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Great Constitutional Law Outline for Law School


									                                                           12/9/2010 10:16:00 PM

Lecture 1 – 8/20/2009 Separation of powers vertical and horizontal
Marbury v. Madison
Congress tried to act as though they were the Supreme Court which is a
violation of the separation of powers

Marbury appointed justice peace Washington DC a midnight appointment by
Adams Federalist before being replaced by Jefferson republican. Jefferson
refuses to allow Marbury to take the position

Does Marbury has a vested right to become a judge? Marshall says - YES
         Whenever the president signs the commission at that point the
          commission is vested.

If yes, what remedy does he have?

Does the Supreme Court have the right to issue the President Writ of
      The Judiciary act of 1789 passed by US Congress. It permits the
        Supreme Court to issue a Writ of Mandamus. – Marshall - Not quit
         Marshal says that the Sup. Court may only do what the Constitution
          allows it to do. Article 3 section 2 clause 1 (he does not see the
          language in the constitution permitting the Court to issue such a
          writ of mandamus.
              o Original Jurisdiction
              o Appellate Jurisdiction

Therefore there is a conflict between the Congressional Act (Judiciary act of
1789 ) and the Constitution

         Marshall hold that congress can‟t give the court more power than
          the provided to the court by US Constitution Article 3 Sec. 2 Clause
             o Establishing a the article as a ceiling rather than as a floor for
                the Constitutional Powers of the Court.
             o This action basically makes the court a player in national
Marshall - this statue is unconstitutional
      Expands the powers of the Judicial Branch by launching the
         Supreme Courts power to Judicial Review

Exception Clause - McCardle and Kline

Exception Clause – Article 3 Section(2) Clause(2). Congress may tell court
when to review certain appellate cases
Scope of Authority:

McCardle – Post Civil War Reconstruction
McCardle a newspaper editor in the south (MISS) criticizes the northern
occupation. Arrested and tried by a Military court (all northern participants).
      He asks that the judgment be review by federal court
      Congress passes an act that prohibits federal court appellate review

Exception Clause – Article 3 Section(2) Clause(2). Congress may tell Court
when to review certain appellate cases under special conditions.

Does this congressional act go beyond the exception clause scope?

Supreme Courts (J. Chase) under the exception clause congress may limit
the courts review. Not beyond the scope of the Exception Clause.

Congressional Statue stating that: If President Andrew Johnson gives a
pardon to any southerner then the federal appellate courts are to interpret
that person being pardon was guilty of the crime being pardoned.
Supporter the Southern Troops and if you supported the southern troops you
can‟t get your house back and belongings. So if you get the pardon you
don‟t get your house)

Chase make the argument that congress goes to far.
         Congress is telling the Judiciary how to act. Distinct from McCardle
          because although unlikely McCardle has the theoretical possibility of
          acquittal but in Kline there is no possibility of
             o Violation of the separation of powers . The president alone
                has the power issue pardon.
             o Violation of the separation of powers.
                     President and the president alone has the power to
                      issue a pardon.

Commerce Clause (Audio Notes 1:00)
Commerce Clause Article 1 section 8 clause - Congress has the authority to
regulate commerce among several states, foreign nation and Indian tribes

Example of Commerce
     Exchange of money for goods and services
     Anything for which there is a national market place is commerce
        among several states
     Commerce is something that some type of economic value to it.

Gibbons v. Ogden
Gibbons has Federal license to operate a ferry on the Hudson
Ogden has a NY State license to operate a ferry on the Hudson

Article 6 Supremacy Clause if you have any federal statue passed in
pursuant to the constitutional and it conflicts with a state or local statue the
Federal statue is the supreme law of the land
       Valid Fed. Statue Preempts State & Local Statues that conflict.

Where does New York get the right to pass such a law?
10th Amend. Any rights not given to the federal government or prohibited to
the states is given to the states.
Police Power regulate health, safety, welfare,and morals

Gibbons v. Ogden,), Chief Justice Marshall articulated a broad vision of the
Commerce Clause.
         “Commerce” extended beyond navigation to include commercial
         “Regulate” involved the power to prescribe the rule by which
         commerce could be governed.
        “Among the states” did not include “that commerce, which is
         completely internal, which is carried on between man and man in a
         State, or between different parts of the same State, and which does
         not extend to or effect other States.” Implicitly, it did include
         commerce which affected another state even though it did not
         involve crossing a state line.

US v. E.C. Knight
      Difference between Manufacture and Commerce
      10th Amend. Police powers – states have to regulate manufacturing
        but congress can not only commerce powers

Carter v. Carter Coal
      Congress passes an act trying to fix the price of coal and set a
        minimum wage on coalminers. Not commerce – manufacture and a
         local matter regulated by the states under the 10th Amend. Police

Swift & Co. v. US (1905)
      Although the stockyard was intrastate, the Court stressed that it
        was only a temporary stop for the cattle, the stockyards were in a
        Stream of Commerce among the States, and the purchase of the
        cattle was a part and incident of such commerce

Schechter Poultry Corp. v. US (1935)
      DF imported chickens from out of state and sold them to local
       retailers. The Live Poultry Code required sellers to sell only entire
       coops or half-coops of chickens, and made it illegal for buyers to
       reject individual chickens. Also, the code regulated employment by
       requiring collective bargaining, prohibiting child labor, and by
       establishing a 40 hour work week and minimum wage.
        The Court held that, once the poultry had reached the defendants'
         slaughterhouses, it was their final destination, the interstate
         commerce had ended, and subsequent transactions in their
         business were transactions in intrastate commerce
        Fed law regulating sale of chickens unconstitutional as applied
         where the State as the final destination and used for local trade
        Poultry at the end of the stream of commerce not be among the
         several states

Hammer v. Dagenheart
Manufacturing can only be regulate by the policing powers of the state

Champion v. Ames
Congress passed a statue that the transportation of lottery tickets across
states borders is prohibited.
       Lottery are different than child labor because the court in
         Dagenheart the court was trying to regulate manufacture of product
         made by child labors.

Commerce clause allows congress to regulate commerce among the several

NLRB v. Jones & Lauglin Steel Company (1937) Swift in the Commerce
       Large company, many locations their railway system
       Court makes the argument that paying your workers is commerce
        and among the several states because of the size of the steel
        Congress has the right commerce among the several states.

Wickard v. Filburn
     Congress passes statue under commerce clause about how much
       wheat can grown by farmers. Filburn was a farmer who grew more
       than 21 bushels permitted by law (239 Bushels) he claimed he was
       only growing for consumption by his family.
         Wickard argues that since he was only using for personal
          consumption congress is not regulating commerce since its being
          used for is own consumption and its not among the several states

      Court says: even if you do not sell your wheat across state lines,
       assuming other farmers do the same the cumulative effect has
       impact among the several states. It not just you but it‟s the
       culmination of all the farmers doing the same across the united
         Congress defines Commerce as some type of commodity or service
          for which there is a national market.

Heart of Atlanta Motel, Inc. v. US
1964 RIGHTS ACT, passed under the commerce clause, requires private
business to avoid racial discrimination
       Motel Makes the argument that Congress has no power regulate
         because the hotel is in Georgia and not among the several states.
       Courts argues
            o Motel advertises in national magazines and posted billboards
              on interstate freeways
            o 75% guest from out of states

Katzenbach v. McClung (Ollie’s barbeque)
Court upheld the 1964 Civil Rights Act concluding that it was a valid exercise
of the powers to regulate interstate.
Where just doing business inside Alabama even if most of you customers are
from w/in the state most of the things used to run your business were
procured from commerce among the several state. Meat silverware aprons
napkins counter tops all created in other states therefore you are engaging
in commerce among the several states.

Stream of commerce clause no longer used
Police Powers no longer used
Manufacturing versus Commerce no longer used
National Labor Act 1937 - protect the rights of people to form union.

Indiana skipped.

congress passes a law against loan sharking under the commerce clause
You can pass a criminal law under the commerce clause to send someone to
jail if it refers to commerce clause. Cumulative effects test. Wilker good

categorizes the power of congress under the commerce clause
1 Regulates a channel of interstate commerce (road, rivers rail, air travel)
2 The things that are moving them (the trains planes, automobiles)
3 If its having an effect on inter state commerce (3 cumulative effect test)
        Wikard v. Filburn (the farmer and wheat), Katzenrach (Ollies
          barbeque) rest. The import supplies case ), and Atlanta motel

Is it Among the Several States
        Channel of interstate commerce (road, rivers rail, air travel)
        Instrumentality of interstate commerce (the trains planes,
          automobiles and things that are moved..wheat cattle, etc..)
         Effects of Inter state commerce
             o Wickard (cumulative effects), Heart of Atlanta (workers
                advertising)or Katzenbach (supplies of procured)

National League
Congress passes a statue guaranteeing minimum wage to state workers.
Congress is doing something that is forbidden by the 10th amendment state

Garcia v. San Antonio Metropolitan Transit Authority
Since the Federal government pay for most of services so the argument that
local gov. services is a function of state government no federal gov.

United States v. Lopez – (does not find commerce)
      Federal Law that makes it illegal to bring a handgun within 100
        yards of a school
         No national market for bring your guns to school
            o Lopez brought the gun to school to sell it
                   Rehnquist knew it but he wanted to limit the federal
                      government power

United States v. Morrison (does not find commerce)
Women who are victims of sexual assault may sue their assailants in civil
court for money damages.
       Rehnquist dictum – if women insurance rates go up I might be in
          the mood to call that commerce 2 and if you can show that women
          are more reluctant to travel across state lines for lack of the
          violence against women defense act.
             o Concerned that the system of check and balances may
                become unbalanced. The federal government is becoming
                overly powerful.

Pierce County Washington v. Geon
congress want to give money to the states for road construction with the
condition that the states would survey the roads. The states rejected the
offer due to concern that the reports might be used against the state in civil
cases. Congress passed a law that would not allow the reports to be used for
evidentiary purposes. Commerce among the several states.

Gonzalez v. Raich
Rach is suffering from pain and uses marijuana as a pain medicine. Neither
Rach nor b is buying to pot. They are buying it from their friends or growing
it themselves. CA referendum If you can get a Dr. Prescription then you can
Argument: There is a national market for marijuana. Legality of the
commodity is irrelevant all your looking for is something that has a national
market. The fact that there getting their marijuana for free like in Wickard it
is the aggregated effect of all the imaginary marijuana

        The Highway Safety Act of 1966 was passed by congress in an
         effort to reduce hazardous conditions on our Nation‟s highways.
         The Act provided for gathering of data of state highways‟ condition.
        A subsequent amendment to the Act provided that information
         gathered pursuant to the Act would be privileged and could not be
         discovered in a civil suit against the States.
        PL‟s wife died as result of accident and he tried to get info gathered
         about the highway

Held: statute was proper exercise of Congress' Commerce Clause authority
to "regulate the use of the channels of interstate commerce" and "to
regulate and protect the instrumentalities of interstate commerce."

        The statute aimed at improving safety in the channels of commerce
         and increasing protections for the instrumentalities of interstate

10th Amendments

New York v. United
Disposal act gives states 11 years to clean up if doesn’t comply States will
have to pay for the cleanup according to fed standards and if not done will
charge the states for the federal clean up.
10th Amendments - a shield against the commerce clause. The right which
the constitution does not give to fed government, nor denied to the states
are given to the states or the people. The states have a general power not to
be coerced

1992 court makes a different argument. NY v. United under the 10th
Amend states have a general power not to be coerced by the federal

        basis of coercion

Coercion Test –States and local Governments;
      Look for:
           o Fed forcing the states to do something but makes the state to
             pay for it. (NY v. United States)
                 Makes NY pay Fines
                 Makes NY financial liable to injured person or property
           o Are individuals or private corporation able to claim “not to be
             coerced” under the 10th Amendment? No, only States and
             Local Governments
           o Battery factory hypo argue like Morrison and Lopez in these
             cases congress was trying to regulate safety/health not

        Prince v. United States
            o Congress passes a law stating that before you buy a handgun
              you must pass a background check and the local police
              departments must pay for the test.
            o Local Police departments make the argument that
              congressional regulation is unconstitutional under the 10th
              Amendment Coercive
            o Fed is making state and local governments pay

Tax and Spend – General Welfare – SC gives congress broad adoptability

If the fed puts strings attached to the money
        Conditions must be clear
        Conditions must have some type of relationship to the grant

10th Amendment Coercion under a tax and spend
       must utterly depend on the money

9/10 5:46
Section 5 Fourteenth Amendment 1868
Background to ensure that African American may enjoy the same right as
their white counterparts 14 15 16 amendments. Reconstruction
14th Amendment - Section 1 * most important
      Three Clauses
          o Privileges or Immunities Clause
                no state shall make or enforce any law which shall
                  abridge the privileges or immunities of the citizens of
                  the United State
          o Due Process Clause
                no state shall deprive a person of his life liberty of
                  property without due process of law
            o Equal Protection Clause
                 no state shall deny any person equal protection of the

Section 5 of the 14th Amendment 5:56:30
      Congress may pass any appropriate legislation to enforce the 14th
           o Appropriate any congressional legislation that is consistent
              with the 14th amendment
        Congress can only pass legislation that the states that are not
         depriving individuals of Privileges or Immunities, Due Process of law
         or Equal Protection.
            o Morrison - alleged rape of student congress pass law which
               would permit victim to sue defendant civilly
                   Solicitor General argued :If not constitutional under
                     commerce clause then its appropriate under Sec. 5 of
                     14th Amend.
                         Defendant was not a representative of the state
                           he was acting for himself not a state actor.
                               Sec. 5 14th Amend. Only applies to state/
                                state actors

14th Amend. Section 5 to protect you from state and local governments
       Equal Protection Clause – (EPC) Whenever court decides that a
        state law discriminates against someone the court must establish
        the standard of review
         Strict Scrutiny - very hard to pass 90% will not pass
             o Suspect classification law
                    race
                    ethnicity
                    religion
                    alienage
         Intermediate Review 50/50 chance that the law will be
          struck down
             o Gender
            o Illegitimacy
         Rational Review greater than 90% chance that it will pass
            o recovering drug addicts
            o left handed
            o admission to school

logical Nexus
Unusually when Congress pass a law under the EPC it is doing so for
the purpose of allowing a person to sue the state of local
government to collect money damages.

Kastenback v. Morgan and Morgan
Voting Rights Act 1965 was passed under section 5 of the 14th amend.
NY if you cannot read or write English you are not allowed to vote.
As long as the person completed the 6 grade in the united states or gradated
from an accredited private school in Puerto Rico were the principle language
is any thing other than the united states.

Argue that congress does not have the authority to pass the statute
When ever congress pass a statue under section 5 of 14th Amendment

The standards only apply to state and local statue not constitutional

“not a group of people that the court has historically tried to
City of Bernie v. Flores - Read
       Due Process Clause
            o no state shall deprive any person of his life liberty of
                property without due process of law
            o First 8 amendment know as the Bill of Rights -Liberty
                    1st Amend. –congress may not establish religion nor
                      prohibit the free exercise of religion

employment division v. smith - Read
General Applicability rule rational review

if a law unduly burden a person religious right to free exercise it violates the
first amendment

Kimmel Age discrimination act

Board of Trustee v. University of Alabama
She gets cancer in order to respond t cancer she get chemotherapy which is
making her tired. The U of A fires her saying that he can still work but not
under the same job. If someone who works for the state is discriminated she
may sue the state for damages

She sues under the equal protection clause claiming that she is entitled to
money damages.

Rational Review – congress is not entitled to pass this type of law. Not a
historically protected group. The law is not deemed appropriate

tax and spend - clearly specified and closely regulated

commerce clause imposes fines

section 5 attack the states immunities allow citizens to sue 8:51 important.
Hibss F
Federal Family Leave act 12 weeks of unpaid leave from the government
agency only applies to both men & women.

Sec 5 14th Amend. Intermediate review. Any gender issues is struck down
because they want to help women. They want to break the stereotype that
taking care of the baby is women‟s work. Because it could show that women
would be discriminated against

Intermediate review is looking to see how prophylactic the problem.

early state is total irrelevant.

statistic that show concern about the private sector, red Hearing not
concerned with private sector.

Tennessee v. Lane 253 lat paragraph Constitutional right
Poor Mr. Lane….Wash for this a two head monster iLrvrrr. Charged with not
appearing in court ion rule He is immobilized….lok for sonmei=onr beng

Allden v. Maine came as a surprise cputn

I Commerce Clause Article 1 Sec 3 CL 8
      US v. EC Knight
          o Congress pass a law to break up the corp.
           o Is it commerce? Yes
           o Among the several States? Yes
                  Is a channel of interstate commerce? No
                  Instrument of interstate travel

II Tax and Spend : Article 1 Sec 1 CL 1 Congress has the authority to tax
and spend for the general welfare and stated lucidly only used by federal
government taxing corporation that make unions unallowable and those that
are part of a monopoly (South Dakota v. Dole tax and spend case SD only
used 5% fed money to repair road, if it was (95%) perhaps they would have
a 10 Amendment Argument of coercion.

III Sec 5 of the 14th Amendment
Due process – Look for wide spread violation

Article 6 of US constitution the constitutional of the of the united states and
any fed law made validly un the con are the sup law of the land.

If a state law or local law was been preempted by a federal law the only time
you pick supremacy clause that contradicts a federalist gets preemptive.

If a federal says in the text “any local laws have been declared null and void

Implied Preemption - If its impossible to comply with a valid local law and
federal law

Field preemption - there is entire field of the law that has been so heavily
that it makes clear that state and local should not get involved.

         ****MA has the right to pass the statue by the 10th amend. Police

Laurel Tobacco
The federal law governing the labeling and advertisement of tobacco. The
statute says . No statement related to smoking or health shall be required
on the package.

Florida Lineman Avocado Growers
California law says that in order to sell avocado in the state it must be
mature which the states determines the maturity by measuring the oil
Fed statue USDA defines maturity by measuring the length of vine time.

There is no conflict no implied preemption

Pacific Gas

Heinz v. Davidowich
Dormant Commerce Clause – A state or local statue may be deemed to
violate the dormant clause even in the absent of a fed statute.
Must ask the questions
        Does State or local statue it discrimanate against out of staters?
            o if yes
                   Does the state have a compelling government interest
                     to discriminate against out of staters?
            o Can the
What is a compelling interest?
      Health and safety
      not economic gain at the expense of out of staters

If the stator local does not discriminate against out of of states

Undue burden test.
      weigh the benefit to state v the burden to interstate commerce
          o aslong as the state interest predomnate then no problem
          o but if burden predominates then bad

South Carolina v Barnwell Brother
If you are driving a commerce truck through the state you can carry more
than 90 thous. Lb wieth and the truck cant be more than 90 inch wide.
BB makes that argument that statute is an undue burden on interstate
SC on its face does not discriminate against
       then goes to Undue Burden Test
            o SC agues health and safety balanced against burden of cost
               against interstate commerce
             o According to the trial court based on expert testimony SC is
                probably right perhaps and at the very least prevent
             o SC benefit Does out weigh the burden on interstate
City of Philadelphia v NEW Jersey
New Jersey is running out garbage space. The law states that it wont allow
for the importation of garbage.

listen carefully to 1:10 minutes section before 12:52
state of Minnesota v. State Creamery Company
MN law want to sell milk inside a state has to be polk wood containers
        Solid waste management purposes.

Dean Milk Co.
Statue that challenges validity of a law prohibiting the sell of ilk that is not
pasteurized within five miles of Madison Wisconsin

Dormant commerce clause analysis
     Does it discriminate against out of staters.
          o yes – go into strict scrutiny
     Is there a compelling government interest?
          o Madison argues that there is Health issue
     Are there means available that do not discriminate against out of
          o Court says yes.
          o Health standards are permissible under 10 amend. You could
              adhere to the Madison standards.
            o And if out of state dairies are adhering to the same standard
              they are allowed to sell milk

Maine v. Taylor only case where the court uphelds the strict scrutiny review
under the dormant commerce clause
Bait shops in Maine want to buy bait fish from out of state. Buyer in Maine
seller out of Maine. No golden shiners are permitted to be imported from out
of state.

The Like for a Like
Sellers in Maine Can sell/ sellers out of Maine can‟t sell
       Diffrential treatment between to like sellers

Is there a discrimination between in staters and out of staters?
       Yes - then strict scrutiny
Is there   a compelling government interest
          States argues try to protect states environment
Is there   a means of furthering state while allowing out of staters?
          Court says there no further way to further Maine‟s interest without
           destroying the bait fish
Bruce Church
Arizona law says that says that cantaloupe must be packaged in a specific
way before they are exported. Originally AZ says that it for health reason,
once you picked may become rotten and effect the individuals health.
Bruce has an AZ farm but the packing plant is in California (31 Miles away
from the farm) the nearest packing plant in AZ would be much further than
the 31 miles. If Bruce want to create ther own packing plant it would cost
200K. Bruce church has an option , pack in AZ or travel 31 miles and pack it.

          Does the AZ statue discriminate against out of staters?
             o No, both out of staters and in staters have to comply with the
                 statue no strict scrutiny review.

          Does the state law create a undue burden?
             o Yes, then rational review Balancing benefit against burden.
                         Must balance the benefit to the state against the
                               (spending of money to develop a redundant
                                 packing plant)
                           Court says that the AZ law is not necessarily
                            concerned with health but rather AZ is using the
                            packaging law to promote brand name.
                                it bases the attack on the states health
                                  argument is because the company has a
                                  packaging plant 31 miles away which would
                                  meet the AZ‟s health concern.
                                The benefit to the state is not really health
                                  but rather promotional and economic

Bib v Navahoe frifht
Illinois Statue that requires a specific type of mud guard of all trucks that
operate on the state highways
Is there a discrimination against out of staters
no everyone must comply with the rule – strict scrutiny

Balancing Test
benefit if any are diminishes the required curve mud flaps are not beneficial
and rather the court determines that the curve flaps are actually more

Burden on interstate commerce are substantial.

Consolidated freight v. Raymond Kastle
Iowa State law that prohibits the use of double trailer that are no more than
60 ft. on state highways. Raymond has trailers 65‟

Use semi only
decouple the double
go around
buy shorter doubles

Does it discriminate against out of staters
no, everyone must comply. No strict scrutiny

Undue burden test
Does the benefit to the state out way the burden to Interstate travel
Court says that the double is actually safer than the semi . So we don‟t have
to make the comparison of the

Burden on interstate commerce is extremely burdensome. Failes the undue
burden test an d is a violation of the dormant clause

Congressional Approval – If you have congress passing a statue under
commerce clause basically approving of a state or local governments statue
that discriminates against out of staters state it will not be subjected to
dormant commerce clause analysis

Western & Southern Life Insurance v State board of Equalization
Cal passed a law that says if a CA insurance co doing business in another
state is susceptible to higher tax then other out of state insurance
companies from that state will have to pay a higher tax when doing business
in California.

Does the state law discriminate against out of staters?
       Yes. Apply strict scrutiny review
Is there a compelling government interest?
       No. because the only argument is based on a economic self interest
         and protectionism. Not a good argument.

Mc Clarine Fergurson Act which says that insurance companies are not
susceptible to dormant clause review. The state is totally exempted from
discriminating review. To argue that the act you must do a commerce clause

Market Participant Exception
      Look for situation where a state or local government in the market
        place acting like a market participant try to make a buck.

         Look for a government actor acting like a market participant in a
          existing national market place.
Reid v. William State
SD run cement plant will only sell cement to in staters and whatever is left
will be given to the out of staters. First Dormant commerce clause analysis
does it discriminate yes
is there a compelling government interest. No

SD claims that there a Market Participant Actor
       Is there a national market place – Yes it‟s a cement company
       SD off the hook no dormant commerce clause analysis

White v. Mass.
All construction contract in which Boston is paying for the city requires that
at least half of the employees must be from Boston
       Does it discriminate? Yes
       Compelling gov. Interest? No only protectionism would fail strict
       Is there a national market place for owning the building – yes,
          Boston off the hook no dormant commerce clause analysis

Southern Central Timber Development vs Alaska
1 Alska engaging in a contract with a private company
       AK gives tree for money – No problem

2. AK pass law that says private processor must process the timber before
you leave the state. Example of Downstream Regulation
       Problem for AK. A private company cant pass a law restricting the
        movement of goods after the selloff the goods.
         This down stream regulation is what prevents AK from using the
          Market Participant Exception

Privileges and Immunities Clause Article 4 Section 2
The citizens of each state shall be entitle to the privileges and immunities of
       All of the bill of rights 1-8 Amendments of the constitution
       Concerns the right to work, under P&I if the state gives a right to
          work to in staters it has to give the out of staters the same right.
Toomer v. Whistle
2000 price difference between in staters license for shrimp license
Is there a compelling gov interest Yes environmental concerned
Is there a means by which the state may further its state interest without
discriminating against out of staters? You set a limit on shrimp

Lester Baldwin
Differential license structure. Elk hunting license diff btwn in staters and out
of staters
Is there a compelling government interest. Yes preserve the Elk supply

Is there a means by which the state may further its state interest without
discriminating against out of staters?

State argues that this unlike Toomer does not concern the right to work
because elk hunting is a recreational activity.

P&I only protect a right to work. Has to be American citizens
concerning a right to work

New Hampshire v. Katherine A. Piper.
Kasenbach v Morgan

Article 2 Power of the President – Charged with enforcing the law

Questions to ask yourself?****
1) Is the president properly exercising powers that belong to the office?
2) Is the president exercising powers that properly belong to another branch
of government?

Youngstown Sheet and Tube v. Sawyer
Steel workers strike during the Korean War conflict. President of the United
States was concern with steel production and seizes the steel mill President
executes an executive order forcing the workers and management to return
to work an continue producing steal. Steel Workers argue since the seizure
was not authorized they have no right to make an order.

The executive orders must be in furtherance of the office of the president or
furtherance of a congressional law

Acting in the capacity of Commander and Chief of the Military Law
Backing up Congress – ect. mobilizing the national

Supreme Court reject the presidents executive order as unconstitutional
because congress has not passed law for the President to support/backup.

Richard M. Nixon v United States
Watergate leak

The essence of a presidents article 2 powers is highest law enforcement
officer Nixon argues that if president of US is charged for violating a US law
he can not be charged because he chooses not to prosecute himself.

Nixon refused to answer subpoenas issued by the special prosecutor because
the special prosecutor is appoint by Attorney General and He appointed the
Attorney General and therefore must answer to the president.

Separation of Powers

SP Pros works for the congress
Burger argues that there is executive privilege

Non-Delegation Doctrine - congress may not delegate its powers to a
branch other than congress, otherwise there would be a violation of the
Separation of Powers Doctrine.

Emerging Issue – The Rise of Government Agency, congress dell the
authority to because members of congress is overwhelmed by the review
process in fields that the average congress person is not qualified nor the
time or resources to review and an make decisions . so the congress
delegates these decision to Agencies that are run by individuals that have
the qualification to make the decision. The problem is that these individuals
are not elected but yet they are passing laws that effect the country. FDA,
FCC, & Atomic Regulatory Decision. Supreme court has significantly
diminished the power of Non Delegation Doctrine taken the stand that
congress may now delegate much of the power.

Schechtter Poultry
Congress pass an act, under Article 1, that delegates powers to the
president to regulate commerce dealing with the fairness in business.
Congress needs laws that breaks up monopoly but does not do this but
rather delegates to president the power to pass any legislation to break up
legislation and the president may define monopoly. Congress set no
limitation on the president powers.

         Violation of the Non-Delegation Doctrine and the Separation of
          Powers doctrine. Rejected by the courts.

Panama Refining
Congress uses legislative powers under article 1 delegate its powers to the
president to pass any regulation in the regulation of “hot oil” sold beyond
state lines. Congress set no limitation on the president‟s powers

         Violation of the Non-Delegation Doctrine and the Separation of
          Powers doctrine. Rejected by the courts.

         Since Panama Refining the Sup. Court has never found that
          congress has unconstitutionally delegated legislative power
          to another branch of government in violation of the Non-
          Delegation doctrine.

Congress passes, under the article powers, legislative power to EPA to pass
standards for air quality under the National Ambient Air-Quality Standard
(NAAQS) Trucking co. just don‟t want to by new trucks. This time congress
has passed the powers with limitations. Congress told EPA do not consider
the cost when setting the standard. Supreme Court (Scalia) distinction this
factor from Shechtter Poultry and Panama Refining Co.

Immigration and Naturalization Services v. Chadha
Chadha visa expired and is subject to deportation. The federal court reviews
the Chadha‟s case. Chadha claims if he returns to Kenya he would be subject
to . The attorney General tries to enforce the Courts decision. However
congress passes a law under the powers of Article one for the house of
representation to pass a resolution invalidating decisions made by Att. Gen.
decision to enforce the federal judges decision in immigration matters courts

Article 1 requires that their two houses of Congress law must be passed by
both the senate and president. Violation of the principles of the separation
of powers doctrine.
        Too generous Violation of Non-Delegation
        Too greed violation the general principle of the Generation of

Appointment Powers
Article 2 section 2
The president shall nominate with and judges of the supreme court
who but the congress by law vest the appoint,ents..........

two types of appoints

        Principle Officers 2/3 senate must approve Ambassadors,

        Inferior Officers Congress can pass a permitting the
         president to appoint anyone he wants without any
         congressional approval

Alexia Morrison v. Olson
Appointed to work as independent council
Is she a principle officer requiring approval or is she a inferior
officer not requiring congressional review by the act of congress?

3 Factors that the court looked at to make the decision.
      Can be terminated at will with good cause. If Attorney General can
        show good cause Att. Gen. can eliminated the officer from the office

        Limited Duties of the Office – Just an investigator can recommend a
         decision. No public policy capacity

        Limited in Jurisdiction of the office

Removable Powers
Myers v. United States
Myers appointed by President Wilson as Post Master General for the state
Oregon for 4 years. Myers „s resignation is demanded by another President
but Myer refuses to resign.

Can the president unilaterally remove him? Yes Post Master General is not
an independent position because the office is simply following
The appoint power presupposes the removal power

 Roosevelt tries to remove Humphreys from the office at the Federal Trade
Commission. Appointed by Hoover, FDR becomes president and wants him
out. Court suggest FTC needs to be impartial because the position exercises
a certain level independent impartiality similar to a judge and needs to be
protected from the power of the president. Court says that president can
terminate the person for cause but congress can limit the decision of the

Wiener v. United States
War crimes act of 1948 created a commission which acts in a quasi judicial
capacity. Wiener is appointed as the head of the commission
Question to ask

        Is it an office in which a degree of independence from the office of
         president is desirable?

Bowsher v. Synar

Meyers v.
Presidents appointment powers
Articl2 sect 2 clause 2 Presidential powers of election
principle offices
      AG. Supreme Court, sectary of state , ambassador
           o Require 2/3 majority vote of senate inferior offices
           o Post Master General, federal trade commission
           o white press off, spokes person,

Constitution - No mention of removal powers
Congress can pass a law requiring the president to show good cause,
with regard to firing an who’s office enjoys a degree impendence
form the government the congress cant pass a law

Degree independence from the president that is desirable.
Eg. Federal trade Commission that has a judicial component
      Is this an office that requires a degree of independent from
       presidential influence so as to avoid undermine that of An
       office that requires an independent that is desirable
      look for independence.
          o In order to remove President must show serious cause
Gran laud Holley act *****************read**************
Congress creates a comptroller general to distribute government
funds to various agencies instituting cut in spending to pay for
needed services and infrastructure. Is under the control of congress
he can be hired or fired by congress without cause.

Congress is enforcing it own law , not good
Alex Morris
Appoint special AG
can she be fired byt he president at will or does the president
required to show cause.

Removal see if it an office requires a degree judicial impendence
congress can pas a law require a a president to show good cause

Congress passed joint resolution empowering the president to enforce an
executive order. To prevent Curtis Wright from selling weapons.

Distinguish Curtis Wright from the early steel Mill case

Did congress pass a law empowing the president to issue executice
order….probably more constitutional than with out power

know the difference

Bill Clinton Line veto case – too broad - too much power to the
president He was not acting like commander and chief in foreign

Broad power will not be approved too much power
limited power, inqunce

WAR POWERS resolution
reporting requirement 1543 Page 378
         president will report to congress
            o employment of army
                  must report within 48 president must submit a
                    report to speaker of the house and the president
                    of the Senate.

Only congress can declare war
Homdy v. rumfled
Act by congress authorizes the president use
American citizen caught outside the us is still entitled to due process
of law only American citizens.

executive order passed by bush as authorized by congress against

Ex Parte Purrian
Nazi Spy who landed on the coast of South Florida from a submarine with
intentions of conducting guerilla warfare attacks in the United States.
Landed in germen military uniform but quickly assimilated in to the local

Congress authorizes the president under the necessity and power to pass a
proclamation that permits the prosecution of spies though military tribunal
and defendants will be represented by military counsel .

Congress has the authority (349) to use the substantives powers to allow
the president to enforce the laws

Necessary and proper clause – just a means to expand substantive powers
Authorizing the president as a necessary and proper means. Work of go to

Grouping cases,
      Too much presidential power. Therefore violation.
           o Youngstown – no congressional authorization
            o Clinton Legislative veto – violation sep. of power President is
               acting like a little congress
         Too Much Congressional Power
            o I.N.S. v chata - D overstays his visa. house passes a
               legislation that the defendant should be Bo

Justiciability –
Constitutional Requirements – congress shall not modify
1 plaintiff must show injury (past or imminent injury)
2 must show injury is Fairly Traceable to the defendant‟s harm
3. Show that the federal court can make things better

Effectual requirements Congress may change or modify.
4. No third party standing. Must sue on your own behalf.
5. No generalized grievances. Must show that you are a special group of

Supreme court may never issue advisory opinions.
Jefferson asked Marshall court to issue an advisory opinion.
If the court issues advisory opinion to president cases and controversy if
they give president advice they in violation of the separation of powers and
acting like the president's council

Advisory opinion & standing

Allen v. Wright
Irs reg gives private schools tax exemption. Public school kids sue the irs fo

Court say plaintiff‟s lack standing because the injury is not past or in
imminent . Plaintiff‟s failed to show actual injury
no judicially cognitive injury
failed to show traceable contact.

Spot v. ___farm
Law I

Lujan v. Defenders of Wild Life
Non profit trying to protect the extension of animals in the world concern
with the idea that the USID under the auspices of the state dept. While in
the process of trying to implement the agencies policy they USID harms the
endangers species.
         Can the Defenders of Wildlife ask a federal hudge for injunctive
          relief to stop a US agencies from engaging in activities in foreign
          countries that harm endangered species.

Eco System Argument –
not an injury in fact must be a real injury something special particular to

The injury must be more precise

Animal Nexus Argument
Any single human being who wants to see the endangered animal can go
ahead and sue.

Vocational Nexus Argument
Anyone working with animals or studies animals can make the argument
that if the animal still existed then they can sue because it effects their job.
Not particular enough – under a specific set of facts this argument might be

         Redress ability

United v. Hayes
Hayes makes argument that he‟s been a victim of discrimination. They have
cut voting district in such a way that arguably negatively effects members of
a minority group.

         O‟Connor says that the plaintiff must actually live in the eefected
          district in order to bring a suite

Singleton v. Wolf No third party standing exception this case.
      A government denial of Medicare payments for abortion.
      Can a doctors assert a patient‟s right to an abortion
      Missouri statue that was unconstitutional.
      Do physician‟s have standing to sue?
         Did the plaintiff receive an injury in fact?

Time sensitive and a social stigma

Barrows v. Jackson - exception to third party standing
restricted covenant prohibiting home owners from selling there property to
black home owner. The court says the excluded class is not a party so the
court reads an exception into it. Because it would be imposible for a
prospective black buyer from having the standing for failure to have so an
injury because they are not party to the covenant

Craig v. Bourne - exemption to Third Party standing pg 72
If you have a state law that is gender based discrimination it must be
considered by the court under intermediate review.

Look for people that has suffer some sort of economic injury
Look for emotional Social Shame , time sensitivity and social stigma

Gimore v. Utah
Sentenced to death but choose not to appeal want to be executed Gary‟s
mother sue for a stay of execution. State argues that Gilmore meets the
requiste mental capacity so the mother has no standing to bring the case

Impracticality- shame, impossibility, social stigma,
corollary harm – economic injury.

Elk Grove v. Newdow
12/9/2010 10:16:00 PM
12/9/2010 10:16:00 PM
Look for emotional Social Shame , time sensitivity and social stigma

Gimore v. Utah
Sentenced to death but choose not to appeal want to be executed Gary‟s
mother sue for a stay of execution. State argues that Gilmore meets the
requiste mental capacity so the mother has no standing to bring the case

Impracticality- shame, impossibility, social stigma,
corollary harm – economic injury.

Elk Grove v. Newdow
12/9/2010 10:16:00 PM
12/9/2010 10:16:00 PM

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