I.

JUDICIAL REVIEW and JURISDICTION

Original Jurisdiction
Art. III 2 Cl. 1 grants the Supreme Court with limited original jurisdiction over cases involving
ambassadors, other public ministers and consuls, and in which a state is a party. Congress cannot expand
the Supreme Courts original grant of jurisdiction (Marbury v. Madison).
Appellate Jurisdiction
The Supreme Court of the Unite States has appellate jurisdiction over cases arising from the State
Supreme Courts, or from the lower federal courts under federal question or diversity jurisdiction.
Judicial Review
There is no textual basis for Judicial Review in the Constitution. The eminent Justice Marshall inferred
the Courts ability to review what the law is from the Supremacy Clause (Marbury v. Madison). This
doctrine is characterized as emphatically the sole province of the Court, and operates on behalf of
those who can demonstrate a violation of a vested legal right. States are bound by Judicial
interpretation and decision regarding questions of law. Judicial Review empowered the Judiciary to
institutionalize order and uniformity within the legal framework of the fledgling nation.
The Court may review legislative and executive acts (Marbury v. Madison: reviewed a
Congressional Act and Executives failure to act). As such, it serves as a check on coordinate
branches and conforms with the Separation of Power principle.
The Court also has authority to review state court judgments (Martin v. Hunters Lessee). The
power of the Court to review State court judgments conforms with Federalist notions of
government, that the Federal government is Supreme over the Several States.
Supremacy Clause
Article VI declares that the Constitution is the Supreme law of the land. Determining whether federal
law is entitled to Supremacy, depends on Judges exercising the essence of judicial duty (Marbury v.
Madison) to interpret the Constitution, and determine whether the law violates the Constitution.
Congress may curtail Supreme Courts Appellate Jurisdiction
Under Art. III 2, Cl. 2, Congress may curtail Supreme Courts Appellate Jurisdiction. The Judiciarys
appellate jurisdiction is subject to exceptions and regulations as Congress shall make (See
ExParte v. McCardle).
Congress may not make exceptions or regulations limiting appellate jurisdiction if the effect is to
direct an outcome in a specific case (U.S. v. Klein). However, this limitation has no effect, if Congress
overrules a Courts decision through Constitutional mechanisms such as a successful Amendment of the
Constitution, or the amendment or repeal of existing legislation of an underlying suit (Robertson v. Seattle
Audubon Society). Such procedure empowers the Separation of Powers principles which is enshrined in
the Constitution.
Congress may not re-open a case after a final decision is made by the Court and appeals are exhausted
(Plaut v. Spendthrift). Permitting Congress to pass laws that infringes upon the Judiciarys decision would
thwart the Separation of Powers principle, on which the Constitution is based.

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II. JUSTICIABILITY
The Justiciability Doctrine concerns Judicially created limits on cases and controversies that may be
heard in Federal Courts beyond the Constitutional grant of jurisdiction under Art. III 2, Cl. 1.
The Court will consider a matter Justiciable when: 1) Plaintiff meets Constitutional Minimum for
Standing which is derived from the case and controversy language in Art III 2 Cl. 1; 2) The Federal
Courts Prudential Considerations favor Justiciability; 3) the matter is ripe and not otherwise moot
for decision; 4) and it does not require the Court to decide on a Political Question.
(1) The Constitutional Minimum for Standing requires that the Plaintiff suffered and Injury-in-Fact
which is fairly traceable to defendants conduct, and that it is redressable.
a. Injury-in Fact requires injury concrete, particularized, actual or imminent. Must not be a
generalized injury
**Special Solicitude: more relaxed standard for standing because States cannot vote, only its citizens
may vote (Mass. v. EPA). The injury is a risk of harm where the EPAs failure to act increases the risk to a
State owned coastline satisfies the actual, imminent, and redressability element. Incremental steps
argument permitted, even though remedy sought is very small portion of total harm, still redressable.
EXAMPLES:
Allen v. Wright. Court denied standing for plaintiff suing IRS, for failing to deny tax-exempt status to
Segregated Private Schools. While possibly discriminatory, plaintiffs have no standing because
inability to receive desegregates education is not fairly traceable injury, decision in favor of plaintiff
granting injunction vs. IRS would not likely result in more integrated schools.
Clapper holding injury not actual or imminent because based on speculative, attenuated chain of
events, which may or may not occur. (Terrorism Case)
Lujan accepting aesthetic injuries as basis for standing, but rejecting standing because they showed
no concrete interest (plans to visit); Citizens cant sue govt just because harmed (gen. griev).
Globally applying standard wouldnt necessarily redress harm. (Aswan Dam)
(2) Prudential Considerations prohibits: the issuance of advisory opinions; the hearing of
generalized grievances or litigation involving the rights of a third party; tax-payer standing; and
that the cause be within the zone of interest that Congress intended to protect should the action
arise from the statute.
a. Taxpayer standing possible if cause of action arises under public expenditures that
directly violate the Establishment Cause (Flast: direct violation found because subsidizing
religious school materials vs. ASO v. Winn: no direct violation, too attenuated).
b. Member of Congress have Special Standing when their voting power as a member of
Congress is denied.
c. Third Party Standing possible when one of the parties is unable to sue, or there is a
special relationship between the parties, or if it is a class action.
Generalized Grievance example, guy sues CIA because he wants to know where tax money is going, this
is an injury that falls on everyone, he is not entitled to injunction (Richardson)
Ripeness requires that threatened injury be relatively immediate and certain to occur (Poe v. Ullman)
holding that statute prohibiting doctors to inform patients of contraceptives was not ripe because no
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prosecutions occurred; but see Abbot Labs holding that new law requiring drugs to be rebranded was
immediate and certain because of the economic hardship of compliance).
Courts will not hear Moot cases unless the harm is repeatable (Roe v. Wade), class action moot as to
principal plaintiff but not as a whole (Geragty), if defendant voluntarily ceases harm but can resume to do
so in future (Laidlaw).

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III. POLITICAL QUESTIONS

Political questions are non-justiciable because certain provisions of the Constitution are left to the
political branches to interpret and enforce.
Baker v. Carr provided certain categories concerning when Political Question limits Justiciability:
1) when it concerns textual commitments to a coordinate branch of government;
2) for want of justiciable standard to guide the Courts judgment ; or,
3) and when it risks embarrassment to the political branches (especially when there is a need to
speak with one voice).
Nixon v. U.S.: Concerned impeachment of shady judge, this is the sole province of the Senate under its
grant of power.
Powell v. McCormack: Shady Congressman, reelected anyway, Congress said he cant take seat (Text: Art. I
provides some qualifications, but nothing triggered by Congressman; leg. intent suggested by history,
practice show no alternative to text to give exclusion powers beyond const.) Holding: Actual restrictions
on Congs membership is not a justiciable standard.
Goldwater v. Carter: Const. of Prez rescinding treaty is PQ because text spoke about ratifying, but not
rescinding, and not Ripe because congress took no action and no confrontations, and embarrassing to
foreign policy.
Vieth v. Jubelier: Sued governor because of the Act he enacted which allowed pro-republican
redistricting. PQ because no justiciable standard regarding how to redistrict, but yeah redistricting is bad.

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IV. NECESSARY and PROPER CLAUSE

Art. I 8 Cl. 8 grants Congress the power to make all laws that are Necessary and Proper for the
execution of its power and powers vested in the Constitutions. The Necessary and Proper Clause is not
itself a basis of power, but a means to execute specifically enumerated powers, so long as the
Constitution is not violated.
In McCulloch v. Maryland the Court held that the Constitution grants Congress the power to Tax and
Spend (an expressed power) for the General Welfare, and to make such other laws as is Necessary
and Proper to carry out an enumerated power. Further, Federal Law is Supreme, and states cannot
make laws that interfere with governments exercise of its constitutional powers.
Structural

The Federal Government is derived directly from the people, not the states.
The Supremacy of the Federal government is unquestionable against the States because it
derives its power all the people in every state. A Tax by the Federal Government is one for
the people who are not represented at the state level, but state by state it constitutes
taxation without representation.

Textual

Necessary something convenient or useful to the exercise of Enumerated Power.

ISSUE:

Is the implementation of (law)

Power and is it Constitutional?

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Necessary and Proper to execute an Enumerated

V. COMMERCE CLAUSE
Art I, 8 grants Congress the power to regulate Commerce with foreign Nations, among the several States
and with Indian Tribes.
Interpretation of Authority and Target Activities
In the seminal case, Gibbons v. Ogden, the Court characterized commerce as every species of commercial
intercourse which Concerns more than one state. Congresss plenary power over commerce included the
power to regulate: people, things, and instrumentalities within interstate commerce; the channels of
interstate commerce; and inter or intra-state activities which Congress can reasonably believe has a
substantial effect on interstate commerce.
The Tenth Amendment is considered nothing but truism (Darby). The Tenth Amd. may not be used by
the judiciary as a basis for invalidating federal laws.
Substantial Effects
Finally, the courts defined among the states as substantial effects on interstate commerce in
aggregate. The court developed the aggregation principle in Wickard v. Fillburn. Congress may regulate
an activity by looking at it cumulatively to determine whether there is a direct substantial effect on
interstate commerce.
Note: Distinction in nomenclature regarding terminology such as production and indirect, do not
foreclose consideration of actual effects activity in question to interstate commerce. Even activities
having negligible effects can be aggregated and affect interstate commerce, and can thus be
regulated (supra).
Social and Moral Wrongs
Purely local activities can be reregulated so long as they have a harmful effect upon interstate commerce
(Heart of ATL Motel). Social or moral wrongs have been regulated under the Congressional grant of
commerce power when there is a rational basis to believe that there is a direct, substantial effect on
interstate commerce (Katzenbach). Criminal activities such as loan sharking, may also be regulated on
this basis (Perez).
Modern Commerce Clause New Federalism
In U.S. v. Lopez the Court reevaluated the Art I8 grant of power and limited the regulatory scope. The
Court reaffirmed its decision U.S. v. Morrison, and further curtailed the reach of regulation by qualifying
affected activities as those which are solely economic. Today Congress may regulate:
The Channels of IC; people, things, and instrumentalities in IC; & econ. activity when it is subs. rel. to IC
The relationship between the regulated activity and interstate commerce cannot be too
attenuated (US v. Lopez). The court rejected the federal governments argument that having a gun near a
school zone can adversely affect the economy.
Breyers dissent is more useful because ____ has a rational basis that ____ affects interstate commerce
because _____.
The Jurisdictional Hook is language in a statute which relates an activity to commerce (Lopez was not
included).
The activity must be economic in order to be regulated, and looked at cumulatively it must have a
substantial effect on interstate commerce (US v. Morrison).

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Both dissenting opinions reflected concerns over the Court unwillingness to defer to legislative findings
regarding the rational basis for regulation, and acting as a political agent in an inappropriate exercise
judicial activism. Justice Souters dissent in (Morrison) suggests that congressional finding assessment is
not for soundness, but for rationality of concluding that a jurisdictional basis exists in fact.
Reemergence of the Tenth Amendment as a Limitation to Congress Power
A contrast between the Modern and previous Commerce Clause regimes, is the reemergence of the Tenth
Amendment as a limit to Congress power. Congress may not regulate the states directly, or regulate
non-commercial activities considered traditionally the exclusive for state regulation under the 10th
Amd.
Congress cannot single-out a state, but a regulation will stand if it were valid on private parties as
well (Reno v. Condon).
Congress cannot commandeer the states legislative process by compelling states to enact and
enforce a federal regulatory program (New York v. U.S; see also Printz v. U.S. holding that requiring State
Executive to participate in regulatory scheme was a burdensome infringement on State sovereignty).
EXAMPLES:
Reno v. Condon. Drivers license, they would sell it, in interstate commerce, State said this was theirs to
regulate, but Court said that it applies to private and state parties.
New York v. U.S. Take Title provision forced states to choose between accepting ownership of waste
resulting in commandeering, or and requiring them to comply with federal regulatory statutes.
Printz v. U.S. Brady Act required State Law Enforcement conduct background checks on prospective gun
purchasers.
Gonzalez v. Raich. Huge Regulatory Scheme in Place. Allowing marijuana growth would impair ability
to regulate under the existing regulatory scheme; the product in this case was likely to end up in
interstate commerce.
Sebelius. Affordable Care Act. Cannot regulate inactivity Here, the not doing of something is not an
activity, this is unlike Wickard because that involved a farmer raising crops
Note: Roberts in Sebelius vs. Marshall in Marbury: Marshall ruled for his political opponent in Marbury to expand the
power of the court, here Roberts is ruling for his opponent to vastly restrict the power of congress, he is looking ahead, the
long-term value of this perspective is to restrict the ability of the fed government to use the commerce clause as a mechanism
to control peoples lives

Policy:
Federalism mandates that states remain independent from the Federal government. Allowing Congress
to Commandeer state government, would undermine accountability because Congress could make a
decision but the states would take the political head and be held responsible by their people for a
decision that was not theirs.
However, why would Federalism prevent Congress from sanctioning a solution developed by the
States themselves? (Representation/Accountability).

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VI. DORMANT COMMERCE CLAUSE

The Dormant Commerce Clause is a Judicial gloss inferred from the Constitutional grant to Congress
under Art III. 8. It prohibits the several States from imposing an excessive burden on Interstate
Commerce.
When Congress has legislated, the question is whether the Federal law preempts the State Law. Even if
Congresss Commerce Power lays dormant, state law can still be challenged as unduly burdening
interstate commerce.
The Court will limit State authority when State implements a law that is facially discriminatory, or has
discriminatory purpose or effect.
1) If the law is Discriminatory, it is presumptively invalid.
a. The State must show that the benefits to State clearly outweighs the burden on
interstate commerce.
b. This is generally a very heavy burden to meet.
2) If the law is Non Discriminatory, its presumptively valid.
a. The court will only validate if the benefits to the State clearly outweigh the burdens to
interstate commerce.
EXCEPTIONS
1) The Constitution gives Congress the authority to enact laws that would otherwise violate the
Commerce Clause
2) Market Participation Exception. States may favor domestic producers when they act as market
participants (see Reeves, affording MPE to publicly owned cement factory).
a. Even mere funding of construction contracts and purchase of labor can afford a State the
market participant exception (White v. Mass.)
b. However, States may not impose conditions on subsequent transactions down the stream
of commerce (South Central Timber).

Benefits > Burden

VAL

Presumed Valid
Balancing Test

Burden >Benefits

INV.

F, P or E
Discriminatory?

VAL
Presumed Invalid

"Necessary" toState Interest?

Must be "Extremely Important"

Yes

If Necesary is there a less

restrictive Alternative?

INV

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FACIAL
When the statute expressly draws a distinction between in-state and out of state citizens, it is Facially
Discriminatory. **natural resources*** in Philladephia v. New Jersey: the court found that a states
attempt to keep their natural resources can thus limit accessibility to out-of-staters can be facially
discriminatory. Here, _____. The Court made clear
In Deans Milk Co. v. Madison local regulations that treat out of state citizens in a disparate manner will be
treated as discriminatory even though they also discriminate against those in other parts of the states.
Purpose: If the statute is facially neutral, it can still be deemed discriminatory in purpose and effect.
**Purpose/Effect*** look at the statute, legislative history, leg intent, cost to OOS
In Hunt v. Wash the court held that discrimination based on the disparate effect of a law against OOS to be
discriminatory. Here______________. The challenged statute not only has the practical effect of only
burdening OOS but also discriminating against ____. First, because of a consequence of doing business
with ____ and second because it has the effect of stripping away ____ from the economic advantages.
In Exxon, the court held that a state law was not discriminatory even though it greatly harmed OOS
business in favor of local companies because the act does not create barriers on the flow of interstate
commerce since there are no interstate producers and many out of state retailers operate in MD.
A statute could be held as nondiscriminatory if the statute does not promote protectionism, but
regulates evenhandedly (Clover Leaf, holding that a ban on a type of container was equally
discriminatory and an evenhanded regulation).
Like Maine v. Tayor, if there is no less discriminatory way to protect the fish then its okay. Here, _____.
IF the law is not discriminatory then the courts engage in a balancing inquiry as to whether the burden
on interstate commerce against the benefit of the law to that state. Where the statute regulates even
handedly to effectuate a legitimate public interest and its effect 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).
Tax: In West Lynn Creamery the court found that a facially neutral tax law was discriminatory in effect
because the tax was borne disproportionately by OOS.

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VII. TAXING AND SPENDING

Art I 8 states that Congress has the power to lay and collect taxes, duties, imposts and excises, to pay the
debts of the US to promote The General Welfare. All bills regarding Revenue must originate in the
House of Representatives. All duties must be uniform, and Congress may not tax State Exports and
Capitation Taxes are prohibited.
Courts defer to the Legislatures determination of the General Welfare (U.S. v. Butler). Congress may not
use the power to tax and spend to directly regulate the states.
The Court declared that Congress has broad authority to tax and spend in pursuit of the general welfare
but may not use it means to exercise powers retained by the states.
SPENDING
Congress can attach conditions on tax spending to induce regulation on the states unless they are
coercive (South Dakota v. Dole). In Dole, the Court held: that Congress determines the GW, that
Conditions must be explicit (not ambiguous), that there must be a reasonable relationship between
condition and the program, and that Conditions must be Constitutional.
Taxing and Spending power is constrained when Conditions are applied in contexts involving ongoing
intergovernmental partnerships with very large federal grants (Sebelius). However, there is little
guidance about what the threshold of coercion and when a change of a program results in a new program.
TAX
Fora tax and credit to be unconstitutional, there must be a showing that used together, it is unduly
coercive or that it impairs state autonomy (Steward Machine).
Sabri stands for the proposition that Congress has the power to tax and regulate under the Necessary and
Proper clause, any provision that is rationally related to carrying out its spending and taxing power,
when the end is legitimate and appropriate.
Sebelius. There are categories of (taxes) which are permitted in the Constitution, but penalties on a
person for not doing something is prohibited.
T/S: Government threatened to take all of the funding under the existing intergovernmental relationship
requiring Medicaid, if the State did not agree to expansion and federal funds to induce the State to
expand. This tax was not seen as anything resembling mild inducement. Basically trying to get the state
hooked on government money, to become dependent and subject to future regulation.
Note: Roberts in Sebelius vs. Marshall in Marbury: Marshall ruled for his political opponent in Marbury to
expand the power of the court, here Roberts is ruling for his opponent to vastly restrict the power of congress, he is
looking ahead, the long-term value of this perspective is to restrict the ability of the fed government to use the
commerce clause as a mechanism to control peoples lives

10 |

SEBELIUS
Commerce; n/p; tax
Commerce Clause: Under the Commerce Clause, Congress may only regulate an economic activity that
has a substantial effect on interstate commerce. Here _____ is/not activity, but rather _____is/not
inactivity. However, _____ can argue that inactivity is still activity (RBG concurrence). Also, the text of the
commerce clause, gives Congress the power to regulate Commerce, not compel it. Here ______ is/not
regulating, but compelling because ______ (or vice versa).
Necessary/Proper: using the McCulloch framework, the Court declares that the end be legitimate,
within the scope of the Constitution, and consistent with the letter and spirit of the law. Here, ____
is /not legitimate. _____ is/not within the scope and _____is/not letter and spirit of the law. Laws that are
not within the meaning of the letter and spirt are not proper even though they are necessary. Here, ______.
Spending/Taxing: The Spending and Taxing power of the federal government may not be coercive.
Here, ______ is/not coercive. Federal spending is constrained in contexts involving ongoing
intergovernmental partnerships and with very little grants. Here, ______ is/not intergovernmental
partnership. _____ is/not a grant because ______.

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VIII. PREEMPTION
Preemption is doctrine under the Supremacy Clause that enforces Federal Supremacy over the States
(limits State authority). Art.VI Cl. 2 provides that the Constitution, Federal Laws and Treaties under it
are the Supreme law of the land. When there is a conflict between State and Federal law, the Federal law
governs.
1) A State law is Preempted when the law by its terms, Expressly Preempts.
(Courts interpret the extent of the express preemption using the cannons of statutory
interpretation)
2) State law can be preempted when Congressional intent implies preemption. Congressional purpose
is the ultimate touchstone to determine the extent of preemption (Lorillard Tobacco v. Riley). There
are two forms of Implied Preemption:
a. Field Preemption is inferred from Congressional Intent where the Federal scheme is so
pervasive as to occupy the field.
There is no preemption of state law when the purpose of state law is
b. Conflict Preemption occurs when it is impossible to reconcile or comply with both Federal
and State law.
A state law does not conflict when it regulates the quality of a product more strictly than a
Federal scheme whose purpose was to provide a floor rather than uniform standards (Florida
Lime v. Paul)
Example:
Arizona v. U.S. Preemption doctrine can be applied to specific provisions in a statute.
3 -Illegal for Aliens to register with Federal Government - FIELD
The Government of the United States has broad, undoubted power over the subject of immigration
and the status of aliens.
5(c) M for Alien to solicit work - CONFLICT
Because it imposed criminal liability on aliens who sought or accepted employment when U.S. law
did not make those activities a crime.
6 Police has probable Cause to - CONFLICT
Interfered with the system Congress had created for allowing the arrest of aliens who were in the
United States unlawfully.

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IX. PRIVILEGES AND IMMUNITIES

Art. III 2 provides that the citizens of each state shall be entitled to all the privileges and immunities of
citizens in the several states.
The Privileges and Immunities clause further limits the ability of states to discriminate against Citizens
of other states. The difference between the Privileges and Immunities clause and the Dormant
Commerce Clause.
Courts generally apply this clause to cases where the state infringes in the ability of a Citizen to earn a
living.
A state law will be presumptively invalid unless the state has a substantial justification thats
substantially related to state objective (Toomer v. Witsell).
A state may discriminate against the citizen of another state when it has a substantial justification thats
substantially related to state objective and there are no less restrictive means (NH v. Piper).
May not discriminate against out of state interest, if interest is fundamental to interstate harmony, unless,
substantially justified and substantially related to means (United Building v. Camden).

p.OK

State Disc
v.
OSC?

13 |

Substantial Justifi?

Fund. Rt.?
OK

Means Closely
Related to Justif?

Less Restrictive
Means Avail.?
p.VIOL

OK

VIOL

VIOL

X. THE CIVIL WAR AMENDMENTS

13th Amd.

Slavery and forced labor not allowed.

14th Amd.

Section 1
Everyone born in the United States is a citizen of the United States. section 1 of the 14th
amendment, among other things, forbids states from denying persons within their
jurisdiction due process of the law or the equal protection of the laws
Section 5
gives Congress the power to provide causes of action allowing those individuals whose
rights to equal protection or due process are violated to bring a lawsuit (this was used to
pass the Civil Rights Act).

This was challenged in Civil Rights cases: public not private discrimination is outlawed).
Court: there is a difference between civil rights and social rights. When private individuals act to
discriminate, that is a violation of social right and you cannot force individuals under this amendment.
In order to strike down an action as violating Equal Protection clause or as a denial of Privileges or
Immunities, you have to show state action. This is the doctrine of the state action doctrine. The
important part of these cases, its simply to understand what it is that Congress has significant authority
over these Amendments.
After the Civil Rights cases, the court says we change our mind as to the 13th amendment; under sec. 2,
you can outlaw private action which bears the mark of servitude (slaves were denied right to property).
Congress passes RFRA (Religious Freedom Restoration Act): If you have a law of general application that
burdens the exercise of a persons religion then, the state must show that they have a compelling interest
in criminalizing.
RFRA is then challenged in City of Boerne.
City of Boerne: The City tried in the adoption of RFRA, they tried to create an instrument that would
empower religious minorities to go into court and say that the state has made a law of general
application that burdens the practice of their religion. If this is the case, the state has the burden of
showing that they have a compelling state interest in doing so.
RFRA was struck down in the states under the 14th amendment. But not for the federal government.
Rule: Section 5 of the 14th Amendment provides Congress only with remedial powers, and when
upholding a constitutional right, Congress may only enforce legislation that utilizes means proportional
to achieving the legislative purpose (ie. Section 5 only applies to enforcing the rights in the Fourteenth
Amendment).
Holding: Congress under 14th 5,
Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the
Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given
the power to enforce, not the power to determine what constitutes a constitutional violation.
Test: There must be congruence and proportionality between the injury to be addressed and the
means to achieve that end.
14 |

Under City of Boerne, Congress under 5 of the 14th Amendment cannot create new rights or expand the
scope of rights; Congress can act only prevent or remedy violations of rights, and such laws must be
narrowly tailored
Importance on Policy:
There was a fear that Congress might try to use 5 to dilute or negate constitutional rights. The narrow
definition of 5 is consistent with the basic constitutional premise of a federal government with a limited
legislative authority and most governance left to the states (Structural Concerns).
On the other hand, the restrictive interpretation can be criticized for denying Congress the power to
expand the scope of rights. The Ninth Amendment is a clear and open invitation for government to
provide more rights than the Constitution accords. If the Court reads the Constitution not to include a
right, the Courts interpretive judgment that a particular right is not constitutionally protected is in no
way incompatible with a legislatures statutory recognition and safeguarding of the liberty.

15 |

XI. PRESIDENTAL POWER

Art. II 1 confers federal executive power upon the President alone. The President's executive power is
limited by explicitly granted powers to Congress and specific statutory provisions. For example, she may
not declare war, grant letters of marque and reprisal, or regulate commerce. Nor may she make treaties
or appointments without the advice and consent of the Senate.
The Court has long recognized that the president has inherent powers. The issue is when can the
President can act without Constitutional or Statutory authority.
Youngstown: Jackson Concurrence: presidents action unconstitutional because Congress had denied
the president the authority to seize industries.
Tripartite analysis for determining the validity of the exercise of executive power:
1. Executive acts with Congress authorization (express or implied)
a. President has the greatest authority in this category
i. Curtiss v. Wright (Chaco War)
1. Congress gave president authority to set embargo of munitions against
foreign powers engaged in war.
2. Executive acting when Congress is silent
a. President can only rely upon independent powers, but there is a twilight zone where
president might have concurrent authority with Congress
i. Question is to interpret Congress Silence
1. INS v. Chadha
a. Congress cannot even act without Presentment and
Bicameralism (Non-Delegation question).
b. Accordingly, the Court concluded that it was legislation and that it
did not fit into any of the limited situations under the Constitution
where one branch of Congress can act alone.
c. Hobson choice, the legislative veto has been used in 200 cases
before, and now those are open to questions.
2. Dames v. Moore
a. Executive did EA between himself and Iran. Congress did not
speak.
3. Executive acts that are in conflict with expressed will of Congress
a. Presidents power is at its ebb.
i. Youngstown
1. Truman attempted to seize the Steel Mills. Leg. History argument, one old
Congressman had spoken about this type of situation, but Congress did
nothing about it inaction by Congress on an issue means no.
There is a conflict between Chadha and Youngstown because in Chadha, Congress acted through a
provision allowing them to override an Executive act. Youngstown regarded Congress action declaring.
However, the Court argues that Chadha concerned non-delegation question regarding Legislation, while
Youngstown concerned
Zone 1 and 3 involve situations in which Congress has acted, and thus the issues is the constitutionality of
the federal law. Approach 2 concerns inherent powers when the president is acting without
constitutional or statutory authority.
16 |

Jackson said the steel mills fall into the third category because Congress has not left seizure of private
property an open field but has covered it by three statutory polices inconsistent with this seizure.
Jackson concurrence: Responds to governments claim that there is a textual basis in the Constitution
(Article II) for President to have this authority:
1. The Executive power shall be vested in a President of the United States.
Says reliance on this clause is too totalitarian
2. President shall be Commander in Chief
Says this conflicts with Congresss power to declare war, raise and support armies.
3. He shall take care that the laws be faithfully executed.
Conflicts with 5th Amendment due process
4. Note that the Government also tries (unsuccessfully) to justify seizure based on what Jackson calls
nebulous inherent powers never expressly granted.
How do we interpret Congresss silence?
Youngstown: The Presidents action is invalidated when Congress is Silent

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XII. CHECK ON ADMINISTRATIVE POWERS -APPOINTMENT/REMOVAL

Article II 2 allows for the appointment of Executive Officers; the President shall nominate, and by and
with the Advice and consent of the Senate, shall appoint officers of the United States, but the Congress
may by law vest the appointment of such inferior officers as they think proper in the president alone, in
the courts of law, or in the heads of office.
If the appointment is for an Inferior Officer, then Congress designate one of the three methods of
appointment by president, courts, or heads of departments.
Only the President can appoint Executive Officers if _____. Congress itself cannot appoint administrative
officials.
Under Morrison, Congressional removal restrictions are unconstitutional if it unduly impedes on the
Presidents ability to perform constitutional duty to exercise the nations law. The court in Morrison
upheld a good cause restriction because it reasoned that the officer was inferior and congress wanted
to create independence. An inferior officer is one who is subject to removal by a higher executive branch
official.
Chadha in Context The legislative veto is one of a number of means by which Congress has attempted
to control administrative agencies to which Congress has delegated substantial discretionary authority.
Clearly there are constitutional alternatives to the legislative veto mechanism.
Where Do Administrative Agencies Fit in the Separation of Powers Scheme?
Article II vests the executive power in the President, not in subordinate officials. This decision was based
on a rejection of the notion of a plural executive.
Myers and Presidential Supremacy
Myers involved a statute that provided that postmasters shall be appointed and may be removed by the
President and with the advice and consent of the Senate. Myers supports the vesting of executive power
in the President and the unitary executive.
Humphreys Executor, Weiner, and the Rise of Independent Agencies
Humphreys involved a statute providing that members of the FTC could be removed by the President for
inefficiency, neglect of duty, or malfeasance in office. In short, President Roosevelt urged that any
subordinate official served, by virtue of Article II as interpreted in Myers, at the pleasure of the President.
A unanimous Court disagreed. Weiner v. United States. Humphreys Executor and Weiner recognize a
congressional power to create independent agencies governmental entities that are free from
presidential removal power and, to some uncertain degree, presidential power to supervise and
control decisions of their offices.
The Constitution does not permit Congress to retain an active role in supervising officers tasked with
executing the laws of the United States. Art. II, 2 of the Constitution permits the President to appoint
officers with the advice and consent of the Senate, but then explicitly states that Congress shall only be
involved in removal of these officers through the impeachment process (Bowsher)
Morrison v. Olson Under separation of powers principles, the Presidents appointment and removal
powers may be constitutionally vested in a separate executive officer provided they are not delegated to
either the legislative or judicial branches
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When the court doesnt perceive that the other branches are not trying to aggrandize another branches
power, it is allowable (absent some clear textual block)
The vesting of appointment and removal power for inferior officers in the Attorney General and not the
President does not violate the Constitution or principles of separation of powers. The act is constitutional
and does not violate separation of powers principles.
NOTES
- Chadha and Bowsher Chadha and Bowsher invalidated innovative schemes designed to preserve
congressional control of delegated authority, the two decisions utilize different approaches.
- Morrison and Bowsher The Court appears to distinguish between statutory schemes designed to
assert congressional control over administrative officials (prohibited in Myers, Chadha, and Bowsher) and
statutory schemes designed to protect administrative officials from executive control (permitted in
Humphreys Executor and Morrison)
*Rule of Morrison: When the court doesnt perceive that the other branches are not trying to
aggrandize another branches power, it is allowable (absent some clear textual block)
Double Insulation Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court
distinguished Morrison and Humphreys Executor and held that it was unconstitutional to insulate an
inferior officer from removal by a principal officer when the principal officer was also protected from
removal by the President.
Zivotofsky v. Secretary of State: The court found that the provision compromised the executive's policy of
neutrality and, as such, represented an unconstitutional incursion on the exclusive power of the executive
branch to recognize foreign sovereigns.
M

Executive
has the
power to
remove
anyone
because
he has to
be able to
exercise
his
authority
to
faithfully
execute
the law.

Executive
is limited
in his
removal of
inferior
officers
when the
office is
QuasiLegislative
or Judicial

Congress
has
authority
to limit
removal
power,
and
include
Good
Cause
showing.

1. President
should have
the ability to
remove IO
when
infringes on
his ability to
faithfully
execute the
law.
But there is
interest in
keeping some
agencies free
independent
from his
removal
power.
Having PO
Exec Ofc.
have power
to control
(remove) is
permissible.

Double
Insulation
unconstitutional
to insulate an IO
from removal
by a PO when
PO also
protected from
removal by the
President.

Congress may
not interfere
with
Removing
officers
except
through its
Art II grant of
Impeachment
power.

Legislations
provisions
compromised
Executive
pcy. of
neutrality
and is
unconst
incursion on
Execs power
to recognize
foreign
sovereign.

Unconstitutional
to insulate an IO
from removal by
PO, when PO is
also protected
from removal by
Prez.

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XIII. FOREIGN POWERS

Art. II vests in Congress the power to declare war, to raise and support Armies and to provide and
maintain a Navy, to regulate Commerce with foreign Nations, and to define and punish [Offenses] against
the Law of Nations. The Senate is empowered to advise and consent treaty making.
Art. II 2 The President is given the executive power and made the Commander in Chief of the Army and
Navy. He is also empowered to make Treaties, appoint Ambassadors and other public Ministers, by and
with the Advice and Consent of the Senate, and to receive Ambassadors and other Public Ministers.
United States v. Curtiss-Wright Corp
Court held Presidents action was valid. The broad statement that the federal government can exercise
no powers except those specifically enumerated and is categorically true only in respect of our internal
affairs.
Authority over domestic affairs was possessed by the states before the ratification of the Constitution and
that they by approving the Constitution, bestowed power on the national government.
In this vast external realm with it's important, complicated, delicate, and manifold problems, the
President alone has the power to speak or listen as a representative of the nation. For instance, the
president has access to intelligence information that is generally unavailable to Congress.
There is a distinction between the rights and responsibilities of federal government when engaging in
foreign versus domestic affairs; enumerated powers only apply to executing duties in domestic
affairs, not external foreign affairs
1.
2.

Constitution carved out specific, enumerated powers that once belonged to the state and
transferred them to federal government; those not transferred were retained by states.
States never had international powers. They were transferred to federal government by Great
Britain.

Court notes that there is a plenary and exclusive power of the President as the sole organ of the
federal government in the field of international relations.
Although Curtiss is the leading case on broad inherent presidential power in the area of foreign
policy, Sutherlands reasoning has been criticized by many.
1. Some contend that this view is inconsistent with a written constitution that contain provisions
concerning foreign-policy. If Sutherlands view were correct, there would have been no reason for
the constitution to enumerate any powers in the area of foreign affairs. All powers would exist
automatically as part of national sovereignty. The detailing of authority for conducting foreign
policy rebuts the assumption that the president has complete control over foreign affairs simply
by virtue of being chief executive.
2. Founding Fathers wanted the executive, like all other branches, to have limited powers, not the
expansive inherent authority expressed in Curtiss
Dames and Moore v. Regan
Court found that the President had specific authority by Congress (through IEEPA) to nullify attachments
and order transfer of assets. Had implied authority from IEEPA and Hostage Act to suspend pending
claims in American Courts.
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The court accorded the president broad power to negotiate Executive Agreement, even when they entail
major foreign policy commitments.
The court held that the EA was constitutional because federal statutes authorized such presidential
actions and because there was a history of such executive settlement of claims. (Thereby
incorporating Jacksons tripartite analysis in Youngstown, yet has been seen as in tension with
Youngstowns skepticism of implied Presidential authority, because here silence as read as
acquiescence.)
Rule: The President has authority to settle claims through executive orders where the settlement of
claims is necessary for the resolution of a major policy dispute between the United States and another
country and where Congress acquiesces to the Presidents action
Conclusion: Yes, the President settle the claims of United States citizens against a foreign government
through executive order. The United States, along with other countries, has historically exercised its right
to settle the claims of its nationals against foreign governments for the purpose of keeping peace with
those governments. This holding is narrow and does not mean that the President has plenary
power to settle all claims. The President has authority to settle such claims where, as here,
Congress acquiesces to the Presidents action.
Treaty: Art. II Agreement between the United States and foreign country negotiated by the President and
ratified by the Senate. Art. II Treaty, is held to be the law of the land (see U.S. Const. Art VI, Supremacy
Clause).
Executive Agreement: Between the president and foreign Head of State. Anything can be done by treaty
can be done by Executive Agreement. Not mentioned in Constitution but found to be Constitutional.
Scotus has never struck down. They can be self-executing (held to be law of the land) or nonselfexecuting.
Sole EA
President just signs a piece of
paper.
Controversial whether this has
domestic legal effect. Dames v.
Moore will say yes.
Paul: shouldnt argue that its
self-executing. Maybe Dames and
Moore distinguished, because C
acquiesced in to the changing of
the law.

Congressional EA
Each house of Congress
acts by Majority vote to
accept the E.A.
For all intents and
purposes, the same as
legislation. (WTO entry).
It has effect on domestic
law.

Article II Treaty
Requires two-thirds of Senate and can
be Self-Executing.
Can change the course of law. You can
sue, as tax payer can sue under Self
Executing taxing treaty.
Non Self Executing
Most regarded as such. Does not
modify domestic law. Cannot sue.
Under Art II, it is Supreme Law of the
land. Can void State law

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XIV. NONDELEGATION
Art. I 1 vests legislative power to the Congress of the United States. Congress may choose to delegate its
authority to Administrative Agencies when it seeks to promote policies requiring superior levels of skill
or knowledge and for the sake of efficiency. Often, Administrative Agencies have powers to make,
enforce and adjudicate rules. The issue is how much of this power Congress may delegate and how will it
be exercised by the Administrative Agency.
Congress may not delegate authority to an Administrative Agency without providing an intelligible
principle (Schechter Poultry, see also Whitman v. American Trucking).
Administrative Agencies often fall under the Executive Branch, and the Legislature may not agree with
the action of such agencies. Nevertheless, Congress may not write into legislation delegating authority to
such agency, the power to veto an action of the executive branch. The Legislative Veto is unconstitutional
because the veto was legislative in purpose and effect and lacked requisite bicameralism and
presentment of Legislative action (Chadha).
Bowsher: Congress concerned about Budget Deficit, wanted to create mechanism where Execs Office of
Management and the General Accounting Office (Leg. b/c subj. to their removal), GAO send
recommendation to Comptroller General to determine where National Deficit should be cut and give
President his recommendation to regulate as such. Spending of money is executive function and creation
of budget is legislative, and Comptroller is telling president how to spend. Legislative veto.
Also unconstitutional to delegation of Legislative power to spend to unaccountable body (non-delegable
power as a matter of policy). Concurrence: no this is an illegal delegation of Executive power, but the
issue is non-delegation, just because the government has the power, it just cant give it up.
- Chadha and Bowsher Chadha and Bowsher invalidated innovative schemes designed to preserve
congressional control of delegated authority, the two decisions utilize different approaches.
Pro:
Dissent:

Formalism/Separation of Powers/Accountability
Efficiency

Congress may only act without bicameralism when each house makes its own rules, and the Senate seeks
to Impeach, Appointment of High Officials.

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XV. CONTRACTS CLAUSE

Art I. 10 is known as the Contracts Clause and provides that no state shall pass any law impairing the
obligation of Contracts. The purpose of this clause is to prevent states from adopting laws to held debtors
at the expense of creditors (counter majoritarian difficulty concerns are superior to utilitarian concerns).
Applies to presently existing contracts, the clause is not violated when the
To determine whether a state has adopted a law that violates the Contracts Clause the court will:
1) Determine if there is a substantial impairment to existing contract (to the right to contract)?
2) If so, does the state have a public purpose which is significant and legitimate?
a. Significant: Large enough
b. Legitimate: generally meant to stand for the public welfare
3) Private or Public Contract?
a. Private K
i. Are the means reasonably related to the purpose (Rational Basis)?
b. Public K
i. Government interference must be NECESSARY (STRICT SCRUTINY).
1. Necessary means no other alternative
Energy Resources v. Kansas. Courts properly defer to the legislations judgment as to the necessity and
reasonableness of a particular measure.
Private Contract
Blaisdell. Michigan during the Great Depression, Michigan passed law to effect a temporary mortatorium
on home foreclosures to save the community. Public Purpose here because they wanted to help society
keep their homes, and controlling the housing market. Deemed as a temporaty measure to protect the
vital interests of the community. Not for mere advantage of some individual. Police purpose is
broad enough to include debtor relief, protects people from foreclosure of their mortgage as a valid
governmental objective.
Government Interference with Contract
United States Trust Co. v. New Jersey. State could have taxed instead of to assure that those holding toll
bonds would be paid. Public Purpose was to help the environment and conservation. Substantial
Impairment because the tolls were to be used to pay the bonds. Complete deference to legislative
assessment of reasonableness and necessity is not appropriate when the states self-interest is at stake.

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XVI. STATE ACTION DOCTRINE

Fourteenth Amendment provides that all people born in the United States are Citizens. No state shall
make or enforce any laws that infringe on the Privileges or Immunities of Citizens, or Due Process Rights
and that they shall have Equal Protection before the law. Section 5 Provides that Congress shall have the
power to enforce, by appropriate legislations the provisions of this Article.
City of Boerne. Section 5 of the Equal Protection Clause allows the Federal Government to provide
remedies to violations of solely the Fourteenth Amendment. It cannot be used to enforce other parts of
the Constitution, and cannot be used to expand the scope of rights. Purpose is to provide standing to
people whose 14th Amendment Rights have been infringed, and relief. In the provision of such a remedy,
Congress must establish congruence and proportionality.
When is a Private Actor like a State Actor such that the limitations of the Constitution Shall apply to
them?
1. When a Private Actor Performs a Public Function
Marsh v. Alabama The more a private citizen makes his property open to the public, the
more of his rights are restricted. Corporation owned town, which was open to the public,
and towns are where these protections apply.
2. Entanglement
Burton Public Park Case signage, symbiotic relationship
Moosewood Scarcity of government sanctioned liquor license, v couldnt go anywhere else
but there in his town, where he was discriminated against.
Brentwood Board told professor he couldnt recruit, but they were basically owned by the
state, receiving a lot of funding. Freedom of Speech infringement.
3. Judicial Law Enforcement Actions
Shelley v. Kramer The Courts were basically enforcing a legal document containing a racist
covenant.
4. Subsidies
Northwood Text book lending program funded by state. Private school was practicing
racist policies. Unconstitutional.
Rendell-Baker

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