Con Law Outline
How should the Constitution be interpreted?
o Constitution needs to be interpreted because
Doesn‘t address all problems
Open textured (what does ―necessary and proper‖ mean?)
Rights sometimes have to be infringed upon (freedom of speech is not
an absolute right)
o Originalism vs. Nonoriginalism – How should the Const evolve?
Originalism: ―Judges deciding constitutional issues should confine
themselvesto enforcing norms that are stated or clearly implicit in
the written Const.‖
The Court should find a right to exist in the Const only if it is
expressly stated in the text or was clearly intended by its
Where the Const is silent, it‘s for legislature, unconstrained by
courts, to decide the law.
Const should evolve solely by amendment
2 main arguments
1. the ―very nature of interpreting a document requires
that its meaning be limited to its specific text and
its framers‘ intentions.‖
2. Originalism limits the power that unelected judges
in light of this, the Ct should only overturn
decisions made by elected legislators when
doing so clearly upholds the values of the
Responses to the 3 main arguments below
1. Amendment is better, otherwise unelected judges have
too much power
2. If we don‘t know what the intent was, leave it to the
3. They intended originalist approach.
Nonoriginalism: ―Courts should go beyond that set of references and
enforce norms that cannot be discovered within the four corners
of the document.‖
Court can interpret the Cont to protect rights not expressly stated
or clearly intended
Const meaning evolves by amendment and by interpretation
Responses to the 2 main arguments above
1. It‘s a tautology . . .don‘t really understand this
2. Democracy shouldn‘t come down to majority rule.
―The framers openly and explicitly distrusted
majority rule and therefore virtually every
government institution that they created had
strong antimajoritarian features.‖
3 main arguments for nonoriginalism
1. Evolution by interpretation and amendment lessens the
burden. Amendment process is cumbersome.
2. There is no ―unambiguous, knowable intent‖ of the
framers that will resolve Const. questions.
There was no single intent
3. Framers intended a nonoriginalist approach
―it is commonly assumbed that the ‗interpretive
intention‘ of the Const.‘s framers was that
the Const would be construed in
accordance with what future interpreters
could gather of the framers‘ own purposes,
expectations, and intentions.‖
Variation within the groups:
Strict originalists the ―Ct must follow the literal text and the
specific intent of its drafters.‖
Moderate originalist ―more concerned with adopters‘ general
purposes than their intentions in a precise sense‖
Lots of variations of nonoriginalists.
o Who should interpret the Const?
3 different approaches:
each branch gets its say and the argument with the most
Different parts to different branches
Political questions don‘t belong to the court
Judiciary is the authority
Marbury v. Madison: ―It is emphatically the province and
duty of the judicial department to say what the
law is‖ – Marshall
The Authority for Judicial Review
o Article III
Covers 7 topics concerning the federal judiciary
1. ―the judicial Power of the US shall be vested‖ created the
federal judicial system.
2. Judicial power is vested, ―in one supreme Court and in such
inferior courts as Congress may from time to time ordain and
Eventually led to the creation of the lower federal courts.
3. Federal judges have life tenure, so they‘re independent
4. Article III §2 defines federal judicial power in terms of nine
categories of ―cases‖ and ―controversies‖
5. Power allocated between Supreme Court and lower federal
Supreme court has original jurisdiction over:
Cases affecting ambassadors, other public
ministers and consuls, and those in which a
state shall be a party
› Today original jurisdiction pretty much
limited to where 2 + states are
Supreme court has appellate jurisdiction over all other
Lower courts have concurrent jurisdiction
6. All crimes shall be tired by jury (except impeachment cases)
and trial will occur where crime was committed
7. Treason = ―levying war‖ against US or aiding/comforting the
No one will be convicted of treason without 2 witnesses
or confession in open court
Article 3 does not explicitly grant federal cts the power to review the
constitutionality of federal/state laws or executive actions.
Article 3 defines 2 main limits:
1. Defines scope of federal court authority
Congress can limit authority of fed cts by statute
o Marbury v Madison
Established the authority for the judiciary to review the
constitutionality of executive and legislative acts.
o Cohens v. Virginia
SC has authority to take appeals from state courts
Section 25 of the judiciary act
o Cooper v. Aaron
Federal courts have the authority to review the constitutionality of state
laws and the actions of state officials
o Most important limit on federal judicial power
o Determines what the courts can hear and what must be dismissed
o Constitutional v. prudential requirements
Article III § defines 9 categories of cases and controversies the ct
The requirement for ―cases‖ and ―controversies‖
substantially limits federal judicial power
Derived from prudent judicial administration, where the ct
recognizes instances that judicial review won‘t be
Congress can override prudential restrictions, but not constitutional
ones, because Congress can‘t expand the federal judicial powers
authorized in Article 3.
Both types of restrictions are the product of SC decisions
No Advisory Opinions (where cts offer opinions of the constitutionality of pending
legislation or constitutional questions raised by other branches of the government)
Separation of powers by keeping judicial branch out of the legislative
Ct is only to resolve actual disputes, not to give advice to
Congress or President
Might be unnecessary and wasteful – legislation may not pass
Ensures actual cases, not hypotheticals, come before the ct
o To avoid being an advisory opinion, 2 criteria:
1. Must be an actual dispute
2. Must be a substantial likelihood that a federal ct decision in favor of
a claimant will bring about some change or effect
Standing – concerns who a proper party is to litigate a matter
o ―Standing is the determination of whether a specific person is the proper party
to bring a matter to the court for adjudication‖
3 constitutional requirements: (P must allege . . .)
1. Injury - P has or will imminently suffer injury
2. Causation - Injury is ―fairly traceable‖ to the defendant‘s
3. Redressability - Favorable federal ct decision is likely to
redress the injury
3 prudential requirements(Congress can override by statute)
1. Party can‘t raise the claims of third parties (must be asserting
your own right)
2. P can‘t sue as a taxpayer who shares a grievance in common
with all other taxpayers
3. Party must raise a claim within the zone of interests protected
by the statute in question
Ripeness – concerns when litigation can occur
o Weeds out issues that are premature for review (injury is speculative)
There is overlap with standing. If no injury has occurred, there‘s no
standing, and the issue is unripe.
o Parts of analysis:
1. How significant is the harm from denying judicial review?
If P can show substantial hardship that‘d result from denial,
likely to be found ripe.
3 situations where there‘s enough hardship:
where the P may have choose between forgoing allegedly
lawful behavior and risking likely prosecution
with substantial consequences.
Like in Abbott Laboratories v. Gardner where
the drug companies would have destroy
tons of labels and brochures to comply
with the generic-only FDA requirement or
risk going to jail.
Where enforcement of a statute or regulation is certain,
o An actual controversy must exist at all levels of court proceedings
So if the issue resolves itself at the trial level, no reason to bring it to
o ―Any change in the facts that ends the controversy renders the case moot.‖
Political Question Doctrine (read the study guide for an in-depth look at this and
mootness – more on this in my class notes too)
o ―certain allegations of unconstitutional government conduct should not be ruled
on by the federal cts even though all of the other requirements are met.‖
Some stuff isn‘t appropriate for judicial review
o but cts deal with political issues all the time, like in Nixon where the ct said
Nixon had to turn over his tapes.
o No clear criteria
o ―Alleged violations of the republican form of government clause pose political
Separation of Powers
Art II§1: ―The executive power shall be vested in a President of the
No :herein granted‖ here. There are arguments that this means
there‘s 1 president in charge of the whole executive branch.
And without herein granted, there are unexpressed executive
Youngstown Sheet &Tube Co. v. Sawyer (when pres tried to seize the
4 approaches to the question:
1. There is no inherent presidential power; the
president may act only if there is express
constitutional or statutory authority
Justice Black. Unconstitutional because no
statute expressly authorizes the pres to take
possession of property as he did here.
Based on the belief that inherent authority is
contrary to a written Const establishing a
government of limited powers
2. The pres has inherent authority unless the president
interferes with the functioning of another
branch of government or usurps the power of
Douglas. Seizure was unconstitutional because
the pres was forcing the spending of
federal funds to pay for the mills, and this
usurp‘s Congress‘ spending power.
Based on the idea that the pres may need to
exercise power not specifically enumerated
in Const or expressed via statute.
3. The pres may exercise powers not mentioned in the
Const. so long as the pres does not violate a
statute or the Const.
Frankfurter, Jackson. Congress had denied the
pres authority to seize industries.
Discussed 3 zones of presidential authority
› 1. Express/implied authorization of
› 2. Zone of twilight where pres and
Congress have concurrent authority
› 3. Measures incompatible with Congress‘
will is ―power at its lowest ebb.‖
4. The pres has inherent powers that may not be
restricted by Congress and may act unless the
Const. is violated.
Vinson‘s dissent. Federal laws restricting the
pres power are unconstitutional.
Art. I §1: ―All legislative powers herein granted shall be vested in a
Congress of the US‖
Art I § 8 cl. 18: The Congress shall have Power ―To make all Laws
which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this
Constitution in the Govnmt of the US or in any Department or
Argument that the legislative branch is most important:
1. It came first
2. It‘s the only branch in power by vote (people elect senators)
In evaluating the constitutionality of any act of Congress, there are
always two questions:
1. Does Congress have the authority under the Cons to legislate?
2. If so, does the law violate another const. provision or doctrine,
such as by infringing separation of powers or interfering with
o Marbury – ct has power to second guess legislative and some executive
Ct has to justify its review, must be some basis.
o By writ of habeas corpus, someone in government custody invites a court to
review the basis of the custody (i.e. to second guess executive judgment)
When there‘s a conflict between statute and constitution, the
constitution should win. So in Marbury, the court is only second
guessing legislative judgment when the law says congress has
exceeded its legislative authority (according to the constitution).
Marbury says the ct has the authority to interpret the constitution
and tell the legislature whether its acting within its authority.
It‘s to decide what the law is, not what the best policy is.
o Judicial review of legislative action arguably presents a counter-majoritarian
difficulty. Does judicial review of executive action present the same
difficulty? A different one?
Review of legislative action = counter-majoritarian difficulty because
legislative action is presumably an act of the people because
people voted them in.
For review of executive action, do we have the same support of the
reason ―upholding institutional competence‖?
In Steel Seizure, we read the suggestion that the executive branch is
o Is the simple designation of someone as an ―enemy combatant‖ by the
executive branch judicially reviewable?
Milligan – if the general requires it, it should happen.
Ex Parte Quirin
Ct denied a writ of habeas corpus denying Quirin.
There is a balance of legislative and executive power, which when
exercised together, can prosecute the war.
Ct says these defendants violated the law of war by removing their
uniforms after entering the US. This made them unlawful
belligerents who can be treated as unlawful combatants.
Unlawful combatants aren‘t entitled to be treated as prisoners of
war, but who decides whether they‘re unlawful?
The War Powers Resolution
o (B) and (c) discuss power of Congress and Executive branches in war. To send
declaration of war or
specific statutory authorization or
a national emergency created by attack upon the US
o Distribution of ―War Powers‖
Some legislative, some executive, some shared (see slide)
So what role does the judicial branch have in matters military?
o Executive Detention Post 9/11
The authorization for Use of Military Force
The President is authorized to use ―all necessary and appropriate
force‖ against . . . see slide.
o Background cases
Johnson v. Eisentrager – an alien on foreign soil has no recourse in US
Alien detaine captured, held and tried abroad has no recourse in
So think about this. Why is Guantanamo on foreign soil?
Because they have no recourse in US courts!!!!
Rasul v. Bush (2004)
Alien detainees held at Guantanamo (―territory over which US
exercises plenary and exclusive jurisdiction, but not ultimate
sovereignty‖ entitled to statutory habeas relief.
o Hamdi v. Rumsfeld (2004)
Citizen detainee captured abroad held in US as an ―enemy combatant‖
entitled to contest such designation before a ―neutral
You can hold an enemy combatant until hostilities are over
So what do we do with the ―war on terror‖? When does
that end? Because this seems somewhat like a
The AUMF does not authorize ―indefinite or perpetual detention‖.
Could Congress authorize such detention.
How do you challenge charges when you can‘t challenge the
people making the claims. ―We hear you‘re a terrorist‖ ―no
I‘m not‖ ―yes you are‖.
So we have to weigh security (keeping hearsay sources secret to
protect people) against liberty (giving the accused the chance
to challenge the accusers)
Focus here is where the detainees are, not whether they‘re American or
Do we trust a ―neutral‖ fact finder to determine whether someone is an
enemy combatant when the fact finder is part of the military?
Has habeas corpus been suspended by the AUMF?
Article 1 says Congress has the power to suspend habeas corpus
when rebellion/invasion require it.
Has only been suspended once, during the revolutionary
war. Lincoln asked for it and congress endorsed
it, which implies the president needs approval of
The issue with justiciability is the problem of a branch encroaching on
o Hamdan v. Rumsfeld alien detainee captured abroad held on US soil (Gitmo)
may to be tried for conspiracy by a military commission (Combat States
In response to Hamdi, Congress created detainee review panels.
The question is: are these military tribunals an appropriate venue to
determine enemy combatant status and challenges?
This case involves an alien, but the court doesn‘t really make a
So why might these tribunals be unconstitutional?
Think of Jackson‘s opinion in Steel Seizure. Where does the
president‘s authority to do anything come from?
Either from a statutory authorization under Congress‘
exercise of its necessary and proper power
Ct says there‘s no statutory authority to create
Or it‘s in article 3 where the executive branch is created.
(inherent authority established here)
Ct says there‘s no inherent authority to create
› Ct looks to the ―common law of war‖ to
see what circumstances these
tribunals would be appropriate.
These 3 circumstances aren‘t here.
The 3 are:
When marshal law has been
Thomas‘ dissent. His view of how we should approach these
Deference. Thomas would defer to the executive branch,
saying we have no business second guessing the
It doesn‘t seem likely that the founding fathers wanted to create a
powerful, monarchy-like executive branch, based on their
Is the military commissions act, under which hamdan has been tried
and found guilty, within Congress‘ constitutional power to enact?
If so, are there any constitutional limits on what Congress may
authorize the President, as commander in chief, to do?
o Boumediene v. Bush
Aliens designated as enemy combatants and detained by the US
government are constitutionally entitled to habeas relief or its
Hamden established a clear statement rule.
A way of making a constitutional presumption. Congress
suspends habeas by making a clear statement that it is
Ct will rather resolve an ambiguous statute in favor of a meaning
that won‘t raise constitutional issues if possible.
DTA is unconstitutional because the procedures aren’t equivalent
to habeas. And the MCA strips the ct of its jurisdiction. See
paragraph 22 & 23
Suspension clause – habeas can’t be suspended except in times of
rebellion for public safety.
Relationship between the suspension clause and separation of
powers: habeas is a mechanism whereby the judicial branch
second guesses the judgment of the executive branch.
Ct discusses the historical record and says that it‘s unreliable.
Brown v. Board of Education if schools were segregated
when the 14th amendment was ratified, then originalists say
segregation should still be happening.
Historical evidence is inconclusive as a matter of law
according to B v Board. This is a shot against originalism.
Govt took the view that Gitmo is foreign soil, and that is why the
detainees were placed there, so they wouldn‘t have const.
rights. Sovereignty sould be left to the executive branch, as
they have authority over foreign affairs.
The ct then looks at the terms of the lease and finds the US
exercises de facto sovereignty. (because it has complete and
How a Bill becomes a law
o Article I § 1
Legislative powers herein granted shall be vested in a Congress of the
US, which shall consist of a Senate and House of Reps.
All bills for raising revenue shall originate in the the House of Reps but
the Senate may propose or concur with amendments as on other
o The legislative veto
A check created by Congress to check the actions of administrative
agencies. These administrative agencies were created by
Congress delegating its legislative power. But these agencies also
have executive power because they can enforce the regulations
they create. They also have judicial power to adjudicate
violations of their regulations. Crazy.
This has been deemed unconstitutional, but no one enforces that.
Congress isn‘t supposed to be able to delegate its legislative
power. Scalia and Rehnquist urge a resurrection of this
o INS v. Chadha, declared the legislative veto unconstitutional. In this case, an
immigration judge said Chadha could stay in the US. Congress had the
authority to overturn and INS decision. So Congress created a bill to
oppose Chadha (and 5 other‘s) citizenship. Supreme Court said no, can‘t
do that. If Congress wants to overturn and executive action there must be
bicameralism and presentment.
Burger wrote the opinion of the court. Burger‘s opinion can be
described as a syllogism, which means that Congress may
legislate only if there is bicameralism (passage by both the House
and Senate) and presentment (where the President gets the bill to
sign or veto). Burger said these procedural requirements are
Court also said this situation was not one of the situations that
the Constitution lists as legitimate reason for one branch of
Congress can act alone.
One-house veto is more efficient, but this isn‘t the priority of the
Emphasized the formal structure prescribed in the
constitution for adopting laws
Why is it important that legislation jump through the requisite
constitutional hoops (bicameral passage, presentment)?
Keeps Congress from acting outside of its legislative power (if it
doesn‘t jump through the hoops, acting outside)
Veto can be overrun if it‘s 2/3s house and 2/3 senate
When the Constitution provides express procedures, such
procedures must be strictly observed. Two such provisions
are bicameralism and presentment in the enactment of law.
The presentment process—especially the President's veto
power—was intended by the Framers to provide a
mechanism by which the executive branch could defend
itself against legislative encroachment and could prevent
ill-conceived policies. Similarly, the bicameralism
requirement was formulated in order to hinder
congressional action and thereby prevent legislative
o Why is the exercise of the one-house veto in this case an exercise of ―legislative
The action of the House of Representatives is legislative in nature
because it modifies rights and duties of individuals outside the
legislative branch; the enactment would otherwise have required
a private law, which is a legislative function; and the nature of
the action is inherently legislative.
The change in Chadha‘s status doesn‘t fall within constitutional
occasions where a house can act without another house.
Therefore if they‘re able to do it at all, it‘s legislative so they
have to jump through all the hoops.
The effect of this decision is that if Congress is going to delegate
executive powers to the legislative branch, this puts Congress in
the position of either delegating it all and letting exec branch to
fill in details. OR legislative branch has to fill in the details and
do little delegation.
Because in so far as the house is doing it, it must be legislative. Or
because the house is changing the rules in the middle of the
game, and changing the rules is legislating and must jump
through the right hoops
But just jumping through the hoops doesn‘t = constitutionality. Still has
to meet substantive constitutional requirements
o Why is congressional delegation to the executive branch of legislative power
not violative of separation of powers? See Chadha footnote 16. Is the
Court‘s answer satisfactory?
Wiseman says Chadha is very important.
One house veto has been decided to be unconstitutional. But
there are laws that have been enacted with such despite this
decision. Political branches have essentially ignored this
o Does legislative veto, whether one-house or two-house, exacerbate or relieve
the separation-of-powers concerns raised by legislative delegation of
power to the executive branch?
Justice White is arguing that the one-house veto relieves separation of
So, if the FDA says they have an enabling statute that allows regulation
of tobacco, if Congress wants to say it doesn‘t have that
authority, it has to make legislation to prevent it.
o Concurrences and Dissents:
Powell, J., concurring in judgment: Justice Powell argued that to
invalidate all legislative veto provisions is a serious matter, as
Congress views the legislative veto as essential to controlling the
executive branch, and should therefore be undertaken with
caution. However, Congress's action in this case is nonetheless
unconstitutional. Contrary to the views of the majority,
Congress's action is not legislative in character but adjudicative,
and it therefore violates the principle that Congress may not
expand its own power into the areas of competence of the other
branches. The Constitution specifically attempted to prevent this
form of aggrandizement in the Bill of Attainder Clause, Art. I, §
9, cl. 3, which prohibits Congress from undertaking legislative
trials that lack the safeguards and accountability of judicial trials.
For a house of Congress to force the deportation of Chadha
would amount to such a legislative trial.
White, J., dissenting.
Justice White‘s functional dissent:
Looked at the 200 federal laws that have legislative
vetoes, arguing clearly it‘s an essential tool for
checking the exercise of delegated powers.
Necessary to check the legislature‘s power.
Even though the framers didn‘t discuss it, they didn‘t
discuss the statutes that created all the
administrative agencies we have either.
Rehnquist, J., with whom White, J., joins, dissenting.
Justice Rehnquist argued that it is unlikely that Congress would
have promulgated § 244(a)(1) without the corresponding
provisions of §§ 244(c)(1–2). Therefore, the provisions are
not severable from one another, and holding one
unconstitutional requires invalidating the other.
o Clinton v. NY
Clinton v. City of New York, 524 U.S. 417 (1998), is a legal case in
which the Supreme Court of the United States ruled that the line-
item veto as granted in the Line Item Veto Act of 1996 violated
the Presentment Clause of the United States Constitution
because it impermissibly gave the President of the United States
the power to unilaterally amend or repeal parts of statutes that
had been duly passed by the United States Congress. The
decision of the Court, in a six-to-three majority, was delivered by
Justice John Paul Stevens
Line item veto – where the pres can strike a bit of a bill.
What‘s wrong with that, why is it unconstitutional?
Because if the pres crosses something out, it‘s no longer the bill
the house and senate voted on.
Lets president subvert the process, making changes to the
legislation after she or he has the votes. This changes the
The balance of legislative and executive power.
o The appointments clause: ArtII § 2 cl.2: The president ―shall nominate, and by
and with the Advice and Consent of the Senate, shall appoint all other
Officers of the US . . .but the Congress may by Law vest the Appointment
of such inferior Officers as the think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments‖
This clause contemplates – as far as inferior officers are concerned,
Congress can permit them to be appointed by the Pres, Courts of
Law, or Heads of Departments.
So when the Senate has advised the appointment, does it have any
further role in controlling?
o Let‘s talk about policy czars (roughly 50 now, roughly 50 with recent Bush
These present a genuine constitutional question. Are these officers of
the US within the meaning of the constitution? And if so, does
the appointments clause mean the administration has no authority
to appoint them?
o Humphrey's Executor v. United States, 295 U.S. 602 (1935), was a United
States Supreme Court case decided during the Franklin Delano Roosevelt
presidency, regarding the powers that a President of the United States has
to remove certain executive officials for purely political reasons. The
Court distinguished between executive officers and quasi-legislative or
quasi-judicial officers. The former serve at the pleasure of the President
and may be removed at his discretion; the latter may be removed only with
procedures consistent with statutory conditions enacted by Congress. The
Court ruled that the Federal Trade Commission was a quasi-legislative
body because of other powers it had, and therefore the President could not
fire an FTC member solely for political reasons; thus, Humphrey's firing
Note the FTC Act, creating and empowering the FTC. What sort of a
creature is it, legislative, executive, or judicial? How does the
Court describe it?
Only allows President to remove a commissioner for
―inefficiency, neglect of duty, or malfeasance in office.‖
This doesn’t conflict with Myers, because Myers only
applied to ―purely executive officers‖. (Holding
the Pres can remove purely executive officers [here,
the postmaster] just as (s)he can appoint them)
So we draw a line between cabinet officials
(purely executive, like the postmaster, who
are in position to carry out the President
[i.e. executive] policies and independent
regulatory agencies (like the FTC
Ct says it performs quasi-judicial and quasi-legislative. Ct says
Example: postmaster – purely executive function, so the pres
could let him go.
Government says Humphrey is just like that. Because
he‘s part of the exec branch, pres can fire him
without Congress saying he can.
Ct says no, not executive functions, FTC not in
Humphrey’s Executor limits removal to a purely
How does this work? Separation of powers protects us
from tyranny. Ct says Humphrey isn‘t executive
even though most of what FTC does is executive.
So what is it?
They do have a rule making and enforcement function
They record and report information to Congress
Commissioners are appointed by Pres, with advice from
House and senate
Pres can still fire him, but only for cause
(incompetence in office)
But are FTC members officers of the US?
› Because if so, the removal is
The flip side of the Pres‘ appointment power is the removal
power. But since FTC is not part of exec branch, Congress
may impose limits on Pres‘ power to remove.
o Bowsher v. Synar, 478 U.S. 714 (1986) struck down the Gramm-Rudman-
Hollings Act as an unconstitutional usurpation of executive power by
Congress because the law empowered Congress to terminate the United
States Comptroller General for certain specified reasons, including
"inefficiency, 'neglect of duty,' or 'malfeasance.'" (This was an attempt to
require the federal budget be balanced)
Gave Comptroller General authority to tell pres what to do with respect
to balancing the budget.
What‘s wrong with the powers that‘ve been granted to the
If comptroller is part of the executive branch, giving congress
the power to remove is unconstitutional. A purely
executive officer (even one appointed at the advice of
Congress) only subject to removal by the president.
So is the comptroller solely executive or not?
No, he‘s a legislative officer, not executive.
Because congress has retained the power to remove, it
can‘t also assign the power to control executive
So Comptroller isn‘t allowed to tell the executive branch
what to do, he can report to Congress about
Ct could say he is an executive because of the powers
Congress has given him, and therefore Congress
can‘t remove him
Or, it could say, which it did: Not an executive because
Congress reserved the power to remove him.
So the only way the comptroller can be removed
is by both houses voting for it, subject to
presidential veto. (unless they just want to
impeach him, which is constitutionally
The comptroller, as a legislative officer, can‘t be placed
in executive branch and given the power to dictate
how money is spent, as money spending (once
appropriated) is an executive power.
o Morrison v. Olson, 487 U.S. 654 (1988) The Court upheld the Independent
Counsel provision of the Ethics in Government Act because it did not
violate the separation of powers by increasing the power of one branch at
the expense of another. Instead, even though the President could not
directly fire the independent counsel, the person holding that office was
still an Executive branch officer, not under the control of either U.S.
Congress or the courts. This holding upheld the constitutionality of limits
on the president‘s ability to remove the independent counsel.
What is the status of and ―independent counsel‖?
The law creating independent counsel said that only the Attorney
General could fire the independent counsel and it could only
be done for cause. If removed, the Attorney General has to
file a report with judges who made the appointment and with
the House and Senate Judiciary Committees.
Prosecution typically lies in the executive branch. The Court said
―the real question is whether the removal restrictions are of
such a nature that they impede the President‘s ability to
perform his constitutional duty.‖
So Scalia‘s dissent says this independent counsel is
The independent counsel is an officer of the US, they‘re inferior.
1 concern the independent counselor will run up big bills
Art II 1 cl 1: ―The executive power shall be vested in a president of the
Does this clause preclude the performance of ―executive‖
functions by anyone other than the pres?
(i.e. the independent counsel doing executive things
would = unconstitutional)
This is the line Scalia tries to draw, but it doesn‘t work
because even law clerks are doing executive
functions as staff of federal judges.
See slide ―Interesting language in Justice Scalia‘s Morrison dissent‖
o Policy czars
First seen in the Nixon administration, their number has increased
since, to 50+ in the Bush and Obama administrations.
Are such advisors officers of the US and so governed by the
Not principle because they don‘t have to be approved. But
o So, from theses cases (Bowsher, Humphrey‘s executor, Morrison):
The pres has the power to remove executive officials, but Congress
may limit the removal power if it is an office where
independence from the president would be desirable.
But Congress cannot completely prohibit all removal and it
cannot give the removal power to itself (other than
exercising its impeachment power).
So, in addressing removal power, 2 good questions (according
1. Is the office one in which independence from the president is
Purely executive tasks = no
Quasi-leg/judicial = yes
But this line is hard to discern.
2. Are Congress‘ limits on removal constitutional?
Congress can‘t completely prohibit presidential removal,
but it can limit removal to where there is ―good
Congress can‘t give itself the sole power to remove an
Executive privileges and Immunities
o Executive privilege is the idea that the pres can keep secret convos/memos
o None is expressly mentioned in the constitution and so whatever executive
privileges or immunities there are must be implied from . . .
Notions of separations of powers
o There‘s no absolute presidential privilege against judicial process, so what‘s
weighed in the inevitable balance?
o Was Congress entitled to testimony from Harriet Miers, et al., regarding the
firing of US Attorneys.
US attorneys serve at the pleasure of the president
Should a Congressional subpoena outweigh claims of the executive
branch to be privileged to not be pulled before congress?
What goes into the balance? What‘s important on the
Congressional side and what‘s important on the executive
Do we want Congress to investigate wrongdoing of the executive
Yes. How else could they impeach.
o United States v. Nixon, 418 U.S. 683 (1974), was a landmark United States
Supreme Court decision. It was a unanimous 8-0 ruling involving
President Richard Nixon and was important to the late stages of the
Watergate scandal. It is considered a crucial precedent limiting the power
of any U.S. president.
Executive branch claimed it was an executive conflict that should be
resolved internally and that pres didn‘t have to turn over tapes
because he had executive privilege.
Court made 3 major points:
1. The scope of the executive privilege, if it exists, should be
determined by the Court. ―It is emphatically the province and
duty of the judicial department to say what the law is‖.
2. Executive privilege does exist. Executive branch should be
able to communicate freely within itself.
―the privilege can be said to derive from the supremacy of
each branch within its own assigned area of
constitutional duties . . . protection of the
confidentiality of Presidential communications has
similar constitutional underpinnings.‖
So the court is recognizing this power as
3. Executive privilege is not absolute, but must yield when there
are important countervailing interests
an absolute privilege would interfere with the judiciary‘s
The need for evidence at a criminal proceeding
outweighs executive privilege.
What about civil cases against the president?
Nixon v. Fitzgerald – ―Pres enjoys absolute immunity from civil
liability for official acts. Two-fold rationale (at least): (1) to
avoid policy distortion (need to be able to discuss policy in a
free and open way without being exposed) (2)to avoid
distraction of Pres from official duties.
(2) going into court distracts pres from official duties
The President is different. Congress can function with a
majority (50% +1). So can Senate. 25th Amendment
ensures there‘s continuity. If the Pres is temporarily
disabled, there has to be someone to act in his stead.
Because the Pres is one guy. So if the distraction of
being called into ct is enough to stop the pres from
doing his job, and when that happens, one branch of
the government is shut down. So Brier says the Pres
should have the opportunity to show this.
Art. II §4: ―The Pres, VPP, and all civil Officers of the US, shall
be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Is impeachment the exclusive avenue for punishing a
Balance of power between Nation and State
o McCulloch v. Maryland, 17 U.S. 316 (1819), was a landmark decision by the
Supreme Court of the United States. The state of Maryland had attempted
to impede operation of a branch of the Second Bank of the United States
by imposing a tax on all notes of banks not chartered in Maryland. Though
the law, by its language, was generally applicable, the U.S. Bank was the
only out-of-state bank then existing in Maryland, and the law is generally
recognized as having specifically targeted the U.S. Bank. The Court
invoked the Necessary and Proper Clause in the Constitution, which
allowed the Federal government to pass laws not expressly provided for in
the Constitution's list of express powers as long as those laws are in useful
furtherance of the express powers.
This fundamental case established the following two principles:
1. The Constitution grants to Congress implied powers for implementing
the Constitution's express powers, in order to create a functional national
2. State action may not impede valid constitutional exercises of power
by the Federal government.
The opinion was written by Chief Justice John Marshall.
Has Congress the power to incorporate a national bank?
Enumerated powers do not include the power to incorporate a
Paragraph 35 – US can create a national bank.
Largely relied on the history of the existence of a national bank.
Cited other cases that point to the history of statutes for the
support of such statutes to continue.
But, Holmes once said just the fact that laws are ―natural
and familiar . . .ought not to conclude our judgment
upon the question whether [the] statutes conflict
with the Constitution of the US‖
Scope of congressional powers under Article I:
Marshall acknowledged the Const doesn‘t enumerate the power
to create a Bank of the US, but that is not so dispositive as to
Congress‘ power to establish such an institution.
If every allowance of congressional power had to be
enumerated, we wouldn‘t have a Constitution, we
would have a big ol‘ thick legal code.
Here Marshall is saying the Const is different
from statutes and should be interpreted
In light of this (the lack of every power needing to be
enumerated) Marshall concludes that Congress may choose
any means (so long as the means aren‘t prohibited by the
Const) to carry out its lawful authority.
This expanded the power of Congress. If it were limited
to the powers listed in Article I, the power would be
finite. But if it can take any constitutional means, it
has an infinite range of options.
Necessary and Proper clause
Marshall said the necessary and proper clause is
consistent with this finding that Congress can do
anything that doesn‘t violate the Constitution. ―let
the ends be legitimate, let it be within the scope
of the const and all means which are appropriate,
which are plainly adapted to that end, which are
not prohibited, but consist with the letter and
spirit of the const, are constitutional.‖
But the contrary view of this is that the
necessary and proper clause limits
congressional power to that which is
indispensable (i.e. necessary).
› Marshall says no, necessary doesn‘t mean
indispensable, it means useful or
› He points out the necessary and proper
clause is in article I, §8 where
congressional powers are expanded,
rather than § 9 where they are
May MD tax a branch of the national bank?
No. Because then the state is taxing something the Nation has
―The power to tax is the power to destroy‖
If people are over taxed they can throw out those in
power who are taxing too much. But the Nation
can‘t do that to state officials.
Paragraph 29: ―let the end be legitimate. Let it be within
the scope of the constitution . . .‖
What is the source of the Nation‘s power? ―We, the people‖? ―We, the
states‖? (no, the power of the national government isn‘t delegated
to the national government by the states) ―We, the peoples of the
Marshall rejects compact federalism and finds that the federal
gov‘t is supreme over the states and states have no authority
to negate federal actions. And that‘s why the state can‘t tax
the federal bank, because then the state would have the
power to destroy the bank.
The argument was made that states retain ultimate sovereignty
because the states ratified the constitution. [this is called
―compact Federalism]. Marshall says no, the people ratified
the Const. The people are sovereign, not the states. ―The
government proceeds direction from the people; is ‗ordained
and established‘ in the name of the people‖.
o U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), was a case in
which the Supreme Court of the United States ruled that states cannot
impose qualifications for prospective members of the U.S. Congress
stricter than those specified in the Constitution. The decision invalidated
the Congressional term limit provisions of 23 states.
May a State impose term limits on its members of Congress?
Art I, sect 2, cl 2: ―No person shall be a rep who shall not have
attained to the Age of 25, and been seven years a Citizen of
the US, and who shall not, when elected, be an Inhabitant of
that State in which he shall be chosen. ―
Does this clause exhaust the qualifications? Yes
Ct said in Powell that Congress couldn‘t change the
qualifications without amending the Const.
What about the 10th Amendment argument?
The 10th amendment presumes a preconstitutional power.
If the states haven‘t been striped of that power, then
they still have it.
Another argument is that it‘d interfere with people‘s
rights to vote for whom they want to vote.
But dissent says if people vote for the term
limits, then they‘ve voted.
› But what about later generations?
› Wiseman says, if people want term limits,
vote the person out of office.
Marshall said if we hold the government to ―necessary and
proper‖ without recognizing this to mean ―appropriate‖,
that‘d really limit the government too much. Marshall is a
textualist in that he starts with the text, but he will play fast
and loose to make sense.
Thomas’ Dissent: said the states retain ultimate sovereignty
except in those areas where the Const expressly delegates
power to the federal government.
The Commerce Power
Art I § 8, cl. 3: ―The Congress shall have Power . . .to regulate Commerce . . .among
the several states . . .‖
o ―It has been said that these powers ought to be construed strictly‖
o remember, Marshall says if the ends are constitutional, then the means can be as
expansive as they need be.
o The text invites interpretation. What is ―commerce‖? what does ―among‖
mean? (see below)
o And is exercise of the commerce power limited by other constitutional
provisions, e.g., the Tenth or Eleventh Amendments?
Hammer v. Dagenhart, 247 U.S. 251 (1918), was a United States Supreme Court
decision involving the power of Congress to enact child labor laws.
Court holds that even if an activity is commerce among the states,
can’t be reached by congress if it intrudes into the zone of
activities reserved for the states.
The identification of this zone is difficult to discern, because the
Court did uphold a congressional decision to prohibit the
shipping of lottery tickets across state lines.
If the commerce clause reaches transporting women across state lines
for prostitution, why can‘t it reach child labor?
The products of child labor have nothing bad about the product
themselves. There‘s something bad about what‘s being
moved with women prostitutes.
If the rotten eggs case and such are appropriate exercises of the
Commerce Power, it is effectively a national police power?
Is there anything the Congress can‘t regulate?
o What is the purpose of the Commerce Clause?
To protect chains of commerce/ vs competition
Free flow of goods
Avoid isolationism (bring states together)
The more expanded the commerce clause is, the more like a police
power it becomes.
o May Congress prohibit the interstate distribution of goods produced by
intrastate child labor?
No. (this is ultimately overruled)
o What view of ―commerce‖ does this court take?
Transportation of goods
o What view of ―commerce‖ does Holmes, J., take in dissent
o Summary of the Commerce clause 1937-present
Currently a broad grant of power.
3 ways an item, person or activity comes under the federal commerce
1. Congress can set regulations, conditions, or prohibitions
regarding the permissibility of interstate travel or
shipments (if the law doesn’t contravene a specific const.
Gibbons v. Ogden, (before 1937) 22 U.S. 1 (1824)
nicknamed the "Steamboat Case", was a case in
which the Supreme Court of the United States held
that the power to regulate interstate commerce was
granted to Congress by the Commerce Clause of the
What is Commerce?
› Marshall says Commerce clause clearly
―Commerce is undoubtedly traffic,
but it is something more: it is
intercourse. It describes the
between nations, and parts of
nations, in all its branches, and
is regulated by prescribing
rules for carrying on that
Congress may, in regulating
commerce, reach inside state
lines. It has to be able to do
that because there‘s so much
going on in state lines that
affects commerce . . .
So Gibbons says commerce
includes all phases of business.
› State argues the Commerce clause doesn‘t
take the power to regulate
commerce away from the states just
because it gives it to the Fed gov‘t.
What is ―among the states‖?
―the word among means intermingled with‖
Congress can regulate intrastate commerce if it
has an effect on interstate commerce.
The Court went with a case by case view of
―among‖. It looks for activity involving
more than one state.
When, if ever, may Congress regulate intrastate activity?
A part of stream of commerce moving among
› Marshall says anything that ends up
anywhere in that stream can be
regulated by commerce.
But others say where the goods are produced
within a state or arrive in a state, at those
two places in the stream, not intrastate
(Note Marshall’s method, and, specifically his cogent critique of ―strict constructionism‖.
―My job as a judge is to apply the law, not make the law‖)
2 Fed may regulate any activity (even single state activity) if
there’s a close and substantial relationship to (or effect
NLRB v. Jones and Laughlin Steel Corp (Facial challenge
Principal arguments that not within commerce
› ―the act is, in reality, of labor relations and
not of interstate commerce‖. Labor
relations are traditionally within
› Obvious theme of this course is the
division of federal and state power.
One common argument: congress
shouldn‘t address subjects
within state control. 10th
amendment = matters within
state control remain so unless
The Ct‘s test for whether the regulated activity is
―commerce among the several states‖ =
Local activity which ―affects commerce‖,
has ―close or substantial‖ relationship to
› Here, cease of the functioning could have
catastrophic effects on interstate
commerce. So, the court says, this
potential for labor unrest would
have an interstate commerce,
therefore congress has the power to
regulate it, therefore congress can
regulate collective bargaining rights.
› Means are unlimited once the ends are
within Congress‘ scope. This was
stated in Gibbons v Ogden and is
› Everything is related, so everything is
going to be regulated by Commerce
(slippery slope argument). 10th
› ―Parade of Probable Horribles‖:
So, if cattle ranch that supplies
cattle, can Congress reach
working conditions on cattle
Yes. Even small businesses can
have an effect.
Business can‘t continue with
existing wage scale, can
Congress demand a reduction?
If sufficiently compelling,
Congress may do all of these
This can be cumulative.
Wickard v. Filburn, where Filburn grows wheat
for his own use only. Exceeded the federal
quota and was fined.
› Ct says he isn‘t buying wheat in the
market because of his home
growing, so he has affected the
› Ct‘s test for whether the regulated activity
is commerce among the several
States here seems to be a cumulative
Heart of Atlanta Motel v. US
› The court‘s test for whether the regulated
activity is ―commerce among the
In short, the determinative test of
the exercise of power by the
Congress under the Commerce
Clause is simply whether the
activity sought to be regulated
is 'commerce which concerns
more States than one' and has
a real and substantial
relation to the national
This is different from a real and
substantial relation to
This is an indirect effect, but the
court isn‘t very concerned
whether it‘s indirect or direct.
Katzenbach v. McClung
› Ollie‘s BBQ
Ct recognizes that the supplies
purchased by Ollie are few, but
the cumulative effect of all the
discriminating on the basis of
race is significant.
This is an application of Wickard.
Some say this is the case that says
a single ketchup packet is
enough to get you within the
scope of the commerce clause.
We‘ve seen direct, indirect effects, cumulative effects,
close and substantial effects test for whether the
regulated activity is ―commerce among the several
All of these have to do with effects. How much
of an effect much a body have on the
market in order for Congress to regulate it?
– some may say ketchup packet!
3. Congress can regulate single-state activities that don’t
affect commerce if the regulation is ―necessary and
proper‖ to regulating commerce or effectuating
regulations relating to commerce.
United States v. Lopez, 514 U.S. 549 (1995) was the first United States Supreme Court
case since the Great Depression to set limits to Congress's power under the
Commerce Clause of the United States Constitution.
o Kid takes gun to school, tried and convicted. Kid challenges, claiming the Gun-
Free School Zones Act exceeded Congress‘ power to legislate under the
Commerce Clause. Gov‘t had to show that the anti-gun act affected
interstate commerce. Gov‘t said: if people can have guns at school =
violent crimes which increase insurance rates which spreads throughout
economy, people won‘t travel where they think it‘s unsafe, and kids will
be scared, so less educated, so weaker economy.
o Rehnquist delivered the opinion of the ct. identified 3 broad categories.
Divided the ―anything crossing state lines‖ into 2 categories (1&2 below)
and the third that has been recognized in prior cases.
Congress could regulate under the Commerce Clause:
1. the channels of interstate commerce,
2. the instrumentalities of interstate commerce, or persons or
things in interstate commerce, and
3. activities that substantially affect or substantially relate to
Ct said carrying of handguns could only fall under the 3rd category, and
does not substantially affect interstate commerce. If Congress
could regulate that, it could regulate anything:
To uphold the Government's contentions here, we have to pile
inference upon inference in a manner that would bid fair to
convert congressional authority under the Commerce Clause
to a general police power of the sort retained by the States.
Admittedly, some of our prior cases have taken long steps
down that road, giving great deference to congressional
action. The broad language in these opinions has suggested
the possibility of additional expansion, but we decline here
to proceed any further. To do so would require us to
conclude that the Constitution's enumeration of powers does
not presuppose something not enumerated, and that there
never will be a distinction between what is truly national and
what is truly local. This we are unwilling to do.
4 factors to determine whether legislation is a valid effort to use
Commerce Clause to regulate interstate commerce:
1. Is it non-economic or economic activity? (previous cases
involved economic activity)
2. Jurisdictional element – has the issue in question moved in
3. Have there been Congressional findings of an economic link
(between guns and education)
4. How attenuated is the link between regulated activity and
If it‘s single state activity, must have substantial effect on interstate
commerce (this rules out ketchup packet. But maybe not lots of
o Breyer dissents.
3 basic principles:
1. Commerce Clause included the power to regulate local
activities so long as those ―significantly affect‖ interstate
2. Ct should not only consider the individual act being regulated,
but the cumulative effect of all similar acts.
(gah. This is like the stupid BBQ decision)
3. Ct must specifically determine whether Congress could have a
rational basis for concluding the activity significantly affects
Breyer says the gov‘t is right. Education has effect on commerce.
o Souter echoed rational basis, said distinction between commercial and non-
commercial to hard to make
o Stevens dissented too. Said Congress has power to protect kids from guns at
school the same way it can protect them from asbestos and alcohol
United States v. Morrison (2000) (Rehnquist)
o Ct invalidated federal law that creates a tort for victims of gender-motivated
violence (DV). Congress said DV affects victims and families, but Court
says these findings are irrelevant. Ct won‘t aggregate effects of DV and
regulate intra-state, non-commercial activity that affects interstate
commerce. (but regulating wheat or loan sharking can be aggregated to
examine effects on interstate commerce). Single state commercial activity
= Congress can regulate. Non-commercial, no dice.
Distinction between economic and noneconomic? Breyer says – is a
mugger who is holding you up engaging in an economic activity?
Gonzales v. Raich, 545 U.S. 1 (2005, per Stevens, J.)
o Growing marijuana in single state affects interstate commerce. Because the
market for marijuana is economic, Court said Congress doesn‘t have to
show it has a substantial effect, just has to show rational basis that
intrastate transactions may affect interstate market.
Majority cites both commerce clause and nec & proper clause
Scalia says the necessary and proper clause provides a rationale for
upholding fed law that prohibits intrastate activities, so the gov‘t
can control interstate activities. This demonstrates importance of
Fed‘s ability to control intrastate activity in order to control
O‘Connor dissents, saying personal use of marijuana is not an
Thomas says this would allow regulation of virtually any single state
activity (seems to tie to parade of horribles)
State Protection of Federal Laws under the 10th amendment
o Garcia v San Antonio Metropolitan Transit Authority (1985)
Overruled case law that held neither the 10th amend nor the structure of
the federal system justified restriction of Congress‘ power to
apply otherwise valid commercial regulations to state or local
Justices may defend state gov‘ts against congressional actions that‘d
eliminate sovereignty that states must posses, but probably won‘t
invalidate federal regulation of state/local gov‘t that doesn‘t
directly impair the territorial integrity of the state, or constitute a
direct command from the Fed to alter basic local gov‘t policies.
States sovereign interest better protected by procedural safeguards
i.e. federalism isn‘t substantive, it‘s procedural.
Ct says states need to look to political process when feds are over
extending their power, not the judicial branch.
Rehnquist and O‘Connor dissent. Want to go back to National
League of Cities view, which is that the 10th amendment is
given the function of protecting the states (this opinion was
written by Rehnquist). This was where Fed gov‘t wanted to
regulate state employee pay. Rehnquist says this is an
essential gov‘t activity and restricts choices that are
traditional state functions.
Is Federalism Justiciable?
Garcia is a big deal because it essentially says that judicial
review is no longer available for exercises of the
commerce power at least applied to the states. State and
local gov‘t have to persuade Congress that they shouldn‘t be
subject to the general commerce power regulations because
the regulations impair their ability to structure and operate
their gov‘t departments and functions.
In post Garcia cases, the ct has suggested that only
extraordinary defects in the national political
process would justify judicial oversight.
o NY v. US (1992) (O‘Connor)
Central holding: it is unconstitutional for Congress to compel state
legislatures to adopt laws or state agencies to adopt
But it can attach strings to money and set standards that state &
local governments must meet
Didn‘t explicitly overrule Garcia, but ―If a power is delegated to
Congress in the Const, the Tenth Amendment expressly disclaims
any reservation of that power to the States; if a power is an
attribute of state sovereignty reserved by the 10th amendment, it
is necessarily a power the Const has not conferred on Congress.‖
So what did Congress do wrong with this statute?
If you don‘t dispose of waste, the state has to take title (become
the owners) of the waste. This is the take title provision.
This exceeds Congressional authority because it‘s
coercive. Congress couldn‘t tell the states to own
the waste because it can‘t commandeer the state
legislature. Can‘t enforce its policy by strong
arming state actors. So it gets around this by saying,
if they don‘t dispose of the waste, they have to take
Citizens are citizens relative to 2 levels of gov‘t (state and
fed). But the citizen can hold its reps responsible.
But where the fed gov‘t is directing action through
state actions, the relationship between the state actor
and the state is corrupted. Normally when the state
does something citizens don‘t like, citizens have
political recourse. But if the state actor isn‘t acting
on a state basis, but rather being coerced into acting
by the federal gov‘t.
Ct says it‘s not overruling Garcia. It distinguishes, saying Garcia
involved a statute of general application (applied to employers
and states in their capacity as employers), this statute is
specifically directed at states. Congress can attach strings to any
grant it gives to the state. The take title provision isn‘t like that,
instead, it says directly to the states, ―if you don‘t dispose of the
waste, you have to take title to it‖. Statutes of general application
Constitutionally enacted by acts of Congress, which apply to the
states, are not subject to judicial review. But where Congress is
directly controlling the states, it is subject to judicial review.
Despite this distinction, still questions as to whether Garcia still stands.
So if Congress wants to give effect to some national policy, what options does it have?
How can it?
o Can provide incentives through its spending power if spending for general
welfare. And then states can take the money and comply with the strings
or not. Strings are pretty much unlimited.
o Seminole Tribe v. Florida (1996 Rehnquist) The Eleventh Amendment
provides a further limit to congressional legislative power over the
Where Congress enacts the Indian Gaming Regulatory Act allowing
Indian tribes to conduct gaming activities. Seminole tribe sued
FL for not negotiating, and the State argued it is immune.
1. Congressional intent to abrogate the state‘s immunity must be
obvious from a clear legislative statement.
This act had a clear statement.
2. The 11th amendment prevents Congress from abrogating state
immunity even when Congress has been constitutionally
granted authority over an area of law.
o Printz v. United States (1997). Scalia.
Where Brady Act required state and local law enforcement officers to
do a background check on prospective handgun purchasers, ct
held the Act unconstitutional.
Congress was impermissibly commandeering state executive officials
to implement a federal mandate.
Looks to the Court’s history and finds the court hasn’t
exercised such a power in the past.
2 main issues:
Federalism – dual sovereignty
Idealized democratic function – citizens have
power to recall their representatives
› But where the fed is requiring something
of the state reps, wouldn‘t do any
good to replace the reps because the
fed would continue to make the reps
do the unpopular thing.
› This corrupts the relationship between
citizens and states.
› Congress violates 10th amendment
because it compels state officers to
Structure of Federal Gov’t at issue here too. Scalia also
says we shouldn‘t allow Congress to bypass the
executive branch of the state, and execute laws at a
state level. Executive branch‘s job is to execute
these laws. Requiring local gov‘t to execute these
laws conflicts because the Fed gov‘t has its own
executive branch so it should be exercising it.
Scalia‘s argument is a formal argument. This is
formally persuasive. Executive branch
executes laws, can‘t bypass that by using
› If you‘re really concerned to protect state
sovereignty, though, Breyer or
Stevens asks: which is more
threatening? Imposing a
requirement on local actors or
having feds come in and do the
But what about the Supremacy Clause? What‘s
the point in that if Fed Gov‘t can‘t enforce
the supreme laws it creates?
Also addresses necessary and proper clause – if
Congress exercises a power not explicit,
the gov‘t will turn to necessary and proper
No difference between enforcing a federal policy
and being required to enact a federal
Souter, Ginsberg and Breyer disagreed, explaining that Congress can
―impose affirmative obligations on executive and judicial officers
of the state and local governments, as well as ordinary citizens.
This conclusion is firmly supported by the text of the
Constitution, the early history of the Nation, decisions of this
Court, and a correct understanding of the basic structure of the
They look at the same history Scalia sees, and state that the
absence of proscription means it is permissible.
Along these lines, Wiseman says: Given the Supremacy Clause
(Art 6 sec 2) how can it possibly be beyond congressional
power to require local enforcement of federal law?
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under
the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the
Why does it only say ―the Judges‖?
› It says that where a conflict exists
between state and federal law, have
to follow fed law
But presumably executive and
legislative are bound by fed
o Haywood v. Drown (Stevens) was a case decided by the Supreme Court of the
United States. The Court held that that a New York law preventing state
trial courts from hearing claims for money damages against prison
employees whether based on federal or state law violated the Supremacy
Clause of the United States Constitution.
4 USC § 1983 – requires state legislature to allow people with this
COA to bring it to state court
The supremacy clause prohibits the legislature of NY from
excluding a limited number of fed causes of action from a
court of general jurisdiction (created by NY)
Doesn‘t this commandeer state judiciary?
So . . . Congress can‘t commandeer state exec or leg, but can
commandeer state judiciary because of the Supremacy
A state may not create a court of general jurisdiction and then limit its
jurisdiction over federal causes of action. If that‘s an accurate (if
borad) statement of the holding, is it consistent with NY v US?
In these cases, Scalia takes a federalism position which has it‘s
thumb on the state side of the balance
Stevens more on the side of the national balance (more on the
side of the national gov‘t)
Kennedy is the guy who makes the difference
This reflects a deep ideological division that goes back 200 years
This case shows the standard 5-4 division with Kennedy
affecting the balance
So far, the 10th amendment is limiting the reach of Congressional
authority. For the most part, Congress is acting under commerce
clause power. Q is whether the power delegated in the Commerce
Clause is limited by some notion in the 10th amendment which
pushes back. The ct says yes, there is some notion of state
sovereignty which is pushing back. In 11th amendment cases, it‘s
now the 11th amendment limiting the power of Congress. The 11th
amendment grants to states sovereign immunity against suits of
citizens of other states. It has been construed to protect states
from suits from their own citizens, and the text clearly doesn‘t
support that. So the ct says, well, maybe it‘s just inherent in state
sovereignty. For whatever reason, states are immune from suits
from their own state citizens. This immunity may be abrogated
by Congress. Ct has adopted a clear statement rule. Where
congress may abrogate sovereign immunity, but must do so
clearly in the statute. In Seminole tribe the statute states this. But
the problem is that Congress is enacting the statute under its
commerce clause power, and because the commerce clause
appears earlier in the constitution than the 11th amendment,
Congress may not exercise its commerce clause power to
abrogate 11th amendment immunity.
State Sovereign Immunity and 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.‖
o State sovereign immunity (wherever derived) protects states against suit for
damages (even by its own citizens).
o May Congress abrogate state sovereign immunity (against suits for damages)
when enacting legislation under its commerce power?
(11th amendment doesn‘t protect states from injunctions forcing them
to comply with a statute, just protects the state treasury from
11th amendment protects states from suits from damages
article I legislation is not able to abrogate that immunity
14th amendment allows Congress to abrogate immunity IF it has
a clear statement
section 1: privileges, something else, and equal protection
Rehnquist says the 14th amendment followed the 11th
amendment so it can modify it.
14 amendment intended as a limit on state power.
o Why does the commerce power NOT empower congress to abrogate state
Congress can‘t exercise its article I power (its commerce power) to
abrogate state immunity. Can abrogate, just not with article I
But when Congress enacts a statute under its 14th amendment power,
Congress may create a COA for damages.
Taxing and Spending Powers
o Art. 1 §8 cl. 1: ―The Congress shall have Power to law and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for the common
Defense and general Welfare of the US.‖
Regulation through the taxing power
Think of tax law letting you deduct interest on your home to
encourage home ownership.
Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), was a case in which the U.S.
Supreme Court ruled the 1919 Child Labor Tax Law unconstitutional as an
improper attempt by Congress to penalize employers using child labor. The Court
indicated that the tax imposed by the statute was actually a penalty in disguise.
The Court later abandoned the philosophy underlying the Bailey case.
o A tax is OK, a regulatory penalty not (as an exercise of the taxing power). What
is it about this ―tax‖ which makes it a penalty?
Its purpose betrays it as penalty (not raising revenue). Scale is
irrelevant. Is excise tax a penalty?
Also, the DOL is responsible for enforcement, normally the Treasury is
in charge of enforcing a tax.
o Is the distinction between tax and penalty workable? Justiciable?
Incidental social effects: tax, purpose: regulation
Doesn‘t help that those who don‘t know they‘ve employed kids aren‘t
o The more revenue raised by a tax, the more it penalizes, so what‘s the test of
Congress, may not through its taxing power, achieve a regulating
power. Congress can‘t substitute its taxing power to achieve the
end they would want to achieve by regulation. Must be within the
Congress‘ power to do something . . . so Congress is empowered
to encourage home ownership, so it can offer tax advantages to
do so. But if Congress isn‘t otherwise empowered to do
something (like regulate child labor) it can‘t do so through its
taxing power. Can‘t through it‘s taxing power achieve a
regulatory end it‘s not otherwise empowered to achieve.
This distinction was to difficult to maintain, and later the court held
that ―every tax is in some measure regulatory.‖
Regulation Though the Spending Power
What is the scope of the spending power? If not limited to other delegated power, is it
limited by powers ―reserved‖ to the states?
o Not limited to the powers reserved in Art I § 8 of the Constitution. Instead, the
spending must ―serve the general welfare‖ and not violate another
Is ―coercion‖ the limit of federal power? Why should the federal government be
permitted only to ―induce‖ and not to ―coerce‖?
o Spending power is the power to attach strings to federal money
o But where the take it or leave it isn‘t an option (the state can‘t afford to leave it)
then Congress can attach any strings they like.
Think NY: states can‘t be coerced, but they can be induced.
South Dakota v. Dole (1984) Rehnquist
o In 1984, the United States Congress passed legislation, the National Minimum
Drinking Age Act, withholding 5% of Federal-Aid Highway Act funds
from states that did not adopt a minimum legal age of 21 for the purchase
and possession of alcohol. South Dakota, a state that had allowed 19-year-
olds to purchase beer containing up to 3.2% alcohol, sued to challenge the
o Williams described requirements:
1. The condition must promote "the general welfare;"
must be within Congressional authority to enact
Not restricted to specific powers under art. 1 sec 8.
2. The condition must be unambiguous;
If the feds are offering the states a K, must be clear what the
3. The conditions must be germane to the spending program
dissent says this is over and under inclusive (applies to all teens
even when not driving, and under inclusive because lots of
drunk drivers aren‘t under 21).
4. Conditions maust not be barred by other Const. provisions
5. may not coerce
o It‘s true that the states traditionally control alcohol laws, but the states don‘t
have to take the money.
So think about a Gun-Free School Zones Funding act, where 10% of
fed education funds on states‘ enacting statutes imposing
penalties for possession of guns within school zones
Falls under spending power – more leeway because states
can take or leave it
Germane because it makes kids feel safer at schools so
they can learn better
Not within commerce power because education is a
traditional state function
So if the 10th amendment limits the exercise of
the spending power, then it should have
that effect here because education is a
traditional state function.
Probably Congress has the power to enact.
Congress‘ War. Treaty, and Implied Foreign Affairs Powers
What is the scope of Congress‘ authority to enact domestic legislation under these
Woods v. Cloyd W. Miller Co., Douglas (1948), was a case in which the Supreme
Court of the United States held that the war powers of Congress extend beyond
the end of hostilities allowing them to remedy problems caused by a war after it
has ended. (rent control to deal with housing shortage).
o : Whether the war power authorizes Congress to enact housing and rent
What war power?
Article 1 sec 8: where powers are enumerated
Power to raise and support armies; declare war(?)
o Materials dedicated to war led to a housing shortage after the war ended and all
the men came home. So Congress instituted rent controls. Because they
can react to consequences of war.
o If the war power justifies post-war legislation, does that justification ever
For as long as the consequences exist. ―Years and years‖ after
hostilities have ceased.
o Douglas (in another case and a little in this one) points out that even though
Congress isn’t assigned by the const a national police power, the
power it has, along with the nec & proper clause, Congress may enact
legislation that looks a whole lot like police power legislation.
Missouri v. Holland, Holmes (1920)
o Treaty that regulates the hunting of international migratory fowl. State of Miss
said the treaty violated the 10th Amendment.
Ct said the Constitution expressly grants the federal government to
make treaties, so a treaty can‘t violate the 10th amendment.
o Q: whether the treaty power authorizes Congress to enact legislation not
otherwise within the scope of its Art. I powers.
There‘s an argument that this legislation, without the treaty, would not
be within the power of the Congress to enact.
If the treaty is valid there can be no dispute about the validity of the
statute under Article 1, Section 8, as a necessary and proper
means to execute the powers of the Government.
[a] treaty cannot be valid if it infringes the Constitution, that
there are limits, therefore, to the treaty-making power, and
that one such limit is that what an act of Congress could not
do unaided, in derogation of the powers reserved to the
States, a treaty cannot do.
So while the tenth amendment might be a limit to when Congress
might do under Art I powers, it‘s not a limit to what Congress
might do when giving affect to a treaty.
o The court upholds this act without regard to whether it‘s justified under some
other power of Congress
Holmes says it doesn‘t matter whether the power to regulate birds is a
state matter since it‘s a treaty
o Is there any subject matter beyond the scope of a treaty? If not, and if treaties
trump state law, what‘s left of federalism?
So if it‘s something the fed could do but for the fact that it‘s something
within the state‘s power, then the fed can make a treaty about it.
o Whence comes congressional ―foreign affairs‖ power?
Under art II. § 2 cl. 2, the President ―Shall have power, by and
with the advice and consent of the senate to make treaties,
provided two thirds of the Senators present concur‖
Is a subject is within the scope of the foreign affairs power, is it beyond
the scope of state power to regulate? Global warming?
The Dormant Commerce Clause
State and local laws are unconstitutional if they place an undue burden on
interstate commerce. The constitution doesn‘t expressly state this, instead, the
concept is implied by the powers granted to Congress in Article I § 8.
o If Congress has legislated on the issue, see pre-emption below.
o If not, (i.e. commerce power lies dormant) state/local law can still be
unconstitutional if the legislation creates an undue burden.
o Justification for Dormant Commerce Clause:
States and citizens should have recourse when harmed. But there is no
recourse when the citizens are from other states because they
have no representation. McCulloch v Maryland.
Historical Support: Framers intended to prevent state laws that
interfered with interstate commerce. During the Constitutional
Convention of 1787, the Framers wanted to do away with the
problems of states charging other states for transportation of
goods through the state.
o Arguments against the Dormant Commerce Clause: textualism
If framers were really concerned, why didn‘t they include language that
prevents states from interfering with interstate commerce? None
of the restrictions expressed in Article I § 10 of the Constitution
articulate a restraint on state interference with interstate
commerce. Thomas and Scalia have argued this.
But Jackson (an other defenders say) it‘d be impossible for
Congress to individually review every law that might
interfere with interstate commerce.
Gibbons v. Ogden Marshall again – commerce is more than traffic, it is intercourse.
This includes navigation. So Congress can regulate the waters of NY.
o Implied that Congress‘ commerce power is exclusive. But drew a distinction
between a state‘s police power and a state exercising federal power over
Assumes the distinction between police and commerce power is clear
and separate. So what about when legislation is adopted under
police power but unduly burdens interstate commerce? (see
Cooley v. Board of Wardens (Curtis)
o State law required boats leaving Philly to hire a local captain. Ct said this
doesn‘t violate commerce clause. Congress has legislated issues about
pilots, but intends for states to regulate pilots.
o The PA law, being a regulation of navigation, is a regulation of commerce.
Why then, is it not inconsistent with the exclusive power of Congress to
No Fed legislation inconsistent w/ State law
There is a Fed law, made by framers of const, that explicitly allows
o States don‘t have power to regulate interstate commerce. Ct says Cooley
doesn‘t conflict with this because PA is exercising police power, not
commerce power. This is why it’s important to understand what the
basis of the ordinance. Here, it‘s to keep boats safe.
When Congress is exercising its commerce power to regulate
commerce, it‘s no longer dormant
o When there’s an overlap between state police power and congress’
commerce power . . .See slide 3 from 10/27
When it’s indirect, the legislation will be upheld
When it’s direct (the state is trying to exercise a commerce power)
it won’t be upheld
BUT the court has since abandoned this reasoning, because it’s too
hard to distinguish between direct and indirect.
Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520
o Illinois wanted required mud guards instead of mud flaps. Trucking company
objected, didn‘t want to have to use 2 sets of equipment. Court considered
whether one State could prescribe standards for interstate carriers that
would conflict with the standards of another State, making it necessary,
say, for an interstate carrier to shift its cargo to differently designed
vehicles once another state line was reached.
Ct explained: The various exercises by the States of their police power
stand, however, on an equal footing. All are entitled to the same
presumption of validity when challenged under the Due Process
Clause of the Fourteenth Amendment. . . . A State which insists
on a design out of line with the requirements of almost all the
other States may sometimes place a great burden of delay and
inconvenience on those interstate motor carriers entering or
crossing its territory. Such a new safety device—out of line with
the requirements of the other States—may be so compelling that
the innovating State need not be the one to give way. But the
present showing—balanced against the clear burden on
commerce—is far too inconclusive to make this mudguard meet
We deal not with absolutes but with questions of degree. The state
legislatures plainly have great leeway in providing safety
regulations for all vehicles—interstate as well as local. Our
decisions so hold. Yet the heavy burden which the Illinois
mudguard law places on the interstate movement of trucks and
trailers seems to us to pass the permissible limits even for safety
Wiseman says: if anything is subject to local control, surely it‘s
highway safety. Why is IL‘s mudflap regulation impermissible
under the (Dormant) Commerce Clause.
It’s an undue burden on interstate hauling. It‘s a
nondiscriminatory regulation of commerce in legitimate
exercise of state police power (safety) but its burden on
commerce is so extreme that it‘s not enough to overwhelm
Pike v. Brace Church, Inc. ―where the statute regulates evenhandedly to effecuate a
legitmate local public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.‖ (balancing test)
But Scalia dissented. Gives the court discretion because there‘s no
standard to compare burdens to benefits. Comparing two
Laws not facially discriminatory are presumptively valid. Bibb.
But facially discriminatory laws are another story.
o If the law is facially discriminatory, the law is presumptively protectionist.
Protectionist laws conflict with the intent of the dormant commerce clause
and are therefore invalid. This presumption is rebuttable. It is not enough
to simply claim a police power to avoid this invalid status. The police
power must be sufficiently weighted to justify interference (even
substantial interference) in order to not be invalid. For example, Maine
Philadelphia v NJ
o Where state tried to prohibit importing waste from other states.
o 1. Item of commerce?
o 2. Against whom does it discriminate?
Out of state waste producers.
o 3. What‘s the effect on the market?
Increases the costs of disposal
o 4. What evil is trying to be avoided?
NJ is worried about running out of room
Ct is not persuaded by this because there‘s no difference between
this concern for NJ and this concern for any other state. NJ is
trying to isolate itself from a problem that all states face. Ct
says this isn‘t like fish bait where out of state bait is
dangerous. Discriminatory effect on interstate commerce
makes the legislation invalid under the dormant commerce
clause. Otherwise it‘d be a legitimate exercise of police
o Rehnquist’s dissent
Rehnquist's dissent says this is legitimate ex of police power and
should be upheld regardless of its effect on state's commerce.
Would defer to judgment of NJ state legislature that this is indeed
a health regulation.
C&A Carbone, Inc v. Clarkstown
o municipality builds a process plant, requires people to dispose waste in this
privately owned facility which after 5 years of operation the municipality
will buy for a dollar. Expensive to dispose of waste here. purpose of
commerce clause is to limit state's ability for economic protectionism. Ct
says this is especially bad because there's a monopoly.
o the central rational for the rule against discrimination is to prohibit state or
municipal laws whose object is local economic protectionism...
discriminating laws that uphold local interest are per se invalid save
for a narrow class of cases in which the municipality can demonstrate
under rigorous scrutiny that it has no other means to advance the
legitimate local interest. This is like the Maine case. So if there are
other ways to do it, no good. Court does have to be deferential to state
legislature as to what is a legitimate state purpose.
o Ct looks at the effects of the regulation to determine if the effects are
United Haulers Ass‘n v. Oneida-Kerkimer Solid Waste Mgmt Auth.
o Only difference here is that the monopoly is granted to a public entity.
o So same discriminatory effects as Carbone case. - why is that okay when public
monopoly? Because waste disposal is a traditional state function? This
case isn't characterized as a market participant case but could have been.
There is a market participant exception to the commerce clause - to the
extent the gov't is participating in a market rather than regulating, can
"participate" in a way that works to its own favor. Can't regulate to
promote local business, can participate to promote local business. Why? Q
is whether the participation by the gov't is discriminatory in the requisit
sense. Because as a participant in the market, it can participate as
aggressively as it'd like. (but it does seem to have an unfair advantage).
o Alito dissenting, argues the ordinance is discriminatory. Ordinance allows the
state to regulate the market in favor of the state. State can only be
discriminatory as a market participant, not regulator.
The modern Marvels
A state law which, on its face, discriminates against out of state business is (almost) per
Facially neutral state legislation with an impermissibly protectionist purpose or effect is
Facially neutral state legislation which imposes an excessive burden on interstate
commerce compared with its local benefits is invalid (one of many ubiquitous
balancing tests in modern constitutional doctrine). Pike.
The market participant exception
The Market participant exception State can have an adverse effect on interstate
commerce when done as a state participant. Hughes.
o South Central Timber v Wunnicke – limits the scope of this exception, holding
that State businesses may favor in-state purchasers, but they may not
attach conditions to a sale that discriminate against interstate commerce.
How is the State‘s requirement of instate timber processing different
from MD‘s paying a bounty to instate scrap processors, or SD‘s
selling cement produced at its own plants, or Boston‘s requiring
city-funded projects to hire 50% local workers? (those are the 3
prior ―market participant‖ cases, cited at para. 21-23)
Ct says state can burden the market that it‘s participating in, but can‘t
go any further. Cannot regulate outside of the market in which it
is participating. The market must be narrowly defined. Here, the
court distinguished between a state regulating the ―initial
disposition of goods‖ in a market where the state is a participant,
and ―restrictions on dispositions subsequent to the goods coming
to rest in private hands.‖
Was United Haulers a market participant case? Or did it create new, ―gov‘t function‖
o If the effects of state legislation on commerce are direct, can‘t do that. That
belongs to congress.
o But if indirect, it‘s police power, and that‘s okay. Regardless of effect on
This is the police power exception.
o Even though the court has rejected the direct/indirect jazz . . .
Dept of Rev of KY v. Davis
o Is a stae tax imposed on income realized only from out-of-state bonds
On its face, discriminates against out of state income
o Is this case a simple application of the market participant exception?
o In what market is the state participating
The bond market. It‘s trying to create a market environment favorable
to its own commodities in that market, like any other market
Ct says market participant exception is broader than police power
exception. But PP exception is pretty darn big.
o In a market the state regulates, state can act as a participant and regulate to its
Just can‘t regulate the downstream product.
So like, if there‘s a cantaloupe market, state can‘t regulate it in a
discriminatory way. But if state starts selling cantaloupes, then
it‘s a participant and it can regulate.
o Ct seems to have created a police power exception to the commerce clause. If
the gov‘t is pursuing a legitimate PP purpose, whatever its indirect effect
on the market may be is okay.
o Granholm v Heald
Is there any question that the states‘ regulations discriminate against
out-of-state wineries? Does that per se invalidate the regulations?
This case made for interesting alignments of Justices.
Not per se invalid just because it discriminates, but if the
discrimination isn‘t protectionist, but is pursuing some other
substantially important goal, what‘s the state‘s claimed
Why does the 21st amendment not authorize states to discriminate
against out-of-state distributors of alcohol?
There‘s a difference between the 21st amendment and equal
protection clause and the 21st amendment and the dormant
Since Congress can authorize the states to violate the
dormant commerce clause
The Dormant Commerce Clause – Doctrine Summarized
Does the challenged state or local regulation discriminate against out of state
o If so
On it’s face: almost per se invalid.
In purpose or effect? It depends!
o If not:
Whether valid or not turns on the Pike balance: burden on
interstate commerce ―excessive‖ in comparison to the local
If state acts with congressional approval, or is a market participant,
the regulation is not subject to Dormant Commerce Clause
invalidity; not is it when the government is performing a
gov’t function in pursuit of a legitimate (non-protectionist_
police power purpose.) So if legit police purpose, no need for
balancing test. So on exam maybe go through all If so/if not
and then dissent should be, ―no, police power, no need‖
Exam: there’s this rule and on the other hand there’s that rule and
some judges think this and others that.
Kassel v. Consolidated Freightways Corp
o Where Ct declared an Iowa ban on 65 ‗ double trailers unconstitutional. Ct held
the burden on interstate commerce was substantial.
o How would this case be decided under current doctrine as just summarized?
Not discriminatory because the prohibition on the use of 65 ft trucks
applies to any truck driving in Iowa, not just out of state truckers
(applies to in state truckers as well)
Only state in US that imposes the restriction.
Similar to mudflaps because:
Iowa is saying they‘re safer, but there‘s less evidence of safety
Purpose: highway safety
Why is the court not deferential to legislative judgment
(normally is if safety is claimed purpose)
(maybe it fails a balancing test?)
Privileges & Immunities Clause
Art. IV §2 states: ―The citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several states.‖
o This entitlement is enforceable against the states. Think – who might deny these
privileges and immunities?
The states, because they can deny privileges and immunities of the
citizens in their respective states.
Companion clause in the 14th amendment section I discusses privileges
o Is it susceptible to Congressional enforcement?
1983 claim when Cons. Rights have been violated.
To determine this, go to the necessary and proper clause: Congress has
the power to make all laws necessary and proper . . . Doesn‘t
speak to any limitations on the states.
o White v. Mass for state projects, state has to hire at least 50% city residents.
this is arguably discriminatory on its face. BUT the Court had recently
announced the market participant exception.
o United Building and Construction this time 40% requirement.
City says this is a local regulation not a state regulation. Because the
privileges and immunities clause is addressed to states (though it
doesn‘t actually say that), P&I doesn‘t apply. Ct doesn‘t buy it,
says local gov‘t is empowered by state gov‘t. Power delegated by
the state gov‘t, so even if the P*I clause restricts what states may
do, municipalities are state actors.
Wiseman says P&I applies to actors who could deny the P&I.
The citizens outside of Newark are deterred from traveling to Camden
because they have less of a chance of getting a job under public
Is a privilege or immunity burdened by the ordinance?
1. Is there a right to public work? No.
but the court find a right to a pursuit of common calling,
profession, or work.
Only on the issues that bear upon the vitality of a
―nation as a single identity‖ must the gov’t
o This limits the state‘s ability to discriminate against out of state citizens.
Discrimination against out of state resident’s ability to earn a
livelihood will only be permitted if the discrimination is substantially
related to achieving a substantial state interest. Clause only applies to
citizens, not corporations.
o Dormant commerce clause and privileges and immunities clause overlap
because both can challenge state laws that discriminate against out of state
Dormant commerce clause can be used to challenge state laws that
unduly burden interstate commerce, while privileges and
immunities can be used only when the statute discriminates
against out of state citizens.
There is no market participant exception to the P&I clause
Corporations and aliens can sue under dormant commerce clause, priv
& immunities only applies to citizens.
o 2 questions:
1. Has the state discriminated against out-of-staters with regard to
privileges and immunities that is accords its own citizens?
What are the privileges and immunities of citizenship?
Look for discrimination denying Constitutional rights and
economic activities (livelihood).
2. If so, is there a sufficient justification for the discrimination?
o Market participant exception does not apply to this clause.
o What are P&Is of citizenship
College tuition? – can charge more for out of state residents
Divorce – ok
Law license – ok
Hunting license -
o Connection between P&I and commerce clause?
They mutually reinforce eachother
P&I only protects citizens
Congress may approve/allow dormant commerce clause violations (or
dormant commerce clause no longer dormant when states are
allowed to regulate interstate commerce), no such exception to
No market participant exception to P&I clause
o Blackman dissent says intra state discrimination doesn‘t violate P&I clause.
Conflict between state and fed law = state wins. Supremacy Clause.
Forms of preemption:
o Express Preemption
a federal statute expressly excempts state law (congress overrides
contrary state law or state law dealing with the same subject
matter is pre-empted. Justice Thomas only recognizes this kind of
o Implied preemption
although the Congressional legislation doesn't explicitly
say "X overrides state law" it occupies the field.
Then similar to express pre-emption works, any
state law is trumped.
Fed law hasn't occupied the field, but to the extent the
state law is in conflict with it, the state law is
2 kinds of Conflict
› the fed requirements and state
requirements are inconsistent
(comply with 1, violate the other.
Impossible to comply with both.)
And in such cases, Fed prevails.
› Compliance with the state law interferes
with achieving the purpose of the
o Wyeth v. Levine This is how these issues tend to come up. Producer
complies with Fed requirements, someone is hurt, files state claim based
partially on negligence. Producer responds state claims are pre-empted by
federal regulation with which producer has complied.
2 considerations for the Court‘s pre-emption jurisprudence:
1. What is the congressional purpose in imposing drug labeling
Consumer protection – seems like field pre-emption?
2. When Congress legislated in a field traditionally occupied by
the States, is it ―the clear and manifest purpose of Congress‖
to supersede the historic police powers of the states?
Clear statement rule. Where this is something the states
have traditionally legislated, the court won't
interfere to supersede a traditional exercise of state
power unless Congress expressly intends to do so.
Wyeth claims ―impossibility‖ defense
This is a legitimate defense, it would be an implied
conflict. But here, S is additional to the Fed
regulation and is likely to be approved by Fed.
And frustration of congressional purpose defense
No federal remedy, Congress is happy to rely on state
o Thomas concurs:
He says the ―purposes and objectives‖ pre-emption is too broad or
Thomas says should stay to the text of the statute, (textualism) don't
need to look into the history of case law. He invokes the tenth
amendment, as Federalists are known to do. Cites Federalist
papers because he's an Originalist.
Thomas is concerned that the ―purposes and objectives‖ pre-emption
allows judges to impose their own policy judgments.
It comes down to what we want our judges to do. Do we want
our judges to just do their best to figure out what law is? If
so, Thomas would probably not approve because they'd have
to look at legislative history to resolve statutory ambiguity.
At this level, the Supreme Court is, to some degree making law
in interpreting/applying law because the Court is answering
questions that haven't been answered before.
State Taxation of interstate commerce
o Before we leave the Commerce Clause completely behind ... we have seen
that it has negative implications for state regulation; but may states
tax interstate commerce? Auto Transit Inc. v. Brady (1977, per
This case changes the approach to the state‘s taxation effect on
A state tax does not violate the commerce clause ―when the tax
is applied to an activity with a substantial nexus with the
taxing state, is fairly apportioned (not discriminating
against the entity being taxed) does not discriminate
against interstate commerce, and is fairly related to the
services provided by the state‖
We won‘t elaborate on these factors much.
A few of the a state shall not:
Ex post facto law
Enter into treaties
But (ONLY) with the permission of Congress
o All such provisions implicate federalism norms; those norms are arguably
Amend X: ―The powers not delegated to the US by the constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people‖
― . . .without the consent of Congress‖
Polar Tankers, Inc. v. City of Valdez (2009, per Breyer, J.) reminds us that forgotten
clauses of the Constitution remain viable! Justice Breyer's opinion for the
Court is also important for its interpretive method.
o No state shall, without the Consent of Congress, lay any Duty of Tonnage
Ct says we interpret the clause in light of the provision‘s original
This is interesting, because there‘s an argument that the
purpose of the Constitution is to account for issues that are
outside of the framer‘s immediate awareness. The
language invites an evolutionary interpretation.
Think of ―cruel and unusual‖ – this has changed over
time. So has the 4th amendment search and seizure
This opinion is textual, but not original. Textualism – what the
Constitution means. Originalism – what it meant.
Originalism is supposed to reduce disagreement, but
Originalist still disagree . . . so there‘s still
judicial interpretation to be done.
o Part of the point of the interstate commerce clause wasn‘t just to give
Congress the power to regulate, but to keep states from taking action
that‘d be mutually injurious: in this context, for example, the Court
seeks to “restrai[n] the states themselves from the exercise” of the
taxing power “injuriously to the interests of each other.”
o Why does the challenged tax violate the Tonnage Clause?
Reaches more than what the text of the legislation states because the
purpose is tax capacity, and the purpose of the Tonnage Clause
is to prevent that: the Court has said that the Clause, which
literally forbids a State to ―levy a duty or tax . . . graduated on
the tonnage,‖ must also forbid a State to ―effect the same
purpose by merely changing the ratio, and graduating it on the
number of masts, or of mariners, the size and power of the
steam-engine, or the number of passengers which she carries.‖
Id., at 458–459. A State cannot take what would otherwise
amount to a tax on the ship‘s capacity and evade the Clause by
calling that tax ―a charge on the owner or supercargo,‖ thereby
―justify[ing] this evasion of a great principle by producing a
dictionary or a dictum to prove that a ship-captain is not a
vessel, nor a supercargo an import.‖
This doesn‘t go beyond giving the text its original purpose.
But most originalists are textualists (regarding the original
text), and they‘re less willing to broaden the original text
with reference to purpose.
We saw Thomas‘ resistance to that in the last case in
the context of statutory interpretation. Thomas
said yes, the state labeling requirement doesn‘t
conflict with the Federal requirement and didn‘t
violate supremecy clause. But said that the
original purpose of the labeling agency was to do
___ . Thomas rejects this because he says it relies
on Congressional purpose.
He‘s a textualist when it comes to statutory
interpretation. He would say state
statutes are pre-empted if the text
supports it. As a textualist, he resists
interpretation in light of some broad
understanding of purpose.
Would the tax survive the Compete Auto commerce clause
Is it discriminatory against interstate commerce?
Mudflaps was a rare case, facially
nondiscriminatory but enormous
Here not discriminatory on its face, not
o Art I §10
No state shall, without the Consent of Congress, enter into any
agreement or Compact with another State‖
IS the proposed interstate compact to assign electoral votes to
the winner of the popular vote subject to congressional
approval? Is it likely to get it?
Are federalism norms implicated? Positively or negatively?
ate shall, without the Consent of Congress, enter into any
agreement or Compact with another State‖
IS the proposed interstate compact to assign electoral votes to
the winner of the popular vote subject to congressional
approval? Is it likely to get it?
Are federalism norms implicated? Positively or negatively?