Sex discrimination is given a heightened level of
scrutiny [it is in the text of the 14th amendment]
 Distinguishing Garrett
 Congress will get more deference where there is a heightened scrutiny
applied to the constitutional violation that Congress is trying to remedy or
prevent. The sex-based discrimination was a material fact here and such
classification falls under intermediate scrutiny. In Garrett, disabilities fall
under rational basis, thus the court scrutinized the evidence Congress puts
forth to establish a history and pattern of discrimination to remedy.
 Note that takeaways from these two cases are that sex discrimination is looked at
with heightened scrutiny and disability discrimination is looked at with rational
basis scrutiny. Try to find as many examples of state employers discriminating as
possible as opposed to private employers.
 Alden v. Maine
 Congress cannot use its Article I power to abrogate state sovereign immunity in
state courts either!

Article II – Executive Branch

 Vests executive power in the President
 Enumerates the powers the President has – if the president wants to act there must be a
Constitutional basis for the power
 President’s institutional advantages: single person v. multi-member body - one
person can make decisions more quickly; 24-hour responsibility vs periodic
sessions
 Very little precedent in Article II because most issues settled between Congress
and the President informally. For this section, history = precedent.
 Section 1
 Vesting Clause
 Does not contain the word “herein” – might provide textual basis for the
president to enjoy some implied or inherent powers”
 Independent from Congress
 Qualification Requirements
 Four-year renewable term; National constituency - More consist foreign
policy strategy; Age and residency requirements; Fixed compensation - So
President cannot be influenced by foreign monarchies or Congress
 Oath Clause – President must promise to serve, protect, and defend the
Constitution [Does taking that oath mean that President can interpret?]
 Section 2
 Enumerated Powers

23
  Role in legislative process (art I, sec 7)
 Three choices on what to do when bill is passed by both houses of
congress
 Sign the bill, veto the bill (often based on constitutional
objects), or pocket veto (doing nothing for 10 days)
 Commander-in-Chief of Army and Navy
 Pardon power – quasi-judicial function
 Broad power – President does not have to give a reason and
the decision is not subject to judicial review (Political
Question Doctrine)
 Make treaties
 With ratification from 2/3rds of Senate
 Does not say anything about rescinding the treaty
 Any area where Congress and Senate work it out politically
 Appointment power with advice and consent of the Senate
 President has personal responsibility of the executive
branch
 Nothing on how to remove executive officer
 Section 3 & 4
 State of Union
 Call Congress into session
 Receive ambassadors
 Take Care Clause – the president shall take care the laws are faithfully executed
 Impeachment
 Implied powers?
 Is the laundry list in sec 2 exclusive or not?
 Why might we want implied powers?
 Enumerated powers are really short
 Oath Clause
 Take Care Clause – duty to make sure laws are taken care of but
not actually how they are taken care of
 Vesting clause – lack of the herein  might mean there can be
interpreted implied powers

Inherent Presidential Power

 Youngstown – scope of presidential power
 Facts: during the Korean War, President Truman raises price of steel because of
inflation. Union workers want more money, but the steel mill owners couldn’t pay
since they couldn’t control the price of steel imposed on them by the President [at
a stalemate]. Union threatens to go on nationwide strike (which would affect
supplies sent to troops in Korea) so the night before, President issues an Executive
Order telling the Secretary of Commerce (D) to take possession of the steel mills
and keep them running. President sends 2 reports to Congress to notify of his
actions and they do not respond or act.

24
  Pres. claims power under Art. II, § 1 (exec. power generally), Commander
in Chief power to avoid catastrophe, and under Take Care Clause to fund
Korean War. Also, implied power to act when there’s an emergency.
 Steel workers argue what Pres. did amounts to lawmaking which is the
power of Congress. Constitution doesn’t discuss ability to cease private
property and historically, Congress has refused to allow seizures to settle
labor disputes.
 Outcome: president’s action is unconstitutional! Majority says that president’s
power is limited to vetoing and suggesting laws, not creating them. President was
creating law here because changing the rights of parties. This action is legislative
in nature (congress).
 Justice Jackson Concurrence Rule: the Tri-Partite Framework
 Category 1
 Acts pursuant to an express or implied authorization of Congress
 A lot of discretion given here
 Strong support for executive power
 Category 2
 When President acts in absence of either a congressional grant or
denial of authority – he can only rely on his own independent
powers and concurrent authority
 The twilight zone of concurrent authority
 In this case, look at the totality of the circumstances; case-
by-case basis
 Factually based and once events have happened, will likely
just lean on President’s power
 Category 3
 When President acts and Congress disapproves – then all the
President has is his OWN enumerated powers.
 In most cases, president will lose unless he is relying solely
on enumerated powers
 Weak support for executive power
 The court placed this case in category 3 and said Congress said no
historically by not allowing seizures to settle labor disputes.

Executive Privilege
 The ability of the President to keep conversations between him and cabinet members a secret.
Not mentioned in the Constitution but said to be necessary for presidents to receive candid
advice and important to protect national security and diplomacy.
 US v. Nixon
 Facts: Nixon refused to turn over tapes of his secretly recorded conversations that
took place in the White House following the Watergate break-in. Subpoenaed for
the tapes. N moves to quash the subpoena in district court, the SC takes the case
without it ever going to the court of appeals.
 Material fact: President/Executive subpoenaed for information by the
judiciary or Congress; criminal case; didn’t deal with military, diplomatic,
or national secrets

25
  Nixon argues this is non-justiciable because PQD and convo between
executive branch members so can’t interfere. Court disagrees and says
they can decide whether or not Executive Privilege exists.
 Government argues this is a criminal case so would violate 5th and 6th
amendment values that are the core function of the judicial branch and
value that they must ensure.
 Outcome: executive privilege exists and comes from the enumerated powers
because President can’t exercise enumerated powers without some form of
confidentiality. Need people to be honest and open with the President without
worrying the conversations will get out. Executive privilege exists from the
Constitution and can’t be taken away.
 Balancing Test: weigh the importance of the privilege against the inroads of such
privilege on the fair administration of criminal justice.
 Basically, when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based on the generalized
interest in confidentiality, it cannot prevail over the fundamental demands
of due process of law in the fair administration of criminal justice
 In areas of the military, national security, and diplomacy, the President
will get more deference. If none of those exist, and it is a criminal case,
executive privilege will likely be invalid.
 Cheney v. District Court
 Facts: suit claiming energy task force (chaired by VP Cheney) violated Federal
Advisory Committee Act by holding secret meetings when supposed to have a
public record. Civil case.
 Court: this is different from Nixon because this is a civil case and the need for the
info is less than in a criminal case. Subpoena impairing Cheney’s ability to do his
job.
 Rule: courts should be mindful of an unwarranted impairment of another
branches ability to perform its constitutional duties. In civil cases, more
deference to the Executive.

Authority of Congress to Increase Executive Power

 Below is where Congress explicitly granted President power (Clinton; Chadha)  does
Congress have the power to expand Article II?
 Clinton v. NY
 Before this, President was always required to sign or veto the entire bill
and this became a problem as the government grew. Appropriations bills
were created which included a bunch of things so both houses would pass
and get it to the president. Line-item veto was created to solve this. Line
Item Veto Act of 1996 gave President the power to veto provisions of
certain spending and taxing bills after they had been signed into law.
Procedure: President signs bill into law; President can then “cancel” a
provision and send notice to Congress; Congress can pass a disapproval
bill; President can sign, veto, or do nothing; Congress would need to
override 2/3 vote by each house.

26
  Facts: President (D) used this line item veto power to cancel two items of
congressional spending that would benefit only New York and a tax break
to farmer cooperatives. The intended recipients sued.
 President argues this is Youngstown Category 1 – Congress
expressly granted this authority. Constitution is silent and when
two branches agree, court should defer to their agreement.
Challengers argue Article I, section 7 violated because line item
veto repeals/amends (since already law) statutes without
bicameralism and presentment. Historical understanding of what
we’ve done in practice (bicam. & present.), just sign/veto/nothing
as GW decided.
 Outcome: Line item veto is unconstitutional! It does not conform with
and presentment. Where the Constitution is silent, the court will look to
history and here, bicameralism and presentment are extremely important
and at the core of the constitutional set up. Presentment clause requires the
President to either approve all or reject all of the bill.
 The Administrative State
 Congress delegates power to agencies who do not go through bicameralism and
presentment. Agencies do things that look legislative, judicial and executive. This
is for efficiency, expertise and blame-shifting.
 Non-Delegation Doctrine: Congress must articulate an “intelligible principle.”
 Now Congress is free to delegate power. How does Congress monitor
agencies?
 Take away funding, hearings, revoke their statute,
 Why doesn’t Congress monitor much?
 Not the experts in that field, busy, don’t want to be accountable
 Agency capture: agencies get captured by the industry they are
regulating
 Legislative Veto & Its Demise
 Congress’s tool to monitor agencies became the legislative veto. Congress
included the legislative veto in statutes authorizing Congress or one of its
houses or committees to overturn an agency action. INS v. Chadha makes
the legislative veto unconstitutional.
 INS v. Chadha
 Facts: statute allowing for a one-house “veto” of the Attorney
General’s decision to allow or disallow a particular deportable
alien to remain in the US. C was told by INS to show cause for
why he shouldn’t be deported after staying longer than permitted.
INS suspended deportation and sent report to Congress. One house
vetoed the decision.
 C argues this violates Article I, Section 7 because decision
doesn’t go through bicameralism and presentment. Judicial
power granted to the court, not Congress. Congress argues
since it’s okay to delegate power it should be okay to
regulate it and attach strings.
 Outcome: unconstitutional!

27
  Rule: Congress needs to follow bicameralism and presentment
when acting legislatively. Congress is acting legislatively when
they take an “action having the purpose and effect of altering the
legal rights, duties, and relations of persons.”
 Aftermath: Congress must go through bicameralism and presentment if they want
to overturn an executive action.

The Appointments Clause & Removal Power

 Appointments Clause: Article II, Section 2: “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”
 Principle officers: President alone can appoint with the advice and consent of the
Senate – ambassador, SC judges, federal judges, public ministers, consuls and all
other officers of the US
 Inferior officers: can be appointed by the President, judge or head of departments
 Morrison v. Olsen
 Facts: Attorney General investigates and gives a report to a special court – the
court then appoints independent counsel. If AG thinks no further investigation is
needed, the court can’t appoint. If AG says more investigation is required, court
can appoint and define prosecutorial jurisdiction. AG can remove counsel and
send court and congress a report detailing reasons. The IC can request review of
the decision in federal court and the court can reinstate – Congress oversight of
these activities.
 For argues inferior officer because the IC is temporary and has limited
duty, so court can appoint. Against argues appointment power is left to the
President because this is a principal officer (a lot of power and discretion).
 Outcome: constitutional!
 IC is an inferior officer because of four reasons:
 (1) IC is subject to removal by higher executive branch official
 (2) IC has limited duties that were defined
 (3) IC is limited in jurisdiction
 (4) IC is limited in tenure (temporary because terminates upon completion
of the task)
 NLRB v. Canning – Recess Appointments Clause
 Facts: NLRB found that Canning unlawfully refused to write and execute a
collective-bargaining agreement with a labor union. Board ordered him to execute
agreements and make employees whole for their loss. C asked Court of Appeals
to set aside the order because 3 of the 5 Board members were invalidly appointed
by Obama under the Recess Appointments Clause. The 3 were nominated and
waiting confirmation from the Senate for over a year so Obama invoked RAC
during a pro-forma session (session where Senate would meet and adjourn for a
few days but still in session to prevent president from making appointments).
 Challenge argue “recess” only refers to intersessions not intrasessions.
Intrasessions deemed unconstitutional by the 1st AG and not used for the
first 130 years. For argue that recess appoints have been made without
opposition.

28
  Material facts: only met twice a week during this, 3-day break, maintain
power to do business
 Outcome: unconstitutional because Senate was never in recess. If Senate didn’t
do anything for 10 days (as opposed to 3) then maybe they would be deemed in
recess.
 Takeaways from Appointments Clause:
 Different rules for principal (President only) and inferior officers
(Congress can delegate)
 Factors for distinguishing between “principal” and “inferior” officers
(Morrison)
 Congress may not make executive appointments
 Senate “advise and consent” not required for all executive branch
appointments – only for “principal officers”
 10-day rule for Presidential appointments under Recess Appointments
Clause
 Removal Power: no constitutional provision concerning the President’s authority to remove
executive branch officials.
 Rule: The President can remove executive appointees “at will” unless Congress
imposes limits (Myers).
 When can Congress impose limits?
 When independence from the executive is desirable; OR
 When agency is performing a quasi-judicial or quasi-legislative
function; AND
 The law doesn’t prohibit Presidential removal, but only
imposes “good cause” requirements
 Congress cannot delegate removal power to itself
 Myers v. US
 Facts: President demanded M to resign as postmaster and M refused so
President removed him by order.
 Court says constitutional. Senate cannot put limits on Presidents removal
power here. The power of removal is incident to the power of
appointment.
 Humphreys Executor
 Facts: President removed Federal Trade Commissioner from office –
forced resignation. 3 circumstances listed in the statue for how P could
remove – for inefficiency, neglect of duty, or malfeasance in office.
 The Constitution does not give the President unfettered and illimitable
power of removal with respect to officers exercising quasi-legislative or
quasi-judicial functions because these officers must discharge their duties
independently of executive control. Congress limited removal here
because there was intent to have independence from the executive.
 Court says Pres. cannot remove here. Good cause limitation and intent to
be independent from executive.

29
  Morrison v. Olsen
 Removal power given to the executive branch (AG) for good cause. No
requirement of congressional approval for removal. Prosecutor is a core
executive function so good cause being required to fire is fine.
 Removal provision was constitutional and fine for Congress to add “good
cause” requirement. Doesn’t unduly trammel Presidential power.
 Takeaways on Removal:
 President can remove executive officials at will unless removal is limited
by statute (Meyers)
 Congress can impose “for cause removal power limitations under certain
circumstances (Humphrey’s Executor, Morrison)
 Congress can vest removal power of inferior officers solely in the heads of
departments (Morrison)
 Congress cannot give itself the sole power to remove executive officials
(except through impeachment)
 Usually resolved politically

Foreign Policy
 How does the Constitution divide up foreign policy powers?
 Congress
 Collect import duties
 Raise and support armies
 Regulate commerce with foreign nations
 Declare war
 Advise and consent on treaties
 Regulate piracy
 President
 Commander-in-chief
 Negotiate treaties
 Appoint ambassadors
 Concurrent authority
 War and treaties
 Need both branches to sign off
 States can’t do a lot with foreign powers  vested in the federal government (10th
Amendment)
 Curtis-Wright
 Facts: Congress passed a Joint Resolution authorizing President to stop the sale of
arms to countries involved in the Chaco border dispute. As soon as congress
passed the resolution, Pres. Roosevelt issued an order prohibiting sales to nations
in the dispute. CW (weapons manufacturer) charged with violating JR.
 Outcome: constitutional! President has the exclusive power to speak for the
nation and Congress is powerless to invade it. President has plenary and exclusive
power in foreign affairs
 This is not current law – it has not been overruled but the court doesn’t
see the case as authority and doesn’t give it much weight. Youngstown is
used far more often and came AFTER this case.

30
 Congress still acts in foreign affairs

 Treaties & Executive Agreements
 Executive Agreements: agreement between the US and foreign country
that becomes valid when signed – don’t need Congress approval
 Have these for efficiency without needing to go through 2/3 Senate
ratification process
 Treaty: an agreement between the US and foreign country that is
negotiated by the President and is effective when ratified by the Senate
(after advice and consent)
 Dames & Moore
 Facts: Dames &Moore file a lawsuit in US for breach of contract
with the Iranian government during the hostage crisis. The
president ordered the dismissal of pending litigation against the
government of Iran in the U.S. courts and forced the claims into
arbitration pursuant to an “executive agreement.” ARE EXEC
AGREEMENTS CONSTITUTIONAL?
 DM argues Pres. overstepped power because didn’t get advice and
consent of senate for this “treaty”. Court was silent on this
agreement so category 3 of Youngstown. Pres argues this is
category 1 because implicit authorization in history because 10
binding agreements and Pres has done this before
 Outcome: constitutional! History shows that Congress supports
executive agreements so it is Youngstown category 1. Youngstown
was a domestic case but this is foreign so more deferential to Pres.
President has the power to settle major foreign policy disputes
without the Senate through executive agreements
 Zivotofsky v. Kerry
 Facts: Foreign Relations Authority Act allows US citizens born in
Jerusalem to list Israel as their birthplace on their passport. US
didn’t want to get involved in the Israeli/Palestine dispute so has
failed to formally recognize Israel’s sovereignty over Jerusalem up
until this point. GW signs into law but says it is advisory, not
mandatory, and he will not enforce it because it infringes on his
exclusive power. Congressional law requires Pres to recognize
sovereignty.
 Z argues Pres is obligated to comply because this is
Youngstown 3 since Congress explicitly disapproves. K
argues this is Article II Reception Clause so don’t need
Congress approval because power granted in the
constitution!
 Outcome: unconstitutional act of Congress! RARE AREA where
the Presidential power is exclusively given to him in the
constitution so he does not need to listen to Congress even if this is
Youngstown 3.
 War Powers
 Division of War Powers

31
  President – commander-in-chief; inherent executive power
 Congress – power to “declare war” not make war (this suggests Pres has
independent power to make war); power to raise and support army; power
to maintain navy; power of the purse (can defund the war)
 War Powers Resolution
 Every President has maintained that this is unconstitutional
 Says President must consult with Congress is practicable; once order
troops need to keep Congress informed. Legislative veto in it (all the more
reason for it to be unconstitutional). Limits the powers vested in the
President that are granted by the constitution
 Detentions
 Hambdi v. Rumsfeld
 Facts: congress passed resolution allowing Pres to use all
necessary force against those who aided 9/11 attacks. H was
detained indefinitely after allegedly aiding the Taliban. His father
petitioned for writ of habeas.
 Outcome: Youngstown 1 – Congress expressly authorized Pres to
do this. Court considered whether American citizen apprehended
in a foreign country could be indefinitely detained as an enemy
combatant without any form of due process. Plurality held
sufficient legal authority to detain H as enemy combatant. Held
that H must be accorded due process and a meaningful factual
hearing

Constitutional Limits on State Power

 State retains powers not given to the federal government called police power. If a state passes
a law, DO NOT TALK ABOUT ARTICLE 1!
 Limits:
 Art. I, Sec. 10 list of don’ts
 Bill of Rights – can’t violate these
 Art. VI Supremacy Clause (preemption)
 Dormant Commerce Clause
 Art. IV Privileges and Immunities Clause
 2 possibilities when considering whether a State or Local Law is INVALIDATED
 If Congress has passed a law, and it’s a lawful exercise of congressional power
(see Part III above), the question is whether the federal law preempts state or
local law. Because of the Supremacy Clause, if there is a conflict between
federal law and state law, state law is deemed preempted.
 Where Congress has NOT acted – or the judiciary decides that federal law does
not preempt state law – even in the absence of preemption, state and local laws
can be challenged under two principles: The Dormant Commerce Clause & the
Privileges and Immunities Clause.
 Preemption of State and Local Laws
 Preemption – when a state and federal law are trying to regulate a specific area at
the same time. Courts look to Congressional intent to see if Congress intended for
federal law to trump state law.

32
  On exam, figure out if preempted – look to Congressional intent and
history
 Express: federal statute where Congress puts express language in it to preempt
state law
 Implied: -3 categories-
 Conflict Preemption
 When federal and state law conflict and it is impossible to comply
with both, federal law will preempt state law
 Field Preemption
 RARE  Congress regulates a field and doesn’t let states; this is
rare absent express Congressional statement
 Obstacle Preemption
 State law stands as an obstacle to the purpose of federal law. Look
to the federal laws purpose and argue state law acting as an
obstacle to achieve this purpose
 Arizona v. US
 Facts: A enacted statute to address issues related to illegal aliens within its
borders. Statute compliments the federal law in some ways.
 Court says field preemption in alien registration and obstacle preemption
because employers supposed to be punished under federal law but this
punishes employees too.
 On exam, deal with each provision of the statute separately! Focus
on Congressional intent

Dormant Commerce Clause

 **Spidey Sense** when Congress is silent and a state passes a law affecting interstate
commerce!
 If there is a federal law, no DCC issue
 Not in the constitutional text and suggests states lack power to regulate interstate commerce
even though they have police power.
 Even if a state or local law is not preempted, it can be challenged by arguing that it
excessively burdens commerce among the states. Even if Congress hasn’t acted (so its
commerce power lies dormant), state and local laws can be challenged as unduly impeding
interstate commerce.
 Dormant Commerce Clause – principle that state and local laws are
unconstitutional if they place and undue burden on interstate commerce.
Thus, even if Congress has not acted, even if its commerce power lies
dormant, state and local govts cannot place an undue burden on ISC
 Exam DCC Issue
 (1) Does the state law discriminate against out-of-state residents or businesses?
 Does the state law discriminate on its face?
 i.e. distinguishes between in and out of state
 Or, is it facially neutral but is discriminatory in its purpose or effect?
 Ex: NY only allows corn sold  but coincidentally corn is only
grown in NY anyways

33
  If yes to either of these, per se rule of invalidity unless state can
show no other means to advance a legitimate local purpose.
Protectionism  don’t want states retaliating against one another.
 There must be no other way to advance the legitimate
purpose which is a high burden
 (2) Is the state law non-discriminatory in purpose or effect, but somehow
burdens interstate commerce?
 Pike Balancing Test: uphold a non-discriminatory law unless the burden
imposed on interstate commerce is clearly excessive in relation to the
putative local benefits
 Apply this test when law is directed at legitimate local
concerns and the effects on interstate commerce are only
incidental.
 Facially Discriminatory Laws
 Philadelphia v. NJ
 Facts: NJ statute prohibiting disposal of solid and liquid waste in NJ if it
originated outside of the state. NJ argued it was to protect the health of its
citizens (legitimate local concerns). P argues this violates DCC because
facially discriminatory against out of state. Winners and losers in and out
of state.
 Material facts: facially discriminatory statute, really hard to
overcome
 Outcome: unconstitutional! State has legitimate interest but it cannot be
accomplished by discriminating against articles of commerce coming from
outside the state unless there is some reason to treat them differently, other
than origin. Facially discriminatory so invalid.
 Facially Neutral Laws
 Hunt v. Washington Apple
 Facts: neutral law on its face. NC passes law requiring apples in containers
to have USDA grade or no grade. W is a huge apple producing state and
had a different grading system than this but similar to USDA. NC argues
intended to prevent apple fraud and promote uniformity. W argues they
really want to level out the market and protectionism for in state apple
growers by taking away competition by indistinguishable apples.
 Statute raises costs for W while leaving NC unaffected. NC not
forced to change marketing unlike W to comply with statute.
 Outcome: The court smells protectionism! Unconstitutional!
 Discriminatory in purpose and effect. When the discrimination
against commerce is demonstrated, the burden falls on the State to
justify it both in terms of local benefits flowing form the statue and
the unavailability of nondiscretionary alternatives to preserve
the local interests at stake
 High standard and very similar to facially discrim. laws
 **even if the statute isn’t discriminatory, the court will look to see if there
is protectionism involved – need to care about motive**
 West Lynn Creamery

34
  Facts: law taxed fluid milk – tax on all farmers selling to in state dealers.
The tax was then used to subsidize Massachusetts (D) dairy farmers – in
state famers get the money back but not the out of state farmers. Mass said
state of emergency because their dairy farmers losing share in the market
because others have cheaper milk
 VERY SPECIFIC FACTS SO IF SIMILAR ON EXAM, COMPARE
 Winners: Mass farmers get subsidy so lower price of milk
 Losers: out of state farmers because tax so lose competitive
advantage; price of milk goes up because tax
 Challenge to law – neutral law discriminatory in purpose and effect that is
protectionist and designed to help in state. Any lobbyists that would
argue against the tax no longer will because of the subsidy.
 Mass – states valid power to tax and power to subsidy. The two together
are just a legal tax scheme and a legal subsidy scheme
 Outcome: unconstitutional! Court smells protectionist motive. Interests
are no being represented since no way for out of state to influence the
Mass legislature so the political process doesn’t work.
 Clover Leaf
 Facts: banned sale of milk in plastic cartons. Motive to conserve energy
and environmental problems. But court says… not protectionist!!
 Winners: Minn. pulpwood and out of state pulpwood producers
 Losers: plastic container makers (in and out of state)
 Outcome: constitutional! Not a protectionist measure because does not
discriminate between intrastate and interstate distributors as both are
prohibited form selling milk in disposable plastic containers. The change
of containers is not an excessive burden upon out-of-state producers.
Statute furthers the legitimate end of protecting the environment
 Pike Balancing Test applied which is more deferential.
 Apply this test when law is directed at legitimate local
concerns and the effects on interstate commerce are only
incidental.
 Uphold a non-discriminatory law unless burden on
interstate commerce is clearly excessive in relation to the
putative local benefits.
 Fact sensitive test – look to burden on interstate commerce
and the local benefits
 Consolidated Freightways v. Kassal
 Facts: Iowa law prohibited 65-foot twin/double trucks in the state of Iowa
with the motive that those trucks are dangerous. CF injured because can’t
use two highways in Iowa to get to the other side of the state – costly,
inefficient and need to reroute.
 Outcome: unconstitutional! State failed to present any persuasive
evidence that the trucks are less safe that the 55-foot trucks. In the absence
of congressional action to set uniform standards, some burdens associated
with state safety regulations must be tolerated. But where, as here, the
state’s safety interest has been found too illusory, and its regulation

35
 impairs significantly the federal interest in efficient and safe interstate
transportation, the state law is invalid under the Commerce Clause
 Bottom Line: when a law is non-discriminatory on its face, and the
court does not see any protectionism, it will be Fact specific for the
Pike balancing test; look to facts that show purpose

Exceptions to the Dormant Commerce Clause

 Congressional Approval: if Congress approves the state law, it is okay even if it clearly is
unconstitutional and discriminatory because Congress has plenary power to regulate
commerce among the states. BUT, even if cong. approval shields a state law from a
commerce clause challenge, the law can still be challenged under other constitutional
provision, such as equal protection or the Privileges and Immunities Clause of Article IV. No
DCC when Congress approves because DCC only when they do not act.
 Market Participant Exception: a state may favor its own citizens in receiving benefits from
government programs or in dealing with governmental-owned businesses. In other words, if
the state is literally participating in the market, such as with state-owned businesses, and not
a regulator, the dormant commerce clause does not apply.
 When state is buying or selling in the market to help in state.
 Market Participant Exception
 Reeves v. William Stake
 Facts: SD built state-owned cement plant which sold to private buyers in
and out of state. Later gave preference to in state buyers during shortage.
R long time buyer out of state so loses most of his cement. R argues
discriminatory on its face.
 Outcome: constitutional because SD is a market participant since it is
selling cement in the market.
 South Central Timber
 Facts: Restriction imposed in Alaska that if you buy timber in Alaska,
cannot take it out unless you get it processed in the state first.
 Rule: although state-owned business may favor in state purchasers, they
may not attach conditions to the sale of products that will burden interstate
commerce.
 Outcome: unconstitutional! Not just acting as a participant but also as a
regulator. Processing timber is a different market than selling timber, so
they are two different markets and since state imposing a condition for
after you buy timber, they are acting as a regulator!
 Restriction to the market participant exception – if the state imposes
“downstream restrictions” then it is invalid because also acting as a
regulator.k,,,kik,i

Article IV Privileges and Immunities Clause

 Article IV
 Full Faith and Credit Clause – requires courts to recognize other state court
decisions and enforce them with some exceptions
 Privileges and Immunities Clause

36
  Extradition Clause – requires states to deliver fugitives in your state back to
original state
 Fugitive Slave Clause – return escaped slaves
 Statehood Admission Clause and Territories Clause – admit new states into the
Union; nothing about how to leave the Union
 Guarantee Clause – guarantee Republican form of government in every state
 Privileges and Immunities Clause - The citizens of each state shall be entitled to all
Privileges and Immunities of citizens in the several states”
 This prevents states from discriminating against non-state residents with respect
to fundamental privileges and immunities of citizenship
 Limits state and local regulation that discriminate against out of staters with
regard to fundamental rights or important economic activities. Most cases about
discrimination of out of states with regard to ability to earn a livelihood. Allowed
only if it is substantially related to achieving a substantial state interest.
 Only protects citizens, NOT corporations. Corporations should challenge under
DCC because they can’t here.
 PI requires overt facial discrimination against a non-resident (no neutral like
DCC)
 **Spidey Sense** when a state I discriminating against outsiders to practice their chosen
profession or outsider’s ability to earn a livelihood
 no market participant or congressional approval exceptions under P & I
 Privileges and Immunities Clause – limits the ability of states to
discriminate against out-of-staters with regard to Constitutional rights or
important economic activates
 If a fundamental privilege is discriminated against, state must show:
 It has a substantial reason for discrimination for treating non-residents differently,
AND
 The discrimination has a substantial relationship to the states reason
 Camden Case
 Facts: municipal ordinance requires at least 40% of employees working in
the city construction to be Camden residents.
 Court remanded the case to determine if the this is the best method to
achieve goal of unemployment
 **fundamental privilege in the right to earn a livelihood**
 McBurney v. Young
 Facts: VA freedom of information act provides that all public records are
open for inspection and copying by citizens of the state – but doesn’t grant
this right to out of state. Ps (2) wanted information regarding real estate
and child support. Does this violate privileges and immunities clause?
 Outcome: access to public information is not a fundamental privilege and
therefore is not protected by P&I

State Action Doctrine

 Generally, private conduct doesn’t have to comply with the Constitution. There is a
requirement for state action for the Constitution to apply. There are two exceptions to this

37
 called the Public Functions Exception and the Entanglements Exception. State action
doctrine was developed in the civil rights cases.
 Three wrinkles:
 (1) §5 of the 14th Amendment
 as per the Civil Rights Cases, Congress can regulate private
actors but not by using §5 power.
 (2) private actors performing public functions
 (3) situations where the government has a close relationship with a private
actor
 Civil Rights Cases
 Facts: owners of hotels and theatres prosecuted for discriminating against African
Americans. Sued under Civil Rights Act which subjects those who discriminate to
criminal prosecution. People who sued are the ones who want to discriminate.
They argue the statute is unconstitutional because §5 power to Congress can only
make laws that apply to state actors and this was exceeded because this applies to
private actors – if applied, states would have no power.
 State action: Civil Rights Act passed by Congress
 Enumerate power = §5 of 14th Amendment because gives Congress the
power to deal with race discrimination
 Outcome: unconstitutional! 14th amendment only applies to state action, not
action by individuals. Federalism concerns but 14th amendment up front concern.
 This is still good law because the 14th amendment doesn’t prohibit private
discrimination and Congress doesn’t have the power under §5
enumerated power. But congress can prohibit discrimination pursuant
another enumerated power (i.e. Commerce Clause in Ollies BBQ).

Exceptions to State Action Doctrine

 Where private conduct must comply with the Constitution. From these cases, we know there
is state action if it is a company town, and no state action if it is a shopping center.
 (1) Public Functions Exception
 private entity must comply with the constitution if it is performing a task that has
been traditionally and exclusively done by the government.
 Marsh v. Alabama
 Facts: corporation owned a town (so privately owned) and a Jehovah’s
witness was arrested for attempting to distribute religious literature in the
town. Town accessible and freely used by the public except for the fact
that the corporation owned it and paid the towns police. Corp argues they
didn’t violate 1st amendment right because the constitution doesn’t apply
to them since they are private entity. Jehovah argues there is state action
because the town is open to the public and just like any other American
town.
 Outcome: unconstitutional! The corporation violated the 1st amendment.
A private entity that acts like a governmental body and performs a public
function is subject to constitutional restraints. The more an owner opens
his property for use by the general public, the more his rights get

38
 circumscribed by the constitution. Balancing test of whether the private
property is used for a public purpose.
 Llyod v. Tanner
 Facts: anti-war protestors for the Vietnam were told to leave shopping
center sued for violation of their 1st amendment rights.
 Court says no state action here because private property with alternative
places to distribute the materials (like public sidewalks).
 Jackson v. Metro
 Facts: customer of an electric company claimed the company performed
an essential public function and therefore couldn’t shut off her electricity
without adequate notice and a hearing pursuant the Due Process Clause of
14th. Company is privately owned corp with exclusive license to deliver
electricity in state of PA.
 Outcome: constitutional, no state action.
 Rule: look to whether whether the action is traditionally and
exclusively the province of the state. – narrow exception and if so,
the constitution will apply (ex: police)
 (2) Entanglement Exception
 Private entity must comply with the Constitution if the government has
authorized, encouraged, or facilitated the unconstitutional conduct. Licensing
alone is not sufficient for state action (Moose) and subsidies alone are not
sufficient for state action (Rendell); but restrictive covenants are (Shelley).
 Shelley v. Kramer
 Facts: restrictive covenant barring blacks from moving into the homes for
50 years. S buys house and they sue in state court to stop him from gaining
possession. S argues the restrictive covenant is unconstitutional and if the
court enforces it, there is state action depriving him of 14th amendment. K
argues there is no state action because private conduct so the Constitution
doesn’t apply to them.
 Outcome: state action so unconstitutional! This case is limited to its facts,
however, so only applied in restrictive covenant cases. 14th amendment
created to protect racial discrimination so despite the fact that it says
“state,” should be more expansive to protect.
 This is controversial because can arguably turn everything into
state action if it goes through court system. Rarely used.
 Moose Lodge
 Facts: black man denied service from moose lodge and sued. Argues that
by the state issuing the lodge a liquor license, the state is entangled with
the private actor so EPC of 14th forbids this discriminatory membership
practice – could only give limited license and lodge can’t operate without
one.
 Outcome: no state action!
 Material facts: private land and private building; not open to the
public
 Rule: need a symbiotic relationship between the state and private entity

39
 **Spidey Sense** use this case when a private actor must get a license

from the state (licensing between state and private actor)
 Rendell-Baker
 Facts: private school employees sued private school for violating
constitutional rights by firing boss for wanting to form a Union. R argues
violated EPC of 14th amendment – state is entangled with the private entity
by the subsidies it provides that pays 99% of the school’s budget – also
public function because education exclusively and traditionally let to the
states. School argues private actor therefore no state action and
Constitution doesn’t apply.
 Court says education is not exclusive function of the state (private
schools exist). School is like a private contractor and shouldn’t be
applied as entanglement exception because then anytime there’s a
contract with the government, there would be a state actor.
 Outcome: no state action!
 TAKEAWAYS
 Congress cannot use its §5 power to regulate private actors

40