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Judicial Review and Authority Classes 1 & 2: Constitution Articles 1, 2, 3 & Amends.

1, 5, 10, 11, 14; Varat, Cohen, & Amar pp. 2-36, especially pp. 25-33 (Marbury v. Madison (1803)) - An act of congress that is repugnant to the constitution cannot become a law. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. Class 3: Trail of Tears supplement (1832) (download); Cooper v. Aaron (1958) (download) Congressional Control of Judicial Review by the Federal Courts, pp. 37-43 (Ex Parte McCardle (1868) - During the Civil War Reconstruction, William McCardle, a newspaper publisher and professional soldier in the Confederate Army reaching the rank of sergeant, published some "incendiary" articles which advocated opposition to the Reconstruction laws enacted by the Republican Congress. He was jailed by a military commander under the Military Reconstruction Act of 1867, a law passed by the United States Congress. Mr. McCardle invoked habeas corpus in the Circuit Court of the Southern District of Mississippi. The judge sent him back into custody, finding the military actions legal under Congress's law. He appealed to the Supreme Court under the Habeas Corpus Act of 1867, which granted appellate jurisdiction to the Supreme Court to review denial of habeas petitions. After the case was argued but before an opinion was delivered, Congress suspended the Supreme Court's jurisdiction over the case, exercising the powers granted to Congress under Article III, section 2 of the Constitution.

U.S. v. Klein (1871) - President Abraham Lincoln issued a proclamation offering a pardon to any person who had supported or fought for the Confederate Army, with full restoration of property rights, subject only to taking an oath of allegiance. The United States Congress had passed an act in 1863 that permitted an owner of property confiscated during the war to receive the proceeds from the sale of the confiscated property. Based on the statute and the President's proclamation, V.F. Wilson took the oath of allegiance and honored it until his death on July 22, 1865. Mr. John A. Klein, administrator of Mr. Wilson's estate, then applied, properly, to the Court of Claims to recover the proceeds of the sale of property seized from Mr. Wilson. Congress repealed the statute in 1867. The Court of Claims, in 1869, decided that Mr. Wilson's estate was entitled to the proceeds from the sale of his property. Then, in 1870, Congress passed a law that prohibited the use of a Presidential pardon as the basis for

claiming sale proceeds, and further said that acceptance of such a pardon was evidence that the person pardoned did provide support to the South and was ineligible to recover sale proceeds. The United States appealed to the Supreme Court, based on the 1870 statute, which provided that since Mr. Wilson had accepted a Presidential pardon, his estate was not entitled to the sale proceeds. In 1871, the Supreme Court ruled that the 1870 statute was unconstitutional and that Congress had exceeded its power by invading the province of the judicial branch by prescribing the rule of decision in a particular cause. The Court also ruled that Congress had impermissibly infringed the power of the executive branch by limiting the effect of a Presidential pardon. Broadly speaking, Klein stands for the proposition that the legislative branch cannot impair the exclusive powers of another branch. Put another way, Klein recognizes and supports the fundamental value of separation of powers defined by the Constitution. Specifically, Klein means that Congress may not direct the outcome of a case by prescribing the rule of decision, nor may Congress impair the power and effect of a Presidential pardon.

Jurisdiction of the Federal Courts in Constitutional Cases Introduction to Justiciability and Advisory Opinions 44-47 1793 Position of Supreme Court; Flast v. Cohen summary of advisory opinion doctrine and rationale (1968) 45-46 Flast v. Cohen (1968) STANDING - The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution." *479 Id., at 102, 88 S.Ct., at 1954. Second, the Court required the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8." Id., at 102-103, 88 S.Ct., at 1954." The Court ruled that petitioners had satisfied both nexuses, as their Constitutional challenge to the law was under Article I, Section 8, to spend for the general welfare as the expenditure is of a large sum of funds. However, the Court expressed "no view at all on the merits of appellants' claims in this case." Standing 47-64; supp. 1-3

Warth v. Seldin (1975) STANDING - 47-55 - The plaintiffs brought action against the town of Penfield, New York, a suburb of Rochester, and against members of the Zoning, Planning, and Town Boards of Penfield, alleging that Penfield's zoning ordinances intentionally and wrongly excluded persons of low and moderate income from living there. The not-for-profit housing organization Metro-Act of Rochester joined with several Rochester taxpayers as well as low and moderate income individuals of various racial and ethnic backgrounds were considered jointly as party-plaintiffs to this action. However, the United States District Court dismissed the case, citing that the plaintiffs did not have standing to sue. The United States Court of Appeals affirmed the dismissal. The court was tasked to determine if the American rules of standing should be considered part of the 'case or controversy' clause of Article Three of the United States Constitution or, apart from that, if the court can hear cases on "generalized grievances" or in the interest of third parties where none of the complaintants have standing. The court found that as none of the plaintiffs could demonstrate any injury actually done to them by the defendants, the plaintiffs were third parties to the issue and had no standing to sue. The plaintiff's descriptions of their own meager financial situations and subsequent inability to live in Penfield were found by the Court to be the consequence of the economics and housing market of the area rather than any wrong doing by the defendants. Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) STANDING - (note case 55-56) - A zoning ordinance in the Village of Arlington Heights, a Chicago suburb, barred the construction of multi-family housing facilities (such as apartment complexes) in the center of the neighborhood. The neighborhood was zoned for single-family dwellings without variance since 1959. The Court stated that the challenging party has the burden of showing that 1) the official action affects a protected class in greater proportion than others, and if such is established, 2) that the official action was intended to discriminate against a suspect or protected class. petitioner must prove respondent had 1) an improper intent (i.e. that his intent was to discriminate against another race). After this is proven, the burden of proof shifts to the respondent, who must prove that 2)the improper intent did not actually affect the outcome of his decision. Thus, the court is saying that to satisfy this test, you must prove improper intent, a disparate impact, and proximate cause (i.e. that the improper intent is the cause of the disparate impact). If proximate cause cannot be proven, "there would be no justification for judicial interference with the challenged decision," as "the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose." Note and case summaries on injury in fact and nexus 56-59

Supp. 1-3 Lujan v. Defenders of Wildlife (1992) STANDING - 59-64 - he court held that a group of American wildlife conservation and other environmental organizations lacked standing to challenge regulations jointly issued by the U.S. Secretaries of the Interior and Commerce, regarding the geographic area to which a particular section of the Endangered Species Act of 1973 applied. The case arose over issues of US funding of development projects in Aswan and Mahaweli that could harm endangered species in the affected areas. Said Lily Henning of the Legal Times: In [this] decision, hailed by the right and attacked by the left as well as by a broad swath of legal scholars, the Court made clear that plaintiffs must suffer a concrete, discernible injurynot a "conjectural or hypothetical one"to be able to bring suit in federal court. It, in effect, made it more difficult for plaintiffs to challenge the actions of a government agency when the actions don't directly affect them.[1]

Political Question, pp. 64-81 Baker v. Carr POLITICAL QUESTION - (1962)(extended note) 64-66 - The Tennessee State Constitution required that legislative districts be redrawn every ten years according to the federal census to provide for districts of substantially equal population. Baker's complaint was that Tennessee had not in fact redistricted since the census of 1901. By the time of Baker's lawsuit, the population had shifted such that his district in Shelby County had about ten times as many residents as some of the rural districts. Representationally, the votes of rural citizens were worth more than the votes of urban citizens. Baker's argument was that this discrepancy was causing him to fail to receive the "equal protection of the laws" required by the Fourteenth Amendment. The State of Tennessee argued that legislative districts were essentially political questions, not judicial ones, as had been held by a plurality opinion of the Court in which Justice Felix Frankfurter declared that, "Courts ought not to enter this political thicket." Brennan reformulated the political question doctrine, identifying six factors to help in determining which questions were "political" in nature. Cases that are political in nature are marked by: 1. "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" 2. "A lack of judicially discoverable and manageable standards for resolving it;"

3. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;" 4. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;" 5. "An unusual need for unquestioning adherence to a political decision already made;" 6. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question."

Powell v. McCormack (1969) POLITICAL QUESTION AND MOOTNESS 66-68 The opinion stated that the case was justiciable; that it did not constitute a political question that pit one branch of government against another. Rather, it required "no more than an interpretation of the Constitution". The opinion stated furthermore that Congress being the sole judge of its members qualifications (Art. I, 5, cl. 1) and the Speech and Debate Clause (Art. I, 6) do not preclude judicial review of Constitutional issues raised in this case (e.g., in this particular case, but not necessarily in all cases touching upon the subject of speech and debate, or Congress's judging the qualifications of its members) because "no branch is supreme" and it is the duty of the court to ensure that all branches conform to the Constitution.

Nixon v. United States (1993) POLITICAL QUESTION 68-74 In this case, a United States federal judge named Walter Nixon was convicted of committing perjury before a grand jury, but refused to resign from office even after he had been incarcerated. Nixon was subsequently impeached by the United States House of Representatives, and the matter was referred to the United States Senate for a vote on Nixon's removal. The Senate appointed a committee to hear the evidence against Nixon, and then report to the body as a whole. The Senate then heard the report of the committee and voted to remove Nixon from office. Nixon contended that this did not meet the constitutional requirement of Article I that the case be "tried by the Senate." Article I. Sec. 3 of the Constitution gave the Senate the "sole" power to "try" impeachments. Because of the word "sole" it is clear that the judicial branch was not to be included. Furthermore, because the word "try" was originally understood to include fact-finding committees, there was a textually demonstrable commitment to give broad discretion to the Senate in impeachments. Furthermore the Framers believed that representatives of the people should try impeachments and the Court was too small to justly try impeachments. Also, the judicial branch is "checked" by impeachments, so that judicial involvement in impeachments might violate the doctrine of separation of powers.

An important feature of this case is how it diverges from Powell v. McCormack. In Powell, a grant of discretionary power to Congress was deemed to be justiciable because it required a mere "interpretation" of the Constitution.

Goldwater v. Carter (1979) 74-79 POLITICAL QUESTION - lawsuit filed by Senator Barry Goldwater and other members of the United States Congress challenging the right of President Jimmy Carter to unilaterally nullify the Sino-American Mutual Defense Treaty, which the United States had signed with the Republic of China, so that relations could instead be established with the People's Republic of China. Goldwater and his co-filers claimed that the President required Senate approval to take such an action, under Article II, Section II of the U.S. Constitution, and that, by not doing so, President Carter had acted beyond the powers of his office.

Notes 80-81 Allocation of Governmental Powers 83-84 Scope of National Power 85-165 Constitutional Convention 85-90 Early interpretation and application 91-113 McCulloch v. Maryland (1819) 92-100 NECESSARY AND PROPER - The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable to all banks not chartered in Maryland, the Second Bank of the United States was the only out-of-state bank then existing in Maryland, and the law was recognized in the court's opinion as having specifically targeted the U.S. Bank. The Court invoked the Necessary and Proper Clause of the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution's list of express powers, provided those laws are in useful furtherance of the express powers of Congress under the Constitution. This fundamental case established the following two principles: 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.

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

Notes 100-106 Supp. 4-8, U.S. v. Comstock NECESSARY AND PROPER (2010) federal government has authority under the Necessary and Proper Clause to require the civil commitment of individuals already in Federal custody.[1] The practice, introduced by the Adam Walsh Child Protection and Safety Act, was upheld against a challenge that it fell outside the enumerated powers granted to Congress by the Constitution. "We base this conclusion on five considerations, taken together." The five considerations are as follows. First, the Necessary and Proper Clause grants Congress broad power to enact laws that are "rationally related" and "reasonably adapted" to executing the other enumerated powers. Second, the statute at issue "constitutes a modest addition" to related statutes that have existed for many decades. Third, the statute in question reasonably extends longstanding policy. Fourth, the statute properly accounts for state interests, by ending the federal government's role "with respect to an individual covered by the statute" whenever a state requests. Fifth, the statute is narrowly tailored to only address the legitimate federal interest. Gibbons v. Ogden (1824) 106-113 COMMERCE CLAUSE - The acts of the Legislature of the State of New York granted to Robert R. Livingston and Robert Fulton exclusive navigation privileges of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years. Livingston and Fulton granted a license to Aaron Ogden. Thomas Gibbons operated a competing steamboat service between Elizabethtown, New Jersey and New York City that had been licensed by the United States Congress in regulating the coasting trade. The Court interpreted "among" as "intermingled with." Marshall's ruling determined that "a Congressional power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce'." The court went on to conclude that Congressional power over commerce should extend to the regulation of all aspects of it, overriding state law to the contrary. The power to regulate Commerce is: the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.

In interpreting the power of Congress as to commerce among the several states: The word among means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.Comprehensive as the word among is, it may very properly be restricted to that commerce which concerns more States than one. Defining how far the power of Congress extends: The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with commerce with foreign nations, or among the several States.

Lochner Era 359-376 (note these readings are out of the casebook order) Limits on Economic Regulatory Legislation Economic Due Process and Liberty of Contract 359-376 Lochner v. NY (190) - DUE PROCESS 361-366 The case involved a New York law that
limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. By a 54 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." During the quarter-century that followed Lochner, the Supreme Court generally upheld economic regulations, but also issued several rulings invalidating such regulations. The Court also began to use the Due Process Clause of the Fourteenth Amendment to protect personal (as opposed to purely property) rights, including freedom of speech and the right to send one's child to private school (which was the beginning of a line of cases interpreting privacy rights).

Notes on post-Lochner liberty of contract 371 Ferguson v. Skrupa (1963) DUE PROCESS - 374-375 - A Kansas statute[1] makes it a
misdemeanor for any person to engage "in the business of debt adjusting" except as an incident to the lawful practice of law, "debt adjusting" being defined as the making of a contract whereby an adjuster, for consideration, agrees to distribute payments by a debtor among his creditors in accordance with an agreed upon plan. The plaintiff, engaged in the business of "debt adjusting," alleged that his business was a useful and desirable one, and that, therefore, an absolute prohibition of the business by the State would violate his rights under the due process clause of the Fourteenth Amendment. The District Court, sitting as a threejudge court, granted an injunction on the statute.

On appeal, the Supreme Court of the United States reversed, 9-0. Justice Black held that the statute did not violate the due process clause. 1) States had the power to legislate against what were found to be injurious practices in their internal commercial and business affairs so long as their laws did not run afoul of some specific federal constitutional prohibition or of some valid federal law. When the subject lay within the State's police power, debatable questions as to reasonableness were not for the courts but for the legislature. 2) The Court further held that the statute's exception of lawyers did not constitute a denial of equal protection of the laws to nonlawyers. Statutes created many classifications that did not deny equal protection; it was only invidious discrimination that offended the Constitution.

Note 375-377 National Power Today Commerce Power


three broad categories of activity that Congress could regulate under the Commerce Clause: y y y the channels of interstate commerce, the instrumentalities of interstate commerce, or persons or things in interstate commerce,[10] and activities that substantially affect or substantially relate to interstate commerce

The Court specifically looked to four factors in determining whether legislation represents a valid effort to use the Commerce Clause power to regulate activities that substantially affect interstate commerce: 1. 2. 3. 4. Whether the activity was non-economic as opposed to economic activity; previous cases involved economic activity. Jurisdictional element: whether the gun had moved in interstate commerce. Whether there had been Congressional findings of an economic link between guns and education. How attenuated the link was between the regulated activity and interstate commerce.

Wickard v. Filburn (1942) COMMERCE CLAUSE - A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it. But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'

Notes 114-123 including extended discussion of history of commerce power quoted from United States v. Lopez (1995) with comments by the textbook authors

Heart of Atlanta Motel v. United States (1964) COMMERCE CLAUSE 123-126 motel in Atlanta, Georgia, which refused to rent rooms to black patrons, in direct violation of the terms of the act. The owner of the motel filed suit in federal court, arguing that the requirements of the act exceeded the authority granted to Congress over interstate commerce. In addition, the owner argued that the act violated his Fifth Amendment rights to choose customers and operate his business as he wished and resulted in unjust deprivation of his property without due process of law and just compensation. Finally, the owner argued that Congress had placed him in a position of involuntary servitude by forcing him to rent available rooms to blacks, thereby violating his Thirteenth Amendment rights. Having observed that 75% of the Heart of Atlanta Motel's clientele came from out-of-state, and that it was strategically located near Interstates 75 and 85 as well as two major U.S. Highways, the Court found that the business clearly affected interstate commerce. As such, it therefore upheld the permanent injunction issued by the District Court, and required the Heart of Atlanta Motel to receive business from clientele of all races.

Katzenbach v. McClung (1964) COMMERCE CLAUSE - 126-128 - Ollie's Barbecue was a small, family-owned restaurant that operated in Birmingham, Alabama, and that seated 220 customers. It was located on a state highway and was 11 blocks from an interstate highway. In a typical year, approximately half of the food it purchased from a local supplier originated out-of-state. It catered to local families and white collar workers and provided take-out service to African American customers.
the Court agreed with McClung that Ollie's itself had virtually no effect on interstate commerce. In section 4 of the opinion the Court held that racial discrimination in restaurants had a significant impact on interstate commerce, and therefore Congress has the power to regulate this conduct under the Commerce Clause. The Court's conclusion was based on extensive Congressional hearings on the issue. The Court cited testimony that African Americans spent significantly less in areas with racially segregated restaurants, and that segregation imposed an artificial restriction on the flow of merchandise by discouraging African Americans from making purchases in segregated establishments. The Court gave the greatest weight to evidence that segregation in restaurants had a "direct and highly restrictive effect upon interstate travel by Negroes.

United States v. Lopez - Alfonso Lopez, Jr. was a 12th grade student at Edison High School in San
Antonio, Texas. On March 10, 1992 he carried a concealed .38 caliber revolver, along with five cartridges, into the school. The pistol was not loaded; Lopez claimed that he was to deliver the weapon to another person, a service for which he would receive $40. The Government's principal argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition in two ways. First, because violent crime causes harm and creates expense, it raises insurance costs, which are spread throughout the economy; and second, by limiting the willingness to travel in the area perceived to be unsafe. The Government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students' being scared and disturbed; this would, in turn, inhibit learning; and this, in turn, would lead to a weaker national economy since education is clearly a crucial element of the nation's financial health. SO ATTENUATED! It held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale. three broad categories of activity that Congress could regulate under the Commerce Clause:

y y y

the channels of interstate commerce, the instrumentalities of interstate commerce, or persons or things in interstate commerce,[10] and activities that substantially affect or substantially relate to interstate commerce

The Court specifically looked to four factors in determining whether legislation represents a valid effort to use the Commerce Clause power to regulate activities that substantially affect interstate commerce: 1. 2. 3. 4. Whether the activity was non-economic as opposed to economic activity; previous cases involved economic activity. Jurisdictional element: whether the gun had moved in interstate commerce. Whether there had been Congressional findings of an economic link between guns and education. How attenuated the link was between the regulated activity and interstate commerce.

United States v. Morrison (2000) - COMMERCE CLAUSE - 129-143 In 1994, the


United States Congress passed the Violence Against Women Act, which contained a provision at 42 U.S.C. 13981 for a federal civil remedy to victims of gender-based violence, even when no criminal charges were filed. GIRL was date raped by football player at Virginia Tech. the Court stressed "enumerated powers" that limit federal power in order to maintain "a distinction between what is truly national and what is truly local." Lopez therefore limited the scope of the Commerce Clause to exclude activity that was not directly economic in nature, even if there were indirect economic consequences. Lopez was the first significant limitation on the Commerce Clause powers of Congress in 53 years. The majority concluded that acts of violence such as those that VAWA was meant to remedy had only an "attenuated" effect, not a substantial one, on interstate commerce. The government, however, argued that "a mountain of evidence" indicated that these acts in the aggregate did have a substantial effect; for this proposition it relied on Wickard v. Filburn (1942), which held that Congress could regulate an individual act that lacked a substantial effect on interstate commerce if, when aggregated, acts of that sort had the required relation to interstate commerce. Once again relying on Lopez, the majority replied that the aggregation principle of Wickard did not apply because economic effects of crimes against women were indirect, and therefore could not be addressed through the Commerce Clause.

Gonzales v. Raich (2005) COMMERCE CLAUSE - 144-157 - Defendant Angel Raich used homegrown medical marijuana, which was legal under California law, but illegal under federal law.
In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

Note cases 157-158 Spending power 158-165 Series of note cases United States v. Butler (1936) 158-161 Chas. C. Steward Machine Co. v. Davis (1937) 161-163 Helvering v. Davis (1937) 163

Sabri v. United States (2004) 163-164 Buckley v. Valeo (1976) 164-165 South Dakota v. Dole (1987) 163 Enforcement of Post-Civil War Amendments 802-808; 844-852; 853-896 (note these readings are out of the casebook order) Civil Rights Cases 802-808 Jones v. Alfred H. Mayer Co. (1968) 844-848 Note 848-852 City of Boerne v. Flores (1997) 853-862 Note on Kimel v. Florida Bd. of Regents (2000) 862 Supp. 57-61 Northwest Austin Municipal Utility District No. One v. Holder (2009) Constitutional Limitations on State Power 214-242 The Contract Clause 371 The Takings Clause (Kelo v. City of New London) The Due Process Clause 371-377 Dormant Commerce Clause 215-227 New Energy Co. of Indiana v. Limbach (1988) 215-219 Kassel v. Consolidated Freightways Corporation (1981) 219-226 Preemption 227-241 Introductory note 227-228 Gade v. National Solid Wastes Management Association (1992) 228-237 Note on examples of preemption 237-241 Incorporation Constitutional Rights as Limitations on States McDonald v. Chicago (2d amendment incorporation case) Supp. 12-39

State Sovereignty and Federal Regulation 164-212 State Immunity from Federal Regulation 166-201 Note 1936-1985 pp. 166-168 Garcia v. San Antonio Metropolitan Transit Authority (1985) 168-176 New York v. United States (1992) 176-191 Printz v. United States (1997) 191-201 11th Amendment and the New Federalism 201-214; 805-838; 675-685 Pennhurst State School & Hospital v. Halderman (1984) 201-207 Note: 11th Amendment and retroactive relief 207-208 Seminole Tribe of Florida v. Florida (1996) 208-213 Note on later cases applying 11th Amendment to TM, patent, and age discrimination suits, but not bankruptcy 211 Bd. of Trustees of theUniversity of Alabama v. Garrett (2001) 862-870 Nevada Dept. of Human Resources v. Hibbs (2003) 870--877 Tennessee v. Lane (2004) 877-888 Dickerson v. United States (2000) 888-893 Note on Federalism and Congressional Approval of "Unconstitutional" State Laws 893895 Saenz v. Roe (1999) 732-752 Separation of Powers (Federal Government) 242-317 Introductory note -- 242 Youngstown Sheet and Tube Co. v. Sawyer (Steel Manufacturing Seizure Case)((1952) 242-247 International Relations 247-249 War and National Defense 249-251

The Prize Cases (1863) 249-251 Mora v. McNamara (1967) 251-253 Hamdi v. Rumsfield (2004) 253-272 Boumediene v. Bush (2008) 272-297 Line Item Veto Delegation of Legislative power to the Executive 297-298 Clinton v. City of NY (1998) 299-308 Congressional Interference with Presidential Prerogatives 308Legislative Veto INS v. Chadha (1983) 308-315 Mistretta v. US (1989) 315-316 Officers of the United States 316Morrison v. Olson (1988) 316-328 Presidential Immunities US v. Nixon (1974) 328-331 Clinton v. Jones (1997) 331-338 Notes 338-339 Bush v. Gore (2000) 701-705