Constitutional Law – Colby
1. Con Law I= Structure and the nature of the federal government. It is about the
relationship between the federal government and the states. It introduces and explores
themes about the nature of constitutionalism and our themes.
2. Where did the constitution come from and what was it designed to do?
a. History: According to the independence declaration, each of the colonies is an
independent nation. In 1777, Articles of Confederation made and in 1781 put in
place, but it was apparent in a year or two that the articles are a complete failure.
b. Problems with the Articles:
(1) Under the Articles, the national gov’t (legislature) is too weak and
doesn’t have the power it needs to coordinate the activities of the states.
i. There is not judiciary or executive. There is only a Congress with
a small number of limited powers (no taxation power).
ii. Each state makes their own currency and states work with
(2) It is impossible without a federal authority to get the states to work
i. The states start taxing and discriminating against each others
goods. The American economy after the war was failing fast.
ii. “States are untied by nothing more than a rope of sand”
(3) Delegates were sent to a Constitutional Convention and empowered to
propose amendments to the articles of confederation, but they produce a
i. Constitution is unconstitutional because the articles could only
be abolished by all state legislature & framers used conventions.
3. Nature of the Constitution
a. When the framers met in Philadelphia, they had one goal—to make a real
effective and functional national government. They still had serious
reservations about doing it b/c as the declaration points out, governments do
not always protect your liberties. The framers were also concerned about
protecting state sovereignty. Wanted to create a central government for people
afraid of central government.
b. Federalist 45 (Madison)
1) People not states
a. States rights are irrelevant except that they preserve the
rights of individuals
2) States are still very powerful
a. states role in federal elections
b. federal government has limited powers
c. Federalist 51 (Madison)
(1) Separation of Powers (authored by Madison)
1) Essential for Liberty
a. If all three brought together there will be tyranny.
b. Localized government presents a danger that self-
interested factions will take over. He says that central
government will be too large to be taken over by a
c. True end of government is justice meaning liberty for
2) Complete S.O.P unnecessary
3) Checks and Balances
a. You institute a government that will put a check on any
one institution that tries to usurp the power of one branch.
Each one will protect its own turf from the others.
4. Constitutional Interpretation
A. Textualism –Typically, we start by reading the language of the statute. Sometimes you
can find your answer in the text (ie-how old do you have to be to run for president).
a. Where do we turn when the constitution doesn’t answer the question? On this
issue there is a fundamental divide btw legal scholars.
B. Originalist: Constitution means today what it has meant from day one.
a. The same question should always produce the same answer without
amendment. (doesn’t mean originalists won’t overturn cases).
(1) consistency /predictability
(2) objective/democracy: This protects democracy because it keeps
unelected judges are striking down the will of a legislature (and the
(3) Contract: Constitution is a social contract among our society. When
you vote to ratify it, you can’t vote to change the meaning.
c. Originalism tends to produce politically conservative results
C. Non-originalist: Framers intended to paint with a broad brush and it should be read to
a. View Constitutional law like common-law, interpreting the constitution in the
same way to protect broad principles and values.
(1) Impossible: Originalism is impossible in practice. We don’t know
what freedom of speech, due process originally meant. The non-
originalists will say you can’t get an accurate view and people take the
historical sources they want and act as though they are tied by them.
(2) Legitimacy: Non-originalists say the consitutiton is binding because
we choose to accept that it. If tomorrow enough of us rose up to draft
a new constitution, we would be bound by that. People accept the
constitution because it keeps up with our changing notions of liberty
(3) Protect Minorities: Non-originalism protects minorities better. Non-
originalists are less concerned about democracy because they believe
the danger of democracy is the tyranny of the majority. We need
judges to mitigate the tyranny of the majority and stand up for the
weak, the unpopular, and the oppressed.
c. Non-originalism tends to produce politically liberal results (non-
originalists=liberals). Is this all about politics? Ideology not non-originalism?
D. Summary of Different types of Constiution Interpretation
1. Determining what the terms meant to the Framers
2. the framers were the framers
3. claims not to be activist.
1. some argue originalists simply make up their mind and pick and choose historical
2. the framers quarrlled—there were always too sides to a debate
3. many did not write
1. taking inferences from the text.
1. many facets of Con law are not in the constitutional text
a. separation of powers
c. Judicial Review.
1. looks at the text and form of the constitution.
2. dispises functionalism because it is impossible to apply in a judicially neutral
1. looks at the function consequences of the action
2. looking at the real world consequences and matching with the basics of the
3. applies often to Seperation of powers
a. Does this tip the scales of the balance
b. Does this undermine one branches ability to do its job.
a. The real world effect is never quite predictable
b. The court is very removed form the real world
c. Hard to apply in a neutral manner
d. Bad functionalism has real problems Morrison, and Clinton
II. Judicial Review
A. Marbury and Supreme Court Power of Judicial Review
1. Marbury v. Madison establishes Supreme Court’s power of judicial review over federal
laws and executive actions (review the constitutionality of actions).
a. The constitution give no express grant of judicial review or power to strike
(1) Congress must uphold the same laws as courts. So why shouldn’t
Congress decide what is or is not constitutional?
2. Marbury v. Madison: Marbury is Adams appointee as a justice of peace for DC. Madison is
the secretary of state for Jefferson. The appointees were last minute and they were signed and
sealed but not delivered. Madison refuses to deliver the commissions and Marbury is mad
because he is not getting his commission and he runs to the Supreme to get a writ of mandamus
(court order ordering somebody to do what they are legally obligated to do). H: In the
political background is that the role of the Supreme Court, the fate of Marshall, and political
parties are all in the balance. The issues are: (1) Right (to the commission);(2) Remedy (to
protect that right); and (3) Mandamus (is it proper). Marshall says (1) Yes-delivery=formality; (2)
Yes. where there is a right then there is a remedy; (3) No. Mandamus is the proper remedy but not
from the Supreme Court. The Judiciary Act of 1789 § 13 specifically provides that he can sue in
original jurisdiction under the Supreme Court. However, it is in conflict with Article III providing
for original jurisdiction only in specific cases and the rest only appellate jurisdiction. Therefore,
the statute conflicts with the constitution. Marshall says the Supreme must strike down such
a. Judicial Review: "It is emphatically the province and duty of the judicial department
to say what the law is." Textual Argument= (1) Article III: gives the judiciary
jurisdiction over cases arising out of the constitution; (2) Constitution provides that
judges must take an oath to uphold the constitution and therefore, since judges have
sworn to uphold the constitution, they must strike down laws that conflict with the
constitution; (3) Supremacy Clause: laws pursuant to the constitution are the supreme
laws of the law. Non-textual: (1)Court’s role & expertise what we do and what we are
good at because in Federalist 78 judges interpret using judgment whereas politicians
use will (will what they want to happen and they make it happen). (2) No Omnipotent
Congress : If the congress can pass whatever they want, they are only constrained if they
feel like it. We can’t let the fox guard the hen house? Is there no check on the Congress?
B. Judicial Supremacy
1. How far does the Supreme Court’s power extend here? Strands of Marbury: (1)
Marshall says we have to determine the constitutionality of statutes; (2) We are the
experts so our opinion is the one that matters.
a. In Cooper v. Aaron, where Governor of Arkansas claimed he didn’t have to
follow Brown b/c he wasn’t a party, the Court held their rulings were the
supreme law of the land (they had the power to say what the constitution
means) & their decisions are binding on everyone (everybody has to follow
it—State, Federal, Federal Officials)
(1) The broad interpretation of Cooper is not always followed to the letter
by the President and Congress.
a. Congress often enacts similar laws to those struck down
b. President stops or continues enforcing similar laws
c. Even if the Court says something is constitutional, the Congress
and the President may exercise their discretion not to enact a law.
i. Presidential refusal to may be is constitutional problem
1) It may also be discretionary (eg-porn)
(2) Ed Meese even suggested that Cooper is at war with the constitution.
A particular government or party must follow it but they others don’t
have to follow it.
(3) Ways of fighting back: 1. try to name and confirm new justices; 2.
senators will try to interject things in a way they think something is
illegitimate; 3. In extreme cases, the political branches overrule the
court by amendment; 4. Congress can tinker with the law.
(4) Unless Congress, the President and the people agree, there is no
judicial supremacy. The court can do nothing unless the president
respects and enforces it. Somebody has to have the final say. Courts
are experts and can protect against the tyranny of the majority.
a. Sometimes the court has to spend its capital, testing the public
and the politicians’ capacity for deferring to the Court.
III. Limits on Judicial Review
-Know how these doctrines restrain the court
A. Political Question Doctrine
1. Political Question: the constitution entrusts some issues to the political branches of
government and not the judiciary.
2. Baker v. Carr Multi-factor Test (Brennan)[i=argument that everything can pass
(1) Textual Commitment
a. Is it given to a branch?
i. Powell (something said directly in the text) v. Nixon (nothing
directly in the text on point)
(2) Lack of Standards
a. If there is no guidance then it is non-justiciable and the political
branches should figure it out
(3) Policy Determination
a. Court cannot decide without making a policy determination
i. Frankfurter argues that Court is always called upon to make
policy determinations in their decisions.
(4) Respect for other branches
a. Court should defer to other branches
i. Is it disrespectful to disagree?
(5) Unquestioning adherence
a. Is this a question presenting an unusual need for no questioning
i. Some would say when is there ever a case where the court should
unquestioningly adhere to unconstitutional actions.
(6) Avoid Embarrassment
a. Don’t want to second-guess US leaders in sensitive areas like foreign
policy. One voice for the Country rationale.
i. Some would also argue same as above.
Baker v. Carr: пs are a group of voters from Tennessee who are upset with the state assembly
y who has not updated its political boundaries since 1901. The city gets fewer votes in the
legislature and they think it violates their equal protection rights under the 14th amendment. B:
There are three areas where they have said are political questions: 1. Foreign Affairs (because the
constitution clearly says that the president can do it; 2. Validity of enactments (Coleman v.
Miller: what happens when a constitutional amendment is proposed and how long it can stay
active); 3. Guarantee Clause (US guarantees to every state a republican form of government)
court has held that this is non-judiciable. Comes from the Rhode Island case when they couldn’t
decide who was the illegitimate government of Rhode Island. Does California’s ballot democracy
violate the guarantee clause? Courts have said non-judiciable. H: Baker represented a sea change
in the political question doctrine; it narrowed the doctrine allowing the court to get into various
“political questions.” The instant case deals with separation of powers and equal protection –not
what is a lawful state gov’t D: We cannot decide the ultimate constitutional question without
making a policy determination about the best way to structure a state government (one person/one
vote may not be the best system).
3. Congressional Activity & Political Question Doctrine
a. Court forces the Congress to set Adam Clayton Powell because he met all of
the qualifications of Art. II, § 2 and the Congress cannot make up new ones.
(1) After the Powell case looks like the political question doctrine is dead.
(2) Doesn’t matter if “Each House shall be the judge of the qualifications
of its own members.
4. Impeachment & Political Question Doctrine
a. In Nixon v. United States, where District judge who was impeached objected
to only special committee hearing evidence not whole senate, Court held that
senate impeachment procedures were non-justiciable because there is a textual
commitment to the senate shall has the sole power to try all impeachments and
“try” demonstrates a lack of standards.
5. Foreign Policy & Political Question Doctrine
a. In Vietnam, President put us into war but Congress never declared war. So a
drafted soldier says this is illegal and unconstitutional. This is definitely a
political question because, will the Court really say that everything we have done
will be illegal and that citizens sons died for an illegal act?
6. Should there be a political question doctrine?
a. The answer tends to turn on the role you see for the court. Should it be a
strong institution that stands up for its interpretation against other branches?
Or do we want the legislature making these decisions not unelected juges?
b. Souter: Court should stay out of highly political questions unless Congress
interprets it in a way that is inconsistent with the constitution that there is no
valid legitimate role for their actions.
c. Might believe that liberals hate political question doctrine and conservatives
might love the political question doctrine. Today, the Rehnquist Court has a
lot of liberals whining about the political question doctrine like the
presidential election and a lot of conservatives defend the court.
B. Limits on Judicial Power: Advisory Opinions, Ripeness, Mootness, Standing
1. Art. III, §2 limits the Jurisdiction of all federal courts to "cases and controversies,"
requiring federal courts to deal only with real and substantial disputes that affect the legal
rights and obligations of parties having adverse interests, and that allow specific relief
through a conclusive judicial decree.
2. Supreme Court may not issue Advisory Opinions.
a. Courts are not allowed to answer questions on the legality of executive or
legislative actions without a specific case or controversy (some state courts do
(1) There is nothing specifically in the Constitution against advisory
opinions just says judicial power extends to cases and controversies
b. Pro: Efficiency, teamwork, expertise
c. Con: unconstitutional, respect for adversarial process and other rbanches,
judicial independence, judicial restraint, context
3. Ripeness, Mootness, and Standing are all required to be in Federal Court
(1) Ripeness (Timing—When you can sue): File a lawsuit too soon before a case or
controversy has developed; it is unripe.
a. Bill is pending in Congress that will hurt your rights, you can’t challenge
it until it is enacted.
(2) Mootness (Timing): There is no case or controversy between the parties. If you
wait too long, the case becomes moot and the courts must dismiss it b/c there is
no longer a vigorous adversarial process.
a. Ex--If my neighbor is having 3am parties and I sue him to keep it down to
11pm and he then moves to Sweden during litigation, no longer a live
(3) Standing(Who can sue?): Does this п have standing to challenge this action.
a. The court demands an action injury that could be remedied by a lawsuit.
(need a real stake).
(1) Whether we want a narrow or broad standing doctrine turns on
what we think of our judiciary in society. Some people the
court should only decide what it has to. Other think a more
robust doctrine b/c we don’t want unconstitutional government
decision and we want to prevent rights being violated.
C. Judicial Review of State Court Judgments
1. Supreme Court can review state cases involving federal law and/or constitutional
a. It was clear in the constitutional convention that the Supreme Court had the
power to review state court judgments, but it does say so in the constitution.
2. Relevant Clauses:
a. Art VI—“ The Constitution, and the laws of the United States…shall be the
Supreme law of land; and the judges in every state shall be bound thereby.”
i. We know under Marbury that judges need to follow the US
Supreme Court’s decisions—might not mean that judges get to
b. Art III, § 1—“The Judicial Power of the United States, shall be vested in one
Supreme Court, and in such inferior courts as the congress “may from time to time
ordain and establish.”
i. There don’t have to be lower federal courts and that would be ok.
c. Art III, § 2- “In all other cases before mentioned, the Supreme Court shall have
appellate jurisdiction, “with such exceptions….as the Congress shall make.”
i. we know that the Sup. Ct has appellate jurisdiction and if there are no
federal courts, they would have appellate jurisdiction over the
constitutional questions. So Congress could make an exception for state
3. In Martin v. Hunter’s Leese, Virginia said that the three clauses would be better read
not to say our interpretations in our cases should be accorded deference by Sup Ct.,
Justice Story says we have the final say and Supreme Court can review state cases
involving federal law and/or constitutional issues.
a. Justice Story offers a uniformity rationale saying we have to have jurisdiction
over state sovereignty otherwise the constitution will mean different things to
different people and then we lose the advantages of the national/federal gov’t.
D. Other Limits on Judicial Power & Congressional Control of Sup. Ct. Jurisdiction
1. Other Limits
a. There are a bunch of external limits:
(1) President can appoint new justices
(2) Senate can object to the power of the president
(3) People can amend the constitution
(4) Congress can impeach Supreme Court justices
(5) The Court has no enforcement mechanism (it ultimately depends on
2. Congressional Control of Supreme Court
a. One more external check on the court (Congress’s ability to tinker):
(1) Congress can pick how many justices there are. (ie--FDR)
(2) Congress can regulate the Supreme Court’s exercise of its jurisdiction
i. It can limit the court’s schedule to keep the court from hearing as
many cases and Congress also controls the Court’s budget).
(3) Congress can strip the Supreme Court of its jurisdiction to hear certain
categories of cases.
3. Congressional Control of Supreme Court Jurisdiction (3)
a. Exceptions Clause allows Congress to strip the court of jurisdiction
i. Art III, § 2 “In all other cases [including those arising under the
Constitution], the Supreme Court shall have appellate jurisdiction, both as
to law and fact, with such exceptions, and under such regulations as the
Congress shall make.”
ii. We have a general notion in the law that the powers provisions are
limited by the rights provisions. So it is generally understood that
Congress can only exercise the exceptions clause in a way consistent with
the equal protections clause.
b. In Ex parte McCardle, Congress repealed an earlier law giving Supreme
Court appeals over habeas corpus violations and challenging reconstruction,
Ct says though the Constitution, not Congress, confers appellate jurisdiction,
Congress can make exceptions to limit or regulate our jurisdiction which it has
done here (a power conferred upon Congress by the Constitution).
i. Here, Cts says Congress only took away one of our avenues to
c. Argument against Exceptions Clause (open constitutional question)
i. Essential Functions Argument: No branch of government can undermine
the essential functions of another branch of government. So the exceptions
clause might allow Congress to eviscerate the Court.
ii. Structural Argument: don’t want make lower federal courts superior to
iii. Textual Argument: Framer’s weren’t thinking about these kind of
d. Balance: Both sides are cautious: neither wants to provoke the other into a
fight. Perhaps why Congress has never followed through because the Supreme
Court won the PR war and they believe that we all can appeal to federal courts.
1. Key Questions
a. As we consider this material think about these questions:
(1) What role do and should the states play in 21st century America?
(2) Should federalize play a major role?
(3) Should Congress act to protect liberty and minority rights ?
2. Congressional Power/Authority
a. Legislative Power
(1) Art. I, § 1 lodges all legislative power in Congress.
i. This is the power to make laws and do all things that are necessary to
b. Delegated Powers
(1) The powers of Congress are specifically enumerated.
i. In other words, the federal government is one of the delegated powers
only, and every federal stature, therefore, must have as its basis one of
these enumerated powers.
(a) Art. I, § 8 sets forth many of the powers of Congress
(b) In addition, certain other provisions of the Constitution and the
amendments thereto grant powers to Congress.
c. Necessary and Proper Clause
(1) Congress may enact laws that are necessary and proper to carry out its
i. Congress could raise money for the army and navy using a national
(2) Constitutional Arguments in McCulloch (Marshall)
i. Originalist -Framers thought Bank was constitutional (Washington/
ii. Structuralist- constitution must be adaptable to deal with future issues
so it sets up broad markers (doesn’t enumerate everything) “We must
never forget that it is a constitution we are expounding”.
iii. Marshall argues that necessary means convenient but in common
parlance that is not what people meant by necessary. He says Art. I, § 10
says absolutely necessary so it was a narrower sense (inter-textual
argument). He also argues they put necessary and proper in the same
article with all the things Congress can do in § 8 as opposed to the limiting
ones in § 9. [MAY ADD STUFF ABOUT PRACTICAL ARG]
McCulloch v. Maryland: п brings action against James McCulloch, who is the cashier (CEO) at
the Baltimore branch of the bank of the United States. Cause of action is for debt to recover
statutory penalties against McCulloch because failed to pay taxes on bank notes. Because of its
corruption, states are angry at the national bank and question its right to exist so they passed
laws taxing the Bank that McCulloch refused to pay. H: MD argues that it is not specifically
enumerated within the constitution. This is a government of limited powers expressly stated in the
constitution. The 10th amendment provides that any powers not given to the federal government
are reserved to the states or the people. Marshall concludes that they cannot tax the bank of the
United States not because it violates the constitution but because it violates the structure of the
constitution. Marshall says the power to create the bank includes the power to preserve and
sustain the bank and giving the states the power to tax the bank gives the states the power to
destroy the bank. Federal power is supreme and cannot be undermined by the states. The power to
tax is the power to destroy. This means that if you have the power to tax something then you can
destroy it. Here, the tax makes the bank unable to function. This would allow the states to destroy
a valid federal power. If we allow states to tax, then they can destroy federal institutions this is
built into the very fabric of the federal constitution
d. Implied Limits on State Power
(1) In US Term Limits v. Thorton, the Court strikes down Arkansas term
limits for members of Congress because the qualifications clause states the
only requirements for office.
i. The power to add qualifications is not within the original powers
of the states and is therefore not reserved by the 10th Amendment.
No national government before the Constitution was created so
there was no Congress - this is a new power so cannot be reserved.
ii. Stevens says within these spheres, the people of the United
States have absolute sovereignty. The states may not intercede in
iii. Dissent (Thomas): Since nothing in the constitution says the
states can’t, then they can add qualifications. People of Arkansas
are represented in the national government as the people of
Arkansas. The US government really represents the people of the
several states. From this it follows that the people of Arkansas
have absolute say over who can represent them.
3. Dual Sovereignty
a. Dual sovereignty =states are independent sovereigns over the authority of the
people. Federal government is fully sovereign in its limited powers.
b. Benefits of Dual Sovereignty System
(1) Democracy=Closer to home = town meeting style of government=
senator in Washington might not know how their decisions effect
things in local areas.
(2) Tyranny= avoid corruption by not having all power in one entity; dual
sovereignty leads to less tyranny. In the history of this country, has this
lead to better protection of liberty. (States rights=slavery, jim crow)
i. Times when feds are worse (ie-Alien & Sedition Acts)
(3) Testing ground= states are laboratories for experimentation and they
can figure things out.
V. Federalism- Commerce Power
1. Art. I, § 8, cl. 3: “The Congress shall have the power to regulate commerce with
foreign nations, and among the several states and with the Indian tribes.”
a. Most federal regulatory statutes are enacted pursuant to the commerce clause.
b. History: under the articles of confederation, the states were taxes one another
and discriminating against each other. We needed a power to allow the federal
government to control commerce and harm this.
(1) Commerce Clause enacted to prevent this, but not utilized until after
the industrial revolution
c. Gibbons v. Ogden=Marshall expands definition of IC.
Gibbons v. Ogden: The NY legislature grants a monopoly that is given to operate a steamboat in
NY waters Ogden and Gibbons wants to compete so he gets a license to do so under federal law.
State granted monopoly v. federal license to compete. H: When state and federal law compete,
federal law wins under the Supremacy clause if the federal gov’t was empowered to act. If not,
then there law is invalid so it does not trump the state law. So Marshall has to figure out if the
federal government has the license to operate a steamboat btw NY and NJ. This necessitated a
discussion of the scope of the commerce clause. Three questions: (1) What is commerce? The
states want to use commerce as the actual buying and selling of goods and services. Marshall
interprets it as intercourse it is moving of goods and services navigation; (2) What does
among the several states mean? States say congress can only regulate the goods at the border.
Marshall says among means intermingling and so congress can regulate commerce that concerns
the several states; (3) What does regulate mean? Congress may regulate all commercial
activities it may do whatever it wants within its sphere. R: When conflicting laws, the
Supremacy Clause says the federal law prevails SO LONG AS it is pursuant to one of the federal
government's areas of delegated power.
2. Early Years of the Commerce Power
a. There were two main tests that the court applied to commerce clause in
Shreveport Rate and EC Knight.
(1) Shreveport Rate: ICC mandated rates from Shreveport to Louisiana
and some RR companies come up with low rates from shipping within
Texas. Even though intra-states rates being regulated, the federal gov’t can
regulate this because it has a substantial impact on IC even though it is
purely intrastate activity (effect test/substance over form).
(2) EC Knight: Congress passed Sherman anti-trust. Amercian Sugar is
about to get 98% of the market. H: The Supreme Court says Congress
can’t regulate this. Anti-trust laws are beyond federal power under the
commerce clause b/c the activity being regulated is not commerce but it is
manufacturing. Here, the court says commerce succeeds to manufacture
and is not part of it.
i. Argument=what happens to dual sovereignty in our nation if we
start allowing the federal government to regulate everything local.
ii. Carter v. Carter: Mining isn’t commerce so the constitution
doesn’t say Congress can do it. Mining is local that the states
possess the authority to regulate. Formalist.
b. The courts increasing problem (moving towards non-effects) coincides with
legislation from Congress making social regulation to deal with the market
economy and the rise of industry (child labor, alcohol, gambling).
(1) Champion v. Ames: Congress prohibits the transportation of lottery
tickets in intra-state commerce and the court upholds the law. The court is
saying the statute is regulating what you can ship in commerce from one
state to another. Court basically upholds this type of moral legislation.
(2) Compare: Hammer v. Dagenhart: Congress prohibits the transport by
interstate commerce of goods made by child labor. H: This is intent to
regulate labor and manufacture. The court says the goods by themselves
are harmless (unlike harmful lottery tickets). Again, there is a political
undertone, they think gambling & prostitution are bad but not child labor.
Coal. D: Holmes says this is a regulation of commerce and that is the end
of the story we shouldn’t look at the effects. When Congress directly
regulates commerce, its power is plenary (do whatever they want).
c. Basically, the move toward the non-effects test was bad timing b/c FDR
threatened the court if it did not stop striking down his New Deal packages then
he would pack the court.
3. The Middle Years of the Commerce Clause
a. Dramatic Expansion of Commerce Clause Powers through Effects Test
(1) NLRB v. Jones Laughlin Steel Corp: Company was fined for firing workers
who tried to unionize. Company defends saying this statute goes beyond the
power to regulate commerce. H: The Supreme Court says no this is ok because
unionization of the steel industry has a substantial impact on intrastate commerce.
If the activities have such a close and substantial relation to interstate commerce
that their control is essential or appropriate to protect that commerce from burdens
and obstructions then Congress can exercise that power.
(2) In US v. Darby, minimum wage/maximum hour statute upheld & Child Labor
case overturned, b/c we are back to the notion that regulating IC is within
Congress’s power regardless of the impact as long as the activity has a substantial
effect on IC even though this is relatively small lumber company with only local
business—ripple effect. Back to Marshall-Gibbons formula.
(3) Wickard v. Filburn, Court unanimously sustains Congress’s authority to
regulate wheat beyond quota even though it is being used for consumption at the
farmer home and not intended for IC holding if you aggregate similarly situated
peoples activites then it may have an substantial effect on IC.
i. Maryland v. Wirtz: Court allows Congress to regulate wages/hours of an
enterprise that does some production of goods for interstate commerce
(even if the individual employees did not).
ii. Hodel Case: The Court upholds federal environmental laws on the
theory that regulation of pollution impacts more than one state. Triumph
of JM’s federalism vision of the constitution.
iii. Perez: Court upholds broad federal law authority even though the
minor felony had little impact on interstate commerce. The de minimus
nature of the particular crime doesn’t matter all crimes in the aggregate
have a substantial impact on IC.
b. Civil Rights Act of 1984 upheld in Heart of Atlanta & Katzenbach.
(1) Ct says even individual motels and restaurants in the aggregate have a massive
impact on IC because of restrictions that keep African-Americans from traveling.
(2) Race relations or discrimination is not commerce. If you value federalism over
human rights and dignity then you would ignore Madison’s warning that states
rights are a path to insure the protection of individual rights.
(3) Congress’s real motives long as it is rational we the courts will trust Congress.
It is not just liberals and it is everybody including the most prominent
conservatives on the court (frankfurter, Harlan, and Jackson). We don’t want
activist court standing in the way of progress or congressional intent/democracy.
In all the statutes, there is no reason for the courts to get involved and the court
should let the democracy work.
4. Modern Approach to the Commerce Clause: Lopez, Morrison, Raich
a. Is the allocation of power in one of three categories in Lopez?
(1) Channels of interstate commerce—ok to regulate
i. highways, train tracks, air channels
ii. shipping of child labor products, lottery tickets
iii. Most courts say regulating hours/wages is a use of channels of IC.
(2) Instrumentalities of interstate commerce—ok to regulate
i. trucks, trains, airplanes, people (drivers), or the things actually involved
(product shipped), Shreveport Rate
ii. Federal carjacking statute (if car traveled in IC), Civil Rights Stuff, Federal
Child Support Act
(3) Activities having a Substantial Relation to IC.
i. If it is economic activity, then you can use the aggregation principle from
Wickard to see if there is a substantial effect.
ii. If it is non-economic activity, substantial effect without aggregation unless it
undercuts a federal regulatory scheme then it is ok (Raich).
(a) Therefore, guns in schools fails b/c it is non-economic.
(b) United States v. Morrison: The statute at issue is the violence against
women act that gives raped women a federal civil rights action against her
assailant. H: This is a category case 3. Is this economic or non-economic
activity? Non-economic activity. Lopez the court has indicated if you are talking
about non-economic activity you can’t aggregate the effects of all similarly
situated individuals. Here, there are more congressional findings that there were
5 or 10 billion dollars a year in damage because of violence against women.
There are many specific findings, but majority says it is still too attenuated. D:
This is a case with a clear need for a federal action (unlike the gun free-schools
act), perpetrators of dv often ran across state lines. The state attorney’s general
unanimously supported the violence against women act yet, the states were
forced to enjoy the new federalism whether they wanted it or not.
(c) Non-economic activities can be regulated under the Commerce Clause
if the activity would otherwise undercut a broader federal law/regulatory
scheme. McCulloch: State law cannot hinder federal law.
i. Federal regulation of non-economic activity only needs to be
“reasonably adapted” to achieving the connection to a “legitimate”
Commerce Clause power. (Scalia)
b. Do Jurisdictional Triggers and Fact-Findings matter?
(1) Fact-finding regarding connection between IC & activity
a. Lopez & Morrison: Congress must provide detailed fact-findings
b. Raich: In modern, technological world every activity is linked to the economy
(2) Jurisdictional Triggers
a. Lopez & Morrison: Useful mechanism to force Congress to focus on Commerce
b. Raich: Formalistic measure that could easily be added to any piece of legislation
c. 10 Amendment & Federalism Arguments
(1) Tenth Amendment Argument
a. Lopez & Morrison: Constitution reserves all unvested powers in the States
b. Raich: Federal government allowed into criminal law because States only reserve
powers not executed by the federal government
a. Lopez & Morrison: If Commerce Clause attaches to all activities the 10th Amendment
is a nullity because no rights remain for the States. The Commerce Clause defeats
b. Raich: Supremacy Clause prohibits state law interference with federal law.
United States v. Lopez: Lopez is a twelfth grader who is convicted of bringing a gun to school
under the Gun Free School Zones Act of 1990.
H: Sup Ct. strikes down an act of Congress under the commerce clause. Guns is schools is non-
economic acitivty and the it is too attenuated a relationship to meet substantial effects test. The
majority’s most powerful argument here is if we leave the test as a rational relationship than what
isn’t constitutional and what can’t congress justify anything and we have lost the value of
D: Breyer: Gun possession has an aggregate impact b/c people won’t tour these cities and loss of
learning and the kids will not graduate and this impacts the economy and thus IC.
D: Souter: The dissent says over thee years we have said defer to congress and we have accepted
anything that is rationally related. The dissent says this opinion is (1) judicial activism
substituting our judgment for the Congress. Isn’t it good enough that the congress holds fact
finding hearings? The dissent argues that the non-economic test is (2) unmanageable in practice
(what is economic & non-economic), (3) its formalist, and (4) history (progressive reforms passed
under commerce & as a practical matter the feds won’t regulate everything and Congress acts
only where there is a need besides everything in the modern world is impacted by Congress.
Gonzales v. Reich: California basically legalized medical marijuana but we have a federal
statute saying all production is illegal. DEA agents seize P’s marijuana plants & P seeks an
injunction of Federal Controlled Substances Act (FCSA) H: When federal law and state conflict
under the supremacy clause conflict, the federal law trumps if it is unconstitutional. CA concedes
FCSA is generally constitutional, but it is not constitutional as applied to us CA & home-grown
weed. Congress cannot regulate growing marijuana at use by home for medical patients. As
applied to these people, this is a category three case. First question in category three is the activity
economic or non-economic. This is economic activity. Once we decide it is economic activity, it
will always be an easy case (rational basis to believe this will have a substantial impact in the
aggregate). The Commerce Clause “as applied” includes the power to prohibit the local
cultivation and use of marijuana because the non-economic activity undercuts the broader federal
law. Eliminating interstate drug trade is a legitimate Commerce Clause power that would be
undercut if the states were able to exempt certain activities from regulation
D: O’Connor strongly disagrees that this is economic activity. They have simply grown marijuana
for their own use without buying a thing of value. No jurisdictional trigger, no fact finding.
4. The Tenth Amendment (limit on Congress’s enumerated powers/definition of
“The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.”
a. Garcia allowed federal gov’t to force states to have minimum/maximum hour
i. makeup of the current court would probably overturn it
b. Congress cannot compel state regulatory or legislative activity
(1) In NY v. US, take title provisions gave the states no choice and compelled
them to put radioactive dumps in their backyards.
i. Distinguish from Garcia, Congress may regulate states under commerce
–can’t force states to act.
ii. Can’t pass a law requiring state inspectors to enforce minimum wage,
but it can pass a law requiring a minimum wage.
(2) In Printz v. US, can’t force (commander) state executive officer to enforce a
federal law or regulatory program.
i. Is it now unconstitutional to require states to report to the Missing
Children Database? Maybe it is a moot point and no one is going to
challenge it. O’Connor says that the court didn’t discuss whether
(3) Should this all just be determined by the political process?
NY v. United States: Statute designed to get states to take care of radioactive waste. There are
three incentives: (1) One of the incentives is financial—you can have a surcharge; (2) You can
increase the cost for waste disposal and later you can deny all out of state waste access to your
dump; (3) If you don’t do what we say, you will have to take title to the waste in your state
H: Justice O’Connor says the take title provision is unconstitutional. Under the commerce power,
can’t Fed gov’t regulate radioactive waste going from one state to another? Congress isn’t trying
to directly regulate IC and want to get the states to do it. It violates the 10th amendment because
they are compelling the states to pass a law. They are saying regulate or die. This does not give
the state a choice— it is no choice.
Under other if not reserved to the states, it can be delegated to the federal gov’t.
D (White): This was the states idea and the states came to Congress to get this fixed. Why in the
name of states rights are you harming a system that will ultimately protect the people. The states
cannot cede their sovereignty and they can’t consent to give away from sovereignty.
Printz v. United States: The statute at issue is the Brady bill (amendment) and the provisions
being challenged is that Congress told the CLEOs that they had to make background checks on
people within 5 days (interim provision). H: (Scalia) The court strikes this law down (5 to 4)
saying this statute unconstitutionally compels people to violate the constitution. Scalia says this
violates the structure of the constitution as a whole. He looks at historical practice and structure
and precedent. History=he talks about how Congress has not actually required state officials to
Structural=Separation of powers argument: one of the important checks and balances. If you do
this, you have cut the states out of the loop. Congress can’t regulate us through the mechanism of
Thomas (concur): the commerce clause does not reach in state transactions like this one and it has
a substantial impact on interstate commerce. Thomas says I don’t think Lopez and Morrison go
far enough wants to dial back to 75 years ago.
Dissent: Other governments, like the EU, have allowed the central government to make use of the
local government. He says lets see how other countries have solved these problems.
5. The Eleventh Amendment
“The Judicial power of the US shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the US by citizens of another
state or by citizens or subjects of any foreign state”
a. Eleventh Amendment was created to have state sovereign immunity and give no
federal SMJ in a lawsuit brought by a state against another state.
(1) Sovereign Immunity=sovereign cannot be sued unless it consents to be sued.
a. High point of this=Hans v. Lousiana where court rules citizens of one
state can’t sue another state without it consenting.
b. In the 1980s, the Court says Congress can abrogate state immunity
with its commerce powers/Art. I. Cuts back on Hans. Reversed in
(2) A citizen can sue a state official in federal court in his official capacity as long
as you only seek an injunction (Ex Parte Young)
b. In the 1970s, when Congress exercises its power under 14th amendment, it can override
the states sovereignty in federal court.
(1) Theory here is the 14th comes after the 11th in time so it can be read to modify
the 11th amendment to ensure that equal rights are enforceable in federal court
against state violators.
c. Seminole Tribe of Florida (Lopez of 11th Amendment)
(1) Congress cannot abrogate the 11th amendment.
a. Effect=Fed Courts can’t enforce federal rights when the states are
denying federal rights to its citizens (environmental rights,
b. But, the Court recently surprised observed by allowing Congress to
abrogate state immunity in the Family and Medical Leave Act.
c. States may always waive immunity
(2) Dissent says the 11th amendment was not defined to have a deep principle of
state sovereignty & we show no require lots of evidence from the feds before
allowing them to exercise their 14th amendment powers. The court refused to
allow victims of the states to sue the states in federal court under ADA and other
civil rights statutes.
(3) Though cannot sue in federal court, one can always sue in state courts. The
risk is that state judges are elected, don't have life tenure, want to support the
state, and therefore are unlikely to enforce unpopular federal rights.
d. Alden v. Maine: The court holds that states cannot be subject to suit in state court for
violation of their federal rights (based on structural and historical argument).
(1) Dissent: Souter goes through the history and says we don’t need the 11th
amendment –against the revolution—creates a tyrant we can’t sue.
(2) See conservative and liberal justices flip. Conservatives reading provisions
into the constitution that aren’t there & liberals wanting to strictly interpret.
6. Taxing and Spending Powers of the 10th amendment
a. “The Congress shall have power to lay and collect tax, duties, imposts and excises to
pay debts and provide for the common defense and promote the general welfare.”
(1) Unlike other powers, these are not regulatory powers. They let Congress raise
and spend money not regulate private citizens, but in fact, they can be used to
achieve regulatory ends as means of effecting behavior.
b. Tax Power
(1) Is the tax regulatory in nature?
a. If yes, then it is impermissible UNLESS the tax is intended to raise revenue
but has a regulatory effect
i. Impermissible if it is a penalty not a mere tax.
b. If yes and it is one of Congress enumerated areas (war, commerce,
bankruptcy), then it is ok.
(2) Child Labor Tax Case (1922): Congress stuck back by enacting a statute pursuant to
the tax power designed to stamp out child labor. Congress passed a Child Labor tax
whereby employers of children were subject to a 10% tax of their net income. H: Court
says this is not a mere tax –it is a penalty. Application of the tax power will be upheld
even if it has another effect (any tax will make people change their behavior - especially
businesses) BUT courts won't uphold any tax if its primary purpose and/or effect is to
regulate behavior by using the threat of the tax as a penalty to induce people to engage in
conduct that Congress is not empowered to engage in.
i. To determine the difference between a tax and a penalty, one must look at the
consequences to see if the restraining effects are merely incidental or if they are
the purpose of the tax. The consequences of this tax evince is penalizing nature.
ii. Rule: Can't just regulate and call it a tax unless it is within in area that
Congress has power (i.e. can tax something that is within the commerce clause;
others war, bankruptcy)
(2) In Kahriger, the Court backs away from this as long as raises some revenue even if it
has some regulatory effect. There are not five votes to refuse to consider congressional
c. Spending Power
(1) “…power to lay and collect tax, duties, imposts and excises to pay debts and provide
for the common defense and promote the general welfare.” There are three obvious
meanings of the general welfare clause:
a. Broad—Congress can pass whatever law it wants as long as it is good for the
country as a whole—any law that Congress wants under this logic is
constitutional notwithstanding individual rights.
b. Narrow—General Welfare clause adds no new powers to Congress at all. We
should read this language in conjunction with Article I to say Congress can
spend money to provide for the general welfare of the US only when acting
pursuant to one of its powers (maintain an army or regulate commerce).
c. The middle reading (Alexander Hamilton) says Congress can tax and spend
for general welfare, but it does not empower Congress to regulate (wherever it
wants) for the general welfare. Hamilton says this is a separate power and it is
intended to be an independent source of power on the face of it.
(2) Dole Test:
(1) Is it for the General Welfare ?;
i. very deferential –political question doctrine reasoning
(2) Clear Statement Requirement (Congress must condition the receipt of general
funds on what the condition is in the language of the statute);
(3) Related (the conditions placed on the receipt of the funds must be related to
i. Policy = protecting state sovereignty
ii. Can’t make education funding dependent on outlawing horse racing
(4) Individual Constitutional Bar (can’t violate some other clause of the
(5) No coercion (if Congress’s decision effectively coerces the states then it is not
(3) Butler: Agriculture Adjustment Act allows feds to regulate farming by buying up land with
money collected from taxes on processors. H: This is an attempt at federal regulation under the
guise of the spending power—can’t use the spending power to indirectly regulate an area
traditionally regulated by the states (agriculture). Congress can’t be allowed to purchase their
compliance with money.
i. In Dissent, Justice Stones says once you admit the Hamiltonian position, it makes no
sense to say Congress can’t regulate in a particular area. Why else would Congress
regulate if it didn’t want to achieve a desired end. Stone says you can use money to
address a national power as long as it is not coercing the states.
(4) South Dakota v. Dole: The feds want a 21 year-old drinking age in the nation. South Dakota
still sold 3.2% beer to 19 year olds. H: There is a commerce clause argument that drinking
alcohol is not an economic activity. The 21st amendment overruled prohibition allowed some
states to prohibit drinking. We will withhold federal highway funds and indirectly achieve that
goal by encouraging the state to choose the drinking age. Applying the Dole factors: 1 & 2 & 3
are ok. 4- does not violate individual rights & no constitutional bar to making states pass a law
that they don’t want. 5-not powerful enough to be coercion—they keep 95% of highway
funds/there is a choice.
Dissent (O’Connor): Agrees that this is the test but she disagrees because she doesn’t believe it is
sufficiently related—it is under & over-inclusive. Under inclusive=not only 19 years are drunk
drivers or drive drunk across interstate lines; overinclusive= She says the connection between the
withheld funds and the condition is too attenuated. Justice O’Connor would demand a much more
narrow test. She says the difference turns on how they can spend the money.
(5) General Thoughts on Spending
a. How do we decide what is coercive?
i. The court doesn’t define it. Justice Stone says threat of loss not hope of
gain is the essence of economic coercion so spending inducement can
never be coercion BUT taxation is a penalty so it can be.
1) Is it true? States can raise taxes. The bottom line is that states
are struggling to make their budgets and they have to work hard to
make a budget. This makes turning down federal funds very
difficult. In the real world, some of these things are truly coercive.
2) Think about NCLB—recorded education under the spending
b. What is the Roberts Court going to do?
i. It could do it a lot of different ways adopt Madisonian position
ii. The O’Connor position that Congress can’t commandeer state
iii. It could get tougher about enforcing this test (take a real world look at
c. NCLB arguments
i. It is not like the feds are coming up with new money (this is the money
states have been getting every year & built their budget around this
ii. Doesn’t Congress have a powerful federal interest in doing something
about it. Second more precise federal interest, when the feds give state
education grants, don’t they have an interest in figuring out how education
funds are spent and making sure they are not squandered.
7. Federal Preemption
(1) Federal Preemption= If there is a federal statute on point, federal law trumps state law
under the Supremacy Clause.
(2) Gibbons v. Ogden: States are dominant in their spheres and the feds are not. This should be
the same because this is an area granted to the feds and not the states. Marshall says not Congress
has a tax power but that doesn’t mean the state governments don’t have power there too. Other
powers were exclusive like the power to wage war and make treaties with foreign countries. For
example, the state of Maryland can’t declare war on Canada (that is for the US alone). How do
we know which are exclusive and which are concurrent. The constitution is explicit in Art I, § 10
about the things the states cannot do. So maybe the rule is all the powers listed here are not
concurrent. Marshall says no some powers by their nature can be exercised concurrently. Both the
states and the feds can tax you at the same time in the same transaction (income taxes). Other
powers are different—the commerce power is incapable of being exercised by more than one
sovereign at the same time. States do a lot of inspecting things looks like participating and
regulating IC. Marshall says when the feds regulate these things they are acting pursuant to the
commerce clause. Sometimes the states can regulate the exact same things but under different
powers like police power. Marshall seems to be saying that the states can’t do that b/c if we
allowed them to do, it would undermine the purposes of the commerce power to keep states from
having economic wars. If states and feds both pass regulations in the same area then under
the Supremacy Clause federal power trumps states.
8. Dormant Commerce Clause
a. Dormant Commerce Clause: How does the Commerce clause limit state power as
opposed to granting federal power?
(1) This is a very important clause (most frequently litigated issues in con. law);
(2) it raises fundamental issues about how we interpret the constitutional and the
allocation of power.
b. Early Year of Dormant Commerce
(1) Justices go back and forth about whether states regulations are valid until Congress
passes laws preempting them or States can’t regulate an area like commerce that is
exclusive to the Congress before choices the middle ground in Cooley.
(2) Wilson v. Black Bird Creek Marsh Company: Delaware lets people build a dam
across a navigable creek flowing into the Delaware river. Someone sailed into the dam
because he didn’t think Delaware could interfere with IC. H: Delaware can build the
dam. The states purpose in building a dam was to stop pollution, protect and drain swamp
lands, increase land values, want to manage the desirability of living there. This is a
legitimate purpose. This is an overlap area, but there is no federal law to trump the state
law. This is a police power to regulate commerce.
(3) Cooley v. Board of Wardens: Construing an act of Congress from 1789 saying the
states can pass regulations on pilot in their harbors until we preempt you under the
commerce power. Penn had passed a law requiring the use of local pilots to guide ships
to dock in their ports H: Court says this is clearly a regulation of IC. Here, Congress had
chosen to leave this area to the states. Court had to choose btw two ideas about the
dormant commerce clause. Court chose a middle ground saying decide if the issue
requires a nation-wide standard or if it needs a local attention. States can act where a
uniform rule is not necessary but cannot act where it is necessary. How do you figure out
if uniformity is required ? Court says look at history and apply common sense.
c. Modern Application of the Dormant Commerce Clause
Modern Tests looks to the effect of the regulation:
1. Laws that Facially Discriminate against IC;
a. Apply Strict Scrutiny
i. Must have a compelling reason for (1) and it must be “narrowly tailored
to serve a compelling state interest.” Means must be narrow & it is this
the only way of achieving the goal.
ii. Can get around the presumption of invalidity if these are dangerous or
unwanted items (quarantine laws, baitfish, diseased cattle)
ii. Under category I, the court has struck down laws imposing taxes or
fees only on out of state producers. (including) Struck down laws
with favorable tax benefits for charities.
b. Philadelphia v. NJ: NJ prohibits solid waste going into the state to keep NY garbage
out. This is a regulation of IC. H: The court says it is facially discriminatory (category 1).
On the language of the statue, it treats out of state goods the same as those from NJ for no
real reason. NJ says this law is to protect the health of our citizens from being inundated
with garbage. Court says in category (1), we don’t care what your purpose is because you
cannot pass a law that facially discriminates against IC.
D: Rehnquist says a state shouldn’t have to take on other states harmful goods. Earlier
quarantine cases said it was ok to refuse to accept diseased cattle. Majority says garbage
is not the same as something causing an immediate harm.
c. West Lynn Creamery Inc. v. Healy: Try to tax out of state diary farmers and give the
money to the instate farms. H: Court says this is the same thing and violates the spirit and
the point of the dormant commerce clause. D: Justices Scalia and Thomas do not believe
in the dormant commerce clause and think states should be able to discriminate against
state businesses unless congress passes a law prohibiting it that would violate the
supremacy clause. Scalia and Thomas will go along with (1) for stare decisis reasons but
if it were up to them they would not have a dormant commerce clause.
2. Laws that are Facially Neutral, but have a discriminatory intent or effect on IC;
a. Apply Strict Scrutiny
b. State laws will still be struck down if the intent or effect is to discriminate
(1)Ex- State law imposes a lower tax on one kind of corn than other kinds
of corn. The law can be drafted in neutral terms, but in fact, it favors the
in-state corn at the expense of out of state corn. Ct says you can’t avoid
the DCC through creative, neutral statutory drafting.
(2) Most of these are intent statutes. Sometimes even where you can’t find
intent –they will still strike it down under effect
c. Hunt v. Washington State Apples: NC prohibited grading of apples except by
USDA standards. No evidence of intent. The effect was the Washington state
couldn’t import their apples into NC. Applies strict scrutiny and overturned.
d. Difficult area of the law because intent is hard to show. Imagine a law
prohibiting the use of plastic bags in grocery stores, but helps the timber industry
b/c they can only use paper the court has said we will tread lightly in this area.
e. Will only strike down laws where discriminatory intent is obvious or the effect
is substantial so we think it was intended to be discriminatory.
3. Laws that are facially neutral, no discriminatory intent or effect, BUT substantial
burden on IC
a. Balancing Test: Benefits versus the Burden on IC of having the IC.
b.Southern Pacific Co. v. Arizona: Arizona limits the train length of trains in
Arizona and it is not facially discriminatory or in intent or effect. Law will cause
fewer accidents or crashes. H: ICC had the power to regulate this type of
question. There is only a state law so we are in the realm of the dormant
commerce clause. The court says this will impede commerce. It would be
expensive for trains to stop at the borders and change. It will cost twice as much
to drag trains across the country. This is a major shipping route and that is making
the cost concern pretty big. Our concern is extra-territoriality. This is an area that
requiring uniformity in law & no single states should legislate for the rest of the
states congress should set the law. The courts say it is less safe to have twice as
many trains versus burdens that are massive. .
c. Policy for regulating in (3)=No single state should get to set policies for other
states (protecting economic efficiency.
d. Kassel v. Consolidated Freightways Corp.: Iowa is precluding the use of
double-tractor trailers on Iowa roads exception for border towns and livestock.
Brennan thinks the legislative purpose is about discrimination—keep big trucks
out of Iowa. The mere existence of exceptions suggests that they are not wedded
to safety. To the plurality, they are deferential to the legislature as to intent &
the effect is big trucks won’t go through Iowa so this law is pushing the trucks
into other states, but is not overwhelming effect so it is category (3) case calling
for a balancing test. Balance=safety benefits—slight or non-existent versus
Burdens—large –12.6 million to cost of trucking companies and 2 million to this
i. Rehnquist (Dissent): uphold unless burden is slight, benefit great; Scalia
(Dissent): this category shouldn’t exist only strike down discriminatory
****A state law that falls into any of these three categories is unconstitutional because it
interferes with the federal interest of the free flow of commerce btw the states****
4. Arguments for and Against DCC
(1) Text—the commerce clause only something about Congress’s powers. It has
nothing to say about some sort of limit on state power—it is not grounded in the
text of the constitution.
(2) Unnecessary—if Congress is concerned that the states are acting against each
other, congress can present a law overriding the state laws.
(3) Separation of powers—it gets the court involved in all these cases—legislative
(4) Federalism—federal courts striking down state laws left and right.
b. Pro DCC
(1) History—there is a general argument that if the constitution gave the power to
Congress it was to stop the mini economies of the 13 states. Commerce was to get
rid of discriminatory state laws.
(2) Limits of Congress—Congress is busy and they don’t have the time to deal
with everytime Mass. props up the diary industry.
(3) Political Process—This is one of those areas where the court should be
involved. There are no political checks in the state.
(4) Economic—Federal gov’t that is striking down state laws left and right. The
counterargument is basically good—these state laws are economically inefficient.
5. Should Category III exist?
a. HYPO: Imagine that you are a state legislator that a certain kind of truck is actually
bad for the environment and unhealthy for children to be around these trucks. If you pass
a law and all the other states allow it, then you have the exact same problem. Doesn’t this
seriously impair your sovereignty as a state?
Ideally, Congress should be coming in and doing it. Congress is too busy to worry
about all these little things. We are in a tough position. How big of a burden is
category III on the states? Then the court may be more likely to say that if you
can establish that this is a real environmental and health threat this brings us to
separation of powers concerns. These concerns are worse in category three than
they are in one and two.
b. Argument: Category III isn’t about discriminate so isn’t it odd to have courts balance
instead of legislators. Defense of Category III: The framers had a desire for free efficient
9. DCC Exception: Market-Participation Doctrine & Congressional Consent
a. Market Participant: In the 1970s, the court came up with the idea that the dormant
commerce clause does not apply when the state is acting as a market participant instead
of as a regulator.
i. State can decide to give their business only to their local companies. The state
can decide how it wants to spend its money when it acts as a private producer of
ii. Don’t want to burden states more than other private entities
iii. South-Central Timber Development, Inc. v. Wunnicke: State of Alaska is
saying if you want to buy timber then you have to process it instate. H: It is
discriminatory on its face—category 1. You are discriminating against out of state
processing industries. Simple commerce clause except this applies only to timber
owned by the state of Alaska. The court says what is the market and the market is
the market of timber selling, but this provision is trying to interfere with a
different market—the timber processing market. The state is essentially trying to
muscle purchasers to use instate companies down the road. Alaska can still decide
who it wants to sell to. The state can achieve the same goal by selling processed
wood or it can say we will only sell the wood to Alaska processors or it could
subsidize the Alaska processing industry.
b. Congressional Consent Exceptions
i. Congress can authorize states to violate the DCC.
(1) Dry States can keep liquor out of them.
ii. How can Congress authorize violating the constitution? The doctrine is there to
preserve an area for the federal government so Congress should be the one to have
the final say and should be able to override it.
(1) DCC is a quasi-constitutional doctrine—it is not binding on congress.
It was made to protect Congress’s turf but it can give way when necessary.
This is recognition that Congress should have the final say on matters of
V. Separation of Powers
a. The Constitution does not explicitly provide for separation of powers
i. It is implied from the structure of the Constitution.
ii. The three separate powers are assigned to the three branches
b. We don’t want total separation of power because there must be checks and balances so:
(1) The President has legislative power through veto power and he can and does
propose legislation (though he can't formally introduce it)
(2) Senate approval of executive appointments
(3) Senate must approve treaties
(4) Vice President is the President of the Senate
(5) President nominates federal judges
(6) Senate confirms judges
(7) Impeachment power of the Senate over the President and over the federal
c. Why do we want separation of power:
i. Safeguarding against Tyranny vs. Efficiency
(1) Safeguarding against Tyranny is safeguarding individual freedom
(2) It restricts federal power and gives more power to the states.
(3) There are no wide swings of power-there is stability over time
2. Executive Encroachment- Introduction
a. Article II vests executive power in the President without qualification.
(1) This differs with the "herein granted" powers of the Legislature
in Art. I, § 8.
(2) This has given rise to contentions that the President has certain inherent
powers beyond those specified in the Constitution. (executive power vested in the
president, not herein granted as with Congress).
b. Article II, § 2: laundry list. The President can nominate ambassadors, make treaties,
and elected judges.
(1) Not clear if this is all the powers or if there are more. Not clear in the
Constitution and has been debated throughout our history.
c. Historical views of the executive - authors of the Constitution disagreeing:
(1) Hamilton: President can act when there is no express authority for his actions
either in the Constitution or in a law of Congress. Inherent authority. The basis
for Hamilton's argument is textual focusing on the difference between Article 1
and 2 (herein granted).
i. Example: Washington could declare the USA as neutral during a European
war (not execution of a law)
(2) Madison: The difference in the language between Article 1 and 2 is immaterial.
President is just the enforced of Congress. No inherent, unenumerated power in the
President because it goes against the very nature of a Constitution to list exactly what
power everyone has and nothing more.
d. The War on Terror- Modern Battlefield of Separation of Powers
(1) War on Terror has brought SOP questions to the forefront.
i. White House and the Senate are battling about whether the CIA should
be exempted from allowing cruel treatment from American interpreters.
(2) Will the Roberts court be defined by its opinions on SOP as the Rehnquist
court has been on Federalism?
2. Domestic Affairs
[ADD various constitutional grants of power]
b.Youngstown Sheet v. Sawyer: Steel workers dispute in the steel industry during the
Korean War. Truman freaks out because he is worried about supply of steel impacting
his conduct of the war. Truman issues an executive order telling the Secretary of
commerce to seize the steel mills and keep them running at any cost. Congress was
informed and they just let it happen.
H: Justice Black writing for the majority holds that it is an unconstitutional seizure.
Blacks says this is simply beyond the president’s power. Congress has not authorized the
president through the Selective Service Act nor has constitution has authorized the
president through commander and chief powers. No un-enumerated power—limited to
granted powers. The steel seizure arose in a war but it was domestic business. Ct says the
president cannot engage in domestic affairs.
i. Frankfurter (Concur): Looks to history and there is no precedent for it. Taft-
Hartley Act=Congress thought about giving the president this power and decided
not to do it. In the end, the framers vision must be respected here and Truman’s
act was unconstitutional. He says President may act sometimes without
Congressional authorization but only if history and practice suggest that this is
ii. Jackson (Concur): The President is free to act when authorized directly by
Congress (category I). President may act where Congress has been silent
(category II) looking at practicality and necessity. Category III is where congress
has spoken and has precluded the president from being involved—power is at the
lower only upheld where Congress had no right not to tell the president to do
something. He says we are in category II & president can’t act here.
iii. Vincent =yes until Congress says no
iv. Others=President can chose not to follow a statute interfering with his
authority in foreign affairs to ensure that things are fine on the homefront.
C+=explicit grant; C=silent; C-=congress says no
C+ C? C-
Black Yes No No
FF/Jack Yes M No
Vincent Yes Yes No
Others Yes Yes Yes
****For C?, FF looks at history and practice & Jack looks at practicality and necessity
but both are inclined not to grant it****
3. Executive Encroachment: Foreign Affairs
a. The President has more inherent authority in foreign affairs than in domestic arenas.
i. There is still an overlap of powers: Art. I, § 8 gives Congress the ability to raise
and select navies, Art. II gives the president powers as commander in chief, power
to appoint ambassadors and the power to negotiate treaties only with the advice &
consent of the senate
ii. Congress has conducted hearing and concluded the president has no inherent
foreign affairs powers.
iii. Presidents always assert that they have inherent powers (eg-Reagan Iran
Contra). They have been allowed to negotiate executive agreements in lieu of
(1) Unanswered Questions: Can the president conduct military operations
in the absence of declarations of war? Who has the power in the war on
b. We use the Jackson categories here looking at history and similar statutes if it falls into
c. Dames & Moore v. Regan: This stems from the 1979 hostage crisis in Iran. Iran took a
bunch of hostages from the US embassy. Carter negotiated an executive agreement and
part of this provided that all this litigation would cease and be transferred to the Iran/US
claims tribunal. Dames is a company that has a claim against Iran that gets transferred.
H: The Supreme Court uses Jackson’s formula and says this ok, but Rehnquist says the
categories are more like spectrums (eg-there are cases where congress has authorized
similar things) The key issue in this case is the president’s ability to suspend a claim
against a foreign nation. Here, Congress didn’t specifically say that the Congress could
do this but they seem to have a broad range of discretion. Almost a two part test here
looking at history and similar statutes. Congress has given the president a broad scope to
act to hostile acts of foreign nations. Congress has enacted the international claims
settlement acts and seems like it would be ok with this. Congress can’t legislate
everything so if it seems rational or reasonable probably ok.
i. Note: This an executive order not a treaty, but it has the same force as a treaty.
Why is this constitutional? Practicality. We have to have more flexibility can’t wait 6
months while hostages starve. After Dames and Moore it is clear that the president can’t
negotiate executive agreements willy-nilly or in most of category II. Even if we are in
category I, we come up against Art. II. There is no agreement that the executive
agreement be affirmed by two-thirds of the Senate. NAFTA was not approved by 2/3 of
the Senate. This is a congressional-executive agreement.
d. War Powers
(1) There is a history of President’s going to war without congressional consent
(2) Congress has the power to declare war and raise armies, but the president is
Commander in Chief
a. Questions: Can the commander and chief commit a military strike without
declaration of war from the Congress; Does it matter whether he is preemptively
striking?; Is this a political question doctrine case?
(3) War Powers Act of 1973
a. After Vietnam, Congress passed a law over Nixon’s veto saying the president
may only commit troops in the absence of Congressional authority/declaration
of war to battle in a national emergency created by an attack against US. If the
president acts, he must withdraw our forces within 60 days.
b. Congress has maintained that this law is constitutional and the president has
not. The law is still on the books.
c. Pro-War Powers: One person should not be able to commit us to war.
Defenders of war power say we have to act right away to save lives and we
have passed a law allowing the president to act first and ask questions later.
There is no need for an emergency power. Congress says the power to declare
war is a congressional one.
d. Anti-War Powers: Congress still controls the purse. The problem is that
Congress will not withdraw the moneylack of political will once we are
there. The president would say this law is unconstitutional because I have
inherent powers in certain circumstances. When I am charged with protecting
the security of this nation, I cannot have Congress tying my hands. This is a
case of commander and chief clause o a part of Art II where Congress can’t
4. Executive Encroachment: War on Terror
(1) 9/11How important a day is 9/11?; Did it change our values?; Did it compromise
the balance between liberty and security?; Did it change the balance btw president and
court?; Did it change the meaning of our constitution?
(2) Writ of Habeus Corpus
a. Writ of habeus corpus that entitles you if you have been detained by the
government to force them to explain why they are detaining you.
i. Although US constitution unlike a great many other countries does no
contain emergency provisions, it does contain Art. I,§ 9, cl. 2, suspension
clause is included with in Article one (with Congress’s powers) so it
seems that the Congress alone can suspend the right of habeus corpus.
1. Lincoln suspended it in the civil war and it was challenged but
made moot by Congress suspending the writ.
(3) Court rules against military tribunals.
i. In ex Parte Milligan, where Milligan imprisoned during the civil war & tried by
military tribunal & then a grand jury refuses to convict after the war, the court
says military tribunals are unconstitutional, you must give a citizen all the rights
that they are entitled to under the constitution. The court rejects the argument
regarding the national emergency of the civil war.
(4) Court rules in favor of military tribunals
i.Ex Parte Quirin: Bunch of Germans who had lived in the US went back to
Germany and were trained for sabotage and covertly dropped in the US with
instructions to blow up the American war factory. They were caught by the FBI.
After they were caught Roosevelt orders a military commission to be set up b/c the
writ of habeus corpus was not suspended. H: Supreme Court affirmed because
Congress passed a law allowing military tribunals without requiring criminal
procedures. Most of the saboteurs were German citizens except two. The Supreme
Court says Congress has allowed the President to set up military tribunals. Even
in category I, the saboteurs argue that Congress can’t violate individual rights.
The court distinguishes Milligan on the ground that here the US citizens were
active military collaborators accused of violating the laws of war. Difference is
really explained that this is during WWII.
(5) Modern Habeus Corpus Issues: Enemy Combatants, Guantanamo Bay detainees, &
foreign detainees (being decided now)
a. Hamdi v. Rumsfeld: Hamdi is a US citizen found detained on the battlefield in
Afghanistan and brought to the US as an enemy-combatant with no access to
counsel or charges until the end of the war.
i. Primary question: Does the president have the authority to detain
without trial a US citizen engage on a foreign battlefield ? The court holds
that the president has the authority to detain Hamdi. We are not in
category III because the requirements of the non-detention act have been
satisfied. The Joint resolution for the authorization for use of military
force (UAMF) gives the military the ability to do whatever to prosecute
the war on terror and O’Connor says if you give the military the ability to
fight a way, you have to give the military the ability to detain people on a
foreign battlefield as enemy combatants (without charging them) –we are
in category I.
(1) Thomas concurs and says even if we are in category II, the
president would still be able to act b/c he is empowered to act in
foreign affairs & Congress is silent.
ii. Souter & Ginsberg (Dissent): We are in category III, Congress has
spoken in the non-detention act and no reason to think president has
inherent authority to detain US citizens. Unless we are in category I or in
an immediate crisis, no inherent power of the president to detain US
iii. Scalia & Stevens(Dissent): The president has no statutory authorization
for detention so this is category III. Scalia says the framers considered the
most important aspect of freedom is to free people from executive
whim/discretion to lock people up. He said even if I agreed that we were
in category I, the president’s actions would still be unconstitutional.
Suspension clause says US citizen must be charged with a crime or set
free. Didn’t Quirin allow detentions: Scalia says the detained individuals
admitted that they were enemy combatants. President can’t chain you up
unless you admitted to being one. No inherent authority to detain US
citizens unless you charge them with a crime or Congress suspends the
right of habeus corpus.
iv. The Bush administration took the position that even if we are in
category III, it doesn’t matter. The president can still do this and
Congress’s statement that the president can’t do this is unconstitutional.
(1) It is important that you recognize how aggressive the Bush
administration position is unfettered authority to conduct the war
on terror (on all legal issues presented by the war on terror).
c. What kind of process is due to you under the constitution after you have been detained
as an enemy combatant?
i. Bush and Thomas say no process is due to you (no judicial review b/c it
interferes with the president’s conduct of the war)
ii. O’Connor and Souter say some process is due but not that much
(1) O’Connor wants a balancing test—your interest in liberty v. gov’t
interest in security.
(2) Limited hearing with burden of proof placed on you—gov’t may not
have to give you a lawyer—may only be a military tribunal or district
court with a prudent/incremental hearing.
iii. Scalia and Stevens say all the process is due to you unless Congress suspends
(1) Scalia says O’Connor shouldn’t be making up rights out of thin air.
(2) Can the president round up his enemies forever on his claim that they
are enemies of the state? Even Bush wouldn’t have abused it someone
might (he said you have to trust me).
d. The next wave of Habeus Corpus/Enemy Combatant/Executive Power Cases
(1) Court has recently granted review over military tribunals for non-citizen enemy
combatants—includes questions about the procedural rights of the detainees.
a. Does this inherent power trump them? This will have fundamental indications
of this. One final issue presented is how long can the president detain you.
i. The administration argued in Hamdi that this is part of a global war on
terror and until that is over the president can detain you. The court refuses
to go along.
(2) Padilla Case: He was arrested here in America (unarmed). A narrow five to four
majority ducks the issue that he filed habeus in the wrong district court and it seems clear
that the court would say there was no authority to detain Padilla.
a. Five votes to say can’t detain enemy combatants at home, but yet when Padilla
filed his habeus petition in the correct district—the fourth circuit reversed on the
ground that the gov’t changed its facts to say Padilla fought on the battlefield in
(3) Abu Ghraib Case: is torture part of the president’s inherent authority. These have left
open the ability for the CIA to do it. Administration position—CIA can torture and
Congress you can’t prohibit it because the president’s authority is unfettered.
a. The most amazing thing about the torture memos—is that they never cite the
steel seizure case nor does it mention that Art. I empowers the president to make
rules for the gov’t. They express a limitless view of the president’s power to
conduct the war on terror.
(4) Who won after Hamdi?
a. Bush got better to have his military tribunals/not struck down and he got to
detain enemy combatants. Administration has strongly favored security over
b. Despite 9/11, the court stepped up and answered the fundamental question
(detention forever) in the negative.
5. Congressional Encroachment: The Legislative Process
(1) Today’s executive branch is much more powerful than the framers could have
imagined with administrative agencies everywhere—many of which exercise
(2) The existence of this massive executive bureaucracy presents all kinds of
powers about SOP.
i. Thus, the executive branch makes policy (FDA rulemaking) which is
supposed to only be done by elected officials in Congress
ii. Reason=necessity & b/c Congress doesn’t want to do it.
b. Non-delegation power—the now defunct Congressional power to maintain checks on
administrative agencies. Congress has been allowed to delegate everything to agencies.
(1) Legislative Veto- In INS v. Chandra, where one House of Congress can veto
agency actions, the legislative veto violates bicameralism and presentment
required to pass legislative acts.
a. White this is fixing a SOP powers problem & re-instituting founder’s
original checks—innovative solution
(2) Line-item Veto-NY v. Clinton, a presidential line item veto violates
bicameralism and presentment giving the president legislative powers.
a. Legislative Powers=changing the rights, responsibilities and duties
b. Dissenters: Scalia & Breyer; Constitution says nothing against this & it
is a good idea.
c. Practical problem—president will probably take out spending only for
d. How would you advise the president or Congress to re-craft line-item
i. Give the president a power in those defined items not to spend at
all. This is exactly the same thing as the line item veto act. Achieve
the exact same result through this.
INS v. Chadha: Chadha overstayed his student visa, but the Attorney General has the power to
cancel the deportation order and allow a person to stay.
H Burger(formalist): House of representatives had a legislative veto and the House could exercise
it. House exercised it and told 6 people that they would have to be deported. Burger writes the
opinion of the court and says it was unconstitutional because it is one house veto—so it didn’t
pass through both houses. Presentment=essential core functions of the constitution. The second
presentment clause says any resolution, order, bill or vote must be presented to the president.
Legislative veto avoids the checks and balances—it is unconstitutional. This is legislative in
character so if it effects the rights and duties of persons outside the legislative branch, you have to
do it through bicameralism. Unconstitutional for the Congress make a law (legislative veto by one
branch and not presented to the president).
D White: Practicality. The Supreme Court stuck down more laws than it had in 200 years of its
history. White argues the constitution is flexible enough to allow changes as the world changes.
White says this activity is consistent with SOP. This places power back into the hands of the
legislative branch—it puts us closer to the world envisioned by the framers.
Clinton v. NY: Constitutionality of the line item veto act. President can cancel spending
provisions in a law of Congress. Congress can have a resolution of disapproval if it doesn’t like
the veto. And then president can veto it and Congress can override it.
H: Stevens says this is unconstitutional. Stevens says this is lawmaking. Only way to repeal a law
through bicameralism and presentment. The president here is doing it with the stroke of his pen.
Stevens says this is not giving the power to the president to decide not to spend money—this
gives the president the ability to strike things out of the statue.
D: Scalia says this is not really a repeal. It is a decision about giving the president the authority
whether or not to spend the money. Scalia’s opinion is formalist—technical terms of the
presentment are ok here. Really what he is doing is looking at the authority the president is given
here and whether it is presidential.
D:Breyer: The heart of the dissent is very functionalist. He relies on Justice Jackson’s dissent in
the Steel seizure case. Constitutional room for necessary innovation keeping with SOP. Here,
Breyer says it isn’t the president is not exercising legislative power. The act does not violate the
non-delegation doctrine. This does not tip the balance—so lets allow innovation. Congress is
saying we cannot trust ourselves to keep the budget down so we need you to help us out. Breyer
is saying both houses want this law and it is good for the country.
6. Congressional Encroachment: Executive Officers
a. Other Congressional Checks on Agencies
(1) Appropriation - Congress can decide how much money the agency will
receive and decrease it.
(2)Investigatory hearings – bring agency head over and yell at them although this
risk that it turns Congress into a think tank & they can’t oversee everything
b. They overrule the agency with a bill
(4) They can put more guidance in the statute—don’t give the agency so much
discretion in the first place then they have to do more policy.
(5) Can refuse to confirm presidential appointments. Retain control of agency
a. Can Congress give itself the power to appoint the heads of important
b. Can Congress go even further than that?
b. Appointments Clause—president shall appoint with the advise and consent of the
senate. Congress can allow the agency heads, the courts of law, or the president.
(1) Art II, s 2, cl. 2: He…shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other 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 Departments.
c. Appointment Power
(1) Congress cannot appoint (agency) officials or inferior officials unless the
agencies only have the power that congress could give one of its own committees.
a. This means the power to hold hearings and issue reports (Civil Rights
b. Buckley v. Valeo: Congress wants to give the power to appoint FEC
Commissioners to itself. H: Congress still cannot give the power to appoint
them to members of Congress. H: The court said the Constitution does not
contain any exceptions to the Appointments Clause. However, the
appointments clause does not apply when agencies that are exercising power
that Congress could delegate to its own committee (eg-Civil Rights
Commision). When the agency is exercising any other powers, then they are
officials and cannot be appointed by Congress.
(2) President appoints superior officials and Congress may delegate power to
appoint inferior officials.
a. Independent Counsel is an inferior official b/c she is subordinate,
limited duties, limited time (Morrison)
i. Scalia strongly disagrees since this person is unaccountable and
never elected with infinite powers
ii. Issue is moot because the Independent Counsel statute lapsed
after Mr. Ken Starr had a lot of fun will Bill Clinton.
(1) Aren’t we right back where we were in Watergate?
Prosecutors work for the people being investigated. Patrick
Fitzgerald-Valerie Plame Case. Does this show that because he
didn’t go for Karl Rove or Dick Cheney –might be partisan?
Will future president just name cronies and hacks so will the
media not let them get away with it?
(3) President can appoint a sentencing commission with judges who make policy
decisions with violating SOP.
a. Functionalist-judges frequently promulgate rules-will not impair their
i. Scalia-asking judges to be legistlators.
d. Removal Power
(1) Congress may limit the President’s power to fire the head of independent
a. Independent agencies=agencies with not purely executive powers
b. Humphreys Executor v. US: Upholds a provision of the federal trade
commission act. The court distinguished away the earlier Myers case (all
executive power is vested in the president). The President only has unfettered
authority over only purely executive agencies or officials. Independent
agencies (exercise legislative & judicial powers) don’t serve at the pleasure
of the president (FCC, CIA, FEC) This raises SOP problems because
exercising legislative, judicial, and executive are concentrated in one agency
whose ruling don’t go through bicameralism and presentment. This is a
fourth branch of government. How is this agency accountable to the people?
The commissioner were never elected by the people. These people who
exercise massive amounts of quasi-legislative power cannot be voted out of
i. Is the constitution flexible enough to allow for this whole new
branch of government? These are deep SOP problems.
c. Independent Counsel is an example of Congress limiting executive
ability to fire officials who are not purely executive.
d. Can use functionalist reasoning to determine whether Congress should
be allowed to remove.
i. For example, Congress needed to create someone independent of
(2) Congress cannot retain control of executive officers EXCEPT through
a.Bowsher v. Synar: Federal deficits are running out of control and Congress
gets tough by passing the Graham-Rudman-Hollings act that calls for mandatory
spending cuts when the deficit reaches a certain level so it creates a mechanism
whereby two agencies –CBO & OMB come up with lists of proposed cuts
designed to solve the problem then they give these proposed cuts to the
comptroller general to the US. He gives this package to the president and the
president is required to put it into effect unless the Congress acts to put its own
cuts into effect in the time period. H: Comptroller-general is the head of the GAO
(part of Congress) so Congress can impeachment him or remove him for
misadministration or one of these five reasons in the statute. The Supreme Court
strikes that act down the act because the Congress cannot have or retain power
over executive officers (comptroller is controlled by Congress). Here,
comptroller is performing executive functions by executing the law and making
the big decision of which acts to cut & telling the president what to do. D
(White): Distressingly formalist opinion. Comptroller is removable only for
certain causes will not make him a puppet of Congress. Since he is so
independent, he is the only one to make the tough decisions and Congress & the
people want this.
i. Is this consistent with Burger’s opinion in Chandra? Comptroller
general is deciding which programs to cut; isn’t he making the
tough policy decisions that Congress can’t do (changing the rights,
responsibilities and duties as Burger defined legislative powers
Morrison v. Olson: Independent Counsel Statute. Allowing an IC appointed by DC Circuit to
investigate and prosecute high-ranking federal officials for violations of federal criminal law. IC
is independent of the executive & can only be fired for good cause. H: The key constitutional
issues are (1) Appointment of the Independent Council –Is this an inferior officer or superior
(person was appointed by a court); (2) Removal—Does it violate the separation of powers to
create this federal prosecutor who doesn’t serve at the pleasure of the president of the US? (1)
Appoint--AG can remove so she is subordinate, limited duties, limited time so DC Circuit
(2) Removal—It is ok for Congress to limit President’s ability to fire if they have legislative,
judicial in addition to executive duties. Rehnquist adopts the functional reasoning saying the
essence of SOP is not rigid categories—can have these regulations as long as they do impede the
president’s ability to do his duty. Here, Congress isn’t gaining any power. The DC Circuit has a
limited role—once they appoint IC, they are done. Let the political branches determine the
creative solution to this problem.
D (Scalia): Lone Dissenter. He says this is person is superior and answers to no one so this person
is not an inferior officer. It violated SOP outside the executive control on formalist grounds.
Scalia gives a ringing endorsement of formalism—Framer’s struck the balance of the balance of
power—not for other people to determine what the balance of power is. End of the day each
branch will play its role and democracy will be the check on presidential power. Finally, he says
there is a potential for great harm in the independent counsel statute that a partisan independent
counsel is appointed who is not accountable, never elected with all the time and money and
resources in the world to go after the president and sees it as his job to bring down the president.
7. Congressional Encroachment: Executive Privilege and Immunities
a. Executive Privilege is not explicitly stated in the constitution and is asserted via a
structural and historical argument that should not allow interference with presidential
(1) Every president since George Washington has asserted it.
(2) Courts accept executive privilege just not absolute executive privilege.
b. In Nixon, Court says there is a presumptive executive privilege but it can be overcome.
(1) Use a balancing test to determine whether the privilege should be overcome.
i. Balance benefits and burdens of disclosure
(a) Might have been different if there was national security in
Nixon not just criminal presidential actions
c. United States v. Nixon: Watergate Cover-up. AG appoints a special prosecutor who
subpoenas the tapes of conversations in the White House and Nixon orders the AG to fire the
special prosecutor. AG & subordinate fired & Bork (SG) eventually fires special prosecutor.
Nixon still refuses to give tapes to the senate committee and the special prosecutor and claims
H: Nixon is claiming that he doesn’t have to turn over these tapes because he doesn’t have
executive opinion. It is a privilege like the attorney client privilege. SOP determines that when
the president exerts and executive privilege I am right. The court rejects this on the basis of
Marbury. Note the decline of the political question doctrine here—the court is going to get
involved. We will determine what the privilege is and how far it goes. Important for advisors to
the president to know that what they say is strictly confidential—president needs the full
confidence of his advisors. Powerful historical argument—every president since Washington has
claimed an executive privilege. The court agrees that yes there is an executive privilege. Privilege
can be overcome by a balancing test. In the treason trial of Burr, John Marshall issued a subpoena
to Jefferson—can sometimes be overcome. Weigh Benefits of disclosure—due process right to
evidence in a criminal trial—precluding access to documents allows the president to stop the
judiciary from doing its job so we should allow executive privilege to be invoked only where the
costs of disclosure are very high. While this case was pending, Nixon hadn’t decided if he would
comply with the courts decision—political pressure was too much and he turned the tapes over
d. Did the court get this right that there is a privilege that is presumptive but can be
overcome? Should the court have gotten involved in this? Did the court need to hop onto
e. Executive Immunity
(1) There is absolute immunity against civil suits for all actions taken in office in
the president’s official capacities (Nixon v. Fitzgerald)
i. Nixon v. Fitzgerald (425): Fitzgerald was a pentagon whistleblower who was
fired and naming Nixon saying Nixon made the decision. Nixon filed a motion to
dismiss on absolute immunity. H: The court splits sharply 5 to 4. The majority
agrees with Nixon—president is absolutely immune for all actions taken in office
(in his official capacities) b/c (1) don’t want president to act cautiously for fear of
suit; (2) don’t want the president to be tied up with suits in office. These are the
same reasons for judicial and prosecutorial immunity. D: White says we should
grant immunity when the president shows it would impair the president’s duties.
The framers made Congress and judges’ immune, but not the president. White
says the majority is making a policy decision and you should make good policy
and this is not good policy—it places the president above the law.
(2) President does not have immunity in civil suits for actions taken prior to
entering office (Clinton v. Jones). Rejects Temporary Immunity.
i. Clinton v. Jones: Paula Jones sexual harassment case. H: Courts reasoning
was Formalist and functionalist. The court rejects three traditional arguments of
precedent, history, and structure. Precedent: The difference between this case
and Nixon v. Fitzgerald is that this is for an action unrelated to the presidential
role. Distinction with a difference - no fear that a President might not take
authoritative action while in office for fear of civil lawsuits.History: as is
usually the case, there was history supporting both sides of originalist meaning.
Structure: Article II puts all of the executive power in one person so Clinton says
it cannot be the case that he has to respond to frivolous lawsuits while managing
real crises. Court felt it really would not take that much time. Sanctions deter
frivolous lawsuits. Counterargument: No constitutional right to a speedy civil
trial; Jones had already waited to file her lawsuit
(a)No Temporary Immunity: The Court did not want to go down the road
of denying or delaying suits, some of which could have a serious effect
on the substantive rights of individuals because the President did not
make a specific showing of need for immunity.
ii. Concur (Breyer): Much more sympathetic to Clinton - buys the structural
argument that the executive is different (example: if one congressman has to
attend a trial it's no big deal; a judge could also be replaced). We only have one
President and it should be treated differently. Not clear then why he concurred -
maybe required a unanimous decision, maybe knew he had lost and concurred for
the good of the country.
f. Pro versus Con: Nixon (Absolute) and Clinton (Temporary) Immunity
(a) Nixon Pro-Immunity
(1) Chill Discretion
(2) Interfere with Duties
(3) Judicial Infringement on executive authority
(b) Nixon Con-Immunity
(1) Deter Presidential Wrongdoing—we want to make sure that the president
knows that if he engages in wrongful conduct that he will be made to pay.
(2) Compensate Victims—if the president commits a civil wrong then we want to
make that person whole.
(3) President not above the law—we don’t want the president to be above the law.
(1) Chill—does not apply here actions taken as a private citizen
(2) Yes—absolutely the same way.
(3) Doesn’t apply much here—the president has to prepare for is deposition
(d) Clinton Con-Immunity
(1) Doesn’t apply here because this is not wrongdoing he engaged in before the
(2) Applies but much less—it is not as though the victim will not get compensated
(3) Ensure that the president is not above the law—it applies but less so
(e) How could the justices not see the potential for political mischief if a president was
questioned in a sexual harassment suit ? Due in substantial part to two decisions of the
Supreme Court where the court engaged in bad functionalism (Morrison v.
Olsonsustained the constitutionality of the IC la on functionalist grounds lead to
Ken Starr to investigate Clinton v. Jones: allows them to investigate the president and
get him under oath about his sexual liaisons). The court saw no problem with discovery
of civil wrongs. The court tries to draw it from real world practicality. Our nine justices
that good about figuring out the real world and if they are not then why should
constitutional law be dictated by their real world thoughts about the law ?
8. Congressional Encroachment: Impeachment
a. The Constitution (Art II, s 4) has impeachment to hold the president accountable.
(1) Think about the constitutional issues raised by the impeachment of a
president: Imagine that the Congress impeaches and convicts the president of jay-
walking or being a crappy president & she files a lawsuit in the courts
i. Should the court consider a case like this? This is a profoundly
b. Constitution says president can be impeached for “high crimes and misdemeanors” and
lists treason and bribery as among them.
(1) How do we decide what “high crimes…” means?
i. Historical approach: what were the articles of impeachment drawn up
and judges and other officials who were impeached and we can go back
and look at what the framers said.
ii. We could say high crimes and misdemeanors should be anything we
consider a serious crime today.
VI. Bush v. Gore & End of Semester
1. Bush v. Gore: Bush files a lawsuit in state court to try to stop the hand-recount. That
same day, Secretary of State says there is no basis for hand-recount and you have a day
to give me your results. The Florida Supreme Court rules that Harris has abused her
discretion and Florida should include the final hand-recount. Virtually every single legal
expert predicted that the court would not take this case—it was based exclusively on state
law and the federal issues had not been raised below and the Supreme Court has no
jurisdiction over state law. Ct granted cert and issued its decision on Dec. 4th. Meantime,
Harris certifies law and Gore challenges and on Dec. 8, the Florida Sup. Ct. requires a
statewide hand recount of all disputed ballots and the Sup. Ct. issues a stay. H:
a. Federalism - US SC only to reverse state court decisions on matters of federal law, but
this opinion was based on the FL SC misconstruing FL state law.
(1) Serious allegation of impropriety by FL SC and a serious intrusion by SC into the
historical authority of state courts to determine for themselves the proper
interpretation of state law.
b. Separation of Powers - possibly should have left this to Congress instead w-out getting
involved. The majority felt the authority of the court and need for finality in the face of a
national crisis justified taking the case.
(1) Problem is that the Constitution says that Congress counts the electoral votes with
a statute passed in the 1870s to deal with situations like this.
(2) This is a political question, but already being decided by courts; a federal issue in
that it involves a national President—is this the triumph of judicial activism?
c. Judicial Legitimacy - was hurt by taking this case. No unanimous verdict. The most
political case every taken by the court.
(1) Stevens Dissent: one thing is certain; may never know the real winner, but the
loser is the nation's confidence in the court's impartiality
(2) Breyer Dissent: that confidence is a public treasure built over many years
d. Judicial Neutrality - possibly not based on enough law, and entirely on politics. After
all the people who support state's rights are now the majority (those who decided
Morrison, Lopez, Printz, Seminole Tribe on the basis of state sovereignty).
(1) Identify of the parties is not supposed to matter, the law should. Court even says
that this case is unique and should not be used as precedent in the future - our
decision is limited to these circumstances.
(2) Remedy: The case was decided on the basis of the Equal Protection Clause being
violated (only 3 votes for an Article II violation), and yet does not provide a uniform
vote-counting system to remedy the violation. In Marbury v. Madison, Marshall said
it is "a government of laws and not of men . . . must provide a remedy for a vested
i. Souter and Breyer agreed with equal protection but had to dissent because of
2. What are the implications of Bush v. Gore for constitutional law?
a. Do Americans trust the court?
(1) Opinion Polls have generally shown that it did not save the public’s
(2) Think about Rehnquist/Scalia/Thomas—Concurrence: Don’t those two
opinions put the FL SC in an impossible position? No possible way to fix
the problem on equal protection or Art. II.
i. The most famous passage in this opinion—conclusion is limited
to these circumstances and goes on to say that different counties
with different voting technology creates a problem.
ii. The court says this case will not set a precedent.
iii. Only conclusion the court takes from FL SC on FL law is that
there was a deadline for voting counting imposed by FL SC
Florida, but cites had nothing to do with the proposition.
b. Bush v. Gore is an extreme case where political judgments overcame legal
judgments. Hard for people to view the law in a neutral, a political opinion.
(1) No one was capable of reasoned legal analysis.
(2) What should you a con law student take away—there is politics
involved & constitutional law is different than the law because political
consequences are so much greater—impression that con law is politics in
(3) Judges do not decide things on politics but on judicial philosophy and
i. When judges do this it is our duty to make sure judges don’t do it
ii. Judges really are more principled and less political than
politicians. There is some politics in law but there is some law in
(4)Sup Ct’s rating opinion down: one increasingly vitriolic attacks on the
court from right, president bush’s judicial appointments,
i. Polls say most Americans think Judicial activism has reached a
(a) Judges who render decisions not on the values with the
ii. Then, what happens to separation of powers, liberty and equality
(a) Despite what some ads might tell you there are very few
correct answers in con law, every method has significant
cons. No one theory is objectively correct.