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McCulloch v. Maryland: 1.

The Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government. 2. State action may not impede valid constitutional exercises of power by the Federal government. Theories of constitutional interpretation: 1. Historical: (Originalism is either: original meaning is words (or) intent is people) 2. Textualism: only to the text of the constitution, meaning of the words can be determined by expert reader or by common usage 3. Structuralism: infers rules from powers granted to govt. (expansive reading), (congress has power to purse, but cant deprive courts of judges by refusing to pay for them) {infers rules from how it is setup, even if not explicitly stated.} a. Outline of structuralism: something is guaranteed by the constitution a relationship is inferred from this structure if left unprotected the structure of federalism would be left vulnerable conclusion is drawn that provides a rule. 4. Prudential argument: 5. Doctrinal arguments: stare decisis common law is part of this, precedent, reliance interest (paper money) con bad precedent is relied on 6. Ethical arguments: most suspect of all judges individual beliefs in as precedent/arguments Establishment of judicial review Stuart v. Laird: Justice William Paterson held for a unanimous Court that Congress did have the authority under the Constitution both to establish and abolish lower federal courts. Marbury v. Madison: Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress cannot pass laws that are contrary to the Constitution, and it is the role of the judicial system to interpret what the Constitution permits. Scope and Legitimacy of judicial review (124-136) 1. Supervision of governmental relations (intra and inter) a. Martin v. Hunters Lessee (ability to review state court decisions) 7. Preservation of fundamental values 8. Integrity of the democratic process 9. Questions of countermajoritarianism? Fourteenth Amendment 1. Slaughterhouse Cases: Privileges and immunities of citizenship of the United States were to be protected by the Fourteenth Amendment not privileges and immunities of citizenship of a state. 2. Debates over incorporation (485-493): Bill of rights applies to the states via the 14th, gradual shift in jurisprudence

3. Lochner v. New York: [economic substantive due process] New York's regulation of the working hours of bakers was not a justifiable restriction of the right to contract freely under the 14th Amendment's guarantee of liberty. a fair, reasonable and appropriate exercise of the police power of the State, or ... an unreasonable, unnecessary and arbitrary interference with the right of the individual ... to enter into those contracts in relation to labor which may seem to him appropriate Congressional powers and limitations Commerce, taxing and spending powers 1. Congressional regulation of interstate commerce and of the national economy (435-456) a. 435 early cases, strict regulation b. Champion v. Ames (the Lottery case): as a means of executing the power to regulate interstate commerce, congress may regulate the interstate transportation of lottery tickets. c. Hammer v Dagenhart: (child labor act) the making of goods and he mining of coal are not interstate commerce transportation following their production does not change this. d. US v. Butler: struck down agricultural adjustment act (aaa) as an uncon. Extension of the taxing power: The clause confers a power separate and distinct from those later enumerated [,] is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. 2. Taxing and Spending power (564-570) (627-629) a. Steward Machine v. Davis: For a tax and credit scheme (taxed employers based on their employees wages) to be unconstitutional as against the Fifth Amendment or of principles of federalism, there must be a showing that the tax and credit used together are coercive and/or that they impair the autonomy of the States. b. South Dakota v. Dole: withhold federal funds if state sold alcohol to U21s fine, congress can attach reasonable conditions to their funds 3. Dormant Commerce Clause (730-734): a. States cannot pass laws which burden interstate commerce. b. The balancing test: Where a state statute regulates even-handedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Pike v. Bruce Church, Inc. c. Refined in Hughes v. Oklahoma d. States cannot enact embargoes on other states: per se invalidity test: i. City of Philadelphia v. New Jersey

Treaty power; reconstruction power (570-572) (629-649) 1. Missouri v. Holland, Protection of its quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the subject alleged to be unconstitutional. Treaties made by the federal government are supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. 2. City of Boerne v. Flores: overturned RFRA this introduced a completely new test for deciding whether Congress had exceeded its section-five powers: the "congruence and proportionality" test: remedial or prophylactic legislation still had to show "congruence and proportionality" between the end it aimed to reach (that is, the violations it aimed to correct), and the means it chose to reach those endsthat is, the penalties or prohibitions it enacted to prevent or correct those violations. Contracts Clause and the decline of judicial intervention (140-146) (499-530) (549558) rational basis test now 1. Fletcher v. Peck: (first time SCOTUS finds a state law unconstitutional) The Contracts Clause of the U.S. Constitution prohibited Georgia from voiding contracts for the transfer of land, even though they were secured through illegal bribery. (sale was a binding contract, which according to Article I, Section 10, Clause I (the Contract Clause) of the Constitution cannot be invalidated). 2. Decline of judicial intervention against economic regulations: a. Nebbia v. New York: upheld minimum milk pricing b. Home Building & Loan Association v. Blaisdell: Minnesota's suspension of creditor's remedies was not in violation of the U.S. Constitution. Minnesota Mortgage Moratorium Act upheld. Great Depression "may justify the exercise of [the State's] continuing and dominant protective power notwithstanding interference with contracts c. West Coast Hotel Co. v. Parish: Washington's minimum wage law for women was a valid regulation of the right to contract freely because of the state's special interest in protecting their health and ability to support themselves. Supreme Court of Washington affirmed. d. US v Carolene Products: prohibited skimmed milk from being shipped in interstate commerce. The Filled Milk Act did not exceed the power of Congress to regulate interstate commerce, or violate due process under the Fifth Amendment. Footnote Four: (see pg. 515 in the book) The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases. Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain conditions: i. On its face violates a provision of the Constitution (facial challenge).

ii. Attempts to distort or rig the political process iii. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process iv. This higher level of scrutiny, now called "strict scrutiny", was first applied in Justice Black's opinion in Korematsu v. U.S. (1944). e. Williamson v. Lee Optical: upheld restriction on who can issue eye prescriptions A state law must be reasonably and rationally related to the health and welfare of the public to fall under a states Police Powers. It must also not be an arbitrary or discriminatory law. 3. Plenary Federal Power: a. NLRB v. Jones: Congress has the power to regulate intrastate activities that potentially could have a substantial relation to interstate commerce. a question of degree b. US v. Darby: If the regulated intrastate activity has a substantial effect on interstate commerce, Congress may regulate the activity regardless of Congresss motive. (overturned hammer v. dagenhart) c. Wickard v. Filburn: wheat case cant grow your own wheat even if not selling it. Modern Commerce Clause cases and Federalism restraints (600-627, 649-665) 1. United States v. Lopez: guns free school zone act struck down, move towards restricting commerce clause powers: The power of Congress to regulate activities extends only to those activities that substantially affect interstate commerce. The Act neither regulates commercial activity, nor contains a requirement that the possession be connected in any way to interstate commerce. 2. Gonzales v. Raich: upheld ban on marijuana: Congress may ban the use of marijuana even where states approve its use for medicinal purposes. 3. United States v. Comstock: upheld ability of AG and the federal government may order the civil commitment of a mentally ill, sexually dangerous person beyond the conclusion of his sentence. 4. Garcia v. San Antonio Met. Transit Auth.,: SCOTUS held that the determination of traditional and non-traditional state functions is an inappropriate standard for determining whether Congress may enforce the FLSA against a public employer. The Supreme Court removes the standard by overturning National League of Cities and leaving any decisions regarding Congressional control of state actions to the political process. Federalism constraints continued (665-674, 674-692, 693-705, 711-730) 1. Gregory v. Ashcroft, Because of the delicate balance of federal vs. state power, and especially in light of the serious intrusion it would be into state power if the federal government were able to regulate the ages of their public officials, OConnor held that Congress would be taken to have encroached on state power in this context only if there was a plain statement to that effect. This was necessary to preserve the Framers dual sovereignty notion of the power of the states being commensurate with the power of the federal government.

2. New York v. United States: The "take title" provision exceeds Congress's power under the Commerce Clause the States had to choose between conforming to federal regulations or taking title to the waste. Since Congress cannot directly force States to legislate according to their scheme, and since Congress likewise cannot force States to take title to radioactive waste, O'Connor reasoned that Congress cannot force States to choose between the two. Such coercion would be counter to the federalist structure of government, in which a "core of state sovereignty" is enshrined in the Tenth Amendment. 3. Printz v. United States: Brandy handgun act: Congress may not compel a state or local government to implement federal regulatory programs, even if they are temporary functions. 4. U.S. Term Limits, Inc. v. Thornton: Arkansas added to the qualifications on HofR and Sen. Members: States cannot impose qualifications for prospective members of Congress stricter than those in the Constitution Eleventh Amendment limitations (647-648, 705-711) 1. Kimel congruent and proportionate test for legislation under section 5 (14th) 2. Garrett: ADA not applicable to states. 3. Hibbs upheld FMLA under Section 5 (14th) Separation of powers and the President in wartime (819-840) 1. Youngstown Sheet & Tube Co. v. Sawyer: The court held that there was no explicit statute or act of Congress which authorized the President to act in such a manner. The only two statutes which authorized the acquisition of personal and real property were not met here. Not only were such acts unauthorized, Congress specifically refused to grant such authorization. The court held that in order for the President to have this authority, it must be found somewhere explicitly in the Constitution, or implicitly in some historical context or foundation. The President cannot order policy; he can only suggest it. Congress can approve any proposal for regulation, policy, settlement of disputes, wages, and working conditions. None of this is delegated to the President. Under a textual approach to interpreting the Constitution the Presidents powers are curbed in this extension. 2. The Federalist 48: Federalist No. 48 argued that the branches of government can be connected, while remaining "separate and distinct". The argument of No. 48 is that, in order to practically maintain the branches as "separate and distinct", they must have "a constitutional control" over each other. Executive detention (840-871) 1. Hamdi v. Rumsfeld: Because it is undisputed that Hamdi was capture in a zone of active combat in a foreign theater of conflict, the submitted declaration is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. 2. Hamdan v. Rumsfeld: Military commission to try Plaintiff is illegal and lacking the protections required under the Geneva Conventions and United States Uniform Code of Military Justice.

Military tribunals and habeas corpus (138-140, 276-279, 871-878) 1. Military tribunals: a. Ex. Parte Quirin: The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States, even though all had lived in the US. 2. Ex parte Merryman the authority to suspend habeas corpus lay with Congress, not the president 3. Boumediene v. Bush: Foreign terrorism suspects held at the Guantanamo Bay Naval Base in Cuba have constitutional rights to challenge their detention in United States courts. If Congress intends to suspend the right, an adequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant law, and the reviewing decision-making must have some ability to correct errors, to assess the sufficiency of the government's evidence, and to consider relevant exculpating evidence Constitutional interpretation in the executive branch (469-471 878-881) Torture Presidential powers Executive privileges and immunities (749-761, 881-885 1. United States v. Nixon: The Supreme Court does have the final voice in determining constitutional questions; no person, not even the president of the United States, is completely above the law; and the president cannot use executive privilege as an excuse to withhold evidence that is "demonstrably relevant in a criminal trial. 2. Nixon v. Fitzgerald: The President is entitled to absolute immunity from liability for damages based on his official acts. The appointment power (761-792) 1. Myers v. United States postmaster case: The President has the exclusive authority to remove executive branch officials. 2. Humphreys Executor v. United States: FTC act permits the President to dismiss an FTC member for "inefficiency, neglect of duty, or malfeasance in office." Roosevelt's decision to dismiss Humphrey was based solely on political differences, rather than job performance or alleged acts of malfeasance. The President may not remove any appointee to an independent regulatory agency except for reasons Congress has provided by law. 3. Morrison v. Olson: The Court upheld the Independent Counsel provision of the Ethics in Government Act because it did not violate the separation of powers by increasing the power of one branch at the expense of another. Instead, even though the President could not directly fire the independent counsel, the person holding that office was still an Executive branch officer, not under the control of either U.S. Congress or the courts.

The appointment power cont. and the veto power (795-817) 1. INS v. Chadha, The resolution of the House of Representatives vetoing the Attorney General's determination is constitutionally invalid, unenforceable, and not binding. Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch, which is inconsistent with the bicameralism principle and Presentment Clause of the United States Constitution.

Non-delegation doctrine (817-819) 1. Clinton v. City of New York: struck down the line item veto act. The President's unilateral striking of portions of legislation passed by Congress pursuant to the Line Item Veto Act was without legal force, because the U.S. Constitution did not authorize the President to enact federal law of which both houses of Congress had not previously approved the text Scope of judicial power Standing: 1. ICR a. Injury b. Causation c. Redressability 2. Types of standing: a. Congressionally mandated (statutory) standing, b. Taxpayer standing, c. Third party standing, 3. Advisory opinions and standing 1. Lujan v. Defenders of Wildlife Defenders had failed to satisfy Constitutional requirements for injury in fact that would grant standing under the Endangered Species Act. He wrote that the Court rejected the view that the citizen suit provision of the statute conferred upon all persons an abstract, self-contained, non-instrumental right to have the Executive observe the procedures required by law." Rather, he explained, an American citizen plaintiff must have suffered a tangible and particular harm. Plaintiffs did not have standing to bring suit under the Endangered Species Act, because the threat of a species' extinction alone did not establish an individual and nonspeculative private injury. 2. Massachusetts v. EPA: technical holding: Greenhouse gases are air pollutants, and the United States Environmental Protection Agency may regulate their emission importance of this case: this is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. states can have standing with their interest. a. Parens patria sue on behalf on the citizens of the state.

b. state sovereignty suing as the state. 3. Summers v. Earth Island Institute: Petitioner environmental organizations' claim that it is statistically likely that some of their members will visit the affected lands is insufficient to support Article III standing. Political question doctrine (890-892) 2 point doctrine: 1. So specific that the responsibility is designated to a specific branch 2. Its issue that the judicial process is inherently unable to decide because there are no standards for resolving the dispute. 1. Baker v. Carr: the political question doctrine, identifying six factors to help in determining which questions were "political" in nature. The redistricting of state legislative districts is not a political question, and thus is justiciable by the federal courts. Cases that are political in nature are marked by: a. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions" b. "A lack of judicially discoverable and manageable standards for resolving it; c. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;" d. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;" e. "An unusual need for unquestioning adherence to a political decision already made;" f. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question." 2. Nixon v. United States: The contention that Senate committees appointed to gather evidence in an impeachment trial are unconstitutional is nonjusticiable, because impeachment is a political question. 3. Goldwater v. Carter: The issue at hand, whether President Carter could unilaterally break a defense treaty with the Republic of China without Senate approval, was essentially a political question and could not be reviewed by the court, as Congress had not issued a formal opposition. The case was dismissed. Constitution and the welfare state Affirmative constitutional rights (1613-1623, 1648-1667) 1. Protecting the poor through the 14th amendment: a. Boddie v Connecticut: Due process prohibits a state from denying, solely because of inability to pay, access to its courts to individuals who sought judicial dissolution of their marriages. b. Dandridge v Williams: The State of Maryland's regulation of capping welfare at $250 a month regardless of family size or need does not violate

the Equal Protection Clause of the Fourteenth Amendment. c. Lindsey v. Normet: constitution does not provide judicial remedies for every social and economic ill assurance of adequate housing and the definition of landlord-tenant relationships are legislative 2. Positive Rights: a. Deshaney V. Winnebago County Department Of Social Services: A state or county agency does not have an obligation under the Due Process Clause of the 14th Amendment to prevent child abuse when the child is 1) in parental, not agency custody, and 2) the state did not create the danger of abuse or increase the child's vulnerability to abuse. Failure to prevent child abuse by a custodial parent does not violate the child's right to liberty for the purposes of the 14th Amendment. b. Castle Rock v. Gonzalez: The town of Castle Rock, Colorado and its police department could not be sued under 42 USC 1983 for failure to enforce a restraining order against respondent's husband, as enforcement of the restraining order does not constitute a property right for 14th Amendment purposes, and enforcement of the restraining order was not mandatory under Colorado law Unconstitutional conditions (1688-1699, 1702-1725) 1. Maher v. Roe: no constitutional right to an abortion. Rather there is a constitutional right to have the government not unreasonably interfere with a womans decision to have an abortion. Connecticut may make childbirth a more attractive option for the indigent by paying for a pregnancy taken to term, but the state has put no obstacle in the way of an indigent woman procuring an abortion. The Supreme Court is in no position to review the States policy choice. 2. Harris v. McRae: States that participated in Medicaid were not required to fund medically necessary abortions for which federal reimbursement was unavailable as a result of the Hyde Amendment. The funding restrictions of the Hyde Amendment did not violate either the Fifth Amendment or the Establishment Clause of the First Amendment. 3. Regan v. Taxation with Representation of Washington: a. Section 501(c)(3) does not violate the First Amendment. Congress has not infringed any First Amendment rights or regulated any First Amendment activity but has simply chosen not to subsidize TWR's lobbying out of public funds. Cammarano v. United States b. Nor does 501(c)(3) violate the equal protection component of the Fifth Amendment. The sections of the Code at issue do not employ any suspect classification. A legislature's decision not to subsidize the exercise of a fundamental right does not infringe that right and thus is not subject to strict scrutiny. It was not irrational for Congress to decide that tax-exempt organizations such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying. Nor was it irrational for Congress to decide that, even though it will not subsidize lobbying by charities generally, it will subsidize lobbying by veterans'

organizations. 4. FCC v. League of Women Voters: Yes. Even though the Commerce Clause gives Congress the power to regulate the broadcast medium, "since broadcasters are engaged in a vital and independent form of communicative activity," Congress must use the First Amendment to "inform and give shape" to its regulation. Justice Brennan argued that no legitimate government interest was served by the law which broadly banned all editorializing, a form of speech which "lies at the heart of First Amendment protection." 5. Rust v. Sullivan: Health and Human Services regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion do not violate statute, First Amendment, or Fourth or Fifth Amendment. The intent of Congress in the enactment of Title X is ambiguous with regard to abortion counseling. Consequently, the Court will defer to the expertise of the administrative agency. The Court held that the "regulations promulgated by the Secretary [of HHS] do not raise the sort of 'grave and doubtful constitutional questions' that would lead us to assume Congress did not intend to authorize their issuance." Should government subsidize one protected right (family planning), as it does in this case, it does not follow that government must subsidize analogous counterpart rights (abortion services). 6. Rosenberger v. Rector and Visitors of the University of Virginia: The Court, in a 5-to-4 opinion, held that the University's denial of funding to Rosenberger, due to the content of his message, imposed a financial burden on his speech and amounted to viewpoint discrimination. The Court noted that no matter how scarce University publication funding may be, if it chooses to promote speech at all, it must promote all forms of it equally. Furtheremore, because it promoted past publications regardless of their religious content, the Court found the University's publication policy to be neutral toward religion and, therefore, not in violation of the establishment clause. The Court concluded by stating that the University could not stop all funding of religious speech while continuing to fund an atheistic perspective. The exclusion of several views is as offensive to free speech as the exclusion of only one. The University must provide a financial subsidy to a student religious publication on the same basis as other student publications. Review and constitutionality of health care reform Supplement 95-100 Akhil Amar, The Lawfulness of Healthcare Reform, available at SSRN: http://ssrn.com/abstract=1856506 Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, 5 NYU J. L. & Liberty 581 (2010)

Miscellaneous stuff:

Challenges to a statute: 1. facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void. 2. It is contrasted with an as-applied challenge, which alleges that the statute may be, in part, unconstitutional, in redress of specific and particular injury. Rational Basis: 1. Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a court applies when engaging in judicial review. 2. In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. 3. Congress is required to have a rational basis for legislation that, without it, might violate a right of a person under the U.S. Constitution's Fourteenth Amendment's Equal Protection Clause but is not required to validate scientific conclusions to the same degree that may be required in academic science; rather, the legislative reasoning must not be arbitrary Strict Scrutiny 1. Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. 2. The notion of "levels of judicial scrutiny", including strict scrutiny, was introduced in footnote 4 of the U.S. Supreme Court decision in United States v. Carolene Products (1938), one of a series of decisions testing the constitutionality of New Deal legislation. The first and most notable case in which the Supreme Court applied the strict scrutiny standard and found the government actions valid was Korematsu v. United States (1944), in which the Court upheld the exclusion of Japanese Americans from designation areas during World War II. Statutes and policies that are subjected to strict scrutiny often but not always fail to meet it. 3. THE TEST a. It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. b. The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

c. The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately. Intermediate scrutiny 1. In U.S. constitutional law, is the second level of deciding issues using judicial review. In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. This should be contrasted with strict scrutiny, the higher standard of review which requires narrowly tailored and least restrictive means to further a compelling governmental interest. Passive Virtues and Countermajoritarianism: 1. Bickel's most distinctive contribution to constitutional law was to stress what he called "the passive virtues" of judicial decision-making the refusal to decide cases on substantive grounds if narrower grounds exist to decide the case. Bickel viewed "private ordering" and the voluntary working-out of problems as generally preferable to legalistic solutions. 2. In his books The Supreme Court and the Idea of Progress and The Morality of Consent, Bickel attacked the Warren Court for what he saw as its misuse of history, shoddy reasoning, and sometimes arbitrary results. Bickel thought that the Warren Court's two most important lines of decision, Brown v. Board of Education and Baker v. Carr, did not produce the results the Court had intended. In his book The Least Dangerous Branch, Bickel coined the term countermajoritarian difficulty to describe his view that judicial review stands in tension with democratic theory. 3. The counter-majoritarian difficulty (sometimes counter-majoritarian dilemma) is a perceived problem with judicial review of legislative (or popularly created) laws. As the term suggests, some oppose or see a problem with the judicial branch's ability to invalidate, overrule or countermand laws that reflect the will of the majority. 4. is counter-majoritarian," adding: "The judicial branch protects against the tyranny of the majority. We are a bulwark against public opinion. And that was very much done with a purpose, and I think that it really has withstood the test of time. The judiciary is a check against the unconstitutional abuse and extension of power by the other branches of government Appointment: 1. Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the President of the United States to appoint certain public officials with the "advice and consent" of the U.S. Senate. This clause also allows lower-level officials to be appointed without the advice and consent process

Health Care Reform: 1. The U.S. has the highest healthcare costs relative to the size of the economy (GDP) in the world, 2. with an estimated 50.2 million citizens (approximately 15.6% of the September 2011 estimated population of 312 million) without insurance coverage. 3. Further, an estimated 77 million Baby Boomers are reaching retirement age, which combined with significant annual increases in healthcare costs per person will place enormous budgetary strain on U.S. state and federal governments 4. Liberal: a. Some have argued that health care is a fundamental human right. Article 25 of the Universal Declaration of Human Rights states: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services b. Liberals were the primary advocates of both Social Security and Medicare, which are often targeted as significant expansions of government that has overwhelming satisfaction among beneficiaries 5. conservative a. Conservatives have historically argued for a lesser role of government in healthcare. b. [T]he long-term political effects of a successful... health care bill will be even worse much worse... It will revive the reputation of... Democrats as the generous protector of middle-class interests. And it will at the same time strike a punishing blow against Republican claims to defend the middle class..." c. Investigative reporter and columnist John Stossel has remarked that "Insurance invites waste. That's a reason health care costs so much, and is often so consumer-unfriendly. In the few areas where there are free markets in health care -- such as cosmetic medicine and Lasik eye surgery -- customer service is great, and prices continue to drop d. Republican Senator and medical doctor Tom Coburn has stated that the healthcare system in Switzerland should serve as a model for U.S. reform. He wrote for New York Sun that reform should involve a market-based method transferring health care tax benefits to individuals rather than employers as well as giving individuals extra tax credits to afford more coverage. e. Some conservatives argue that forcing people to buy private insurance is unconstitutional; legislators in 38 states have introduced bills opposing the new law, and 18 states have filed suit in federal court challenging the unfunded mandates on individuals and states. Mandate: 1. serving in the military through the draft or paying your taxes 2. Mr. Rivkin says a mandate to buy health insurance goes beyond the scope of that clause because Congress cannot regulate activity that is not economic. But Mr. Hall says it clearly falls under the definition of economic activity.

3. Through the nations history, the federal government has imposed its will in various ways, of course, whether through military drafts, the advent of the federal income tax or the requirement that working people contribute part of their earnings to Social Security. 4. The government has never required people to buy any good or service as a condition of lawful residence in the United States, the budget office wrote. An individual mandate has two features that, in combination, make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would have to be heavily regulated by the federal government. 5. As James Madison explained in the Federalist Papers: "[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects." Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution. 6. The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such "activities, taken in the aggregate, substantially affect interstate commerce." 7. But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Of course, a health-care mandate would not regulate any "activity," 8. have framed the mandate as a "tax" rather than a regulation. Under Sen. Max Baucus's (D., Mont.) most recent plan, people who do not maintain health insurance for themselves and their families would be forced to pay an "excise tax" of up to $1,500 per yearroughly comparable to the cost of insurance coverage under the new plan. 9. But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a "tax" that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority 10. Since the 1930s, the Supreme Court has been reluctant to invalidate "regulatory" taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress's constitutional power will present the question whether there are any limits on Congress's power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care.