Constitutional Law I: Governmental Structure

I. Introduction: The Constitution & the Supreme Court-Text and/versus Interpretation

A. Internalist (Langdellian) vs. Externalist (Legal Realist)
B. Constitution is the source of 4 modern tenets of governance
1. Federalism: divided authority between levels of government with some sovereignty at each
level; vertical division
2. Separation of Powers: division of power among branches of government; horizontal division
3. Judicial Review: courts have the power to pass on decisions of other courts
4. Constitutionalism
II.The Judicial Power of the United States
A. The Judicial Function & Judicial Review
1. Judicial review of congressional action:
a)Marbury v. Madison (1803)
(1)Marshall, writing for the Court, argues (1) that Marbury has a right to the
commission, (2) that the laws of the country afford Marbury a remedy, and (3) that,
even though the writ of mandamus is a proper remedy, the court cannot issue it
(2)On point (3), the Court found that the case implicated the Court’s original
jurisdiction which Congress attempted to alter with the Section 25 of the 1789
Judiciary Act. Because such alteration conflicts with Art. II, sec. 2, the statute is
unconstitutional.
2. Judicial review of state laws and decisions:
a) Martin v. Hunter’s Lessee (1816)
(1)Following the confiscation of Martin’s VA land, he challenged the state’s granting
the land to Hunter; Martin won at the trial court level but was reversed on appeal
(2)The Court finds that they do have appellate jurisdiction over constitutional
decisions of state courts, whereby upholding sec. 25 of the Judiciary Act
(a)No constitutional grounds for limiting Court’s jurisdiction; state courts are
implicated in the judicial scheme established by the constitution (See Rationale)
(3)Story’s opinion: argues that the federal judiciary must have the power to fulfill Art.
III duties; the full federal judicial power must always be extant in some form; the
Constitution grants broad judicial authority and its limitations should be construed
in light of this broad responsibility
(4) VA Chief Justice Spencer Roane’s argument: Court’s decision entails the federal
courts reaching into and overriding state decisions
b) Fletcher v. Peck (1810): decision established Court’s authority to strike down state
legislation if it violated the Constitution
3. Democracy & judicial review
4. Judicial supremacy?
a)Cooper v. Aaron (1958)
(1)AR refused to comply with federal court’s order to comply with Brown on the
grounds that it was not bound by the Court’s decisions and that compliance would
lead to violence
(2)Question: Is the Court’s enforcement of a previous decision the same as the
enforcement of the Constitution
 (3)Courts decision distinguished from previous judicial review because it involved
enforcing a previous decision, rather than an explicit constitutional provision
B. Judicial Interpretation
1. Sources of judicial decisions I
a)McCulloch v. Maryland (1819)
(1)Two questions
(a)Can Congress incorporate the National Bank?
i) Yes: despite MD’s argument that the Constitution does not delegate to
Congress the authority to incorporate a national bank and its 10th
Amendment concerns, the bank is a means in pursuance of a legitimate,
delegated power; the implication is that powers needed be expressly
granted by the Constitution
ii)Ace in the hole: Necessary & Proper (II, 8.18)
(1)N&P: among Congress’ powers, not its limitations; is whatever is
‘convenient, or useful, or essential’, ‘any means calculated to produce
the end’
(b)Can Maryland tax the bank?
i) No: the power to tax is the power to destroy: representation reinforcement
(there must be a check on the power of an inferior entity to tax its superior,
J.H. Ely)
(2)Addenda
(a)Decision contains implied immunity (viz. taxes) for federally created entities
(b)To prevent pretextual legislation, exercises of N&P are subject to scrutiny
2. Note on constitutional interpretation
a)Bobbitt’s Modalities of Constitutional Interpretation: Text, Structure (theory of
government), Prudence/Consequences, History, Precedent, National Ethos/Narrative
3. Sources of judicial decisions II
a)Calder v. Bull (1798): following the Connecticut legislature’s setting aside a judicial
decree and ordering a new trial in a will contest, the Court held unanimously that the
action did not violate the Art I, Sec. 10 ‘ex post facto Law’ provision because the clause
only applies to criminal cases
(1) Relevant to judicial decision-making for Chase and Iredell’s disagreement over the
place of natural law in constitutional interpretation (see CB 75-76 for quotes)
(a)Justice Chase: legislative powers are not limited just by constitutional
enumeration/delegation; there are limitations that inhere in the nature of the
legislative power.
(b)Justice Iredell: the principles of natural law/natural justice are not an adequate
guide for judicial action.
b)District of Columbia v. Heller (2008)
(1)Court finds that the 2nd Amendment guarantees an individual right to keep and bear
arms unconnected to military service or purposes and that the DC prohibition of
handgun possession violates the 2nd Amendment
(2)Opinions of the Majority and Minority raise the question, what is the role of history
in constitutional interpretation?
(a)Text, history, and precedent are used by both sides to make arguments and
justify conclusions
C. Potential Constraints on the Supreme Court’s Power
1. External forces
a)Amendment, appointment, impeachment, informal pressure
b)Congressional control of federal jurisdiction
(1)Ex parte McCardle (1869): McCardle was arrested pursuant to publishing articles
in a Mississippi newspaper; sought habeas corpus from MS federal court claiming
that there was no constitutional authority whereby Congress could impose military
government in the states; upon losing in trial court, McCardle appealed on the basis
of an 1867 habeas statute; while the case was pending Congress passed a statute that
repealed the 1867 statute
(a)Court found that it did not have jurisdiction to hear the case because the
Court’s appellate power is granted by the Constitution ‘with such exceptions
and under such regulations as Congress shall make’
(b)As in Marbury, the case involves congressional attempts to alter the judicial
jurisdiction. In both the Court decides that it does not have jurisdiction.
Whereas Marbury saw the Court/Marshall claim expansive power by
invalidating an addition to its original jurisdiction, McCardle seems to find the
Court looking weak by affirming Congress’ reduction of it’s appellate
jurisdiction
(2)Yerger: elevates the “other avenues” component of McCardle
(3)U.S. V. Klein (1872): Klein sued for indemnification of property taken during the
Civil War and won; during the appeal a statute was passed which defined a
presidential pardon as evidence of participation in rebellion, assurance of non-
participation being required for relief; statute directed Court’s considering such
cases to dismiss them
(a)Court invalidates statute on the grounds that it violated the separation of
powers as it would ‘prescribe rules of decision to the Judicial Department of
the government in cases pending before it’
2. Judicial discretion
3. “Case or controversy” requirements and the “passive virtues”: Bickel’s Passive Virtues: is
the Court’s ostensible deference and/or restraint a remedy for the undemocratic nature of
the judiciary?
a)Advisory opinions: Established in the early years of the Republic, when President
Washington asked the justices for their views on a question arising from the war
between England and France. The Court responded that it was impermissible on
constitutional grounds for the Court to issue opinions on the constitutionality of
legislative or executive action unless the question arose from a case or controversy. The
role of constitutional advisor has been assumed, in large part, by the Office of Legal
Counsel of the Department of Justice. Declaratory judgement procedure, which enables
parties contemplating engaging in certain conduct to obtain from the court a declaration
of their rights and duties, provides some of the benefits precluded by the advisory
opinion prohibition.
b)Ripeness and mootness: see notes, “Cases and Controversies, I”, for list of relevant cases
c)Standing
(1)Allen v. Wright (1984): in a class action lawsuit parents of black school children
alleged that the IRS hadn’t complied with its obligation to deny tax-exempt status to
 private schools that discriminated on the basis of race [precedent: Bob Jones University
v. United States (1983), such schools are disqualified from receiving tax-exempt status
as ‘charities’]
(a)Court rejects plaintiffs injury claims, that (1) they were directly harmed by the
mere fact of the Government’s actions and (2) the tax exemptions impair their
ability to have their public schools desegregated.
(b)Fails the standing test: (1) not a judicially cognizable injury, (2) not fairly
traceable to Government actions; and (3) it is not clear that the requested
redress would lead to the desegregation of their public schools
(2)Lujan v. Defenders of Wildlife (1992): at issue was a construal of the Endangered
Species Act which limited the scope of its application to actions within the United
States or on the high seas; Court found that the plaintiff did not have standing.
(a)Three-prong test for standing
i) Plaintiff must have suffered an “injury in fact” an invasion of a legally-
protected interest that is (a) concrete and particular and (b) actual or
imminent
ii)Must be causal connection between the injury and the conduct complained
of
iii)It must be ‘likely’ that the injury will be ‘redressed by
(b)Court rejects plaintiff’s injury claim(s) because it is not imminent, actual, or
perceptible and
i) Citizen’s suit idea: does injury inhere in the violation of the act or the non-
efficacy of the act’s implementation?
ii)Court skeptical of Congress’ attempt to create rights and injuries
(3)Massachusetts v. EPA (2007): petitioners challenged EPA’s compliance with a
provision of the Clean Air Act, alleging failure to regulate greenhouse emissions
from new motor vehicles. Presents two questions (1) Does the EPA have statutory
authority to regulate greenhouse emissions from new motor vehicles? (2) If so, are
its stated reasons for refusing to do so consistent with the statute?
(a)Majority Opinion: “EPA’s steadfast refusal to regulate greenhouse gas
emissions presents a risk of harm to Massachusetts that is both ‘actual’ and
‘imminent’…There is, moreover, a ‘substantial likelihood that the judicial relief
requested’ will prompt EPA to take steps to reduce that risk.” (108)
i) Despite standing requirements annunciated in Lujan, the standards for
redressability and immediacy can be lowered when a litigant is vested with
a procedural right; in such cases, standing can be granted if the requested
relief will possibly prompt the injury-causing party to reconsider its
allegedly harm-causing behavior
ii)Opinion hinges on the “special position and interest of Massachusetts”;
MA’s ownership of the territory strengthens its claim to a stake
(1)Depends on Holmes’ opinion in Georgia v. Tennessee Copper Co. (1907)
iii)Three part analysis
(1)The Injury: concreteness trumps diffusion
(2)Causation: tentative nature of relief is not grounds to reject standing
(3)The Remedy: the question is not whether the EPA can reverse global
warming, but whether it has a duty to take steps to slow or reduce it
 (4)FEC v. Akins (1998): interested citizens sought to require the FEC to classify
AIPAC as a political committee subject to public disclosure requirements; FEC
claimed that the plaintiffs couldn’t distinguish themselves from other citizens and
therefore lacked standing
(a)Court held that the generalized grievance ban was prudential but not rooted in
Art. III. Standing was available because Congress had expressly defined the
injury in fact. By this definition, the petitioner’s claimed injury was not abstract
or hypothetical but concrete.
(5)Regents v. Bakke (1978): plaintiff challenged an affirmative action program without
alleging that he would have been admitted to the medical school in the absence of
the program
(a)Court held that the trial court had found an injury likely to be redressed by
favorable decision of his claim, apart from failure to be admitted, in the
University’s program. Therefore, the constitutional requirements of standing
had been met.
(6)Elk Grove v. Newdow (2004): Newdow was the father of a school aged girl who
brought suit alleging that the phrase “under God” in the pledge of allegiance, which
by state law was recited every school day, violated the first amendment
(a)Court found that Newdow lacked standing on prudential grounds
i) Distinguished between Art. III and prudential standing
ii)Decision hinged on the determination that Newdow lacked the power to
make final decisions on behalf of his daughter and was unable to bring suit
as next friend due to the nature of his domestic relationship
(b)Dissent argued that it is not the daughter who is the source of Newdow’s
standing but the relationship he has with his daughter
d)Political questions
(1)Baker v. Carr (1962): challenge of apportionment scheme on equal protection
grounds; Court hears case, determining that a political question is not presented
(a)Brennan’s six categories of political questions (Note: not conjunctive list; can
qualify as political question if only one condition is met)
i) Textually demonstrable commitment to a coordinate branch
(1)Guaranty Clause (IV, 4)
ii)Lack of judicially manageable standards
iii)Policy determination
(1)What is the timeline?
iv)Lack of institutional respect, separation of powers
v)Adherence to political decision
vi)Embarrassment
(b)Dissent (Frankfurter): if this case can go forward, then what qualifies as a
nonjusticiable political question?
i) The plaintiff’s claims involve every element that has made the Guaranty
Clause cases nonjusticiable
(c)Luther v. Borden (1849): involved RI dispute over which government was
legitimate, which government was recognized by the national government as
entitled to recognition; court held that the case was not proper for judicial
 resolution because it was for Congress ‘to decide which government is the
established one in a state’
i) Luther useful in Baker because it held that ‘the Guaranty Clause is not a
repository of judicially manageable standards which a court could utilize
independently in order to identify a State’s lawful government’
(2)Nixon v. US (1993): Nixon challenged procedures by which he was removed from
his federal judgeship (the Senate did not ‘try’ him in a constitutionally permissible
manner); Court finds the case nonjusticiable because it presents a political question
(3)Powell v. McCormack (1969): Adam Clayton Powell challenged the House of
Representative’s resolution forbidding him from taking his seat; involved eligibility
requirements of Art I, sec. 2, clause 2, and the qualifications prerogative set forth in
Art. I, sec. 5, clause 1.
(a)Court held that Congress lacked the authority to exclude a duly elected
member who meets the constitutional requirements; case does not present a
nonjusticiable political question because the determination requires ‘no more
than an interpretation of the Constitution’
(4)Bush v. Gore (2000): Because no political question was found the relevant question
is, should a political question have been found?
(a)Could the Court not have determined that there is a textual commitment to
another branch?
(b)What about the equal protection claim (i.e., vote dilution)? What function does
it serve for the majority? Would granting the equal protection claim actually
ensure equal protection, or just prevent future violations of equal protection?
(c)Why is Bush the best plaintiff? Indeed, does he even have standing?
III.Congressional Authority & Federalism
A. The Federal-State Balance & Enumerated Powers
B. Federalism & Judicial Review
1. The Commerce Clause
a)Foundations
(1)Gibbons v. Ogden (1824): Ogden, via Fulton (steamboat inventor) and Livingston,
granted steamboat monopoly of NY waters; Gibbons challenges based on the
conferral of a license to navigate NY waters based on a congressional statute; James
Kent held that NY/Ogden wins
(a)Court: commerce is intercourse, where other state is affected; ‘among the
Several States’: intermingled, but it doesn’t stop at the states’ borders
(b)Supremacy Clause: What does the Supremacy Clause mean? What kind of
conflict is required to implicate a Supremacy claim?
i) Marshall opts for the strong-form Supremacy view: any state legislation
standing in the way of supervening federal law must fall (modern day
preemption); federal law corrects invasive state laws
ii)General question: removal of barriers or promotion of development? (a la
Marshall’s vision of manifest destiny in McCulloch)
(2)US v. E.C. Knight Co. (1895): Court finds that Congress is beyond it’s powers in
trying to apply the Sherman Act to prevent sugar refinery monopoly; Sherman Act
doesn’t extend to the trust in question because of the nature of the act (manufacture
vs commerce)
 (a)Court (C.J. Fuller): manufacture is not commerce, and the effect on interstate
commerce of the activity to be regulated must be direct (if intrastate activity has
a direct effect on interstate commerce, then it falls within Congress’ power to
regulate)
i) Central question: What is commerce? Where does it start, where does it
end, and what does it comprehend?
(b)Other relevant cases: Stafford (1922) and Swift (1905) ( “stream of commerce”)
b)The development of Commerce Clause doctrine
(1)Champion v. Ames (1903): Court upholds laws prohibiting interstate shipping of
lottery tickets
(a)Lottery tickets are moving among states in commerce
(b)How important was the nature of the lottery tickets? The fact that the federal
measure supplemented state actions?
(2)Shreveport Rate Cases (1914): Court upholds law empowering commission to set
maximum rate for interstate shipping
(3)Hammer v. Dagenhart (1918): Court strikes down a congressional child labor
statute (prohibition on commerce that involved child labor)
(a)Twofold repugnance:
i) Exceeds congressional commerce authority
ii)Exerts a power on a ‘purely local matter to which the federal authority
does not extend’
(b)The goods themselves are harmless (Hammer) vs. The harmful nature of the
goods (Champion)
(c)Holmes’ dissent: agrees that the purpose needn’t matter; the question is
whether it is within Congress’ power to regulate, is this something Congress can
do?
i) Internal limits analysis: if Congress can do it, let them do it and don’t look
at the purpose (a la Champion)
ii)Contra external limits: limits outside of the Commerce Clause but still in
the Constitution
iii)The question is, is it interstate commerce? It cannot be that Congress can
regulate oleomargarine but not the activity in question, and not because the
issue at hand is child labor.
(4)Stafford v. Wallace (1922): Court upheld the Packers and Stockyards Act of 1921
which allowed for the regulation of rates and the prescription of standards for the
operation of stockyards where livestock was kept for sale or shipment in interstate
commerce; located the stockyards in the ‘current’ or ‘stream of commerce’
(5)Coronado Coal Co. v. United Mine Workers (1925): Sherman Act applied to a strike
against mine workers
(6)Carter v. Carter Coal Co.: distinguished E.C. Knight from Coronado [Check year;
referenced in Wickard re: slippery slope]
c)The New Deal & the Commerce Clause
(1)A.L.A Schechter Poultry Corp v. US (1935): challenge to Live Poultry Code, passed
pursuant to the National Industrial Recovery Act; Schechter brothers fined and
arrested for selling sick chicken, and in so doing violating the code
(a)Court strikes down the (about to expire and increasingly unpopular) NIRA
 i) Goods not in the stream of commerce, and do not have a direct effect on
interstate commerce
(b)How distinguished from/related to other cases?
i) Chickens are not at this moment moving in interstate commerce, unlike
Champion; the goods of commerce have come to a rest
ii)Chickens are not an instrumentality of commerce, unlike the railways in
the Shreveport Rate Cases
(2)NLRB v. Jones & Laughlin Steel Corp. (1937):National Labor Relations Board
charged Jones & Laughlin with the unfair labor practice of firing employees because
they sought to form a union
(a)Court reverses the lower court’s decision, whereby upholding the NLRB’s
action
i) Distinguished Schechter and Carter, finding them not controlling in the
present case
ii)Claimed that Congress’ commerce power is not limited to just the flow of
interstate commerce; rather, activities that ‘have such a close and
substantial relation to interstate commerce that their control is essential or
appropriate to protect that commerce from burdens or obstructions’ are
subject to congressional regulation
iii)Found that the direct effect of the activity subject to regulation was
industrial strife, which had a close and substantial relation to interstate
commerce
(3)US v. Darby (1941): Darby was charged under the Fair Labor Standards Act of
1938, which prohibited the shipment in interstate commerce of goods manufactured
by employees that were paid less than a minimum wage or worked more than a
maximum number of hours; adopting Holmes’ Hammer dissent and overruling
Hammer, Supreme Court reversed the lower court’s decision and finds the act
unconstitutional
(a)Court (J. Stone): Congress is free to exclude from interstate commerce goods
it deems ‘injurious to the public health, morals, or welfare’; as long as the
regulation does not violate other constitutional provisions, Congress’s motives
to restrict the use of certain articles do not preclude the exercise of its
commerce power
(b)‘The motive and purpose of a regulation of interstate commerce are matters for
the legislative judgment upon the exercise of which the Constitution places no
restriction and over which the courts are given no control.’ (208)
(c)‘The [Tenth] amendment is but a truism’: commerce clause as promotion of
national economy
(4)Wickard v. Filburn (1942): Court upheld Agricultural Adjustment Act provision
allotting wheat production, finding that Congress was regulating activity that had a
substantial effect on interstate commerce
(a)Analytical principle: aggregation of economic effects
i) It is not just the individual’s activity that is in question, it is the class of
activities
ii)Essentially demolishes the sphere of behavior local in character that was
(in Hammer and Schechter) beyond Congressional regulation
 (5)Heart of Atlanta Motel v. US (1964) and Katzenbach v. McClung (1964)
(a)Both concerned Title II of the 1964 Civil Rights Act
i) Why is the Commerce Clause a question? Why didn’t Congress act under
the 14th Amendment?
(1)Congressional intent, reflected in the CRA’s language, was to use the
commerce power
ii)In both cases, the Court upholds Title II
(1)Employed aggregation principle
(a)BUT: Wickard is distinguished because it is talking about
individual behavior associated with commerce, whereas these cases
concern behavior that is (arguably) one step further removed from
commerce
(2)Court announces rational basis standard of review for congressional
fact findings
iii)Are these cases extensions of Wickard? Can Congress now do nearly
whatever it wants under the its commerce power?
iv)Court vs. Congress (Wechsler argument): the Court is right to defer to
Congress because the Court is not good at regulating federalism
v)If there is a problem with the Commerce Clause as interpreted and defined
by the Court as of Wickard/Heart of Atlanta/McClung, is that problem ‘baked
into’ the clause?
(1)When the clause was formulated, the majority of commerce was not
interstate; the conditions which obtained when the clause was
established no longer obtain
(2)It’s interesting that when we consider the evolution of the commerce
power and return to the conditions that obtained at its formulation, we
talk about a very narrowly defined commerce (e.g., movement of trade
between two states, strictly commercial behavior)
d)Modern Limits
(1)US v. Lopez (1995): Court declares unconstitutional the Gun-Free School Zones
Act of 1990, which made it a federal offense to possess a firearm within 1,000 feet of
a school. For the first time since 1937 the Court held unconstitutional an act on
Congress under its commerce power
(a)Rehnquist’s Opinion: 3 broad categories of activity that Congress may regulate
i) Channels of interstate commerce
(1)Heart of Atlanta, Darby, McClung
ii)Instrumentalities or persons or things in interstate commerce
(1)Means of commerce + stuff moving in commerce
(2)Lottery Case (Champion v. Ames), Rate Cases
iii)Activities having a substantial relation to interstate commerce, or which
substantially affect interstate commerce
(1)Jones & Laughlin, Schechter (?)
(2)This is the real point of attention in Lopez
(b)Emphasizes the strength of the connection between the activity to be regulated
and interstate commerce (i.e., it must be substantial) as well as the nature of the
activity (i.e., it must be economic)
 i) Both of these conditions are not satisfied
(c)In the post-Lopez world, we must look at the nature of the underlying activity
and determine whether it is economic or non-economic
i) Rehnquist argues as though that has always been the case, that economic
nature of the activity has been central to the Court’s Commerce Clause
jurisprudence
(d)Should the Court have overruled Wickard?
(e)Where does the economic/non-economic distinction come from?
i) At what point does the distinction become a question? Does a commerce
connection need to be established first?
ii)In what order is the test administer? [(Non)-economic determination then
substantial effect, or substantial effect then (non)-economic
determination?]
iii)Is it possible to administer the test without it collapsing? Is the same result
reached if it is applied in both directions
(f)Souter’s Dissent
i) Makes a precedential argument
(1)Rational basis (Civil Rights Commerce Cases)
(2)Aggregation principle (Wickard)
(3)Perez v. U.S. (Loan Sharking Case)
ii)Emphasizes that the Court is imposing a new standard
iii)Relies on Congress’ findings, and defers to them
(1)Is it up to the Court to apply the two-part test? Or, should the Court
defer to Congress’ conclusions, even if only implicit?
(2)Contra the Circuit court’s dismissal of the findings as insufficient
iv)3 legal problems
(1)Decision runs contrary to modern cases
(2)Commercial/Non-commercial distinction is tenuous
(3)Threatens legal uncertainty in a previously settled/stable field of law
(2)US v. Morrison (2000): Court held unconstitutional a provision of the Violence
Against Women Act; affirms the general thrust of Lopez
(a)Rehnquist: gender-motivated crimes of violence are not economic activity
(3)Gonzales v. Raich (2005): Court upheld federal ban on private cultivation of
marijuana as applied to marijuana grown at person’s home and intended for limited
use (Note: involved as applied challenge whole statute was not challenged; tacitly conceded that
Congress had some authority to legislate in this area)
(a)Distinguished from Lopez: already coordinated, broad national strategy to
control the drug trade, Raich challenged provision as it applied to her; Lopez
involved the challenge of the whole statute
(b)What of the underlying activity? Citing Wickard, Stevens argues that purely
intrastate, noncommercial activity can be regulated if ‘the failure to regulate
that class of activity would undercut the regulation of the interstate market in
that commodity’ (227)
(c)Court defined ‘economic’ activities as those involving ‘the production,
distribution, and consumption of commodities’ (228)
i) Is this blurring a line that the Lopez Court was trying to keep distinct?
 - Is there any way of defining the activity without looking at the effect? Does
the inclusion of ‘commodity’ logic presume effects on commerce?
- Implicit rejection of Lopez?
- Contra Rehnquist’s argument in Lopez that ‘even Wickard regulate economic activity’
(4)US v. Comstock (2010): Court upholds act allowing civil commitment of mentally ill,
sexually dangerous federal prisoners, making a strong N&P argument. The question
is, necessary and proper pursuant to what enumerated power? Although the Court
can’t find a concrete enumerated power, it invokes preexisting federal powers (e.g.,
federal prisons).
(5)Virginia v. Sebelius (2010), PPACA Challenges: In both the FL and VA case, the
individual mandate provision was found unconstitutional. Unlike the VA court, the
FL court finds that the provision is not severable from the act and therefore struck
down the law in its entirety.
(a)Necessary & Proper argument: coming out of Comstock, it’s easy to argue that
Congress has broad regulatory power under the Necessary & Proper clause,
especially if there are legislative precedents or a preexisting regulatory scheme.
(b)Is the fight really over the scope of Comstock?
(c)Relevance of Raich? At issue is the application of the act to an individual
(d)What about the argument about inactivity, as against activity?
(e)Precedent? Wickard? If the important point is the entry into the market, not
activity outside of the market. Civil Rights Cases: forced to provide services to
class of individuals that the proprietors would otherwise not serve
2. The taxing & spending powers
a)United States v. Butler (1936): the issue was a provision of Agricultural Adjustment Act,
which taxed farmers who grew certain commodities in order to subsidize farmers who
did not grow them, struck down as “means to an unconstitutional end” (286)
(1)Court endorses the Hamiltonian view, that the taxing and spending power is itself
an enumerated power and needn’t be restricted to use pursuant to some other
enumerated power; the key, then, becomes the relation between the tax and the
general welfare
(a)Contra the argument that the N&P clause must be attached to an enumerated
power
b)Stewart Machine Co. v. Davis (1937): Court upheld federal unemployment tax against
the challenge that it was unconstitutional coercion in contravention of the 10th Am
(1)Limit: the Court is not worried about identifying the outer limit, but makes clear
that the tax cannot be unrelated to the end legitimately national
(a)As long as Congress can articulate a general welfare-ish justification, some
legitimate national end, the tax stands a good chance of surviving challenge
(b)Shift away from coercion analysis is a shift away from Butler
(c)Completes New Deal turn around, redefining Congress’ power?
c)South Dakota v. Dole (1987): At issue: federal funding made conditional on state action,
specifically raising the drinking age to 21
(1)Limitations to spending power: formalization of Stewart test
(a)Must be in pursuit of the general welfare; congressional judgment deserves
substantial deference
(b)Federal conditions must be unambiguous
 (c)Conditions on federal grants must be related to federal interest in particular
programs/projects
(d)Mustn’t violate other constitutional provision(s)
(2)Dissent: is conditional spending an end-run around other constitutional provisions?
(3)Defense of conditional spending: Congress is justified in wanting to bring states in
line with federal policy and in pursuit of federal goals
(4)At what point does conditionality become coercion?
3. The treaty power: granted to the Executive (II, 2) and the Senate (I, 8)
a)Missouri v. Holland (1920): Court upholds Migratory Bird Act of 1918, passed pursuant
to the Migratory Bird Treaty of 1917; Strong support for expansive treaty power
(1)Limit?
(a)“The only question is whether it is forbidden by some invisible radiation from
the general terms of the Tenth Amendment.”
b)Reid v. Covert (1957): Court holds that the treaty power is subordinate to the
Constitution and the Bill of Rights (here, the 6th Am guarantee of a jury trial applied);
limits Missouri
(1)“To the extent that the United States can validly make treaties, the people and the
States have delegated their powers to the National Government and the Tenth
Amendment is no barrier.” (333)
c)Medellin v. Texas (2008): Court holds that the treaty in question is not self-executing
and is therefore not binding
(1)Main point: You can’t challenge the treaty power on 10th Am/state sovereignty
grounds
C. Tenth Amendment Limits on Federal Regulation
1. National League of Cities v. Usery (1976): Court held that the commerce claise did not
empower Congress to enforce the minimum wage and overtime provisions of the FLSA
against the states “in areas of traditional governmental functions”; while the hours and
wages of state and local employees affect interstate commerce, the application of the statute
to these workers was unconstitutional.
2. Garcia v. San Antonio Metropolitan Transit Authority (1985): Court upheld minimum-wage
and overtime requirements of the Fair Labor Standards Act over SAMTA’s argument that it
exercising a traditional government function which would exempt it from federal regulation
(NLC v. Usery)
a)Court overrules National League of Cities, rejecting the “integral” or “traditional”
governmental functions test because it is inadequate to the task of determining the
boundaries of federal and state power.
b)Court argued that state sovereignty was protected by the political process, rather than
“discrete limitations” on federal authority.
3. New York v. US (1992): Court strikes down take-title provision of the Low-Level
Radioactive Waste Management Act Amendments of 1985 on the grounds that, while
Congress can under the Commerce Clause use financial rewards and access to waste
disposal sites as incentives for states, requiring them to take ownership and assume liability
for waste runs afoul of the 10th Amendment as is therefore unconstitutional.
a)Anti-commandeering doctrine announced: "Either type of federal action," wrote Justice
Sandra Day O'Connor, "would 'commandeer' state governments into the service of
 federal regulatory purposes, and would for this reason be inconsistent with the
Constitution's division of authority between federal and state governments."
4. Preemption: 3 types
a)Express: statutory provision specifically refers to preemption and indicates which state
laws are preempted
b)Field: federal regulatory scheme is “so pervasive as to make reasonable the inference
that Congress left no room for the States to supplement it” [Rice v. Santa Fe Elevator Corp
(1947)]
c)Conflict: “compliance with both federal and state regulations is a physical
impossibility” [Florida Lime & Avocado Growers Inc v. Paul (1963)], or state law “stands as
an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress” [Hines v. Davidowitz (1941)] [p. 278]
5. Printz v. US (1997): Court holds the Brady Act unconstitutional on the grounds that the
CLEO provision was an impermissible commandeering of state executive officials,
extending New York holding from state legislatures to state executive officials (347)
a)Principle: Congress cannot conscript state officials to implement federal regulation
b)Rules vs Standards: essentially establishes a per se rule against commandeering state
executive officials, against New York’s standards analysis
c)Dissent’s reply to federal-centered alternative: Is the aggrandizement of the federal
government really a desirable outcome for the New Federalist purportedly trying to
protect state sovereignty?
(1)Response: the Court is not contesting the federal government’s ability to regulate
handgun sales; rather, it is preventing the commandeering of the state government
apparatus to carry out its (i.e., the federal government’s) regulatory scheme. Is
federalism about (primarily) the maintenance of state sovereignty or the
minimization of bureaucratic proliferation at the federal level?
6. Reno v. Condon (2000): Court upholds a statute protecting disclosure of state motor vehicle
information, holding that the state is being regulated in its non-sovereign capacity: state qua
State vs state as database owners/operator
a)Distinguished from New York on the basis of the state’s role as database owner, not as a
sovereign entity
7. Gonzales v. Oregon (2006): Court held that the Controlled Substances Act was intended o
prevent doctors from engaging in illicit drug dealing, and not to affect or define state
medical practice standards. Therefore, AG Ashcroft’s declaration that physician-assisted
suicide violated the CSA and complicit doctors were subject to license revocation, was
impermissible
8. US v. Comstock (2010):
IV.Limitations on State Economic Regulation: The Dormant Commerce Clause
A. Background: Limitations on state regulation through negative implication from congressional
power. But, given that states have traditionally had broad regulatory powers, the questions is:
To what extent can states conceivably regulate matters that may fall under Congress’ regulatory
authority? Where does that power reside?
1. There are two reasons to like the Commerce Clause: it can be used to remove barriers and
to encourage economic development. The Dormant Commerce Clause focuses on the first of
there, treating state regulations as a barrier to interstate commerce
 2. Central to the DCC is the prohibition on states facially discriminating against interstate
commerce. It does not, however, prevent states from benefitting their own citizens
B. Modern Doctrine
1. Protection against discrimination
a)City of Philadelphia v. New Jersey (1978): Court holds that New Jersey was regulating
on the basis of out-of-state origin, which is virtually per se invalid; Court employs a
balancing test to evaluate
(1)Virtually per se invalid because the Court recognizes the possibility that there is a
state interest that could justify discrimination; the exception applies to non-
protectionist interest where there are no nondiscriminatory alternative means
available, illustrated in Maine v. Taylor (1986)
b)Maine v. Taylor (1986): Maine law prohibiting importation of live baitfish upheld; the
Court held that the limitation imposed by the Commerce Clause on state regulatory
power was not absolute and that the States "retain[ed] authority under their general
police powers to regulate matters of 'legitimate local concern.'" The Court found that
Maine's ban on the importation of live baitfish served a legitimate local purpose that
could not adequately be served by available nondiscriminatory alternatives. The Court
argued that the ban was not a simple case of "arbitrary discrimination against interstate
commerce."
2. Subsidies
a)West Lynn Creamery, Inc. v. Healy (1994): MA nondiscriminatory tax-plus-local
subsidy program struck down
(1)Court makes clear that MA could implement the regulations if they were done
separately, if the tax revenues went into a general fund from which subsidies are
disbursed.
(2)Strong political intuition: the Court is concerned with the closed regulatory scheme,
with the airlessness between the tax and the subsidy; MA’s scheme upsets the
political process by placating the interests that would otherwise oppose the tax,
rendering out of state interests vulnerable and voiceless
(3)How convincing is the Court’s political process argument?
(a)Would the citizens of MA be less fooled by the tax-general fund subsidy
scheme than by the tax-direct subsidy scheme?
(4)Is the essence of the Court’s decision the attempt to find political checks? Hence the
focus on placating interests, interest groups, etc.
3. Market participation: states may discriminate when they act as participants in the market,
but not when they act as regulators
a)Hughes v. Alexandria Scrap Corp. (1976): MD preference for MD citizens in junked car
regulation upheld because the state was acting as a market participant
4. Facially neutral regulation affecting interstate commerce
a)Hunt v. Washington State Apple Advertising Commission (1977): Court struck NC
statute requiring that apple containers bear the USDA, and no other, grade
(1)Sense that the Court felt the NC statute was not conceivably neutral; NC was
interfering with a freely-operating market
b)Exxon Corp. v. Governor of Maryland (1978): Court upheld MD statute requiring that
no producer or refiner of petroleum can operate a retail gas station in MD
 (1)Who’s being burdened? Out of state oil companies that own retail stations in MD;
Who benefits? There are no MD refineries, that is no entities that benefit in the way
that out-of-state refineries are disadvantaged -> Does this complicate the cost-benefit
analysis?
(2)Does MD benefit from the difficulty of determining what a freely-operation market
(i.e., natural state of affairs) would look like
(3)Does the Court merely want to avoid doing a thorough realist analysis, scrutinizing
the legislatures findings and the economic effects
(4)What about the Court’s West Lynn Creamery political effects analysis?
(a)Dissent: discrimination should be defined in terms of effects, and that requires
a political process effects analysis
V.Separation of Powers & The Presidency
A. Introduction
1. Theory
a)Executive Branch: Article II
(1)Hamilton’s argument: the executive’s power must be independent and free-standing;
“Herein granted” appears in Article I but not Article II: this supports the free-
standing, non-enumerated nature of executive powers
(2)Two views of executive power
(a)Free-standing grant of power (Hamilton)
(b)Limited to enumerated powers of Art. II
2. Youngstown Sheet & Tube Co. v. Sawyer (1952): Court finds that Truman was acting beyond
his constitutional authority when he authorized the Secretary of Commerce to take
possession of and operate the nation’s steel mills
a)Black’s Opinion: framing distinction between legislation and execution
(1)Two-part taxonomy: looks in two places for justification for Truman’s actions
(a)Act of Congress (‘take care’ clause): none justifies seizure
i) In fact, in the drafting of the Taft-Hartley Act such a power was explicitly
withheld
(b)Constitution itself: Military power, Executive power
(2)Not saying that there must always be congressional permission for executive action;
rather, he is clarifying which executive powers require such permission and which
powers are independent
b)Frankfurter’s Concurrence
(1)Affirms Black’s (and Jackson’s) two-part analysis of (1) an act of Congress or (2)
the Constitution itself, but adds another category: historical gloss or practice
(a)Addition: (3) ‘Deeply embedded traditional ways of conducting government’
c)Jackson’s Concurrence: subsequently emerged as the opinion of Youngstown
(1)Three situations concerning executive authority
(a)Presidential action fall under the express or implied authorization of Congress
i) Maximum of executive power
(b)President acts in the absence of either a congressional grant or denial;
Congress is silent--concurrent authority?
i) Zone of twilight
(c)Measures incompatible with the expressed or implied will of Congress
i) Minimum of executive power
 (2)Truman’s seizure qualifies in the third category: the seizure is incompatible with
Congress’ will
(3)Jackson’s analysis, though more subtle and nuanced, is consistent with Black’s two-
part taxonomy; it also functions relative to Congress
(4)What Jackson’s three-part taxonomy overlooks: an action in the third category may
have recourse
d)C.J. Vinson’s Dissent: articulates Hamilton’s argument; answers the question, why are
we talking about Congress so much?
(1)The President is an independent political and constitutional actor: ‘relevant to note
the gap that exists between the President’s paper powers ad his real powers’
(a)Criticizes Black’s ‘messenger-boy concept of the [Executive] Office’
(2)There is an impending national emergency
(3)In terms of the majority’s two-part taxonomy: Constitutional dimension emphasized
at the expense of the congressional component
3. Dames & Moore v. Regan (1981): Court upholds the transfer of Iranian funds and
nullification of legal claims against Iran on the grounds that the International Emergency
Economic Powers Act constituted as specific congressional authorization for Presidential
action (like transferring funds); though the IEEPA doesn’t explicitly grant the powers the
president exercised, the Court interpreted Congress’s silence as tacit approval of such
actions
B. Domestic Affairs
1. Judicial authority and the executive
a)Executive privilege: US v. Nixon (1974): Nixon identified as unindicted coconspirator in
Watergate scandal; special prosecutor subpoenas tapes and other documents; Nixon
refuses to comply with the subpoena, citing executive privilege
(1)Two issues: (1) Justiciability/jurisdiction, (2) Executive privilege
(a)Justiciability/jurisdiction: Nixon’s claims/arguments: Why is the judiciary even
involved? The Court lacks jurisdiction here because it is an inter-branch
dispute; cites Marbury (version of Political Question doctrine). The issue in
question goes to the core of executive power and interfering would upset the
balance of powers. Emphasizes that he is an unindicted coconspirator and that the
District Court should not even entertain the case
i) Court’s response: the president can’t claim powers of that scope
ii)How relevant is the special prosecutor, who serves at the pleasure of the
president?
(b)Executive Privilege
i) Origin/justification: implied in the separation of powers, though there is no
textual basis
(1)Scope of power: absolute, intermediate/qualified, or none
ii)What would it mean to find an absolute executive privilege?
iii)Footnote (p. 403): fact of criminal proceeding is important; implies that a
broader executive privilege may exist in a civil context (a la Cheney v. U.S.
District Court)
(1)If you’re going to have an executive privilege at all, aren’t you focused
on protecting the executive (for candor, etc.) from encroachment by the
 other branches? If this is true, then why should the judiciary have the
authority to delineate the boundaries of this privilege?
(2)Upshot: qualified executive privilege, in camera review
(a)Success: Court finds some executive privilege
(b)Failure: Court rejects claim that executive is immune from judicial
proceedings while in office
b)Immunity from suit: exemption from legal action
(1) Nixon v. Fitzgerald (1982): Court finds immunity for President Nixon from civil
damages suit for actions taken while in office
(a)Court does a nuisance-type balancing analysis: requested action vs
consequences of that action and finds that the President’s interest outweighs the
benefit of granting the claim
(b)Why is there immunity here and not in U.S. v. Nixon?
i) Criminal vs civil suit; visibility/position of the president; damages litigation
magnet
(c)Fitzgerald leaves open the question of when a president is subject to legal
action…which is taken up in Clinton v. Jones
(2)Clinton v. Jones (1997): Court finds that the suit for claims arising before Clinton
took office can go forward even while he is in office
(a)Fitzgerald distinguished
i) Timing of conduct: because it involved official conduct, whereas the case at
hand does not
ii)Timing of suit: brought during office, where legal action could strain the
president’s ability to fulfill his responsibilities
iii)Nature of conduct:
(b)Rejects separation of powers claim in the grounds that the requested action
invokes a clear constitutional grant of power (Art. III) and, again, that the
events in question do not concern official conductIs the issue that the conduct is
not official or that it occurred when Clinton was out of office?
(c)Is the strain-on-executive analysis employed when only one of these is present?
c)Impeachment
2. Legislative authority and the executive
a)Emporing the executive
(1)Delegation
(2)Line item veto: Clinton v. City of New York (1998): Court held that according to the
Constitution, legislative actions required presentment to the president and bicameral
ratification; by partially passing bills from Congress the president is effectively
amending legislation, which violates the Constitution; at issue was the Line Item
Veto Act; NY challenged Clinton’s exercise of the veto on two provisions
(a)Court invalidates the act on the grounds that the veto violates Art. I, sec. 7’s
definition of how a bill becomes a law
i) Refusal of the greater-includes-the-lesser (if president can veto the whole
bill, why can’t he veto a portion of it?)
ii)Formalist approach: emphasizes need for clear-line distinctions
(1)Contra the functionalist approach outlined in Breyer’s dissent
 iii)President is acting legislatively, and beyond his constitutionally-granted
powers
(b)What is Congress doing here?
i) Tying the hands of future Congresses? Lock-box provision avoids
bicameralism in future instances
ii)Power grab?
(1)Accountability: provisions can be added to please interest groups with
the understanding that the president will strike them
(2)Politically: unified government could distort legislative process
(crafting legislation for passage with knowledge that president can
refine it)
(3)Institutionally: entrenches non-delegated authority; repealing LIVA
would require president’s signature
b)Constraining the executive
(1)Legislative veto: INS v. Chadha (1983): at issue was the legislative veto, which the
House exercised pursuant to the Immigration & Naturalization Act to overrule the
AG’s decision whether to deport individuals
(a)Court holds the Congressional veto provision unconstitutional
i) Bicameralism and Presentment (emphasis of majority): argues that the
House’s actions (changing the status of an individual) is legislative and
therefore subject to the requirements of bicameralism and presentment
(1)One-House veto violates bicameralism
ii)Non-Delegation: Congress must abide by its prior delegation and does not
retain on-going control
iii)Separation of Powers: Is Congress doing something that it shouldn’t be
doing?
(1)Adjudication (Powell): Is it assuming adjudicatory powers by deeming
Chadha a non-citizen subject to deportation
(2)Legislation (Burger): Is it attempting to legislate in an unconstitutional
way?
(b)Is there a democratic argument to be made in support of the legislative veto? Is
it defensive in character, rather than aggrandizing?
i) Does the House exercising a legislative veto reconcile the uneasy position
of administrative agencies in the constitutional order?
ii)Response: Legislature can maintain its role as principal lawmaker by
legislating through the constitutionally mandated procedure.
iii)Objection to response (White, dissenting): This is too politically costly;
legislature is faced with a Hobson’s choice
(c)Post-Chadha: executive administrative agencies are not beyond control of
Congress, which still maintains substantial oversight, legislative, and budgetary
control
c)Administrative agencies
(1)Humphrey’s Executor v. US (1935)
(2)Bowsher v. Synar (1986)
(3)Morrison v. Olson (1988)
(4)Free Enterprise Fund v. PCAOB (2010)
C. Foreign Affairs & National Security
1. Executive authority
a)US v. Curtiss-Wright Corp. (1936): Court upholds congressional resolution delegating to
president power to prohibit the sale of arms
(1)Can Congress delegate this way? Yes
(a)Foreign vs. Domestic Affairs
i) Foreign affairs uniquely suited to being handled by Executive because of
his access to relevant information
ii)Federal Government: states never had power to conduct foreign affairs;
federal legislative powers were carved out of the powers possessed by the
states; the whole point of the federal government is to conduct such
business
iii)May be a federal power, but why the executive?
(1)President is “the sole organ of federal government in the field of
international relations”
(2)President has special access to information
(b)Did the power need to be delegated?
i) Important that the case came before Youngstown and Black and Jackson’s
opinions
(c)Sutherland’s Opinion: strong view of executive power, congressional
authorization (even on top of executive prerogative) helps justify president’s
action
i) Dealing not only with a congressionally vested executive power, but the
addition of the “very delicate, plenary and exclusive power of the President
as the sole organ of federal government in the field of international
relations”
b)Medellin v. Texas (2008): concerns the status of international conventions in U.S. law
and the relation of the Executive’s power thereto
(1)Bush issues memo to Attorney General stipulating that state courts are to apply the
decision of the ICJ
(2)Significant that case involved a directive to state courts
(a)Supremacy Clause? But the directive was based on something that is not law
(b)Take Care Clause? Again, a duly ratified law must be the basis of the
president’s execution
(3)Judicial safeguards of federalism: executive action prohibited (in part) on grounds
that it encroached in state powers
2. Congress’s role in the use of force
a)War Powers ResolutionWar Powers Resolution: passed over Nixon’s veto
(1)What is Congress doing with this resolution?
(a)Just a restatement of the dispensation of constitutional authority?
(b)Statement of non-acquiescence, removal of Frankfurter’s gloss?
i) To the extent that we haven’t done this before, we are no longer
acquiescing
(c)Attempt to refine/define constitutional war making powers?
i) Rooted in Necessary & Proper
 (2)What is the significance of the War Powers Resolution in light of subsequent
congressional action?
(a)War(s) on Terror, authorization of the use of force
(3)What is the role of the courts here?
b)Declarations of war, authorizations for use of military force
3. Executive detention and military tribunal
a)Hamdi v. Rumsfeld (2004): concerns constitutionality and procedural requirements of
President’s claim to indefinitely detain a US citizen in the US; Court holds that Hamdi
has the right to challenge his detention and is entitled to certain procedural safeguards.
(Plurality: Congress authorized detention; concurrence: Congress did not authorize
detention)
(1)Court skirts the question of the president’s plenary power to detain citizens, opting
instead to address Congress’ disputed authorization
(2)This is the point of contention between the plurality and the concurrence:
congressional authorization vs natural incident of war-making
(3)Why is this a difficult case?
(a)US citizen allegedly engaged in belligerent activity: permissible under Quirin
(383)
(b)Indefinite detention?
i) Detention authorized by Congress’ Authorization of Use of Military Force
Resolution (according to the plurality)
(4)Thomas’ Dissent: Court’s decision is an intrusion on military policy-making
(5)Legacy of Hamdi: six justices saying that there is judicial oversight of how the
executive branch conducts war
b)Hamdan v. Ruumsfeld (2006): constitutionality of military commissions/tribunals
instituted by executive order, limited to non-citizens; Relevant statutes and policy:
Geneva Conventions, Uniform Code of Military Justice, Detainee Treatment Act
(1)Court: the President cannot unilaterally institute military commissions as he did
(a)Asserts jurisdictional authority
(b)Finds problems with the military commissions
i) Procedural deficiencies: defendant unable to confront evidence against
him, conviction based on tw-thirds vote
ii)Violated incorporation of the Geneva Conventions: Common Article 3
required that trials occur in a “regularly constituted court”
iii)Conspiracy is not a crime that can be tried by a military tribunal
(c)Most important: the Geneva Conventions’ requirement that tribunals be
constituted is not an exclusive power of the president; rather, Congress plays a
role in the execution of these treaty provisions
(2)Government’s argument: the issue pertains to war-making and national security
and, as such, it is not appropriate for the Judiciary to involve itself
(a)Court’s response: in footnote (391) asserts presidential powers as well as the
limited nature of these powers, which are subject to some congressional action
(3)Court invites congressional action and Congress responds with the Detainee
Treatment Act, provisions of which were held unconstitutional in Boumediene v.
Bush (2008)
(a)Does the Court’s decision limiting Congress’ authority contradict the spirit of
Hamdan, which pushed back on Executive and indicated an important role for
Congress to play