Constitutional Law I
Professor Gordon Young
I. US Constitution
The Constitution does not place duties on individuals; rather it doles out power:
Only 2 individual rights in the USC (not within the Bill of Rights) are:
1. No Bill of Attainders shall be passed – a bill of attainder is an adjudication of
guilt in a criminal case by legislature
2. No Ex Post Facto Laws shall be passed – an ex post facto law is a law that
criminalizes something done before law came into existence; an act that was innocent
when done, cannot now be criminalized.
Art I § 9 gives powers to federal govt
Art II § 10 gives individual rights against states:
-no state can pass B/A or EPF or impair power of contract
Why would states sign USC w/o a BOR? States got reserve power and Federal govt is of
limited powers – limited to powers granted in USC; this limits the „damage‟ the fed govt
can do and states did not think it would be a huge deal to sign the USC w/o BOR.
Which clause gives the USC most power? Commerce clause; was originally interpreted
very broadly. However, in 1995 the USSC limited this power (Lopez v. US)
Why not limit the states power to harm its citizens?
-states had own Constitutions
-states were sovereign
-people in state legislatures were also ones who approved USC. So framers were
not worried about people doing anything harmful to state citizens b/c the framers would
be doing it to themselves. No need to have anything in USC to limit what states could do
to citizens b/c people ratifying the USC were the state legislators and they would not do
anything bad to themselves!
Access to (barriers) USSC and Fed District Court:
Special restrictions by
Judicial Political Sovereign Congress
Review Standing Question Immunity §1257 USSC
Fed Dist Ct
Special restrictions by
II Judicial Review – Marbury v. Madison
History: 1797-1801 John Adams is Federalist President.
Feb 1801 - close election – Jefferson and Burr tie House elects Jefferson
March 2, 1801 – Adams elects justices of peace
March 3, 1801 – Senate confirms apptmts; Jim Marshall delivers most
March 4, 1801 Jim Marshall left a few commissions on desk of president
Jefferson has been inaugurated and refuses to send off the commissions.
Marbury brings suit essentially saying “I was made justice of peace, all happened before
Jefferson was president. I am entitled to my office.” Wants USSC to force Jefferson to
recognize him as a justice of the peace.
Generally, the case stands for the holding that the USSC has the authority and duty to
declare a congressional statute unconstitutional if the Court believes it violates the USC.
General Framework of Case:
1. Does court conclude Marbury had a right to his commission? Yes
2. Should court provide a judicial remedy? Yes
3. What is the remedy sought? Is writ of mandamus an appropriate
a.) Writ is appropriate b/c it does compel someone to do
b.) Can issue a writ to a cabinet officer? Or is there executive
immunity? No, there is no executive immunity.
c.) Does USSC have jurisdiction to be the court issuing the
writ? (this is the BIG issue in the case)
1) Does statute on its own (without regard to USC)
purport to give the court jurisdiction? Yes
2) Is the statute that gives the USSC this jurisdiction
d.) When the statute and Constitution are inconsistent, which
does the court follow?
1. Is there a vested legal right? Does Marbury have a right to his
Yes, b/c president appointed him, signed the commission, was approved by
Senate and seal of US on it; this is a completed commission Marbury has a vested
Is delivery necessary? USSC could have taken a view similar to that in
contracts, that no document is effective unless “signed, sealed and DELIVERED” USSC
concludes delivery is not necessary but gives no reason as to why. (**note** had Court
found that delivery was necessary the case would have been over here; J. Marshall
decides e/ issue in a manner that eventually allows him to decide upon the Court‟s
2. Does Marbury get a legal remedy? Should Court provide a remedy?
Court equivocates between deciding where the line is that separates acts that
affect rights and political acts that may injure but not affect rights.
ex: President is deciding btw A and B for a job. If picks A, B is injured
and v.v. Can the one not picked sue? No, this is a discretionary political act and have no
remedy in court.
Court twists analysis, basically there is a continuum
No Injury Interests but Interests; Constit. Rts; Rights in
are not generally strong rights strongest
legally legally but can be sense; life
recognized; recognized blocked by liberty and
are in greater but can be sovereign property
world appealed by immunity
3. If Marbury has a right, can he use writ of mandamus to vindicate it? Is
the remedy sought, application to the USSC to issue writ, appropriate?
a) What can a writ be used for? Goes to govt officer to compel them to
perform a non-discretionary duty (i.e. if have no clear legal requirement placed by law on
officer and officer refuses to perform requirement, then someone with standing can use a
writ of mandamus to compel that person to oblige by their duty – today this is usually
referred to as an injunction.)
b) Can the writ be issued to an executive officer? Does the writ,
which would otherwise be appropriate, run into executive immunity? No
immunity if affect an individual by affecting their rights. If injured individual by
affecting their right, then cannot let executive use immunity to shield themselves from
suit. If an executive decision does NOT affect individual rights, then court cannot intrude
into the cabinet.
c) Does the USSC have authority to issue the writ? Judiciary Act of
1789 gave the court original jurisdiction to hear the case. (bottom pg 6-7) Act says that
the USSC has the jurisdiction to issue writs of mandamus to officers.
1) Does statute, on its own, purport to give the Court
jurisdiction? Yes, it says right to issue writs of mandamus falls within original
jurisdiction of USSC; since Marbury petitioned directly to USSC, the case is
within original jurisdiction.
Problem with this is that the USC, in Art. III, lays out the original
jurisdiction of USSC and limits it to only cases affecting diplomats, cases
between 2 states, and between state A and citizen of state B. Do we see right to
hear, in its original jurisdiction, cases involving the issuance of writs of
mandamus? NO! So have a statue saying Court can do something USC does not
say it can. Which do we give deference to?
2) Is the statute unconstitutional? Yes.
Given that statute is unconstitutional, is such a statute that is
inconsistent with the USC valid?
Scope of Judiciary Act
What the USC prohibits (it is unconstitutional)
If @ Y are outside scope (win)
If @ X are inside scope (lose)
Y X Z What if @ Z? Win even though are
within scope of legislation b/c
legisl. can‟t do it b/c USC prohibits it.
Marshall places case @ Z!!!
Original v. Appellate Jurisdiction
Get to USSC as original jurisdiction
Get to USSC as appellate jurisdiction
What if Marbury had read statute as giving jurisdiction over issuance of writs of
mandamus to the USSC‟s appellate jurisdiction? Case would be dismissed on statutory
grounds; court could not hear it b/c Marbury petitioned directly to USSC.
Instead, court reads Act as giving USSC original jurisdiction. The problem with
interpreting the statute this way is that according to the Constitution only certain cases get
original jurisdiction; and the petition for writ is NOT one of the cases enumerated.
Art III §1: gives judicial power to USSC and lower courts as congress “may
from time to time establish”
- Congress has power to create lower federal courts. “May” means it is not
-USSC‟s appellate jurisdiction would be pointless if Congress had not created the
lower federal courts.
Why did the framers give Congress this potential power? Why not say a definite yes or
no? Why equivocate with „may?‟
Big v. Little states:
Big states: wanted Constitution to mandate lower federal courts
Little states: wanted only state courts, so all cases go to USSC through it‟s
Why the division? B/c Congress decides the confirmation of federal
judges etc. and big states have more representatives so would/might have more power.
Using „may‟ was the method of compromise.
Art III § 2: Lays out jurisdiction of Court (for class only list 7 of them):
This is exclusive list
1. cases arising under Constitution, laws of US, treaties of all jurisdiction
2. cases between citizens of different states USSC can have.
3. admirality jurisdiction Congress can‟t make
4. US as a party statute adding to list
5. cases affecting diplomats etc. but Court does not
6. between 2+ states get any of these if
7. between state A and citizen of state B Congress doesn‟t
give it to them.
Congress can give 5, 6, 7 to original jurisdiction of USSC
Congress can give 1, 2, 3, 4 to appellate jurisdiction of USSC
Art III §2
Congress acts as a filter;
must pass 1-7 on to courts
Original Lower Fed.
Jurisdiction 5 Courts/State
Where does Marbury v. Madison fall? Not in 5, 6, or 7 USSC cannot have original
jurisdiction over the case. BUT case did go directly to the USSC so the Court is hearing
it as a trial court and is hearing it under original jurisdiction.
Marshall argues, there is a mandatory division between the two types of jurisdiction that
was established by the Constitution, it cannot be altered.
Young says that Marshall had some leeway; could have looked at last sentence of Art III which say “with such exceptions as the
Congress shall make” and said this was an allowance for Congress to change which courts get what jurisdiction (i.e. could put 5, 6, 7 into
appellate jurisdiction and could put 1, 2, 3, 4 into original jurisdiction)
However, b/c Marshall takes a hardliner approach get to conclusion that the Judiciary Act
d.) Does the court comply with statute or Constitution when the two
are inconsistent? (Does the Court have the power to strike down federal law
that is inconsistent with the Constitution?) Marshall says Yes. Makes a
prudential argument basically saying to read the Constitution one way is so absurd that it
does not make sense to read it that way. The purpose of a written constitution is to
establish a paramount law thus any legislation contrary to the USC must be void.
Marshall cites 3 pieces of text in USC to support his position:
1. Supremacy Clause – the supreme law of the land is a hierarchy;
first is the Constitution
second are laws made in pursuance of Constitution
third are treaties made under authority of US
So why does this mean that through judicial review the Court is allowed to strike
down acts of Congress that are inconsistent with USC? B/c USC says “laws made in
pursuance of Constitution” are supreme law of the land. Thus implying any laws made
contrary to Constitution are not supreme and hence can be struck down by a law that is
Rebut #1: US existed under Articles of Confederation prior to USC. Were treaties made under AOC that cannot be
repudiated – these are still supreme law of the land. However, only statutes made in pursuance and hence after the Constitution are
supreme law of the land.
If look at it like this there is no hierarchy between Constitution and statutes because we can read “in pursuance” simply to
mean AFTER Constitution came into existence rather than as meaning statutes are inferior to Constitution.
2. “Oath” article (Art. VI) – under the oath, are bound to uphold the Constitution.
Why would they take an oath if they are not free to use the Constitution to arrive at
Rebut #2: But both the Senate and HOR take oath to uphold the Constitution – so can’t we assume that the laws they pass
will always be Constitutional?
3. Art III Judiciary Clause – Court is given judicial power that extends to all laws
“arising under” the Constitution this implies that the USC is an issue between parties
in a suit. Doesn‟t reviewing a law under the Constitution entail looking at/interpreting
Rebut #3: Sure reviewing a law entails looking at Constitution, but only laws the court can strike down are state laws not
federal ones. This interpretation still leaves this clause with meaning.
Holding in Marbury v. Madison:
Marshall concludes that the Court has the power to strike down Acts of Congress
which are inconsistent with the Constitution!!! There is no presumption of
constitutionality when Congress passes an Act!
III. Standing – Warth v. Seldin
Art III – requires a “case or controversy.” This requirement prevents the court from
deciding an abstract dispute/issue of law; must be a live “case or controversy” for a court
to decide on a case. (this leads to standing requirement – if no standing court will not
hear case b/c otherwise would be deciding law in the abstract)
How do get standing? The analysis is made up of two parts:
A. Consitutional Standing Requirment
1. Is harm something that happened/will happen? Is it an „injury in fact?‟
3. Not only are you injured, but the court must be able to redress your
injury/remedy your situation. If court cannot redress it won‟t take the case
otherwise it would just be giving an „advisory opinion‟ and that is not the court‟s
B. Prudential Requirments – court chose to impose these requirments
4. Normally cannot bring a claim that is a generalized grievance
5. Generally must assert your own rights not some 3rd parties rights
Warth v. Seldin
-s suing zoning board and its members saying the ordinance prevented low
income persons and minorities from residing in Penfield in violation of statutory and
-s claiming have Constitutional and statutory rights NOT to have zooming
structured in a way to avoid low income people from living in a place
-Remedy is seeking? Not damages, wanted an injunction and declaratory jment
Claim #1 – Oritz, Reyes, Sinkler & Broadnax claim they have a right not to have
zoning structured in a way that makes it impossible for them to live in a particular
community and that their rights were injured; personally harmed. Not saying that they
are representing a class of people who have this right. ARE saying “right exists, we have
it, it was injured – hear our case.”
**NOTE** Court never decides that such a right exists!!!
Court says that the injury here is an indirect injury to the who is asserting a right. This
is OK, can have the right holder be harmed indirectly from law. In other words, the right
holder can be harmed by the actions of a third party who the rule directly applies to, so
long as it is the rule that is causing the third party to act in the way that hurts the right
Govt of Penfield developers right holders (?)*
* are questionable right holders b/c don‟t know if such a right exists b/c court never rules
Govt puts zoning restriction on developers, which hurts the /rt holders (?)
s need to show that without zoning ordinance they would have/could have
lived in Penfield. How can show this?
-best evidence is proof that the builders would have built in Penfield but
for the zoning ordinance --- need proposals of builders
- problem with getting this evidence is that builders would never go
through costs of making proposals b/c of the zoning ordinances. Z.O.‟s prevent builder
from even proposing plans to build there.
Court says: Don‟t know if builders would have ever built in Penfield
Therefore find that s lack standing
Claim #2: Claim by Rochester tax payers.
Govt of Penfield developers right holders (?)
Move to Rochester
Rochester Tax Payers
s (tax payers) argue: Govt places restrictions on developers which prevents low income
and minority right holders (?) from living in Penfield. These people move to Rochester,
and the city of Rochester now has to finance more low-income housing, this raises the tax
rates in Rochester and adversely affects Rochester tax payers (s).
Court says: this is a THIRD PARTY RIGHT – fails Prudential Test
It is the low income/minority people who have right (?), Rochester tax
payers are claiming were harmed by a violation of low income/minority persons‟ rights.
The tax payers are not themselves asserting any Constitutional rights.
Indirect injury to asserting Constitutional right v. 3rd party rights
Govt 3rd party/non right holder /right holder (?)
Here, is claiming that their rights have been injured by the governmental restriction on
the 3rd party who is not claiming any rights.
right holder and injured party are SAME person
Third party rights:
Govt 3rd party/ alleged rights holder
Here, is suing as a result of harm that injures but violates someone else‟s
right holder and injured party suing are DIFFERENT people
**NOTE** It is generally fatal for a 3rd party to assert rights of another party
ex: Dr. performs abortions, complains about restrictions on them. Does not claim he has
a right to perform them, claims his patient has a right to have one.
govt 3rd party//Doctors all rights holders/women
Constitutional Standing Test: Dr. is injured by govt, can be redressed –meet min rqrmts
Prudential Standing Test: it is not Dr‟s right that is violated – asserting someone else‟s
rights; Dr. will have to make argument b/c it is within judge‟s discretion to hear/not hear
Why should Court make an exception to usual rule that there is no 3rd party standing?
Dr./Patient relationship is special and Dr. should be able to assert patient rts
because in a case like this, abortion, patient may want to remain anonymous; PRIVACY
ex: racially restricted covenant and deed says “whoever possesses this property will not
sell to anyone other than caucasian.” Seller – white; neighbor – white; buyer – black
neighbor seller/ prospective buyer/rt holder
N sues S for proposing to enter into K with PB which is a breach of K.
S says enforcement of covenant violates 14th Amendment EPC; it is not S‟s right b/c he is
leaving/has no right to live in racially integrated neighborhood
**NOTE** it is not covenant that violates EPC; EPC is violated when N uses state courts
to enforce the racially restrictive covenant
Constitutional Standing Test: S is injured and it is redressable
Prudential Standing Test: Why should allow court to allow exception to usual rule that
there is no 3rd party standing?
only constitutional violation occurs when try to enforce racially restrictive
covenant, when enforce it do it against S not PB so it is hard for PB to assert anything.
Claim #3: Metro Act claims
1. that it‟s members, who are Rochester tax payers, are adversely affected
by the govt restriction on the builders in Penfield for same reason as in claim#2
Court says not a valid claim, cannot assert 3rd party rights;
same reasoning as in claim#2
2. Metro Act‟s members who live in Penfield are being prevented from
living in a racially integrated community
Court says no exception to general rule of no 3rd party standing
is granted here.
Govt developers low income/minority/rt hlders
/ MA‟s members seeking mixed community
argues: Govt puts restriction on developers which causes right holders to live outside
of Penfield and this injures MA‟s members who live in Penfield b/c they cannot live in
Court says: s did not claim had constitutional rights; if they had alleged the
Constitution acts to protect BOTH the low income right holders AND those seeking to
live in a mixed community then the court would have had to interpret the Constitutional
provision and the s here could NOT have been thrown out on 3rd party standing
by not alleging they had constitutional rights, the court was able to throw them
out as asserting 3rd party rights; whole basis for throwing someone out for asserting 3rd
party rights is a finding on the merits that they do not have a constitutional right or that
they did not assert it!!
Standing – General Framework:
A. Injury – can go from concrete to intangible so long as its an injury
the court will recognize as real.
-strong: govt taking life, liberty, property
-medium: violn of environmental law protecting parks in CA, and
are CA citizen (enough of an injury if are user of park or live near it; cannot
be redressed by general citizen suit)
B. Causation – plead facts show a substantial probability that some
Constitutional violation has caused injury (if it’s constitutional case); injury
occurred b/c of violation of law; must make initial showing of this in
complaint, can’t prove it later.
C. Redressability – if not asking for remedy that will make a
difference court will not hear case; court does not sit to make abstract
judgments --- must be a live case in controversy!!
-if suing for damages: clear case of redressability
-if suing for injunction: not so clear unless will be injured in
same way at some point in the future
**NOTE** to get to II, must show that its plausible that violation of a right
produced an injury that can be redressed – need not be your right
- must be your injury
A. Generally no 3rd party standing
-can deal with barrier set by II(A) by arguing:
1) constitutional provision you are alleging was violated
does give you () rights as well! It’s not really a 3rd party right!
2)if are asserting a 3rd party right must convince court to
make an exception to general rule that there is no 3rd party standing by:
a) close relationship between right holder and
injured (ex: dr/patient; buyer/seller)
b) impediments to right holder asserting own right
(ex: NAACP v Alabama – 3rd party would lose right if had
to assert it themselves; Roe v Wade – confidentiality)
c) client () has congruence in interest, is a good
representative right holder
(ex: dr/women – both want abortion ban lifted; dr has
patients interest at heart)
B. Generally no generalized grievances
- can deal with this barrier set by II(B) by arguing over the
scope of the class; always try and narrow the class so your client doesn’t fit
** To get standing must win both I and II**
**Point of having a standing requirment??** B/c Art III requires a “case in
controversy.” Court sits to hear real cases that it can resolve.
-requirement ensures that the party before the court has an interest
in vigorously litigating the constitutional issue. Court feels that it will get
better arguments from someone with concrete interest in litigation.
-deciding an issue in abstract is not as rich of a process; problems are
more complex in real world than abstractly
-if no requirement at all, allowed advisory opinions – then one court
could decide all constitutional issues immediately. One court can make ALL
law within a few years – doesn’t really allow for change.
IV. Political Question – Baker v. Carr/Nixon v. US
The court has taken that stand that political questions are inappropriate for judicial
resolution. What constitutes a political question is unclear but the court seems to
emphasize a textually demonstrable constitutional commitment of the issue to a
coordinate political department.
Baker v. Carr - Opinion defines political questions as:
- all questions touching foreign police
- all advisory opinions
- questions involving issues constitutionally assigned to another branch of govt
- questions for which there is no judicially manageable standard for resolving.
Nixon v. US - Court declines to extend judicial review to the impeachment proceedings
of a federal judge for a number of reasons:
1) judicial review of what the Senate did may affect judge‟s perceptions of case
and introduce bias
2) impeachment is the legislature‟s check on judiciary
3) judicial review of impeachment impairs finality of decision
General Framework of Political Question Doctrine:
I. Is there a demonstrable constitutional commitment of the issue to
a coordinate branch of government?
II. IS there a lack of judicially discoverable and manageable
III. Are there any prudential governmental problems that would
occur if allow judicial review?
V. Barriers to USSC - §1257, §1254
State Court Fed District Court
Intermediate US Court of Appeals
State Supreme Court
Potential can go to state court – Art IV makes federal law Supreme Law of Land; state
courts have obligation to decide federal questions
If go to state court, can remove to federal court with §1441
Potential can go to federal district court on §1331 or §1332
Essentially says three things:
1) if a state court makes a final decision on a federal issue you can petition USSC.
2) doesn‟t have to be a judgment by the highest court of the state, just must be a
final judgment from the highest court of which a decision could be had.
ex: Louisville v. Thompson: T arrested for disorderly conduct in KY. Case went
to police court which is the first and last court available for such an offense. Does T
qualify for cert? YES, b/c the police court was the highest court from which a decision
could be had.
3) may be an independent and adequate state ground which will bar review
-ASK: did court decide a federal issue which is raised before us which if
incorrectly decided will change result – don‟t look to see if incorrectly decided, just look
to see if it will make a difference if it was incorrectly decided.
If in state court and federal statute challenged – if state court strikes down
federal statute then this is a mandatory appeal; USSC must hear it.
If in state court and state statute challenged – if state court says statute is
inconsistent with US Constitution this is a mandatory appeal; USSC must hear it.
If in state court and assert a federal right – state court‟s decision can be
appealed if get cert from USSC
hypo: B convicted of criticizing the government; have free speech clause in both state
and federal constitutions. Was statute B was convicted under in violation of state and
Outcome 1- If State Supreme Court finds statute constitutional under both state
and federal constitutions then ---- conviction of B stands
Can appeal to USSC? YES
Outcome 2 - If State Supreme Court finds statute unconstitutional under both state
and federal constitutions then ---- B not convicted
Can appeal to USSC? NO, court is powerless to take case; USSC will not
take case b/c there is no “adequate and independent state grounds;” can‟t tell state courts
what to do, so only issue USSC could address was federal constitutional issue – this
would not change outcome of the case so would only be an advisory opinion.
Outcome 3 - If State Supreme Court finds statute constitutional under federal
constitution only (unconstitutional under state constitution) ---- B still convicted
Can appeal to USSC? NO, court is powerless to take case; USSC cannot
tell state court what to do so would only be able to address federal issue and B would still
be convicted. Any USSC opinion would be an advisory opinion b/c no matter what
decided would make no difference to outcome of B‟s case – still convicted.
**NOTE** if one of last two outcomes the only way the USSC would take the case
would be if argued that the federal law pre-empts state law gives USSC power to hear
C. Cert Statute (pg 68)
This statute lists possible factors the Court may consider when determining whether to
grant a writ of cert. These factors will influence, but are not controlling, the Court‟s
1) If a US Court of Appeals has entered a decision in conflict with the
decision of another US COA on the same issue; or has decided an important federal
question in a way that conflicts with a decision by a state court of last resort.
2) A state court of last resort has decided an important federal question in
a way that conflicts with the decision of another state court of last resort or US COA.
3) A state court or US COA has decided an issue of federal law which has
not been decided by USSC yet, or decided a federal issue in a manner inconsistent with
USSC will rarely grant a writ of certiorari if the asserted error is:
1) erroneous factual findings
2) misapplication of a properly stated rule of law
**GY says that the cert statute seems to conflict with Marbury. B/c cert statute says
USSC can pick issues it wants to resolve; it is a policy making court. Whereas Marbury
says that court must decide constitutional issues to settle disputes between parties.
-Can reconcile this? The two are not completely at odds b/c still must have an
active suit between two people for USSC to hear case; so court cant do policy making
without an active “case or controversy.”
VI. Can Congress, by enacting special restrictions, limit access
to USSC? To Fed Courts? To State Courts?
Can Congress limit access to USSC?
Ex Parte McCardle: Post Civil-War; Lincoln passed Reconstruction Acts which
authorized fed troops to go to south and take over state governments until reconstruction
M in military custody by federal troops; M gets to federal court
with habeas corpus Feb 8, 1867 Act (part A) authorizes someone held in violation of
constitution to get to federal court.
M complains that the Reconstruction Acts are unconstitutional,
states are supposed to be separate entities and this type of federal custody of state
governments violates the Constitution.
Trial court – M loses on merits; Reconstruction Acts are constit.
M appeals and way to reach USSC from a federal district court was
Feb 8, 1867 Act (part B); but during his appeal Congress passed the 1868 Act which
repealed section B of the 1867 Act thereby cutting off appellate path to USSC.
USSC dismisses case for lack of jurisdiction
“other” 1867 Act (part B)
Federal Court Feb 8, 1867 Act (part A)
How did Congress have power to pass the 1868 Act which took away part of the USSCs
appellate jurisdiction which was granted to it in the USC? B/c of the “exceptions and
Regulations Clause” in Art 3 §2 cl 2.
USSC upheld Congress‟s 1868 Act which took away part of the jurisdictional reach of
USSC. But how far does the decision in McCardle go? Does it say that Congress‟s
power to cut USSC appellate jurisdiction is absolute?
1) “exception” means that something must be left; therefore Congress can
not completely strip USSC of all of the appellate jurisdiction granted to it by USC.
2) Art 3 §2 cl 2 allows housekeeping regulations but cannot allow
Congress to cut USSC‟s essential, fundamental judicial functions; cannot cut heart/core
-heart is cases involving constitutional rights
-heart of heart is cases involving constitutional rights coming from states
3) last paragraph of case indicates that M has other ways to access USSC,
such that there are really two ladders to get to USSC both 1867 Act (part B) and “other.”
Congress repealed path M used, and that was OK since he had “other” way he could have
**B/c of this “other” path, M does not stand as a clear holding that
Congress has the power to eliminate a s ONLY path to the USSC**
Which way does M case go? No one is sure, but these are two possibilities:
-If M case was premised on the fact that there WAS “other” way available then it
IS NOT a strong holding saying that Congress can eliminate all access to USSC
-If M case was premised on the fact that there was NO “other” way available then
it IS a strong holding saying that Congress can eliminate all access to USSC
**FOR EXAM** M has strong statements suggesting that Congress can eliminate any
appellate jurisdiction; but does not say that Congress can eliminate the ONLY path.
What about limiting access to Fed Courts?
Prior to 1980: YES Congress can limit access to Fed Courts b/c Congress created them.
Congress did not have to create Fed Courts and can give them as much or as little
jurisdiction as it wants; could have given them no jurisdiction at all by not even creating
them to begin with!
Post 1980: MAYBE. Johnson v. Robinson: was denied army retirement benefits on
grounds that only those who actually served were entitled. was in military but not
active duty b/c of religious reasons. Argued had a 14th A right to be treated equally to
those on active duty; lost at court.
Statute said that decisions of army are final and cannot be appealed.
USSC skirted it‟s way around having to decide whether Congress could pass a
statute that limited appellate jurisdiction of federal courts… USSC said that statute does
not apply to constitutional issues.
**So post 1980 we are not sure if Congress may or may not bar access to Fed courts.**
Court would probably try to interpret statute in a way that would allow into court.
What about limiting access to State Courts?
GY says: congress probably cannot close state courts from hearing constitutional claims.
-Exceptions and Regulations clause does not apply to state courts
-Congress did/does not create them and cant argue it has right to limit jurisd.
VII. The boundaries of federal power
McCulloch v. Maryland: Congress passed a statute incorporating a federal
bank in Maryland.
Maryland passed a statute saying that if a bank in MD is not created by
MD legislature than it gets taxed. MD statute has two enforcement mechanisms:
1) state can sue as and collect unpaid taxes
2) any private party can sue as and gets the money (this party
would be called a private attorney general)
So state, through deputized cashier/pvt citizen brings suit
McCulloch argues that federal banks are immune from state taxes, and
that federal banks cannot be sued
State argues that federal govt cannot make banks US bank in MD is
not a federal bank; so it does not matter that fed banks are immune from suit b/c this bank
is not a federal bank!! Furthermore, even if bank is a fed bank, MD has right to tax it,
federal instrumentalities are not immune from state taxes.
Court: McCulloch loses, appeal to USSC
There are two main issues to this case:
I. Can the federal government create a bank? YES
**GET NOTES 2/15**
II. Given the bank is a valid federal instrumentality, can states tax it?
States and federal government both have power to tax – concurrent tax powers. There are
both express and implied limitations/restrictions on states. Constitution does not
explicitly say that states cannot tax federal banks, says it implicitly. B/c if federal
government has the power to create a bank, and states can tax it, they can levy a 100%
tax thereby destroying the bank and essentially vetoing federal power to create a bank.
If we take it to the logical extreme, if states had the power to tax federal
instrumentalities there would be no accountability.
state 1 federal govt and its instrumentalities
states 1 through 13
If state 1 can tax instrument of federal government, then some of the tax will fall
on state 1, but the rest of it falls on other 12 states. State 1‟s tax is affecting all the other
states. No limits on this. The reason it is OK for state 1 to tax instrumentalities in state 1
is b/c if people are unhappy with the tax then they can vote out the legislature; whereas
when one state‟s tax can affect all other states there is no redress for the citizens of the
other 12 states; REPRESENTATION WILL NOT ACT AS A CHECK ON THE
TAXING OF THE FEDERAL INSTRUMENTALITY
VIII. The Commerce Clause/Power
1. Channels of ISC (highways, canals, airspace, train tracks)
2. Things and persons in ISC (on planes, trains, buses etc)
3. Transactions in ISC/Stream of Commerce
4. Activities affecting ISC
c) individual need not be involved
5. Prohibition (prevent from crossing borders)
6. Prohibition plus (can ensure it never comes into existence)
7. Regulation of goods post-border crossing
Art I §8 gives Congress the power to regulate commerce with foreign nations and among
the several states and with Indian tribes. We are concerned with Congress‟s power to
regulate among the several states.
Gibbons v. Ogden: State of NY gives F exclusive license; F licenses to Ogden the right
to operate boat.
Fed Law of 1793 gave Gibbons the right to operate boat
If federal govt granting G the license and state giving O an exclusive
license the two laws are in conflict with each other – which prevails?
- if the federal law is valid – necessary result is that the state law is
invalid b/c Supremacy Clause
- the federal law is invalid if it is beyond the federal governments
power to grant such a license
court: says that interstate commerce is transportation, but it is also
something else – intercourse. Court takes broad view of commerce power says that
Congress can legislate with respect to all commerce that concerns more than one state.
Is there judicial review of a statute to determine if It is within Congress‟s commerce
-no, “the power over commerce is vested in Congress as absolutely” (pg 161)
Sole restraint is the political process/representative government NOT judicial review.
-yes, court has a role in determining if what statute purports to regulate is
commerce; if it is then the court steps out, cannot tell Congress if regulation is valid or
not unless it violates Bill of Rights.
Direct v. Indirect
US v EC Knight (Sugar Trust Case) (1895): bought shares in other sugar co‟s –
controlled 98% of nations sugar refining. At issue was the Sherman Antitrust Act.
Court reads the acts of EC Knight as outside the scope of the SAA; does
statutory interpretation only. In other words, court reads the statute narrowly so as not to
include EC Knight‟s activities and court does not reach the constitutional issue.
Court says that aren‟t engaged in ISC (inter-state commerce) if are involved in:
Agriculture, horticulture, stock raising, domestic fisheries and mining b/c
they are local activities and their affect, if any, on ISC is indirect.
(ex: If I hit one domino into you and you die – direct.
If I hit one domino which hits another etc etc and 30 dominos later
you die – indirect.
You have the same result either way – dead- but it is not the extent
of the effect but rather the WAY it happens we are concerned with)
Court says that Congress cannot regulate local activities even if it clearly has
devastating economic affects out of state. This would be too BROAD of a power and
would leave nothing for the states; there must be some power sharing between fed and
Can make 3 possible arguments:
Statute 1) Argue that client did X. Did not
violate statute or constitution and
will win regardless of if statue is
X Y constitutional or not!
Unconstitutional(?) If court determines statute covers
2) Argue that client did Y but even
though violated statute, statute is
unconst. b/c should interpret
according to the blue line.
3) Argue that client did Z, but there
is so much constitutional doubt as to whether Congress can pass a statute that regulates Z
or not that we ought to construe the statute narrowly (according to the pink line) and thus
not include Z as violating the statute.
Regulation of channels
Southern Railway (1911): law allowed federal government to control/regulate couplers
on trains that ran both in state and across state lines. How do justify ability to regulate?
Court says that can regulate a train that crosses state lines b/c anything that
threatens that train may affect ISC.
Court says that even though a train may never cross state lines, if it is unsafe
and has an accident it may tie up some channel of interstate transportation that would
affect ISC (ex: if train that moves only in-state jackknives and blocks an interstate
Shreveport Rate Case (1914): Rates to travel on trains solely within TX were lower
(even if mileage was longer) than rates to travel from TX to another state. (ex: trip A,
solely within TX was 150 mi. and cost $.36; trip B was from TX to LA and was only 42
mi. but cost $.56).
Court says that cannot charge more for interstate than intrastate
transportation b/c TX manufacturers can sell more cheaply selling within TX than selling
out of state this affects ISC.
Court says that Congress can regulate matters that have such a close
and substantial relation to interstate traffic that the control is essential or appropriate to
the security of that traffic.
**Both Southern Railway and Shreveport indicate the opposite of EC Knight – they seem
to say that an activity, no matter how local it is, can have strong affects on ISC – and
even if these are indirect affects that local activity can be regulated under the Commerce
Stream of Commerce
Stafford v. Wallace (1922): Cows flowing into stockyard from within state, then
stockyard shipped them out of state. Statute purports to regulate the sellers.
Court does not decide this case by saying that practices at the stockyard affect
other states b/c this would be to argue EC Knight and cannot do that without being
inconsistent with Shreveport and Southern Railway.
Court says that the stockyard shipping cows out of state on a regular and
sufficient basis is injecting them into the current of commerce and thus they are
regulateable by Congress.
**Stream of Commerce: all have to show is regular and sufficient movement (cannot just
be a trickle into other states); but do not have to address ANY affects of them moving.
*NOTE* Techniques above are Congress‟s attempt to regulate local activities directly.
The prohibition technique is Congress‟s way to regulate activities indirectly by
prohibiting the transportation of certain items or persons. It was used to enforce
economic and moral regulations.
Champion v. Ames (Lottery Case) (1903): Gambling was immoral and lottery tickets
were seen as a form of gambling. Congress passed statute that prevented lottery tickets
from crossing state lines, was upheld by Court. Implicitly saying that Congress could
regulate regardless of motive (i.e. could have a moral reason for making economic
Hammer v. Dagenhart (1918): Child Labor Case – trying to prevent goods produced by
children from crossing borders. Reversed the trend that Congress could make seemingly
economic statutes that would actually regulate immoral behavior.
Court struck down the statute; said statute purported to regulate state
manufacturing processes. Rsng? Court said that here goods are different – cannot just
look at the good and stop it from crossing the border as in the case of lottery tickets.
Here you actually have to look at how the good was produced, what its history was rather
than its current physical characteristics.
Suppose have two identical goods. One made by child labor and the other
not. Both will have same affect in another state!! Court finds the statute is a pretext so
that Congress can go back and regulate a state‟s manufacturing process – CANNOT DO
RR Retirement Board v. Alton RR Co.: Congress passed Act regulating pensions of
interstate RR Co‟s.
Court strikes down Act b/c it was beyond Congress‟s power under Commerce
Clause. Act focused on the welfare of workers which was clearly not something that
would affect ISC.
Shecter Poultry Corp v. US (1935): NIRA of 1933 purported to tell businesses what their
minimum wage and wage hours should be. Act affected ISC b/c violation of any
provision in any transaction or affecting ISC are punishable.
Shecter bought from out of state dealers and sold 100% of it locally in NY.
Court focused on two main arguments:
1) Stream of commerce: court says no stream of commerce b/c all goods
shipped stopped at Shecter; left stream of commerce when got to S b/c S only ships in-
2) Affecting ISC: court says it is indirect affect which is not enough.
a. Govt argues that Act affects ISC b/c it affects wages which will
lower prices of other poultry dealers. Court says that this is indirect b/c if it was direct
then Congress could regulate all processes of production that enter into costs.
b. Govt argues that economy has crashed and no one buying; Act
requires companies to pay a minimum wage which will make people spend more and
economy will expand. Court rejects this, says gives Congress too much power.
Carter v. Carter Coal Co. (1936): Congress passes BCCA, which regulates max hours
and minimum wages coal miners can be paid.
Court relies on EC Knight distinction of direct/indirect. Court says that even if
wage and hour restrictions will affect ISC, even if it is a big affect, it is not direct and
therefore, not within Commerce power.
- FDR comes up with court packing plan. He is pissed b/c he keeps coming up with
legislation to try and help people (in middle of Great Depression) and USSC keeps
overturning his statutes. Threatens to pack court with plan that if a judge over 70, and
been judge for at least 10 years then FDR can hire another judge. Limit on court is 15.
-Senate Judiciary Committee rejected the bill.
-But circa 1937 the USSC begins to decide cased more liberally than in past.
-By 1938 court belongs to FDR
NLRB v. Jones & Laughlin Steel Corp (1937): Congress passes NLRA which says
government can regulate unfair labor practices including discharging people for union
practices (threatening strikes etc). Court upholds the Act. Although Jones is located
entirely in PA, it has connections with other states and sends the majority of its product to
other states. Because of the multi-state network, a work stoppage of the PA operations
would have substantial effect on interstate commerce.
A. Prior to Jones (Kidd, Knight and Cole) – can only regulate productive activity
if it directly affected interstate commerce
Jones – says can look at the effect on commerce; can regulate productive activity
so long as it has a substantial effect on ISC regardless of where it falls in the chain of
-doesn‟t matter how many dominoes there are, if it is clear that a local
activity will have a serious affect on ISC then Congress can regulate
B. Court ditches direct/indirect distinction
Wickard v. Filburn (1942): F grows wheat, sold some of it but used most of it for his
own consumption. AAA imposed quotas not just to sell but also for own use. F grew
239 more than quota. W sought injunction.
A. Aggregation: Even though W was entirely local (growing on own farm, for
himself) and not regarded as commerce, it can still be regulated by Congress b/c it exerts
substantial economic effect on ISC. Don‟t look at the effect only F‟s activity has, look at
F‟s activity in addition to many others is same situation - AGGREGATE
- Wickard requires:
1. s own activity must have some/any effect on ISC; AND
2. any activity when aggregated with that of others similarly
situated has a substantial affect on ISC
-Perez will change this, only requires #2
If any activity, when aggregated with that of many others similarly
situated has a substantial economic effect on interstate commerce then
Congress can regulate
**Activity can be anything – agric, manuf, fisheries etc; EC KNIGHT
B. Substantial v. far from trivial – in interim the standard was unclear, but Lopez
eventually makes it clear that must be substantial effect
Perez v. US: Court says that s own activity need not affect ISC if it is part of a greater
scheme of activities that does affect ISC.
Only need to show that individual was a member of a class whose activities have
an affect on ISC --- even if the sub-class the individual is in does not itself affect ISC.
US v. Darby (1941):
Provision #1: if company did not comply with wages and hours set in
congressional statute then products of the company cannot cross in ISC; court said that
this was OK b/c it had to do with shipment of goods (overruled Hammer v
Dagenhart/The Child Labor Case)
-gave BROAD POWER – two identical things can be made, one
prohibited and one not prohibited, not on the basis of their identity but based on the
history of their production
Provision #2: if company did not comply with wages and hours set in
congressional statute then products of the company cannot cross in ISC; court said that
this was OK b/c manufacturing goods by people paid too little and worked too long
substantially effects ISC b/c other states would have problems putting those limits on
their industries. Statute would make other states‟ goods less competitive than those that
were made with child labor/working longer hours/less pay.
-gave Congress EVEN MORE POWER – not only saying that Congress
can regulate the shipment of goods made in certain ways, but saying that
Congress can prohibit those goods from ever being made!!!
-BOOTSTRAPPING the prohibition technique – to ensure that the goods
never cross the border (which is within our power) we can prohibit them from
ever being made!!
Court also seems to implicitly say that there is no second question. All we ask
is whether the activity to be regulated is valid under the Commerce Clause. Don‟t ask
whether the states‟ rights under the 10th A conflict.
Commerce Clause and Fed. Regulation of Criminal Activity
Perez v. US (1971): Loan-sharking case.
Court used the affecting commerce rationale b/c prohibition would not work.
Even though Perez‟s activities did not affect ISC, Congress could regulate his type of
conduct b/c the fed govt can regulated individual intrastate activity if it is a member of a
class that in the aggregate, affects ISC. This applied to criminal as well as private
Need only prove that those any activity when aggregated with that of those
similarly situated affects ISC; need not prove that individual‟s activities themselves had
US. v. Bass (1971): Congressional statute applies to any person convicted of a felony
who possesses, receives, transports in ISC a firearm.
Court could read statute broadly: if felon recvs. or poss. - then liable
if felon transports in ISC - then liable
Problem with reading broadly is that ISC only qualifies “transports”
Court could read it narrowly so that liable if recv in ISC, poss in ISC or trans in
ISC. Court interpreted it this way b/c either:
a)first way was too broad (unconstitutional)?
b)first way was arguably violative on constitution, therefore should read it
c) Court rejected both a and b and actually said that Congress has never to
date regulated this type of local crime, maybe Congress can do this but Congress
must be clear that they are doing it. B/c Congress has traditionally left this to
state regulation, and we are unsure of the meaning of the statute we will assume
Congress did not intend to change this and leave it to the states.
US v. Sorrentino: in 1860 a gun was brought from AL to GA. In 2001, a person sold
gun to X, a felon, who shoots Y. Statute says that if a gun moved in ISC it is a crime for
a felon to possess it. X is criminalized b/c 140 years ago the gun crossed state line and
now he is a felon in possession of it.
**NOTE** this is a later version of McClung – where feds can regulate the future
lives of goods/ fed regulations stick with a good forever once it crosses state lines
Commerce Clause and Civil Rights Cases
Should Congress use the 14th A or Commerce Clause to try and foster legal reform in
Problem with using the 14th A b/c §1 only allows Congress to prohibit states from
discriminating. §5 only allows Congress to enforce the 14th A through legislation which
affects the states. Congress was not sure it could use the 14th A to regulate private
activities which were discriminatory. So used Commerce Clause.
Heart of Atlanta Motel v. US (1964): Does discrimination by businesses who regularly
serve ISC, when aggregated, substantially affect ISC so that Congress can regulate? The
businesses who discriminated made it hard for African American‟s to take trips because
they could not just stop anywhere – really had to make plans beforehand, set out route
Katzenbach v. McClung (1964): Ollie‟s BBQ served whites and only provided take-out
for blacks. 46% of food OBBQ uses comes from out of state. Argues that this is not
substantial b/c it is not even half.
Court finds that the cumulative effect of all restaurants with policies like Ollie‟s
deterred blacks from traveling and affected ISC.
Basically says that Congress can regulate the future lives of goods after they
pass borders. Lines of regulatory power will stick with the goods as they travel.
The 10th Amendment as a limit on Congress’s power:
If statute falls at X, then it can be reached by Commerce clause, but state‟s rights in 10th
A will prevent Congress from being able to regulate X.
Ask two questions:
1) Does Congress have the power to regulate X under Commerce Cl? Or; How far
does the Commerce power go?
2) Do states rights push back that power? Or; Any special state sovereignty
protections violated? Includes private individ/corp as well.
US v. California (1936): no extra protection for states; ask the same questions when
trying to regulate states as when regulating pvt. individuals/corporations. Ask only Q1.
US v. Darby (1942): 10th A is truism; look at how far Commerce Clause goes, states get
whatever is left over. Ask only Q1.
Wirtz (1968): dissent – says it is not plausible that states have no protection from federal
regulations. Maybe there is a Q2.
Fry (1975): court becomes concerned – must be some special limits as to what feds can
do states. Maybe there is a Q2.
National League of Cities (1976): states have protection/immunity and Congress cannot
regulate states or their employees when acting in traditional state functions/performing
traditional government jobs (i.e. parks, recreation, public health etc). This is not because
it doesn‟t affect ISC, not because in aggregate it does not affect ISC but rather because
when regulating what states can do, have special regulations and protections. Ask both
Garcia v. NY (1985): Court overruled National League of Cities. Had difficulty drawing
a line between what are and are not traditional state functions.
Said that the political process is enough of a check to protect state (sovereignty)
from unfair regulations. The safeguards are the representatives and congressmen from
states that make up the legislative branch. Ask only Q1. (it is OK to subject states to
Majority left open ability to argue – if can show the political process has failed
then may get court to look to see if regulation is an impingement on state sovereignty.
New York v. US (1992): Act gave 3 incentives to states for regulating waste.
Issue: What pressure can Congress put on states to get states to pass laws regulating
1) Cash incentives – bribery; Congress can say “regulate according to federal
standards or lose valuable money”
2) Congress can say “regulate according to one of our federal standards or we will
regulate you and federal law will pre-empt any state law”
Possible choices for states: build public site, make compact with other
states, or build private site.
How is this a meaningful choice? Congress is saying follow our standards or we will
regulate and our laws will pre-empt. If pre-empt then feds deal with waste, feds enforce
it and feds are accountable when citizens don‟t like the way things are going.
3) Congress cannot say “regulate according to federal standards or own your
It is not within Congress‟s commerce power to force the states to own
their own waste; it is up to states to decide what goes into their statutes – Congress can
provide incentives as in #1 and #2 but cannot coerce as in #3.
Two types of fed legislation that Congress can‟t force upon states:
a. fed law that coerces a state into enacting laws – can offer
inducements but cannot threaten liability if state does not adopt fed law.
b. forcing states to enact federal programs
Main reason is accountability – if Congress makes states pass laws, then it looks
to state citizens like the state legislature enacted the laws. Citizens will hold state legisl.
US argues how can a fed statute be found unconstitutional infringement of state
sovereignty when state consented to it? State waived rights?
Court says these types of rights cannot be waived. Have federalisms interests for
people of states and states cannot waive those rights.
ex: President wants tax plan to go through so he makes a deal with
Congress which says that Congress can write a law doing away with presidential
veto so long as also enacts the tax cut plan.
The presidential veto power is not the president‟s personal power, he
cannot waive it for all future presidents.
Narrowest holding of NY: implicit in Constitution as reflected by 10th A that states have
special protections and Congress cannot force states to regulate.
Re-Limiting the Commerce Power
US v. Lopez (1995): Act prohibits anyone from possessing a gun within vicinity of
school. Lopez deals with only #4 of the techniques. Any changes to rest of them are
1 and 2 are OK.
3. Lopez may say a bit, in dicta, about the stream of commerce. J. Rehnquist seems to
include it in our #1. Does not have to be continuous motion, regular movement is
4. Activities affecting commerce
a) how much? Must be substantial, not „far from trivial‟
b) aggregate? questionable, but most likely OK
c) Perez? No real affect/change on it
5. Lopez doesn‟t really address
6. Lopez seems to say it is OK, regulating manufacture is a necessary and proper way of
ensuring the good does not cross border (which we know Congress can do)
7. Lopez probably cuts back on this b/c when pushed to its logical limit it seems to say
that even if a person crosses the border s/he can become regulatable by Congress.
Court draws a distinction between regulating commerce or economic activities
v. regulation of „other‟ activities.
Strong Reading of Lopez: any law regulating activities in „other‟ is
unconstitutional; congress cannot regulate under Commerce Cl. Beginning to look like
enclaves of EC Knight again. If law regulates commerce/economic activity then can
regulate just like pre-1995
Weak Reading of Lopez: if what Congress is regulating on the theory that it
affects ISC in the aggregate, and is on it‟s face commercial or economic, then works
same way as #4 pre-1995.
if what Congress is regulating on the theory it affects
ISC in aggregate but is on its face not economic/commercial then it falls into „other‟
category. But this is rebuttable presumption – Congress can, with powerful
findings/evidence show that it really does affect ISC.
Hypo: assume the statute hurts your client. You want it to be found unconstit. What do
argue? 1) Strong Lopez.
2) Activity is non-economic/non-commercial
If win on 1 and 2 are done, won your case. If lose on either – argue
3) Congress‟s evidence/findings were not powerful enough – had no findings or
weak findings that were not powerful enough to overturn presumption that the statute on
it‟s face is non-economic
Hypo: assume the statute serves your client – often will be govts position. You want it
to be found constit. What do you argue?
1) Weak Lopez
2) Activity is economic
If win on 1 and 2 are done, won your case. If lose on either – argue
3) Congress‟s evidence/findings were sufficient – overcame presumption in favor
of statute being read on it‟s face as non-economic
Printz v. US (1997): Brady Bill says if want to buy a gun mmust give information to
potential seller who must notify the CLEO in jurisdiction. Fed law not only regulates
seller but purports to force CLEO to do investigation to determine if purchaser is
dangerous person who should not own a gun.
Sheriff‟s bring suit claiming that fed law ciolates states rights as reflected
in 10 Amendment.
Difference between NY and Printz? In NY, had to make law within Fed specifications,
feds forcing states to make a law.
In Printz, not making law, forcing states to
implement of enforce a federal law.
Court holds: 1) Congress cannot force states to enact laws (NY)
2) Congress cannot force states to enforce laws (Printz)
Reno v. Condon: Court makes it clear that NY and Printz were not problems with reach
of the commerce clause but rather was that violated 10th A rights.
Have federal law regulating states and private parties in different ways.
States cannot sell DL info to insurance co‟s, marketers etc. Info brokers can‟t pass it on
if they get it.
Q1 – Does Commerce power cover it? Yes, have interstate market in info; stream
of commerce argument
Q2 – Any special state sovereignty protection violated? No, doesn‟t only apply to
states, also applies to private info brokers so don‟t really need to scrutinize 10th A rights.
US v. Morrison (2000): Court‟s decision points us in favor of the Strong Lopez.
IX. States as Parties in Federal Courts
Art III §1 vests judicial power in one Supreme Court and such lower federal courts as
Congress may ordain and establish
Art III §2 defines judicial power as:
1. cases arising under constitution, laws or treaties of the US (§1331)
2. diversity suits between citizens of different states (§1332)
3. suits between states and citizens of another state:
a) State A () v. Citizen of State B ()
b) Citizen of State B () v. State A ()
#3 in the USC literally says that both A and B are OK; however states have argued that
although USC literally covers A and B, it really only covered A NOT B b/c states were
sovereign and immune.
Chisholm v. Georgia (1793): citizen of SC v. State of GA for a revolutionary war debt –
suit under state K law. GA argues that although #3 is literally broad enough to cover the
suit, everyone knows that states are immune as s and cannot be sued.
Court says suit is OK b/c Art III §2 part (b) says citizen of one state can sue
States got mad that they could be sued – led to passage of the 11th Amendment which
“Judicial power of the US shall not be construed to extend to any [suit]
commenced or prosecuted against one of the United States by citizens of another state, or
by citizens or subjects of any foreign states.”
Hans v. Louisiana (1890): H was citizen of LA, was federal claim under Art I §10
Court says LA is immune
Seminole Tribe of Florida v. FL (1996): When the Constitution was founded, all suits
against states by ordinary citizens were prohibited – it is implicit in the Constitution that
all states are sovereign.
only needed the 11th Amendment to give this power back b/c the court messed
up in the Chisholm case!
Originally, it was implicit in Constitution that these suits barred:
Citizen A v. State A under fed law
Citizen A v. State A under state law
Citizen A v. State B under fed law
Citizen A v. State B under state law
Chisholm was a mistake which allowed suits between parties in the last category (Citizen
of State B to sue State A under state law claim). This was not allowed ORIGNALLY
under the Constitution. But since court messed up, passed the 11th Amendment to fix it,
but the 11th Amendment does not change anything in relation to other 3 types of suits.
The 11th Amendment only brings us back to the status quo; where all 4 suits can not be
What impact does this have? Some of the most important rights given to the people is
through the 14th amendment which applies the BOR to the states. But if you cannot sue a
state without it‟s consent then how can you exercise your rights????
can use the Constitution as a defense once a suit has been brought against you
But what about injunctive relief? There are 3 ways immunity can become
1) suits deemed NOT v. a state
a) cannot bring a suit v state in federal court if you are a forbidden
regardless of if it is a state or federal claim
--Who are forbidden s? citizens of any state or foreign
country; or foreign country itself
--What s are allowed? US itself, or a state
b) What is a suit against a state?
--where a state in a named party; or
--suit against a state officer in his official capacity seeking
damages for past wrongs
c) What is NOT a suit against a state?
--suit against local government (city, county)
--suit against state officer in their private capacity seeking
to reach his own bank account
--suit against state officer in official capacity seeking
prospective relief to compel compliance with federal law in the
ex: MD statute allows cop to stop A b/c cop is psychic.
This is clearly unconstitutional – no probable cause
A cannot sue for damages
--If it happens over and over again and can show will
happen in future (standing) can sue cop in official capacity
compelling state to follow federal law in the future (injunction)
Ex Parte Young (1908): if suing state official in their official capacity not seeking
damages for past wrongs, we treat this as a suit against an officer not a state
GY says that this case is really a suit against a state – it is a fiction. IF state
writes unconstitutional law, the law is in effect by enforcement only these suits stop
states from enforcing state policy – this is a suit v. a state!!!
USSC later concedes that these suits are a fiction but if did not allow these
suits no could ever sue state trying to get state to comply with federal laws
Are two narrow exceptions where even if you are forbidden and it is a suit v. a state
you can still sue:
2) Waiver – state waives it‟s right against being sued in federal court.
-Historically, court found implied waivers in many cases
-Now, court wants clear, express waiver of THIS immunity
3) Abrogation – ultimate question – Can congress override this sovereign
immunity by saying so in a statute?
Fitzpatrick v. Bitzer (1976): immunity can be overridden by Congress if
legislating under the 14th Amendment. Last sentence of the 14th says that Congress can
legislate to enforce the 14th. Would argue that if hard sovereign immunity intended in
11th Amendment, the 14th came afterwards and hence modified the 11th; especially a
powerful argument b/c the 14th A was an extremely powerful remedy that the framers
must have intended it to change the 11th.
Pennsylvania v. Union Gas (1990): Court agrees with and extends Fitzpatrick
saying Congress can legislate under the Commerce Clause as well.
Seminole Tribe of Florida v. FL (1996): court overrules Union Gas
Alden v. Maine (2000): private citizen sues Maine in state court with federal c/a.
Court says if framers intended states not to be dragged into federal court also
probably intended that states not be dragged into state courts.
If state does not want it‟s courts to hear suits against state itself under federal law,
Congress cannot compel state courts to hear it.
-same analysis: forbidden - no
seeking damages – no
seeking injunction – yes
X. Taxing Power – Art I §8
Art I §8 – the power to lay and collect taxes, pay debts, and provide for the common
defense and welfare of the country is the spending power given to Congress by the
Child Labor Tax Case (Bailey v. Drexel Furniture Co): If can‟t directly regulate under
commerce clause will tax goods made with child labor.
Act provides regulatory standards, if don‟t comply you are taxed.
Court says this is not tax, it is a regulation, and struck down Act.
US v. Kahriger (1954): If tax raises revenue and does not explicitly say its purpose is to
penalize – we won‟t ask any more questions.
XI. Spending Power
US v. Butler (1936): Act regulated agricultural production by offering from taxes
back to farmers if complied and reduced amount grown.
**NOTE** can‟t regulate under Comm Cl b/c this was in 1936 when had EC
Knight wh/ said no regulation of productive activity.
Court says that when Art I says Congress can provide for general welfare, this
does not mean that Congress can pass anything it wants – must pursue one of the powers
listed in Art I §8 cl 1. No general police power to regulate for the general welfare.
But does Congress have general power to SPEND for general welfare? Court
says YES, congress can spend for general welfare but there are limits!!!
South Dakota v. Dole (1987): Act told states would withhold 5% of federal highway
funds unless had drinking age greater than 21. Court identified 4 limitations on
congressional spending power:
1) General Welfare (applied VERY broadly – court will find anything is in
interest of general welfare) – spending must be in pursuit of the general welfare and
should defer substantially to the judgement of Congress; court should not second guess
Congress‟s determination that the Act is in pursuit of general welfare.
ex: Congress wants to pay war hero $1m.
This is probably OK, would be for general welfare b/c would give
incentives to others to be war heroes and this would benefit the general
2) Unambiguous conditions (weak) – Congressional conditions on states receiving
federal funds must be unambiguous in order to allow the states to make a decision as to
what they might be sacrificing by receiving these funds. Law must be clear enough that a
RP could not read it another way!
3) Federal Interest/Germane (weak) – condition on a federal grant must be related
to federal interest in particular program
ex: state loses 20% of fed hgwy funds if did not use certain books in
classrooms. Not related - putting condition on hgwy $ wh/has nothing to
do with hgwys.
4) Conflicting Constitutional Provisions/Independent Bar (court has not done this
but it may) – other constitutional provisions may be an independent bar to conditional
grant of fed funds. Can‟t use spending power to violate other constitutional provisions.
ex: will lose 90% of fed grants if state does not waive rights to limits on
Commerce Cl. (i.e. to get full $ state must agree to let Congress regulate
no matter what restrictions of Comm Cl may be)
5) Federal Coercion – look at whether condition is coercive or reasonable; Court
seems to say that b/c in Dole only taking 5% of funds away this is not coercive.
ex: What if feds grant hgwy money on condition that hgwy not built on
San Andreas fault? This is a reasonable condition, but isn‟t it coercive?
XII. Dormant Commerce Clause
What does a DCC case look like? Client from state A is trying to do business in state B
and is finding himself excluded from doing what he wants in the other state b/c of that
Two ways a state law can be destroyed:
1. Pre-emption - say state law conflicts with federal statute – Supremacy Cl. Art
6 para 2. Before federal statute can destroy a state law, it must be a valid federal statute.
ASK: a) What is it‟s claimed authority under Art I §8?
Commerce Cl, Spending power, tax power, war etc….
b) Even if have authority under (a), still may be invalid b/c of other
constitutional restrictions – 1st A, state sov limits reflected in 10th A, etc…
c) Assuming fed law is valid, to what extent does it destroy the
state law that injures my client?
2. Dormant Commerce Clause – sometimes state law is unconstitutional b/c it too
greatly interferes with ISC.
Where does DCC come from? Not anywhere in Constitution; it is implicit in
Constitution. It was always understood that severe state restrictions that inhibit trade
were contrary to the structure of the federal system and the Constitution.
HP Hood & Sons v. Dumond – under Art of Confederation the fed govt was weak b/c no
central power over Congress – states had trade wars. Annapolis Convention called to
stop trade wars – led to Philadelphia Convention.
Philadelphia v. NJ (1978): NJ says that other states cannot bring in waste from out of
state – “foreign” waste will compete with local waste for space in local dumps and this
will increase price local NJ-ians pay for disposal.
I. Discriminatory legislation
a) Discriminatory Purpose
-express/clear on the face of statute
-implicit – clear discriminatory purpose but statute
doesn’t say it
b) Discriminatory Means – have legitimate purpose, but using
discriminatory/protectionist means to accomplish it. Statute contains
language that treats out of state goods or people differently that in-
staters. DM is not a per se rule, is not always fatal – if there is NO other
way to accomplish goal other than discriminatory means then the statute
may be upheld.
II. Undue burden on ISC (very few cases fall into this category – Sea
Board) - even though state has no discriminatory purpose or is not using
discriminatory means, it causes a huge burden on ISC
III. Mixed – not enough of an indication of protectionism to win in I;
but enough so that we are put on inquiry and don’t think the court should
uphold the statute.
Phila. case is decided on Discriminatory Means, why? B/c NJ statute did not say “our
purpose is to give in-state citizens an economic benefit.” NJ statute focused its reasons on
Court says DM is not always fatal, but in this case it is b/c NJ could have
carried out the goal of its statute by other means that were not discriminatory.
Aldin v. Maine: ME prevents fish from coming from out of state b/c NJ fish have disease
which has not infected ME fish ever. If NH fish come into ME will infect ME fish and
Court says DM is allowed here. This case is substantially different than Phila
v. NJ b/c a piece of garbage is the same thing from state to state. Whereas when infected
fish come into a state it is not just THAT set of germs that comes in; germs come in and
explode in ME – now causes a huge problem in ME.
ME has to regulate at the border b/c there is nothing else to do; that is the first
place ME has the ability to regulate – once fish come in there is nothing ME can do –
disease is already spread
Dean Milk v. Madison (1951): Madison, WI ordinance said to sell milk in Madison must
be made within 5 mi of Madison. Madison argues that statute isn‟t discriminatory against
out of staters b/c discriminates against WI milk producers too!!
Court holds ordinance invalid – it is not a permitted trade barrier. Doesn‟t
matter that discriminate against own state – cannot discriminate against others!! The goal
– sterile mile – can be carried out through other means. Could require producers who
want to sell milk in Madison to follow Madison‟s procedures and subject them to
Bacchus Imports v. Dias (1984) – Statute does not draw line between states, but says that
any liquor pays a tax unless made from a certain root of a plant. Turns out this plan
ONLY grows in Hawaii. Is this discriminatory??
Court holds that it can look beyond the face of the statute – can look at the
facts surrounding it. Here it is obvious that HI had a discriminatory motive; law crafted
to give local merchants a benefit.
Where exactly do we know where to draw the line when looking past the language of the
statute to determine if there really is discrimination? It is a judgment call:
Hunt v. Washington State Apple (1977) – NC law required all apple growers (whether in
NC or out of NC) to put a federal sticker on them marking the federal grade. On the
surface the statute treats both in and out of state growers the same. WA apples did not
use federal grade b/c were of a higher grade.
Court says that law is invalid b/c it would deprive WA apples growers of their
comparative advantage/marketability. No one would be able to tell that WA apples were
actually of a higher grade. In addition, the law is invalid b/c NC apple growers already
have their manufacturing plants tooled to place federal grades on their apples; whereas all
other states would have to re-tool their entire process just to meet NC standards. This has
the effect of discriminating on out of state apples.
Sea Board Air Line RY v. Blackwell – b/c of safety statute – train had to stop 124 times
in 123 miles and blow it‟s horn.
Court said that even though statute has no discriminatory purpose or means, it
still must be struck down b/c it is so burdensome on ISC
Pike v. Bruce Church (1970) – AZ passed a law that required all cantaloupes have AZ
grade on package and must be packaged in AZ to do this. grows in AZ, but ships to
CA to be packaged. Cost of complying with statue would be $200,000 of a $700,000
Court applies TEST: When statute regulates evenhandedly (no
facially discriminatory mechanism that distinguishes between in and out of
state) and its affects on ISC are only incidental (not aiming at ISC but
harming it anyway – but it is roughly worth it) it will be upheld, UNLESS the
burden imposed on commerce is clearly excessive in relation to local benefits
(this does not mean that the effects on ISC are slightly more burdensome
than the local benefits – it means that the effects on ISC are HUGE
compared with the local benefits.)
Court does not question AZ‟s legislative motive, but finds that the statute
requiring all cantaloupes to be packaged in AZ created a clearly excessive burden on
Kassel v. Consolidated Freightways Corp (1981) – Iowa passes a law prohibiting double
65 ft trucks from using Iowa highways. Must use either a 50 ft semi or if use double
must break truck into 2 pieces or go around the state. Statute‟s purported purpose was to
increase highway safety by reducing flow of dangerous truck traffic.
Courts traditionally defer to state‟s judgment of safety even if its affect on ISC
is clearly excessive when compared to local benefits; therefore the court may not strike
down the statute b/c may defer to state.
What led court to suspect discrimination and strike down the statute?
- statute included exemptions for locals
- border cities could use 65 ft doubles
- Iowa manufacturers could get permission to use 65 ft doubles
- Governor‟s veto message
Court was unwilling to say the law was protectionist; instead b/c there was
enough indicating that statute was protectionist – the court applied balancing test and
found that the burdens on ISC > any local benefits.
1) If statute falls into I then determine if it is DM or DP
a) If it is express DM then it is dead
b) If no express DM, then have to get the court suspicious of
2) If statute does not fall into I b/c the court believes it is N OT AT ALL
protectionist then use II – must show serious injury to ISC that is clearly
disproportionate to any local benefits; the court will likely apply the
balancing test with the presumption in favor of the states judgment and you
will rarely win here.
3) Should try to convince the court that it may be protectionist; if can do
this then the court may apply the balancing test without the strong
presumption in favor of the states.
XIII. Privileges and Immunities Clause – Art IV §2 cl. 1
Are two P and I clauses – 1) 14th A §1 “No state shall abridge the privileges and
immunities of the citizens of the U.S.” (state is irrelevant, by virtue of being a US citizen
are certain rights you have that states cannot affect)
2) Art IV §2 “The citizens of each state may be entitled to all
privileges and immunities of the citizens of the several states.” (state creating right)
we are only concerned with the latter of the two
The P and I clause is interpreted as an anti-discrimination clause which overlaps with the
DCC. If you are a citizen of any state, when you are in any state, you are entitled to be
treated equally with their citizens. It is like an equal protection clause.
Edwards – CA had anti-Oakey law which made it illegal to assist someone coming into
CA who was indigent and not a CA citizen.
Court decided case by applying the DCC to humans; dissenters argued that
Court should have used the P and I clause
P and I clause cases are usually more commercial – involve debate over “what are the
privileges and immunities a state which if the state gives to its own citizens it must also
give those privileges and immunities to out of state citizens?
UBC v. Camden – NJ law says if want to work on city contracting project then the
private contractors must have at least 40% of their employees be Camden residents.
Looks like DCC issue where statute is giving local benefit; but the DCC is a
restriction on state regulation NOT contracting; DCC does not apply to states writing into
a K a clause that favors in staters. State is a market participant who can put whatever
terms it wants into their K‟s. State could not pass a regulation, consistent with the DCC,
forcing private contracting parties to have 40% Camden residents but this is not what
they are doing!!!
Note however, that the court focuses on DCC argument and says nothing about
P and I clause. What NJ did clearly violates the P and I clause. CHECK THIS
New Hampshire v. Piper - lived in VT 400 yards from NH border. takes and passes
NH bar, but NH law says those domiciled outside of NH cannot be members of the NH
Court applies P and I clause. Said NH has no substantial reason for keeping
out of the bar that could not be served equally by some other means; i.e. are other non-
discriminatory means for NH to meet their purpose.
XIV. Separation of Powers –
Feds limited to legislating according to:
Art I §8
as magnified by the Necessary and Proper Clause
as limited by state sovereignty – 10th Amendment
States can do all else:
Limited by DCC
and limited by Privileges and Immunities in Art IV
But also have other things limiting the federal government – Separation of
Powers into 3 branches –
What creates the 3 branches? The vesting clauses – Art I §1
Art II §1
Art III §1
Even though nothing explicit in the text of the Constitution,
sometimes the court will determine something unconstitutional b/c it upsets
the balance of powers
Legislative Process – is set forth in Art I §7 cl.2 and 3:
1. Bills, orders and resolutions and votes must pass through Senate
2. Then be presented to President;
a) If President approves – it is law
b) If within 10 days President does not respond – it is law
UNLESS Congress prevented it’s return by adjournment
c) If president doesn’t approve (vetos) then goes back to House
in which it originated
1) If House passes with 2/3 majority – it is law
-Around the mid-1930’s Congress and the President, using the legislative
process, could pass a law that transfers legislative power to the Executive
Branch (** this was probably one of the most important developments of our
-By 1942 Congress could write a broad statute giving the Executive Branch
the power to make rules and regulations
-Today most law is made by the executive!! The legislature has delegated a
great deal of power to the Executive – this has shuffled the balance of
powers a little bit.
-Court also permitted judicial power to be transferred to the Executive
Branch. For instance, if want to sue Social Security Administration then
trial is at the Social Security office – it is through an agency not through
-Finally in Morrison – Congress could set up Independent Agencies
appointable by the President but not removable by him. These IA’s got both
legislative and judicial powers. This is how our country is able to run today.
Ex of IA’s – SEC, ICC, FCC etc.
Youngstown v. Sawyer (“Steel Seizure Case) (1952): Steel Union strike set for 4/9/52.
Truman issues executive order to seize steel mills to Secy of Commerce (Sawyer) b/c in
middle of Korean War.
Steel companies decided did not like this – resisted
District Court issues injunction – seizure was unconstitutional
J. Black says that main way President could have such authority was if an Act of
Congress granted him the authority and there were no statutes authorizing the seizure;
Only place left to look for such authority is:
1) The Executive Power vested in President
2) President‟s power to take care that the laws are faithfully executed
3) Commander in Chief of Army/Navy
As to #3 – cannot allow president to run domestic industrial matters simply b/c a war is
going on – this is too much POWER and is inconsistent with what the Framers intended.
As to #1 – explicit role of Executive as set forth in the USC is to propose, veto and
execute the laws; law making power is clearly vested in the Legislature
As to #2 – fact that President executes the laws clearly refutes the notion that he is a law
J. Jackson – If Congress says Executive can do X, President can claim:
a) Could have done X anyhow according to the Constitution
b) It was already authorized by Act of Congress, so Congress need not have
“delegated” this power b/c Pres had it already
(why would Congress delegate a power Pres already had? B/c maybe Pres
did not know he had it OR maybe Congress delegates it b/c wants to make it clear that
Pres did not have it before)
-- Presidential power is at its greatest when Congress delegates a power to President b/c
then President has delegated powers plus all his own powers.
--If there is no statute authorizing or negating the power this is less powerful. This is
what J. Jackson refers to as the “twilight zone.”
Is there a “twilight zone” where Congress and Executive have concurrent
authority but Congress has ultimate authority so President can act until Congress
says he cannot? (Congress remains silent, so Pres takes the power and keeps it
until gets an affirmative “no” from Congress as to that power)
Taft-Hartley Act – Congress says “Pres may not seize in labor
disputes.” This is clearest example of shared power where Congress comes in and
says Exec may have had power but Congress is now saying Pres doesn‟t have
-- If President is acting in a way that had been negated by Congress, must find that the
power Congress tried to negate is a type of power the President had without Congress – it
was a power President completely owns and Congress cannot negate it.
**NOTE** This is where the court places Youngstown case!! The Taft-Hartley
Act supposedly negated the power the President was exercising (seizure). G.Young
thinks the court misconstrues the THA.
J. Frankfurter (along with all others but J. Black) seems to think that maybe – President
may have temporary emergency powers (foreign or domestic) to deal with a situation as
long as it is an emergency and it is brief (temporary)
**ASIDE** Suppose Congress passes a law that says “pres cannot do X;” then this is the
policy of the US and pres can‟t do X
Suppose Congress is considering saying “pres cannot do X” but the amendment to the
law is never passed; this is only an inference that b/c Congress struck down Amendment
the Executive can do it. If propose something that is rejected, this does not mean that the
antithesis of your proposal is now accepted. (i.e. Just because Congress did not pass the
act that said Pres can‟t do X does not mean that Congress was saying that the Pres can do
Historical digression: Can Congress through the legislative process (2 houses
+ pres) give to an executive officer that which Youngstown makes it clear
the Exec does not possess (power to make laws)?
-Up until 1911 the Court generally said NO, executive executes the
laws and that is his entire function!! Legislative power belongs entirely to
Legislature and cannot be transferred to Executive.
- In executing the laws, the Exec can do a limited amount of fact-
finding in executing the laws, but not too much.
Ex: Congress passes law that says “there will be a tariff on any
country that violates the commerce of the US (as an incentive for
foreign countries to stop seizing our ships) but we will leave it up to
the Exec to determine if an interference with commerce has
This law leaves a lot up to the presiden; it sets a general
standard –he must do a lot of fact-finding; in addition the pres must
also flush out the meaning of any vague terms --- this is probably a
violation of SOP.
Ex: Congress passes a law that says “no pension unless worked
for the army for 10 years.” This law leaves some fact-finding up to
the pres, but not too much and there is not interpretation of the
terms whatsoever --- this is OK.
- After the 1930s, the Court changed its view. Congress could
transfer huge portions of legislative process to Executive Branch Officers
subject only to the most general guidelines.
Ex: Yakus v. US (1944): Had problems with inflation – so Congress gave
power to fix prices of a huge %age of all commodities in US. Guidelines
given? “Exec had to fix prices that were fair and equitable.” This leaves a
huge amount of decision-making and power to Exec. “Fair and equitable is
not a specific guideline at all!
INS v. Chadda (1983): §2__ says if in US on student visa and overstay you are
§244 says a) AG (within control of pres and can be removed by
pres) can negate deportability standard in individual cases – must prove
“hardship” towards the individual person
b) AG must report to Congress and one of either
Houses can veto the AG‟s decision
J. Powell – Congress was performing a judicial function of SOP; was acting as a judge
b/c the AG must --- determine facts, apply hardship statute, make decision --- these are
all judicial decision making functions
There is a difference between the type of law that causes Congress to come after you and
one that is of just general and affects you:
-If it is just a general law, say a tax law – then you have no right to get up and
testify about the law and how it affects you; you are not the best one to testify about how
that law affects the people of the US – need an expert.
-But, when Congress is coming after you to deport you, you should have the right
to a hearing and a judicial process; you are the one with the best knowledge of the facts
concerning the suit against you – J. Powell argues that the Government is inflicting
individual harm on Chadda based on individual facts and this should really be left to a
J. Burger – uses syllogism
Premise #1 – Any law – whatever it may be called (bill, resolution etc) - can be
created ONLY by the “legislative process”:
a) House and Senate with Presidential approval; OR
b) House and Senate; Pres vetos; back to Congress who must pass with a
Premise #2 – The legislative veto (LV) is a law which was not made according to
Conclusion – Therefore, the legislative veto is no good
What is a law? Something that affects rights, duties and legal relations of persons
By this test, does the LV count as a law?
YES, b/c it changes Chaddas rights. How?
At Time1 - Chadda is deportable this changes
At T2 – b/c of the AG‟s decision Chadda is not deportable Chadda‟s
At T3 – b/c of the LV Chadda is deportable legal rights
it‟s a law
Hypo: Legislative process gives to the Sec‟y of Labor the power to write rules and
regulations specifying the maximum amount of benzene in the air. Law says “should
make rules weighing the goals of efficiency v. lives and health.” So the Sec‟y of Labor
comes up with a rule that says 10 ppm per workday; 25 ppm on weekend.
Would a LV retained by either House, alter rights, duties and legal relations?
Ex 1: At Time 1 – regulation ex 2: At T1 - regulation
At T2 – LV (so no longer have to follow rgltn) At T2 – no LV (must follow rgltn)
At T3 – co. violates rgltn At T3 – co. violates rgltn
In #1, the violation of the reg does not matter b/c it was overturned by a LV. So the co. is
not liable for anything.
In #2, the violation of the reg does matter b/c it was not overturned by a LV. So the co. is
liable for violation. --- this changes rights and duties of the co. so the LV here would
clearly violate J. Burger‟s syllogism.
Prior to Chadda – LV by one House of both Houses of Congress were OK.
After Chadda – both are now unconstitutional.
Clear rules of Chadda – Congress, through the legislative process can delegate legislative
power to the Exec but within limits, Congress can‟t go as far as abdicating.
But if Cognress delegates power, CANNOT retain a power to negate the rules the
Exec (who was just delegated power) writes UNLESS Congress does it through the
legislative process by passing a new law. (i.e. once Congress delegates power, it is gone;
Congress cannot retain a veto power and give themselves a continuing role in carrying
out the law)
Q1 - But why isn‟t a legislative veto constitutional if it is contained in a law that was
validly passed through the legislative process??? Same reasoning as in NY v. US – b/c
this would be altering the Constitution (and constitutional rights of the people) and
cannot do that by having the different branches agree to it – must do it by Amendment
Q2 – Why can‟t argue that it is not law making (the LV) it is only negating a law?
B/c they are the same thing (if you negate a law already in existence you are making law
that is the antithesis of the existing law)!!
Ex: Congess makes a law saying it is illegal to launder money and retains a LV.
When Congress exercises it‟s LV what is the law now? Can launder money – this is
making a law.
Q3 – But shouldn‟t Congress be able to retain a CHECK on the rule/law making of the
officer it delegated it‟s power to? Yes, but don‟t need the LV as a check, b/c Congress
already has a check – it can pass a new law which overturns/negates the law the officer
Q4 – Is there any contradiction in J. Burger‟s reasoning? Sort of yes.
JB says that an Exec officer making the law is OK.
JB then says that Congress cannot retain right to unmake that law. Looks to the USC and
says Art 1 §7 is clear – must use legislative process – the LV is law making by Congress
without the Pres and this is not following the legislative process its unconstitutional.
BUT, if JB is going to take a strict reading of the USC, then where does it say that the
Exec can make law? FN 2 of the opinion is where JB tried to explain why one is ok and
other is not. Basically argues that when Exec makes a rule or regulation he is only
executing the law that empowers him to do that.
GY says that this is weak explanation b/c the law that empowers the Exec (law
which delegates the power to exec) cannot be violated! The rules don‟t exist until the
Exec makes them and these can be violated.
ex: Congress delegates power to Exec to “fix prices at some fair price
between $20-$25.” This statute has tight limits, but does not make a regulation –
you cannot violate this statute by pricing your goods UNTIL the agency actually
makes the law which fixes the price. When agency makes a law fixing the price
at $24, when you price your good at $25 THEN you have violated the law. So it
is law making by the agency!!
GY says that when Court allowed huge delegations of power to the Exec (like
in Yakus) the Court changed the topology of the USC. And the Court had the choice to
either stick with the old rules/topology where Congress cannot make laws without
following the legislative process OR could adopt new rules/topology to compensate for
the digression Court already made (b/c allowed huge law making power in Exec with
Yakus) and adjust the powers of Congress by allowing Congress to retain LV.
What kind of opinion would this look like? GY says that JB could have said “I
admit that when the Court allowed Exec to have law making power we digressed from
the USC (which says law making shall be vested in Congress only). Now we must
determine if we need a check on this power – should we change powers of Congress and
allow a LV or not? (i.e. Once allow Exec to make laws, what would the Framers have
intended to be done to balance the power out once it was changed?)” GY thinks this
would have been a much better opinion. INSTEAD JB is dishonest and denies that the
Exec branch is making laws!!
Suppose have statute – proviso 1 – delegates power to Exec to make rules
and regulations concerning….
Proviso 2 – is a Congressional retention of a LV
If my client is hurt by the rules and regulations made pursuant to proviso 1 –
what could I argue to win?
First, would try to argue that the rules made in p1 are
unconstitutional. Likely to lose here.
Second, argue that even though p1 is Constitutional, we know that p2
is not; thus p2 of the statute is invalid. Argue that b/c Congress put p1 and
p2 in the same statute, they did not intend to give away p1 without keeping
p2 and likewise they did not intend p1 to survive without p2. Therefore
when p2 sinks down into the depths of unconstitutionality p1 ought to go
down with it! GY thinks may be able to sink the Constitutional p1 if can argue
that p2 is Unconstitutional and the two p’s are tied together.
What could look at to make your argument?
If arguing the two p’s are inseparable (and hence the constitutional
p1 will sink with the unconstitutional p2) look to:
-first, express, specific text – says that p2 is dependant on p1
and should p2 be struck down as unconstitutional then p1 does not exist
-second, argue express, general text – look for any p in statute
which says that if any of the p’s are struck down then they all fall
-third, look to legislative history – not part of statute but part
of the committee reports
-fourth, make an argument about the power of the provision – if
p2 is dead and this increases the power under p2 making it look unusually
large (not what Congress would have intended) then have a better argument
that the two p’s are inseparable – argue that Congress would not be willing to
grant THIS much power without p2 as a check
If arguing that the two p’s are separable (and hence the
constitutional p1 will not sink with the unconstitutional p2) look to:
-first, express, specific text (all opposite of those supra)
-second, express, general text
-third, legislative history
-fourth, make an argument about the power of the provision – if
p2 is dead, p1 is still a relatively small amount of power and Congress did not
really intend to hold a check (p2), the check looks more like an afterthought,
like Congress just threw it into the mix
Alaska Airlines v. Brock – There are 3 approaches for when we don’t have
anything explicit about separability (like express specific, general, legislative
1. Can assume in favor of separability (i.e. give a rebuttable
presumption in favor of separability)
Problem with this? If assume that all LVs attached to power
granting provisions (delegations) are separable then we may get stuck with
laws that Congress did not intend.
But, Congress can take back the law by passing a law according
to the legislative process.
Still a problem though b/c once Congress delegates the power
to the Executive it has increased the powers of the Exec branch. And if
Congress tries to pass a law taking that away, through the legislative process
what can happen? The exec has the power to veto the law that Congress
tries to pass; MOREOVER the exec has a huge interest in vetoing that law
b/c it is taking away powers it was just delegated!! The only way Congress
can override this veto, accdg to legislative process, is with a 2/3 majority in
both houses – is extremely difficult.
**NOTE that this presumption won – this is way law is today***
2. Can assume in favor of inseparability – Problem with this? When
the LV is struck down the statutes in their entirety are also struck down!
Congress has passed many many many statutes with LVs. This would greatly
impede the execution of the laws b/c all the administrative agencies that
were granted powers through these statutes (with the LVs) would now have
nothing to do b/c all the statutes which delegated them the power would now
be struck down.
3. No presumption at all – court must figure it out on a case by case
Since we have presumption in favor of separability (p2 can sink but p1
remains) what is the advantage to Congress to put in LVs anyhow even though
they are unconstitutional?
Hypo: Say Senate and House tell Pres Bush that they are thinking
about granting $Xmn to be spent in certain ways but want to ensure that B
won’t spend the money in other ways. S and H can make a deal with B, that
they can veto certain expenditures (i.e. retain a LV). What is the point?
B can go ahead and spend in the forbidden ways and neither S nor H
can enforce the LV BUT the benefit of the LV is as a political weapon. They
can say “look we put into the statute that B could not spend money in this
way, and now he is spending money this way!! What a bad president he
CHADDA in a nutshell: Once Congress has, through the legislative process,
delegated powers, then Congress cannot retain for itself the power to undo
the decisions of the body that it delegated power to. The only way for
Congress to change the decisions of that body are to pass a new statute
through the legislative process which negates it.
Buckley v. Valeo (1976): FEC agents were given rule making and adjudicating and
enforcement powers. The FEC agents are executive officials b/c they are “exercising
significant authority pursuant to the laws of the US” ( that is the defn of an executive
official as set forth in the case).
What are powers that are significant pursuant to USC? Rule making, adjudicating
and enforcement powers!!
FEC agents appointed by the Pres pro temp of Senate, Speaker of House and Pres.
Problem – FEC agents were not appointed accdg to the USC Appointments Clause Art II
§2 cl 2. What does USC require for apptmt?
Art II §2 cl 2 has two tracks:
Track 1: president shall nominate by and with advice and consent of
Senate and shall appoint …. unless some provision in USC for other method
this is the default track!
Track 2: But Congress may by law give power to appoint inferior
officers to President alone (i.e. without advice and consent), courts of law or
heads of department.
What is a valid apptmt under track 2?
1. need a law that re-allocates appointment power from the President
2. must determine which officers are inferior and which are principle
3. if officer is principle then track 1 prevails and Congress cannot ever
re-allocate the appointment power from the Pres
if officer is inferior, then Congress can give apptmt power to Pres
alone, courts of law or heads of department
In Morrison (infra) – what is the rule that sorts officers into inferior and
J. Rehnquist says factors are: term, duration and duties (GY says
there really is no information here – aren’t ALL government officers limited
in terms of time?? I.e. Senators serve for 6 years, congressmen for 2 etc
etc. Don’t ALL government officers have limited duties? I.e. Sec of Labor
cannot regulate the military!)
J. Rehnquist probably really means POWER:
-qualitative officers traditionally part of executive power,
important to executive etc.
-quantitative how much can officer do? How much is the
officer supervised? Can officer do lots of unimportant stuff but with no
supervision? (GY says this stuff does not lend any credibility but it does tell
you the types of arguments you should make to determine whether a person
is an inferior officer or not)
**NOTE** Even if follow all the requirements of appointment under track 2
of the Appointment Clause, the officer is technically validly appointed – BUT
the appointment STILL could be invalid if it is incongruous.
Incongruous means “weird” (i.e. if Congress gave the USSC the
power to appoint the Sec of SE Asian Affairs – this is just weird – why would
the USSC appoint such an official? No functional reason for the USSC to
appoint this officer.) (more on this under Morrison case)
In Buckley: Court reads the Apptmt clause very strictly and says this is the ONLY way
an officer can be appointed!! Must abide by text literally.
Myers v. US (1926) and Humphrey‟s Executor v. US (1935): Rather than reading the
removal provisions of the USC strictly as the Court did with the Apptmt Clause – the
Court says that the presidential power to remove is somewhat implied. WHY imply it?
B/c without implying it the Pres would be stuck with people who were inept.
Only way to get rid of them would be impeachment and so they would have to commit a
high crime or misdemeanor and would have to go through the whole impeachment
process etc. (besides impeachment was to be left for extraordinary circumstances)
The Pres should have the power to remove those close to him at will b/c he has a
constitutional duty to take care that the laws are faithfully executed – and he cannot fulfill
this duty if he is stuck with inept exec branch officers.
*** The GENERAL RULE for removal is that the Pres has power to remove at will***
But there is an inherent conflict between the two cases: Myers – congressional restriction
on presidential removal power was unconstitutional. Whereas in Humphrey the
congressional restriction was OK….. how do we reconcile?
- Distinguish between “purely executive” (congress cannot restrict) and “quasi-
judicial or quasi-legislative” (congress can restrict)
**NOTE this distinction is dead via Morrison v. US***
Also note that GY says that Myers was decided at a time where Court used “old
view of executive power” (this means that exec has execution powers, legislature had law
making powers and judiciary had adjudicatory powers). In Morrison we get a “new
view” where exec can enforce the law by executing, making laws, enforcing them and
-How else can we reconcile? The nature of the congressional involvement in
Myers was that Congress added itself to the answer of “who can remove?” Congress got
invovled in the specific decisions to remove specific officers – changed “who could
In Humphrey‟s, Congress did not add itself to the list of “who can remove” but
rather Congress put limits on “why can remove.” Pres is still the sole remover – just has
to do so within limits (i.e. “for cause”).
**Vocab note: When congress puts limits on the power of the president to remove this
creates an Independent Agency. The fact that president can remove only for cause is
what distinguishes an IA from an executive branch officer.
Can Congress put those limits on any office that exists? NO, are some officers that are so
important to the Pres that the Pres must have removal at will power. This line depends on
how much power the officer has… (what the hell does that mean?? How do we
Myers and Humphrey’s in a nutshell: In many but not all cases congress may
be able to limit the Pres removal power, but Congress can’t give itself the
power to participate in the specific decision to remove (congress cannot be
part of the list of “who can remove” but can be involved in “why can
remove”). In the instance where the officer is so vital to the president that
he must be able to remove at will in order to insure that he faithfully
executes the law Congress cannot limit his removal power.
Bowsher v. Synar (1986):
OMB(appt by pres, at will rmvl) CBO(apptd and rmvble by congress)
Law was designed to stop an increase in national debt. Congress tried to put itself on a
budget by taking spending out of its own hands – gave itself a spending schedule. At the
beginning of every year need estimate of deficit – CBO and OMB give estimates of
deficit, if they don‟t agree to one, then they are averaged. Estimate given to CG.
First problem? The CBO is apptd by congress and removed by congress – this is not
consistent with USC b/c Congress cannot appt principle officer of US!!! Buckley would
kill statute here!
BUT the court saw the CBO and OMB as advice giving bodies and not really retaining
any decision making powers therefore were not “exercising significant authority pursuant
to laws of US” and therefore not an executive official.
Second problem? Is there an appointment or removal problem?
-appointed by president no problem here
-removed by impeachment
But what about the list? List of 3 given by Congress and president decides. This is
probably not OK.
Congress can give a list determining the qualifications a person must have in
order to fill a position – but the list must leave a big pool (i.e. if list said “must choose
person who has a Ph.D.” this would be OK; list says “must choose a former governor of
NJ who is a republican and…. etc” this would NOT be OK.)
Third problem? The Joint Resolution removal provision which says if President vetos
Congress‟s removal decision, then Congress can overrule the veto by removing with a 2/3
vote in each house - can congress through passing a valid law give itself the power to
[note – a joint resolution is a valid law, sent through legislative process and subjected to
presidential veto(only difference is that it begins in both houses); whereas a concurrent
resolution is not a real law, it is passed by the 2 houses and no presidential involvement
cannot change rights and duties through a CR]
J. White – argues that the JR removal provision makes the standard for removal harder
than under the impeachment provision. B/c under impeachment only need ½ the House
and 2/3 Senate.
But really the JR may seem harder b/c requires 2/3 of each House – but
Impeachment also requires it be a high crime or misdemeanor which is a tough barrier to
KISS IT GOODBYE RULES: Congress can by statute:
1) create an office
2) define its powers
3) require that the head of office have certain qualifications
4) can mandate that officer be removed by president only for cause (makes it an
Independent Agency) and can give the standards for what would be sufficient „cause‟
5) Congress cannot give itself power to decide who will be removed – to operate
and execute the statute
POWER TO: Congress or part of Legislative Process
REMOVE NO – Bowsher (Q5) NO – Bowsher (Q4)
APPOINT NO – Buckley (Q3) NO (Q6)
CHANGE AGENCY NO – Chadda (Q1) YES (Q2)
Q1 – Can Congress or part of Congress change the substance of a rule? NO – Chadda
says that once Congress delegates power to another branch, Congress or a part of
Congress cannot retain a power to negate the laws made by that branch.
Q2 – Can Congress through the legislative process override a law and write its own
statute? YES – this is basic function of Congress! Once Congress delegates a power it
must kiss that goodbye and cannot interfere or retain a power over the agency; BUT
Congress can change any rule or law made by the agency so long as they do it through
the legislative process.
Q3 – Can Congress give itself a vote on the specific appointment of officers other than by
the advice and consent as mandated in Art II §2 cl.2? NO, Buckley takes a strict reading
of the appointments clause and mandates that only the president can appoint principle
officers by and with the advice and consent; and Congress by law can give the power to
appoint inferior officers to the president alone (without advice and consent), to courts of
law or to heads of dept.
Q4 – Can Congress through the legislative process give itself the power to remove a
particular person from office? NO – Bowsher says that the joint resolution (which is a
law passed through legislative process) which allows Congress to remove is
Q5 – Can Congress write a law permitting removal by the House or Senate or both but
without the president? NO – Myers and implied Bowsher – sometimes Congress can
pass a law restricting the president‟s power of removal from „at will‟ to „for cause‟ but
this is only OK when the officer has little power (is not an officer so close and central to
the executive power that president must have „at will‟ removal power in order to carry
out his duty to faithfully execute the laws -- Congress has no authority to limit the
presidential power to remove in these cases).
Q6 – Can Congress through the legislative process (passing a valid law) give itself the
power to appoint? No – implied in Bowsher. If you cannot remove by a law should not
be able to appoint by a law. And implied in Buckley – USC is only way to appoint.
Take the two cases together and get the conclusion that: appointing and removing are
presidential functions and cannot be done by Congress or a part of Congress
or by the legislative process!!
Sometimes Congress can pass a law that does not give it a continuing role but
describes at the outset a list of the reasonable qualifications the officer must have. It is
debatable how much of a list is OK? Should consider:
- is it a reasonable qualification for such an officer
- is the list too restrictive
- if it is a list of names – how many are there?
After Humphrey – it was OK for Congress, through the legislative process to put
restrictions on removal so that it is not at will but can be limited to „for cause‟ (then the
office is an IA)
Reagan administration – wanted to cut back on IA‟s – Congressional power to limit
presidential removal should be very very narrow if it even exists at all
really wanted the president to have direct (removable at will by pres) or indirect
(removable at will by person who pres can remove at will) removal power over all
Morrison v. US: Act passed which said that:
1. AG, on own or after receiving a complaint from Congress can begin
investigating if there are sufficient ground for investigation into high govt official
2. Once AG investigates – if NO reasonable ground for an investigation that is the
end of the matter – no judicial review of his decision.
-if are reasonable grounds for an investigation then to #3
3. AG reports to Special Term/Division (3 judges on US CoA for district of ____)
4. Special Term must appoint independent counsel (IC) and has discretion to pick
the particular counselor/prosecutor
IC is basically functioning as a prosecutor but the president cannot remove him; IC is
insulated from president
Pres can normally remove prosecutors for cause (which is jud reviewable)
rmvble by impeachment
rmvble by ST by ending the IC‟s office if
investigation is over with
Morrison court decides the IC is an inferior officer. Any other issues with the Apptmt
Cl? ------- Is the ST a court of law???
Supposing satisfy the Apptmt Clause are you done??? NO still could be an invalid
appointment if it is incongruous. (ex with the USSC appointed the Sec of SE Asian
Where does this incongruous requirement come from? Form the large scale of separation
of powers – there are specific clauses like Art I, II and III etc but on a greater scale there
is a general implied balance of powers between the branches and even if what you do in
appointing satisfies the USC textually, it could still upset the balance of powers by being
incongruous and the USSC can come in and change this b/c it is to unsettling to the
balance of power.
In Morrison is the ST appointment of the IC incongruent? No b/c:
1) if the IC is going to investigate the Executive then the IC should be appointed
by someone other than the Executive – so why not the ST?
2) And also, it makes sense for judges to appoint a prosecutor (the law is their
specialty and they are in a good position to know a good lawyer) and besides the ST is
appointed from judges from all over the country this is a safeguard b/c none of the
appointed judges to the ST will actually be the ones hearing the IC‟s case.
What set of rules determines the location of the blue line?
Officers those that Congress
only can by statute make
removable independent (i.e. are
at will removable for cause)
If are an officer in (a) then the statute which purports to limit the
presidential power to remove is invalid!!
Can argue that if the removal is unconstitional it is inseparable
from the statute and thus when the removal part sinks the entire statute
If want to place officer in (a) must argue that they are so central that the
president must have removal power over such an officer. That the removal
power should be reasonably generous b/c if the president cannot remove
then he cannot ensure the nation is functioning effectively. Central usually
means they have a lot of qualitative and quantitative power.